HomeMy WebLinkAboutContract 53968 Oft;Y WGRUfARY
AGREEMENT BETWEEN THE CITY OF FORT WORTH
c �tmt I KIBOIO j$-W DELIVERY, AND OF PUBLIC ARTWORK ORK
FOR THE HEMPHILL-LAMAR CONNECTOR
This Agreement is entered into this - day ofJQr1C, , 2020, 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 KiboWorks, Inc., a California corporation, located at 9580
Oak Valley Parkway, Suite 7-211, Folsom, CA, 95630, and acting by and through Kevin Furry, its duly
authorized representative. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to
manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project
manager.
WHEREAS,pursuant to Chapter 2,Sections 2-56 through 2-61 oftheFort Worth Code of Ordinances,
the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth
residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists
into the development of the City's capital infrastructure improvements, and to promote tourism and economic
vitality in the City through the artistic design of public spaces;
WHEREAS, City is constructing the IIemphill Lamar Connector, which is a new roadway that runs
beneath the Union Pacific Railroad Bridge and Interstate 30, and connects downtown Fort Worth and the Near
Southside between W. Lancaster Avenue to W. Vickery Boulevard;
WHEREAS, funds for this project were allocated in the 2004 Bond Program, Proposition 1, as part
of the Long-Range Public Art Plan for the 2004 Capital Improvement Program, adopted by the Fort Worth
City Council on May 17,2005 (M&C G-14801); and, from the Specially Funded Projects Fund for Public Art
as part of the Fiscal Year 2020 Fund Reprogramming Plan, adopted by Fort Worth City Council on April 7,
2020 (M&C 20-0205); and with an additional appropriation from the Specially Funded Projects Fund for
Public Art by City Council on May 19, 2020 (M&C 20-0325), and as reflected in the Fort Worth Public Art
Fiscal Year 2020 Annual Work Plan, adopted by the Fort Worth City Council on April 7, 2020 (M&C 20-
0204);
WHEREAS,the Fort Worth Art Commission("FWAC")approved Corson Studios,L.L.C.'s Revised
Final Design of a public artwork titled, Flight, on April 13, 2015, which is described as twenty-eight (28)
birdlike "longhorn" sculptural components, each 12 feet in length and fabricated of frosted white, robust,
UV-stable,impact resistant polycarbonates,mounted on five(5)free-standing painted steel supports,with the
tallest being 35 feet in height, located in the median on the north (Downtown) side of the Hemphill Lamar
Connector. In addition, thirty-five(35) "longhorns"of the same size will be mounted under the Interstate 30
Bridge, five(5)of which will emerge from the south side of the IIemphill Lamar Connector. The`longhorns"
Agreement for Fabrication,Delivery and Instal lation of Public 1 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy) C)FRC&AL RECORD
o SECRETARY
�T WORM TX
will glow from dusk to dawn with internal LED. The color of the lights will shift slowly so as not to be
noticed with traveling through the connector;
WHEREAS, soon after the FWAC's approval of the Preliminary Partial Redesign and Revised Final
Design of Public Art for Hemphill Lamar Connector, the City put the construction of the Hemphill Lamar
Connector on hold to secure additional finds for the project;
WHEREAS, in April 2017, Dan Corson of Corson Studios, L.L.C., notified the City of his retirement
from public art and recommended longtime collaborator,KiboWorks, Inc.,to implement Flight on his behalf,
which the FWAC approved on April 10, 2017;
WHEREAS, the City contracted with KiboWorks, Inc., to fabricate a prototype of the "longhorn"
element with internal LED lighting and to finalize the project budget on April 13,2018(City Secretary Contract
Number 50618);
WHEREAS,the Fort Worth Art Commission("FWAC")approved the prototype on January 14,2019;
WHEREAS, City and wish to set out the terms and conditions under which said Work shall be
fabricated in a way as to preserve the in integrity of the Artist's Artwork Design and delivered and installed at
the Site.
NOW,THEREFORE,City and Implementation Artist for and in consideration of the covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below:
1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and
KiboWorks, Inc., for fabrication, delivery, and installation of public artwork for the Site.
1.2. Artist—Means and includes Dan Corson of Corson Studios, LLC,which created the Artwork
Design and/or his heirs, executors, administrators, legal representatives, successors, agents, subartists,
contractors and assigns.
1.3. Artwork Design — Means and includes Artist's final City-approved design of the Work for
the Site, created in connection with the Final Design Agreement on or about March 1, 2010 (City Secretary
Contract No. 39962), as amended on or about February 21, 2011 (City Secretary Contract No. 39962-A1)and
the Preliminary Partial Redesign Agreement on or about January 30,2015(City Secretary Contract No.46385),
as amended as the Preliminary Partial Redesign and Revised Final Design on or about November 25, 2015
(City Secretary Contract Number 46385-A1) and includes, but is not limited to, all final drawings, sketches,
prototypes, maquettes, models, and the like that were created by Artist in connection with the Preliminary
Agreement for Fabrication,Delivery and installation of Public 2 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
Partial Redesign and Revised Final Design Contract. The design and description are attached hereto as Exhibit
"A"and incorporated herein for all purposes.
1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc., and/or its officers, directors, or 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 Acceptance--Means City's written acknowledgement to Implementation Artist that all
services for fabrication, delivery, and installation of the Work have been completed in accordance with the
terms of this Agreement.
1.8. Implementation Artist--Means and includes KiboWorks, Inc.
1.9. Parties — Means and includes City and Kiboworks, Inc., and/or their heirs, executors,
administrators, legal representatives, successors, agents, subartists, contractors and assigns.
1.10 Project--Means and includes the capital improvement/public art development undertaking of
City for which Artist's services are to be provided pursuant to this Agreement.
1.11. Schedule - Means and includes a written plan of procedure for completion of fabrication,
delivery, and installation of the Work, including, but not limited to, the submission of progress reports.
1.12. Site—Means and includes the Hemphill Lamar Connector, between West Lancaster Avenue
and West Vickery Boulevard, Fort Worth, TX, which is more particularly described in Exhibit"B," attached
hereto and incorporated herein by reference for all purposes.
1.13. 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.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1, Implementation Artist Selection.
City and implementation Artist acknowledge that Implementation Artist's experience and ability was reviewed
and approved by the FWAC on June 12, 2017, and Implementation Artist's prototype for the "longhorn"
clement was approved by the FWAC on January 14, 2019, as the basis for executing this Agreement.
2.2. Scope of Services.
a. Implementation Artist shall perform all services and shall furnish all supplies, materials, and
equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall
be performed in a professional manner and in strict compliance with all terms and conditions in this
Agreement.
Agreement for Fabrication,Delivery and installation of Public 3 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
b. Implementation Artist understands and acknowledges that City has acquired the Artwork Design
(excluding any ownership rights in and to the copyright) from the Artist for the purpose of hiring
Implementation Artist to fabricate the Work based on the Artwork Design and deliver and install the
Work at the Site.
C. To ensure the integrity of the Artwork Design during the fabrication and installation process,
Implementation Artist shall coordinate/consult with the Artist.
a. Implementation Artist shall communicate with the Artist at the beginning of the
fabrication process to discuss the Artwork Design and the Artist's expectations for the
Work.
b. Implementation Artist shall be available to the City for any questions or concerns that may
arise during the fabrication, delivery, and installation process.
c. if any disputes arise between the Artist and the Implementation Artist as to the Artwork
Design,then Implementation Artist must seek to resolve those issues through the Contract
Manager first.
d. Implementation Artist shall determine the scope, material, and texture of the Work, subject to review
and acceptance by Artist and City as set forth in this Agreement. The exact location at the Site where
the Work has been mutually agreed upon by City and Implementation Artist.
C. Implementation Artist, upon request of Contract Manager, shall provide information and/or attend
meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the
Work, and permitting.
f.. Implementation Artist shall install the Work on dates and times mutually agreed upon by
Implementation Artist and City.
2.3 Execution of Work
a. Implementation Artist shall furnish the Schedule to the Contract Manager within fifteen(15)business
days after the Effective Date. After written approval of the Schedule by City, Implementation Artist
shall fabricate,deliver,and install the Work in accordance with such Schedule. Schedule changes may
be accomplished by written agreement between Implementation Artist and Contract Manager.
b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its
fabrication and/or request visual documentation of the fabrication. Implementation Artist shall, upon
written request by the City and/or Contract Manager, provide a written progress report detailing the
progress made toward completion of the Work and the remainder of work to be done to complete the
Work. Implementation Artist shall comply with any request made by the City and/or Contract Manager
pursuant to this Article 2.3 within fourteen(14)calendar days after receipt of the written request.
Agreement for Fabrication,Delivery and Installation of Public 4 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
C. Implementation Artist shall instruct metal fabricator to produce one (1) prototype "metal clamp" for
and test it in onsite, with Contract Manager present for review, prior to fabricating all metal clamps
for installation on the I-30 bridge beams.
d. Implementation Artist shall complete the fabrication of the Work in accordance with the Artwork
Design and in consultation with Artist as necessary as determined by the Implementation Artist.
e. Implementation Artist shall present to the Contract Manager, in writing, for further review and
approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract
Manager,in its discretion,shall determine whether the changes are significant and whether the changes
conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the
changes are significant and do not conform with the Artwork Design, then the Contract Manager shall,
in light of the Artwork Design, determine whether a significant change requires City approval. If the
Contract Manager determines that the significant change requires City approval, then the change(s)
may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of
the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in
accordance with the dispute resolution process set forth in Article 12 of this Agreement.
2.4 Delivery and Installation.
a. Implementation Artist shall notify City, through its Contract Manager, in writing when fabrication of
the Work is completed and is ready for its delivery and installation at the Site.
b. It is understood that City has completed installation at the Site of the electrical service to the Work and
the concrete footings for the five(5)vertical steel poles that will support the free-standing sculpture in
the median on the north end of the Hemphill Connector, per the Implementation Artist's drawings.
C. Implementation Artist is responsible for obtaining any required permits;however, it is understood that
the City has waived all permit fees for this project.
d. Implementation Artist is responsible for submitting a traffic control plan for the City's approval.
C. Implementation Artist is responsible for installing all elements of the Work. Implementation Artist
shall coordinate the installation of the Work with City and Contract Manager. Delivery and installation
activities may not commence until written permission is delivered to Implementation Artist by the
City.
f. Implementation Artist shall deliver seven (7) spare "longhorn" elements to Contract Manager to be
stared and used as replacements, if needed, in the future. It is acknowledged that one (1) spare
"longhorn" element prototype has been delivered to Contract Manager for the Fort Worth Art
Commission's review in January 2019.
Agreement for Fabrication,Delivery and installation of Public 5 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
g. Implementation Artist shall be responsible for all costs associated with the materials, fabrication, and
installation of the Work, including, but not limited to, equipment rentals, transportation, travel, labor,
and traffic control.
h. Should Implementation Artist complete the Work in advance of the completion of the Site, Artist shall
store the Work at no expense to City until such a time as the Site is completed and the Contract
Manager notifies Artist that installation may commence.
i. Implementation Artist,individually and through its subcontractors,shall take al I necessary precautions
to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If
City determines, in its sole discretion, that Implementation Artist or implementation Artist's
subcontractors have damaged the Site, then City shall inform Implementation Artist, in writing, of the
damage. Implementation Artist, at his/her own expense, shall have thirty (30) days from receipt of
City's written notice to repair the damage to the Site to the satisfaction of City. If Implementation
Artist fails to repair the damages to the satisfaction of City within thirty(30) days after receipt of the
notice, or within the deadline otherwise agreed to by the parties,then City shall have the right to deduct
the cost of repairs from any remaining payment due to Implementation Artist under this Agreement,
which shall be in addition to any and all other rights and remedies available to City at law or in equity.
j. Upon request of City, Implementation Artist shall consult with a qualified art conservator and shall
provide written maintenance recommendations for the Work from said conservator to Contract
Manager for appropriate maintenance and preservation of the Work on the form attached hereto as
Exhibit"C" (Technical and Maintenance Record).
2.5. Post-installation.
a. Within thirty(30)days after the installation of the Work, Implementation Artist shall furnish Contract
Manager with a set of at least fifteen(15)high-resolution digital images(.tiff format) and fifteen(15)
low-resolution digital images(.jpeg format)showing each element of the Work,including detail shots,
with at least ten(10)of these images showing the Work installed, as selected by Contract Manager,to
document the Work after the Work is installed.
b. Implementation Artist shall make his/her best effort to be available at such time(s) as may be set by
the City to attend any inauguration or presentation ceremonies relating to the transfer of the Work to
City. City shall use its best efforts to arrange for publicity for the completed Work in such art
publications and otherwise as may be determined between City and Artist as soon as practicable
following installation.
C. For the duration of the Agreement, if Implementation Artist intends to seek its own publicity for the
Work, such efforts and/or press releases must be approved, in advance, by the Contract Manager.
Agreement for Fabrication,Delivery and Installation of Public 6 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
2.6. Final Acceptance.
a. Implementation Artist shall notify City and Contract Manager, in writing, when all services for
fabrication, delivery, and installation of the Work have been completed in accordance with the terms
of this Agreement. Included in such notice from Implementation Artist shall be an affidavit, attached
hereto as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the
performance of this Agreement have been paid.
b. City shall notify Implementation Artist in writing of its Final Acceptance of the Work.
C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of
Final Acceptance; or (2) the 35th day after Implementation Artist has sent the written notice to City
required under this Section 2.5, unless City, upon receipt of such notice and prior to the expiration of
the 35-day period, gives Implementation Artist written notice specifying and describing anything that
has not been completed pursuant to this Agreement.
2.7 Risk of Loss
The risk of loss or damage to the Work shall be borne by implementation Artist prior to Final Acceptance,and
Implementation Artist shall take such measures as are necessary to protect the Work from loss or damage until
Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of
loss or damage shall be borne by City prior to Final Acceptance during such periods of time as the partially or
wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of
moving, storing, or performing any other ancillary services to the Work or upon completion of the installation
of the Work at the Site.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1, Compensation.
Total compensation to Implementation Artist under the Agreement shall be SIX HUNDRED FIFTY-EIGHT
THOUSAND EIGHT HUNDRED.FORTY-SIX DOLLARS AND NO CENTS(%SS,846.00),which shall
constitute full compensation for all services to be performed and materials to be furnished by Implementation
Artist under this Agreement, including, but not limited to labor, materials, fabrication, transportation,
installation, insurance, incidental costs, all travel expenses, and any other costs associated with the Work, and
includes an allowance of$52,518.00 for traffic control costs and installation contingencies. The Parties may
amend this Agreement to allow for additional payment if additional services are required.
Agreement for Fabrication,Delivery and Installation of Public 7 of 32
Artwork between the City of Fort Worth and MboWorks,Inc. (Revised Execution Copy)
3.2. Payment Schedule
City agrees to pay Implementation 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. THREE HUNDRED SIXTEEN THOUSAND EIGHTY HUNDRED EIGHTEEN DOLLARS
AND NO CENTS($316,818.00) upon execution of this Agreement.
b. TWO HUNDRED TWENTY-FIVE THOUSAND ONE HUNDRED EIGHTY-TWO-
DOLLARS AND NO CENTS ($225,182.00) upon Contract Manager's written verification that
fabrication is 100% complete and ready to install.
C. SIXTY-TWO THOUSAND FOUR HUNDRED TWENTY-EIGHT DOLLARS AND NO
CENTS($62,428.00)upon Contract Manager's written verification that the Work has been installed.
d. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty-five (35) days after
Final Acceptance and receipt by City of such documentation it may require concerning payment of
services and supplies rendered to Implementation Artist (see Article 2); provided, however, that final
delivery shall not be tendered prior to the expiration of thirty(30) days after Final Acceptance.
e. City is providing an allowance of up to FIFTY-TWO THOUSAND FOUR HUNDRED
EIGHTEEN DOLLARS AND NO CENTS($52,418.00)as payment for traffic control costs
incurred by the Implementation Artist and/or his subcontractors and may be used for unforeseen
changes in installation costs upon(i)receipt of an invoice with supporting documentation by the
Contract Manager from the Implementation Artist and(ii) approval by the Contract Manager of the
additional costs.
3.3. SaIes Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the
Work. City shall supply Implementation Artist with the"Texas Certificate of Exemption,"in substantially the
same form as that attached hereto as Exhibit "E" for use by Implementation Artist in the fulfillment of this
Agreement.
3.4. Implementation Artist's Expenses.
Tmplementation 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 and/or Contract Manager, cost of all travel, and costs for Implementation Artist's
agents, contractors,subcontractors, consultants, and/or employees necessary for the proper performance of the
services required under this Agreement.
Agreement for Fabrication,Delivery and Installation of Public 8 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
ARTICLE 4
TERM AND TIME OF PERFORMANCE
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 Implementation Artist by City.
4.2. Duration.
The services to be required of implementation Artist set forth in Article 2 shall be completed in accordance
with the Schedule; provided, however, such time limits may be extended or otherwise modified by written
agreement between Implementation Artist and City.
4.3. Early Completion of Implementation Artist Services.
Implementation Artist shall bear any transportation and storage charges incurred from the completion of his or
her services prior to the time provided in the schedule for delivery.
4.4. Time Extensions;Force Majeure.
City or Implementation Artist, as appropriate, shall grant a reasonable extension of time to the other party if
conditions beyond the parties' control or Acts of God, pandemics, flood, riot, civil insurrection, labor strikes,
or orders of local or federal government render timely performance of the parties' services impossible or
unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform 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 control shall not be
considered a breach of this Agreement; provided, however, that such obligations shall he suspended only for
the duration of such conditions.
ARTICLE 5
WARRANTIES
5.1. Warranties of Quality and Condition
a. Implementation Artist represents and warrants 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. Implementation Artist represents and warrants that the Work and the materials used are not currently
known to be harmful to public health and safety.
C. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.1 that is curable by Implementation Artist, City shall give written notice to Implementation
Agreement for Fabrication,Delivery and Installation of Public 9 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Artist of such breach with reasonable promptness. Implementation Artist shall, at the request of City,
cure the breach satisfactorily and consistent with professional conservation standards (in accordance
with the American Institute of Conservation(AIC)Code of Ethics and Guidelines for Practice)and/or
construction standards, including, but not limited to, any standards set forth by City,within thirty(30)
days after receipt of the written notice, at no expense to City.
d. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.1 that is not curable by Implementation Artist, Implementation Artist is responsible for
reimbursing City for damages, expenses, and losses incurred by City as a result of the breach.
However, if Implementation 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 purposes of this Article 5.1.
e. If,after one year from Final Acceptance,City observes any breach of warranty described in this Article
5.1 that is curable by Implementation Artist, City shall give written notice to Implementation Artist to
make or supervise repairs or restorations at a reasonable fee during Implementation Artist's lifetime.
Implementation Artist shall notify City, in writing,within thirty(30)days after receipt of the notice as
to whether Implementation Artist will make o► supervise the repairs or restorations. Should
Implementation Artist fail to respond within the thirty-day (30) deadline or be unwilling to accept
reasonable compensation under the industry standard, City may seek the services of a qualified
restorative conservator and maintenance expert.
f. Acceptable Standard of Display. Implementation 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 repairable 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 Work will not experience irreparable conditions
that do not fall within an acceptable standard of public display, including, but not limited to,
mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling.
iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Implementation Artist shall provide copies of such warranties to
City.
g. The foregoing warranties are conditional and shall be voided by the failure of City to maintain the
Work in accordance with Implementation Artist's specifications and the applicable conservation
standards.
Agreement for Fabrication,Delivery and Installation of Public 10 of32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
ARTICLE 6
INSURANCE, INDEMNITY, AND RELEASE
6.1 General.
Implementation Artist shall carry insurance as set out in Exhibit"F,"which is attached hereto and incorporated
herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to
installation of the Work on City property.However, if any part of the fabrication process will be conducted on
City property, then Implementation Artist shall submit evidence of required insurance to the Contract Manager
prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City
has taken possession of the Work. Except as provided in Section 2.7 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
Implementation Artist. This risk shall transfer to City and shall no longer be the responsibility of
Implementation Artist upon Final Acceptance.
6.2. Performance Bonds.
Implementation Artist shall not be required by City to post any performance bonds or similar undertakings.
6.3. Indemnity
a. General_Indemnity_
i. IMPLEMENTATION ARTIST COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY
FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES
(INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)
AND/OR PERSONAL INJURY(INCLUDING,BUT NOT LIMITED TO,DEATH)TO ANY
AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS
SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMISSIONS OF IMPLEMENTATION ARTIST AND ITS EMPLOYEES AND
IMPLEMENTATION ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR
RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
Agreement for Fabrication,Delivery and Installation of Public 11 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
PERFORMANCE,ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS
AGREFMCNT.
ii. Implementation Artist agrees to and shall release City from any and all liability for injury, death,
damage,or loss to persons or property sustained or caused by Implementation Artist in connection
with or incidental to performance under this Agreement.
iii. Implementation 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.
b. Intellectual Property
Implementation Artist agrees to assume full responsibility for complying with all State and Federal
Copyright Laws and any other regulations.
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1. Title.
Title to the Work, including, but not limited to, all documents,models, and/or drawings and spare"longhorns"
that constitute or are components of the Work shall pass to City upon Final Acceptance and payment for the
Work. These documents, models, and/or drawings will be retained for archival and exhibition purposes. The
Work and all other work products under this Agreement shall become the property of City, without restriction
on future use, except as provided below.
7.2 Copyright.
The parties agree that the Work fabricated pursuant to this Agreement shall be a work made for hire within the
meaning of the Copyright Act of 1976, as amended; the parties agree the Artist and/or the copyright claimant
grant to Implementation Artist only that right and license to fabricate the Work, including, but not limited to,
as a reproduction or as a derivative work, and Implementation Artist hereby irrevocably assigns and agrees to
assign and transfer any and all right, title and interest in any copyright resulting from the fabrication of the
Work, including, but not limited to, as a reproduction or as a derivative work, throughout the world for the
entire term of copyright to Artist or copyright claimant. Implementation Artist agrees to sign and execute any
documents reasonably required to effectuate the purposes of this provision, and further,Implementation Artist
grants to Artist or copyright claimant by execution of this Agreement the specific power of attorney and to act
as attorney in fact to execute an assignment or other documents on behalf of Implementation Artist reasonably
necessary to transfer and assign any copyright accruing to Implementation Artist and the right to register the
copyright in Artist's or copyright claimant's own name. Further, should any rights arise pursuant to the Visual
Artists Rights Amendment to the Copyright Law of the United States, Implementation Artist specifically
waives all rights in the Work specifically for the Work being fabricated and produced for the Site as intended,
Agreement for Fabrication,Delivery and Installation of Public 12 of 32
Artwork between the City of Fort Worth and ICboWorks,Inc. (Revised Execution Copy)
which may arise or be conferred by subsection(A)of Section 106A of the United States Copyright Act, 17USC
Section 101, et sec, as provided by Section 106A(e)(1); all rights of copyright in the underlying work,
specifically including, but not limited to, the Artwork Design, maquettes, models, drawing or other
documentation shall remain with the Artist or copyright claimant.
7.3 Reproduction Rights.
a. In view of the intention that the Work be unique, Implementation Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, except with the express written
permission of City and Artist.
ARTICLE 8
IMPLEMENTATION ARTIST AS AN INDEPENDENT CONTRACTOR
Implementation Artist shall perform all work and services hereunder as an independent contractor, and not as
an officer, agent, servant or employee of City. Implementation 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 Implementation
Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no
application as between City and Implementation Artist.
ARTICLE 9
SUBCONTRACTING
Implementation Artist may subcontract portions of the services to be provided hereunder at Implementation
Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual
quality of the Work and shall be carried out under the personal supervision of Implementation Artist. Any
subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this
Agreement, including, but not limited to, all indemnification and release provisions. Implementation Artist
shall provide information regarding all subcontractors, including, but not limited to, its Implementation Artist,
along with a copy of the subcontract between Implementation Artist and each subcontractor to the Contract
Manager.
Agreement for Fabrication,Delivery and Installation of Public 13 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
ARTICLE 10
TERMINATION
10.1. 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 Implementation 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. In the event this
Agreement is canceled by the City, pursuant to this Article 10.1, City shall be entitled,in addition to any other
rights and remedies, to recover from Implementation Artist a sum equal in amount to the cost incurred by
Implementation Artist in providing such gratuities.
10.2. Death or lncapacity of Implementation Artist.
a. In the event that Implementation 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 Implementation Artist or Implementation Artist's successors for all work and services performed
prior to incapacity. All work product produced by Implementation Artist up to the effective date of termination
shall become property of City.
b. In the event of termination under this Article 10.2, City shall have the right to complete the Work.
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) calendar days before termination, specifying the grounds for termination.
b. If the termination is for the convenience of City, City shall pay Implementation Artist pursuant to the
payment provisions in Article 3, and Implementation 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 payment
in full of all monies due for services provided up to the effective date of termination, City shall have the right,
in its sole discretion, to possession and transfer of all work product produced by Implementation Artist under
this Agreement,including,but not limited to,finished and unfinished drawings,sketches,photographs,models,
designs and the Work up to the effective date of termination.
G. If termination is for the convenience of Implementation Artist, City shall have the right, in its sole
discretion, to pay Implementation Artist pursuant to the payment provision in Article 3 or require the
Implementation Artist to remit to City a sum equal to all payments (if any)made to the Implementation Artist
pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Implementation
Artist, then all work product produced by Implementation Artist under this Agreement, including, but not
limited to, finished and unfinished drawings, sketches, photographs, models, designs, the Work up to the
effective date of termination shall become property of City.
Agreement for Fabrication,Delivery and Installation of Public 14 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised-Execution Copy)
10.4. Termination for Cause.
a. 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 10.4 in
accordance with the dispute resolution process set forth in Article I I 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 Article 10.4 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.
b. If City terminates this Agreement pursuant to this Article 10.4,then all work product produced by the
Implementation Artist shall immediately become the property of the City and the City shall have the right to
complete the Work, which shall be in addition to any and all other rights and remedies available to City at law
or in equity.
ARTICLE I
DISPUTE RESOLUTION
If either Implementation 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 Implementation Artist
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
Agreement for Fabrication,Delivery and Installation of Public 15 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
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 Iaw regarding the dispute. (See Article 10.4)
ARTICLE 12
EQUAL OPPORTUNITY
a. Implementation Artist shall not engage in any unlawful discrimination based on race, creed, color,
national origin,sex, age,religion,disability,marital status,citizenship status,sexual orientation or any
other prohibited criteria in any employment decisions relating to this Agreement, and Implementation
Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity
employer and shall comply with all applicable laws and regulations in any employment decisions.
b. In the event of Implementation Artist noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and
Implementation Artist may be debarred from further agreements with City.
ARTICLE 13
MISCELLANEOUS
13.1. Compliance.
Implementation Artist shall comply with all Federal, State and City statutes, ordinances and regulations
applicable to the performance of Implementation Artist services under this Agreement.
13.2. 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.
13.3. Amendments.
No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective
unless made in writing and signed by both parties hereto and approved by appropriate action of City.
13.4. 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.
Agreement for Fabrication,Delivery and Installation of Public 16 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
13.5. 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.
13.6. 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
Implementation Artist and its respective successors and permitted assigns.
13.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Implementation Artist,
and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any
other person or entity.
13.8 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.
139. 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.
13.10. 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 Implementation 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. Any termination hereunder shall
be treated as a termination for convenience subject to Article 10.3.b.
13.11. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
13.12. Implementation Artist's Address.
Implementation Artist shall notify the Contract Manager of changes in address.
Agreement for Fabrication,Delivery and Installation of Public 17 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
13.13. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of
implementation Artist.
13.14. Right to Audit.
Implementation Artist agrees that City will have the right to audit the financial and business records of
Implementation 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, Implementation Artist shall make all
Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City
acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully
with City during any audit. Implementation Artist shall include in all subcontractor agreements a right to audit
in favor of the City in substantially the same form as included in this Subsection 13.14.
13.15. Certified MBE/WBE,
If applicable, Implementation Artist is encouraged to make its best effort to become a certified Minority
Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose
certification is accepted by the City under the City's Business Diversity Enterprise Ordinance.
13.16 Survival Provision
The provisions contained in Articles 5 (Warranties), 6 (Indemnity and Release Provisions), 7 (Ownership and
Intellectual Property Rights),8 (Implementation Artist as Independent Contractor), 13.4 (Right to Audit)shall
survive the termination or expiration of this Agreement.
13.17 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.
13.18. Time Extensions
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in this Agreement.
13.19. Israel.
If Artist is a company with ten (10)or more full-time employees and if this Agreement is for$100,000 or
more, Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City is
prohibited from entering into a contract with a company for goods or services unless the contract contains a
written verification from the company that it: (1) does not boycott Israel; and(2)will not boycott Israel
during the term of the contract. The terms"boycott Israel"and"company"shall have the meanings ascribed
to those terms in Section 808.001 of the Texas Government Code. If applicable under this Agreement and
Artist is considered a"company,"by signing this Agreement,Artist certifies that Artist's signature provides
Agreement for Fabrication,Delivery and Installation of Public 18 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
written verification to the City that Artist. (1) does not boycott Israel, and(2) will not boycott Israel during
the term of the Agreement.
ARTICLE 14
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 Street, Third FIoor
Fort Worth, Texas 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
200 Texas Street, Third Floor
Fort Worth,Texas 76102
Martha Peters, Director of Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth,Texas 76107
2, IMPLEMENTATION ARTIST Kevin Furry
KiboWorks, Inc.
9580 Oak Valley Parkway
Suite 7 211
Folsom, CA 95630
[signature page follows]
Agreement for Fabrication,Delivery and Installation of Public 19 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT WORTH KIBOWORKS,INC.
Fernando Costa KeviwTurry
Assistant City Manager Authorized Representati
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.
Name: Martha M. Peters
Title: Director of Public Art,Arts Council of Fort Worth
APPROVED AS TO FORM AND LEGALITY:
Matthew Murray
Assistant City Attorney
V-®R7
ATTESTED BV: �� ®
ary J. Ka
City Secret ry p,
Contract Authorization:
Form 11295: 2019-500287
M&C: 20-0325 of FICIAL RECORD
Date:May 19, 2020 (CITY SECRETARY
FT.1d1�@RT1 ,`TX
Agreement for Fabrication,Delivery and Installation of Public 20 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
Exhibit A: The Artwork Design
1
IL
Revised Final Design(North End)
Revised Final Design(South End)
Agreement for Fabrication,Delivery and Installation of Public 21 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
Corson Studios LLC
www.corsonart.com
5707 29th Ave NE Seattle WA 98105/dan@corsonart.com/206-910-5669
Hemphill 1 Lamar"Flight" Executive Summary
H H-ght
Inside/attached to tunnel (South End of Hemphill Lamar Connector):
Total Longhorns: 35 f 4 spares
Detail Breakdown:
30 12'wide under bridge
5 12'wide"flying out" beyond South end of 1-30 bridge
4 Spares to be kept in storage
Weight: Each 12' longhorn weighs approximately 35 lbs.
Spacing of longhorns inside tunnel: 6' (a bit closer as they fly out)
Distance from ceiling to bottom tip of longhorns ranges from 1.5' to 4.5'
Color: Daytime: frosted white/ Night: All colors available
Material: A robust, UV-stable, impact resistant polyethylene used in the commercial tank and roadway
barrier industry
Lighting: waterproof LED lighting will create patterns will shift so slowly, you will not see
the color change. However when you come back to the tunnel you will see a different
color and pattern. The system is designed for maintenance so that the LED strip can be
easily replaced in 6-10 yrs.
Hours of operation:we are expecting the lighting to turn on at dusk and off at dawn.
Additional after installation tests will determine if we are able to turn on the lights earlier
or run them during the day. If so, it can be run longer, but maintenance will be more
often (all dependent on lamp hours). This decision will be made between the City and
the Arts Council.
Structure: Custom beam clamp assembly connects the artwork to the existing bridge
beams. This assembly will allow for tight fighting wlout drilling into beams.
• Beam clamps hold connecting pipes that run parallel to the roadway
• Custom steel brackets attached to connecting pipes suspend the longhorns and define
the tilt.
• Post construction survey will be done in order to verify as-built dimensions. Brackets
will be fabricated afterwards to conform to the minimum clearance of 16'6" above
roadway.
Agreement for Fabrication,Detivery and Installation of Public 22 of 32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
Corson Studios LLC
www.corsonart.com
5707 29th Ave NE Seattle WA 981051 dan@corsonart.com 1206-910-5669
Hemphill 1 Lamar"Flight" Executive Summary (continued)
Might
Unattached to tunnel (North end facing West Lancaster Blvd).
Total Longhorns: 28 + 3 Spares
Detail Breakdown:
28 12' wide (identical to the ones under the bridge)
3 Spares to be kept in storage
Weight: Each 12' longhorn weighs approximately 35 lbs.
Spacing of longhorns approximately 6'
Color: Daytime: frosted white/Night:Ali colors available
Material:A robust UV-stable type of impact resistant polyethylene used in the commercial tank and
roadway barrier industry
Lighting:Waterproof LED lighting will create patterns will shift so slowly, you will not see the color
change. However when you come back to the tunnel you will see a different color and pattern. The
system is designed for maintenance so that the LED strip can be easily replaced in 6-10 yrs.
Hours of operation: We are expecting the lighting to turn on at dusk and off at dawn.
Additional after installation tests will determine if we are able to turn on the lights earlier or run them
during the day. If so, it can be run longer, but maintenance will be more often (all dependent on lamp
hours). This decision will be made between the City and the Arts Council.
Structure: Large poles up to 35' tall will support a single support"spine" that the longhorns will then
attach to. These poles live in the street median and have plantings around them. The poles and support
"spine"will be painted a dark charcoal color that will allow the supports to visually"recede".
• Post construction survey will be done in order to verify as-built dimensions. Horn heights will
conform to the minimum roadway clearance requirements.
Agreement for Fabrication,Delivery and Tnstallation of Public 23 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Exhibit B: Artwork Location
-N. 411!111111p�
�' -- West Lancaster Avenue t�f hy' r - a�
1 • • :� *�.:� h Union Pacific Railroad
I1-130—West Freeway
�� 7'
Tt
West Vickery Boulevard - a •'.', I 1 F 7 t
Agreement for Fabrication,Delivery and Installation of Public 24 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Exhibit C: Technical and Maintenance Record
GENERAL INFORMATION
Implementation Artist:
Address:
Telephone:
Cell:
E-mail:
Gallery Affiliation:
Other Representation:
ARTWORK
Title of Artwork:
Project Name and Location Address:
FWPA Project Manager:
Description of Artwork: (attach separately if necessary):
Artwork Dimensions:
Height: Width: Depth:
Pedestal or Pad Material:
Pedestal or Pad Dimensions:
Height: Width: Depth:
Location &Description of Signature Markings (or copyright):
Agreement for Fabrication,Delivery and Installation of Public 25 of32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Edition Information if applicable:
Date of Execution:
Place of Execution:
Designing Artist:
Methods/Materials Used in Execution of Artwork
Materials (list type, brand name and manufacturer of all materials; attach Material Safety&
Technical Data. Include contact names for all suppliers and attach warranty information):
Construction Description: (list all Implementation Artists and any architects, engineers or other
technicians involved in the creation and installation of this artwork. Attach all warranties &
agreements)
Material(s) Specifications:
Joining Methods:
Welding Rod Ahoy or Joint Material &Application Method:
Casting Alloy, Wax Body, Glass or Fiber Type:
Agreement for Fabrication,Delivery and Installation of Public 26 of32
Artwork between the City of Fort Worth and KiboWorks,Inc. (Revised Execution Copy)
Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative,
UV, graffiti, etc. Please list vendors and contact information and provide all product information):
Pedestals, Foundations &Footings, Mounting and Attachment Applications
(List all materials used to install artwork on site. Include vendor information, parts numbers,
warranties and agreements.)
Integrated Components
(List all components included in design and fabrication contracts that function as a part of the final
installation including but not limited to: lighting, media, landscaping, etc. Include all vendor
information, parts numbers, warranties and agreements and any/all design schematics):
Installation
Installation Date:
Installation Method: (describe installation method,provide photo documentation if available. List
name and contact information of installation crew. Attach any diagrams or disassembly
instructions.)
Agreement for Fabrication,Delivery and Installation of Public 27 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Recommended Routine Maintenance
Implementation Artist recommendation based on experience and consultation with conservation
expert
Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
Unusual or Special Circumstances of Note
Artist's Intention
(PIease describe your view of how the artwork will change over time and in response to
environmental conditions. Explain how the artwork will look in the future assists FWPA in
realizing an appropriate conservation action plan. In addition to environmental conditions public
artworks are often affected by public handling, landscaping and site changes. Please address issues
related to the life expectancy of this artwork.)
Agreement for Fabrication,Delivery and Installation of Public 28 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Exhibit D: Affidavit
AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and
materials provided to Affiant for the construction of any and all improvements on the property.
Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There
are no claims pending for personal injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the
Day of , 20—.
Notary Public, State of California
Print Name
Commission Expires
Agreement for Fabrication,Delivery and Installation of Public 29 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. {Revised Execution Copy}
Exhibit E: Sales Tax Exemption
Texas Safes and Use Tex Exemption Certification
This certificate does not require a number to be valid
Na=or purchaser,firmoragmW
City of Fort Worth,Texas
Address Wreet&numbm,pQ,riafrOrRoWeR mbW piiane(AreacotlaantlnuAiDeq
200 Texas street 917-392-8360
rw.state,zlpcode
Fort Worth,Texas 76102
I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable
items described below or on the attached order or invoice) from:
Seller: All Vendors
Street address: City,State,ZIP code: „.
Description of items to be purchased or on the attached order or invoice:
All items. Purchaser acknowledges that this Certificate_cannot be used for the purchase tease or rental of a motor _
vehicle.
Purchaser claims this exemption for the following reason:
.Municipality,Governmental Entity
I understand that I will be liable for payment of all Mae and local sales or use taxes which may become due for failure to comply with
the provisions of the Tax Code andfor all applicable low.
lunderstandthaillisacdminaloffensetogiveanexempdoncertificatetotheselterfort�uableflemsthatlknow,at the limaofpurchase,
wiltba,tmdfnsmannerotherthanthatexpressedinthiscertlticate,anddependingonthaamountoffaxevaded,theoftensemayrange
from a Clow C misdomoanor to a felony of the second degree.
lsunrlaser Title DM
re} Finance DirectorlCFo
NaTe: This certi@cate cannot be issued for the purchase,lease,or rental of a motor vehicle.
THIS CER77FICATEDOES NOT REQUIRE NUMBER TO BE VALID.
Sales and use Tax"Exemption Numbers"or"Tax Exempt"Numbers do not exist.
This certificate should be furnished to the supplier.
Do=send the completed certificate to the Comptroller of public Accounts.
Agreement for Fabrication,Delivery and Installation of Public 30 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
Exhibit F: 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 Fabrication,Delivery and Installation of Public 31 of32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
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 Fabrication,Delivery and Installation of Public 32 of 32
Artwork between the City of Fort Worth and KiboWorks, Inc. (Revised Execution Copy)
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 05/19/20 M&C FILE NUMBER: M&C 20-0325
LOG NAME: 03HEMPHILL CONNECTOR PUBLIC ART PROJECT
SUBJECT
Authorize the Execution of an Artwork Implementation Agreement with Kiboworks, Inc.for a Sculptural Installation Titled"Flight"Designed by
Corson Studio LLC(Dan Corson,Artist)for the Hemphill Connector, Located between West Lancaster Avenue and West Vickery Avenue,
76102, in an Amount of$658,846.00 for Fabrication, Delivery, Installation and Contingencies;and Adopt Appropriation Ordinance(COUNCIL
DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of an Artwork Implementation Agreement with Kiboworks, Inc. in an amount of$658,846.00 for fabrication,delivery,
installation,and contingencies for a sculptural installation titled"Flight'designed by Corson Studio LLC(Dan Corson,artist)for the FWPA-
Hemphill Connector, located between West Lancaster Avenue and West Vickery Avenue,76102;
2. Find that the use of the funds for public art for this project complies with the voted purpose of the bonds;and
3. Adopt the attached apropriation ordinance increasing receipts and appropriations in the Specially Funded Projects Fund in the amount of
$196,571.00 from available funds,for the FWPA-Hemphill Connector Project(City Project No. 102612),for fabrication,delivery,installation
and contingencies,as approved by City Council on April 7,2020,as part of the Fiscal Year 2020 Public Art Annual Work Plan(M&C 20-
0204).
DISCUSSION:
"Flight'celebrates Fort Worth's long aviation history and links the pattern of migrating birds with those of jets in flight formation. Artist Dan Corson
translates an icon of Fort Worth—the Texas Longhorn-into a contemporary expression of pattern and movement to enhance the experience of
traveling through the new Hemphill Connector.
Twenty-eight(28)"longhom/bird",each 12 feet in width and fabricated of frosted white,robust, UV-stable,impact resistant polyethylene,mounted
on five(5)free-standing supports,with the tallest being 35 feet in height,located in the median on the north(Downtown)side of the Connector. In
addition,thirty-five(35)"longhorn/birds"will be mounted on beams under the 1-30 bridge,of which five(5)will emerge from the south side of the
connector. The"longhom/birds"will glow from dusk to dawn with internal LED lights. The color of the lights will shift slowly so as not to be noticed
while traveling through the connector.
On April 3,2017,artist Dan Corson notified the City of Fort Worth that he was no longer available to continue working on the project and highly
recommended Kiboworks, Inc.,to implement his design based upon a successful 10 year working relationship and their expertise with light-based
public artworks,including the 21 st century makeover of the New Year's Eve Ball,Times Square, New York City(www.kiboworks.com).
Under a Prototype Fabrication Contract, Kiboworks, Inc., updated Corson's 2015 budget estimates and identified a local metal fabricator and a
local art handling company to assist with project implementation who will recieve approximately 60%of the total contract amount for their work.
Construction Manager-at-Risk(CMAR)for the Hemphill Connector project,McCarthy,has installed the concrete footings for the free-standing
sculpture on the north end of the connector and the electrical service to the sculptures as part of their scope of work,which has been paid directly
by the City from the public art project budget(see table below).
Art Commission Actions:
On November 14,2011,the Fort Worth Art Commission(FWAC)approved the artist Dan Corson's Final Design for the project. On April 13,
2015,the FWAC approved the artist's Revised Final Design,which was later developed based upon a request from project stakeholders to make
the component on the north side of the connector appear more like the component on the south side. On December 11,2017,the FWAC
recommended that design artist Dan Corson's designee, KiboWorks, Inc.,be contracted to implement his design.On January 14,2019,the
FWAC approved the prototype"longhom/bird"element by KiboWorks, Inc.
Project budget and funding sources are as follows:
PROJECT BUDGET AMOUNT CONTRACTS
Conceptual Design(Corson) �;;;"]CSC 37468
Final Design(Corson) 429,500.0��CSC 39962; 39962-A1
Partial Redesign of Final Design(Corson) 417,567.5 CSC 46385;46385-A1
Prototype&Electrical Engineering CSC 50618; 50618-A1
(KiboWorks) $25,497.00
Footings&Electrical Installation(McCarthy) CSC 45717-A3(art
$24,119.00 allowance)
Artwork Implementation&Contingency This M&C
(KiboWorks) $658,846.00
TOTAL F$778,529]
FUNDING SOURCES AMOUNT NOTES
2004 Bond Program, Proposition 1, $ Previously appropriated
subfund98 282,680.00
FGeneral Funding $
29,500.00
�Specially Funded Capital Projects Fund, $ FY2020 Public Art Fund Reprogramming
subfund 98 1187,587.92 1PIan
2004 Bond Program, Proposition 1,subfund $ FY2020 Public Art Fund Reprogramming
98 82,191.00 Plan
Specially Funded Capital Projects Fund, This M&C
subfund 98
TOTAL$78 529.50
This M&C will also serve to waive permitting fees for this City of Fort Worth project.
M/WBE Office-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 9 but serves the entire City.
Council Member Ann Zadeh concurs with the FWAC's recommendation to contract with KiboWorks, Inc.,to implement Dan Corson's Partial
Revised Final Design for the Hemphill Lamar Public Art Project.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are currently available in the Unspecified-Public Art Enhancements project of the Specially Funded
Projects Fund and upon approval of the above recommendations and adoption of the attached appropriation ordinance,funds will be available in
the Specially Funded Projects Fund and Street Improvements Fund for the FWPA—Hemphill Connector project to support the approval of the
above recommendation and award of the contract. Prior to an expenditure being incurred,the Planning&Data Analytics Department has the
responsibility of verifying the availability of funds.
Submitted for City Manager's Office by. Fernando Costa 6122
Originating Business Unit Head: Jan Hale 8438
Additional Information Contact: Martha Peters 298-3025