HomeMy WebLinkAboutContract 43879 CITY SECRETARY 7 r
CONTRACT NO. �
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND DONNA LYNN DOBBERFUHL AND NED ALVIN DOBBERFUHL DIBIA
SCULPTURAL DESIGNS FOR PRELIMINARY DESIGN OF PUBLIC ART FOR
POLYTECHNIC 1 WESLEYAN URBAN VILLAGE
This Agreement is entered into this day of F , 2012, by and between
the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and
through Fernando Costa, its duly authorized Assistant City Manager, and Donna Lynn
Dobberfuhl and Ned Alvin Dobberfuhl, dIbla Sculptural Designs, of 1514 Broadway, San
Antonio, Texas 78215. City has designated the Arts Council of Fort Worth. and Tarrant County,
Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its
designated project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code
of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual
environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic
diversity, to integrate the design work of Artist into the development of the City's capital
infrastructure improvements, and to promote tourism and economic vitality in the City through
the Artistic design of public spaces;
WHEREAS, the City is currently designing street and streetscape improvements in the
-� 2700-3200 blocks of East Rosedale Street in the Polytechnic/Wesleyan Urban Village (between
t Connor and Collard streets) adjacent to Texas Wesleyan University;
WHEREAS, the Fort Worth Art Commission ("FWAC") recommended funds for an
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artwork for the Site from the Specially Funded Capital Projects Fund;
WHEREAS, the Project was included in the Fiscal Year 2013 Annual Work Plan and
Budget, adopted by the Fort Worth City Council on October 16, 2012 as (M&C C-25920) as part
of the City's agreement with the Contract Manager for administration of the ffibllk art program;
OFFICIAL RECORD
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl CITY SECRETARY
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Viliag FT. WORT1493TX
WHEREAS, in order to achieve visual continuity with the nearby East Rosedale (at
Miller Avenue) Roundabout Public Art Project the Contract Manager recommended direct
selection of Artist for this Project, in accordance with the procedures set forth in the Fort Worth
Public Art Master Plan, and the FWAC unanimously approved the Contract Manager's
recommendation of the Artist on August 6, 2012;
WHEREAS, the FWAC has recommended that Artist? in coordination with City and the
City's Project Consultant, be retained to design an integral artwork for the Site which may
include a brick seat wall and columns and kiosks; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said
Work shall be designed to promote the integrity of Artist's ideas and statements as represented
by the Work.
NOW, THEREFORE, City and Artist, for and in consideration of the covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
I.I. Agreement — Means and includes this agreement between the City and Artist for
Preliminary Design of Public Art for the Site.
1.2. Artist -- Means and includes Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl,
d/b/a Sculptural Designs and/or their heirs, executors, administrators, legal representatives,
successors, agents, subartists, contractors, assigns, members, officers, managers, proprietors,
partners, directors, employees, representatives, agents, subsidiary organizations, parent
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organizations, successor entities, assigns, predecessors, stockholders, administrators, and any
related companies.
1.3. Contract Manager— Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and/or its officers, directors, employees, agents, subsidiary organizations, parent
organization, successor corporations, assigns, predecessors, stockholders, administrators, and
related companies.
1.4. City — Means and includes the City of Fort North and its officers, representatives,
agents, servants, and employees.
1.5. Effective Date — Means and includes the date represented in the first paragraph of
this Agreement, which shall be the official date of execution of this Agreement.
1.6. Parties—Means and includes City and Artist.
1.7. Preliminary Design — Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist
in connection with this Agreement and/or any prior agreement between Artist and City for the
Work.
1.8. Preliminary Design Deliverables — Means and includes those items set forth in
Article 2.3 of this Agreement that Artist is required to submit to City for review and approval.
1.9. Project — Means and includes the capital improvement/public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
1.10. Project Stakeholders — Means and includes the District 8 City Council Member,
and her appointed community representatives and the Fort Worth Art Commission's appointed
representative and others as may be appropriate.
1.11. Project Consultant — Means and includes the design firm/professional(s) hired by
City to design the Site.
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1.1 Z. Site-- Means and includes Polytechnic/Wesleyan Urban Village and the 2700-3200
blocks of East Rosedale Street (between Connor and Collard Streets) adjacent to Texas Wesleyan
University in Fort Worth, Texas, 76105, which is more particularly described in Exhibit"A,"attached
hereto and incorporated herein by reference for all purposes.
1.13. Work — Means and includes the finished object(s) of art and design that are the
subject of this Agreement, or any intermediary stage of completion of such work.
ARTICLE
SCOPE OF SERVICES
2.1. General.
(a) Artist shall perform all services and will furnish all supplies and materials as necessary for
developing the Preliminary Design of the Work. Services shall be performed in a professional
manner and in strict compliance with all terns and conditions in this Agreement.
(b) Artist shall determine the artistic expression, scope, design, color, size, material, and texture
of the Work, subject to review and input from Project Stakeholders and approval by City as
set forth in this Agreement.
(c) The specific location at the Site where the Work will be installed shall be mutually agreed
upon by City and Artist.
(d) Artist, upon request of Contract Manager, shall provide information and/or attend meetings With
appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and
permitting.
(e) Prior to commencing work on the Preliminary Design, Artist shall meet with and seek input
from Project Stakeholders.
(f) Artist shall explore concepts for the Work within the implementation budget set forth in
Article 2.3.
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(g) Artist shall design a meaningful, impactful, integrated and unique artwork utilizing the
artist's carving technique in brick.
(h) Artist may also explore designing a meaningful, impactful, integrated and unique artwork
that utilizes the artist's carving technique to create forms that will be cast in ceramic
material aesthetically compatible with brick, and that conforms to the same dimensions
as brick for consideration.
(i) Artist's Preliminary Design shall include preliminary dimensions and massing of the Work,
scaled to size for the Site.
(j) Artist shall meet and coordinate with the City, City's Project Consultant and others, as
necessary, to explore the feasibility of integrating the Work into the Site in terms of structural
support, lighting, electricity, or other infrastructure needs to support the Work.
(k) Artist shall present the Preliminary Design to Project Stakeholders, the appropriate City staff,
and other City boards or commissions, as appropriate, for input and to the F`]VAC for review
and approval at dates and times mutually agreed upon.
(l) Artist shall make one trip to Fort Worth, Texas for meetings and presentations as indicated
above. Additional trips, if required per this Article, may be negotiated and agreed upon in
writing by City and Artist.
2.2. Citv Assistance.
Upon request by Artist, City shall promptly furnish all information and materials required by
Artist to the extent that such materials are available. City, upon request by Artist, shall also
provide correct scaled drawings of the Site, if available.
2.3. Preliminary Dedgn Deliverables
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(a) Within two months after the Effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this Article
2.3 to City for approval. Preliminary Design Deliverables shall consist of the following:
i. Three preliminary design illustrations showing the proposed Work from three vantage
points, including a plan view, which shall be at least 20" x 30"' and mounted on foam
core and/or in a high resolution digital format;
ii. A narrative description of the Artist's concept, proposed materials, fabrication, and
installation methods, timeline for completion and maintenance, and anticipated annual
maintenance requirements;
iii. Installation diagram, including approximate weight of the Work, proposed attachment
method(s) and, if applicable, location(s) for any electrical wiring and lighting fixtures;
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for
implementation of a final design of the Work in an amount not exceed FORTY
FOUR THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS f$44,500.00),
reflecting total costs and inclusive of artist's fees, travel, materials, labor, fabrication,
transportation, construction, insurance, installation, li ghting, and all associated costs
for the Work.
2.4. Preliminary Desiizn Review
(a) Upon completion of the Preliminary Design Deliverables, Artist shall meet with the
designated Project Stakeholders, City staff and other City boards or commissions, as
appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for
input.
(b) Artist shall present the Preliminary Design to the FWAC for approval at a regularly
scheduled FWAC meeting.
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(c) City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty
(30) business days of Artist's presentation to the FWAC.
(d) If City disapproves of the Preliminary Design, either in whole or in part, then City shall
inform Artist of each revision to be made to the Preliminary Design. City may require Artist
to make such revisions to the Preliminary Design as City deems necessary in its sole
discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations
of any governmental regulatory agency having jurisdiction over the Site for reasons of safety
and security.
(e) Artist shall have thirty (30) calendar days from the date City informed Artist of the
revision(s) to present the revised Preliminary Design in conformance with City's
requirements.
(f) If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design
resubmissions will be by mutual agreement of the Parties and subject to the procedures and
terms in this Article. If the Parties desire not to continue with the resubmission process, then
this Agreement will automatically terminate, with payment for work performed per the
payment schedule in Article 3 up through the date of termination. (See Article 4.4.d)
(g) Upon City approval of the Preliminary Design, any revisions made to a City-approved
Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any
City-approved revisions into the final design in conformance with City's requirements. Any
revisions shall become part of any final design deliverables if the Artist proceeds to the final
design phase. Artist shall provide the Preliminary Design presentation materials to the
Contract Manager to become part of the City of Fort Worth Public Art archive owned by
City. These documents, models, and/or drawings will be retained for archival and exhibition
purposes.
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(h) Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary
Design is accepted by City, negotiations for final design of the Worm shall commence, which
shall become part of the deliverable under any potential artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation
Total compensation to Artist under the Agreement shall be FIVE THOUSAND FIVE
HUNDRED DOLLARS AND NO CENTS ($5,500.00)-, which shall constitute full
compensation for any and all costs associated with the Agreement, including, but not limited to
all travel expenses, and services performed and materials furnished by Artist under this
Agreement. Artist and City may amend this Agreement to allow for additional payment if
additional services are required.
3.2. Payment Schedule
City agrees to pay Artist in the following installments set forth below, each installment to
represent full and final, non-refundable payment for all services and materials provided prior to
the due date thereof:
(a) ONE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($1,500.
upon execution of this Agreement.
(b) THREE THOUSAND DOLLARS AND NO CENTS $3,000.00) within thirty (30)
calendar days after Artist submits all of the Preliminary Design Deliverables required
under Article 2.3 of this Agreement and makes a presentation(s) of the Preliminary
Design to the FWAC.
(c) ONE THOUSAND DOLLARS AND NO CENTS L$IqOOO. within thirty (30)
calendar days after City's approval of the Preliminary Design.
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3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be
due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in
substantially the same form as that attached hereto as Exhibit "C," for use by Artist in the
fulfillment of this Agreement.
3.4. Artist's Expenses
Artist shall be responsible for the payments of all expenses incurred during the performance of
this Agreement, including, but not limited to, services, materials, mailing/shipping charges and
insurance on submissions to City, Cost of all travel, and costs for Artist's agents, consultants,
and/or employees necessary for the proper performance of the services required under this
Agreement.
ARTICLE 4
TERM AND TERMI]'�;,ATIo]N
4.1. Term
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant
to such provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. Gratuities
City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or
otherwise were offered or given by Artist or any agent or representative to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to
the awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
4.3. Termination for Cause
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms
of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material
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to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this
Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties
cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate
this Agreement upon the delivery of a written "Notice of Termination'' specifying the grounds for
termination. Termination of this Agreement under this provision shall not relieve the party in
default of any liability for damages resulting from a breach or a violation of the terms of this
Agreement.
4.4. Termination for Convenience
a. The services to be performed under this Agreement may be terminated by either party,
subject to written notice submitted thirty (30) calendar days before termination, specifying the
grounds for termination.
b. If termination is for the convenience of City, City shall pay Artist for services actually
rendered up to the effective date of termination, and Artist shall continue to provide the City with
services requested by City and in accordance with this Agreement up to the effective date of
termination. Upon payment in full of all monies due for services provided up to the effective
date of termination, City shall have the right, in its sole discretion, to possession and transfer of
all work product produced by Artist under this Agreement, including, but not limited to, finished
and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of
termination, provided that no right to fabricate or execute the work shall pass to City.
C. If termination is for the convenience of Artist, City shall have the right, in its sole
discretion, to pay Artist for services actually rendered up to the effective date of termination or
require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant
to this Agreement prior to the effective date of termination. If City chooses to pay Artist for
services actually rendered, then all work product produced by Artist under this Agreement,
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including, but not limited to, finished and unfinished drawings, sketches, photographs, models
and designs, up to the effective date of termination shall become property of City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City
shall pay Artist for work performed per the payment schedule in Article 3 up through the date of
termination. City shall have the right to possession and transfer of all work product produced by
Artist under this Agreement, including, but not limited to, finished and unfinished drawings,
sketches, photographs, models, and designs, up to the effective date of termination
4.5. Inca-pacity of Artist
a. In the event that either Donna Lynn Dobberfuhl or Ned Alvin Dobberfuhl become incapable,
legally or otherwise, of performing their duties and/or obligations under this Agreement, City may
choose to continue the terms of this Agreement with the capable party or terminate this Agreement. In
the event that both Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl become incapacitated during the
term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or
Artist's successors for all work and services performed prior to incapacity. All work product produced
by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models,
and designs, up to the effective date of termination shall become property of City.
b. Should Artist's Preliminary Design have been approved, in the event of termination under
this Article 4.5, City shall have the right to complete the work, if feasible. Due regard shall be
made for Artist,s intended results and proper credit and acknowledgement shall be given to
Artist. This provision shall survive the termination or expiration of this Agreement.
ARTICLE 5
DISPUTE RESOLUTION
If either Artist or City has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the Parties shall
first attempt to resolve these issues through this dispute resolution process. The disputing party
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shall notify the other party in writing as soon as practicable after discovering the claim, dispute,
or breach. The notice shall state the nature of the dispute and list the party's specific reasons for
such dispute. within ten (10) business days of receipt of the notice, both parties shall make a
good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise
out of or in connection with this Agreement.
If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of
receipt of the notice of the dispute, then the Parties may submit the matter to non-binding
mediation upon written consent of the authorized representatives of both parties in accordance
with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas
Government Code, then in effect. Request for mediation shall be in writing, and shall request
that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days
following the date of request, except upon Agreement of the Parties. In the event City and
Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed
mediator within thirty (30) calendar days following the date of the request for mediation, then all
the conditions precedent in this article shall be deemed to have occurred. The Parties shall share
the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under
this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be
enforceable as a settlement agreement in any court having jurisdiction. No provision of this
agreement shall waive any immunity or defense. No provision of this Agreement constitutes
consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall
have the right to exercise any and all remedies available under law regarding the dispute. (See
Article 4.3)
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ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artist or pursuant to the applicable termination provision of this
Agreement, the Preliminary Design, work, and all other work product under this Agreement
shall become the property of City, without restriction on future use, except as provided below.
Artist shall retain copyright and other intellectual property rights in and to the Preliminary
Design and/or Work. By execution of this Agreement, Artist grants to the City an exclusive,
perpetual, and irrevocable license to graphically depict or display the Preliminary Design and/or
Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic
depiction or display of the Preliminary Design and/or Work intended to promote or benefit City,
its public services or its public purposes, regardless of whether or not a fee is charged to the
public, or whether revenue is otherwise received by City, shall be deemed a non-commercial
purpose.
b. In view of the intention that the Preliminary Design and the Work be unique, Artist shall
not make any additional exact duplicate reproductions of the Preliminary Design or the Work,
nor shall Artist grant permission to others to do so except with the express written permission of
City. However, nothing herein shall prevent Artist from creating future artworks in Artist's
manner and style of artistic expression.
C. Artist reserves every right available under the Federal Copyright Act to control the
making and dissemination of copies or reproductions of the Preliminary Design and/or work,
except as those rights are limited by this Agreement. City may make and disseminate
photographs, drawings, and other two-dimensional reproductions of the Preliminary Design
and/or work and accompanying materials for any municipal purpose. All reproductions by the
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City shall contain a credit to the Artist and a copyright notice substantially in the followin g form:
"T date, Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Preliminary
Design and/or work for marketing and promotional purposes in connection with the Artist's
business;
e. City is not responsible for any third-party infringement of Artist's copyright and not
responsible for protecting the intellectual property rights of Artist
6.2 Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if
such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right
subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this
provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's
rights.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
(a) Preliminary Design and/or work shall be the original product of the Artist's sole creative
efforts.
(b) Preliminary Design and/or work is and will be unique and original, and does not infringe
upon any copyright or the rights of any person;
(c) Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Preliminary Design and/or work or any copyright related thereto that may affect or impair
the rights granted pursuant to this Agreement;
(d) Preliminary Design and/or work (or duplicate thereof) have not been accepted for sale
elsewhere;
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(e) Artist has the full power to enter into and perform this Agreement and to make a e the grant
of rights contained in this Agreement; and
All services performed hereunder shall be performed in accordance with all applicable
laws, regulations, ordinances, etc., and with all necessary care, skill and diligence.
ARTICLE S
ARTIST AS INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor, and not
as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the
exclusive right to control the details of the work performed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of his/her officers,
agents, employees, and subcontractors. Nothing herein shall be construed as creating a
partnership or joint venture between City and Artist, his/her officers, agents, employees and
subcontractors, and doctrine of respondent superior has no application as between City and
Artist.
ARTICLE 9
INDEW-41FICATION
9.1. General Indemnity
i. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN
EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS,
LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS,
LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED
TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS,
DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND
OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
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DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT
LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER
HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF
WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS,
ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S
SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE
OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE
EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT.
ii. Artist agrees to and shall release City from any and all liability for injury, death,
damage, or loss to persons or property sustained or caused by Artist in connection
with or incidental to performance under this Agreement.
iii. Artist shall require all of its subcontractors to include in their subcontracts a
release and indemnity in favor of City in substantially the same form as above.
9.2. Intellectual Property
Artist agrees to assume full responsibility for complying with all State and Federal
Copyright Laws and any other regulations, including, but not limited to, the assumption of any
and all responsibilities for paying royalties that are due for the use of other third party
copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise,
regarding payment or collection of any such fees or financial obligations. City specifically does
not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist
without the appropriate licenses or permission being secured by Artist in advance. IT IS
FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND
HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
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DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION
INCLUDING, BUT NOT LIMITER To, ATTORNEY'S FEES, TO WHICH THEY MAY
BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS
BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER
LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no
obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of Artist.
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or
expiration of this Agreement.
ARTICLE to
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race, creed, color,
national origin, sex, age, religion, disability, marital status, citizenship status, sexual
orientation or any other prohibited criteria in any employment decisions relating to this
Agreement, and Artist represents and warrants that to the extent required by applicable
laws, it is an equal opportunity employer and shall comply with all applicable laws and
regulations in any employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated, or suspended in whole or in
part, and Artist may be debarred from further agreements with City.
ARTICLE 11
MISCELLANEOUS
11.1. _Compliance
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Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations
applicable to the performance of Artist's services under this Agreement.
11.2. Entire A eement
This writing embodies the entire agreement and understanding between the Parties hereto, and
there are no other agreements and understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby.
11.3. Amendments
No alteration, change, modification, or amendment of the tenns of this Agreement shall be valid
or effective unless made in writing and signed by both parties hereto and approved by appropriate
action of City.
11.4. Waiver
No waiver of performance by either party shall be construed as or operate as a waiver of any
subsequent default of any terms, covenants, and conditions of this Agreement. The payment or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
11.5. Governing Law and venue
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of
this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or
the United States District Court for the Northcrn District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
11.6. Successors and_Assi ns
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written
consent of the other party, and any attempted assignment, sublease, or transfer of all or any parr
hereof without such prior written consent shall be void. This Agreement shall be binding upon
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for PolytechnicMesleyan Urban Village 18 of 30
and shall inure to the benefit of City and Artist and their respective successors and permitted
assigns.
11.7. No Third-Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and
any lawful successor or assign, and are not intended to create any rights, contractual, or
otherwise, to any other person or entity.
11.8 Severabilit
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired.
11.9. Force Maeure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of
any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement
weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national
disasters; riots; material or labor restrictions; transportation problems; or any other circumstances
which are reasonably beyond the control of the party obligated or pen-pitted under the terms of
this Agreement to do or perfonn the same, regardless of whether any such circumstance is similar
to any of those enumerated or not, the party so obligated or permitted shall be excused from
doing or performing the same during such period of delay, so that the time period applicable to
such design or construction requirement shall be extended for a period of time equal to the period
such party was delayed.
11.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and
revised this Agreement and that the normal rule of construction to the effect that any ambiguities
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban pillage 19 of 30
are to be resolved against the drafting party must not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
11.11. Fiscal Funding Out
If, for any reason, at any time during any term of this Agreement, the Fort Worth Cit y Council
fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of(i) thirty (30) days following
delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for
Which funding has been appropriated by the Fort Worth City Council for the purposes set forth in
this Agreement.
11.12. Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
l 1.l 3 Right to Audit
Artist agrees that City will have the right to audit the financial and business records of Artist that
relate to the Work (collectively "Records") at any time during the Term of this Agreement and
for three (3) years thereafter in order to determine compliance With this Agreement. Throughout
the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records
available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the
City acceptable to both parties following reasonable advance notice by the City and shall
otherwise cooperate fully with the City during any audit. Notwithstanding anything to the
contrary herein, this Article shall survive expiration or earlier termination of this Agreement.
11.14 Certified MWBE
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 20 of 30
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business
Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose
� Y
certification is accepted by the City under the City's Business Diversity Fnterprise Ordinance.
11.15 Survival Provision
The provisions contained in Articles 6 (ownership and Intellectual Property Rights),p Y g ), 7
(warranties of Title and Copyright), 8 (Artist as an Independent Contractor), and 9
(Indemnification) shall survive the termination or expiration of this Agreement.
11.1 6 Public Information Act
Artist understands and acknowledges that City is a public entity under the laves of the State of
Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the
Texas Government Code. Artist shall clearly indicate to City what information it deems
proprietary. If City is required to disclose any documents that may reveal any of Artist'
Proprietary Information to third parties under the Texas Government Code, or by any other legal
process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Artist
prior to disclosure of such documents, and give Artist the opportunity to submit reasons for
objections to disclosure. City agrees to restrict access to Artist' information to those persons
within its organization who have a need to know for purposes of management of this Agreement.
City agrees to inform its employees of the obligations under this paragraph and to enforce rules
and procedures that will prevent any unauthorized disclosure or transfer of information. City will
use its best efforts to secure and protect Artist' information in the same manner and to the same
degree it protects its own proprietary information; however, City does not guarantee that any
information deemed proprietary by Artist will be protected from public disclosure if release is
required by law. The foregoing obligation regarding confidentiality shall remain in effect for a
period of three (3)years after the expiration of this Agreement.
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 21 of 30
11.17 Counterparts and Electronic Signatures
This Agreement may be executed in several counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument. A signature
received via facsimile or electronically via email shall be as legally binding for all purposes as an
original signature.
11.18. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given upon
the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager's office
City of Fort Worth
1 000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
1 000 Threckmorton Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President of Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
2. ARTIST Donna Lynn Dobberfuhl
dlbla Sculptural Designs
1514 Broadway
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dfbfa Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 22 of 30
San Antonio, TX 78215
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Amin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 23 of 30
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective
as of the Effective Date.
CITY OF FORT WORTH ARTIST
by.
Fernando Costa Donna Lynn Dobberfuhl
Assistant City Manager dlbla Sculptural Designs
Ned Alvin Dobberfuhl
dlbla Sculptural Designs
APPROVED AS TO FORM
AND LEGALITY:
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Tyler F al l ach
Assis nt City Attorney
ATTESTED BY. 000000000
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City Secreta � J 4
Contract Authorization: No M&C Required
OFFICIAL RECORD
CITY SECRETARY
FT WORTHy TX
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for PolytechniclWesleyan Urban Village 24 of 30
IN WITNESS BEREO , the Parties hereto have executed this A.g'reement to be effective
as of the Effective pate.
CITY of FORT WORTIi ARTIST
b r
Fernando Costa :U0 A I�obbe
Assistant City Manager dlbl a Sculptural Des s
ct Y
Ned Alvin D obb erfuli-]
dlbla Sculptural Designs
APPROVED AS TO FORM
AND LEGALITY:
Tyler F. Wallach
Assistant City Attorney
ATTESTED BY:
Mary f. Kayser
City Secretary
Contract Authorization.:No McC Required
r
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alin Dobberfuhl
d/hla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnicmesleyan Urban Village 24 of 30 •
Exhibit A
Site
Scope of East Rosedale Street Improvements Showing Urban Village/Sustainable Development Grant Area,
the 2700-3200 blocks of East Rosedale
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Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin aobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 25 of 30
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Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for PolytechniclWesleyan Urban Village 26 of 30
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Exhibit B
Implementation Budget
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this fbrr�arO attach a sighed receipt or estimate complete Wth per unit
costs(no kMP mss)for a#Own designated.with an ast sk(t).Cost increases must
also have a mitten mate attar.
ARTISTIS FEE(20%)
TRAVEL
i For artists who give more than 50 miles from Fort`North)
Air-'are
Car Rental
--'°er Diem Exrnenses at per cay
Mileage at per rn:le
INSURANCE
A ItC,`l-iired Venicle�abil r�y
General i-iabilit fo pArtist,,
Lu�.ca Itl acto-s
Worker s forncn :'ErtipIoyer s L abil:Y
Wither. as apnI cable
ADMINISTRATIVE EXPENSES
P hone.Fa,,r:
D eli'verf;Shippir^g(for corresc)onAc-nce samples.models,dra.V ngs etc)
Re,rograp,hic Se7vice
Supplies
PROFESSIONAL CONSULTANT FEES
(if app icahle.drawing mus.he signed,aiid sealed hry a c-PrOessiona'registereld to practice
in the State of Texas
AV%,,itect*
C-truCtu ZA Engi^Per*
E=ectrical Engineer'
or�serva.or*
Fhott-�grapher,."ar dccuriertatian of completed*work;"
Other'
MATERIALS
i Flease at*.ach a complete lis*of neater a s I:eniize all antic=pated aspec".s and
com Done nts,nith per ur.it Lost estln`ates i
Materals,Total
FABRICATION COSTS
r include and itemize a l porticn:s of and v,,ork.to I?e comole--ed b!,
art ist.:
Artist's Lal)or f ^curs at
,_per ry g�aUr Tot,
SuIxon:�acted La!5orw Total)
Facitity'Eguipmen:Rental(Lrsed excluskely for this project)related t,-i faxicat!cr`
SITE PREPARATION
Do no:i^cIude costs cove red I)y City of Fort North C ot't`ers',
Tes:Dn11ing"
Removal
Lancsca of n -_rn gatron f
E`e+ctrical Modifications`
'a*er''A,o*,,Mec.hanica,Devi ces
Other'
114 11
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dihla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 28 of 30
TRANSPORTATION
Materals to FabricaWr,Site'
Fr�?shec '�'o Installati Site'
Otherlk
BASE;I OUNTING
Base
Mount ng Devices and 0imoonBents
Foundation!Pocting
Other
INSTALLATION COSTS
(hosts m s�+t}incl de aku�ance fog a`te-1 hOLIMS nsrtalla.ion,if applica ble Please attach a
�.G,niz)leie 3ist of equipmen-afid 1"d`�I�t1�l eStifllateS'N"It'ails forr i e
`'°b contracted Labor3
S calfoldi ng*
EOu°paient Renta�relaxed to i-staFation'
off-du` Police'Sec.�rityl"
Traffic Barriers'
S:erage Fadi"y Ren-all
'�itrj z�ler�rl is
Display Devices
7 re orcof i ng'A
Site Restc ration'
Other*
LIGHTING
Designers'
ALI yes*
Bal:)S*
Site-reoaratlon'
ns,al latlo n,
GRAND TOTAL
Please nuke any necessary notes Isere:
Prepared Eby:
Date:
,,''R,i°'i a eteJ1 May 201 3�
Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alvin Dobberfuhl
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 29 of 30
Exhibit C
Sales Tax Exemption
I i kllllr Iw1 C%X11lP11011 I I I I 1 1;t%7�,IV,III J ICS:#nd LSC IU",%'N fi r rII V pl1.11ha-,C of r K l<'1IV11•I L's C it"d
f � t fjt��tr1 Vt 11,C MS I r tr.1.11 ars,ja d I I LI VI or,111'Vt HLC: I Bic
thih `;r1rl ��rr 14-[lie
i:la t'.t� rt1l1Q()r!pati ".itlun CITY OF FORT WO T IL TEXAS
TEXAS'SAI-ES AND USET-AX PERMIT NUMBER -"4:5-6000528--6
' �j fc-,r J--'[liEC.j 1jj 1�.-ri.j :ttjj� f�4•o.ory p u,-h-'L L :
I undcrstind thor 1 t+ill )t:liihtr i't)r MiTlcrt 01 tax. mly hUC1411,L"1hit.t'}r t011i3re to
fit'�$.l t:t t►;-i,�#�It±l1 1► ': 4t�;[t'. ;V'•,aTjd stir lrr+`n,opi,I i o.n�r-,tj'v,I I Jr,010rtt��S3IC�al11Lt 1.1'4 c;'[;��.� 1;14 5 MMd
v,omptr.vlleT rules re :# f n •tJri pr ptumhascs t.la:Jov °C,t 41 l r!rlerr 1 1w f I tl�ti r-]A,� IR
t�)I i 1 td.v.aabIc rtenv%Pur,,�hascii k-r 11)e t'Jii 1i1.#zket rental val tic f'�It tllk,rV0,1 d of ilme u,"L%i
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C koi-.v,,cif�!�h c i t m e of the P1.1'CI wl.11�N�jsC(l In a zlt,anner oiIit�t tItx fh jii exrwnscd ir)thI i it:t':ar
XndI UI1t111 lo:i�11lfk 1V1ion.m,a be fiacd Up to$5(A %"1 r.`fl'Cjj�'t4.
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Street Addreh; IM10 THROCKMORTON STREFT
Zip Ciotic- FORT NVORTI1.TEXAS 7b11)2
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Agreement between the City of Fort Worth and Donna Lynn Dobberfuhl and Ned Alin Dobberfuhi
dlbla Sculptural Designs for Preliminary Design of Public Artwork for Polytechnic/Wesleyan Urban Village 30 of 30