HomeMy WebLinkAboutContract 49290 �`1 2 3 4jss
CITY SECRETARY
CONTRACT NO. C�
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JUL 2 2011 REEMENT BETWEEN THE CITY OF FORT WORTH AND
o cln OF Foa "` S PIERCE FOR FINAL DESIGN OF PUBLIC ART FOR THE
crrvsFcRF FORT WORTH COMMUNITY ARTS CENTER
This Agreement is entered into 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 Kris Pierce, an individual, residing at 2713 5"' Avenue, Fort Worth, Texas 76110. City has
designated the Arts Council of Fort Worth and Tarrant County, Inc., ("Arts Council") to manage this
Agreement on its behalf. The Contract Manager shall act through its designated public art collection 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,the City leases the Fort Worth Community Arts Center("FWCAC")building located at
1300 Gendy Street, Fort Worth, 76107 to the Arts Council in order to provide arts programming to the
community, including exhibitions of artwork;
WHEREAS,on October 27,2015,City Council approved the Fort Worth Public Art Fiscal Year 2016
Annual Work Plan with a budget of up to $50,000.00 in 2%public art funds from the 2004 Bond Program,
Proposition 1,to commission an artist to design,fabricate and install permanent plinths on the grounds of the
FWCAC to facilitate a temporary works initiative as a"training opportunity for artists new to public art" as
recommended in the Fort Worth Public Art Master Plan and adopted by City Council on September 30,2003,
as M&C G-14087;
WHEREAS,the Arts Council oversaw an artist selection process in accordance with the project outline
and the guidelines in the Fort Worth Public Art Master Plan; and on March 22, 2017, the Fort Worth Art
Commission ("FWAC") approved the selection panel's recommendation of Kris Pierce for the project, and
recommended that the Artist be retained for final design of an artwork for the Site based on his proposal; 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 Orth below:
OFFICIAL RECORD
CITY SECRETARY
WORTH,TX
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 ,_.
1.1. Agreement—Means and includes this Agreement between the City of Fort Worth and Kris
Pierce for Final Design of Public Art for the Site.
1.2. Artist— Means and includes Kris Pierce and/or his heirs, executors, administrators, legal
representatives,successors,agents,subartists,contractors and assigns.
1.3. Artwork Design —Means and includes the Design Proposal and Final Design of the Work;
which is defined in 1.3.a.and 1.3.b.below.
1.3.a. Design Proposal—Means all preliminary drawings, sketches, narrative descriptions,
budget estimates,and the like that are created by Artist in connection with the prior agreement
between Artist and the Arts Council 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 Design Proposal 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, and 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.
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 or 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,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 the Fort Worth Community Arts Center located at 1300 Gendy
Street, Fort Worth, 76107, which is more particularly described in Exhibit `B," attached hereto and
incorporated herein by reference for all purposes.
1.12. Work—Means and includes the finished object(s)of art and design that are the subject of this
Agreement,or any intermediary stage of completion of such work.
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ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that the Selection Panel's recommendation of the proposal submitted by
Kris Pierce, was approved by the FWAC on March 22, 2017, as the basis for executing this Agreement with
the Artist.
2.2 Scove of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Final Design of the Work and for providing the Final Design Deliverables. Services
shall be performed in a professional manner and in strict compliance with all terms and conditions in
this Agreement.
b. Upon beginning Final Design,Artist shall meet with community members,neighborhood associations,
local business owners and stakeholders for input on the proposed design.
c. 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.
d. Artist shall meet and coordinate with Arts Council staff, City staff, including Property Management
and others,as necessary,to integrate the Work into the Site in terms of structural support for the Work.
e. 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.
f. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City
and Artist.
g. 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
subsequent approval determination at dates and times mutually agreed upon.
h. For the duration of this Agreement,any publicity related to the Work at any stage under this Agreement
shall be coordinated through the Contract Manager. Artist should get the Contract Manager's consent,
in writing,prior to engaging in publicity for the Work.
2.3. Implementation Budget Total.
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 FIFTY
THOUSAND DOLLARS ($50,000.00.) eflecting total costs and inclusive of an artist fee of $7,500.00,,
materials,labor,fabrication,travel,transportation,construction,insurance,footings,installation,all associated
costs for the Work and a 10%contingency of$5,000.00; Artist shall provide a detailed budget,on the budget
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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 three (3) 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 to
City for approval. Final Design Deliverables shall consist of the following:
L Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution
digital format,such as JPEG or TIF files;
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 of the Work;
iii. A detailed final budget, on the budget form attached hereto as Exhibit"C," for final design and
implementation of the Work in an amount not to exceed FIFTY THOUSAND DOLLARS
($50,000.00), reflecting total costs and inclusive of an artist fee of$7,500.00, materials, labor,
fabrication, travel, transportation, construction, insurance, footings, installation, all associated
costs for the Work and a 10%contingency of$5,000.00;
iv. The detailed final budget will be for implementation of the Work through a possible artwork
commission contract with City.
V. 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.
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2.6. Final Design Review.
a. Artist shall present the Final Design to the FWAC for review and input at a regularly scheduled FWAC
meeting.
b. After presenting to the FWAC for initial input, Artist shall meet with the designated Project
Stakeholders, City staff, and other City boards or commissions and/or the Arts Council Board, as
appropriate,to present the Final Design,at a date and time mutually agreed upon, for input.
c. Upon completion and submission of the Final Design Deliverables and acceptance by Contract
Manager,Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled
FWAC 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.
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.
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ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall be in an amount of FIVE THOUSAND SIX
HUNDRED DOLLARS($5,600.00),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 and services
performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement
to allow for additional payment if additional services are required.
3.2. Payment Schedule.
City agrees to pay Artist in the following installments set forth below, each installment to represent
full and final,non-refundable payment for all services and materials provided prior to the due date thereof:
a. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00)upon execution of this Agreement.
b. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) days after Artist
submits the Final Design Deliverables as required under Article 2.5 of this Agreement and makes a
presentation of the Final Design to the FWAC.
C. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) days after the City
notifies the Artist of its approval of the Final Design.
d. City may pay Artist in an amount up to TWO THOUSAND SIX HUNDRED DOLLARS AND NO
CENTS ($2,600.00)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' Expenses.
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on
submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary
for the proper performance of the services required under this Agreement.
ARTICLE 4
TERM AND 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.
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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 termination. Termination of this Agreement
under this provision shall not relieve the party in default of any liability for damages resulting from a breach
or a violation of the terms of this Agreement.
4.4. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party,subject to written
notice submitted thirty(30)calendar days before termination,specifying the grounds for termination.
b. If 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 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, 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 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.
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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
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(60)calendar days of the date of receipt of the notice
of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the
authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies
Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing,
and shall request that the mediation commence not less than fifteen(15)or more than forty-five(45)calendar days
following the date of request,except upon Agreement of the Parties. In the event City and Artists are unable to
agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty.(30)calendar days
following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to
have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or
lawsuit arising under this Agreement shall be in Tarrant County,Texas. Any agreement reached in mediation shall
be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall
waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot
resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies
available under law regarding the dispute.(See Article 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Title.
Title to the Work,including,but not limited to,all documents,models and/or drawings that constitute
or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and
payment for the Work or pursuant to the applicable termination provision of this Agreement. These documents,
models and/or drawings will be retained for archival and exhibition purposes.Artist's Artwork Design,Work,
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and all other work products under this Agreement shall become the property of City, without restriction on
future use,except as provided below.
6.2. Copyright Ownership.
Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole
author of the Work for the duration of the copyright.
6.3. Reproduction Rifts.
a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant
permission to others to do so except with the express written permission of City. However, nothing
herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and
irrevocable license to graphically depict or publicly display the Artwork Design and Work for any
non-commercial purpose whatsoever.For purposes of this limitation,any graphic depiction or display
of the Artwork Design and/or the Work intended to promote or benefit City, its public services or its
public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above
limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's
absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify,
destroy, remove, move, replace, operate, maintain,transport, sell or transfer, in whole or in part, the
Work when City deems it necessary within its discretion,in order to otherwise exercise City's powers
and responsibility in regard to public works and improvements, in furtherance of City's operations or
for any other reason.
C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the
following form:V date,Artist's name."
d. Unless notified otherwise by City,Artist shall use Artist's best efforts in any public showing or resume
use of reproductions to give acknowledgment to City in substantially the following form: "an original
artwork commissioned by and in the public art collection of the City of Fort Worth,Texas."
e. Artist may,at Artist's expense,cause to be registered with the United States Register of Copyrights,a
copyright in the Work in Artist's name.
f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
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ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
a. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts.
b. Artwork Design and/or Work is and will be unique and original, and does not infringe upon any
copyright or the rights of any person;
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. Artwork Design and/or Work(or duplicate thereof)have not been accepted for sale elsewhere;
e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights
contained in this Agreement; and
f. 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.
ARTICLE 9
INDEMNIFICATION
9.1. GeneralIndemnity.
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, 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
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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 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 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 Property.
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws
and any other regulations,including,but not limited to,the assumption of any and all responsibilities for paying
royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no
obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations.
City specifically does not authorize, permit, or condone the.reproduction or use of copyrighted materials by
Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER
AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, 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 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.
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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 the 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 the 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.
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
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 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.
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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 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.
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 for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 13 of 23
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 City to fulfill its obligations under this Agreement, 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 200 Texas Street,Fort
Worth,Texas or at another location in the City acceptable to both parties following reasonable advance notice
by the City and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its
subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form
as described in this Article 11.13.
11.14. Certified MWBE.
If applicable, Artist shall 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 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 for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 14 of 23
ARTICLE 12
NOTICES
All notices,requests,demands,and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or
receipt thereof,as the case may be, if delivered personally or sent by registered or certified mail,return receipt
requested,postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager
City Manager's Office
City of Fort Worth
200 Texas St.
Fort Worth,TX 76102
Copies to: Sarah Fullenwider,City Attorney
Office of the City Attorney
200 Texas St.,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
2. ARTIST: Kris Pierce
2713 5th Avenue
Fort Worth,Texas 76110
IN WITNESS HEREOF,the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH ARTIST
by: �G �-.L C � by:
Fernando Costa Kris Pierce
Assistant City Manager
CONTRACT COMPLIANCE MANAGER
By signing,I acknowledge that I am the person responsible
for thenitoring and administration of this contract,including
en ng all performance and reporting requirements.
r2Nawi�e: JennConn
Public
Art Collection Manager
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 15 of 23
APPROVED TO FORM AND LEGALITY:
Jessica San v ng
Assistant Ci
ttorney II
Form 1295: not required
ATTESTED BY•
�F.F....RT
� �
M Kaye U
City Secretary * c 2
No M&C Required S
I
OrFICIAL RECORD
CITY SECRETARY
p ,VVOR H,'TR
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 16 of 23
Exhibit A: Conceptual Design Proposal
Phase 3
Final Proposed Plinth Designs; 3 Forms in 3 locations. Cast concrete,finish to match Art Center's retaining walls.
1 1 14W'SurhmAlY O E�A.9ula�NM O 4'a4'SuAwAM
`f 0000
FR
❑ FR
Based on Herbert Bayer's "universal alphabet", the plinth designs honor the architect's Bauhaus-informed
building. The principal designer of the original Fort Worth Art Center(now the Fort Worth Community Art
Center), Bayer eschewed the Modernist tenets of balance and functionality that drove the world renowned
architecture seen in the cultural district today. Made of cast concrete and finished to complement the retaining
walls of the Arts Center, each shape takes advantage of repetition, reduction and redaction of Bayer's font
design.An integrated unistrut mounting system will allow artworks to attach to each plinth.
The plinths will allow the Arts Center to expand its exhibition programing and provide professional experience
and extend public art opportunities to local and regional artists through a temporary outdoor sculpture
exhibition program administered by the Fort Worth Arts Council.
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 17 of 23
Exhibit B: Site
• t
P�1t>Mter�h dew � �
d ;
eiwny wchitch".pw"Wwnt
:c!t4 ure snd overo l signtk,ea. a" ,
�RF
Fort Worth Community Arts Center, 1300 Gendy Street,76107 (Council District 7)
(Specific locations at the Site subject to change)
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 18 of 23
Exhibit C: Budget
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs(no hxnp sums)for all items designated with an asterisk(').Cost increases must
also have a written estimate attached.
ARTISTS FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rel
Per Diem Expenses at: per day
Mileage at S_a per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist!Subcontractors
Worker's Comp.t Employer's 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)*
Other'
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 wok and wok to be completed by
artist.)
Artist's Labor(m- .fours 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 FWPA,City of Fort Worth or others)
Test Drilling'
Removal'
Landscaping/lnigation'
Electrical Modifications`
Water Work/Mechanical Devices
Other'
(Revised May 2091)
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 19 of 23
TRANSPORTATION
Materials to Fabrication Site*
Finished Work to Installation-+Ae`
Other'
BASEIM O UN71 NG
Base
Mounting Devices and Components
Foundation/Footing
Other
INSTALLATION COSTS
(Costs must Include allowance For after hours installation,If appRimble.Please attach a
complete list of equipment and individual estimates with this form)
Subcontracted Labor'
Scaffolding*
Equipment Rental related to Installation'
Off-duty Pok WSecu W
Traffic Barriers*
Storage Facility Rental'
City Permits
Display Devices
Fireproofing'
Site Restoration*
O1hW
LIGHTING
Designers'
Fbdues'
Bulbs"
Site Pmpvation-
Installation'
GRAND TOTAL
Please make any necessary notes here:
Prepared By:
Date.
(Revised May 2011)
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 20 of 23
Exhibit D: Insurance Requirements
PUBLIC ART PROJECTS-INSURANCE REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication,
transportation, and/or installation of the Work,then Artist shall also require his/her subcontractor(s)to abide
by all of the following insurance requirements.
Commercial General Liability(CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent contractors,
products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an
occurrence basis, and be as comprehensive as the current Insurance Services Office(ISO)policy.The policy
shall name City as an additional insured.
Bailee's/Property(if applicable)
The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest
appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care,
custody,and control and shall include property"in transit."
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
A commercial business policy shall provide coverage on"Any Auto," defined as autos owned,hired and non-
owned.
For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease-per each employee
$500,000 Bodily Injury/Disease-policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas
workers' Compensation Act(Art. 8308— 1.01 et seq. Tex.Rev.Civ. Stat.).
Agreement for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 21 of 23
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 for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 22 of 23
Exhibit E: Sales Tax Exemption
TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION
Nero of purC 3W.atm C apenry
City of Fort Worth,Texas
Adamas(Street s rustler.P.O.ear or Route number) Pham(Arse code and NMW
200 Texas Street 817-3924360
cry,wase,zw coda
Fort Worth,Texas 76102
I,the purchaser named above,claim an exemption from payment of sales and use taxes(tor the purchase of taxable
items described below or on the attached order or invoice)from:
Seller: A8 tfesrdOrrr ,
Street address: ^_ Ctpl,State,ZIP code:
Description of items to be purchased or on the attached order or invoice:
All items except motor vehicles as listed below
Maser claims this exemption for the foN wkV reason:
Municipality,Governmental Entity
I understand that I YA be Gable for payment of all state and local sales or use taxes which may become due for failure to comply willi
the provisions of the Tax Code and/or all applicable law.
I wxle dww dratitis o criminal offense to give an exompaw cardffcate to the selerfartaxabts darns that f imow,at the time ofleumhaae,
w9be used in a mannerodrarthan dfat expressedin lifts cerOmts,and depending on No ainowitoflax evaded.tris offense may rarfge
from a Class C misdemeanor to a lalony of Nue second degree.
.._ Purehaw Tire Dam-
here Finance Director/CFO January 3,2017
NOTE: Thio certificate cannot be issued for the purchase.boas,or rental of s motor vehicle.
THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VAUD.
Sales and Use Tax'Exemption Numbers'or'rax Exa W 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 for Final Design of Public Artwork with Kris Pierce Execution Copy 6/22/17 23 of 23
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
401VI 10W)vy, 4whI.-
Name of Employee/ gnatu
plvc
Title AXM CO 4W/L 6 IFP9 -40 WW
❑ This form is N/A as No City Funds are associated with this Contract
1
Printed Name Signature