HomeMy WebLinkAboutContract 47810 V
CITY SECttI,V
CONTRACT N0.16Lq&
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND SALLY WEBER
FOR FINAL DESIGN OF PUBLIC ART FOR PRECINCT LINE ROAD
This Agreement,entered into this day of 02sol' 20'i(1: by and
between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by
and through Fernando Costa, its duly authorized Assistant City Manager, and Sally Weber, an
individual, of 1406 D Smith Road, Austin, Texas 78721. The 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 the City's rich cultural and ethnic diversity,
to integrate the design work of artists into the development of the City's capital infrastructure
improvements and to promote tourism and economic vitality in the City through the artistic design
of public spaces;
WHEREAS, City of Fort Worth is designing and constructing an expansion of Precinct Line Road,
and the Texas Department of Transportation ("TxDOT") is replacing the Precinct Line Bridge that extends
north on Precinct Line Road from the intersection with Trinity Boulevard in Council District 5 to provide
better traffic flow and ease traffic congestion in northeast Fort Worth;
WHEREAS,earmarked in the Long Range Public Art Plan for the 2004 Bond Program(Proposition
1), adopted by the Fort Worth City Council on May 17, 2005 (M&C G-14801), are funds for public art for
the Precinct Line Road project;
WHEREAS,the Project is included in the Fiscal Year 2016 Annual Work Plan and Budget, adopted
by the Fort Worth City Council on October 27, 2015 (M&C C-27515) as part of the City's agreement with
the Contract Manager for administration of the public art program;
WHEREAS, City and Artist acknowledge that Artist's Preliminary Design (City Secretary
Contract 944355) was approved by the Fort Worth Art Commission (FWAC) on October 12, 2015,
as the basis for executing this Agreement with the Artist;
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WHEREAS,the FWAC has recommended that Artist be retained for final design of artwork
Work for the Site based on the approved Preliminary Design; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work
shall be designed;
NOW, THEREFORE, City and Artist for and in consideration of the covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below:
1.1. Agreement—Means and includes this agreement between the City and Artist for Final
Design of Public Art for the Site.
1.2.Artist—Means and includes Sally Weber.
1.3.Artwork Designs—Means and includes the Preliminary Design and Final Design of the
Work, which is defined in 1.3.a. and 1.3.b.below.
1.3.a. Preliminary Design — Means all preliminary drawings, sketches, 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, including, but not limited to, the design concept attached hereto as Exhibit
"A"and incorporated herein for all purposes.
1.3.b. Final Design—Means 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/or its officers, directors, employees.
1.5.City—Means and includes the City of Fort Worth, Texas.
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 are required for City's review and approval.
1.8.Parties—Means and includes City and Artist.
1.9. Project — Means and includes the capital improvement/public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
1.10.Project Stakeholders—Means and includes the appropriate City Council Member(s),and their
appointed community representatives and the Fort Worth Art Commission's appointed representative and
others as may be appropriate.
1.11. Site — Means and includes a traffic triangle at the southeast comer of the intersection of
Precinct Line Road and Trinity Boulevard, Fort Worth, Texas, which is more particularly described on the
map attached hereto as Exhibit"B"and made apart hereof for all purposes.
1.12. Work—Means and includes the finished objects of art and design that are the subject
of this Agreement, or any intermediary stage of completion of such works.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that Artist's Preliminary Design was approved by the FWAC on
October 12, 2015, as the basis for executing this Agreement with the Artist.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies and materials as necessary for
developing the Final Design of the Work and for providing the Final Design Deliverables.
Services shall be performed in a professional manner and in strict compliance with all terms
and conditions set forth in this Agreement.
b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the
Work, subject to review and input from Project Stakeholders and approval by City as set forth in this
Agreement.
C. Artist shall meet and coordinate with City staff, utilities and others, as necessary, to explore the
feasibility of integrating the Work into the Site in terms of structural support,lighting,electricity,or
other infrastructure needs to support the Work and to avoid existing easements.
d. Upon request of City, Artist shall consult with a qualified art conservator and shall provide
written maintenance recommendations for the Work from said conservator to the Contract
Manager.
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e. The location at the Site on which the Work shall be installed shall be mutually agreed upon
by City and Artist.
f. Artist shall present the Final Design to the appropriate City committee, City staff, Project
Stakeholders and other City boards or commissions, as appropriate, for input and to the
FWAC for review and approval at dates and times mutually agreed upon.
g. The Artist shall make a maximum of two (2) trips to Fort Worth, Texas for meetings and
presentations as indicated above. Additional trips, if required per this Article, may be
negotiated and agreed upon in writing by City and Artist.
2.3. Implementation Budget Total.
a. Artist shall develop a Final Design that is financially feasible relative to the budget for
implementation. It is understood that the total budget for implementation of the Final
Design is estimated to be EIGHTY FOUR THOUSAND, FOUR HUNDRED FIFTY-FIVE
DOLLARS AND NO CENTS ($84,455.00), which includes all costs for materials, labor,
fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, travel,
and all other associated costs for the Work. Artist shall provide a detailed budget, on the
budget form attached hereto as Exhibit "C," for implementation of the Work through a
possible artwork commission contract with City. The City's required insurance for
implementation is attached hereto as Exhibit "D," and such costs for maintaining the levels
of insurance outlined in Exhibit D shall be included in the Implementation Budget Total.
2.4. 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.
2.5. Final Design Deliverables.
a. Within four (4) months after the Effective Date, Artist shall provide services and all
supplies, materials, and equipment necessary to provide certain deliverables, as set forth in
this Article 2.5(a) to City for approval. Final Design Deliverables shall consist of the
following:
i. Detailed, design illustrations for the Work for the Site, which shall be in a high-
resolution digital format, such as JPEG or TIF files;
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ii. A final written narrative for the Work, describing the following: (1) Final Design
concept and timeline for completion; (2) Proposed materials, fabrication, and
installation methods for all elements of the Work, including information regarding
Artist's subcontractor(s), if any; (3) Maintenance requirements for all elements of 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 Work.
iii. Comprehensive working drawings, detailing the means of installing all elements of
the Work on the Site, together with other such graphic material 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. Artist will obtain and furnish to
Contract Manager certificates of professional liability insurance from each such
licensed professional and will require the City to be named as a "certificate holder"
entitled to notice of cancellation/nonrenewal in accordance with standard practices.
Artist shall not be liable for the use of the drawings submitted under this Article for
any use other than the Final Design.
iv. A final budget for the Work detailing what is included in the Work, with written
estimates attached for supplies and services to be provided by Artist, Artist's
subcontractor, or others in an amount not to exceed $84,455.00.
2.6. Design Review.
a. Upon completion of the Final Design Deliverables, Artist shall make a presentation of the
Final Design to the FWAC for review and input at a regularly scheduled meeting.
b. Artist shall then meet with the appropriate City committee, City staff, Project Stakeholders,
and other City boards or commissions, as appropriate, to present the Final Design at dates
and times mutually agreed upon for input.
c. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled
meeting.
d. City may require 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.
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e. City may also require Artist to make such revisions to the Final Design as City deems
necessary in its sole discretion.
f. Within thirty (30) calendar days of its receipt of Artist's submission of the Final Design,
City shall notify Artist of its approval, or disapproval, of such submission and of each
revision made in the Final Design. Revisions made pursuant to this Article 2.6, upon
approval by City, shall become part of the Final Design.
g. If the Final Design or any required revisions to the Final Design is disapproved by City,
Artist shall have thirty (30) calendar days to resubmit the Final Design in conformance with
City's requirements.
h. 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 Contract Manager to become part of City's Public Art archive. Upon the
expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is
accepted by City and funding is approved by the Fort Worth City Council, negotiations for
fabrication, delivery, and installation of the Work shall commence, and shall become part of
the deliverables under any possible 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.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed EIGHT THOUSAND TWO
HUNDRED FORTY-FIVE DOLLARS AND NO CENTS ($8,245.00), which shall constitute full
compensation for any and all costs associated with this Agreement, including, but not limited to,
artist's fee, engineering and consulting fees, all travel expenses and services performed and
materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to
allow for additional payment if additional services are required.
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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 THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($2,500.00)
upon execution of this Agreement.
b. ONE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($1,500.00)
within thirty(30) days after Artist submits the Final Design Deliverables as required
in under Article 2.5(a) of this Agreement and makes a presentation of the Final
Design to the FWAC.
C. ONE THOUSAND TWO HUNDRED FORTY-FIVE DOLLARS AND NO CENTS
($1,245.00) within thirty (30) calendar days after the City notifies the Artist of its
approval of the Final Design.
d. City may pay Artist for actual costs in an amount up to THREE THOUSAND DOLLARS
AND NO CENTS ($3,000.00) for engineering and consulting fees and a conservator's
consultation 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.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be
due upon the project. City shall supply Artist with the "Texas Certificate of Exemption" in
substantially the same form as that attached hereto as Exhibit"E"for use by Artist in the fulfillment
of this Agreement.
3.4. Artist's Expenses.
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and
insurance on submissions to City, cost of all travel, and costs for Artist's agents, engineers,
consultants, and/or employees necessary for the proper performance of the services required under
this Agreement.
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ARTICLE 4
TERM AND TERMINATION
4.1. Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to
such provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. Gratuities.
City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or
otherwise were offered or given by Artist or any agent or representative to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to the
awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
4.3. Termination for Cause.
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of
this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material 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 tennination. Termination of this Agreement under this provision shall not relieve the
party in default of any liability for damages resulting from a breach or a violation of the terms of
this Agreement.
4.4. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party,
subject to written notice submitted thirty (30) calendar days before termination, specifying
the grounds for termination.
b. If the termination is for the convenience of City, City shall pay Artist for services actually
rendered up to the effective date of termination, and Artist shall continue to provide the City
with services requested by City and in accordance with this Agreement up to the effective
date of termination. Upon Artist's receipt of payment in full of all monies due for services
provided up to the effective date of termination, City shall have the right at its discretion to
possession and transfer of title to the sketches, designs, and models already prepared and
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submitted or presented for submission to City by Artist under this Agreement prior to the
effective date of termination, provided that no right to fabricate or execute the Work shall
pass to City.
C. If termination is for the convenience of Artist, City may require Artist to 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 that Artist becomes incapable, legally or otherwise, of performing its duties
and/or obligations under this Agreement, City shall have the right to terminate this
Agreement on payment to Artist or Artist's successors for all work and services performed
prior to incapacity. All finished and unfinished drawings, sketches, photographs, models,
and any other work shall automatically 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.
ARTICLE 5
DISPUTE RESOLUTION
a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the Parties
shall first attempt to resolve these issues through this dispute resolution process. The disputing
party shall notify the other party in writing as soon as practicable after discovering the claim,
dispute, or breach. The notice shall state the nature of the dispute and list the party's specific
reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties
shall make a good faith effort, either through email, mail, phone conference, in person
meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in
question that may arise out of,or in connection with this Agreement.
b. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of
the notice of the dispute, then the Parties may submit the matter to non-binding mediation upon
written consent of the authorized representatives of both parties in accordance with Chapter
154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas
Government Code, then in effect. Request for mediation shall be in writing, and shall request
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that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar
days following the date of request, except upon Agreement of the Parties. In the event City and
Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed
mediator within thirty (30) calendar days following the date of the request for mediation, then
all the conditions precedent in this article shall be deemed to have occurred. The Parties shall
share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising
under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation
shall be enforceable as a settlement agreement in any court having jurisdiction. No provision
of this agreement shall waive any immunity or defense. No provision of this Agreement
constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then
either party shall have the right to exercise any and all remedies available under law regarding
the dispute. (See Article 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. General.
a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement,
the Artwork Design, Work, and all other work product under this Agreement shall become the
property of City, without restriction on future use, except as provided below. Artist shall retain
copyright and other intellectual property rights in and to the Artwork Design and Work. By
execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and
irrevocable license to graphically depict and publicly display the Artwork Design and Work for any
non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
display of the Artwork Design and Work intended to promote or benefit City, its public services or
its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City, shall be deemed a non-commercial purpose.
b. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant
permission to others to do so except with the express written permission of City. However, nothing
herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
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 Work, except as those rights are
limited by this Agreement. City may make and disseminate photographs, drawings, and other two-
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dimensional reproductions of the Artwork Design and Work 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: "0 date,Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and
Work for marketing and promotional purposes in connection with the Artist's business.
e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
6.2. Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such
failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to
enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City
shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Artwork Design and Work shall be the original product of the Artist's sole creative efforts.
ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any
copyright or the rights of any person;
iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Design and Work or any copyright related thereto that may affect or impair the
rights granted pursuant to this Agreement;
iv. Artwork Design and Work(or duplicate thereof)have not been accepted for sale elsewhere;
V. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement; and
vi. 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,
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agents, employees and subcontractors, and doctrine of respondent superior has no application as between
City and Artist.
ARTICLE 9
INDEMNIFICATION
9.1. General Indemnity.
a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD
HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY
AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS, CAUSES OF ACTION,LIENS,
LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS,
DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING,
BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT
LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND
PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED
TO,DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY
OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS,
OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS
AND THEIR RESPECTIVE OFFICERS,AGENTS,EMPLOYEES,DIRECTORS,MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS
AGREEMENT.
b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to
persons or property sustained or caused by Artist in connection with or incidental to performance
under this Agreement.
C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in
favor of City in substantially the same form as above.
9.2. Intellectual PropertL.
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
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AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE
OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT
VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of Artist.
ARTICLE 10
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin,
sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other
prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and
warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall
comply with all applicable laws and regulations in any employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be
debarred from further agreements with City.
ARTICLE 11
MISCELLANEOUS
11.1. Compliance.
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the
performance of Artist's services under this Agreement.
11.2. Entire 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 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.
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11.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the 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 Assigns.
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the
other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior
written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City
and Artist and their respective successors and permitted assigns.
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. 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.
11.9. Force Maieure.
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.
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.
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 14 of 25
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 City's intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
11.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
11.13. 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. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of
City in substantially the same form as described in this Article 11.13.
11.14.Certified MBE/WBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise
(MBE)or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by the City under the City's Business Diversity Enterprise Ordinance.
11.15. Survival Provision.
The provisions contained in Articles 4.5 (Incapacity of Artist), 6 (Ownership and Intellectual Property
Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification),
and 11.13(Right to Audit)shall survive the termination or expiration of this Agreement.
11.16. Counterparts and Electronic Signatures.
This Agreement may be executed in several counterparts, each of which will be deemed an original,but all
of which together will constitute one and the same instrument. A signature received via facsimile or
electronically via email shall be as legally binding for all purposes as an original signature.
11.17_ Time Extensions.
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in this Agreement.
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 15 of 25
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given upon
the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or
certified mail, return receipt requested,postage prepaid, as follows:
CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth,TX 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
1000 Throckmorton Street,Third Floor
Fort Worth, TX 76102
Martha Peters, Vice President of Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth, TX 76107
ARTIST Sally Weber
1406 D Smith Road
Austin,Texas 78721
IN WITNESS HEREOF,the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH ARTIST
by: _ by:
Fernando Costa y Weber
Assistant City Manager
APPROVED AS TO FORINTIJIL
AND LEG T Y:
91
Jessica Sang g
Assistant City ttomey
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 16 of 25
ATTESTED BY: f OR -
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No M&C Required
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 17 of 25
Exhibit A: Preliminary Design
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Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16
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Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 19 of 25
Exhibit B: The Site
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Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 20 of 25
Exhibit C: Budget
FORT WORTH PUBLIC ART PROJECT BtbaGET
r^x7e complete this form and attach a signed receipt or estimate complete with per unit
crises(no limp sums)for all items designated with an asterisk(')_Cost increases must
S10 have a written estimate attached.
ARTISTS FEE(20%)
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rerdel
Per Diem Expenses at S_per day
Mileage at t per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist/Subcontractors
Workers Camp./Employers Liability
Other,as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping(for correspondence,samples,models,drawings etc)
Reprographic Service
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)'
odw
MATERIALS
(Please attach a complete list of materials.Itemize all anticipated aspects and
components with per unit cost estimates)
Matenals'Total
FABRICATION COSTS
(I ckide and itemize all portions of subcontracted work and work to be completed by
artist)
Artists Labor(_hours at$_per hour)Total
Subcontracted Labor'(Tote!)
Facility/Equipment Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(bb not include costs covered by FWPA,City of Fort Worth or others)
Test Dn*W
Removal`
LaIldscapinatknuebort'
Electrical Modifications'
Water Work/Mechanical Devices
0"W
(Revised May 2011)
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 21 Of 25
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 installationif applicable Please attach a
complete list of equipment and individual estimates with this form)
Subcontracted Labor'
Scaffolding'
Equipment Rental related to installation'
Off-duty Police/Security'
Traffic Barriers'
Storage Facility Rental'
City Permits
Display Devices
Fireproofing'
Site Restoration'
Other'
LIGHTING
Designers'
Fixtures'
Bulbs'
Site Preparation'
Installation'
GRAND TOTAL
Please make any necessary notes here:
Prepared By:
Date:
(Revised May 2011)
Agreement between the City of Fort Worth and Sally Weber
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Exhibit D: Insurance Requirements
PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS
During the implementation phase for this Project, Artist shall meet all the following insurance requirements.
If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also
require his/her subcontractor(s)to abide by all of the following insurance requirements.
Commercial General Liability(CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent contractors,
products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an
occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO)policy. The policy
shall name City as an additional insured.
Bailee's/Property(if applicable)
The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest
appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care,
custody, and control and shall include property"in transit."
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and
non-owned.
For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease -per each employee
$500,000 Bodily Injury/Disease-policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas
workers' Compensation Act(Art. 8308— 1.01 et seq. Tex.Rev. Civ. Stat.).
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 23 of 25
GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers,
Employees and Volunteers as an "Additional Insured" on all liability policies. Exception... the additional
insured requirement does not apply to Workers' Compensation or Automobile policies.
Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any
insurance policy and may not change the terms and conditions of any policy that would limit the scope or
coverage, or otherwise alter or disallow coverage as required herein.
The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the
City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of
Texas. If the subcontractor is an international entity and carries insurance through an international
insurance company, then the subcontractor must obtain language on their certificate of insurance
confirming that its insurance policy extends coverage to operations in the United States. All insurers
must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably
equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below
that required,written approval of Risk Management is required.
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
for any differences is required. Excess Liability shall follow form of the primary coverage.
"Unless otherwise stated,all required insurance shall be written on an"occurrence basis."
The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to
and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and
stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance
pools or risk retention groups,must also approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable
adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon
changes in statutory law, court decision or the claims history of the industry as well as of the contracting
party to City of Fort Worth. City shall be required to provide prior notice of ninety days.
City shall be entitled, upon request and without expense, to receive copies of policies and endorsements
thereto and may make any reasonable requests for deletion or revision or modifications of particular policy
terms, conditions, limitations, or exclusions except where policy provisions are established by law or
regulations binding upon either of party or the underwriter on any such policies.
Agreement between the City of Fort Worth and Sally Weber
For Final Design of Public Art for Precinct Line Road Execution Copy 4/25/16 24 of 25
• s
Exhibit E: Sales Tax Exemption
par sons,
TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION
Nsme M purchaser.&m or waxy
C of Fat Worth,Texas—,---
--
raareas rsrrest s ,.v o Bin o.u7avle,n,mo.n rr�r+e(nnre We and ft-W
1000 Throckmorton Street 817-392-8360
Gly,State,21P coee
Fort Worth,Texas 76102
I,the purchaser named above,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)from:
Seller: All Vendors
Street address: _____________.___ City,State,ZIP code:
Description of items to be purchased or on the attached order or invoice:
All Items except motor vehicles as listed below
Purchaser claims this exemption for the following reason:
Municipality,Governmental Entity
I understand that i will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with
the provisions of the Tax Code and/or all applicable law.
I understand that it is a criminal offense to give an exemption certificate to the seller fortaxable items that I know,at the time ofpurchase,
will be used in a mantwotherthan that expmssed in this certificate,and depending on the amount of fax evaded,the offense may range
from a Class C misdemeanor to a felony of ft second degree
Purctre
hero Finance Director/CFO March 23,2015
NOTE: This certificate cannot be issued for the purchase,lease•or rental of a motor vehicle.
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
Agreement between the City of Fort Worth and Sally Weber
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