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HomeMy WebLinkAboutContract 39804 (2)� A � /Flo ♦ AGREEMENT FOR COMMISSION OF PUBLIC ART WORK BETWEEN THE CITY OF FORT WORTH AND MICHAEL PAVLOVSKY, DBA PAVLOVSKY SCULPTURE STUDIO This Agreement, entered into to be effective as of the 1st day of January, 2010 ("Effective Date"), by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (the "City"), acting by and through Fernando Costa, its duly authorized Assistant City Manager and MICHAEL PAVLOVSKY, DBA PAVLOVSKY SCULPTURE STUDIO (the "Artist") of 1904 Hillcrest Street, Fort Worth, TX 76107. 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 its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; and, WHEREAS, the Fort Worth Public Art Program is implementing acommunity-nominated public art iative known as "Community ID: Public Art in Neighborhoods" ("CID") per the recommendations set forth in the Fort Worth Public Art Master Plan (M&C G44087, Sept. 30, 2003); and, WHEREAS, funds for the CID projects have been allocated from the Public Art Fund per guidelines in the Long -Range Public Art Plan for the Water Fund, as adopted by City Council on May 9, 2006, and were included in the FY2009 Annual Work Plan (M&C C-23101, September 25, 2007); and, WHEREAS, the Fort Worth Art Commission, on June 16, 2008, approved the review panel's recommendation to award a CID project to the Summer Creek Homeowners' Association (the "Community Group"); WHEREAS, the Community Group proposed to install the artwork at C.P. Hadley Park in Fort Worth, TX, more particularly described in Exhibit "A" attached hereto (the "Site"); and, WHEREAS, the Community Group recommended artist Michael Pavlovsky of Fort Worth, Texas, to design an artwork (the "Work") for installation at the Site, approved by the Fort Worth Art Commission on June 16, 2008; .and, a �Y SFCRE 0T. W�F'ort�,, � 1 WHEREAS, the Artist's final design for the Work, approved by the Fort Worth Art Commission on July 13, 2009, includes a bronze sculpture that will stand approximately 13 feet tali and will depict flora and fauna of the prairie attached hereto and made apart hereof for all purposes as Exhibit `B"(the "Final Design"); and, WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be implemented in order to promote the integrity of Artist's ideas and statements. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1. General. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary to fabricate, deliver and install the Work, as set forth in Section 1.4. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City, Community Group, and Artist, and approved by the Parks Advisory Board. c. Artist shall install the Work on dates and at times mutually agreed upon by Artist and City. d. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. 1.2. Design Approval. City and Artist acknowledge that the Artist's Final Design has been reviewed and approved by the Fort Worth Art Commission on July 13, 2009 as the basis for executing this Agreement with Artist. 1.3 Execution of the Work a. Upon execution of this Agreement, Artist shall promptly furnish to Contract Manager a schedule ("Schedule") for the completion of the fabrication and installation of the Work, including a schedule for the submission of progress reports, as required. After written 2 approval of the Schedule by City, Artist shall fabricate, deliver and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and Contract Manager shall have the right to review the Work at reasonable times during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by 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. c. Artist shall complete the fabrication of the Work in substantial conformity with the Final Design. However, Artist may present to 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 Final Design. Contract Manager shall, in light of the Final Design, determine whether a significant change requires City approval. 1.4 Delivery and Installation. a. 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. Artist shall deliver and install the completed Work at the Site in compliance with the Schedule; provided, however, that delivery and installation activities may not commence until written permission is delivered to Artist by Contract Manager. c. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering the Work. Artist shall repair any damage to the Site due to delivery, or Artist's negligence or the negligence of Artist's subcontractors. d. Prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. [NOTE.• The written instructions provided during the final design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. 3 1.5 Post -installation. a. Within thirty (30) days after the installation of the Work. Artist shall furnish Contract Manager with a set of at least eight (8) high resolution digital images (.tiff format) and eight (8) low resolution digital images (.jpeg format) showing the Work from at least two vantage points, as selected by Contract Manager to document the project after the Work is installed. b. Artist shall be available at such time or times as may be agreed between City and Artist 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. 1.6 Final Acceptance. a. Artist shall notify City in writing when all services required have been completed in substantial conformity with the Final Design. Included in such notice from 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 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 City's notification of Final Acceptance; or, (2) the 35th day after Artist has sent the written notice to City required under Section 1.6.a unless City, upon receipt of such notice and prior to the expiration of the 35-day period, gives Artist written notice specifying and describing the services which have not been completed. 1.7 Risk of Loss The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and 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. C! ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. City shall pay Artist a fee not to exceed SEVENTY THOUSAND DOLLARS AND NO CENTS ($70,000.00) (collectively, the "Fee"), which shall constitute full compensation for all services performed and materials furnished by Artist under this Agreement, inclusive of final design, fabrication, delivery, installation, artist fee and associated costs. a. TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00) upon full execution of this Agreement and upon submission of detailed estimates from Artist's subcontractors. b. THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) upon Contract Manager's verification of 50% fabrication. c. FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) upon Contract Manager's verification that the work is ready to install d. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00)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 Artist [see Section 1.6 (a)]; provided, however, that final delivery shall not be tendered prior to the expiration of thirty (30) days after Final Acceptance, 2.2. Sales 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 the Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate," in substantially the same form as that attached hereto and incorporated herein as Exhibit "E" For use by Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including but not limited to services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. 5 ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1 Term This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 3.2. Duration. The services to be required of Artist set forth in Article 1 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 3.3. Early Completion of Artist Services. 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. 3.4. Time Extensions; Force Majeure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, 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 be suspended only for the duration of such conditions. ARTICLE 4 'ARRANTIES 4.1 Warranties of Title. Artist represents and warrants that: a. the Work shall be the original product of 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 thereof) has not been accepted for sale elsewhere; C� d. Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Work or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; e. the Work is free and clear of any liens from any source whatsoever; £ Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; g. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence; h. Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, 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. 4.2 Warranties of Quality and Condition a. 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. 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 City observes any breach of warranty described in this Section 4.2 that is curable by Artist, Artist shall, at the request of 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 warranty described in this Section 4.2 that is curable by Artist, City shall contact Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall have the right of first refusal to make or supervise repairs or restorations. Should Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. e. If within one year City observes any breach of warranty described in this Section 4.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses and 7 loss incurred 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 purposes of this Section 4.2. f. 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 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 mold, rust, fracturing, staining, chipping, tearing, abrading and peeling. IV* Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, 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 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 Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 4.3 Survival of Representations and Warranties These representations and warranties shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 5.1 General. Artist shall carry insurance as set out in Exhibit "F." 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 Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 5.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 5.3. Indemnity A. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON- PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. B. ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. d. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. 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. These documents and/or drawings will be retained for archival and exhibition purposes. Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 6.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.3 Reproduction 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 Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Work for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of the Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, lttuve5 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. 10 c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist 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 third 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. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.or) and a permanent plaque at the site. 7.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 1.4. 7.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended major repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, the Artist, during Artist's lifetime, shall be given the ise j opportunity to make or personally superymaor repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and 11 restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. 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 arranged by City without advance notice to Artist, and such repairs 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 incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, 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, City shall have the right to remove and dispose of the Work by any means, including its destruction. c. 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, City shall no longer represent the Work as that of the Artist if the Artist gives written notice to City that it is the position of the Artist to deny authorship on the grounds stated in this paragraph. e. City shall at all times have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 7.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 13. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of Artist. Notwithstanding this 12 provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's A ights. 7.7. Additional Rights and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to 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 services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 9 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at 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 Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor. 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 Artist or any agent or representative to any City official or employee 13 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 Section 10.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by 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 material to this Agreement, the other parry shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 10.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either parry, subject to written notice submitted thirty (30) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of City, Artist shall have the right to an equitable adjustment in the fee (without allowance for anticipated profit on unperformed services), in which event City shall have the right at its discretion to possession and transfer of title to the sketches, designs and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of the Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist pursuant to this Agreement prior to termination. 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, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. 14 b. Should Artist's design have been approved or if Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 10.4, 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. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their race, color, religion, sex, sexual orientation, national origin, transgender, gender identity or gender expression. Such action shall include but not be limited to the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including apprenticeship. b. Artist shall state in all solicitation or advertisements for employment placed by or on behalf of Artist that all qualified applicants shall receive consideration for employment without regard to age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity or gender expression. c. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall be required to comply with Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 15 12.2 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. 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 City. 12.4. 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. 12.5. Governing Law and Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas Venue for any litigation arising from this Agreement 12.6. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their A espective successors and assigns. 12.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. 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. 12.9. Contract Construction. 16 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. 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 City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes 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 Contract Manager of changes in address. 12.13. Surviving Covenants. The provisions of Sections 5.3, 6 and 7 shall survive the termination or expiration of this Agreement.. 12.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to 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. Notwithstanding anything to the contrary herein, this Section 12.14 shall survive expiration 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 Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. 17 ARTICLE 13 NOTICES Ali 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 2. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Is Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 ARTIST Michael Pavlovsky, DBA PAVLOVSKY SCULPTURE STUDIO 1904 Hillcrest Street Fort Worth, TX 76107 [SIGNATURES APPEAR ON FOLLOWING PAGE.] IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year first written above. APPROVED AS TO FORM: Leann Guzman Assistant Ci(Attorney Date. Contract Authorization: M&C C-23909 Date: 11/17/09 CITY OF FORT WORTH Fernando Costa Assistant City Manager Date: ATTESTED BY: Marty Hendrix City Secretary Date: A DTTC�T 1Y11V114�V1 1 K Y 1V Y U11' OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX �oRp 11 po0oo0000 � 00 P7 ON O Exhibit A: Site f�J 20 Exhibit B: Final Design Artist's Sketch of Bronze Sculpture CP Hadley Park Narrative: The concept is entitled Prairie All and is represented by a singular work of sculpture composed of two parts: an allegorical female figure and a three -sided totem — each side of this totem representing an aspect of the North Texas prairie. The allegorical figure standing atop the totem represents the romantic notion of prairie wind. She is a beautifully stylized figure, clothed in a simple sleeveless garment. Her wistful attitude is rhythmic, flowing, and and organic. Standing in contrapposto — arms and flowing, striated hair moving with the wind as it blows across the landscape — the figure is averting her face from this powerful wind. She appears to be languid and serenely luxuriating in this environment. The totem supporting the figure has three sides (panels), its footprint forming an equilateral triangle. Each of the three sides of the totem represents an element of the native prairie: sky, earth, water. There are images of wild life and nature in bas-relief on each of the three sides. The sky panel carries images of various types of native birds that inhabit the prairie. You can see ared- tailed hawk with wings spread near the top of the relief and, near the bottom, there are several quail and doves. An owl is perched on a tree branch near the center of the scene, 21 The earth panel represents numerous animals and plants seen in the region. Near the top is a buffalo; towards the bottom of the panel are two coyotes. Animal tracks meander throughout. Deer, jackrabbits and a roadrunner highlight the lower portion of this relief. The water panel is covered with many creatures that inhabit the riparian zones of the prairie. At the top of this panel, you can see a duck and two egrets. Below are several reptiles and a number of fish and minnows. At the bottom, a catfish feeds. The three sides %J the totem recall the rich visual environment depicted in the North Texas prairie. The more the viewer seeks to see in the work, the more he or she discovers. Together, this allegorical figure and totem panels present a work of art that is classically beautiful, contemporary and modern, while at the same time educational. The sculpture will be approximately 13.5 feet tall overall; the figure will be 5 feet tall and the totem will be 8 feet tall by 20 inches wide. The triangular bronze base is approximately 3 feet 9 inches wide and 6 inches tall. The figure and totem portions of the work will be created entirely of cast bronze. The triangular base will be fabricated from bronze sheet. All parts of the sculpture will be welded together and will receive a copper -red patina. Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation:_ Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: escription of Artwork: D (attach separately if necessary): Artwork Dimensions: Height: Pedestal or Pad Material:_ Pedestal or Pad Dimensions: Height: Width: Width: Location &Description of Signature Markings (or copyright): Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) Depth: Depth: Edition Information if applicable: - 23 Exhibit C: Technical and Maintenance Record Fabricator Address, Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety &Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Materials) Specifications: Joining Methods: Welding Rod Alloy or Joint Material &Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: Finishes &Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV, grafitti1 etc. Please list vendors and contact information and provide all product information): Exhibit C: Technical and Maintenance Record Pedestals, Foundations & Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) 25 Exhibit C: Technical and Maintenance Record Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. The artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Exhibit C: Technical and Maintenance Record 26 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 Texas Print Name Commission Expires Exhibit E: Sales Tax Exemption T}sXAS CERTIFICATE QF EXEMPTION I claim an exemption fiom payment of sales and use taxes for the purchase of taxable items described below or on the attached order or invoice. Descziption of Items (or an attached order or invoice) To Be Purchased: All Items I claim this exemption for the following reason: Nameof'exemptorganizarion: Citvofrort Worth Sales and Use Tax Permit Number 1-75-6000528-6 Project for which materials and supplies are purchased: I understand that I will be liable for payment of sales tax, which may become due for failure to comply with the provisions of the stale, city, and/or metropolitan triursit authority sales and use tax Iaws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items. purchased or the fair market rental value for the period of time used I understand that it is a misdemeanor to give an exemption certificate to the seller for taxI ble items which I know, at the time of the purchase, vrill be used in a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense. Taz Exempt Status Due to Being a Governmental Entity Purchaser: City of Fort Worth Street Addtess: 1000 Throckmorton Street City, State, Zip Code: Sign Here: THn6nce Date: 02/07/2007 Phone: {$171392-8325 This certificate does not require a nrunber to be valid Sales and use tax "exemption numbers" or "tax exempt" numbers do not exist.. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts. Exhibit F: Insurance Requirements PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist and/or Artist's Subcontractors will provide the following insurance requirements. 1. Commercial General Liaty (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include but not be limited to the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. If Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Commercial General Liability Insurance, however Artist's Subcontractor shall provide Commercial General Liability Insurance which shall name the Artist, and The City of Fort Worth, its Officers, Employees and Volunteers as additional insured. 2. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $5003000 Bodily Injury per occurrence $10000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. If Artist does not drive onto Site and if Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Automobile Liability Insurance, however Artist's Subcontractor shall provide Automobile Liability Insurance which shall name the Artist, and The City of Fort Worth, its Officers, Employees and Volunteers as additional insured. 3. For Artists Al Artist's Subcontractors who have employees: Workers' Compensation Workers' Compensation Statutory limits Employer's liability $1005000 $1003000 $5009000 Each accident/occurrence Disease -per each employee Bodily Injury/Disease - policy limit 29 This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. GENERAL POLICYREQUIREMENTS • The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. Exception: The additional insured requirement does not apply to Workers' Compensation policies. • Thirty (30) days notice of cancellation or non -renewal. Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-payment of premium. • Waiver of rights of recovery (subrogation) in favor of the City of Fort Worth. • The insurers for ali policies must be licensed/approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. • If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. • "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. • The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of Exhibit F: Insurance Requirements the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by the City's Risk Manager. CC�1; • The City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. • The City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Exhibit F: Insurance Requirements 3I Page 1 of 3 Official site or fire �iky of 1=�rt NJc�tth, i exas DATE: 11/17/2009 REFERENCE NO.: **C-23909 LOG NAME: 20FWPA CP HANDLEY CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize the Acceptance of a Monetary Donation in the Amount of $25,000.00 from Mr. Tim Fleet and Authorize an Artwork Commission Contract in the Amount of $70,000.00 with Mr. Michael Pavlovsky for the C.P. Hadley Park Community ID Sculpture Public Art Project and Adopt Appropriation Ordinance RECOMMENDATION: It is recommended that the City Council: 1. Accept a donation from Mr. Tim Fleet to the C.P. Hadley Park Community ID Sculpture Project in the amount of $25,000.00; 2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Public Art Fund Section of the Specially Funded Capital Projects Fund in an amount of $25,000.00 from available funds; and 3. Authorize the City Manager to enter into an Artwork Commission Contract with Mr. Michael Pavlovsky in an amount of $70,000.00 for fabrication, transportation and installation of public art in C.P. Hadley Park. DISCUSSION: The Artwork Commission Contract will enable Fort Worth -based artist Mr. Michael Pavlovsky (Mr. Pavlovsky) to implement his design entitled Prairie Wind, a bronze sculpture composed of an allegorical female figure atop athree-sided pedestal. Representing an aspect of the North Texas prairie, each side contains images of wild life and nature in bas-relief. The sculpture will be approximately 13.5 feet tall overall (the figure will be five feet tall and the pedestal will be eight feet tal I ). This project was included in the community -nominated public art initiative known as "Community ID: Public Art in Neighborhoods" per the recommendations set forth in the Fort Worth Public Art Master Plan (adopted by the City Council in 2003). Funds for the CID projects have been allocated from the Public Art Fund per guidelines in the Long -Range Public Art Plan for the Water Fund, as adopted by City Council on May 9, 2006, and were included in the Fiscal Year 2009 Annual Work plan and Budget (approved by the City Council on September 30, 2008). The Summer Creek Homeowner's Association has successfully raised $25,000.00 in private funds from Mr. Tim Fleet to augment the $50,000.00 recommended from the Public Art Fund per the guidelines in the Long -Range Public Art Plan for the Water Fund. Acceptance of this donation will enable the Fort Worth Public Art program to commission local artist Mr. Pavlovsky to fabricate and install public art at C.P. Hadley Park in Fort Worth, Texas. The proposed budget for the Artwork Commission Contract is $70,000.00 which will cover fabrication, http://apps.cfwnet.org/council�acket/mc_review.asp?ID=12598&councildate=ll/17/2009 2/22/2010 M&C Review Page 2 of 3 transportation and installation of the sculpture, artist's fee and other costs. BACKGROUND: Community ID: Public Art in Neighborhoods (CID) is an initiative of Fort Worth Public Art (FWPA) through which the City will assist community groups in generating public art projects that are specific and meaningful to each of the selected neighborhoods. The initiative was launched in Council Districts 3 and 6. Summer Creek Homeowner's Association was awarded a CID project based on the recommendation of the CID Review Panel and the Fort Worth Art Commission. CID Review Panel (Voting): Helen Sides, Chairman Sandi Breaux, Council District 3 Representative Eva Bonilla, Council District 6 Representative Cyndi Caldwell, Council District 6 Representative Advisors (Non -voting): Sandra Youngblood, Parks and Community Services Department On June 16, 2008, the Fort Worth Art Commission approved the CID Review Panel's recommendation to award a CID project to the Summer Creek Homeowner's Association. The Community Group proposed to install the artwork in C.P. Hadley Park and selected Fort Worth artist Mr. Pavlovsky to design artwork for the site. Mr. Pavlovsky was placed under a Design Agreement for an amount not to exceed $5,000.00 to propose and finalize a design including determination of final artwork dimensions and submission of a detailed project budget for fabrication and installation that would not exceed $70,000.00. On July 13, 2009, the Fort Worth Art Commission approved the final design. 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 6. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available in the current capital budget, as appropriated, of the Specially Funded Capital Projects Fund. TO Fund/Account/Centers FROM Fund/Account/Centers 1) C291 488100 806980114480 $25,000.00 3) C291 541200 806980114480 $70,000.00 C291 541200 806980114480 $25,000.00 Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: Fernando Costa (6122) William Verkest (7801) Martha Peters (298-3025) ATTACHMENTS http://apps.cfwnet.org/council�acket/mc_review.asp?ID=12598&councildate=ll/17/2009 2/22/2010 M&C Review Page 3 of 3 20FWPA CP HANDLEY Ord.doc CP Hadley CID Pro'eo� ct Site 2 .doc http://apps.cfwnet.org/council�acket/mc review.asp?ID=12598&councildate=ll/17/2009 2/22/2010