HomeMy WebLinkAboutContract 40732 (2)CITY SECRETARY
CONTRACT NO.
AGREEMENT FOR DESIGN
OF PUBLIC ART WORK AT FIRE STATION #27
BETWEEN THE CITY OF FORT WORTH AND
ARTISTS FRANCES BAGLEY AND TOM ORR
This Agreement, entered into this dayofA IXIS+2010(the
g �
"Effective Date"), by and between the CITY OF FORT RTH, 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 Frances Bagley, an individual, and Tom Orr, an
individual, (collectively, the "Artists") of 8157 Barbaree Boulevard, Dallas, Texas 75228. The
City has designated THE ARTS COUNCIL OF FORT WORTH & TAINT COUNTY,
INC.., (the "Contract Manager") to manage this AGREEMENT on its behalf. The Contract
Manager shall act through Anne Allen, its designated Public Art Project Manager.
ia
WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to
Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances to create an
enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural
and ethnic diversity, to integrate the design work of artists into the development of the City's
capital infrastructure improvements, and to promote tourism and economic vitality in the City
through the artistic design of public spaces;
WHEREAS, the City of Fort Worth constructed a new fire station known as Fire Station
#27 at 2940 Precinct Line Road, Fort Worth, Texas 76118, more particularly described in
Exhibit "A" attached hereto (the "Site");
WHEREAS, Fire Station #27 was identified in the Long Range Public Art Plan for the
2004 CIP for inclusion of public art, and two percent of the bond project amount has been
earmarked for design and implementation of public art through the 2004 Capital Improvements
Program (CIP);
WHEREAS, the Artists for the public art component of the Site were selected through a
competitive process conducted by the Contract Manager and overseen by the Fort Worth Art
Commission (the "FWAC") as the basis for executing this Agreement;
WHEREAS, the Artists prepared a final design under City Secretary Contract No. 36878,
which the City elected not to pursue;
WHEREAS, the City has requested that the Artists prepare a new conceptual design (the
"Conceptual Design") and final design (the "Final Design") for review and approval at the Site;
WHEREAS, the FWAC has recommended that the Artists participate with the City and
with input from the City, the Fire Department and community stakeholders to design an artwork
(the "Work") for installation at the Site; and
08-20-10 Poi:07
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 1 of 25
WHEREAS, the City and the Artists wish to set out the terms and conditions under which
said Work shall be developed.
NOW, THEREFORE, the City and the Artists 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. The Artists shall perform all services and will furnish all supplies and materials as
necessary for developing a conceptual design for the Work and final design of the Work and for
providing the Conceptual Design Deliverables (hereinafter defined in Section 1.3) and the Final
Design Deliverable (hereinafter defined in Section 1.4), as set forth in Sections 1.3 and 1.4 of
this Agieement. Services shall be performed in a professional manner and in strict compliance
with all terms and conditions set forth in this Agreement.
b The Artists shall determine the artistic expression, scope, design, color, size, material,
and texture of the Work, subject to review and acceptance by the City as set forth in this
Agreement
c. The Artists shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the sculpture from said conservator to the Contract Manager.
d The location at the Site on which the Work shall be installed shall be mutually agreed
upon by the City, the Fort Worth Fire Department, and the Artists.
e. Upon request by the Artists, the City shall promptly furnish all information, materials,
and assistance required by the Artists to the extent that such materials and assistance are
available. The City, upon request by the Artists, shall also provide correct scaled drawings of the
Site, if available.
f. The Artists shall coordinate with the City and the Fort Worth Fire Department;
and the City's construction project manages, as needed, to ensure proper integration of the Work
into the Site and to ensure that there is sufficient structural support and electrical conduits for the
Work.
1.2 Artists Selection
The City and the Artists acknowledge that the Artists' qualifications have been reviewed and
approved by the FWAC as the basis for executing this Agreement with the Artists.
1.3 Conceptual Design Phase Scope of Work and Deliverables
Page 2 of 25
a. Prior to commencing work on the Conceptual Design, the Artists shall meet with and
seek input from the Steering Committee, which shall include City Council Member Moss,
members of the original artist selection panel, fire fighters from Fire Station #27, and other
representatives from the City of Fort Worth's Fire Department.
b. Within three (3) months after the execution of this Agreement, the Artists shall
provide services and all supplies, materials, and equipment necessary to provide certain
deliverables, as set forth in this Section 1.2.b.i.—v. (collectively, the "Conceptual Design
Deliverables"), to the City for approval. Conceptual Design Deliverables shall consist of the
following*
i. Two illustrations, with up to two variations, showing the conceptual Work
design from two vantage points, including a plan view. Such illustrations shall be
supplied as illustrations of at least 20" x 30' and mounted on foam core and/or in
a high resolution digital format, such as a JPEG or TIFF;
ii. Material or fabrication samples and/or sketches and/or prototype models (to
scale) for the Work that show the size and placement of the Work in relation to
the Site, as appropriate;
iii Written narrative descriptions of the Artists' concept, proposed materials,
fabrication and installation methods, timeline for completion, and maintenance
and preservation requirements;
iv. Project Budget Estimates on the budget form attached hereto as Exhibit "B;
v. The Artist shall present the Conceptual Design and the proposed location at the
Site to the Steering Committee for input and to the FWAC for review and
approval at dates and time mutually agreed upon.
c. The Artists shall provide copies of the Conceptual Design presentation materials to the
Contract Manager to become part of the City of Fort Worth Public Art archive.
1.4 Final Design Deliverables
a. Within seven (7) months after the execution of this Agreement, the Artists shall
provide services and all supplies, materials, and equipment necessary to provide certain
deliverables, as set forth in this Section 1.4.a.i.—vi. (collectively, the "Final Design
Deliverables"), to the City for approval. Final Design Deliverables shall consist of the
following*
i. Detailed, design illustrations of the Work for the Site, which shall be at least
20' x 30" and mounted on foam core and/or in a high resolution digital format,
such as JPEG or TIF files. [NOTE: The illustrations provided during the
Conceptual Design phase of this project may fulfill all or part of this requirement
Page 3 of 25
to the extent that such drawings conform to the City's requirements and represent
the Final Design];
ii. Plan view illustration showing the location Site where the Work shall be
installed, for review and approval by the City and the Fort Worth Fire
Department;
iii. The Artists 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 Artists
along with cost estimates for annual maintenance; and (4) proposed public
education program(s) to be conducted by the Artists during the commission phase
of the Work;
iv. The Artists shall provide comprehensive working drawings, detailing the
means of installing all elements of the Work on the Site, together with other such
graphic material as may be requested by the City to permit the City to carry out
structural 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 Artists will obtain and furnish to the City certificates of professional
liability insurance from each such licensed professional and will require the City
to be named as a certificate holder" entitled to notice of cancellation/nonrenewal
in accordance with standard practices. The Artists shall not be liable for the use
of the drawings submitted under Section 2.2.a.iv. for any use other than the Final
Design;
v. The Artists shall provide a detailed, final budget for the Work with written
estimates attached for supplies and services provided by the Artists and others,
including, but not limited to, the Artists' subcontractor(s) and/or the general
contractor, on the budget form, attached hereto as hxhibit `B," for
implementation of the Woik through an Artwork Commission Contract with the
City. (See Section 1.5); and
vi The Artists shall present the Final Design to the Steering Committee, for input,
and to the FWAC for review and approval at dates and times mutually agreed
upon.
b. Upon approval, the Artists 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
Artists' Final Design and all other work products under this Agreement shall become the
property of the City, without restriction on future use. (See Section 4.1.a).
Page 4 of 25
1.5 Implementation Budget Total
The Artists shall develop a Final Design that is financially feasible relative to the budget
for implementation. It is understood that the total budget for implementation of the Final Design
is estimated to be SEVENTY-FIVE THOUSAND THREE HUNDRED SEVENTY DOLLARS
AND NO CENTS ($75,370.00), reflecting total costs and inclusive of materials, labor,
fabrication, delivery, installation, insurance, additional lighting, transportation, travel and all
associated costs for the Work, as well as the final portion of the fixed artist's fee. The Artists
shall provide a detailed budget, on the budget fon!' attached hereto as Exhibit `B," for
implementation of the Work through an Artwork Commission Contract with the City, which
contract is subject to approval by the City Council.
1.6 Design Review
a. The City may require the Artists to make such revisions to the Conceptual Design
and/or 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 Site for reasons of safety and security.
b The City may also require the Artists to make such revisions to the Conceptual Design
and/or the Final Design as the City deems necessary in its sole discretion.
c. Within thirty (30) days of the City's receipt of the Artists' submission of the
Conceptual Design and/or the Final Design, the City shall notify the Artists of its approval, or
disapproval, of such submission and of each revision made in the Conceptual Design and/or the
Final Design Revisions made pursuant to this section 1 6, upon approval by the City, shall
become a part of the Conceptual Design and/or the Final Design.
d If the Conceptual Design and/or the Final Design or any required revision is
disapproved by the City, the Artists shall have a reasonable amount of time to resubmit the
Conceptual Design and/or the Final Design in conformance with the City's requirement.
e If resubmitted materials are not approved by the City, this Agreement may be
terminated at the City's discretion, with payment made to the Artists for work performed under
the payment schedule set forth in Section 2 1.
f. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final
Design is accepted by the City and funding is approved by City Council, negotiations for
fabrication, delivery, and installation of the Work shall commence, which shall become part of
the deliverables under the subsequent Artwork Commission Contract.
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
2.1 Fixed Fee
Page 5 of 25
The City shall pay the Artists a fee not to exceed SIXTEEN THOUSAND EIGHT HUNDRED
THIRTY DOLLARS AND NO CENTS ($16,830.00), which includes a fixed Artists' fee of
THIRTEEN THOUSAND EIGHT HUNDRED THIRTY DOLLARS AND NO CENTS
($13,830.00) inclusive of incidental costs and all travel expenses (the "Artists' Fee"), and an
amount not to exceed THREE THOUSAND DOLLARS AND NO CENTS ($3,000) for
engineering and consulting fees (the "Engineering and Consulting Fees"). These fees shall
constitute full compensation for all services perfouned and materials furnished by the Artists
under this Agreement, including, but not limited to, preliminary and final designs, budget
developments, incidental costs, and engineering and consulting fees as provided below.
The Artists' Fee shall be paid in the following installments, expressed as portions of the Artists'
Fee, with each installment to represent full and final, non-refundable payment for all services
performed and materials provided prior to the due date thereof.
The Artists' Fee shall be paid as follows:
a. FOUR THOUSAND DOLLARS AND NO CENTS ($4,000.00) upon
execution of this Agreement, recognizing that the Artists have aheady invested
time and expense in conceptual design team coordination with the City.
b. FOUR THOUSAND DOLLARS AND NO Cl-,NTS ($4,000.00) within thirty
(30) days after the Artists submit the "Conceptual Design Deliverables, ' as
required in Section 1.3.b.i.-v. of this Agreement, and make a presentation of the
Conceptual Design to the FWAC.
c. FOUR THOUSAND DOLLARS AND NO CENTS ($4,000.00) within thirty
(30) days after the Artists submit the "Final Design Deliverables, as required in
Section 1.4.a.i.-vi. of this Agreement, and make a presentation of the Final Design
to the FWAC.
d. ONE THOUSAND EIGHT HUNDRED THIRTY DOLLARS AND NO
CENTS ($1,830.00) within thirty (30) days after the City notifies the Artists of its
approval of the Final Design and detailed design drawings, working drawings,
and other items required under Section 1.4.
The Engineering and Consulting Fees in an amount not to exceed THREE THOUSAND
DOLLARS AND NO CENTS ($3 000.00) shall be paid to the Artists for engineering fees and a
conservator s consultation to fulfill the terms of this Agreement Such payment shall be made
upon receipt of an invoice from the Artists with the original invoice (a retainer fee of up to 50%
is allowed) for such services attached.
2.2 Sales Taxes
The City is a tax-exempt organization and no state or local sales taxes or federal excise taxes
shall be due upon the Project. The City shall supply the Artists with the Texas Sales Tax and
Local Sales Tax Exemption Certificate," in substantially the same form as that attached hereto as
Page 6 of 25
Exhibit "C," and will assist the Artists in ensuring that appropriate measures are taken so that no
sales taxes are charged on services and material furnished by the Artists' vendors.
2.3 Artists' Expenses
The Artists 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 the City, cost of all travel, and costs for the Artists' agents,
consultants, and/or employees necessary for the proper performance of the services required
under this Agreement.
ARTICLE 3
TERM AND TERMINATION
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 the Artists by
the City, whichever is later.
3.2 Gratuities
The City may cancel this Agreement if it is found that gratuities in the form of entertainment,
gifts, or otherwise were offered or given by the Artists or any agent or representative to any City
or Contract Manager official or employee with a view toward securing favorable treatment with
respect to the awarding, amending, or making of any determinations with respect to this
performance of this Agreement.
3.3 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 party shall thereupon have the right to terminate this Agreement by giving
written notice to the defaulting party of the intent to terminate, specifying the grounds for
termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the
default (the ` Cure Period") If the default is not cured during the Cure Period, 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.
3.4 Teiinination for Convenience
a. The services to be performed under this Agreement may be terminated by either party,
subject to written notice submitted thirty (30) days before termination. The notice shall specify
whether the termination is for convenience or cause.
Page 7 of 25
b. If the termination is for the convenience of the City, the Artists shall have the right to
fees for work performed, in which event the City shall have the right at its discretion to
possession 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 the City by the Artists under this Agreement prior to the date of termination with
all right granted to the City in Section 4, but provided that no right to fabricate or execute the
Work shall pass to the City.
c. If termination is for the convenience of the Artists, the Artists shall remit to the City a
sum equal to all payments (if any) made to the Artists pursuant to this Agreement prior to
termination.
3.5 Incapacity of the Artists
a. In the event of either Frances Bagley and/or Tom Orr'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 Artists or the Artists' 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 Artists' design have been approved or if the Artists' work has progressed to
the point of fabrication of the Work, in the event of termination under this Section 3.5, the City
shall have the right to complete the Work. Due regard shall be made for the Artists' intended
results and proper credit and acknowledgement shall be given to the Artists.
ARTICLE 4
REPRODUCTION RIGHTS
4.1 General
a. Upon payment in full to the Artists, the Artists' Conceptual Design, Final Design
Work, and all other work product under this Agreement shall become property of the City,
without restriction on future use, except as provided below. The Artists shall retain copyright
and other intellectual property rights in and to the Conceptual Design, the Final Design, and/or
the Work. By execution of this Agreement, the Artists grant to the City a perpetual, irrevocable
license to graphically depict or display the Conceptual Design, the Final Design, and the Work
for any non-commercial purpose whatsoever. For purposes of this limitation any graphic
depiction or display of the Conceptual Design, 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 public, or whether revenue is otherwise received by the City, shall be
deemed a non-commercial purpose. Notwithstanding the above limitation, the Artists agree and
understand that nothing in this paragraph shall affect or limit the City's absolute, unrestricted
rights incidental to the City's full ownership of the final Work to alter, change, modify, destroy,
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
Page 8 of 25
City's powers and responsibility in regard to public works and improvements, in furtherance of
the City's operations or for any other reason. The City agrees to credit the Artists as the creators
and copyright holders when it graphically depicts or displays the Work.
b. The City shall take title to all documents and/or drawings, which constitute or are
components of the Conceptual Design and/or the Final Design, upon final approval of the
Conceptual Design and Final Design. These documents and/or drawings will be retained for
archival and exhibition purposes.
c. The Artists reserve every right available under the Federal Copyright Act to control
the making and dissemination of copies or reproductions of the Conceptual Design 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
Design and the Final Design and accompanying materials for any municipal purpose. All
reproductions by the City shall contain a credit to the Artists and a copyright notice substantially
in the following form: "O date, Artists' names "
d. Nothing in this Agreement shall prevent the Artists from using images of the
Conceptual Design the Final Design, or the Work for marketing and promotional purposes in
connection with Artists' business; provided, however, that the Artist shall make their 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 Artists' copyright
and not responsible for protecting the intellectual property rights of the Artists.
4.2 Artist's Address
The Artists shall notify the City of changes in the Artists' address(es) as set forth in Article 10.
The failure to do so, if such failure prevents the City from locating the Artists, shall be deemed a
waiver by the Artists of the right subsequently to enforce these provisions that require the
express approval of the Artists. Notwithstanding this provision the City shall make every
reasonable effort to locate the Artists when matters arise relating to the Artists' rights.
ARTICLE 5
WARRANTIES
5.1 Warranties of Title
The Artists represent and warrant that:
a. The Conceptual Design, the Final Design, and/or the Work shall be the original
product of the Artists' sole creative efforts;
b The Conceptual Design, 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;
Page 9 of 25
c. The Artists have not sold, assigned, transferred, licensed, granted, encumbered, and/or
utilized the Conceptual Design, the Final Design, and/or the Work or any element thereof
or any copyright related thereto that may affect or impair the rights granted pursuant to
this Agreement;
d. The Conceptual Design, the Final Design, and/or the Work (or any duplicates thereof)
have not been accepted for sale elsewhere;
e. The Conceptual Design, the Final Design, and/or the Work are free and clear of any
liens from any source whatsoever;
f. The Artists have 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; and
h The Artists shall assume the defense of, and INEMNIFY AND HOLD HARMLESS,
THE CITY, ITS OFFICERS EMPLOYEES, AGENTS, AND CONTRACTORS
FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, 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.
ARTICLE 6
ARTIST AS INDEPENDENT CONTRACTOR
The Artists shall perform all work and services hereunder as an independent contractor, and not
as an officer, agent, servant, or employee of the City. The Artists 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 the City and the Artists, his/her officers, agents, employees,
and subcontractors, and the doctrine of respondeat superior has no application as between the
City and the Artists.
Page 10 of 25
ARTICLE 7
INSURANCE AND
INDEMNIFICATION
7.1 Insurance Requirements
The Artists shall carry insurance in compliance with the insurance requirements stated in
Exhibit "D."
7.2 Indemnification
a. THE ARTISTS COVENANT AND AGREE TO INDEMNIFY, HOLD HARMLESS,
AND DEFEND, AT THEIR OWN EXPENSE THE 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,
BUT NOT LIMITED TO, 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, PROVIDED THAT
SAID CLAIMS OR SUITS ARE CAUSED BY ARTISTS NEGLIGENCE OR WILFUL
MISCONDUCT; AND THE ARTISTS HEREBY ASSUME(' 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 THE ARTISTS'
NEGLIGENCE OR WILFUL MISCONDUCT. THE ARTISTS LIKEWISE COVENANT AND
AGREE' TO AND DO HEREBY INDEMNIFY AND HOLD HARMLESS THE CITY FROM
AND AGAINST ANY AND ALL INJURY, DAMAGE, AND/OR DESTRUCTION OF
PROPERTY OF THE CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR
OMISSIONS OF THE ARTISTS, THEIR OFFICERS MEMBERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS.
b. THE ARTISTS AGREE, TO AND SHALL RELEASE THE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR
INJURY DEATH, DAMAGE, AND/OR LOSS TO PERSONS OR PROPERTY SUSTAINED
BY THE ARTISTS IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE
UNDER THIS AGREEMENT.
c. The Artists shall require all of its subcontractors to include in their subcontracts a
release and indemnity in favor of the City in substantially the same foal' as above.
Page 11 of 25
d. The Artists agree to accept indemnification provisions in substantially the same form
as above in the subsequent Artwork Commission Contract.
e. All indemnification provisions of this Agreement shall survive the termination or
expiration of this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 Compliance
The Artists shall comply with all Federal, State, and City statutes, ordinances, and regulations
applicable to the performance of the Artists services under this Agreement.
8.2 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.
8.3 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 the parties hereto and approved by appropriate
action of the City.
8.4 Waiver
No waiver of perfoiniance by either party shall be construed as or operate as a waiver of any
subsequent default of any teii ns, 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
8.5 Governing Law and Venue
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of
this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or
the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
8.6 Successors and Assigns
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written
consent of the other party, and any attempted assignment, sublease, or transfer of all or any part
hereof without such prior written consent shall be void. This Agreement shall be binding upon
Page 12 of 25
and shall inure to the benefit of the City and the Artists and their respective successors and
permitted assigns.
8.7 No Third -Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of the City and the
Artists, and any lawful successor or assign, and are not intended to create any rights, contractual
or otherwise, to any other person or entity.
8.8 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.
8.9 Force Majeure
It is expressly understood and agreed by the parties to this Agreement that, if the performance of
any obligations hereunder are delayed by reason of war civil commotion; acts of God inclement
weather; governmental restrictions, regulations, or interferences fires; strikes; lockouts, national
disasters; riots; material or labor restrictions; transportation problems; or any other circumstances
that are reasonably beyond the control of the party obligated or permitted under the terms of this
Agreement to do or perform the same, regardless of whether any such circumstance is similar to
any of those enumerated or not, the party so obligated or permitted shall be excused from doing
or performing the same during such period of delay, so that the time period applicable to such
design or construction requirement shall be extended for a period of time equal to the period such
party was delayed.
8.10 Contract Construction
The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and
revised this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party must not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
8.11 Fiscal Funding Out
If for any reason, at any time during any term of this Agreement, the City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City
may terminate this Agreement to be effective on the later of (i) thirty (30) days following
delivery by the City to the Artists of written notice of the City's intention to terminate or (ii) the
last date for which funding has been appropriated by the City Council for the purposes set forth
in this Agreement.
Page 13 of 25
8.12 Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
8.13 Artists' Address
The Artists shall notify the Contract Manager of changes in address(es).
8.14 Surviving Covenants
The covenants and obligations set forth in this Agreement shall not survive the death or legal
incapacity of the Artists.
8.15 City's Right to Complete
In the event of the death or legal incapacity of the Artists, the City of Fort Worth shall have the
right to complete the Work and shall give credit to the Artists, as appropriate.
8.16 Right to Audit
The Artists agree that the City will have the right to audit the financial and business records of
the Artists that relate to the Work (collectively, the "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
Artists 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 parties following 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 8.16 shall survive expiration or
earlier termination of this Agreement.
8.17 Certified M/WBE
If applicable, the Artists shall make their best effort to become a certified Minority/Women
Business Enterprise (M/WBE) finn with a certifying agency whose certification is accepted by
the City under the City's M/WBE ordinance
8.18 Survival Provision
The provisions contained in Articles 5, 6, and 7 shall survive the termination or expiration of this
Agreement.
8.19 Public Information Act
The Artists understand and acknowledge that the City is a public entity under the laws of the
State of Texas and as such, all documents held by the City are subject to disclosure under
Page 14 of 25
Chapter 552 of the Texas Government Code. The Artists shall clearly indicate to the City what
information it deems proprietary. If the City is required to disclose any documents that may
reveal any of the Artists' 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 will notify the Artists prior to disclosure of such documents, and give the
Artists the opportunity to submit reasons foi objections to disclosure. The City agrees to restrict
access to the Artists' information to those persons within its organization who have a need to
know for purposes of management of this Agreement. The City agrees to inform its employees
of the obligations under this paragraph and to enforce rules and procedures that will prevent any
unauthorized disclosure or transfer of information. The City will use its best efforts to secure
and protect the Artists' 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
proprietary by the Artists will be protected from public disclosure if release is required by law.
The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3)
years after the expiration of this Agreement.
ARTICLE 9
EQUAL OPPORTUNITY
a. The Artists 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. The Artists shall take affirmative
action to ensure that employees are treated equally during employment, without regard to their
age, disability, race, color, religion, sex, sexual orientation, national origin, familial status,
transgender, gender identity, or gender expression. Such action shall include, but not be limited
to, the following: Employment, upgrading, demotion, transfer, recruitment or pay or other foims
of compensations, and selection for training, including but not limited to, apprenticeship. The
Artists agree to post in conspicuous places available to employees and applications for
employment, notices to be provided by the City setting forth the provision of this
nondiscrimination clause.
b. The Artists shall in all solicitation or advertisements for employment placed on or on
behalf of the Artists, 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 with such rules and regulations.
d. In the event of the Artists' noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated or suspended in whole or in part, and
the Artist may be debarred from further agreements with the City
Page 15 of 25
ARTICLE 10
NOTICES
All notices, requests, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given
upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, as follows:
1. CITY OF FORT WORTH. Fernando Costa, Assistant City Manager
City Manager's Office
City of Fort Worth
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
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, TX 76107
Frances Bagley and Tom Orr
8157 Barbaree Blvd.
Dallas, TX 75228
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
Page 16 of 25
IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year
first written above.
APPROVED AS TO FORM:
Tyler Wa
Assista City Attorney
Date: er- ( U
Contract Authorization:
No M&C Required
CITY OF FORT WORTH
Fernando Costa
Assistant City Manager
Date: 8t0D
ARTISTS
Frances Bagley
Tom Orr
Date:
-7/*//o
7/4/10
ATTESTED BY:
sf"Y\ CLUI#e/Y\ L/9
Marty Hendrix
City Secretary 14'3%0
Date: ' Z 01 C�
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
t$' o!pp,1424b
o°a° 000
A 000oQ4 ,�'
mkb EXAWtm.4
Page 17 of 25
Exhibit A: The Site
Page 18 of 25
SITE PLAN
Q
a
znr
irteGani
adds
z -#42.01
Page 19 of 25
Exhibit B: Budget
rRTPLF) LiCARTF
ARTIST'S FEE (20%3
TRAVEL
(For artists who live mr_ie than SO miles from Fort Worth)
INSURANCE
ADMINISTRATIVE EXPENSES
DeliveryiShipping
Airlare
Cer Rental
Per Diem Expenses at $ per day
Mileage et $ per mile
Auln'Hired Vehicle Liability
General Liability for Artist i Subcc of eolcns
Worker's Comp, Employer's Liability
Other, as applicable
PhcneiFax
n. nse, samples, models, drawings etc)
Reprc9raphic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable, drawing must be signed and sealed by a professlcnal registered to prect
in the State of Tee, as)
Photographer (for
Architect*
Structural Engineer`
Electrical Engineer'
Conaery etor•
on of com pleted work)•
Other*
MATERIALS
(Please attach a complete list of materials. Itemize all anticpated aspects and
components with per unit cost estimates)
Materials' Total
Cost In creases?: Protected Increase in Cost Materials 12 Months In Future
FABRICATION COSTS
(Include and itemize all portions cf subcontracted work and work to be completed by
artist.)
Artist's Labor (__ hours el $_ per hour) Total
Subcontracted Labor (Total)
Faclliyi Equipment Rental (used exclusively for this protect) related to fabrication
Cast Increases?: Projected Increase In Cost Fabrication 12 Months In Future
SITE PREPARATION
(Do not Include costs covered by FWPA, City of FortWorth or others)
Test Drilling'
Removal*
Landscaping'In Ig et bn'
Electrical Mcdrrcatbns'
Page 20 of 25
Water W ork'Mechenicel Devices
Mee
Co,t Increases?: Projected Increase in Cost Site Preparation 12 Months In Future
TRANSPORTATION
Cost Inpreas
BASErMOUNTING
Cost her
Materielsto Falxbetion Site'
Fin hiedWcek to Irnteilation Site'
01 her
: Projected Increase in Cost Transportation 12 Months In Future
Base
Mounting Devices and Components
FoundathnfFocting
Other
?: Projected Increase in Cost Mount' Ing 12 Months In Future
INSTALLATION COSTS
(Costs must Include allowance for atter hours Installation, if applicable. Please ettach a
complete list of equipment and Individual estimateswhh this form)
&bccolracted Lelwr'
Scaffolding'
Equipment Rental related to installation'
Off -duty PoliceSecurity*
Traffic Barriers'
Storage Facility Rental'
City Permits
Display Devices
Freproo1Irng'
Site Restoration'
OI har
Cost Increases?: Projected Increase in Cost Installation 12 Months In Future
LIGHTING
Designers'
Fixtures'
Bulbs'
Stte Preparaton'
Installaton'
Cost Increases?: Projected Increase in Cost Lighting 12 Months In Future
GRAND TOTAL (Including prof cost Increase, If any)
Please make any necessary notes here:
Prepared By:
Date:
Page 21 of 25
Exhibit C: Sales Tax Exemption
TEXAS CERTIFICATE OF 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:
All Items
I claim this exemption for the following reason:
Name of exempt organization: City of Port Worth
Texas 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 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 ru a manner other
than that expensed in this certificate and, upon conviction, may be fined up to $500 per
offense.
Tax Exempt Status Due to Being a Governmental Entity
Purchaser. City of Fort Worth
Street Address: 1000 Throckmorton Street
City, State, Zip Code: Fort Worth, Texas 76102
Sign Here: .,�-cp,
Pri a Gray-Itossl, AS(stant Finance Director
Date: 02/07/2007 Phone: (817) 392-8325
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,.
Page 22 of 25
Exhibit D: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Artists and/or Artists' Subcontractors will provide the following insurance requirements.
1. Commercial General Liability (CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
2. 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 the Artists subcontract fabrication,
transportation and installation of the Work, the Artists shall not be required to provide
Commercial General Liability Insurance, however the Artists' Subcontractor shall
provide Commercial General Liability Insurance which shall name the Artists, and The
City of Fort Worth as additional insured.
3. Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
A commercial business policy shall provide coverage on "Any Auto," defined as autos
owned, hired and non -owned.
4. For Artists and/or Artists' Subcontractors who have employees: Workers' Compensation
Statutory limits
Employer s liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Bodily Injury/Disease - policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits
outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev.
Civ. Stat.).
Page 23 of 25
GENERAL POLICY REQUIREMENTS
• The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an
Additional Insured Exception: The additional insured requirement does not apply to
Workers' Compensation pohcies.
• 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 all policies must be licensed/approved to do business in the State of
Texas. 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 four 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 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.
• 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.
Page 24 of 25
• 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.
Page 25 of 25