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AGREEMENT FOR FINAL DESIGN AND COMMISSION OF PUBLIC
ART WORK AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND MONTAGE 48/61
This Agreement, entered into this �\� `day of 2. , 2007,
by and between the CTTY OF FORT WORTH, a home rule municipal coiporation of the
State of Texas (the "City"), acting by and through Libby Watson, its duly authorized
Assistant City Manager and MONTAGE 48/61, a partnership between Charlotte Lindsey
and Lat7y Enge (the "Artist"). The City has designated the ARTS COUNCIL OF FORT
WORTH & TARRANT COUNTY, Inc., (the "Contract Manager") to manage this
AGREEMENT on its behalf. The Contract Manager shall act through Jennifer Lovvarn,
its designated Public Art Project Manager.
WHEREAS, funds for a public art project at Fire Station #11 located at 400 Grand
Ave, Fort Worth, TX, 76106 more particularly described in Exhibit "A" hereto (the
"Site"), have been allocated fi•om the 2004 Capital Improvement Program (CIP). On May
17, 2005, the City Council approved the Long-Range Public Art Pl�in for t1�e 2004 CIP,
in which Fu•e Station #11 was identified as one of the projects to receive (Proposition 4)
2004 CIP Public Art funds, for the design and placement of works of art at, or in said
Site; and,
WHEREAS, the Artist was selected by the City through a selection process
conducted through the Cont�act Manager and recommended by the Fort Worth A�•t
Commission to design an artwork composed of a graphic installation (the "Work") of tile
incoiporated into the fa�ade of the building at Fue Station #11; and,
WHEREAS, City and Ar�tist wish to set out the teims and conditions under which
said Work shall be designed in order to promote the integrity of Artist's ideas and
statements as represented by the Proposal.
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:
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ARTICLE 1
SCOPE OF SERVICES
1.1. General.
a. The Artist shall perform all design services and shall
furnish all supplies, materials, and equipment as necessary for the
transportation and installation of the Work at the Site, as set forth in
Section 1.4. Seivices shall be performed in a professional manner and in
strict compliance with all teims and conditions in this Agreement.
b. The Artist sha11 determine the artistic expression, scope,
design, color, size, material, and texture of the Work, subject to review
and acceptance by Ciry as set forth in this Agreement. The location at the
Site in which the Work shall be installed has been mutually agreed upon
by the City and the Artist.
c. The Artist shall present final design to City officials,
community stakeholdeis and Fort Worth Art Commission, as requued.
d. The Artist shall install the Work on dates and at times
mutually agreed upon by the Al�tist and the City.
e. The Artist shall participate in one public education event in
Fort Worth at a mutually agreed upon date and time.
1.2. Proposal Selection.
City and Artist acknowledge that the Artist's conceptual design (the
"Proposal"), attached hereto as Exhibit "B," has been reviewed and
approved by the Fort Worth Art Commission as the basis for executing
this Agreement with the Artist.
1.3 Execution of the Work
a. Upon execution of this Agreement, Artist shall promptly
furnish to the City a schedule for the completion of the fabrication of the
Work, including a schedule for the submission of progress reports, and
engineered drawings if requued. After written approval of the schedule by
the City, the Artist shall oversee the fabrication, t��ansportation and
installation of the Work in accordance with such schedule. Schedule
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changes may be accomplished by written agreement between the Artist
and the City.
b. The City shall have the right to review the Work at
reasonable times during its fabrication. Artist shall, upon written request
by City, provide City with a written progress repoi•t detailing the progress
made toward completion of the Work and the remainder of work to be
done to complete the Work.
c. The Artist shall complete the fabrication of the Work in
substantial conformity with the Proposal. However, Artist may present to
the City, in writing for further review and approval, any significant
changes in the scope, design, color, size, material, or texture of the Work
not in substantial conformity with the Proposal. The Contract Manager
shall, in light of the Proposal, determine whether a significant change
requires City approval.
d. Prior to installation of the Work, Artist shall provide to
City written inst�uctions for appropriate maintenance and preservation of
the Work. The appropriate maintenance and preservation instiuctions
shall not be substantially different from the maintenance and preservation
anticipated and conveyed to City for the Work in the design phase for the
Work.
1.4. Deliverv and Installation.
a. The Artist shall notify the City, tlu�ough its Contract
Manager, in writing when fabi7cation of the Work is completed and is
ready for its delivery and installation at the Site.
b. The Artist's fabricators shall deliver and install the
completed Work at the Site in compliance with the schedule approved
pursuant to Section 1.4; provided, however, that deliveiy and installation
activities may not commence until written permission is delivered to the
Artist by the Contract Manager.
c. City shall ensure that the site is prepared to an acceptable
standard such that the artwork can be seamlessly integrated.
d. Ciry shall provide two lighting elements which will
illuminate the artwork at night.
e. The Artist, individually and through its subcontractors,
including its fabricator, shall take all necessary precautions to protect and
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preserve the integrity and finish of the Site while deliver•ing the Work.
The Artist shall repair any damage to the Site due to delivery, or his
negligence or the negligence of his subcontractois.
f. Prior to installation of the Work, Artist shall provide to
City written instructions for appropriate maintenance and preservation of
the Work.
1.5. Post-installation.
a. Within thu•ry (30) days after the installation of the Work,
Artist shall furnish City with an original set of high resolution digital files
and jpegs showing Work fi•om at least two points of view, as selected by
Contract Manager to document the project after the Work is installed.
b. The Artist shall be available at such time or times as may
be agreed between the City and the Artist to attend any inauguration or
presentation ceremonies relating to the transfer of the Work to the City.
The City shall use its best efforts to airange for publicity for the completed
Work in such art publications and otherwise as may be determined
between the City and the Ai•tist as soon as practicable following
installation.
1.6. Final Acceptance.
a. The Artist shall advise the City in writing when all services
required have been completed in substantial conformity with the Proposal.
Included in such notice from the Artist shall be an affidavit certifying that
all bills relating to services or supplies used in the performance of this
Agreement have been paid.
b. The City shall notify the Artist in writing of its final
acceptance of the Work ("Final Acceptance").
c. Final Acceptance shall be effective as of the earlier to occur
of (1) the date of the City's notification of Fina1 Acceptance; or, (2) the
35th day after the Artist has sent the written notice to the City requu�ed
under Section 1.6.a unless the City, upon receipt of such notice and prior
to the expuation of the 35-day period, gives the Artist written notice
specifying and describing the services which have not been completed.
1.7. Risk of Loss
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The risk of loss or damage to the Work shall be boine by the Artist prior to Final
Acceptance, and the Artist shall take such measures as are necessary to protect the Work
from loss or damage until Fina1 Acceptance, including but not limited to the purchase of
property loss insurance; except that the risk of loss or damage shall be borne by the City
ptYor to Final Acceptance during such periods of time as the partially or wholly completed
Work is in the custody, control or supervision of the City or its agents for the puiposes of
moving, storing, or pei�forming any other ancillary services to the Work.
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
2.1. Fee.
The City shall pay the Artist a fee not to exceed FORTY SIX THOUSAND EIGHT
HUNDRED AND EIGHTY EIGHT DOLLARS AND NO CENTS ($46,880.00)
(collectivelv, the "Fee"), which shall constitute full compensation for all services and
materials to be performed and furnished by the Artist under this Agreement, inclusive of
final design, fabrication, delivery, installation, as•tist fee and associated costs.
(a) Fort�percent (40°Io) upon full execution of this Agreement and
upon submission of detailed estimates from the Artist's
subcontractors.
(b) Thut�percent (30%) upon presentation of final design to the Fort
Worth Art Commission.. �
(c) '1'went�percent (20�0) upon SO% fabricatiori.
(d) Ten percent (10%) within thirty-five (35) days after Final
Acceptance and receipt by City of such documentation it may
require concerning payment of services and supplied rendered to
the Artist [see Section 1.6 (a)]; provided, however, trat final
delivery shall not be tendered prior to the expiration of thirry (30)
days after Final Acceptance.
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2.2. Sales Taxes.
The City is a t�-exempt organization and no state or local sales t�es or federal excise
t�es shall be due upon the Project. The Ciry shall supply the Artist with the "Texas
Sales T� and Local Sales Tax Exemption Certificate," for use by Airtist in the fulfillment
of this Agreement.
2.3. A��tist's Expenses.
Artist shall be responsible for the payments of all expenses incuiY�ed during the
performance of this Agreement, including but not limited to seivices, materials,
mailing/shipping charges and insurance on submissions to the City, cost of all travel, and
costs for Artist's agents, consultants, and/or employees necessaiy for the proper
pei�foimance of the services requu�ed under this Agreement.
ARTICLE 3
TERM A.ND TIME OF PERFORMANCE
3 .1 Term.
This Agreement shall be in effect from the date stated in the first paragraph of this
Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement,
shall extend until final payment to Ai•tist by City, whichever is later.
3.2. Duration.
The services to be requu•ed of the Artist set forth in Article 1 shall be completed in
accordance with the schedule for completion of the Work as proposed by the A�•tist and
approved by the City pursuant to Section 1.3.a.; provided, however, such time limits may
be extended or otherwise modified by written agreement between the Artist and the Ciry.
3.3. Earlv Completion of Artist Services.
The Artist shall bear any t�ansportation and storage charges incuned from the completion
of his or her services prior to the time provided in the schedule for delivery.
3.4. Time Extensions; Force Majeure.
The City or the Artist, as appropriate, shall grant a reasonable extension of time to the
other party if conditions beyond the parties' cont�ol or Acts of God, flood, riot, civil
insutrection, labor strikes, or ordeis of local or federal government render timely
perfoi�rnance of the parties' services impossible or unexpectedly burdensome. The party
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suffering the impossibiliry or burdensome conditions must infoim the other in writing
within ten (10) days of the onset of such performance delay, specifying the reasons
therefore. Failure to fulfill contractual obligations due to conditions beyond either party's
reasonable conh•ol shall not be considered a breach of this Agreement; provided,
however, that such obligations shall be suspended only for the duration of such
conditions.
ARTICLE 4
WARRANTIES
4.1 Warranties of Title.
The Artist represents and wai7ants that:
(a) the Work shall be the original product of the Artist's sole creative efforts.
(b) the Work is and will be unique and original, and does not infringe upon any
copyright or the rights of any person;
(c) the Work (or duplicate thereo� has not been accepted for sale elsewhere;
(d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or
utilized the Work or any element thereof or any copyright related thereto
which may affect or impau• the rights granted pursuant to this Agreement;
(e) the Work is free and clear of any liens from any source whatsoever;
(� the Artist has the full power to enter into and pei�form this Agreement and to
make the grant of rights contained in this Agreement;
(g) all services pei�formed hereunder shall be pei�formed in accordance with all
applicable laws, regulations, ordinances, etc., and with all necessary care, skill
and diligence;
(h) the Artist shall assume the defense of, and INDEMNIFY AND HOLD
HARMLESS, THE CITY, ITS OFFICERS, EMPLOYEES, AGENTS,
AND CONTRACTORS FROM AND AGAINST ALL CLAIMS,
LOSSES, DAMAGES, ACTIONS OR EXPENSES OF EVERY TYPE
AND DESCRIPTION, INCLUDING ATTORNEY'S FEES, TO WHICH
THEY MAY BE SUBJECTED ARISING OUT OF THE CITY'S USE
OR POSSESSION OF THE WORK BY REASON OF AN ALLEGED
OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF
OWNERSHIP, AUTHORSHIP, OR ORIGINALITY.
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4.2 Warranties of Quality and Condition
(a) Artist represents and wa�Y�ants that all work will be performed in accordance
with professional "workmanlike" standards and free from defective or inferior
materials and workmanship (including any defects consisting of "inherent
vice," or qualities that cause or accelerate deterioration of the Work) for one
year after the date of Final Acceptance.
(b) Artist represents and wa�Y�ants that the Work and the materials used are not
currently known to be hatmful to public health and safety.
(c) If within one year City observes any breach of wai�anty described in this
Section 4.2 that is curable by the Artist, the Artist shall, at the request of the
City, cure the breach promptly, satisfactorily and consistent with professional
conservation standards, at no expense to City. City shall give notice to Artist
of such breach with reasonable promptness.
(d) If after one year City observes any breach of wa�7�anry described in this Section
4.2 that is curable by the Artist, City shall contact the Artist to make or
supervise repaus or restorations at a reasonable fee during Artist's lifetime.
Artist shall have the right of first refusal to make or supervise repaus or
restorations. Should A�•tist be unavailable or unwilling to accept reasonable
compensation under the indust�y standard, City may seek the services of a
qualified restorative conservator and maintenance expert.
(e) If within one year City observes any breach of wat�anty described in this
Section 4.2 that is not curable by the Artist, Artist is responsible for
reimbursing City for damages, expenses and loss incui7ed by City as a result
of the breach. However, if Artist disclosed the risk of this breach in the
Proposal and City accepted that it may occur, it shall not be deemed a breach
for puiposes of this Section 4.2.
(� Acceptable Standard of Display. Artist represents and warrants that:
i. General routine cleaning and repair of the Work and any associated
working parts and/or equipment will maintain the Work within an
acceptable standard of public display.
ii. Foreseeable exposure to the elements and general wear and tear will
cause the Work to experience only minor repauable damages and will
not cause the Work to fall below an acceptable standard of public
display.
iii. With general routine cleaning and repair, and within the context of
foreseeable exposure to the elements and general wear and tear, the
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Work will not experience ii-�eparable conditions that do not fall within
an acceptable standard of public display, including mold, iust,
fracturing, staining, chipping, tearing, abrading and peeling.
iv. Manufacturer's Watranties. To the extent the Work incoiporates
products covered by a manufacturer's wa�-�anty, A�•tist shall provide
copies of such warranties to City.
The foregoing wairanties are conditional, and shall be voided by the failure of
City to maintain the Work in accordance with Artist's specifications and the
applicable conservation standards. If City fails to maintain the Work in good
condition, Artist, in addition to other rights or remedies the Artist may have in
equity or at law, shall have the right to disown the Work as the Artist's creation
and request that all credits be removed from the Work and reproductions thereof
until the Work's condition is satisfactorily repaued.
4.3 These representations and wa17•anties shall survive the teimination or other
extinction of this Agreement.
ARTICLE 5
INSURANCE AND INDEMNITY
5.1. General.
The Artist shall cai7y insurance as set out in Exhibit "D".
Except as provided in Section 1.7 hereof, the risk of damage to or loss of the Work shall,
during fabrication and installation but prior to Final Acceptance, shall be solely that of the
Artist. This risk shall t��ansfer to the City and shall no longer be the responsibility of the
Artist upon Final Acceptance.
5.2. Performance Bonds
The Artist shall not be required by the City to post any performance bonds or similar
undertakings, and any requuement of any other authoi-iry for perfoi�rnance bonds shall be
the responsibility of the City.
5.3 Indemnitv.
(a) ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS,
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AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS OR SUTTS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF
OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR
THE OPERATIONS, ACTIVITIES AND SERVICES OF THE PROGRAM
DESCRIBED HEREIN, WHETHER OR NOT CAUSED, IN WHOLE OR IN
PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS OF CITY; AND
ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY
AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND
ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR
PERSONAL INJURY, INCLUDTNG DEATH, TO ANY AND ALL. PERSONS, OF
WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED,
ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF
THIS CONTRACT AND AGREEMENT AND/OR THE OPERATIONS,
ACTIVITIES AND SERVICES OF THE PROGRAMS DESCRIBED HEREIN,
WHETHER OR NOT CAUSED IN WHOLE OR IN PART, BY ALLEGED
NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS OR SUBCONTRACTORS OF CITY. ARTIST LIKEWISE
COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD
HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR
DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN
CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS,
MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES,
LICENSEES, OR PROGRAM PARTICII'ANTS, WHETHER OR NOT CAUSED
IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR
SUBCONTRACTORS OF CITY.
(b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL
LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR
PROPERTY SUSTAINED IN CONNECTION WITH OR 1NCIDENTAL TO
PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH,
DAMAGE OR LOSS IS CAUSED BY CITY'S SOLE OR CONCURRENT
NEGLIGENCE.
(c) Artist sha11 require all of its subcont�•actors to include in theu subcont�acts a
release and indemnity in favor of City in substantially the same form as above.
(d) This indemnification shall survive the termination or expiration of this
Agreement.
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ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Title.
Title to the Work, including all documents and/or drawings which constitute or are
components of the Preliminary Proposal and the Final Design, shall pass to City upon
Final Acceptance and payment for the Work. Artist shall provide City with a Transfer of
Title. These documents and/or drawings will be retained for archival and exhibition
puiposes. Artist's Final Design and all other work products under this Agreement shall
become the property of City, without res�-iction on future use, except as provided below.
6.2 Co�yright 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 Rights.
(a) In view of the intention that the final Work be unique, Artist shall not make
any additional exact duplicate reproductions of the final Work, nor shall Artist
grant permission to others to do so except with the express written permission
of City. However, nothing herein shall prevent the Artist from creating future
artworks in the Artist's manner and style of artistic expression.
(b) By execution of this Agreement, Artist grants to City a peipetual, ii-�evocable
license to graphically depict or display the Work for any non-commercial
puipose whatsoever; for purposes of this limitation, any graphic depiction or
display of the Work intended to promote or benefit City, its public sei•vices or
its public puiposes, 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 puipose. 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, dest�oy, 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.
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(c) All reproductions by City shall contain a credit to Artist and
a copyright notice substantially in the following form: " �O
date, Artist's name."
(d) 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 shall, at Artist's expense, cause to be registered with the United States
Register of Copyrights, a copyright in the Work in the Artist's name.
(f� City is not responsible for any thud party infringement of Artist's copyright
and not responsible for protecting the intellectual property rights of Artist.
ARTICLE 7
ARTIST'S RIGHTS
7.1. Identification.
The Cont�act Manager shall include credit to the Artist on the Fort Worth Public Art
website (www.fwpublica��t.or�) and a permanent plaque at the site.
7.2. Maintenance.
The City recognizes that maintenance of the Work on a regular basis is essential to the
integrity of the Work. The City shall reasonably assure that the Work is properly
maintained and protected, taking into account the maintenance inst�uctions provided by
Artist in accordance with Section 1.3 and Exhibit "E", Technical and Maintenance
Record.
7.3. Repairs and Restoration.
a. The City shall have the right to determine when and if
repairs and restorations to the Work will be made. During the Artist's
lifetime and to the extent practicable, the City shall give the Ai•tist the right
to approve all major repairs and restorations; provided, however, the Artist
shall not unreasonably withhold approval for any repair or restoration of
the Work. Should Artist urueasonably withhold approval of any intended
major repair or restoration, the City shall have the right to make such
repair or restoration. To the extent practicable, the Artist, during the
Artist's lifetime, shall be given the opportunity to make or personally
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supervise major repairs and restorations and shall be paid a reasonable fee
for any such services, provided that the City and the Artist shall agree in
writing, prior to commencement of any significant repaus and restorations,
upon tlie Artist's fee for such services. Should the Artist fail to agree to
make or supervise the repaus and restorations, the City shall have the right
to choose another entity or person to assist with the restoration and/or
repairs or make said repaiis by the City.
b. All repairs and restorations shall be made in accordance
with recognized principles of conseivation.
c. When emergency repairs are necessary in order to prevent
the loss of or further damage to the Work, such repairs shall be undertaken
or ai7anged by City without advance notice to Artist, and such repaus shall
not be deemed to constitute artistic alteration.
7.4. Alteration of the Work or of the Site.
a. In the event that the Work is incoiporated into a building,
stiucture or realry, the installation of the Work may subject it to
dest�-uction, distortion, mutilation or other modification by reason of its
removal. If removal of the Work would damage either the Work or the
Site, the City shall have the right to remove the Work by any means,
including destruction, in pei�forming maintenance, repa'v-, t�enovation, or
reconst�-uction of the building, stiucture or in devoting realty to a new use.
b. In the event that the Work is freestanding, or incoiporated
into a building, st�ucture or realty such that it may be removed without
damaging or dest�oying the Work or the building or str-ucture, the Artist
may be given written notice and 90 days to remove the Work at his or her
sole expense. Upon Artist's failure to remove the Work, the City sha11
have the right to remove and dispose of the Work by any means, including
its dest�-uction.
c. The City agrees that it will not willfully destroy, damage, or
modify the work, except as provided in paragraphs a. and b. above.
d. In the event the Work is substantially damaged or altered,
the City shall no longer represent the Work as that of the Artist if the
Artist gives written notice to the City that it is the position of the Artist to
deny authorship on the grounds stated in this paragraph.
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e. The City shall at all times have the right to move the Work,
or remove it from public display. The Ciry shall also have the right to sell
or t�ade the Work.
7.5. Peimanent Record.
The City shall maintain on permanent file a record of this Agreement and of the location
and disposition of the Work.
7.6. Ai•tist's Address.
The Artist shall notify the City of changes in the address set forth in Article 13. The
failure to do so, if such failure prevents the City from locating the Artist, shall be deemed
a waiver by the Artist of the right subsequently to enforce these provisions of Article 7
that requue the express approval of the Artist. Notwithstanding this provision, the City
shall make every reasonable effort to locate the Artist when matters at7se relating to the
Artist's t-ights.
7.7. Additional Ri�hts and Remedies.
Nothing contained in this Article 7 shall be const�-ued as a limitation on such other rights
and remedies available to the Artist under the law, which may now or in the future be
applicable.
ARTICLE 8
ARTIST AS AN INDEPENDENT CONTRACTOR
Artist shall perform all work and seivices hereunder as an independent cont�actor, and not
as an officer, agent, servant or employee of City. Artist shall have exclusive control of,
and the exclusive right to cont�ol the details of the work pei�formed 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 A�•tist, his/her officers, agents,
employees and subcontractors, and doctrine of respondeat supei-ior has no application as
between City and Ai•tist.
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ARTICLE 9
SUBCONTRACTING
The Artist may subcontract portions of the services to be provided hereunder at the
Artist's expense, provided that said subcont�•acting shall not adversely affect the design,
appearance or visual quality of the Work and shall be carried out under the personal
supervision of the Artist. Any subcontract entered into under this Agreement shall be
expressly subject to the teims of this Agreement. Artist shall provide information
regarding all subcontractors, including its fabricator, along with a copy of the subcont�act
between Artist and each subcontractor.
ARTICLE 10
TERMINATION
10.1. Gratuities.
The City may cancel this Agreement if it is found that gratuities in the form of
entertainment, gifts or otherwise were offered or given by the Artist or any agent or
representative to any City official or employee with a view toward securing favorable
t�eatment with respect to the awarding, amending, or making of any determinations with
respect to this performance of this Agreement. In the event this Agreement is canceled by
the City, pursuant to this Section 10.1, the City shall be entitled, in addition to any other
rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred
by the Artist in providing such gratuities.
10.2. Termination for Cause.
If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and
proper manner, or otherwise violate, any of the covenants, agreements or stipulations
matei7al to this Agreement, the other party shall thereupon have the right to terminate this
Agreement by giving written notice to the defaulting party of the intent to terminate
specifying the grounds for termination. The defaulting party shall have thuty (30) days
after receipt of the notice to cure the default. If it is not cured, then this Agreement shall
terminate. Termination of this Agreement under this provision shall not relieve the party
in default of any liability for damages resulting fi�om a breach or a violation of the terms
of this Agreement.
15
10.3. Termination for Convenience.
a. The services to be performed under this Agreement may be
terminated by either party, subject to written notice submitted thirty (30)
days before termination. The notice shall specify whether the termination
is for convenience or cause.
b. If the termination is for the convenience of the City, the
Artist shall have the right to an equitable adjustment in the fee (without
allowance for anticipated profit on unpei�foimed services), in which event
the 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 the City by the Artist under this Agreement
prior to the date of termination, provided that no right to fabricate or
execute the Work shall pass to the City.
c. If termination is for the convenience of the Artist, the Artist
shall remit to the City a sum equal to all payments (if any) made to the
Artist puisuant to this Agreement prior to teimination.
10.4. Incapacity of Artist.
a. In the event of Artist's death or Artist becoming physically
or legally incapacitated during the term of this Agreement, the City shall
have the right to terminate this Agreement on payment to Artist or Artist's
successors for all work and services pei�foimed prior to death or incapacity.
All finished and unfinished drawings, sketches, photographs, models and
work shall become property of the Ciry.
b. Should Artist's design have been approved or if the Artist's
work has progressed to the point of fabrication of the Work, in the event of
termination under this Section 10.4, the 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 11
EQUAL OPPORTUNITY
a. The Artist shall not discriminate against any employee or
applicant for employment because of disability, familial status, race, color,
religion, sex, sexual orientation, or national origin. The Artist shall take
16
affumative action to ensure that employees are t�eated equally during
employment, without regard to their disability, familial status, race, color,
religion, sex, sexual orientation and national origin. Such action shall
include but not be limited to the following: Employment, upgrading,
demotion, transfer, recruitment or pay or other foims of compensations,
and selection for training, including apprenticeship.
b. The Artist shall state in all solicitation or advertisements
for employment placed by or on behalf of the Artist that all qualified
applicants shall receive consideration for employment without rega��d to
disability, familial status, race, color, religion, sex, sexual oi7entation, oi•
national origin.
c. The f�rtist sha11 furnish all information and reports
requested by the City of Fort Worth, and shall permit access to its books,
records, and accounts for putposes of investigation to ascertain compliance
with such rules and regulations.
d. In the event of the Artist's noncompliance with the
nondiscrimination clauses of this Agreement, this Agreement may be
canceled, terminated, or suspended in whole or in pa.rt, and the A�•tist may
be debai7•ed from further agreements with the City of Fort Worth.
ARTICLE 12
MISCELLANEOUS
12.1. Compliance.
The Artist shall be required to comply with Federal, State and City statutes, ordinances
and regulations application to the performance of the Artist services under this
Agreement.
12.2 Entu•e Agreement.
This writing embodies the entue 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.
17
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12.3. 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.
12.4. W aiver.
No waiver of performance by either party shall be const�•ued 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 i7ght or acceptance of defective pei�formance.
12.5. Governing Law and Venue.
This Agreement, regardless of where executed or performed, shall be governed by and
const�-ued in accordance with the laws of the State of Texas. Venue for any litigation
arising from this Agreement shall be in Tarrant County, Texas.
12.6. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the City and the
Artist and theu respective successors and assigns.
12.7. No Thud-Party Beneficia�•ies.
The provisions and conditions of this Agreement are solely for the benefit of the City and
the Artist, and any lawful successor or assign, and are not intended to create any rights,
contractual or otherwise, to any other person or entity.
12.8. Severabilitv.
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.
12.9. Contract Const�-uction.
The pa�•ties acknowledge that each parry and, if it so chooses, its counsel have reviewed
and revised this Agreement and that the normal rule of const�uction to the effect that any
ambiguities are to be resolved against the drafting party must not be employed in the
inteipretation of this Agreement or any amendments or exhibits hereto.
IE:?
12.10. Fiscal Funding Out•
If for any reason at any time during any term of this Agreement the City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of (i) thirry (30) days
following delivery by the City to the Artist of written notice of the City's intention to
terminate or (ii) the last date for which funding has been appropriated by the City Council
for the puiposes set forth in this Agreement.
12.11. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
12.12. Artist's Address.
Artist shall notify the Cont�act Manager of changes in address.
12.13. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or
legal incapacity of the Artist.
12.14. Right to Audit.
The Artist agrees that the City will have the right to audit the financial and business
records of the 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. Tluoughout the Term of this Agreement and for tluee
(3) yeats thereafter, the Artist shall make all Records available to the City on 1000
Throckmorton St�eet, Fort Worth, Texas or at another location in the City acceptable to
both parties following reasonable advance notice by the City and shall otherwise
cooperate fully with the City during any audit. Notwithstanding anything to the cont�ary
herein, this Section 8.16 shall survive expuation or earlier termination of this Agreement.
12.15. Certified MWBE.
If applicable, Artist shall make its best effort to become a certified Minority/Women
Business Enteiprise (M/WBE) firm with a certifying agency whose certification is
accepted by the City under the City's M/WBE ordinance.
19
ARTICLE 13
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:
l. CITY OF FORT WORTH: Libby Watson, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Copies to: David Yett, City Attorney
Law Department
1000 Throckmorton St�eet
Fort Worth, TX 76102
Martha Peters, Public Art Duector
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, TX 76107
2. ARTIST Montage 48/61
5626 Willis Avenue
Dallas, Texas 75206
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
20
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the latest
date below.
", -
D AS TO �ORM:'
- . =� / ,-
Amy J. R�inse�
Assistant City Attorney
Date:
Contract Authorization:
M&C # C-21946
Dated: January 30, 2007
CITY OF'FORT WORTH
' ..
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Lib`6y Watson `
Assistant City Manager
Date: � / y C 1
ARTISTS
ATTESTED BY:
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�q�Iarty Hendrix
� Crty Secretary
Date: � )L�� �1 l �T�l
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Exhibit A: Site
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SITE PLAN
22
Exhibit S: Proposal
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Exhibit C: Sales Tax Exemption
' i 'vtci t�vict n
i
.� TEXAS CERTIF'ICATE OF EXEMPTION
. I claim an exemption from payment of sales and use taxes for tho purchase of taxable
'items described below or on the attached order or invoice.
Description of Items (or an attached order or invoice) To Be Purct�ased:
All Itcros
I claim this exemption for the following reason:
Name of exempt organization: Citv of Fort Worth
Tezas Sales and Use Taz Permit Number 1-75�000528-6
Project for which muterials and supplies are purchesed:
f I understand that I will be IiaUle for payment of sales tax, which may become due for
failure to comply with the provisions of the state, city, and/or metropolitan transit
authority sales and use tax la�vs and comptrollet rules regarding exempt purchases.
Liability for the tax will be determined by the price paid For the taxable items purchased
or the fair murket rental value for d�e period of 6me used.
I understand that it is a misdemeanor to give an exemption certiiicatc to die seller for
taxable items which I know, at the time of the purchase, will be used in a manner othec
t1�an that expensed in this certificate and, upon conviclion, may be fined up to $500 per
offense.
Ta�c Exempt Status Due to Being a Govetnmental Entiry
Purchaser: City of Fort Worth
S[reet Address: 1000 Throckmorton Street
City, State, Zip Code: Port Worth, Texas 76102
Sign Here: Date: Z 03 Phone: (817) 871-8517
J es R. Keyes, p(reclor Fin�nce -
This certificate does not require a number to be valid. Sales and use tax "exemption
numbers" or "tax exempt" nu�nbers do not exist.
Tliis certificate should be furnished to the suppliec Do not send the completed certificate
to the Comptroller ofPublic Accounts,
24
Exhibit D: Insurance
PUBLIC ARTS PROJECT
INSURANCE REQUIREMENTS
1. Commercial General Liability (CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include but not be limited to the following: premises operations,
independent cont�actors, products/completed operations, personal injuiy, and contractual
liability. Insurance shall be provided on an occui7�ence basis, be as comprehensive as the
cui7•ent Insurance Services Office (ISO) policy.
2. Automobile Insurance
$1,000,000
or
$250,000
$500,000
Each accident
Property Damage
Bodily Injury per person per occui7ence
The automobile policy shall provide coverage on "Any Auto", defined as autos owned,
hued and non-owned.
3. For Artists/Contractors who have employees: Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accidendoccui7ence
$100,000 Disease - per each employee
$500,000 Bodily Injuiy/Disease - policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liabiliry coverage with limits consistent with
statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et
seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of
$100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and
$100,000 per disease per employee
25
GENERAL POLICY REQUIREMENTS
• The City of Fort Worth, its Officers, Employees and Volunteers shall be named as
an Additional Insured. Exception... the additional insured requuement does not apply to
Workers' Compensation policies
• Forty-five (45) days notice of cancellation or non-renewal.
Example: "This insurance shall not be canceled, limited in scope or coverage, cancelled
or non-renewed, until after forty-five (45) days prior written notice has been given to the
City of Fort Worth.
• Wavier of rights of recoveiy (subrogation) in favor of the City of Fort Worth.
• The insurers for all policies must be licensed/approved to do business in the State
of Texas. Except for workeis' compensation, all insurers must have a minimum rating of
A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent
financial st�ength and solvency to the satisfaction of Risk Management. If the rating is
below that requued, written approval of Risk Management is requu•ed.
• 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 requued insurance shall be written on the
"occuirence basis". If coverage is underwritten on a claims-made basis, the retroactive
date shall be coincident with or prior to the date of the cont�actual agreement and the
certificate of insurance shall state that the coverage is claims-made and the ret�oactive
date. The insurance coverage shall be maintained for the duration of the cont�actual
agreement and for five (5) years following completion of the service provided under the
contractual agreement or for the wa�7anty period, whichever is longer. An annual
certificate of insurance submitted to the City shall evidence such insurance coverage.
• The deductible or self-insured retention (SIR) affecting required insurance
coverage shall be acceptable to and approved in writing by the Risk Manager of the City
of Fort Worth in regards to asset value and stockholders' equity. In lieu of txaditional
insurance, alternative coverage maintained through insurance pools or risk retention
groups, must also approved by the City's Risk Manager.
• The City, at its sole discretion, reserves the right to review the insurance
requuements and to make reasonable adjustments to insurance coverages and theu limits
when deemed necessary and prudent by the Ciry based upon changes in statutory law,
court decision or the claims histoiy of the industry as well as of the cont�•acting party to
the City of Fort Worth. The City shall be requued to provide pi7or notice of ninety
(days).
26
• The City shall be entitled, upon request and without expense, to receive copies of
policies and endoisements 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.
27
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Exhibit E: Technical and Maintenance Record
ARTIST INFORMATION SHEET
LOCATION:
ARTIST:
ADDRESS:
CITY:
PHONE:
CELL:
GALLERY/REPRESENTATIVE:
TTI'LE OF WORK:
STATE: ZIP:
FAX:
EMAIL:
DESCRIPTION OF ARTWORK (attach if necessary):
MEDIUM OR MATERIAL (list specific product information if relevant):
EDITION INFORMATION:
DATE AND PLACE EXECUTED:
INSTALLATION DATE:
LOCATION OF ARTWORK AT STTE (attach architectural plans if available):
COLLABORATING ARTIST:
FABRICATOR (if other than artist):
m
ARTIST:
TITLE:
FABRICATOR ADDRESS:
LOCATION AND DESCRIPTION OF SIGNATURE MARKS (or copyright):
DIMENSIONS (in inches):
Artwork (without frame, mat, or pedestal): Height Width
�Frame: Height Width Depth Aprox. Wt.
SPECIAL METHODS / MATERIALS UTII,IZED IN EXECUTION OF ARTWORK:
A. MATERIAL (type, brand name, manufacturer):
B. FRAMING MATERIALS AND / OR CONSTRUCTION METHOD:
C. MATERIAL THICKNESS (guage): _
D. WELDING OR JOINTING METHOD:
E. WELDING ROD ALLOY OR JOINT MATERIAL:
F. CASTING ALLOY, WAX BODY, GLASS OR FIBER TYPE
G. MATERIAL FINISH (paint color and type, glaze, sanding grit, patina, fixative
coatings, etc.)
H. FOUNDATION/INSTALLATION METHOD (boldpin size, adhesive)
ARTIST:
29
TITLE:
YEARLY MAINTENANCE AND CARE OF ARTWORK:
J. ROUTINE MAINTENANCE:
K. INTENTION RELATING TO ARTWORK OVER TIME (patina, etc. To what
surface should the work be cleaned?):
L. PLACEMENT OF ARTWORK (cautions regarding sunlight, heat, etc.):
M. CONSERVATION CONSULTANT:
ADDRES S :
I' ._ � ►1
30
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 1/30/2007
DATE: Tuesday, January 30, 2007
LOG NAME: 03ARTFS#11
REFERENCE NO.: **C-21946
SUBJECT:
Authorization to Enter into an Artwork Commission Contract with Montage 48/61 for Public
Art/Design Enhancements for Fire Station No. 11
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Artwork Commission
Contract with Montage 48/61, in an amount not to exceed $46,880, for final design, fabrication, delivery,
installation, artist fee and associated costs of their proposed, untitled artwork installation composed of a
graphic installation of tile incorporated into the fa�ade of the new Fire Station No. 11.
DISCUSSION:
The proposed Artwork Commission Contract would enable Montage 48/61, the artist composed team of
Larry Enge and Charlotte Lindsey, to finalize their design, based upon their proposal, and proceed with
fabrication, delivery and installation of an untitled artwork installation composed of a graphic installation of
tile incorporated into the fa�ade of the new Fire Station No. 11 building, which is being constructed at
Highway 114, near Harriet Creek. This graphic design of a star incorporating the station's number will
create a bold graphic logo for Fire Station No. 11, and a color palette that will provide an entrance way to
the Northwest Independent School District campus.
BACKGROUND:
The 2004 Bond Program provided funding for the design and construction of Fire Station No.11. On May
17, 2005, the City Council approved the Long-Range Public Art Plan for the 2004 Bond Program, in which
Fire Station No.11 was identified as one of the projects to receive 2004 Bond Program Public Art funds.
The Arts Council of Fort Worth & Tarrant County, Inc., as manager of the Fort Worth Public Art Program on
behalf of the City of Fort Worth, issued a Request for Proposals to local artists for Fire Station No.11 in Fall
2006. On October 23, 2006, the Artist Selection Panel reviewed four proposals, and then recommended
Montage 48/61's proposal. The Artist Selection Panel consisted of:
Selection Panel (Voting):
- Council Member Salvador Espino, Council District 2
- Joan Adams, Community Representative, Harriet Creek Home Owners Association
- Javier Lucio, Lead Project Designer, RPGS Design Group, Inc.
- Shirley Gansser, Community Representative, North Fort Worth Alliance Neighborhood Association
- Andrea Karnes, Curator, The Modern Art Museum
- Mark Thistlethwaite, Chair, Fort Worth Art Commission
- Tony Wright, Chief Preparator, The Modern Art Museum
Advisors (Non-Votinq):
- Nancy Richardson, Architect, Transportation & Public Works Department, City of Fort Worth
- Lieutenant Kent Worley, Fire Department, City of Fort Worth
Logname: 03ARTFS#11 Page 1 of 2
On November 13, 2006, the Fort Worth Art Commission approved the Artist Selection Panel's
recommendation to engage Montage 48/61 in an Artwork Commission Contract for the public art portion of
the Fire Station 11 project.
M/WBE - The City's overall M/WBE goal for the Fort Worth Public Art program is 25 percent of total capital
project dollars expended on public art annually.
This project is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Fire Improvements Fund.
TO Fund/Account/Centers
Submitted for Ci� Manager's Office bv:
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
C235 531200 032980017933
C235 541200 032980017980
Libby Watson (6183)
Karen Montgomery (6222)
Bridgette Garrett (8518)
Sandy Oliver (7371)
7 032.00
$39,848.00
Logname: 03ARTFS#11 Page 2 of 2