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HomeMy WebLinkAboutContract 42973CR F/EMEN T FOR COMM_SSION O F PU C TY OF FO JL WORTH AN cuvaciaTARY CONtRACT NO. Li a 61 (LAC RWOR=c BE _ WEEN D AUG E B A' 1' F M A 1\ his Agreement, entered into this day of Mina dr\ „ 2012 Oy and between the 0"1'Y 0 OR II ' WORT_ _, a home -rule municipal corporation of the Mate of Texas, acting by and through ernando Costa, i 3 771 Cockrel s du_y authorized Assistant City Manager, and. £ NCR BA'IH MAN, an i=�cli��idual, o Avnnue, Fort Worth, 'Texas 76110. 'lLhc City as designated the ARTS COUNCIL OF FOR' WORTH & TARAN COLN'1'Y, Inc., to manage this Agreement orr its behalf. The Contract Manager shall act through its designated P Iblic W Project \tanager. ERE SS, pursuant to Chapter 2, Sections 2-56 t irougi 2-61 of tie Fort Wor Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visdal environmen for Fort Worth :esidents, to commemorate the City's rich cu_tnra1 and eihndc diversity, to integrate the design work of artists into the deve_opulent of the City's capita infrastructure improvements and to promote tourism and economic vitality in tile City t-roug_-i the artistic design of public spaces; WHEREAS, 1 in Fort Worth, Texas; le City is constructing a WHEiEAS, pub iew traffic circle on -A1izabeth Sot levard and 5th Aven is art funds for this project were identified in the P CIP adopted by the Fort Worth City Council on October 26, 2010 e bile Art Plan for the 2008 V&C C-17095), ana were included in the Fiscal Year 2012 Annual Work Plan adopted by the Fort Worth City Council on December 6, 2011 (M&C C-25337); WHEREAS, Atist's final design for the Work, approved by the Fort Worth Art Commission ("FW hC") on November 14, 2011, described as a linear steel sculpture inspired by the historic gates on lizabeth Boulevard and composed of eight tubu.F_r legs, two -by -two, that support a top -tier concealing l ,ED lighting to illuminate the scu ptt:re at night; and WHEREAS, Ca y and Artist wish to set out the terms and conditions under which said Work shall be implemented to promote the integrity of Artist's ideas and statements as represented by the Wor 1 of 38 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 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 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Alice Bateman for Commission of public art for the Site. 1.2. Artist — Means and includes Alice Bateman and/or her heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, and assigns. 1.3. Artwork Design — Means the final, City -approved design of the Work for the Site created in connection with the Final Design Contract and includes, but is not limited to, all final City -approved maquettes, drawings, sketches, prototypes, models and the like that were created by Artist in connection with the Final Design Contract. The design and description are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors, assigns, predecessors, stockholders, administrators, and related companies., 1.5. City — Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.6. Association. 1.7. Community Group — Means and includes representatives of the Ryan Place Improvement Effective Date - Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. rt 1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services required of the Artist have been completed in conformity with the Artwork Design. 1.9. Final Design Contract — Means and includes Fort Worth City Secretary Contract Number 41144 (Agreement for Final Design of Public Artwork for the Elizabeth Boulevard Traffic Circle). 1.10. Parties - Means and includes City and Artist 1.11. Project - Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 2of38 1.12. Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports. 1.13. Site - Means and includes the Elizabeth Boulevard Traffic circle at 5th Avenue, in Ryan Place Neighborhood in Fort Worth, Texas, more particularly described on Exhibit "B" attached hereto and incorporated herein by reference for all purposes. 1.14. Work - Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVEREABLES 2.1. Artist Selection City and Artist acknowledge that Artist's Artwork Design was reviewed and approved by the FWAC on November 14, 2011, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. c. Artist shall install the Work on dates and at times mutually agreed upon by Artist and City. d. Artist, upon request of Contract Manager, shall attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the work and permitting. e. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. f. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. 2.3. City Assistance. 3 of 38 Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Execution of Work a. Artist shall furnish the Schedule to the Contract Manager within fifteen (15) business days after the Effective Date. After written approval of the Schedule by City, 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/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4 within thirty (30) days after receipt of the written request. c. Artist shall complete the fabrication of the Work in accordance with the Artwork 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 its discretion, shall determine whether the changes are significant and whether the changes conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Design, then the Contract Manager shall, in light of the Artwork Design, determine whether a significant change requires City approval, then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of the FWAC If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 2.5 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 and paying for all necessary permits and any required traffic barriers appropriate for this project. 4of38 c. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. d. 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. e. 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. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at his/her own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City If Artist fails to repair the damages to the satisfaction of City within thirty (30) days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. £ Upon City's request, 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 14 ritten 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]. 2.6 Post -installation. a. Within thirty (30) days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least six (6) high resolution digital images (tiff format) and ten (10) low - resolution digital images (.peg format) by a professional photographer showing all components of the Work from at least two vantage points, as selected by the Contract Manager to document the project after the Work is installed. b. Artist shall make his/her best effort to be available at such time(s) as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the 5 of 38 Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. c. For the duration of the Agreement, if Artist intends to seek her own publicity for the Work, such efforts and/or press releases must be approved, in advance, by City. 2.7 Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services required have been completed in substantial conformity with the Artwork 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. 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 2.7, unless City, upon receipt of such notice and prior to the expiration of the 35- day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.8 Risk of Loss The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Fee. Total compensation to Artist under the Agreement shall be in an amount not to exceed FORTY-FOUR THOUSAND THREE HUNDRED TWELVE DOLLARS AND NO CENTS ($44,312.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, fabrication, transportation, installation, Artist's fees, 6of38 insurance, incidental costs, all travel expenses, and any other costs associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2 Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. SIXTEEN THOUSAND NINE HUNDRED TWENTY-SIX DOLLARS AND NO CENTS ($16,926.00) upon full execution of this Agreement and upon submission of detailed estimates from Artist s subcontractors. b. FOURTEEN THOUSAND EIGHT HUNDRED NINE DOLLARS AND NO CENTS ($14,809.00) upon Contract Manager s verification of 50% fabrication. c. SIX THOUSAND THREE HUNDRED FORTY-SIX DOLLARS AND NO CENTS ($6,346.00) upon Contract Manager's verification that the Work is ready to install d. FOUR THOUSAND TWO HUNDRED THIRTY-ONE DOLLARS AND NO CENTS ($4,231.00) within thirty-five (35) days after Final Acceptance and receipt by City of such documentation rt may require concerning payment of services and supplies rendered to Artist [see Article 2]; provided, however, that final delivery shall not be tendered prior to the expiration of thirty (30) days after Final Acceptance. e. Notwithstanding the foregoing, the Fee does not include compensation for any unforeseen changes in fabrication or installation costs. City shall pay to the Artist contingency funds in an amount up to $2,000.00 for costs associated with the Work that are incurred by the Artist upon (i) receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. 3.3. 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 Certificate of Exemption" 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. 3.4. 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 7 of 38 submissions to City and/or Contract Manager, 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 4 TERM AND TIME OF PERFORMANCE 4.1 Term This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Duration. The services to be required of Artist set forth in Article 2 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 4.3. 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. 4.4. Time Extensions; Force Maieure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either parry's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright. Artist represents and warrants that: a. Artwork Design and/or Work shall be the original product of Artist's sole creative efforts. b. Artwork Design and/or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person or entity; 8 of 38 c. Artwork Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere; d. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Designs and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; e. Artwork Designs and/or 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; 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; 5.2 Warranties of Quality and Condition a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. c. If, within one year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 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 standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) days after receipt of the written notice, at no expense to City. 1 d. If, within one year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 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 9of38 risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 5.2. e. If, after one year from Final Acceptance, City observes any breach of warranty described in this Section 5.2 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. f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. iii. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, 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 10of38 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. 5.3 Survival of Representations and Warranties The representations and warranties in this Article 5 shall survive the termination or other extinction of this Agreement. ARTICLE 6 INSURANCE AND INDEMNITY 6.1 General. Artist shall carry insurance as set out in Exhibit "F," which is attached hereto and incorporated herein for all purposes Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Section 2.8 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. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. Indemnity a. General Indemnity i. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, 1 1 of 38 INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. iii. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. b. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission 12of38 being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND 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 CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. c. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models, and/or drawings that constitute or are components of the Artwork 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 Artwork 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. 7.2 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. 7.3 Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist 13 of 38 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 Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Designs and/or 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 form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. 14of38 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 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and a permanent plaque at the site. 8.2. 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 2.5 and Exhibit "C." 8.3. 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 repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, 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 conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines 15 of38 for Practice) and/or construction standards, including, but not limited to, the standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, 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. 8.4. 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. City may give Artist written notice of its intent to take such action under this paragraph. 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 Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. 16of38 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. 8.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. 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 8 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. 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 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 9 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 10 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 17of38 and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 11 TERMINATION 11.1. 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 or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Article 11.1, 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. 11.2. Death or Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches photographs, models and work shall become property of City. b. In the event of termination under this Article 11.2, 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 artists. This provision shall survive the termination or expiration of this Agreement. 11.3 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 termination is for convenience or cause. b. If termination is for the convenience of City, Artist shall have the right to fees for work performed, 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 18of38 Artists under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Worth shall pass to City. c. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist for Artist pursuant to this Agreement prior to termination. 11.4. Termination for Cause. a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 11.4 in accordance with the dispute resolution process set forth in Article 12 of this Agreement If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this Article 11.4 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then: (1) title to the Artwork Design, Work, and/or all other work product under this Agreement, the Final Design Contract, and/or any prior agreement for the Work, including, but not limited to, all documents, models, and/or drawings that constitute or are components of the Artwork Design and/or Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City's exercise of its right to complete the Work; 19of38 (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all other work product under this Agreement, the Final Design Contract, and/or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 and 8 of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and/or all other work product under this Agreement, the Final Design Contract, or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and/or Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or any other work product under this Agreement, the Final Design Contract, and/or any prior agreement for the Work; and (5) Artist, pursuant to this Article 11.4, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and/or all other work product under this Agreement, the Final Design Contract, and/or any prior agreement as a public artwork. Nothing in this Article 11.4 shall affect the 20of38 survival of Articles 5, 6, and 9 of this Agreement, which shall remain in full force and effect upon termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision 21 of38 of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 11.4) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their race, color, religion, sex, sexual orientation, national of igin, 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 14 MISCELLANEOUS 14.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the pei formance of Artist services under this Agreement. 14.2. Entire Agreement. 22of38 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. 14.3. 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. 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 14.5. 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. 14.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and its respective successors and permitted assigns. 14.7. No Third -Party Beneficiaries. 23 of 38 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. 14.8 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. 14.9. 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. 14.10. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 14.13. Surviving Covenants. 24of38 The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 14.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (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, 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 Article 14.14 shall survive expiration or earlier termination of this Agreement. 14.15. 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 City under City's M/WBE ordinance. 14.16 Survival Provision The provisions contained in Articles 5 (Warranties), 6 (Indemnity provision), and 9 (Artist as Independent Contractor) shall survive the termination or expiration of this Agreement. 14.17 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 25 of 38 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 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. 14.18 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 14.19. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 15 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 26 of 38 Copies to: 2. ARTIST 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 Alice Bateman 3 771 Cockrell Avenue Fort Worth, TX 76110 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 27of38 this Agreement on the Effective Date. the Parties hereto have executed g IN WITNESS HEREOF, CITY OF FORT WORTH dionag.04 L�— By: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler WalLMh Assistant City Attorney ATTESTED BY: Contract Authorization: M&C#C- 2ftqcC Date:Mt/ I , 2012 ARTIST MAGI (12 etS,„avv, Alice B atern an �� �ora� to°"°°004 arsvoattlizil 00 00 0°4 • Y 4itXt449-ts•4' Ataniefosso"" 28 of38 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Exhibit A: Final Design Artist's Sketch of the Light Tower • 29 of 38 Exhibit B: Site 30 of 38 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: Depth: Depth: Location & Description of Signature Markings (or copyright): 31 of 38 Edition Information if applicable: 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 information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods• Welding Rod Alloy or Joint Material & Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: 32 of 38 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.) 33 of 38 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 artwoik will change over time and in response to environmental conditions. Artist's vision of how the artwoik will look in the future assists FWPA in realizing an appropi iate 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.) 34 of 38 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 35 of 38 Exhibit E: Sales Tax Exemption CERTIFICATE: OF EXE::MIPTION 1 i111 tl'1 CVCni,7tii,n t115ni I114Iut1li nt ,.ides .aid use Ixi'+ tin the ptirrhser t,t tnxahle Items dc;cnbed hclow of t,il the .itt:l. hcti mind •It iii teire un of Items ter ant 41tt.it'httl tlydct to Intnitc) 10 lit' Purchased. I claim this cxe:upuon tier lit fi 1ln»-ing reason: Name of Fxcmpt Organiiatiott C'ITA' OF FORT %%ORTH, TEXAS •TEXAS SALES AND USE'1AX PERMIT NIIMMIWR 1-75-6000528-6 Project inl which n',.uerialc and supplies arc !lurch.' xi: I undemtantl that 1 wifl he liable for payment of sales tax. sshiai may become dale tin. failure to amply with the psis i,itnts oldie ;laic. city. and or Inetrnristitan transit ,tut:utity sales and um tax laws and eimaptrnller rules regarding exempt purchases. Liability for the tax will be detenninctl by the price paid for the tat..dile seen. purchased or the fair market rental value tier the pe:itsd ottime used. I understand that tt is a mRden eanor to Else an c\emptloll rertifieate to the seller fia' taxable items nitich I knot:. at the time of the patdtase, trill he used in a manner other than that exptytscd in this ecititicare and, upon rout idiom min he tined up to S5f1(1 per offense. Tax Exempt Statiti Due to 13einc a Governmental Emus I urehaser: CITY OF FORT \1'OK FII,'1 EXAS Stied Address. 1(1110 IHROCfCtIORTON STREET Fity, State. Lip [ode FOR! %%DR1'H,TEXAS 76102 Simi Here. I his Lerti lie.11c tote, riot I atone .1 exempt" nut niaev; tin not oxl.t IlIhcr'o 7,^pallid S Date: lute I I. titt<) phone: R., ;4?-S517 and Um: Li 'II -t•\.`tt'.pti+tn mashed This verb ti ntr should be furnished to the 'umiliri. Do not scud tic rnmpletcd eciutiL.tte hi tit <'onlpntdlc` of f' hhc Accounts. 36 of 38 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 transportation, 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 Insurance 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 $100,000 $500,000 Each accident/occurrence Disease - per each employee 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. 37of38 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 cover age. "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 covet age 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 stockholders' equity. In lieu of traditional Insurance alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions limitations or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 38 of 38 M&C Review Page 1 of 2 DATE: CODE: SUBJECT: 3/6/2012 REFERENCE NO.: C TYPE: **C 25465 Ofcidi site of the City of Fort Worth, F . as FORTWORTII 20ELIZABETH LIGHT TOWER LOG NAME: AT THE RYAN PLACE TRAFFIC CIRCLE CONSENT PUBLIC HEARING: NO Authorize Execution of an Artwork Commission Contract with Artist Alice Bateman in the Amount of $44,312.68 for Fabrication, Delivery, Installation, and Lighting of a Sculpture for the Traffic Circle at Elizabeth Boulevard and Fifth Avenue in the Ryan Place Neighborhood (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council authorize the execution of an Artwork Commission Contract with Alice Bateman in the amount of $44,312.68 for fabrication, installation, and lighting of a sculpture for the traffic circle on Elizabeth Boulevard and Fifth Avenue in the Ryan Place Neighborhood. DISCUSSION: This Artwork Commission Contract will enable Fort Worth -based artist Alice Bateman to proceed with fabrication, delivery and installation of the sculpture titled Light Tower at the central traffic circle on Elizabeth Boulevard at Fifth Avenue. Inspired by the historic architecture on Elizabeth Boulevard, the Artist's final design for the sculpture is compatible to the Eighth Avenue entrance gates and marks the heart of the neighborhood. The structure will include eight tubular steel legs, two -by -two, rising upward and out to support a top tier. Concealed in the top tier will be LED lights to softly illuminate the structure at night. This project was included in the Fort Worth Public Art Program's Fiscal Year 2012 Annual Work Plan, adopted by the City Council on December 6, 2011 (M&C C-25337). BACKGROUND: The traffic circle at Elizabeth Boulevard and Fifth Avenue was identified for a public art project through the 2008 CIP Public Art Plan. On September 11, 2010, the Fort Worth Art Commission approved the Artist Selection Panel's recommendation of Alice Bateman as the artist for the Elizabeth Boulevard public art project. Bateman was placed under a Final Design Contract (City Secretary Contract No. 41144) and has worked closely with the neighborhood stakeholders to develop the design. Bateman's final design for the sculpture was approved by the Fort Worth Art Commission on November 14, 2011. The total project amount is $64,863.98, which includes $44,312.68 for this Commission Contract, $9,000.00 for final design, and $11 551.30 for lighting costs. M/WBE - The City's overall M/WBE goal for the Fort Worth Public Art program is 25 percent of total capital project dollars expended on public art annually. This project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Street Improvements Fund. TO Fund/Account/Centers FROM Fund/Account/Centers C204 541200 209980145280 $44.312.68 http://www.fortworthgov.org'council_pacicet/mc review.asp?ID=16407&councildate=3/6/2... 3/6/2012 M&C Review Page 2 of 2 Submitted for City Manaaer's Office by: Fernando Costa (6122) Oriainatina Department Head: Douglas W. Wiersig (7801) Additional Information Contact: Martha Peters (298-3025) ATTACHMENTS Elizabeth Boulevard Sculature.odf Elizabeth__TrafficCircles (2)_pdf http://www.fortworthgov.org/council_packet/mc review.asp?ID=16407&couneilda e 3/6/2... 3/6/2012