HomeMy WebLinkAboutContract 42568 CITY SECRETARY �00_
(;ON TRACT NO.,.4Z5
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND TINA MCINTIRE FOR DESIGN OF AN ARTWORK TO
COMMEMORATE HAZEL HARVEY PEACE
This Agreement is entered into this Ic' da of �dwembtf 2011 b and
g ) y y
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 Tina McIntire,
an individual, of 4520 Almena Road, Fort Worth, Texas 76114. 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 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 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 commissioned artist Floyd Newsum's suspended sculpture titled For
Better Life, for the atrium of the City of Fort Worth's Public Health Center, using 2% funds from
the 2007 Critical Capital Needs Program;
WHEREAS, City subsequently renamed the Public Health Center to "Hazel Harvey
Peace Center for Neighborhoods" in honor of late community leader and educator, Hazel Harvey
Peace;
WHEREAS, City has funds remaining from the aforementioned public art project;
WHEREAS, members of the community have expressed the desire for an artwork that
would commemorate Hazel Harvey Peace's legacy in the building that bears her name;
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WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended in its
Fiscal Year 2011 Annual Work Plan, which City Council approved October 19, 2010 (M&C C-
24554), that the public art funds that remain for Hazel Harvey Peace Center be utilized to
commission an artist-designed commemorative plaque;
WHEREAS, City has determined that Hazel Harvey Peace Center's East Atrium Wall
provides a suitable location for the Work;
WHEREAS, the Artist was competitively selected through a process outlined in the Fort
Worth Public Art Master Plan conducted by the Contract Manager with oversight and approval
of the FWAC on May 9, 2011; and
WHEREAS, City and Artist wish to set out terms under which said work shall be
designed.
NOW, THEREFORE, the City and the 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 City and Artist for
Preliminary Design and Final Designs of Public Art for the Site.
1.2. Artist — Means and includes Tina McIntire and all other persons or entities for
which she is legally responsible, including, but not limited to, her heirs, executors,
administrators, legal representatives, successors, agents, contractors,
subcontractors, subartists, and assigns.
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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 are created by Artist in connection with this Agreement
and/or any prior agreement between Artist and City for the Work.
1.3.b. Final Design — Means the Artist's final, proposed design of the Work for
the Site, which is based upon the City-approved Preliminary Design and
includes, but is not limited to, all final 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. Contract Manager — Means and includes the Arts Council of Fort Worth and
Tarrant County, Inc., and all other persons or entities for which Contract Manager
is legally responsible including, but not limited to, its officers, directors,
employees, agents, subsidiary organizations, parent organizations, successor
corporations, assigns, predecessors, stockholders, administrators, and related
companies.
1.5. City— Means and includes the City of Fort Worth and its officers, representatives,
agents, servants, and employees.
1.6. 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.
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1.7. Final Design Deliverables — Means and includes those items set forth in Article
2.5 of this Agreement that Artist is required to submit to City for its review and
approval.
1.8. Parties—Means and includes City and Artist.
1.9. Preliminary Design Deliverables — Means and includes those items set forth In
Article 2.4 of this Agreement that Artist is required to submit to City for its
review and approval prior to proceeding to the Final Design phase of this
Agreement.
1.10. Project — Means and includes the collaborative undertaking between City and
Artist for a commemorative plaque honoring Hazel Harvey Peace at the Center
which bears her name: Hazel Harvey Peace Center for Neighborhoods In Fort
Worth, Texas.
1.11. Site — Means and includes the East Atrium Wall of the Hazel Harvey Peace
Center for Neighborhoods located at 818 Missouri Avenue, Fort Worth, Texas
76104, which is more particularly described in Exhibit "A," attached hereto and
incorporated herein by reference for all purposes.
1.12. Work — Means and includes the finished object of art and design that is the
subject of this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES
2.1. General.
a. Artist shall perform all services and will furnish all supplies and materials and equipment
as necessary for developing the Preliminary Design and Final Design of the Work for the
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Site. 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 city's appointed steering
committee and approval by City as set forth in this Agreement.
C. The specific location at the Site where the Work shall be installed shall be mutually
agreed upon by City and Artist.
d. Artist shall present the Preliminary Design and Final Design to the steering committee
and City officials for input and to the FWAC for review and approval at dates and times
mutually agreed upon.
2.2. _ Implementation Budget Total.
Artist shall develop a Final Design that is financially feasible relative to the budget for
implementation of the Final Design. It is understood that the budget for implementation of the
.Final Design is FIFTEEN THOUSAND ONE HUNDRED. TWENTY-FIVE DOLLARS
AND NO CENTS ($15,100.00), which includes all costs for materials, labor, fabrication,
delivery, installation, insurance, transportation, remaining Artist's fee, and all other associated
costs for the Work. Artist shall provide a detailed budget, on the budget form attached hereto as
Exhibit"B,"for the Work.
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.
2.4. PreliminaKy Design Phase Deliverables
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Within sixty (60) calendar days 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 2.4 to City for approval. Preliminary Design Deliverables shall consist of the following:
i. Two (2) schematic illustration(s) of the Work with at least one illustration
showing the Work's size location and placement in relation to the Site, which
shall be approximately 20" x 30" and mounted on foam core and/or supplied in a
high-resolution digital format;
ii. Preliminary written narrative describing the following items: (1) Concept for
design; (2) Proposed materials and fabrication methods for all elements of the
Work; and (3) installation methods, timeline for completion and maintenance, and
preservation requirements;
iii. A budget for the Work with written estimates attached for supplies and services to
be provided by Artist, by Artist's contractor, or by others, including the remainder
of Artist's fee, in an amount not to exceed FIFTEEN THOUSAND ONE
HUNDRED DOLLARS AND NO CENTS ($15,100.00); and
iv. Copies of Artist's PowerPoint presentation of the overall Preliminary Design, if
any.
2.5. Preliminary Design Review
a. Upon completion of the Preliminary Design Deliverables, Artist shall meet with the
designated steering committee, 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.
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b. Artist shall present the Preliminary Design to the FWAC for approval at a regularly
scheduled FWAC meeting.
C. City may require Artist to make such revisions to the Preliminary Design as are necessary
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. City may also request revisions to the Preliminary Design as City deems necessary in its
sole discretion.
e. Within thirty (30) business days of its receipt of the Artist's submission of the
Preliminary Design, the City shall notify the Artist of its approval, or disapproval, of such
submission and of each revision made in the Preliminary Design. Revisions made
pursuant to this Article 2.5, upon approval by City, shall become part of the Preliminary
Design. if City requires any revisions to the Preliminary Design, Artist shall incorporate
those revisions into the Final Design in conformance with city's requirements. Any
revisions shall become part of the Final Design Deliverables if the Artist proceeds to.the
Final Design phase of this Agreement.
f. if the Preliminary Design or any required revision is disapproved by City, Artist shall
have thirty (30) calendar days to resubmit the Preliminary Design in conformance with
City's requirement.
g. If resubmitted materials are not approved by City, this Agreement may be terminated at
City's sole discretion, with payment for work performed per the payment schedule in
Article 3 up through the date of termination. Artist shall provide the Preliminary Design
presentation materials to City to become part of City's Public Art archive.
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h. If Artist's Preliminary Design is approved by City, then Artist's Preliminary Design shall
be incorporated into this Agreement as an addendum, and shall become the basis for
proceeding to the Final Design phase of this Agreement.
i. Upon City's approval of the Preliminary Design, 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. Artist's Preliminary Design and all other
work product under this Agreement shall become the property of City, without restriction
on future use (.gee Article d).
2.5. Final Desi n Phase Deliverables
If City approves Artist's Preliminary Design and authorizes Artist to proceed to the Final Design
phase of this Agreement, then, within sixty (60) calendar days after City authorizes Artist to
proceed to the Final Design phase, Artist shall provide services and all supplies, material, and
equipment necessary to provide certain deliverables, as set forth in this Article 2.6, to City for
approval. Final Design Deliverables shall consist of the following:
i. Two final design illustrations, which shall be approximately 20" x 30" and
mounted on foam core and/or supplied in a high-resolution digital format,
showing the proposed Work from two vantage points with at least one illustration
showing the Work's size and placement in relation to the Site.
ii. A final written narrative for the Work, describing the following: (1) 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; (3) Maintenance requirements for all elements of
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the Work as dictated by Artist, along with cost estimates for annual maintenance;
and (4) Proposed public education program to be conducted by Artist during the
commission phase of the project.
111. Comprehensive working drawings, detailing the means of installing all elements
of the Work on the Site, together with other such graphic materials as may be
requested by City to permit City to carry out structural design review. Upon
City's request, these drawings must be signed and stamped by an engineer and/or
architect licensed to work in the State of Texas as required by City, and Artist will
obtain and furnish to the City certificates of professional liability insurance from
each such licensed professional and will require the City to be named as a
"certified holder" entitled to notice of cancel lation/nonrenewal in accordance with
standard practices. Artist shall not be liable for the use of the drawings submitted
under this section for any use other than the Final Design.
iv. A final budget for the Work with written estimates attached for supplies and
services to be provided by Artist, by Artist's contractor, or by others, including
the remainder of Artist's fee, In an amount not to exceed FIFTEEN
THOUSAND ONE HUNDRED DOLLARS AND NO CENTS
{x;15,100.0 (see Article 2.2).
2.7. Final Design Review.
a. Upon completion of the Final Design Deliverables, Artist shall meet with the designated
steering committee, City staff, and other City boards or commissions, as appropriate, to
present the Final Design, at a date and time mutually agreed upon, for input.
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b. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled
FWAC meeting.
C. City may require the Artist to make such revisions to the Final Design as are necessary
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. City may also require Artist to make such revisions to the Final Design as City deems
necessary in its sole discretion.
e. Within thirty (30) business days of its receipt of the Artist's submission of the Final
Design, the City shall notify the Artist of its approval, or disapproval, of such submission
and of each revision made in the Final Design. Revisions made pursuant to this Article
2.7, upon approval by City, shall become part of the Final Design.
f. If the Final Design or any required revision is disapproved by City, Artist shall have
thirty (30) calendar days to resubmit the Final Design in conformance with City's
requirement.
g. If resubmitted materials are not approved by City, this Agreement may be terminated at
City"s sole discretion, with payment for work performed per the payment schedule in
Article 3 up through the date of termination. Artist shall provide the Final Design
presentation materials to City to become part of City's Public Art archive.
h. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final
Design is accepted by City and funding is appropriated by the Fort Worth City Council,
negotiations for fabrication, delivery, and installation of the Work shall commence,
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which shall become part of the deliverables under any potential subsequent artwork
commission contract.
i. Upon approval of the Final Design by City, 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
products under this Agreement shall become the property of City, without restriction on
future use (see Article d.1).
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under this Agreement shall be in the amount of TWO
THOUSAND FOUR HUNDRED DOLLARS AND No CENTS ($2,400.00), which shall
constitute full compensation for any and all costs associated with the Agreement, including, but
not limited to, engineering and consulting fees and services performed and materials furnished
by Artist under this Agreement. Artists 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. TWO HUNDRED FIFTY DOLLARS AND NO CENTS $250.00) upon
execution of this Agreement.
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b. FOUR HUNDRED DOLLARS AND NO CENTS ($400.00) within thirty (30)
calendar days after Artist submits all of the Preliminary Design Deliverables
required under Article 2.4 of this Agreement, makes a presentation(s) of the
Preliminary Design to the FWAC, and City approves the Preliminary Design.
C. FOUR HUNDRED DOLLARS AND NO CENTS ($400.00) within thirty
(30) calendar days after the Artists submit all of the Final Design
Deliverables required under Article 2.6 of this Agreement, makes a
presentation of the Final Design to the FwAC.
d. THREE HUNDRED FIFTY DOLLARS AND NO CENTS $350.00
within thirty(30)calendar days after City's approval of the Final Design.
City may pay Artist up to ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) for
engineering fees and a conservator's consultation in order to fulfill the terms of this Agreement.
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 thereto.
3.2. 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. The City shall supply the Artist with the "Texas Certificate of Exemption"
in substantially the same form as that attached hereto as Exhibit "C,' for use by the Artist in the
fulfillment of this Agreement.
3.3. 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
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insurance on submissions to the City, cost of all travel, and costs for the Artist's agents,
consultants, and/or employees necessary for the proper performance of the 'services required
under this Agreement.
ARTICLE 4
TERM AND TERMINATION
4.1 Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier
pursuant to any provision 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 duties and/or 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 4.3 in accordance with the dispute resolution process set forth in Article
5 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
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.
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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 the termination is for the convenience of City, Artist shall have the right to fees for
work performed,,in which event City shall have the right at its discretion to possession
and transfer of title to the sketches, designs, and models already prepared and submitted
or presented for submission to City by Artist under this Agreement prior to the 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, Artist shall remit to City a sum equal to all
payments (if any)made to the Artist pursuant to this Agreement prior to termination.
4.5. 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 finished and unfinished drawings, sketches, photographs, models
and work shall become property of City.
b. Should Artist's Final Design have been approved, in the event of termination under this
Article 4.5, City shall have the right to complete the Work. 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.
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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
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 (d0)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
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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)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. General
a. Upon payment In full to Artist, Artist's Artwork Design, Work, and all other work
product under this Agreement shall become property of City, without restriction on future
use, except as provided below. Artist may retain copyright and other intellectual property
rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist
grants to City a perpetual, irrevocable license to graphically depict or display the Artwork
Design and/or Work for any non-commercial purpose whatsoever. For purposes of this
limitation, any graphic depiction or display of the Artwork 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. City shall take title to all documents and/or drawings, which constitute or are components
of the Artwork Design and/or Work upon final approval of the Preliminary Design and/or
Final Design. These documents and/or drawings will be retained for archival and
exhibition purposes.
C. Artist reserves every right available under the Federal Copyright Act to control the
making and dissemination of copies or reproductions of the Artwork 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
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Artwork Design, Work and accompanying materials for any municipal purpose. All
reproductions by the City shall contain a credit to Artist and a copyright notice
substantially in the following form: "C date, Artist's name."
d. Nothing in this Agreement shall prevent Artist from using images of the Artwork Design
or Work for marketing and promotional purposes In connection with the Artist's
business; provided, however, that Artist shall make his/her best efforts to credit the City
for commissioning the Work whenever possible: "an original artwork commissioned by
and in the collection of the City of Fort Worth, Texas".
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. The Artwork Design and/or Work shall be the original product of the Artist's sole
creative efforts.
b. The Artwork Design and/or Work is and will be unique and original, and do not infringe
upon any copyright or the rights of any person or entity;
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C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Design and/or Work or any copyright related thereto that may affect or impair
the rights granted pursuant to this Agreement;
d. The Artwork Design and Work (or duplicate thereof) have not been accepted for sale
elsewhere;
e. The Artwork Design and Work are free and clear of any liens from any source
whatsoever;
f. Artist has the full power to enter into and perform this Agreement and to make the grant
of rights contained in this Agreement; and
g. 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 8
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.
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ARTICLE 9
INDEMNIFICATION
9.1. Generallndemnity
a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS,
AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY
AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF
ACTION, LIENS, LOS-SES, 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 NEGLIGENT ACT, ERROR, OR OMMISSION OF
ARTIST AND/OR ARTIST'S SUBARTIST 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.
Agreement Bet%%een the C0 ot'F cart \k orth and Page 19 of`3?
1 ina McIntire t«r I)esign of:an Artwork to
Commemorate Hazel I Iar\e�, Peace
b. Artist agrees to and shall release City from any and all liability for injury, death, damage,
or loss to persons or property sustained 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.
9.2. Intellectual Pro ert
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, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS,
AND CONTRACTORS 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 WORK
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.
,Agreement iletNk cen tiie ('It (4 I tart \k orlh and Page 20 ut'3 2
i ina M c l nt i re for Design ign tit an Art,.k nrk to
Cornrnernoratc• i la/el I lar�ex Peace
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of
this Agreement.
ARTICLE 10
EQUAL OPPORTUNITY
a. Artist shall not discriminate against any employee or applicant for employment because
of age, disability, race, color, religion, sex, sexual orientation, national origin, familial
status, transgender, gender identity, or gender expression. Artist shall take affirmative
action to ensure that employees are treated equally during employment, without regard to
their age, disability, race, color, religion, sex, sexual orientation, national origin, familial
status, transgender, gender identity, or gender expression. Such action shall include, but
not be limited to, the following: Employment, upgrading, demotion, transfer, recruitment
or pay or other forms of compensations, and selection for training, including, but not
limited to, apprenticeship. Artist agrees to post in conspicuous places, available to
employees and applications for employment, notices to be provided by City setting forth
the provision of this nondiscrimination clause.
b. Artist shall, in all solicitation or advertisements for employment placed on or on behalf of
Artist, state that all qualified applicants shall receive consideration for employment
without regard to race, color, religion, sex, sexual orientation, national origin, familial
status, transgender, gender identity, or gender expression.
C. Artist shall furnish all information and reports requested by City, and shall permit access
to its books, records, and accounts for purposes of investigation to ascertain compliance
with such rules and regulations.
Agreement Bette een the t'it\ ot'F ort Worth and Page ?1 ot'3?
1 ina McIntire for Design ot,an Artwork to
Commemorate Ha/el 1{arveN Peace
d. 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 the City.
ARTICLE 11
MISCELLANEOUS
I L L Compliance.
Artist shall comply with all Federal, State, and City statutes, ordinances, and regulations
applicable to the performance of the Artist's services under this Agreement.
11.2. 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.
11.3. 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 the 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
..N rccment llctNkc n the CO of 1,ort "01-th Mld Page 77 of 2
I Intl Mchilire for Ocsi n of an Armork to
C onlnicniorate E la/cl E lark c Peace
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.
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 part
hereof without such prior written consent shall be void. This Agreement shall be binding upon
and shall inure to the benefit of the City and the Artists 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,Majeure.
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
that are reasonably beyond the control of the 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
Agreement Betv\een the CO (4 Fort \�orth and Page 23 of'32
Edna Mc:Entire for Design of:an Art%k ork to
Commemorate Hales 11ar\,e\ Peace
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
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 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) days following
delivery by City to Artist of written notice of the City's intention to terminate or(ii)the last date
for which funding has been appropriated by the 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.
1 1.13. Artist's Address.
Artist shall notify the Contract Manager of changes in address.
Agreement 13c't�k tt'n the Ot\ of Furl Worth and Page 24 ( 3?
I-ina Mc Intirc for Design ot.an Art�ko�rk to
Cone mt nioratc• Ha/el I Iar�c\ Peace
11.14. Surviving Covenants
The covenants and obligations set forth in this Agreement shall not survive the death or legal
incapacity of the Artist.
11.15 City's Right to Com lete.
In the event of the death or legal incapacity of Artist, City shall have the right to complete the
Work and shall give credit to Artist, as appropriate.
11.16. 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, Artist shall make all Records
available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in
City acceptable to both parties following reasonable advance notice by City and shall otherwise
cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this
Section 1 1.16 shall survive expiration or earlier termination of this Agreement.
11.17. Certified M W B E.
If applicable, Artist shall make its best effort to become a certified Minority/Women Business
Enterprise (MIW BE) firm with a certifying agency whose certification is accepted by City under
City's MIWBE ordinance.
1 1.1 S Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights) 7
(Warranties of Title and Copyright), S (Artist as Independent Contractor), and 9
(Indemnification) shall survive the termination or expiration of this Agreement.
Agreenient IIcI�%ccn the tit,, oI'I ort VN orth and I'agc —5 of'3?
1 ina Mc:Inurc for I esign cat:are Arm«r1. to
Coninienioratc I I ale I I IarN,e\ Trace
11.19 Public Information Act
Artist understands and acknowledges that City is a public entity under the laws 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 the City what information it deems
proprietary. If City is required to disclose any documents that may reveal any 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's 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's 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.
11.20 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.
Agreement BONN een the Cit, of Fort Worth and Page 20 tit 3?
I ina McIntire for Design cat,an ArON ork to
C on-i rnemorate I lafel I Iary e,. Peace
11.2 1. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 12 ;It. A -_ �4�, r
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
Office of the City Attorney
1000 Throckmorton Street
Fort Worth, Texas 75102
Copies to: Sarah Fullenwider
Law Department
1000 Throckmorton Street
Fort Worth, Texas 75102
Martha Peters, VP—Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 75107
Tina McIntire
4520 Almena Road
Fort Worth, Texas 75114
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
:agreement feet"een the ('It,, of'Fort Worth and Page 27 ot'3?
'I-Ina McIntire for Design of,an Artwork to
Commemorate I lalel f lar\e\ Peace
IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH ARTIST
by:
Fernando Costa Tina Intire
Assistant City Manager Individual
APPROVED AS TO FORM:
Tyler lath
Assis4 t 001ty Attorney
ATTESTED BY. yy
0 0
c 0
Mart y Hendrix -°,' a"#
�
City Secretary � 0
00 00*0000 a�
a '"
�
•�
Contract Authorization: No M&C Required
>> r S�
� rt�i���nt I3�t��een the t'it� c�t�I cart 1]�c�rth a11cI
I ina McIntire for I)esign cat:an Art\,wrk to
Commemorate Haze] I IarN eN Peace
� i
Exhibit A: The Site
Hazel Harvey Peace Center for Neighborhoods
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Agreement BeiN,%een the OIN, of'I=ort 'A orth and Page ?y ol'3Z
I'M McIntire tt)r Design ofan Arty%ork to
Commemorate Hazel l•lary e%. Peace
Exhibit B: Budget
.� � � : " -
,..
_ -
;,
x.;
ARTISTS FEE(15%)
TRAVEL
(For artists wft live more there 50 miles from Fort Worthy
Airfam
Czar Rental
Per Diem Expenses at$per day
Mileage at _par mile
INSURANCE
AutclHire d Vehicle LWAfty
Cenmt Uabitity for Artist/&ibomtracton
Workers Camp./Employers Liabdity
Other,as appllcaNe
ADMIMSTRATIVE EXPENSES
Phone/Fax
Delivery/Shipp"(hx cor reVondence,samples,morels.drawings etc)
Reprographic Sesroce
plies
PROFESSIONAL CONSULTANT FEES
(If aspplicable..drawing must"signed end seated by a professeriraaal registered to practice
in the State of Texas)
Arch ilect-'
Structural Engineer'
Electneal Ergineer"
Owserystoro
Photographer(.for docurroen€xatm 0 completed work)*
Other*,
MATERIALS
(Ptease Mach a oorroete•list of materials.fterNze all anticipated aspen's and
components with per unR cost estlmatesl
Mateft ls'Total
FABRICATION COST3
€"iide and itemize all portions of subcontracted worts and warts to be com:Oe to d by
artist.)
Artist's tabor i boors at$per hoe.€tf Total
Subcontracted LsbW(Total)
Faacil*y/Eauipment Rental(used exchasfy*y for this project)related to fabocabon
MITE PREPARATION
(Do not mclude costs c"ed tyy FWPA.Ctty of Fort Waeth or others)
Test D lift"
Removal"
L.andscapingA rrigation"
Electrical Modif cations"
Water WorkA4echenicai D"ces
otheta
(Revered Me y 201 r)
Agree meet Be'tkti e'en the Ot\ «t'l-ort \k orth and Page 30 of 32
]net McIntire for Design (fl:an !1mkork to
t omIneniorate Hazel f far'e�, Peace
■
TRANSPORTATION
Materials to FeWcativn Site"
Finished Work to Installation Site'
Other*
8ASOMOUNTtNG
Base
Mounting Uerftes and Components
FoundationlFooting
Other
INSTALLATION COSTS
(Costs must include alk wancet for miter hours tnstalfation,if appicaNe.Please attach a
complete list of eq;ipment and InclMdual estimates with this km)
Subs wtracted Labor"
Scaffolcing*
Equipment Re ntal related to instaMhon'
Off-duty Poticemecur tyx
Traffic BaiMors"
Storage Path yy Re*ntav
City Permas
Dsplwy Devices
Fireprodinv
Ue Restoration*
Other*
LIGHTING
Desfgnem'
Fixtures'
Bulb.V
site Preparation-
Installation"
GRAND TOTAL
Please make any necessary notes here:
Prepmed By;
Date:
(Revised AUy 2p#t)
Agreement Bet\,k een the('11-\ ()1'F urt Worth and Page 31 ot'3?
i ina McIntire tt}r Design ot'an Art"ork tc>'
C onlmemurate E la/el I tarp e\ Peace
■
Exhibit C: Sales Tax Exemption
TFAAZIiC.LRII.FI CATE OF EX-L'_MPTION
1 8._1411111 M eAr-11111ti.011 fin -r the I)LITCha-SC(If IaXJbIC itictus d n-
Ar.PAY11tem.f'O'Nale-S and U-Ne taus,tO c sc
heli)v&or on Ow,attached(mlc-T o-r invoice,
Dek,tipfion of Items(.or an attacW icttder or Invvice)To Bc Pmhased,.-
...............___..................
I claim fli-Is cumptiort for the fullowi .9 rM
Name of Exmix-Organizatnkm_- CITY OF FORT NV TM,I*E.VtS
TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-6000.52":
PMjW for which inatmals arW mipplies are purchwed:
I undvmtand-that I will be liable-fiwpa)Tncnt off`sales tax,Nvh'.c.h may becorne i II we U)cmn I
due furfai py
with the provisions of the state,city,andi'or m,ctropolitw 1 transit auth(vi-ty lcs and use tax laws and
comptrufler rules regarding exempt purchases. Llabdlq!for the to will be dctrrm-.Ined.hy the pri*e paid
tbr the taxable it mu purrs h m cd or the fair market rental val kw for the pefikA-of lime used,
I widerstand that it is a tu:Wemearwr to
give an an mption ceni fi cate to tho w. 1 ter for taxable itms which
VkAaw,at dw.firne of the ptwhase,.will be.usdd in a manner other-thai)that expcnscd in this cc.-o- i ficate
and,upon miviction.ma%s be firscd up to S500 M offense.
Pureh&scrl: CITV Of FORT WORTH,,TUXAS
Street Addrvs.A-_ jwonmoc"iORTON ST"ET
clfy.state Zip Cude FO T WORTH.TEXAS 76102
iL
Sign Hcrc-A
Dam e. Ju
rhis C(Ttkfilalv d 4,N-661 require a numhcT trF be valid, Sales and use tax-exon.11,4ion numbers"c)r-lax
k -
exeturd-numhers do norcxist,
'UhIs cenifiewshoWd be hkmished to the supplivo.Di.ruts said thr�mmpklcd"',vificatv to the
Corn rtrol I er cif Puhl k�A;�cotmts,
Agrcement Bee ccn the('It\ ofFort \k orth i1nd Page 32 (432
1 Ma McIntire 1'()r Design ol:an Armork to
Commemorate I[a/el I lar�-e� Peace