HomeMy WebLinkAboutContract 41144CITY CRTARV
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BETWEEN rjji
w: CITY OF FORT NORTH AND ALICE BATEMAN
This Agreement is entered into this;;3•Y4_ day of ,, 2010 (the
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corporation of the State of Texas (the "City"), acting by and through Fernando Costa, its duly
authorized Assistant City Manager, and ALICE BATEMAN (the "Artist"), an individual, of
3771 Cockrell Avenue, Fort Worth, TX 76110. The City has designated the Ali T S COUNCIL
OF FORT WORTH AND TARRANT COUNTY, INC., (the "Contract Manager") to manage
tiLLdL3 AGPE� I Tas T nnii LtO beLhLtn-tiif. Tfl%contract ILntnLin wr
designated Public Art Project Manager.
sit nil nn t. z _L1_L vr-t . i IF LLI ilia] iip: �sT J L U VJ.i%i 3 , 1- tC?
WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to
el 0d,.,4-;r._-n r) i1 :zf�1he,
l�r.z.4 '%xT,�_. 1� 1"��.�n �� .�i_,n;-t na-. n„ �n create �Z�
.LIt3i]I�l L CI 1. 1111L`) L�)t 3 11111011.V11 /- U � 7L I 1 Fort �1J t 11 111 S�,I li lam, i tL 1 Ji tiLli�iiii� �_ to i,i t�i [3�1
enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural
and ethnic diversity, to integrate the design work of artists into the development of the City's
capital infrastructure improvements, and to promote tourism and economic vitality in the City
through the artistic design of public spaces;
WHEREAS, the City is designing and constructing a new traffic circle on Elizabeth
Boulevard and 5th Avenue in Fort Worth, Texas, more particularly described in Exhibit "A" and
•
11en!NV rifle. rilt %P1'04111 NI7 t•PL'P4'nn riCt ith got "Q- P f•
WHEREAS; the Fort Worth Art Commission (the "FWAC") has identified funds in the
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WREREAS, the Artist was selected by the City through a competitive selection process
==�-1;=.,-. ;ram Liz„ l�`,-..,4- Z1T,-.,,�?- T)-.al-.l; A :,� 1 .,T „4 1-)1,, ns..1 �__��=.,f,�� 1tz� �1��, f`��_� ,�.�¢ T� Jr-kt r,��,--7=ti=
Ii�LLii tJ it I [ ll i Xv ijl tit 1Lt7LLC � l il/ili,�L l IcL�i ant l.t�lliiiii.l tl Ll Ii1U %,tJ111_1r9t.l. lyic !IdE :1 VYLEI!
oversight of the FWAC to design, fabricate, and install a steel tower made up of four large forms
that support a top -tier concealing lighting to illuminate the sculpture at night (the "Work"), more
I1-19-10 PO4
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
particularly described in Artist's Preliminary Conceptual Proposal (the "Conceptual Proposal")
attached hereto Ex :1� "B" ted he 1. F
x�La3Ls1!y+a _�eieau as L r�LJt. Lt niIU ai>coIuoraict3 herein by reference:
WHEREAS, the City and the Artist wish to set out the terms and conditions for the
JAI aiaa iaal aacir9atiom in the iii'o Fect. including consultation with aloe iay 5 arolet a coFlsllaaz,JaaS.
Kimley-Hom and Associates (the "Project Consultants");
NOW, THEREFORE, the City and the Artist for and in consideration of the covenants
and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
flIlh«>n•
,.vuvVS, a.
1.1 Scope of Services.
a
ARTICLE 1
rnnnr %D )FDeFo tJ,4I ftT ITYTDDADLta.)
•
•
The Artist sai�ii deter�llfne tie aitistic expression- scone, desi _ color. sizes material• and
texture of the Work, subject to review and acceptance by the City as set forth in this Agreement.
b. The Artist shall perform all services and will fiumish all supplies and materials as
necessary for developing a Final Design of the Work at the Site (the "Final Design") and for
providing the Final Design Deliverables (hereinafter defined in Section 1.2 of this Agreement),
t forth Section 1..,11 1.,. .-F ......,..a -F .,,,•,�..�.1
as sea ort 1 in Section a .L, oa aaaia grcettactit. .)el Dices Shall he uet ava aaacu in a rlroac»FLaaacaa
manner and in strict compliance with all terms and conditions in this Agreement
c. The Artist shall consult with lighting and electrical engineers and a qualified art
c+riSetV.toi and shall nrovsiC wsstmaintenance rtcomilcnd atI:ois for 4-wL sculriture ILvnai said
conservator to the Contract Manager.
d. The Artist shall meet and coordinate with the City, the Project Consultants, and the City's
construction Dronect manager. as needed_ to ensure that safety criteria use met and to ensure
proper integration of the Work into the Site and into the construction documents and to ensure
that there is sufficient structural support and electrical conduits for the Work.
e, The Artist shall present the Final Design to the designated community stakeholder's
group, Fort Worth City Council Members, and Fort Worth City Officials for review and input.
2 of 27
The Artist shall also present the Final Design to the FWAC for review and approval at dates and
time tuaLly agics,d ninon,
1.2 Final Design Deliverables
a. Within three (3) months after the execution of this Agreement, the Artist shall provide
services and all supplies, materials, and equipment necessary to provide certain deliverables, as
set forth in this Section 1.2.a.i.—v. (collectively, the "Final Design Deliverables ') to the City.
DuDclivcraiilcs shall consist of the following:
i. Sketches, mockups, technical, and budget infotination, or any other information
as may be reasonably reaueSteu by the Project Consultants to incorporate the Artist Final
Design into drawings, renderings, models, etc., being prepared by the Project Consultant,
as applicable. These deliverable shall be forwarded to the Project Consultants in a timely
fashion;
ii. Two final design illustrations showing the proposed Work from two vantage
points with at least one illustration showing the Work's size and Placement in relation to
the Site, which shall be at least 20" x 30" and mounted on foam core and/or in a high
resolution digital foimat, such as a PEG file If the design has not changed, the initial
proposal drawings could suffice:
iii. The Artist shall provide a final written narrative describing the following items
(1) Final Design concepts and timeline for completion; (2) Proposed materials, fabrication,
and installation methods for all elements of the Work (3) Maintenance requirements for all
elements of the Work as dictated by the Artist along with cost estimates for annual
maintenance* and (4) Proposed public education program 81 to be conducted by the Artist
during the commission phase of the artwork;
iv. Comprehensive working drawings, detailing the means of installing all elements
of the vVork on the Site. including attachment methods for the vWor . toEeUIcr with other
such graphic material as may be requested by the City to permit the City to carry out
structural and electrical design review. These drawings must be signed and stamped by an
engineer and/or architect licensed to work in the State of Texas as required by the City.
The Artist will obtain and furnish to the City certificates of professional liability insurance
3of27
from each such licensed professional and will require the City to be named as a "certificate
holder entitled to notice of cancellat on/nonrdnewa1 in accordance with standard rractices,
The Artist shall not be liable for the use of the drawings submitted under Section 1 2 a iv.
for any use other than the Final Design; and
v. A detailed. final budget or the Work with written estimates attached for NULYnlies
and services to be provided by the Artist and others, including, but not limited to, the
Artist's subcontractor(s) or the general contractor, in an amount not to exceed $60,000 on
the budget form attached hereto as Exhibit "C" for implementation of the Work through an
Artwork Commission Contract with the City. (See Section 1 3).
b. Upon completion of the Final Design Deliverables, the Artist shall meet with the City
officials and community stakeholders, as appropriate, to present the Final Design, at a date and
time mutual y agreed upon, for input.
c. The Artist shall present the Final Design to the FWAC for approval at regularly
scheduled meetings.
d. Upon approval, the Artist shall provide the Final Design presentation materials to the
Contract Manager to become part of the City's Public Art archive owned by the City. These
documents, models, and/or drawings will be retained for archival and exhibition purposes. The
Artist's Final Design and all other work products under this Agreement shall become the
oronerr v of the City. without rostrction on future use. (See Section 4.1.a).
e. Upon the Artist's request, the City, the Project Consultant, and/or project manager shall
promptly fiirnish all information, materials, and assistance required by the Artist in connection
with said submission to the extent such materials are available. The City, upon request, shall
also provide correct scaled drawings of the Site, if available.
1.3. Implementation Budget Total.
The Artist shall develop a Final Design that is financially feasible relative to the budget for
implementation. It is understood that },fie total budget f ¢ ¢ for the nrohec1 is estimated at Tan
1
THOUSAND DOLLARS AND NO CENTS ($60,000) reflecting total costs, which includes, but
is not limited to, materials, labor, fabrication, delivery, installation, insurance, transportation, and
all associated costs for the Work. as well as a fixed artist's fee of 20% (and engineering fees naid
4 of 27
under this Agreement). The Artist shall provide a detailed budget, on the budget form attached
ilk Cs.,;hir%to asExhibit c/n»iin7emntat.on tilts \or2 through is Artwork Commission
Contract with the City, which contract is subject to the approval of the Fort Worth City Council
1A
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ter__ m 77.77: iz.::
a. The City may require the Artist to make such revisions to the Final Design as are
necessary for the Work to comply with applicable statutes, ordinances, and/or regulations of any
governmental regulatory agency having jurisdiction over the Final Design Site for reasons of
safety and security.
l.,imay -----------------------
inciithe tit to make stteii Ievisioiis to me i iitai iJt sigh as iiii
City deems necessary in its sole discretion.
Within
7 • /7 \ tin C • r -the
f 7 • • the
vv i niti ir1Yi'iv i i tiail�: tip its f=E'C.t�YPii [�� >ric= �iriY�:i �: \i�rlrriiSWi l l elf irir
a
n
City shall notify the Artist of its approval, or disapproval, of such submission and of each
revision made in the Final Design. Revisions made pursuant to this Section 1.4, upon approval
by the City, shall become part of the Final Design.
d. If the Final Design or any required revision is disapproved by the City, the Artist shall
have a reasonable amount of rime to resubmit the Final Design in i'onfornance with the Citv's
requirement.
e. If resubmitted materials are not approved by the City, this Agreement may be terminated
t the C t,,discretion_ t A t: t i -f d ,i th
: � rr3C :r v s with uavr;�cnt madeto the Artist for worn_ utiior f tr under t uav in nt
schedule set forth in Section 2.1.
f. Upon the expiration of the Teiin (hereinafter defined in Section 3.1) of this Agreement, if
the Final Design is accepted by City and funding is auuroved by the Fart ZvOiuL City Council.
negotiations for fabrication, delivery, and installation of the Work shall commence, all of which
shall become part of the deliverables under the subsequent Artwork Commission Contract.
2.1.
The City shall pay the Artist a fee not to exceed NINE THOUSAND DOLLARS AND NO
CENTS ($9,000.00), which includes a fixed Artist's fee of SEVEN THOUSAND DOLLARS
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
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AND NO CENTS ($7,000.00) that is inclusive of incidental costs and all travel expenses (the
Area r. Feea arid engineering. ruff consulting fees rr the niiirliirrt. Of vv>> THOUSAND
vN'f
DOLLARS AND NO CENTS ($2,000.00) (the "Engineering and Consulting Fees"). This shall
constitute full compensation for all services and materials to be performed and furnished by the
Artist under this Agreement, including engineering and consulting fees as provided below.
The Artist's Fee shall be paid in the following installments, expressed as portions of the Artist's
F"' i' installment to ryun,, nt Atal t anu f ltu non-refuridaule uaViiisnt for nii siren, and
Fee. ea_c � in t. .ent
materials provided prior to the due date thereof.
The Artist's Fee shall be paid as follows:
a. Two Thousand Eight Hundred Dollars and No Cents ($2,800.00) upon execution
of this Agreement, recognizing that the Artist has already invested time and expense in
vrel;m;naorV des; team coordination will the roiectConshltarts and the Ci.tV,
b. Two Thousand Eight Hundred Dollars and No Cents ($2,800.00) within thirty
r rrr CHvS after the Artist submits/'Final Design Deliverables_" as retliiirErr rir .ictaiC)ir
1.2.a. i-v. of this Agreement and makes a presentation of the Final Design to the FWAC.
c. Fourteen Hundred Dollars and No Cents ($1,400.00) within thirty (30) days after
the City's approval of the Final Design
The Engineering and Consulting Fees in an amount not to exceed Two Thousand Dollars and No
Cents ($2,000.00) shall be reimbursed to the Artist for engineering fees and a conservator's
a 4' 4 ^ 14' 1i aL -C al.. A n.-a L 11 L 1
=rriSii a%laarrii r.Ci erirrir x.1re rCrrr S Cir MIS taarrcciiecirr._ nrn,rr iravrlreiit Srrtrle ere rnattc
iinon reecirit.?rf
an invoice from the Artist with the original invoice (a retainer fee of up to 50% is allowed) for
such services attached.
2.2. Sales Taxes.
The Citv is a tax-eneiiiut or aiii7atrvrr and no state or local sales taAh1k, or federal excise taxes
shall be due upon the Work. The City shall supply the Artist with the "Texas Sales Tax and
6 of 27
Local Sales Tax Exemption Certificate" in substantially the same form as that attached hereto as
Exhibit""
f Ui �Jn.
2.3. Artist's Expenses.
Tile Artist shall he i"�Siinnsiblc for t12 naY!!e'Li3ts Lit aii expenses incurred l during rifle i3CI IkllI taiiCe
of this Agreement, including, but not limited to, services, materials, mailing/shipping charges
and insurance on submissions to the City, cost of all travel, and costs for the Artist's agents,
consultantse
l /.-...
4i351 #1 iJZ
cml�ilovices necessar v for the lJroner uerfurintmce of the, sen icers ranked
under this Agreement.
9 ARTICLE 3
1, Hai ANT)
i TERNITNATION
3.1 Tenn
Thi Airrcemcritshalleffect ]* 4I.,, Effective Date l s rl 1
tins _ be in ers� c� ff3iii Wit. ISg1 csJi, LJCLLC cuts. iii�ess .yrsli.aliatea� earlier
pursuant to such provisions in this Agreement, shall extend until final payment to the Artist by
the City, whichever is later.
3.2- Gratuities
The City may cancel this Agreement if it is found that =Waffles u, the form of error i uen1-
gifts, or otherwise were offered or given by the 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 awar'.1111 amending or making of any determinations with respect
performance of this Agreement
to this
3.3 Termination for Cause
Li either uaitV to th's Azreement shall w"ifidly or "e!htcntly fall to fulfill in a timely and vroncr
manner, or otherwise violate, any of the covenants, agreements, or stipulations material to this
Agreement, the other party shall thereupon have the right to teilninate 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 (the "Cure period"). If the default is not cured during the Cure pe lod, then this
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Agreement shall terminate. Termination of this Agreement under this provision shall not relieve
t1. t.. default liability F 1 tina- br,..c1. to 7' l-n UILt u:it.v in t11II milt of any 'iuuhity an (nnnigCS t. ,biun from a ,
= r sa_i.as.,as or a vii}tatiC3n of the
terms of this Agreement
3.4 Termination for Convenience
.i. The services to be performed finder tiiiS AiUCment may be terminated by either patty,
subject to written notice submitted thirty (30) days before termination. The notice shall specify
whether the termination is for convenience or cause.
b. `i If the termination is for the convenience of the City, the Artist shall have the)J J rightp�fto fees
VY1 for Jrk Di f l erflr%d, iii. V rhich event the ray shell" have the tihl t at its discretion to Oessio i
and transfer of title to the sketches, designs, original proposal paintings or illustrations,
fabrication samples, and models already prepared and submitted or presented for submission to
utL City by the Artist finder this Agreement rnut to the state of termination with all. right biianl C4i
to the City in Section 4, but provided that no right to fabricate or execute the Work shall pass to
the City.
c. 7 If termination is for the convenience of the Artist, the Artist shall remit to the City a sum
equal tJ all n�uymeu o !if any) made to the Artist pursuant tothis Agreement prior to to - nut1in
3.5 Incapacity of the Artist
a. In the event of the Artist's death or physical or legal incapacitation during the term of this
Agreement, the City shall have the right to terminate this Agreement on payment to the Artist or
the 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 the City.
b. Should the Artist's design have been approved or if the Artist's work has progressed to
the point of fabrication of the Work, in the event of termination under this Section 3.5, the City
1I1 1 1. 1 t 1 t,. I .1� 1.,,71 tt-. Anises intended
,1
a have t to rigtlt to complete the Wank. JaaC rCgtu'.'d Shttut be made for the Anil , inten ed
results and proper credit and acknowledgement shall be given to the Artist.
8 of 27
ARTICLE 4
REPRODUCTION RIGHTS
4.1 General
a. Upon payment in hill to the Artist, the Artist's Conceptual Proposal, Final Design, Work,
auu all other Work product under th sAQ3'CCmCnn Shan11 be
come OLUUCrty 3f_ the City without
restriction on future use, except as provided below. The Artist shall retain copyright and other
intellectual property rights in and to the Conceptual Proposal, the Final Design, and/or the Work.
By execution of this Agreement, the Artist grants to the City a perpetual, irrevocable license to
graphically depict or display the Conceptual Proposal, the Final Design, and the Work for any
non-commercial purpose Vvhat oeLrer. For uul;lose.i of this 1l;nitatl`in,
any graphic depiction or
display of the Conceptual Proposal, the Final Design, or the Work intended to promote or benefit
the City, its public services, or its public purposes, regardless of whether or not a fee is charged
to the nubiic or whether revenue is otherwise received by
itvs shah be deemed a non-
commercial purpose. Notwithstanding the above limitation, the Artist agrees and understands
that nothing in this paragraph shall affect or limit the City's absolute, unrestricted rights
incidental to the Citv's fall ownership of the final Work to alter. change. modify. t
des�icv_
remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the final
Work when the City deems it necessary within its discretion, in order to otherwise exercise the
Citv'S poVW' uiS and resnonsiblity in regard to nubile works and improvements in furtherance of
the City's operations or for any other reason. The City agrees to credit the Artist as the creator
and copyright holder when it graphically depicts or displays the Work.
b. The City shall take title to all documents and/or drawings, which constitute or are
com; onents of the Conceptual Proposal and/or the Final Design., upon final approval of the Final
Design. These documents and/or drawings will be retained for archival and exhibition purposes.
c. The Artist reserves every right available under the Federal Copyright Act to control the
making and dissemination of conies or reilioductioins of the Coneentua1 Proposal and/or the Final
Design, except as those rights are limited by this Agreement. The City may make and
disseminate photographs, drawings, and other two-dimensional reproductions of the Conceptual
Proposal and the Final Design and accompanying materials for any municipal purpose. All
reproductions by the City shall contain t t77,, Artist + d 1.� notice 1. trin roily
4T 11 LVi�L47rrr 4�. credit to the L'Ll ilb4 4'inti a LVlJ Vri UL i�.EJ 4SLL li U:�SnrrUp p,�q
in the following form: "o date, Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Conceptual
Pronosal LUL Final �%si ii. or the Work sirs m[titier.irrk allu ptumOiLULI.1I ptir„poses in connection
with the Artist's business; provided, however, that the Artist shall make her best efforts to credit
the City for commissioning the Work whenever possible.
e. The City is not responsible for any third -party infringement of the Artist's copyright and
not responsible for protecting the intellectual property rights of the Artist
r4.2 Artist's Address.//� r 1 forth /� m 1 !9P Artist
she'll Y11l�� ITS, the City of changes •n the Art ot'o address
no (apt 4n Article 10 The
311E 11at sh4141. 11Vti1Y the \..11Y Vl y1J�i Ltc.%.n, in the [ 11 iJ) J 14 LllVs µ+J set JJi.1111Y1i., LV. 1.21E
failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a
waiver by the Artist of the right subsequently to enforce these provisions that require the express
anriroval of the Artist. Notwithstand'iitins nrovisioii. the City sliaii mane every reasonable
effort to locate the Artist when matters arise relating to the Artist's rights.
ARTICLE 5
VY t R
Yv K fl A A N'l`ii Tii C�
n
The Artist represents and warrants that:
a. The Conceptual Proposal, the Final Design, and/or the Work shall be the original product
of the Artist's sole creative efforts;
b. The Conceptual Proposal, the Final Design, and/or the Work are and will be unique and
original, and do not infringe upon any copyright or the rights of any person or entity;
10 of 27
c. The Artist has not sold, assigned, transferred, licensed, granted, encumbered, and/or
tu. tcd the Conceptual Proposal the Final Design and/or the Work or aims element thereof
or
any copyright related thereto that may affect or impair the rights granted pursuant to this
Agreement;
d. The Conceptual Proposal, the Final Design, and/or the Work (or any duplicates thereof)
have not been accented for sale elsevaheie,
e. The Conceptual Proposal, the Final Design, and/or the Work are free and clear of any
liens fro;n any source •whatsoever:
f. The Artist has the full power to enter into and perform this Agreement and to make the
�i—afit of rights contained is! this Agreement:
g. All services performed hereunder shall be performed in accordance with all applicable
laws. regulations ordinances. etc.. and with all necessary care. skiand d gcncc: and
h. The Artist shall assume the defense of, and INEMNIFY AND HOLD HARMLESS,
TIIE ITY= ITS' PRENTrAz'Ea v'<S_ OF FIC_ERS. EMPIDYERS. AGENTS. NI)
s
CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES,
ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT
NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED
ARISING OUT OF 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. THIS SECTION 5.1(h) SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
11 of 27
ARTICLE 6
ARTIST AS INDEPENDENT CON'InflCTfn
The Artist shall perform all work and services hereunder as an independent contractor, and not as
ofth City h
an officer. agent servant. or employee the l-,l�v. The Artist shalt have exclusive control of. an
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. emniovees. an subcontractors. Nothing herein shall be construed as creating a
partnership or Joint venture between the City and the Artist, his/her officers, agents, employees,
and subcontractors, and doctrine of respondeat superior has no application as between the City
and the Artist.
ARTICLE 7
INDLMA ) 'I.C'� A TION
Li1Xl1 L'i tt i i�.11
a. THE ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS
AND npt.a.r,Tf AT ITS OI TN EXPENSE THE Fir- n AND ITS REPni epxTTAI'TS
3JLi'L,l i/. i ITS l V Y 1 L,11 [ �l .)L' i L.R_!_, t L i i IJ ITS ill.... irl i V L' .3
OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND
ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
II`ITLRY. INCLE IDING. BLIT NOT LII'X?;TED TO. DEATH. TO ANY AND AUL PERSONS.
OF WHATSOEVER KIND OR CHARAC1'ER, WHETHER REAL OR ASSER'1'hD, ARISING
OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE OR NONPERFORMANCE ;31 THIS AilnlEElvn2NT ALNTD/I;Pi THE
OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT
SAID CLAIMS OR SUITS ARE CAUSED BY THE ARTIST'S NEGLIGENCE OR WILFUL
MISCONDUCT: art TgIiE AD'''IST HFP,EBY ASSLT �' S ALL LIABIfITY AND
RESPONSIBILITY OF THE CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS,
SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR
PROPERTY LOSS' OR 'TkAAGE AND/OR PERSIONAL INIJro Y INCLUDMIG BUTT' NOT
LIMl'1'ED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR
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CHARACTER, WHETHER REAL OR ASSER t'LD, ARISING OUT OF OR IN
CONNEC'i 01\T WITH
T
n_LvYnCr mrnl.3= PERFORMANCE
ATTEMPTED
CS1 1L,1 La LL'Ll
PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE
OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT
SAID I11 rL 40 OR SLITS Anfl CAUSED nv THE ADprom'S NEGLIGENCE OD \WT Frrr
.) YLL) >. J1X SLITS \1 , CAUSED L)11 111 11!!', ARTIST'S OR YY !! : tJtr
MISCONDUCT. THE ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES
HEREBY INDEMNIFY AND HOLD HARMLESS THE C1I'Y FROM AND AGAINST ANY
AND ALL WITU 4Y= DAB ;AGE A_T,TD/OR DESTRUCTION OF PROPERTY OF THE CITY,
ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF THE
ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS,
lr' V TEES. LICENSEES OR PROGRAM PARTICIPANTS.
b. THE ARTIST AGREES TO AND SHALL RELEASE THE CITY, ITS
REPRESn7.4rAr nnc. AGENTS LMPLnvnEO. OFFICERS AND LEGAL
REPRESENTATIVES FROM ANY AND ALL LIABILITY FOR INJURY, DEATH, DAMAGE,
AND/OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY THE ARTIST IN
CONNECTION WITH OR ThTC DENT, T Mix_ ftr% nnnnOR Y;ANCE UNDER THlr
AGREEMENT.
c. The Artist shall require all of its subcontractors to include in their subcontracts a release
indemnity in favor of the City in substantially the same fo_ri;, as above.
d. The Artist agrees to accept indemnification provisions in substantially the same form as
above. in the siiliseauent ArtworR Commission Contract.
e. All indenmification provisions of this Agreement shall survive the termination or
r
CRBB &3 a!t'lllrl f t this Agreement.
ARTICLE 8
EOUAT nrrPrtn mr TN v
1:L Lr 4JE il\.1 lJ1 L 1
a. The Artist shall not discriminate against any employee or applicant for employment
because of age, disability race. color. religion. seX_ sexual orientation. national orr air. L'r
13of27
status, transgender, gender identity, or gender expression. The Artist shall take affirinative
anon to ensure UJXLL tmUIuVtts are 41ta4ii4A eternally during te1,iriovflK.nt, without rt:�WAt icr their
age, disability, race, color, religion, sex, sexual orientation, national origin, familial status,
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, but not limited to, apprenticeship The
Artist agrees to post in
•
nrill cninnrya in
i.vii.7 Ni...uvua
places, available to
Ym�1JtV YeeJ
and applications for
i Ul.I4i-i•✓tEtiViiil 1
employment, notices to be provided by the City setting forth the provision of this
nondiscrimination clause.
b. The Artist shall, in all solicitation or advertisements for employment placed on or on
behalf of the Artist, state that all qualified applicants shall receive consideration for employment
without regard to race, color, religion, sex, sexual orientation, national origin, familial status,
transgender, gender identity, or gender expression
c. The Artist shall furnish all information and reports requested by the City, and shall permit
access to its books, records, and accounts for purposes of investigation to ascertain compliance
such rules :md rt ula ions,
d. In the event of the Artist noncompliance with the nondiscrimination clauses of this
ieei clf. this Agreement lav it canceled. terminated, or susona ,a
ueu in whole or i raisand
the Artist may be debarred from further agreements with the City.
ARTICLE 9
MISCELLANEOUS
9.1. Compliance.
The Artist shall comply with all Federal, State, and City statutes, ordinances, and regulations
a• al t ofba Artist a this,
annlicab c ,�� ULC performance lILG r_s�ia� services under A�iccii�cn�.
14 of 27
9.2. Entire Agreement
This write embodies the entire agreement and understanding between the u. des all hereto l J i.
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.
w9.113. Amendments.��y/.. f� }}���� ' (y} 1
No alteration, change, modification, or amendment of the terms of t fls Ar.•clement shall be valid
or effective unless made in writing and signed by both parties hereto and approved by
appropriate action of the City.
9.4. Waiver.
No waiver of performance by either party shall be construed as or operate as a waiver of any
subseilucrlt default of any ems, covet -kb -its. and conditions of this Ag cclriclit. The navlliei',.t or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
9.5. Governing Law and Venue. /�
If •I action, vyhether real or asserted, at law or in e ;urty, arises on the basis of aiiv 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
Ameeirlent shall be construed in accordance with the laws of the State of Texas
9.6. Successors and Assigns.
Neither ua: tv hereto
shall-hall
S
assial_ sublet, ;Jr transfer its interest h' without written I.b1Li�L herein wibJSJia [, UriJr wri�fl.�,n
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 the City and the Artist and their respective successors and
permitted assigns.
15 of 27
9.7. No Third -Party Beneficiaries.
The provisions and contitions of this
reorient are solely for ife benefit of the City' a.m. the
Artist, and any lawful successor or assign, and are not intended to create any rights, contractual
or otherwise, to any other person or entity.
9.8 Severability If any provision of thl' s Aleement shall be held tV be invalid,
lid.
e,al, or 'unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired.
9.9. Force Majeure.
It is expressly understood and agreed by the parties to this Agreement that, if the performance of
any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement
weather; governmental restrictions, regulations, or interferences, fires; strikes; lockouts, national
disasters; riots; material or labor rest ict'lo n.s; transportation problems; or any other circ%4mstai ce s
which are reasonably beyond the control of the party obligated or permitted under the terms of
this Agreement to do or perform the same, regardless of whether any such circumstance is
•
siinwir to any 01 ;hose enumerated or not the pasty so oh -heated or 'era too_ shall be excused
from doing or performing the same during such period of delay, so that the time period
applicable to such design or construction requirement shall be extended for a period of time
equal to the period such party was delayed.
9.10. Contract Construction.
The parties ack owie d.gc that each Party an_d if it so chooses. its "Counsel have reviewed a
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.
9.11. Fiscal Funding Out.
If I
any reason. at any time dur'm_ any term of this Amcrncnt the City
'_ uuu -en 'Ll . tk r
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City
16 of 27
may terminate this Agreement to be effective on the later of (i) thirty (30) days following
delivery by the City to the Artist of written notice of the City's intention to tCau.ainata, or (ii) the
last date for which funding has been appropriated by the City Council for the purposes set forth
in this Agreement.
9.12.rCaptions „y
Captions and headings used thisAgreement are for reference purposes nalrz sandin
deemed a part of this Agreement.
9.13. Artist's Address.
The r,ains shall %tifv the Contract Manager of changes in add
ress
9.14. Surviving Covenants.
The S ob'CnaiitS i .d tJUfl.S on,S set iJrth in this A ieeaient Shall not Survive the death o
•
,Jhi. air.
incapacity of the Artist.
not be
C1:11.it
9.I5 City's Right to Complete.
In the event of the death or legal incapacity of the Artist, the City shall have the right to complete
the Woe' and shall give credit to the Artist, as appropriate.
9.16. Right to Audit.
rrae Ant St amCs that the City sill have the rimht to audit the Financial and ui}iuCSS records of
the Artist that relate to the Work (collectively "Records") at any time during the Term of this
Agreement and for three (3) years thereafter to determine compliance with this Agreement.
Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make
all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another
location in the City acceptable to both ; artres foiLloVYLnC reasonable advance notice by the City
and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to
the contrary herein, this Section 9.16 shall survive expiration or earlier termination of this
Aerccinent.,
17 of 27
9.17. Certified MWBE
If annlicable_ the Artist shall Litt, its best effort to become a certifinAt 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.
9.18 Survival Provision
The provisions contained in Articles 5, 6, and 7 shall survive the termination or expiration of this
Agreement.
9.19 Public Information Act
The Artist understands and acknowledges that the City is a public entity under the laws of the
State of Texas and as such. all documents held iry the City are subiect tip disciosure under
Chapter 552 of the Texas Government Code. The Artist shall clearly indicate to the City what
information it deems proprietary If the City is required to disclose any documents that may
reveal any the Artist Proprietary Information to third parties under the Texas Government Code,
or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the
City VY&L notify Ilia 1flflbjt prior to disclosure of such documents, and
'e the
A1 3.rtlst 4313.0
opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to
the Artist's information to those persons within its organization who have a need to know for
riot -noses of iilaiia2eiieeilt of this A_gtmeement. The City iaEaees to iiiiiitiii its employees of the
obligations under this paragraph and to enforce rules and procedures that will prevent any un-
authorized disclosure or transfer of information. The City will use its best efforts to secure and
protect the Artist's information in the same manner and to the same degree it protects its own
proprietary information; however, the City does not guarantee that any information deemed
propi e}tary by the 1ii ust `will be protected ft-om public disclosure if release is reMuiied by law.
The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3)
years after the expiration of this Agreement.
18of27
ARTICLE 10
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be
given tinder this Agreement shall be in writing and shall be deemed to have been duly 3 i'v'en
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 von Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Copies to:
City Attorney
Law Department
1000 Throckmorton Street
Fort Worth, TX 76102
Martha Peters, Public Art Vice President
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Mori Worth, TA I o 1 V i
Alice Bateman
3771 Cockrell Avenue
uidi, 1A ,V110
[SIGNATURES APPEAR ON THE FOLLOWING PAGE ]
19 of 27
IN WITNESS HEREOF, the parties hereto have executed this Contract on the Effective Date.
APPROVED AS TO FORM:
Assistant City Attorney
Contract Authorization:
No M&C Required
CITY OF FORT WORTH
by: Fernando Costa
Assistant City Manager
ARTIST
a 64 reAAA41/4
Alice Bateman, Individual
ATTESTED B Y :
arty Hendrix
City Secretary
eztl_rp,
ity
t1.
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
20 of 27
Exhibit A: The Site
Traffic Circle intersecting Elizabeth Blvd & 5th Ave
n
CCNCRETE
CONCRETE
•
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ig
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e
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(ONIA'�d .nvHdsv)
'ante H±]9VZ11E
CONCRETE
CONCRETE
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1 m 1
'or
r
21of27
I®i1
CD
rill
1aas
asi
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120
Cie
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COD
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Niume
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ine Psi
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Exhibit C:
Budget
enmpiete this fcartn and attach a aimed t at eatln ate cs rnPI tarlth per un1
nay lump aarnsj fc4 all items dean vrith an gat k 'I, lr reaaes rust
the a mitten eetimate attached.
ARTISTS FEE (2c%)
TRAVEL
(For artists who lira Inc(e than 5r r miles hart Fort Worth)
INSURANCE
ADMINISTRATIVE EXPENSES
Airfare
Car Rental
Per Diem Expense at v_ per day
Mileage at $__ NI mile
.Au1c Hired Vehicle Liability
naval Liability Ica Artist/ Sut•:cntraQ1cas
;Ito' s Co p. r t a tis n y
Cther, as applicable
Phctte;Fa
dreorinqs etc)
aphic Sery ke
Sui:pl des
PROFESSIONAL CONSULTANT FEES
di applicable, drawing must be signed and seated by a professlcrtal registered to practise
in the State of Tees)
Photograplw (
Rrc hired'
Struaural Engineer'
Elect i:al Engineer•
Goner We*
documentation of oDmpletedwork) •
01kore
MATERIALS
(Please attach a complete list of materials. Itemize all antiat:ated aspects and
°prop?nents with per unit cost estimates)
Materials' Total
Cost Incrfed in rase in t+mot Materia.Fry 12 vtcnths in Future
FABRICATION COSTS
(In:lude and itemize all portions of sub;crttractedwork and work to be completed IN
artist)
Facility/Equipment Rental (used
Cast Increases?: Prcjeted Inc
Artist's L ebor ( hours at S__ per f•aurj Total
Sutcontracted Labor' (Total)
lus vety for this pr;jact) related to fabrication
in Cost Fatekation 12 1lcnths In Future
SITE PREPARATION
(D, not in:iWde costs covered by FWPA, Gity of Fort Wcath nor others)
Test Drilling*
Removal'
Lands caping/1 n 1381 bn'
Electrical Modifications'
23 of 27
Water Work^Mechanlcal Devices
Ot Ins'
Cost Increases?: Protected Increase in Cast Site Preparation 12 Mcoths In Future
TRANSPORTATION
Materials to Falxhation Site'
Finished Wcsk to Installation Site.'
OIi w
�sanec:cdation 12 Mcoths In Future
BASE MOUNTING
Base
Mounting Devices and Components
Foundatbni Fccting
Othck-
Cost Increases?: Protect Inciease in Crest Mauntirx} Fccting 12 Mcoths In Future
INSTALLATION COSTS
;Gets must include allowance for after Ireurs Installatim, if agpI;able. Please attach a
crempelete list of equipment and individual estimatessmith this farm
LIGHTING
Intea€:?:
Scaftcld ing'
Equrnent Rental related to installeden'
Off -dirty Poolic Secinity'
Traffic Barriers'
adl ty F?ental'
City Permits
Display Devices
FireFno tin3'
Site Restoration'
Other
in C<rt inait t on 12 tic tths In Future
Designers'
Fktures'
Bulbs'
'tine rreparathri
Installs.' ken'
Cost Inaeas?s'?: Projected hrtease in Gat Lighting 12 Mcoths In Future
GRAND TOTAL ;Inducting Pole
Please make any necessary nos here:
Prepared
Date:
24 of 27
Exhibit D: Sales Tax Exemption
I 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.
Description of Items (or an attached order or Invoice) To Be Purchased:
I chirp tlt ,q t=,r.-rmntinn fitr t}r lllnrt•.n' rrnn•
Name of Exempt Organization: CITY OF FORT WORTH, TEXAS
TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-6000528-6
Project for which materials and supplies are purchased:
1 understand that I will be liable for payment of sales tax, which may become due for failure to comply
with the provisions of the state, city, and/or metropolitan transit authority sales and use tax laws 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 taxable items which
I know, at the time of the purchase, will be used in a manner other than that expensed in this certificate
and, upon conviction, may be fined up to S500 per offense.
Tax Exempt Status Due to Being a Governmental Entity
Purchaser: CITY OF FORT WOPTit. TRY S S
villcl '1•.• .S 1VFrii ""
City, State, Zip Code: FORD WORTH, TEXAS 76102
,jam �` / //21
•/ !,';
Sign Here. f) L,,1/4 -¢ Date: June 11, 2009 Phone: 817-392-8517
Financ$qag tcntSeni&h Director
This certificate does not require a number to be valid. Sales and use tax "exemption numbers" or "tax
exempt" numbers do not exist.
This certificate should be furnished to the supplier. Do not send the completed certificate to the
Comptroller of Public Accounts.
25 Of 27
Evbihit Et lfnsurnnre 1<dertialirements
Yurnau ART YKUJLUia - ilNSURAIN CE nryun(rivimiNi,S
The Artist shall meet ail thee fnllnwincr insurance rennirements for this Prnieet namin¢ the City
as an additional insured on each policy of insurance, except Woikers Compensation If the
thiisi subcontracts fabrication, transportation, and/or nistaiiation or uie OLK., then he Artist
shall also require his/her subcontractor(s) to abide by all of the following insurance
•
__u4iiIL/ -____
additional insureds.
A 4'„4 tiL ]1
!- i Li:ti. .4ii(i}ii
a. 1a 4 \ e- A 42 0..4 1 41-±n
i iei3y. iL I.I IL i,4iT JIILi (.ILLt3 !j j L'J ii({ii iir i_i iL, l di ii.xL al IV- 1_i iir
Commercial General Liability (CGL)
$1,000,000
Each ova 41ecillle
$2,000,000 Aggregate limit
Coverage shall include, hot not he. limited tn- the fnllnwine• premises, nneratinns_ independent
.� u i i -
contractors, products/completed operations, personal injury, and contractual liability Insuiance
shall be provided on all u eulieiiee basis, anti be as comprehensive as the Lament Insuiance
Services Office (ISO) policy The policy shall name the City as an additional insured.
Automobile Liability
$1,000,000 Each accident
,,,-
�Cn nnn Bodily injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
1 1• 1 11 II L L •it 1 r• 1
A r'f1)ll)Y1er lal 1111c1lnPcc nnibei cllalI n'nv iin0fill
e rVPl'a4P )l lly /alltn 'WTI Fin Qc Alltllsi nwnPl1
i r 1 v r
hired and non -owned.
For the Artist and/nr the Artist' Subcontractors who have. elllpinvees!
L d
Statutory 'limits
Employer's liability
m nn nnn
'Cr .. .'. .1`....• 4 in _ n
$100,000 Disease - per each employee
$500,000 Bodily Injury/Disease - policy limit
ricers' Cmmnensatinn
Workers' Cnrnensatinn coverage shall nrnvide limits consistent with stat»tnry henefits outlined
L i
in the Texas workers' Compensation Act (Art 8308 —1.01 et seq. Tex. Rev. Civ. Stat.).
GENERAL POLICY REQUIREMENTS
Thirty (RO' clays notice of cane.ellatinn nr non -renewal.
26 of 27
Example! "This insurance shn11 not he r.nnelled or non-renewer)_-3 until after thirty (2()) clays r�r�or
i J t J
written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-
payment of premium.
Waiver of rio-h
of recovery (subrogation) in favor of the City of Fort Worth.
tJ / d
rile insurers for all policies must be ncenseulapproveu to do business in the ,mate of Texas. Ail
insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or
,
i Lis}iiiiai; J i_rvui Vy.i Liii. iiiiajiI ,is,--4i .li.i'viiciii il.i tii ._-_ iyi_riiid }ii I I.)(i._'.=iiy€iii i iia dam'
Management If the rating is below that required, written approval of Risk Management is
required.
Tf insurance nnlirie.s nre not written for snecifierl rover:we. limits_ an TTmbrella nr Excessa :J
Liability insurance for any differences is required. Excess Liability shall follow form of the
primary coverage.
"Unless otherwise stater). all reniiirecl insurance shall be written on an "occurrence basis " (Tf
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 tiie certificate of insurance shah state that the
coverage is claims made and the retroactive date. The insurance coverage shall be maintained
for the duration of the contractual no-veement and for five (S) years fnllnw,inoo rmmpletinn 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 shaii evidence such insurance coverage.)
The rlerliirtihle nr self -insurer) retention ('ZTR) nffer.ting renliired insurance coverage shn11 he
acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards
to asset value and stocxnoiuers equity in neu of uauitionai insurance, alternative coverage
maintained through insurance pools or risk retention groups, must also approved by the City's
n ,,ram nn
i- IX VIaiiaaiii •
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 i f tile City vfled upon changes in
statutory twat, court .,,flan or
the claims iiaOi
LVi %Ji
the industry as well as if the ntrai+nisNarty to the City
Ut £'Jt T/'dill. 1- Ate ` icy .ihaii be
required to provide prior notice of ninety days.
The City shall be entitled, !loon rent est and without exnense to receive, conies of nnliries and
endorsements thereto and may make any reasonable requests for deletion or revision or
modifications of paiucuiar policy terms, conditions, limitations, or exclusions except where
policy provisions are established by law or regulations binding upon either of party or the
.. -1, ..1iia_si:i -yell :'i a; (AiY ado::i i=ii:a .ii, .
27 of 27