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HomeMy WebLinkAboutContract 37311 '>0NT1F`1;^;CT NO AGREEMENT FOR FINAL DESIGN AND COMMISSION OF PUBLIC ART WORK AGREEMENT BETWEEN THE CITY OF FORT WORTH AND DEVON NOWLIN This Agreement, entered into this day of , 2008,by and between the CITY OF FORT WORTH, a home rule municipal core ration of the State of Texas (the "City"), acting by and through Charles Daniels, its duly authorized Assistant City Manager and DEVON NOWLIN, an individual (the "Artist") of 228 Nursery Lane, Fort Worth, TX 76114. The City has designated the ARTS COUNCIL OF FORT WORTH & TARRANT COUNTY, Inc., (the "Contract Manager") to manage this AGREEMENT on its behalf. The Contract Manager shall act through Anne Allen, its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order 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; and, WHEREAS, allocated from the 2004 Capital Improvement Program (CIP) as part of the Long-Range Public Art Plan for the 2004 CIP approved by the City Council on May 17, 2005, are funds for the design and placement of works of art at, in or near Chickering Road in Council District 3 (Proposition 1); and, WHEREAS, the City of Fort Worth is making street improvements to the blocks of Chickering Road between Stonedale and Angus Streets in southwest Fort Worth, TX, 76116, more particularly described in Exhibit "A" hereto (the "Site"); and, WHEREAS, the Artist was selected by the City through a selection process conducted by the Contract Manager with oversight of the Fort Worth Art Commission to design, fabricate and install a two-dimensional work of art incorporating stylized blades of grass and the street name, to be fabricated in mosaic tile and installed in up to two curb locations at the Site (the "Work"); and, 1 WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed in order 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 SCOPE OF SERVICES 1.1. General. a. The Artist shall perform all design services and select a qualified, experienced fabricator who will furnish all supplies, materials, and equipment as necessary for the execution, fabrication, transportation and installation of the Work at the Site, as set forth in Section 1.4. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. The Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site in which the Work shall be installed has been mutually agreed upon by the City, the community, and the Artist, but shall generally be located at the southwest corner with Angus Drive and the northeast corner with Stonedale Road. C. The Artist shall provide a Fabrication and Installation Budget, as defined in Section 2.1," with detailed calculation and/or written estimates for a total not to exceed $3,100. d. Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the sculpture from said conservator to the Contract Manager. e. The Artist shall install the Work on dates and at times mutually agreed upon by the Artist and the City. 2 w 1.2. Proposal Selection. a. City and Artist acknowledge that the Artist's conceptual design (the "Proposal"), attached hereto as Exhibit "B," has been reviewed and approved by the Fort Worth Art Commission as the basis for executing this Agreement with the Artist. 1.3. Execution of the Work. a. Upon execution of this Agreement, Artist shall promptly furnish to the City a schedule for the completion of the fabrication of the Work, including a schedule for the submission of progress reports, if any. After written approval of the schedule by the City, the Artist shall oversee work in collaboration with the fabricator who will fabricate, transport and install the Work in accordance with such schedule. Schedule changes may be accomplished by written agreement between the Artist and the City. b. The City shall have the right to review the Work at reasonable times during its fabrication. Artist shall, upon written request by City, provide City with 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. C. The Artist shall complete the fabrication of the Work in substantial conformity with the Proposal, with the exception that the street name of"Piedmont" in the original proposal shall be changed to "Chickering Road" in the final design. That change notwithstanding, Artist may present to the City, in writing for further review and approval, any significant changes in the scope, design, color, size, material, or texture of the Work not in substantial conformity with the Proposal. The Contract Manager shall, in light of the Proposal, determine whether a significant change requires City approval. d. Artist shall provide the Proposal and/or final design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive. 1.4. Delivery and Installation. a. The Artist shall notify the City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. b. The Artist shall deliver and install the completed Work at the Site in compliance with the schedule approved pursuant to Section 1.4; provided, however, that delivery and installation 3 activities may not commence until written permission is delivered to the Artist by the Contract Manager. C. City shall be responsible for labor and equipment or costs associated therewith to create leave-outs in the curb at the Site where the work will be installed. d. The Artist shall be responsible for labor and equipment and all costs associated therewith to prepare the leave-outs at the Site for the installation of the Work. e. The Artist shall be responsible for labor and equipment and all costs associated therewith to install the Work into the leave-outs at the Site. f. The Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of adjacent street surfaces while delivering and installing the Work. The Artist shall repair any damage to the street due to her negligence or the negligence of her subcontractors. g. Prior to installation of the Work, Artist shall provide to City written instructions for appropriate maintenance and preservation of the Work. 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 design phase for the Work. 1.5. Post-installation. a. Within thirty (30) days after the installation of the Work, Artist shall furnish City with an original set of high resolution digital photographs showing Work from at least 3 points of view, as selected by Contract Manager to document the project after the Work is installed. b. The Artist shall be available at such time or times as may be agreed between the City and the Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to the City. The 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 the City and the Artist as soon as practicable following installation. 1.6. Final Acceptance. a. The Artist shall advise the City in writing when all services required have been completed in substantial conformity with the Proposal. Included in such notice from the Artist 4 R shall be an affidavit certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. The City shall notify the Artist in writing of its final acceptance of the Work ("Final Acceptance"). C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of the City's notification of Final Acceptance; or, (2) the 35th day after the Artist has sent the written notice to the City required under Section 1.6.a unless the City, upon receipt of such notice and prior to the expiration of the 35-day period, gives the Artist written notice specifying and describing the services which have not been completed. 1.7. Risk of Loss The risk of loss or damage to the Work shall be borne by the Artist prior to Final Acceptance, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including but not limited to the purchase of property loss insurance; except that the risk of loss or damage shall be borne by the City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of the City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. a. The City shall pay the Artist a fee consisting of (a) an Artist Design Fee (hereinafter defined) and (b) a Fabrication Fee (hereinafter defined). Collectively, the Artist Design Fee and the Fabrication Fee shall not exceed FOUR THOUSAND ONE HUNDRED DOLLARS AND NO CENTS ($4,100.00) (collectively, the "Total Fee") which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement, inclusive of execution, fabrication, transportation, installation, insurance, incidental costs, conceptual design, final design, oversight of fabrication and installation, and all travel expenses. b. The "Artist Design Fee" shall be a fixed fee of ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) and shall constitute full compensation for all services and materials to 5 be performed and furnished by the Artist under this Agreement, but excluding fabrication costs. Upon submission of a schedule of completion for the Work to the City as required in Section 1.3.a, City shall pay to Artist fifty percent (50%) of the Artist Design Fee. The remaining fifty percent (50%) of the Artist Design Fee shall be paid to Artist upon substantial completion of fabrication. C. The "Fabrication Fee" shall be the total amount paid to Artist for the cost of fabricating the Work, not to exceed THREE THOUSAND ONE HUNDRED DOLLARS AND NO CENTS ($3,100.00). Artist shall supply to City a fabrication and installation budget, on form attached hereto as Exhibit "C" ("Fabrication & Installation Budget"). City shall pay to Artist for payment to Artist's fabrication and installation subcontractor fifty percent (50%) of the total Fabrication & Installation Budget upon submittal to City of copies of the agreements between Artist and her mosaic fabrication subcontractors. Upon completion of the fabrication and installation, Artist shall submit to City a detailed invoice with the total remaining balance owed to Artist's subcontractors for fabrication and installation of the Work. Upon receipt of the invoice and substantial completion of fabrication, City shall pay to Artist the amount of the invoice, provided the total amount paid to Artist does not exceed the Total Fee. 2.2. Sales Taxes. The 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 Sales Tax and Local Sales Tax Exemption Certificate," for use by Artist in the fulfillment of this Agreement. 2.3. 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 insurance on submissions to the City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM AND TERMINATION 6 3.1 Term. This Agreement shall be in effect from the date stated in the first paragraph of this Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 3.2. 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. 3.3. Termination for Cause. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this Agreement shall terminate. 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. 3.4. 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) days before termination. The notice shall specify whether the termination is for convenience or cause. 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 Artist pursuant to this Agreement prior to termination. 7 , r 3.5. 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 design have been approved or if Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 3.6, 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. ARTICLE 4 REPRODUCTION RIGHTS 4.1. General. a. Upon payment in full to Artist, Artist's Final Design and all other work products under this Agreement shall become the property of the City, without restriction on future use. Except as provided below, Artist may retain copyright and other intellectual property rights in and to the Final Design. By execution of this Agreement, Artist grants to the City a perpetual, irrevocable license to graphically depict or display the Final Design and Work for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of the Final Design or Work intended to promote or benefit the 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 the City, shall be deemed a non-commercial purpose. b. The City shall take title to all documents and/or drawings, which constitute or are components of the Preliminary Proposal and the Final Design, upon final approval of the 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 this Preliminary Proposal and Final Design, except as those rights are limited by this Agreement. The City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Preliminary 8 Proposal Final Design and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Final Design or Work for marketing and promotional purposes in connection with the Artist's business, provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible. 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. 4.2. Artist's Address.The Artist shall notify the City of changes in the Artist's address set forth in Article 10. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce these provisions that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. ARTICLE 5 WARRANTIES 5.1 Warranties of Title. The Artist represents and warrants that: (a) The Work shall be the original product of the Artist's sole creative efforts. (b) The Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; (c) Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Work or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; (d) Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; (e) All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence; 9 (F) ARTIST SHALL ASSUME THE DEFENSE OF, AND INDEMNIFY AND HOLD HARMLESS, THE CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, ACTIONS OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF THE CITY'S USE OR POSSESSION OF THE FINAL DESIGN BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. THIS SECTION 5.1(F) SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. ARTICLE 6 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. The 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 the City and the Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between the City and the Artist. ARTICLE 7 INDEMNIFICATION (a) ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS,AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS 10 AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS,AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. (b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM 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. (d) All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. 11 ARTICLE 8 MISCELLANEOUS 8.1. Compliance. The Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of the Artist's services under this Agreement. 8.2. 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. 8.3. 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. 8.4. 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. 8.5. Governiniz 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. 8.6. 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 the City and the Artist and their respective successors and permitted assigns. 12 8.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and the Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 8.8 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. 8.9. 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 which 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 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. 8.10. 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. 8.11. Fiscal Funding Out. If for any reason, at any time during any term of this Agreement, the 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 the City to the 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. 13 8.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 8.13 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 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 8.13 shall survive expiration or earlier termination of this Agreement. ARTICLE 9 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, or familial status. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their race, color, religion, sex, sexual orientation and national origin. 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 apprenticeship. b. Artist shall state in all solicitation or advertisements for employment placed by or on behalf of Artist that all qualified applicants shall receive consideration for employment without regard to age, disability, race, color, religion, sex, sexual orientation, national origin, or familial status. 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. 14 d. In the event of Artist's 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 10 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: Charles Daniels, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 2. ARTIST Devon Nowlin 228 Nursery Lane Fort Worth, TX 76114 [SIGNATURES APPEAR ON FOLLOWING PAGE.] 15 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the latest date below. CITY OF FORT WORTH Ad C16xljs Daniels Assistant City Manager Date: ARTIST Devon Nowlin Date: 7 ,710'e AP OVED S,TO FORM: ATTESTED BY: Leann Guzman Marty Hendrix Assistant City Attorney City Secretary Date: Date: [Note: M&C not required.] Exhibit A: Site Chickering Road Chickering at Stonedale 17 Exhibit B: Proposal n i 3 �{ Y A . t I Y I�.�, f Current Proposal: Adapted from original proposal so as to read "Chickering Road" Original Proposal: As developed for Piedmont and other curb enhancements 18 Exhibit C: Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs(no lump sums)for all items designated with an asterisk('). FIXED ARTIST'S FEE ($1,000 This Project) $ 1,000.00 TRAVEL For artists who live more than 50 miles from Fort Worth Airfare Car Rental Per Diem Expenses at$_per day Mileage at$ per mile INSURANCE HAT THIS MAY BE HANDLED BY ARTIST'S CONTRACTOR Auto/Hired Vehicle Liability General Liability for Artist/Subcontractors Worker's Comp./Employers Liability Other,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping(for correspondence,samples,models,drawings etc Re ro ra hic Service Copyright Registration Supplies PROFESSIONAL CONSULTANT FEES (If applicable,drawing must be signed and sealed by a professional registered to practice in the State of Texas Architect* Structural Engineer* Electrical Engineer* Conservator' Photographer for documentation of completed work Other' 19 MATERIALS (Please attach a complete list of materials. Itemize all anticipated aspects and components with per unit cost estimates Materials`Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor hours at$_per hour Total Subcontracted Labor' Total Facility/Equipment Rental used exclusively for this project)related to fabrication SITE PREPARATION Do not include costs covered by FW PA,City of Fort Worth or others Test Drilling* Removal' Landscaping/irrigation Electrical Modifications* Water Work/Mechanical Devices Other* TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site* Other* BASE/MOUNTING Base Mounting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance for after hours installation,if applicable.Please attach a complete list of equipment and individual estimates with this form) Subcontracted Labor* Scaffolding* Equipment Rental related to installation' 20 Off-duty Police/Security' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing* Site Restoration' Other' LIGHTING Designers* Fixtures` Bulbs' Site Preparation* Installation` ARTIST HELD CONTINGENCY,10%OF IMPLEMENTATION FUNDS $ 310.00 GRAND TOTAL $ 4,100.00 Please make any necessary notes here: Prepared By: Date: Exhibit C: Budget Form 21 Exhibit D: 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 , 2008. Notary Public, State of Texas Print Name Commission Expires 22 Exhibit E: Sales Tax Exemption TEXAS CERTIFICATF.OF EXEMPTION I claim an exemption from payment of sales and use taxes for the purchase of taxable items described below or on the attached order or invoice. Description of Items(or an attached order or invoice)To Be Purchased: All Items I claim this exemption for the following reason: Name of exempt organization: City of Fort Worth Texas Sales and Use Tax Permit Number 1-75-6000528-6 Project for which materials and supplies are purchased: I understand that I will be liable for payment of sales tax,which may become due for failure to comply with the provisions of the state, city, and/or metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value for the period of time used I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which I know,at the time of the purchase,will be used in a manner other than that expensed in this certificate and,upon conviction,may be fined up to$500 per offense Tax Exempt Status Due to Being a Governmental Entity Purchaser: City of Fort Worth Street Address: 1000 Throckmorton Sheet City,State,Zip Code: Fort Worth Texas 76102 Sign Here: ) to Date: 02/07/2007 Phone: (817)392-8325 'M it Gray-Rohl, *Cant M...bimw This certificate does not require a number to be valid Sales and use tax "exemption numbers"or"tax exempt'numbers do not exist. This certificate should be furnished to the supplier Do not send the completed certificate to the Comptroller of Public Accounts 23 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist and/or Artist's Subcontractors will provide the following insurance requirements. 1. 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. If Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Commercial General Liability Insurance, however Artist's Subcontractor shall provide Commercial General Liability Insurance which shall name the Artist, and The City of Fort Worth as additional insured. 2. 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. The policy shall name the City of Fort Worth as additional insured. 3. For Artists and/or Artist's Subcontractors who have employees: Workers' Compensation 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 This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. 24 Exhibit F: Insurance Requirements Exhibit F: Insurance Requirements GENERAL POLICY REQUIREMENTS • The City of Fort Worth shall be named as an Additional Insured. Exception: The additional insured requirement does not apply to Workers' Compensation policies. • Thirty(30) days notice of cancellation or non-renewal. Example: "This insurance shall not be cancelled or non-renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-payment of premium. • Waiver of rights of recovery (subrogation) 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. Except for workers' compensation, 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." If coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. • The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 the City's Risk Manager. • The 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 the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party 25 to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. • The 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. 26 Exhibit F: Insurance Requirements Exhibit G: 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: 27 Fabricator (if other than artist) Exhibit G: Technical and Maintenance Record 28 Exhibit G: Technical and Maintenance Record 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, grafitti, etc. Please list vendors and contact information and provide all product information): Exhibit G: Technical and Maintenance Record 29 Exhibit G: Technical and Maintenance Record Pedestals, Foundations & Footings, Mounting and Attachment Applications (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: 30 Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Exhibit G: Technical and Maintenance Record Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. The 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.) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. The 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. 31 Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Exhibit G: Technical and Maintenance Record 32 Exhibit G: Technical and Maintenance Record 33