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Contract 41861 (2)
CITY SECRETARY CONTRACT NO._ __ AGREEMENT FOR COMMISSION OF PUBLIC ART WORK BETWEEN THE CITY OF FORT WORTH AND DAVID HICKMAN 1 80 1 111.17 This Agreement, entered into this % day of u in t, 2010 (the "Effective Date") by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and DAVID B. HICKMAN ("Artist"), an individual, of 7434 Coronado Avenue, Dallas, Texas 75214. The City has designated the ARTS COUNCIL OF FORT WORTH & TARRANT COUNTY, Inc., (the "Contract Manager") to manage this AGREEMENT on its behalf. The Contract Manager shall act through its designated Public Art Project Manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, the Fort Worth Public Art Program is implementing a community -nominated public art initiative known as "Community ID: Public Art in Neighborhoods" ("CID") per the recommendations and guidelines in the Long -Range Public Art Plan for the Water Fund, as adopted by City Council on May 9, 2Q06 and set forth in the Fort Worth Public Art Master Plan (M&C G-14087, Sept. 30, 2003); WHEREAS, funds for the CID projects have been allocated from the Public Art Fund per guidelines in the Long -Range Public Art Plan for the Water Fund, and were included in the FY2011 Annual Work Plan (M&C C-24554, October 19, 2010); WHEREAS, the Fort Worth Art Commission (the "FWAC"), on June 8, 2009, approved the review panel's recommendation to award a CID project to the Arlington Heights Neighborhood Association (the "Community Group"); WHEREAS, the Community Group proposed to install the artwork at the Thomas Place Community Center on 4237 Lafayette Avenue in Fort Worth, TX 76107, which the city of Fort Worth leases from the Fort Worth Independent School District (FWISD), more particularly described in Exhibit "A" attached hereto and made apart hereof for all purposes (the "Site"); r-- OFFICIAL RECORD CITY SECRETARY ipfAsTs WORTH, TX WHEREAS, the Artist Selection Panel recommended artist David Hickman, of Dallas, Texas, to design an artwork (the "Work") for installation at the Site that was approved by the FWAC on November 9, 2009; WHEREAS, the Artist's final design for the Work, approved by the FWAC on November 8, 2010, includes two limestone benches and a kinetic steel sculpture that will stand approximately 18 feet tall as illustrated in the drawings attached hereto and made apart hereof for all purposes as Exhibit B"("Final Design"), and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be implemented in order to promote the integrity of Artist's ideas and statements. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1. General. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary to fabricate, deliver and install the Work, as set forth in Section 1.4. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall deterruine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City, community group, and Artist, and approved by the Parks Advisory Board. c. The artist is responsible for obtaining all necessary permits. The building permit fees shall be waived by City. d. Artist shall install the Work on dates and at times mutually agreed upon by Artist and City. e. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. 1.2. Design Approval. City and Artist acknowledge that Artist's Final Design was reviewed and approved by the FWAC on November 8, 2010, and is the basis for executing this Agreement with Artist. 1.3 Execution of the Work 2of31 a. Upon execution of this Agreement, Artist shall promptly furnish to Contract Manager a schedule ("Schedule") for the completion of the fabrication and installation of the Work, including a schedule for the submission of progress reports, as required. After written approval of the Schedule by City, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by City and/or Contract Manager pursuant to this section 1.3(b) within thirty (30) days after receipt of the written request. c. Artist shall complete the fabrication of the Work in substantial conformity with the Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in his/her sole discretion, shall determine whether the changes are significant and whether the changes are in substantial conformity with the Final Design. If the Contract Manager determines that the changes are significant and are not in substantial conformity with the Final Design, then the Contract Manager shall, in light of the Final Design, determine whether a significant change requires City approval. 1.4 Delivery and Installation. a. Artist shall notify City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. b. Artist shall be responsible for obtaining all necessary permits appropriate for this project. c. Artist shall deliver and install the completed Work at the Site in compliance with the Schedule; provided, however, that delivery and installation activities may not commence until written permission is delivered to Artist by Contract Manager. d. Artist shall not commence delivery or installation of the Work until City has executed an easement or license with FWISD for the Site. Should Artist complete the Work in advance of the an executed easement or license between City and FWISD, then Artist shall store the Work at no expense to City until such a time as an easement or license is executed and the Contract Manager notifies Artist that delivery and installation may commence. 3 of 31 e. The Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. Artist shall repair any damage to the Site due to delivery, installation and/or Artist's negligence or the negligence of Artist's subcontractors. f. Artist shall be responsible for all costs associated with the materials, fabrication and installation of the Work, including, but not limited to, equipment rentals, transportation and labor. g. Prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. [NOTE• The written instructions provided during the final design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. 1.5 Post -installation. a. Within thirty (30) days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least ten (10) high resolution digital images (.tiff format) and ten (10) low - resolution digital images (jpeg format) showing all components of the Work from at least two vantage points including detail shots of mosaic strip along the top of the benches as selected by the Contract Manager to document the project after the Work is installed. b. Artist shall be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. 1.6 Final Acceptance. 4 of31 a. Artist shall notify City, in writing, when all services required have been completed in substantial conformity with the Final Design. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist in writing of its final acceptance of the Work ("Final Acceptance"). c. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification of Final Acceptance; or (2) the 35th day after Artist has sent the written notice to City required under Section 1.6.a, unless City, upon receipt of such notice and prior to the expiration of the 35- day period, gives Artist written notice specifying and describing its reasons foi not accepting the Work, which may include but are not limited to, services that have not been completed by Artist or if City has not executed an easement or license as set forth in section 1.4(d) above. 1.7 Risk of Loss The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Woik from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. City shall pay Artist a fee not to exceed FORTY-FIVE THOUSAND DOLLARS AND NO CENTS ($45,000.001 (collectively. the "Fee"). which shall constitute full compensation for all services performed and materials furnished by Artist under this Agreement inclusive of final design, fabrication transportation, Artist's fees, insurance, incidental costs, all travel expenses, delivery, installation, and any and all other associated costs. The Fee shall be paid in the following manner: a. EIGHTEEN THOUSAND DOLLARS AND NO CENTS ($18,000.00) upon full execution of this Agreement and upon submission of detailed estimates from Artist's subcontractors. b. THIRTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($13.500.00) upon Contract Manager s verification of 50% fabrication. 5 of 31 c. NINE THOUSAND DOLLARS AND NO CENTS ($9,000.00) upon Contract Manager's verification that the work is ready to install d. FOUR THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($4,500.00) within thirty- five (35) days after Final Acceptance and receipt by City of such documentation it may require concerning payment of services and supplies rendered to Artist [see Section 1.6 (a)]; provided, however, that final delivery shall not be tendered prior to the expiration of thirty (30) days after Final Acceptance. 2.2. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply the Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate," in substantially the same form as that attached hereto and incorporated herein as Exhibit "E" for use by Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including but not limited to services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1 Term This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 3.2. Duration. The services to be required of Artist set forth in Article 1 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 3.3. Early Completion of Artist Services. Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedule for delivery. 3.4. Time Extensions; Force Mateure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local 6 of 31 or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligation shall be suspended only for the duration of such conditions. ARTICLE 4 WARRANTIES 4.1 Warranties of Title. Artist represents and warrants that: a. the Work shall be the original product of Artist's sole creative efforts. b. the Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; c. the Work (or duplicate thereof) has not been accepted for sale elsewhere• d. Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Work or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; e. the Work is free and clear of any liens from any source whatsoever; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; go all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence• h. Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, CITY, ITS REPRESENTATIVES, 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. 7 of31 4.2 Warranties of Ouality and Condition a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. c. If, within one year after Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation and/or construction standards, including, but not limited to, the standards set forth by City, within thirty (30) days (unless the parties agree otherwise in writing) after receipt of the written notice, at no expense to City. d. If, after one year from Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Artist City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime Artist shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. e. If, within one year after Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is not curable by Artist Artist is responsible for reimbursing City for damages expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Section 4 2 f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. 8 of 31 iii. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 4.3 Survival of Representations and Warranties These representations and warranties contained in Article 4 shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 5.1 General. Artist shall carry insurance as set out in Exhibit "F." Except as provided in Section 1.7 hereof, the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 5.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 5.3. Indemnity a. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS REPRESENTATIVES, 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 9 of 31 PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR 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 KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. ARTIST LIKEWISE, COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE, OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. b. ARTIST AGREES TO AND SHALL RELEASE CITY, ITS REPRESENTATIVES, AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ANY AND ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. d. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the Work, including, but not limited to, all documents, models, and/or drawings that constitute 10of31 or are components of the Preliminary Proposal, Final Design, and/or Work shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and/or drawings will be retained for archival and exhibition purposes. Artist's Final Design and/or Work and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 6.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.3 Reproduction Rights. a. In view of the intention that the final Work be unique, Artist shall not make any additional exact duplicate reproductions of the final Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non- commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following forms "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." 11 of31 e. Artist shall, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in the Artist's name. f. City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwoublicart.ora) and a permanent plaque at the site. 7.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 1.4 and Exhibit "C," Technical and Maintenance Record. 7.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended major repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, the Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized principles of conservation and in accordance with professional conservation and/or construction standards, including, but not limited to, the standards set forth by City. 12of31 c. When emergency repairs are necessary to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 7.4. Alteration of the Work or of the Site. a. In the event that the Work is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right to remove the Work by any means, including destruction in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist may be given written notice and ninety (90) days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. c. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of the Artist if the Artist gives written notice to City that it is the position of the Artist to deny authorship on the grounds stated in this paragraph. e. City shall at all times have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 7.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 13. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 7.7. Additional Rights and Remedies. 13 of 31 Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 8 ARTIST AS AN INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 9 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Work and shall be carried out under the personal supervision of Artist Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor. ARTICLE 10 TERMINATION 10.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Section 10.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 10.2. Teiuiination 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 14 of31 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 teiuis of this Agieement. 10.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination. The notice shall specify whether the teixuination is for convenience or cause. b. If the termination is for the convenience of City, Artist shall have the right to an equitable adjustment in the fee (without allowance for anticipated profit on unperformed services), in which event City shall have the right at its discretion to possession and transfer of title to the sketches, designs and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of the Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist pursuant to this Agreement prior to termination. 10.4. Incanacrty of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's design have been approved or if Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 10.4, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 11 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, 15 of31 transgender, gender identity, or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their race, color, religion, sex, sexual orientation, national origin, transgender, gender identity or gender expression. Such action shall include but not be limited to the following* Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including apprenticeship. b. Artist shall state in all solicitation or advertisements for employment placed by or on behalf of Artist that all qualified applicants shall receive consideration for employment without regard to age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. c. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall be required to comply with Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 12.2 Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 12.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 12.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees 16 of31 for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 12.5. Governing Law and Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Tarrant County, Texas. 12.6. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and assigns. 12.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 12.9. Contract Construction. The parties acknowledge that each party and, if it so chooses its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.10. Fiscal Funding Out. If for any reason at any time during any term of this Agreement the City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (n) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 12.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.12. Artist's Address. Artist shall notify Contract Manager of changes in address. 17of31 12.13. Surviving Covenants. The provisions of Sections 5.3, 6 and 7 shall survive the termination or expiration of this Agreement... 12.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively `Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Section 12.14 shall survive expiration or earlier termination of this Agreement. 12.15. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. 12.16 Survival Provision The provisions contained in Articles 4, 5, and 8 shall survive the termination or expiration of this Agreement. 12.17 Authority Each party covenants with the other that it has full power and authority to enter into and perform its obligations under this Agreement and the persons executing this Agreement on their behalf are duly authorized to do so by all requisite action. 12.18 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Artist s 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, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this 18 of31 paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information however, City does not guarantee that any information deemed proprietary by Artist 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 13 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1 CITY OF FORT WORTH: Copies to: 2. ARTIST Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Sarah Fullenwider Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, VP Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 David Hickman, 7434 Coronado Avenue Dallas, TX 75214 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 19 of31 2. ARTIST Martha Peters, VP Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 David Hicknan, 7434 Coronado Avenue Dallas, TX 75214 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] IN WITNESS HEREOF, the parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH • ‘27Pkeiefeiti-.04 1, f by: Fernando Costa David Hickman Assistant City Manager ARTIST APPROVED AS TO FORM: Tyler Wallh' Assistant City Attorney ATTESTED BY: 7tthitA. Marty Hendrix - b £S" -nat. --..- . l. T E ter.. 4.64;>1. >. Orr istolt%1 gl CT #47 0 0°° %0 Fi. °OSP ICI It 0 104 .t; 20 of 32 giZ o � d� aa°ooa o P t 467.,& OFFICIAL RECORD C1TYSECRETARY Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to City of Fort Worth, except for ten (10) days notice for non-payment of premium. Waiver of rights of recovery (subrogation) in favor of 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 form of the primary coverage. "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." (If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period whichever is longer An annual certificate of insurance submitted to 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 City of Fort Worth in regards to asset value and stockholdei s' equity In lieu of traditional insurance alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 31 of 31 trnegery ,fete: act=26,-2007` Exhibit A: Site 21 of 31 eiev t67 it Eye alt Exhibit B: Final Design TEt oMA5 PLACG TOWER ToTAL 14w16fiT 17 ` 18' TOWER = SIRENGTh OFTUE c6NIMON ITy INfIEk5Ealonl AT TAP rC:orv'MlN4 TogeneR A5 CoMu,.tON try Tf1RL STSL FteMS PIVERStTy of t1 NE16ffIntel-10617 LYMGSTbNC f3ENcl31v5 ARE I8"T,4LL, IVIR/ItE 4 4St'l.LbfJ G is-.--7•••••-••-•••• • • • • • -7 s Artist's Sketch of Kinetic Sculpture Thomas Place Tower Narrative: can 6ANNER = PASSAGE OF TIME, E De 4 now or CQMMUN ROTATES To AL161.1 IA rlti WIND FLARED EL.EMEN'C= QUILL Plnr REVERENCE TO -5CJIa°L.I WILL SWI?JC vACk.4Fa -n-I IN 114E INIP4D 51,16MrSPIRA Ltr 12671,CHth1� GRowinl i. Feart-31c FvruaE IOW STbNE' DENCMES-5$jSC OF {'LACE, MosA1c >fl P IN lop W rrfl HIs11R1c pAred5, LIN©} LA11MG TOPS ENH4)JCl` COMFora-1 gRATE- To 8MN&R 1 vir) 13. HICA-AL.Q•/✓ 8/.em5/2ci 0 Goal My goal is to design a highly visible signature artwork for the grounds of Thomas Place Community Center that captures the importance of this location to the Arlington Heights neighborhood. This work will create excitement, interest and a sense of identity for the residents. This goal will be achieved by using a combination of foim, scale, color and movement. Concept The artwork is designed to create a sense of place and to have both a visual and functional component. The artwork is sited to take advantage of the high -ridged area along the right side of the property overlooking the playground area and basketball court. The artwork will be called, The Thomas Place Tower. Tower is defined as "a tall slender structure used for observation or signaling, also as an object that conspicuously embodies strength'. I interpret Thomas Place Tower as a symbolic object that represents the strength of the community. Thomas Place Tower will be composed of three intersecting, curved steel forms with a wind -activated kinetic banner at the top and will be flanked by two limestone seating elements. The three curved steel forms represent the diversity of the neighborhood, and their intersection at the top represents the coming together as a community. The slightly spiraling form of these elements also represents reaching and growing into the future The wind -activated, kinetic banner element at the top represents the passage of 22 of31 time and the ebb and flow and fluidity of the neighborhood through the years. (This element mounts on a sealed ball bearing system and is free to align with the prevailing breeze, like a weathervane). This element will add a touch of festivity to the artwork. The flared element at the top of each of the tree curving forms is symbolic of a quill in k pen referencing the history of Thomas Place as an elementary school. The two native Texas limestone benches that will flank each side of the artwork will provide seating, as well as a view of the playground, basketball court, movie night and other activities. The gently undulating tops of the benches relates to the kinetic banner on the tower with the same symbolism. A colorful ribbon or mosaic will flow through the center of each bench and represents the passage of time and will visually connect with the kinetic element on top of the tower. This mosaic ribbon could contain key dates relating to the history of Thomas Place (i.e., 1890 1916, 1922, 1936, etc.) and could lend an interactive and educational component to the artwork. The work will be constructed of powder -coated carbon steel, brushed aluminum and sealed ball bearings for the kinetic element Native Texas limestone will be used for the benches. These materials have been chosen for their low -maintenance and high durability qualities. The kinetic element will rotate through a 6' diameter circle. The artwork will stand approximately 17' — 18' tall and will mount on concrete piers and footings as needed. 23 of 31 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Width: Location & Description of Signature Markings (or copyright). Edition Information if applicable: 24 of31 Depth: Depth: Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty infoiniation): Construction Description: (list all fabricators and any aichitects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods Welding Rod Alloy or Joint Material & Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: 25of31 Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV, graffiti, etc. Please list vendors and contact information and provide all product information): Pedestals, Foundations & Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) 26of31 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) 27 of31 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 20. Notary Public, State of Texas Print Name Commission Expires 28 of 31 Exhibit E: Sales Tax Exemption TEXAS CERTIFICATE O EXEMPTION I claim un exemption from payment of ales and use taxes tier the purchase ot'taxahle items described below or on the aitachai order or invoice_ Dcscdpuon of lte (+}r nn attached order or linoicc) To Be Purchased: f claim this exemption fix she following reason: Name of Exempt Organization: CITY OF FORT WORTH, TEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-6000528-6 Project fin which materials and supplies are purchased l understand that I will be Gable for payment of sales tax, which may become due for failure to comply with the provisions of the state, city, andlar metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases. Liability for the tax will he determined by the pnce paid for the taxable items purchased or the fair market rental value for the period of time ussvl, I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which l know, at the lime of the purchase, will be used in a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense. Tax Exemnt Status Due to Beine a Govemntental Entity Purchaser: CITY OF FORT WORTH, TEXAS Street Address: 1000 THROCKMORTON STREET City. State, Zip Code_ FORT WORTH, TEXAS 76102 Sign Here - [date; June 11, 2009 Phone: 817 This certificate does not require a number to be valid. Sales and use la t "exemtpiion numbers exempt" numbers do not exist_ Thiscertificate should be furnished to the supplier. Do notcntl the completed certificate to the Comptrollr of Public Accounts. 29of31 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project, naming City as an additional insured on each policy of insurance, except Workers Compensation. If Artist subcontracts fabrication tiansportation, and/or installation of the Work, then Artist shall also requite his/her subcontractor(s) to abide by all of the following insurance requirements. Artist shall require the subcontractor(s) to name Artist and City as additional insureds. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis and be as comprehensive as the current Insuiance Services Office (ISO) policy. The policy shall name City as an additional insured. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS Thirty (30) days notice of cancellation or non -renewal. 30of31