HomeMy WebLinkAboutContract 56435 G1TY SECRETARY _
rONTMCTNa A35
' R7 021" AGREEMENT BETWEEN THE CITY OF FORT WORTH
YS RT DR. AND VIRGINIA FLECK FOR FINAL DESIGN AND
COMMISSION OF PUBLIC ART FOR ROSEMONT PARK
This Agreement is entered into this 28thday of September , 2021, 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 Virginia Fleck, an individual, located at 1900 Larchmont Drive,
Austin, Texas, 78704. 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 Public Art proj ect 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 artists 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, City has completed street improvements at the intersection of W. Seminary Drive and 61"
Avenue, located at the southeastern corner of Rosemont Park(Council District 9);
WHEREAS, this Project was included in the Public Art Plan for the 2008 Bond Program, adopted
October 26,2010 (M&C G-17094), and the project was included in the Fort Worth Public Art Fiscal Year 2021
Annual Work Plan adopted by City Council on September 22, 2020 as M&C 20-0678;
WHEREAS, on December 19,2019,the City entered into a contract with Artist to develop a Preliminary
Design for the Site(Fort Worth City Secretary Contract No. 53297);
WHEREAS, on July 19,2021,the Fort Worth Art Commission("FWAC")approved the Artist's
Preliminary Design, and recommended that the Artist develop a Final Design based upon the Preliminary Design
for public artwork to be incorporated into the Site;
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be
designed,fabricated, delivered, and installed 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:
1.1. Agreement—Means and includes this Agreement between the City and Artist for Final Design
and Commission of public artwork for the Site.
1.2. Artist—Means and includes Virginia Fleck.
OFFICIAL RECORD
CITY SECRETARY
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park FT. WORT"r3Tx
1.3. Artwork Design —Means and includes both the Preliminary Design and Final Design of the
Work,which are defined in 1.3.a. and 1.3.b.below.
1.3.a. Preliminary Design—Means all preliminary drawings,sketches,prototypes,maquettes,models,
narrative descriptions, budget estimates, and the like that were created by Artist in connection
with Fort Worth City Secretary Contract No. 53297, depictions of which are attached hereto as
"Exhibit A"and incorporated herein for all purposes.
1.3.b. Final Design—Means the Artist's final proposed design and exact location of the Work for the
Site, which is based upon the approved Preliminary Design and includes, but is not limited to,
all final structural engineering drawings, sketches, prototypes, maquettes, models, and the like
that may be created by Artist in connection with this Agreement, or the like that are related,
directly or indirectly, to the Work and shall include Artist's specifications for fabrication and
installation of the Work.
1.4. City—Means and includes the City of Fort Worth,Texas.
1.5. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc., and/or its officers, directors, or employees.
1.6. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement.
1.7. Execution Phase—Means and includes fabrication, delivery, and installation of the Work.
1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for
fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this
Agreement.
1.9. Final Design Deliverables — Means and includes those items set forth in Article 3.1 of this
Agreement that are required for City's review and approval.
1.10. Parties—Means and includes City and Artist.
1.11. 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.
1.12. Project Core Team — Means and includes the group of community members, generally 5-7
people invited by the City Council Member to provide input on the project for its duration, in accordance with
the Fort Worth Public Art Master Plan Update, page 23.
1.13. Site—Means the Rosemont Park grounds, specifically the southeast corner of the park near the
intersection of 6`h Avenue and West Seminary Drive, attached hereto as"Exhibit B."
1.14. Project Stakeholders — Means and includes the appropriate City Council Member(s), the
Project Core Team, and the FWAC's appointed representative,and others as may be appropriate.
1.15. Schedule - Means and includes a written plan of procedure for completion of fabrication,
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delivery,and installation of the Work, including,but not limited to,the submission of progress reports.
1.16. 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 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that on July 19, 2021, the FWAC voted unanimously to approve the Artist's
Preliminary Design,and that the Artist be retained to develop a Final Design for public artwork to be incorporated
into the Site, and, upon City approval, fabricate, deliver, and install the Work at the Site, and is the basis for
executing this Agreement with Artist.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies,materials,and equipment as necessary for
developing the Final Design of the Work and for providing the Final Design Deliverables. Services
shall be performed in a professional manner and in strict compliance with all terms 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 the Project Core Team and approval by City as set forth in
this Agreement.
c. Artist shall visit the Site prior to completing Final Design.
d. Artist shall meet with the Project Core Team and other Project Stakeholders at a mutually agreed
upon date and time prior to completing Final Design.
e. Artist shall attend meetings with appropriate City staff for purposes of risk assessment, safety
review, siting of the Work,and permitting as necessary.
f. Upon selection of a location for the Work at the Site and upon completion of engineering, Artist
shall present the Final Design to the FWAC for joint review with the Project Core Team,the City's
Park&Recreation Department and other stakeholders.
g. Upon Approval of Final Design,Artist shall fabricate,deliver, and install the Work at a date and time
mutually agreed upon by Artist and City.
h. Upon completion of Project,Artist shall participate in an artwork dedication and one public education
event in Fort Worth at a mutually agreed upon date and time.
i. Artist shall make up to three (3) trips to Fort Worth, Texas as indicated above. Additional trips, if
required per this Article,may be negotiated and agreed upon in writing by City and Artist.
j. For the duration of this Agreement, any publicity related to the Work at any stage under this
Agreement shall be coordinated through the Contract Manager. Artist should get the Contract
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Manager's consent in writing prior to engaging in publicity for the Work.
k. In order to maintain the integrity of the City of Fort Worth's public art process,for the duration of the
Agreement, if Artist intends to seek his/her own publicity for the Work, including publication of the
artwork design on Artist's website or social media, such efforts will occur after Preliminary Design
has been approved by the FWAC. Any potential publicity being sought for the Work, including
press/media release(s),must be approved, in advance, by Contract Manager, and shall credit the City
of Fort Worth substantially in the following form, "an original artwork commissioned by and in the
public art collection of the City of Fort Worth, Texas." A-social media plan must be approved, in
advance,by Contract Manager, and shall include the hashtag#fwpublicart.
2.3. City 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.
ARTICLE 3
FINAL DESIGN AND EXECUTION OF THE WORK
3_1.. Final Design Deliverables.
a. Within three (3) months after the execution of this Agreement, Artist shall provide services and all
supplies,materials,and equipment necessary to provide certain deliverables,as set forth in this Article 3.1
to City for approval.Final Design Deliverables for the Work shall consist of the following:
(1) Detailed,design illustrations of the Work for the Site,in a high-resolution digital format,such as
JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one
illustration showing the Work's size and placement in relation to the Site.
(2) An artist statement,which may include but is not limited to the following topics:the overall
philosophical approach of the work,how the artwork relates to or engages viewers in the
community,what influenced the Artwork Design,how techniques or materials relate to the content
of the work, and how the work relates to the Artist's studio practice.
(3) A final written narrative of the Work,describing the following: (1)the Final Design concept and
timeline for completion; (2)proposed materials,fabrication, and installation methods for all
elements of the Work,including information regarding Artist's subcontractor(s),if any,for the
Work;(3)maintenance requirements for all elements of the Work as dictated by Artist, along with
cost estimates for annual maintenance;
(4) A detailed budget, on the budget form attached hereto as"Exhibit C,"for implementation of the
Work in an amount not to exceed$134,521.00,,reflecting total costs and inclusive of a remaining
Artist's fee of$6,339.00, a contingency of$15,554.00, and any travel, materials, labor,fabrication,
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transportation, construction, insurance, installation,and all associated costs for the Work under this
Agreement.
(5) Comprehensive working drawings, detailing the means of installing all elements of the Work on the
Site,together with other such graphic material to permit City to carry out structural design review.
Professional Liability Insurance is required in all circumstances for on-site artwork requiring
engineering and/or architectural services. City will conduct a review of structural design and other
related graphic material prior to installation of the Work. Upon City's request, drawings must be
signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist
will provide the Contract Manager a certificate of insurance for each licensed professional and
provide City with a thirty(30)calendar day notice of cancellation of any policy required hereunder.
3.2. Final Design Review.
a. Upon completion and submission of the Final Design Deliverables and acceptance by Contract Manager,
Artist shall present the Final Design to the FWAC for joint review with the Project Core Team and other
Project Stakeholders for approval at a regularly scheduled FWAC meeting. The Final Design shall
subsequently be shared with City boards or commissions, as appropriate.
b. City shall notify Artist of its approval, or disapproval, of the Final Design, either in whole or in part,
within thirty(30)business days of Artist's presentation to the FWAC.
C. If City disapproves of the Final Design,either in whole or in part,then City shall inform Artist in writing
of each revision to be made to the Final Design. City may require Artist to make such revisions to the Final
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.
d. Artist shall have thirty(30)calendar days from the date City informed Artist of the revision(s)to present
the revised Final Design in conformance with City's requirements.
e. If City disapproves of the resubmitted Final Design, any further Final 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 11.4.d.)
f. Upon City's approval of the Final Design, any revisions made to a City-approved Final Design shall
become part of the Final Design. Artist shall incorporate any City-approved revisions into the Final
Design in conformance with City's requirements.
g. If Artist's Final Design is approved by City, then Artist's Final Design shall be incorporated into this
Agreement as an addendum and shall become the basis for proceeding to the Execution Phase of this
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Agreement.
h. Upon City's approval of the Final Design,Artist shall provide the Final 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.Artist's Final
Design and all other work product under this Agreement shall become the property of City, without
restriction on future use(see Article 7).
3.3. Execution of the Work.
a. If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Phase of this
Project,then Artist shall furnish to the Contract Manager a written Schedule within two (2)weeks after
such authorization by the City. After written approval of the Schedule by City, Artist shall fabricate,
deliver,and install the Work in accordance with such Schedule. Schedule changes may be accomplished
by written agreement between Artist and City.
b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its
fabrication and/or request visual documentation of the fabrication. Artist shall,upon written request by
the City and/or Contract Manager,provide a written progress report detailing the progress made toward
completion of the Work and the remainder of work to be done to complete the Work.Artist shall comply
with any request made by the City and/or Contract Manager pursuant to this Article 3.3 within thirty
(30)calendar days after receipt of the written request.
C. Artist shall complete the fabrication of the Work in accordance with the City-approved Final Design.
Artist shall present to the Contract Manager, in writing,for further review and approval, any changes in
the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion,
shall determine whether the changes are significant and whether the changes conform to the City-
approved Final Design. If the Contract Manager, in its sole discretion, determines that the changes are
significant and do not conform with the City-approved Final Design,then the Contract Manager shall,
in light of the Final Design, determine whether a significant change requires City approval. If the
Contract Manager determines that the significant change(s) requires City approval, then the change(s)
may be presented to the FWAC for review and approval at a regularly scheduled meeting. If any disputes
arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute
resolution process set forth in Article 12 of this Agreement.
3.4. Delivery and Installation.
a. Labor associated with preparing the Site to receive the Work including footings for the Work shall be
performed by Artist or her subcontractors and shall be done in accordance with the specifications jointly
agreed to by Artist and the City.
b. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is
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completed and ready for delivery and installation at the Site.
C. Artist is responsible for installing all elements of the Work.Artist shall coordinate the installation of the
Work with City and Contract Manager to ensure proper installation with the Schedule. Delivery and
installation activities may not commence until written permission is delivered to Artist by the City.
d. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the
Work, including,but not limited to, footing,equipment rentals,transportation,and labor.
e. Artist is responsible for obtaining and paying for all necessary permits through a City-approved
contractor as necessary.
f. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary
precautions to protect and preserve the integrity and finish of the Site while delivering and installing the
Work. If City determines, in its sole discretion,that Artist or Artist's subcontractors have damaged the
Site, then City shall inform Artist, in writing, of the damage within fourteen (14) calendar days after
installation. Artist,at its own expense,shall have thirty(30)calendar days from receipt of City's written
notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to
the satisfaction of City within thirty(30)calendar days after receipt of the notice,or within the deadline
otherwise agreed to by the parties,then City shall have the right to deduct the cost of repairs from any
remaining payment due to Artist under this Agreement, which shall be in addition to any and all other
rights and remedies available to City at law or in equity.
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g. Upon City's request,prior to installation of the Work,Artist shall consult with a qualified art conservator
and provide to the Contract Manager written instructions for appropriate maintenance and preservation
of the Work on the form attached hereto as "Exhibit D."The appropriate maintenance and preservation
instructions shall not be substantially different from the maintenance and preservation anticipated and
conveyed to City for the Work in the Final Design phase for the Work.
3.5. Post-installation.
a. Within thirty(30)calendar days after the installation of the Work,Artist shall furnish Contract Manager
with a set of at least ten(10) high-resolution digital images (.tiff format) and ten (10) low- resolution
digital images (.jpeg format) showing the Work from multiple vantage points as selected by Contract
Manager,to document the Work after the Work is installed.
b. Artist shall make his/her best efforts to be available at such time or times as may be agreed between City
and Artist to attend any dedication or presentation ceremonies relating to the transfer of the Work to
City. City shall use its best efforts to arrange for publicity for the completed Work in such art
publications and otherwise as may be determined between City and Artist as soon as practicable
following installation.
C. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work, such
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efforts and/or press releases must be approved, in advance, by City.
3_6. Final Acceptance.
a. Artist shall notify City and Contract Manager,in writing,when all services for fabrication,delivery,and
installation of the Work have been completed in accordance with the terms of this Agreement. Included
in such notice from Artist shall be an affidavit, attached hereto as `Exhibit E," certifying that all bills
relating to services or supplies used in the performance of this Agreement have been paid.
b. City shall notify Artist,in writing, of its Final Acceptance of the Work.
C. Final Acceptance shall be effective as of the earlier to occur of(1)the date of City's notification of Final
Acceptance; or (2) the thirty-fifth (35"') calendar day after Artist has sent the written notice to City
required under this Article 3.6 unless City,upon receipt of such notice and prior to the expiration of the
thirty-five(35) calendar day period, gives Artist written notice specifying and describing anything that
has not been completed pursuant to this Agreement.
3.7. Risk of Loss.
The risk of loss or damage to the Work shall be borne by Artist prior to completed artwork installation, and
Artist shall take such measures as are necessary to protect the Work from loss or damage until this time,
including,but not limited to,the purchase of property loss insurance, except that the risk of loss or damage
shall be borne by City prior to completed artwork installation during such periods of time as the partially or
wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of moving,
storing,or performing any other ancillary services to the Work.
ARTICLE 4
COMPENSATION AND PAYMENT SCHEDULE
4_1. Compensation.
Total compensation to Artist under the Agreement shall be in the amount of ONE HUNDRED FORTY-SEVEN
THOUSAD FOUR HUNDRED EIGHTEEN DOLLARS AND NO CENTS ($147,418.00),which shall
constitute full compensation for any and all costs associated with this Agreement, including,but not limited to,
engineering and consulting fees,a remaining Artist's fee of$13,736.00, insurance, all travel expenses, services
performed, and materials furnished by Artist under this Agreement, and a contingency of$15,554.00. Artist and
City may amend this Agreement to allow for additional payment if additional services are required.
4.2. 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. TWO THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($2,500.00) upon execution
of this Agreement.
b. THREE THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($3,500.00) within thirty
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(30)days after Artist submits the Final Design Deliverables,as required in Article 3.1. of this Agreement
and makes a presentation of the Final Design to the FWAC and Project Core Team.
C. TWENTY-SIX THOUSAND,THREE HUNDRED NINTY-SEVEN DOLLARS AND NO CENTS
($26,397.00)within thirty(30)days after Final Design is approved by the FWAC.
d. TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00) upon the Contract Manager's
verification that the steel has been purchased.
e. THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) upon the Contract Manager's
verification that fabrication of the Work is 50%complete.
f. TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00) upon the Contract Manager's
verification that the Work is complete and ready to install.
g. FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) upon the Contract Manager's
verification that installation of the Work is complete.
h. EIGHT THOUSAND, NINE HUNDRED SIXTY-SEVEN DOLLARS AND NO CENTS
($8,967.00) within thirty-five (35) calendar days after Final Acceptance and receipt by City of such
documentation it may require concerning payment of supplies and services rendered to Artist.
i. City may pay Artist contingency funds in an amount up to FIFTEEN THOUSAND,FIVE HUNDRED
FIFTY-FOUR DOLLARS AND NO CENTS($15,554.00)for costs associated with the Work that are
incurred by the Artist due to unforeseen changes in fabrication or installation costs. These contingency
funds will include an artist fee of fifteen percent(15%)of the total amount of contingency funds applied
for by Artist. Such payment will be made upon (i)receipt of supporting documentation by the Contract
Manager from the Artist and(ii) approval by the Contract Manager of the additional costs.
j. City will provide an allowance of up to FOUR THOUSAND DOLLARS AND NO CENTS
($4,000.00)for engineering and consulting. Such payment shall be made upon receipt of an invoice from
Artist with the original invoice(a retainer fee of up to 50%is allowed)for such services attached.
k. City will provide a travel allowance of$500.00 per roundtrip to Fort Worth, Texas, for a total amount
up to ONE THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($1,500.00) for travel
costs for up to three trips, should the artist be approved by Project Manager to participate in-person
during design, installation and dedication. This stipend is provided in accordance with GSA Per Diem
Guidelines and shall cover all travel expenses.
4_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 F"for use by Artist in the fulfillment of this Agreement.
4_4. Artist's Expenses.
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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 on submissions to City and/or
Contract Manager, insurance, 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,and any contingencies.
ARTICLE 5
WARRANTIES
5_1. Warranties of Title and Copyright.
a. Artist represents and warrants that:
(1) the Artwork Design and/or Work shall be the original product of Artist's sole creative efforts;
(2) the Artwork Design and/or Work is and will be unique and original and does not infringe upon
any copyright or the rights of any person;
(3) Artist has not sold, assigned,transferred, licensed,granted, encumbered or utilized the Artwork
Design and/or Work or any element thereof or any copyright related thereto that may affect or
impair the rights granted pursuant to this Agreement;
(4) the Artwork Design and/or Work(or duplicate thereof)has not been accepted for sale elsewhere;
(5) the Artwork Design and/or Work is free and clear of any liens from any source whatsoever;
(6) Artist has the full legal power and authority to enter into and perform this Agreement and to
make the grant of rights contained in this Agreement, including, but not limited to, all rights
pertaining to copyright,contained in this Agreement;and
(7) all services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessary care, skill and diligence.
5.2. Warranties of Quality and Condition.
a. Artist represents and warrants that all work will be performed in accordance with professional
"workmanlike"standards and free from defective or inferior materials and workmanship(including any
defects consisting of"inherent vice,"or qualities that cause or accelerate deterioration of the Work) for
one(1)year after the date of Final Acceptance.
b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful
to public health and safety.
C. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is curable by Artist,City shall give written notice to Artist of such breach with reasonable
promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with
professional conservation standards (in accordance with the American Institute of Conservation(AIC)
Code of Ethics and Guidelines for Practice)and/or construction standards, including,but not limited to,
any standards set forth by City,within thirty (30)calendar days after receipt of the written notice, at no
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expense to City.
d. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is not curable by Artist,Artist is responsible for reimbursing City for damages,expenses,
and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach
in the proposal and City accepted that it may occur,it shall not be deemed a breach for purposes of this
Article 5.2.
e. If, after one (1) year from Final Acceptance, City observes any breach of warranty described in this
Section 5.2 that is curable by Artist,City shall give written notice to Artist to make or supervise repairs
or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within
thirty(30)calendar days after receipt of the notice as to whether Artist will make or supervise the repairs
or restorations. Should Artist fail to respond within the thirty(30)calendar day deadline or be unwilling
to accept reasonable compensation under the industry standard,City may seek the services of a qualified
restorative conservator and maintenance expert.
f. Acceptable Standard of Display.Artist represents and warrants that:
(1) General routine cleaning and repair of the Work and any associated working parts and/or
equipment will maintain the Work within an acceptable standard of public display.
(2) Foreseeable exposure to the elements and general wear and tear will cause the Work to
experience only minor repairable damages and will not cause the Work to fall below an
acceptable standard of public display.
(3) With general routine cleaning and repair, and within the context of reasonably foreseeable
exposure to the elements and general wear and tear, the Work will not experience irreparable
conditions that do not fall within an acceptable standard of public display, including, but not
limited to,mold,rust,fracturing,staining,chipping,tearing, abrading, and/or peeling.
(4) Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty,Artist shall provide copies of such warranties to City.
g. The foregoing warranties are conditional and shall be voided by the failure of City to maintain the Work
in accordance with Artist's specifications and the applicable conservation standards. If City fails to
maintain the Work in good condition,Artist, in addition to other rights or remedies Artist may have in
equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits
be removed from the Work and reproductions thereof until the Work's condition is satisfactorily
repaired.
ARTICLE 6
INSURANCE,INDEMNITY,AND RELEASE
6_1. General.
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Artist shall carry insurance as set out in"Exhibit G,"which is attached hereto and incorporated herein for all
purposes.Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the
Work on City property. However, if any part of the fabrication process will be conducted on City property,then
Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work.
Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work.
Except as provided in Section 3.7 hereof,the risk of damage to or loss of the Work shall,during fabrication and
installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall
no longer be the responsibility of Artist upon installation of the Work.
6.2. Performance Bonds.
Artist shall not be required by City to post any performance bonds or similar undertakings.
6.3. General Indemnity.
a. 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 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 THE ACTS, ERRORS, OR OMISSIONS OF ARTIST AND/OR
ARTIST'S SUBARTISTS, CONTRACTORS AND SUBCONTRACTORS AND THEIR
RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS,
AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE,
ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT.
b. 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.
C. 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.
6.4. Intellectual Property.
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 12 of 34
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,DAMAGES,ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED 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.
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1. Title.
Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are
components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment for
the Work or pursuant to the applicable termination provision of this Agreement. These documents,models and/or
drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other
work products under this Agreement shall become the property of City,without restriction on future use, except
as provided below.
7.2. Copyright Ownership_
Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the
Work for the duration of the copyright.
7_3. Reproduction Rights.
a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any
additional exact duplicate reproductions of the Artwork 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.
b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and
irrevocable license to graphically depict or publicly display the Artwork Design and Work for any non-
commercial purpose whatsoever.For purposes of this limitation,any graphic depiction or display of the
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 13 of 34
Artwork Design and/or the 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. Notwithstanding the above limitation,
Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute,
unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy,
remove,move,replace,operate,maintain,transport,sell or transfer, in whole or in part,the Work when
City deems it necessary within its discretion, in order to otherwise exercise City's powers and
responsibility in regard to public works and improvements,in furtherance of City's operations or for any
other reason.
C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the
following form: "0 date,Artist's name."
d. Unless notified otherwise by City in writing,Artist shall use Artist's best efforts in any public showing or
resume use of reproductions to give acknowledgment to City in substantially the following form: "an
original artwork commissioned by and in the public art collection of the City of Fort Worth,Texas."
e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a
copyright in the Work in Artist's name.
f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
ARTICLE 8
ARTIST'S RIGHTS
8.1. Identification.
The Contract Manager shall include credit to Artist on the Fort Worth Public Art website
(www.fwpublicart.org)and facilitate the design,purchase,and installation of a permanent plaque at the Site.
8.2. Maintenance.
City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City
shall reasonably assure that the Work is properly maintained and protected,taking into account the maintenance
instructions provided by Artist in accordance with Article 3.4 and"Exhibit D."
8_3. Repairs and Restoration.
a. City shall have the right to determine when and if repairs and restorations to the Work will be made.
b. All repairs and restorations shall be made in accordance with recognized conservation standards (in
accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for
Practice) and/or construction standards, including, but not limited to, any standards set forth by City.
C. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent
risks to the public, such repairs shall be undertaken or arranged by City as appropriate and such repairs
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 14 of 34
shall not be deemed to constitute artistic alteration.
8.4. Alteration of the Work or of the Site.
a. City agrees that it will not willfully destroy, damage, or modify the Work,except as provided
in Article 8.4(b)and 8.4(c)below.
b. In the event that the City determines the Site will be altered, sold, or no longer used by City and the
Work is integrated into a building, structure or realty, City shall have the right to remove the Work by
any means, including destruction. City may give Artist written notice of its intent to take such action
under this Article 8.4.
C. In the event that the City determines the Site will be altered, sold, or no longer used by City and the
Work is freestanding, or incorporated into a building, structure or realty such that it may be removed
without damaging or destroying the Work or the building or structure, City at its sole discretion may
relocate, sell, or store the Work. If City chooses not to relocate, sell, or store the Work,Artist may be
given written notice and ninety(90)days to remove the Work at his or her sole expense. Upon Artist's
failure to remove the Work,City shall have the right to remove and dispose of the Work by any means,
including its destruction.
d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as
that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on
the grounds stated in this Article 8.4.
e. City shall,at all times,have the right to move the Work,or remove it from public display.City shall also
have the right to sell or trade the Work.
8_5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work.
8.6. Artist's Address.
Artist shall notify City of changes in the address set forth in Article 15. 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 of Article 8 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.
8.7. Additional Rights and Remedies.
Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to
Artist under the law, which may now or in the future be applicable.
ARTICLE 9
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
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 15 of 34
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 10
SUBCONTRACTING
Artist may subcontract portions of the services to be provided hereunder at Artist's expense,provided that said
subcontracting shall not adversely affect the design,appearance or visual quality of the Work and shall be carried
out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be
expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors,
including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the
Contract Manager.
ARTICLE 11
TERM AND TERMINATION
11.1. 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.
11.2. 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. In the event this Agreement is canceled by
the City, pursuant to this Article 11.2, City shall be entitled, in addition to any other rights and remedies, to
recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities.
11.3. Death or Incapacity of Artist.
a. In the event of Artist's death or Artist becoming physically or legally 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 death or 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. In the event of termination under this Article 11.3, 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.
11.4. Termination for Convenience.
f
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park l6 of 34
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.
b. If the termination is for the convenience of City,City shall pay Artist for services actually rendered up to
the effective date of termination in accordance with the payment schedule in Article 4 as determined in
City's sole discretion. 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, designs
and the Work up to the effective date of termination.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay
Artist pursuant to the payment provision in Article 4 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,as determined in City's sole discretion. If City chooses to pay Artist,then all work product
produced by Artist under this Agreement,including,but not limited to,finished and unfinished drawings,
sketches, photographs, models, designs, the Work 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 11.4.a, then City shall pay
Artist per the payment schedule in Article 4 as determined in City's sole discretion 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.
11.5. Termination for Cause.
a. 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 to this
Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 11.5 in
accordance with the dispute resolution process set forth in Article 12 of this Agreement. 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 Article 11.5 shall not relieve the party in default of
any liability for damages resulting from a breach or a violation of the terms of thisAgreement.
b. If City terminates this Agreement pursuant to this Article 11.5,then City shall have the right to complete
the Work in accordance with the Artwork Design,which shall be in addition to any and all other rights
and remedies available to City at law or in equity. If City exercises its right to complete the Work,then,
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 17 of 34
notwithstanding anything to the contrary:
(1) title to the Artwork Design, Work, and/or all other work product under this Agreement and/or
any prior agreement for the Work,including, but not limited to, all documents,and/or drawings
that constitute or are components of the Artwork Design and/or Work, shall pass to City and
become the property of City, without restriction on future use, immediately upon the City's
exercise of its right to complete the Work;
(2) Artist shall forfeit any and all rights to the Artwork Design,Work,and/or all other work product
under this Agreement and/or any prior agreement for the Work, including, but not limited to,
those stated under Articles 7 (Ownership and Intellectual Property Rights) and 8 (Artist's
Rights) of this Agreement;
(3) Artist automatically sells,assigns,and transfers to City,the entire right,title,and interest in and
to the Artwork Design, Work, and/or all other work product under this Agreement or any prior
agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101
et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the
exclusive right to reproduce,prepare derivative works based upon,distribute copies to the public
as well as display said Artwork Design and/or Work,the same to be held and employed by City
for City's own benefit and use and for the benefit and use of City's successors,assigns,and legal
representatives forever;
(4) Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or
any other work product under this Agreement and/or any prior agreement for the Work;and
(5) Artist,pursuant to this Article 11.5,hereby acknowledges the rights of attribution and integrity
conferred by Section 106A(a)of Title 17 of the U.S.Code,(as amended or as it may be amended
in the future)Titled"Visual Artists Rights Act,"and any other right of the same nature granted
by U.S.federal,state,or foreign laws,and of his/her own free act hereby waives such rights with
respect to any and all uses of the Artwork Design,Work,and/or all other work product under this
Agreement and/or any prior agreement as a public artwork. Nothing in this Article 11.5 shall
affect the survival of Articles 5 (Warranties), 6 (Insurance and Indemnity),
9(Artist as an Independent Contractor),and 14.13 (Right to Audit)of this Agreement,which
shall remain in full force and effect upon termination of this Agreement.
ARTICLE 12
DISPUTE RESOLUTION
a. 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 shall notify the other party in writing
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 18 of 34
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.
b. 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 written Agreement of the Parties.
In the event City and Artist 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 11.5)
ARTICLE 13
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 14
MISCELLANEOUS
14.1. Compliance.
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 19 of 34
performance of Artist's services under this Agreement.
14.2. Entire Agreement.
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.
14.3. Amendments.
No alteration, change, modification, or amendment of the terms 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.
14.4. 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.
14.5. 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 Northern District of Texas—Fort Worth Division.This Agreement shall be construed in accordance with
the laws of the State of Texas.
14.6. Successors and Assigns.
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 part hereof without such prior written
consent shall be void.This Agreement shall be binding upon and shall inure to the benefit of City and Artist and
their respective successors and permitted assigns.
14.7. 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.
14.8. Severability.
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.
14.9. Force Mai eure.
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
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 20 of 34
party obligated or permitted under the terms of this Agreement to do or perform 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.
14.10. 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 are to be resolved against the
drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.
14.11. Fiscal Funding Out.
If,for any reason,at any time during any term of this Agreement,the Fort Worth City 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) calendar 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.
14.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of
this Agreement.
14.13. 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 200 Texas 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. Artist shall require all of its
subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as
above.
14.14. Certified MBE/WBE.
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 certification is accepted by
the City under the City's Business Diversity Enterprise Ordinance.
14.15. Survival Provision.
The provisions contained in Articles 5(Warranties),6(Indemnification),7(Ownership and Intellectual Property
Rights), 9 (Artist as an Independent Contractor), 11.3 (Incapacity of Artist), and 14.13 (Right to Audit) shall
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 21 of 34
survive the termination or expiration of this Agreement.
14.16. 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.
14.17. Time Extensions.
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in this Agreement.
14.18. Israel.
If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more,
Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City is prohibited
from entering into a contract with a company for goods or services unless the contract contains a written
verification from the company that it: (1) does not boycott Israel; and(2)will not boycott Israel during the term
of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in
Section 808.001 of the Texas Government Code. If applicable under this Agreement and Artist is considered a
"company," by signing this Agreement,Artist certifies that Artist's signature provides written verification to
the City thatArtist:(1)does not boycott Israel,and(2)will not boycott Israel during the term oftheAgreement.
ARTICLE 15
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
200 Texas Street,Third Floor
Fort Worth,TX 76102-6314
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
200 Texas Street
Fort Worth,TX 76102-6314
Martha Peters,Director of Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth,Texas 76107
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 22 of 34
2. ARTIST Virginia Fleck
1900 Larchmont Drive
Austin,Texas 78704
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 23 of 34
IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective
Date.
CITY OF FORT WORTH ARTIST
rGLl�rlr(.Iwh-----
Amk�tmt—
Fernando Costa Virginia Fleck
Assistant City Manager Artist
Date: 9.1ZJ/ZQZ1 Date: 9/28/2021
CONTRACT COMPLIANCE MANAGER:
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
Name:Michelle Richardson
Title: Public Art Project Manager
APPROVED AS TO FORM AND LEGALITY:
W�
By:
Jessi Williams
Assistant City Attorney ,�rC��
ATTESTED BY: F ;.�
?X
By:—
Ronald P. Gonzales
Acting City Secretary ......
1 �
Form 1295:2021-790488 '
M&C: 21-0739 (9.28.21)
0-FIFROAL RECORD
*��C�tETARY
Agreement with Virginia Fleck for Final Design f;—T,, INORTHo Tx
and Commission of Public Artwork for Rosemont Park 24 of 34
Exhibit A: Approved Preliminary Design
Drawing from craft tradition and virtual community engagement due to COVID-19,Virginia Fleck's sensory maze focuses
on connectedness through multiple forms of weaving.The brightly painted beams are arranged in three concentric circles as
a dimensional mandala,associated with wholeness and healing.As a viewer moves to the center,they will find themselves
reflected in the beam's mirror surface.The sculpture's sensory experiences are intended to bring viewers back to their own
center.
i
i
t
Preliminary Design Rendering of Sculpture:24 feet in diameter by up to 11 feet,6 inches in height
COW
.. 400 .
Preliminary Design Aerial View:30 feet, 8 inches in diameter
Stabilized decomposed granite artwork surface:30 feet in diameter
Concrete curb perimeter(flush with ground): 8 inches in thickness
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 25 of 34
t � i
-I]fA Nia I!fr'
Preliminary Design Rendering Beam Detail
110 Painted steel beams ranging from 7 feet to I 1 feet,6 inches in height
Beams are arranged in a warm color progression on one side,cool color progression on the reverse
Orrored surface
on Nerior
side of 4eams
k
1
mlrrored skirface
❑n tap angles
of all beams
IT 0
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Preliminary Design Rendering Mirrored Surface Details
- Interior side of inner-most maze circle
- Tops of angled beams
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 26 of 34
Exhibit B: Site
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Garden Q Newby Park t'1 Fort worth Susu{ea°
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A Trisllly Tralls River
7 Park 7railheed q OvAnon Pwk
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Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 27 of 34
Exhibit C: Budget Form
PROJECTARTIST • ■
PROJECT
DEVELOPMENT DEVELOPMENT
COSTSCOSTS
FEES INSTALLATION
Artist fee Transportation
Design(Preliminary/Final) Permits
Professional fees Site preparation/remediation
Engineer Footings/foundations
Architect Electrical connections/modifications
Lighting Designer Labor
Conservator Equipment rental
Other Traffic control
SUB-TOTAL FEES Security
SUB-TOTAL INSTALLATION
TRAVEL
Transporation OVERHEAD
Lodging Insurance(prorated)
Per diem(meals and incidentals)
Studio assistant(hours x$per hour)
SUB-TOTAL TRAVEL
SUB-TOTAL OVERHEAD
FABRICATION
Artist administration(hours x$per hour) CONTINGENCY
Materials
Artist labor(hours x$per hour) GRAND TOTAL ARTIST
Labor PROJECT COSTS
Rentals(equipment,space,etc.)
Storage
SUB-TOTAL FABRICATION
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 28 of 34
Exhibit D: Technical and Maintenance Record
GENERAL INFORMATION
Artist:
Address:
Telephone:
Cell:
E-mail:
Gallery Affiliation:
Other Representation:
ARTWORK
Title of Artwork:
Project Name and Location Address:
FWPA Project Manager:
Description of Artwork: (attach separately if necessary):
Artwork Dimensions:
Height: Width: Depth:
Pedestal or Pad Material:
Pedestal or Pad Dimensions:
Height: Width: Depth:
Location&Description of Signature Markings(or copyright):
Edition Information if applicable:
Date of Execution:
Place of Execution:
Collaborating Artist:
Fabricator(if other than artist)
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 29 of 34
Fabricator Address:
Methods/Materials Used in Execution of Artwork
Materials(list type, brand name and manufacturer of all materials; attach Material Safety &Technical Data.
Include contact names for all suppliers and attach warranty information):
Construction Description: (list all fabricators and any architects,engineers or other technicians involved in
the creation and installation of this artwork. Attach all warranties&agreements)
Material(s) Specifications:
Joining Methods:
Welding Rod Alloy or Joint Material&Application Method:
Casting Alloy,Wax Body, Glass or Fiber Type:
Finishes &Coatings(paint color and type,glaze,patina, any and all coatings including fixative,UV,graffiti,
etc.Please list vendors and contact information and provide all product information):
Pedestals,Foundations&Footings,Mounting and Attachment Applications
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 30 of 34
(List all materials used to install artwork on site. Include vendor information,parts numbers,warranties and
agreements.)
Integrated Components
(List all components included in design and fabrication contracts that function as a part of the final
installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information,
parts numbers,warranties and agreements and any/all design schematics):
Installation
Installation Date:
Installation Method: (describe installation method,provide photo documentation if available. List name and
contact information of installation crew. Attach any diagrams or disassembly instructions.)
Recommended Routine Maintenance
Artist recommendation based on experience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
Unusual or Special Circumstances of Note
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 31 of 34
Artist's Intention
(Please describe your view of how the artwork will change over time and in response to environmental
conditions.Artist's vision of how the artwork will look in the future assists FWPA in realizing an
appropriate conservation action plan. In addition to environmental conditions public artworks are often
affected by public handling, landscaping and site changes. Please clearly detail your expectations for this
artwork. Please address issues related to the life expectancy of this artwork.)
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Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 32 of 34
Exhibit E: Affidavit
AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials
provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted
to any person,firm,or corporation by reason of any such construction.There are no claims pending for personal
injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me,the undersigned authority, on this the
day of ,2021.
Notary Public, State of Texas
Print Name
Commission Expires
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 33 of 34
Exhibit F: Sales Tax Exemption
Texas 'Sales and Use Tax. Exemption ertification
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Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 34 of 34
Exhibit G: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication,
transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s)to abide
by all of the following insurance requirements.
Commercial General Liability(CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent contractors,
products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an
occurrence basis, and be as comprehensive as the current Insurance Services Office(ISO) policy. The policy
shall name City as an additional insured.
Bailee's/Property(if applicable)
The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest
appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care,
custody, and control and shall include property"in transit."
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
A commercial business policy shall provide coverage on"Any Auto," defined as autos owned,hired and non-
owned.
For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease-per each employee
$500,000 Bodily Injury/Disease-policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas
workers' Compensation Act(Art. 8308— 1.01 et seq. Tex.Rev. Civ. Stat.).
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 35 of 34
GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers,
Employees and Volunteers as an"Additional Insured"on all liability policies.Exception;the additional insured
requirement does not apply to Workers' Compensation or Automobile policies.
Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any
insurance policy and may not change the terms and conditions of any policy that would limit the scope or
coverage, or otherwise alter or disallow coverage as required herein.
The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the
City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas.
If the subcontractor is an international entity and carries insurance through an international insurance company,
then the subcontractor must obtain language on their certificate of insurance confirming that its insurance
policy extends coverage to operations in the United States. All insurers must have a minimum rating of A-VII
in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to
the satisfaction of Risk Management.If the rating is below that required,written approval of Risk Management
is required.
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
for any differences is required.Excess Liability shall follow form of the primary coverage.
Unless otherwise stated, all required insurance shall be written on an"occurrence basis."
The deductible or self-insured retention(SIR)affecting required insurance coverage shall be acceptable to and
approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders'
equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk
retention groups,must also approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable
adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon
changes in statutory law,court decision or the claims history of the industry as well as of the contracting party
to City of Fort Worth. City shall be required to provide prior notice of ninety days.
City shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto
and may make any reasonable requests for deletion or revision or modifications of particular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by law or regulations
binding upon either of party or the underwriter on any such policies.
Agreement with Virginia Fleck for Final Design
and Commission of Public Artwork for Rosemont Park 36 of 34
10/6/21, 1:09 PM M&C Review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTH
DATE: 9/28/2021 REFERENCE **M&C 21- LOG NAME: 03ROSEMONT PARK PUBLIC ART
NO.: 0739 PROJECT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 9) Authorize Execution of a Final Design and Commission Contract with Virginia
Fleck in an Amount Up to $147,418.00 for Final Design, Engineering, Fabrication,
Delivery, Installation and Contingencies for Artwork at Rosemont Park, 1400 West
Seminary Drive, Fort Worth, Texas 76115 (2008 Bond Program)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a Final Design and Commission
Contract with Virginia Fleck in an amount up to $147,418.00 for final design, engineering, fabrication,
delivery, installation and contingencies for artwork at 1400 West Seminary Drive, Fort Worth, Texas
76115
DISCUSSION:
Upon learning of the community's interest in an artwork that is engaging to a multigenerational,
multicultural audience, artist Virginia Fleck designed a sensory maze for Rosemont Park which
focuses on connectedness through various forms of weaving. The one hundred ten (110) brightly
colored vertical steel beams that create this experiential sculpture intentionally form a three-
dimensional mandala, a geometric figure associated with wholeness and healing.
Made of three (3) concentric circles, visitors are invited to explore the maze through sight, touch, and
sound. The overall design creates a moire pattern visual effect as viewers move around and weave
through the sculpture. It also yields sound effects as their fingers are run along these beams, which
are carefully placed as musical notes. Making their way to the center, viewers will find themselves
reflected in the interior beam's mirrored surface. Each flicker, shimmer, and sound create a rhythmic
effect that altogether activate sensory experiences which are designed to bring individuals back to
their own center.
Virginia Fleck's sensory maze spans twenty-four (24) feet in diameter and stands up to eleven (11)
feet six (6) inches in height. The artwork will be situated on a curbed decomposed granite pad thirty
(30) feet in diameter with each maze pathway measuring three (3) feet wide for Americans with
Disability Act accessibility.
On December 19, 2019, Virginia Fleck was placed under a Preliminary Design Agreement (City
Secretary Contract No. 53297, 53297-A1) in an amount up to $9,897.00.
Fort Worth Art Commission (FWAC) Action: On July 19, 2021, the FWAC approved the Preliminary
Design and recommended that the artist be placed under a Final Design and Commission Contract.
The Park and Recreation Advisory Board will be asked to endorse the selected location following the
Art Commission's approval of the final design.
The City of Fort Worth completed improvements along 6th Avenue as part of the 2008 Bond Program.
This included improvements at the intersection of 6th Avenue and Seminary Drive. Due to its proximity
to these improvements, the southeast area of Rosemont Park, located at this same intersection (see
attachment), was identified as an impactful location for public art. Funding for the project was
approved as part of the Public Art Plan for the 2008 Bond Program, Proposition 1, adopted by the Fort
Worth City Council on October 26, 2010 (M&C G-17094). The project was included in the Fort Worth
Public Art Fiscal Year 2021 Annual Work Plan, adopted by the Fort Worth City Council September 22,
2020 (M&C 20-0678).
Artist shall require their subcontractors to pull all permits required for this project, however, the City
shall waive any fees for these permits as this project is funded by City Bond funds.
Estimated regular maintenance on this project is anticipated to be $1,200.00.
apps.cfwnet.org/council_packet/mc_review.asp?I D=29287&cou ncildate=9/28/2021 1/3
10/6/21, 1:09 PM M&C Review
The anticipated completion date for this project, and the expenditure of all related funds, is Fall 2022. If
there are delays and the debt funds are not fully expended by the end of 2022, then City management
will determine whether to move the unspent balance to debt service at the end of 2022.
PROJECT BUDGET �[-----AMOUNT CONTRACT
Public Art Project $31,288.06 CSC #54598
Management Allocation
Selection Process $900.001 CSC #52948, 52952
Contracts
Preliminary Design $8,122.00' CSC #53297
Contract
Final Design and $147,418.00 This M&C
Commission Contract
TOTAL $187,728.06
FUNDING SOURCES AMOUNT
2008 Bond Program, Proposition 1 IF
$187,728.00
TOTAL IF $187,728.00
M/WBE OFFICE - The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent
of total capital project dollars expended on public art annually.
Council Member Elizabeth Beck concurs with the FWAC's recommendation to proceed with the final
design and commission of the Rosemont Park Public Art Project.
This project is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital budget, as previously
appropriated, in the Street Improvements 2008 Fund for the FWPA-Rosemont Park project to support
the approval of the above recommendations and execution of the commission contract. Prior to any
expenditure being incurred, the Planning & Data Analytics Department has the responsibility to
validate the availability of funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year (Chartfield 2
Submitted for City Manager's Office by_ Fernando Costa (6122)
Originating Department Head: Mark McAvoy (6222)
Additional Information Contact: Martha Peters (298-3025)
apps.cfwnet.org/council_packet/mc_review.asp?ID=29287&councildate=9/28/2021 2/3