HomeMy WebLinkAboutContract 44143 (2)CITY EIC
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AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND SATO SERVICE, LLC, FOR FINAL DESIGNS OF PUBLIC ART FOR
CHISHOLM TRAIL PARKWAY (SH-121T)
This Agreement is entered into this dayof T I'ZCI k'LL i 2013, byand between the
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City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and Sato Service, LLC, a Washington Limited Liability
Company, located at 1045 NE 88t1i, Seattle, Washington, 98115, and acting by and through Norie Sato, its
duly authorized Member/Manager. City has designated the Arts Council of Fort Worth and Tarrant County,
Inc., 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 City is participating in the design and construction of the Chisholm Trail Parkway
(SH- 121 Tollway) ("Toliway");
WHEREAS, funds for a public art project associated with the Tollway were included in the Public
An Plan for the 2004 Capital Improvement Program approved by City Council on May 17, 2005 as M&C
G- 14801; the Public An Plan for the Critical Capital Needs Program approved by City Council on October
26, 2010 as M&C G-17095, and the Public Art Plan for the 2008 Capital Improvement Program approved
by City Council on October 26, 2010 as M&C G-17094;
WHEREAS, the Project is included in the Fort Worth Public Art FY2013 Annual Work Plan,
approved by City Council on October 16, 2012 as M&C C-25920;
WHEREAS, on July 9, 2012, the Fort Worth Art Commission ("FWAC") approved Artist's
Preliminary Designs developed under Fort Worth City Secretary Contract No. 33443, as amended;
Agreement Between the City of Fort Worth and SATO SERVICE, LLC
for Final Designs of Public Art for Chisholm Trail. Itarkv ay (SI- - 21(L)
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WHEREAS, the City desires Artist to develop final designs for: (1) Glass mosaic tile murals inspired
by "Trinity River Water Fowl" for integration into East Clear Fork Crossing Bridge Monuments; and (2) A
series of 10 unique glass mosaic -clad columnar "Watershed Crossing Markers" that celebrate the flora and
fauna of the Trinity River Watershed to enhance motorists' and pedestrians' experience of the Sites; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Works shall
be designed to promote the integrity of Artist's ideas and statements as represented by the Works.
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 Sato
Service, LLC, for Final Designs of public art for the Sites.
1.2. Artist - Means and includes Sato Service, LLC, and/or its partners, members, managing
members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary
organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators,
subartists, contractors, and related companies
1.3. Artwork Designs — Means and includes both the Preliminary Designs and Final Designs of
the Works, which are defined in 1.3.a. and 1.3.b. below.
1.3.a. Preliminary Designs — Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that are created by
Artist in connection with this Agreement and/or any prior agreement between Artist and City
for the Works, including, but not limited to, the design concepts created pursuant to City
Secretary Contract Number 33443, as amended by City Secretary Contract Numbers 34357
(1st Amendment), 33433-A2 (Second Amendment) and 33443-A3 (Third Amendment),
attached hereto as Exhibit "A" and incorporated herein for all purposes.
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for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
1.3.b. Final Designs — Means the Artist's final, proposed design of the Works for the Sites,
which is based upon the City -approved Preliminary Designs and includes, but is not limited
to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be
created by Artist in connection with this Agreement, or the like that are related, directly or
indirectly, to the Works and shall include Artist's specifications for fabrication and
installation of the Works.
1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and/or its officers, directors, employees, agents, subsidiary organizations, parent organization,
successor corporations, 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. 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.
1.7. Final Designs Deliverables — Means and includes those items set forth in Article 2.4 of this
Agreement that are required for City's review and approval.
1.8. Parties — Means and includes City and Artist.
1.9. Project — Means and includes the capital improvement or public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
1.10. Project Consultant — Means and includes the design firm/professional(s) hired by City as
liaison with the North Texas Tollway Authority (NTTA), which is Kimley Horn.
1.11. Sites — Means Chisholm Trail Parkway (SH-121Tollway), from I-30 to FM 1187, and
includes one site at the East Clear Fork Crossing Bridge and ten other sites that intersect with Chisholm Trail
Parkway including Montgomery, Vickery, Future Oakbend, Dutch Branch, Dirks/Altamesa, Sycamore
School Road, Summer Creek, Risinger, Stewart Felz, and Old Granbury Road, all of which are more
particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes.
The individual sites are subject to change.
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for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
1.12. Works — Means and includes the finished objects of art and design that are the subject of
this Agreement, or any intermediary stage of completion of such works, including (1) Glass mosaic tile
murals inspired by "Trinity River Water Fowl" for integration into six (6) East Clear Fork Crossing Bridge
Monuments; and (2) a series of 10 unique glass mosaic -clad columnar "Watershed Crossing Markers" that
celebrate the flora and fauna of the Trinity River Watershed,
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that Artist's Preliminary Designs were reviewed and approved by the FWAC on
July 9, 2012, and is the basis for executing this Agreement with Artist.
2.2. Scone of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing the Final Design of the Works and for providing the Final Design Deliverables.
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
Works, subject to review and input from the Southwest Parkway (SH-121T) Community Advisory
Group's appointed Art Committee and approval by City as set forth in this Agreement.
c. The location at the Sites where the Works shall be installed shall be mutually agreed upon by City
and Artist and the North Texas Tollway Authority (NTTA).
d. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with
appropriate City and NTTA staff for purposes of risk assessment, safety review, sighting of the
Works, and permitting.
e. Artist shall meet and coordinate with City staff, Project Consultant, NTTA and others, as necessary,
to ensure proper integration of the Works into the Sites.
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f. Artist shall coordinate and subcontract with Project Consultant for engineering and construction
documents for the ten Watershed Crossing Markers, which shall become part of the deliverables
under Section 2.4.c and subject to approval by the City and NTTA.
g. Artist shall coordinate with Project Consultant for proper integration of the Works into the Sites and
into the construction documents and to allow for sufficient structural support and appropriate lighting
for the Works.
h. Artist shall, in coordination with Contract Manager, conduct a process to request and purchase
licenses to use photographs of water fowl by Fort Worth area photographers to inspire the designs of
the glass mosaics. Artist shall inform City of any material created or controlled by others that Artist
has incorporated into the Final Design. Artist will obtain, at its own expense, and deliver to City
within one (1) month after City's approval of the Final Design, written permission to reproduce,
distribute, create derivative works based upon, and display publicly such material in any medium or
format, which shall be subject to the review and approval of the City. Within thirty (30) days of the
receipt of notice thereof from City, Artist will also obtain any further licenses, permissions, and/or
releases that City may reasonably require before entering into any further contracts with the Artist
for the Work, which shall also be subject to the review and approval of the City.
i. Artist shall consult with a qualified fabricator for the fabrication of the glass mosaics and provide
material samples.
j. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the Works from said conservator to the Contract Manager.
k. Artist shall present the Final Designs to the NTTA and to appropriate City committee, City staff,
Southwest Parkway (SH-121T) Community Advisory Group's appointed Art Committee, and other
City boards or commissions, as appropriate, for input and to the FWAC for review and approval at
dates and times mutually agreed upon.
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for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
1. Artist shall make a minimum of two (2) trips to Fort Worth, Texas for meetings and presentations as
indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in
writing by City and Artist.
2.3. City Assistance.
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 Sites, if available.
2.4. Final Designs Deliverables
Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and
equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. Final
Designs Deliverables shall consist of the following:
a. Detailed, design illustrations of the Works for the Sites, which shall be at least 20" x 30" and
mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files, showing
the proposed Works from two vantage points with at least one illustration showing the Works' size
and placement in relation to the Sites.
b. A final written narrative of the Works, describing the following: (1) the Final Designs concepts and
timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements
of the Works, including information regarding Artist's subcontractor(s), if any, for the Works; (3)
maintenance requirements for all elements of the Works as dictated by Artist, along with cost
estimates for annual maintenance; and (4) proposed public education program or activity to be
conducted by Artist at a time mutually agreed upon by the Parties.
c. Comprehensive working drawings, detailing the means of installing all elements of the Artwork on
the Sites, together with other such graphic material to permit City and NTTA to carry out structural
design review. Professional Liability Insurance is required of Artist's subconsultant in all
circumstances for on -site artwork requiring engineering and/or architectural services. City will
conduct a review of structural design and other related graphic material prior to installation of the
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Works. Upon City's request, drawings must be signed and stamped by an engineer and/or architect
licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of
insurance for each licensed professional and provide City with a 30-day notice of cancellation of any
policy required hereunder.
d. A detailed budget, on the budget form attached hereto as Exhibit "C," for installation of the Works in
an amount of EIGHT HUNDRED EIGHTY-SEVEN THOUSAND FOUR HUNDRED SIX PEEN
DOLLARS AND NO CENTS (887,416.00), which includes all costs for materials, labor, fabrication,
delivery, installation, insurance, transportation, remaining Artist's fee, travel and all other associated
costs for the Works. It is understood that this budget total does not include lighting. The detailed
budget will be for implementation of the Works through a possible artwork commission contract
with City, which, contract is subject to the approval of the Fort Worth City Council.
2.5. Final Designs Review.
a. Upon completion of the Final Designs Deliverables, Artist shall meet with the NTTA, the Southwest
Parkway (SH-121T) Community Advisory Group's appointed Art Committee, City staff, and other
City boards or commissions, as appropriate, to present the Final Designs, at a date and time mutually
agreed upon, for input.
b. Artist shall present the Final Designs to the FWAC for approval at a regularly scheduled FWAC
meeting.
c. City shall notify Artist of its approval, or disapproval, of the Final Designs within thirty (30)
business days of Artist's presentation to the FWAC.
d. If City disapproves of any of the Final Designs, either in whole or in part, then City shall inform
Artist of each revision to be made to the Final Designs. City may require Artist to make such
revisions to the Final Designs as City deems necessary in its sole discretion and/or for the Works to
comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency
having jurisdiction over the Sites for reasons of safety and security.
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e. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Final Design(s) in conformance with City's requirements.
£ If City disapproves of any of the resubmitted Final Design(s), any further Final Design
resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in
this Article. If the Parties desire not to continue with the resubmission process, then this Agreement
will automatically terminate as to those Final Design(s) not accepted by the City, with payment for
work performed per the payment schedule in Article 3 up through the date of termination. (See
Article 4.4.d) Artist shall provide the disapproved Final Design(s) presentation materials to the
Contract Manager to become part of the City's Public Art archive.
g. Upon City approval of the Final Designs, any revisions made to the City -approved Final Designs
shall become part of the Final Designs. Artist shall incorporate any City -approved revisions into the
final designs in conformance with City's requirements. Artist shall provide the Final Designs
presentation materials to the Contract Manager to become part of the City's Public Art archive.
These documents, models, and/or drawings will be retained for archival and exhibition purposes.
h. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Designs are
accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for
fabrication, delivery, and installation of the Works shall commence, which shall become part of the
deliverable under any anticipated artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed FIFTY-NINE THOUSAND
DOLLARS AND NO CENTS ($59,000.00), which shall constitute full compensation for any and all costs
associated with this Agreement, including, but not limited to, engineering and consulting fees, all travel
expenses and services performed and materials furnished by Artist under this Agreement. Artist and City
may amend this Agreement to allow for additional payment if additional services are required.
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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. THIRTEEN THOUSAND DOLLARS AND NO CENTS ($13,000.00) upon execution of this
Agreement.
b. TWENTY-TWO THOUSAND DOLLARS AND NO CENTS ($22,000.00) within thirty (30)
calendar days after Artist submits all of the Final Designs Deliverables required under Article 2.4 of
this Agreement and makes a presentation(s) of the Final Designs to the FWAC.
c. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar days
after City's approval of the Final Designs of glass mosaic tile murals for integration into the East
Clear Fork Crossing Bridge Monuments.
d. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar days
after City's approval of the Final Designs for the "Watershed Crossing Markers".
e. City may pay Artist up to TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00) for
engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall
be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50%
is allowed) for such services attached thereto.
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 Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same
form as that attached hereto as Exhibit "D" 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
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.
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ARTICLE 4
TERM AND TERMINATION
•
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. 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.
4.3. Termination for Cause
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 4.3 in accordance with the
dispute resolution process set forth in Article 5. 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
provision shall not relieve the party in default of any liability for damages resulting from a breach or a
violation of the terms of this Agreement.
4.4. Termination for Convenience
a. The services to be performed under this Agreement may be terminated, in whole or in part, by either
party, subject to written notice submitted thirty (30) calendar days before termination, specifying the
grounds for termination.
b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered
up to the effective date of termination, and Artist shall continue to provide the City with services
requested by City and in accordance with this Agreement up to the effective date of termination.
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Upon payment in full of all monies due for services provided up to the effective date of termination,
City shall have the right, in its sole discretion, to possession and transfer of all work product
produced by Artist under this Agreement, including, but not limited to, finished and unfinished
drawings, sketches, photographs, models, and designs, up to the effective date of termination,
provided that no right to fabricate or execute the Works shall pass to City.
c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay
Artist for services actually rendered up to the effective date of termination or require the Artist to
remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior
to the effective date of termination. If City chooses to pay Artist for services actually rendered, then
all work product produced by Artist under this Agreement, including, but not limited to, finished and
unfinished drawings, sketches, photographs, models, and designs, up to the effective date of
termination shall become property of City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay
Artist for work performed per the payment schedule in Article 3 up through the date of termination.
City shall have the right to possession and transfer of all work product produced by Artist that is the
subject of the termination under this Agreement, including, but not limited to, finished and
unfinished drawings, sketches, photographs, models, and designs, up to the effective date of
termination
4.5. Incanacity of Artist
a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or
obligations under 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 incapacity. All work
product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches,
photographs, models, and designs, up to the effective date of termination shall become property of
City.
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b. Should Artist's Final Design(s) have been approved, in the event of termination under this Article
4.5, City shall have the right to complete the Works, if feasible. Due regard shall be made for
Artist's intended results and proper credit and acknowledgement shall be given to Artist. This
provision shall survive the termination or expiration of this Agreement.
ARTICLE 5
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 of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes
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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 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artist or pursuant to the applicable termination provision of this
Agreement, the Artwork Designs, Works, and all other work product under this Agreement
shall become the property of City, without restriction on future use, except as provided
below. Artist shall retain copyright and other intellectual property rights in and to the
Artwork Designs and/or Works. By execution of this Agreement, Artist grants to the City an
exclusive, perpetual, irrevocable license to graphically depict or display the Artwork
Designs and/or Works for any non-commercial purpose whatsoever. For purposes of this
limitation, any graphic depiction or display of the Artwork Designs and/or Works 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.
b. In view of the intention that the Artwork Designs and the Works be unique, Artist shall not
make any additional exact duplicate reproductions of the Artwork Designs or the Works, 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.
c. Artist reserves every right available under the Federal Copyright Act to control the making
and dissemination of copies or reproductions of the Artwork Designs and/or Works, except
as those rights are limited by this Agreement. City may make and disseminate photographs,
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drawings, and other two-dimensional reproductions of the Artwork Designs and/or Works
and accompanying materials for any municipal purpose. All reproductions by the City shall
contain a credit to the Artist and a copyright notice substantially in the following form: `
date, Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork
Designs and/or Works for marketing and promotional purposes in connection with the
Artist's business.
e. City is not responsible for any third -party infringement of Artist's copyright and not
responsible for protecting the intellectual property rights of Artist
6.2 Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. 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 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.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
a. Artwork Designs and/or Works shall be the original product of the Artist's sole creative efforts.
b. Artwork Designs and/or Works is and will be unique and original, and does not infringe upon any
copyright or the rights of any person;
c. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork
Designs and/or Works or any copyright related thereto that may affect or impair the rights granted
pursuant to this Agreement;
d. Artwork Designs and/or Works (or duplicate thereof) have not been accepted for sale elsewhere;
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e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights
contained in this Agreement; and
f. All services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessary care, skill and diligence.
ARTICLE 8
ARTIST AS 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 respondent superior has no application as between
City and Artist.
9.1. General Indemnity
ARTICLE 9
INDEMNIFICATION
i. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY 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, 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 ACTS, ERRORS, OR OMMISSIONS OR WILLFUL MISCONDUCT OF
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ARTIST AND/OR ARTIST'S SUBARTISTS 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.
9.2. 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 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.
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 16 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 10
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin,
sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other
prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and
warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall
comply with all applicable laws and regulations in any employment decisions.
b. In the event of Artist 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 11
MISCELLANEOUS
11.1. Compliance
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the
performance of Artist's services under this Agreement.
11.2. 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.
11.3. 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.
11.4. Waiver
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 17 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
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.
11.5. 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.
11.6. 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 their respective successors and permitted assigns.
11.7. No Third-Partv 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.
11.8 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.
11.9. Force Maieure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions; transportation problems, or any other circumstances which are reasonably
beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 18 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so
obligated or permitted shall be excused from doing or performing the same during such period of delay, so
that the time period applicable to such design or construction requirement shall be extended for a period of
time equal to the period such party was delayed.
11.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
11.11. 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 the City to fulfill its obligations under this Agreement, the City may
terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to
Artist of written notice of City's intention to ter►ninate 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.
11.12. Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
11.13 Right to Audit
Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the
Works (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 the City at 1000
Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties
following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any
Agieement Between the City of Fort Worth and SATO SERVICE, LLC Page 19 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier
termination of this Agreement.
11.14. Certified MBE/WBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise
(MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by the City under the City's Business Diversity Enterprise Ordinance.
11.15 Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title
and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the
termination or expiration of this Agreement.
11.16 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 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.
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 20 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
11.17 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.
11.18. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager s Office
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to:
2. ARTIST
Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President, Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
Sato Service, LLC
1045 NE 88th
Seattle WA 98115
SIGNATURES APPEAR ON THE FOLLOWING PAGE
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 21 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT WORTH
by:
Fernando Costa
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler ' Wallach
Assistant City Attorney
ATTESTED BY:
M.ry J. ' ayser
City Secretary
M&C # C-26045
DATE: January 8, 2013
SATO SERVICE, LLC
by;/75eli ›.
Nome Sato
Member/Manager
Al0913121/0%
Pia 0
0 rik
Pitt 8
9
OFFICIAL RECORD
@)flflF SMl NllTLr T U
FE WORTH,
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 22 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
1
i
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i
I
£.cy tl rVATON -
PARALLEL TO ROADWAY
bvrr Srsz•47 td
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Exhibit A: The Preliminary Designs
SIDE ELEVATION -
PARALLEL TO ROADWAY
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FRONT ELEVATlOti -
PEIeEtii cuLAH tU WJAD:V/AY
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FRONT ELEVATION -
PERPENDICULAR TO ROADWAY
Trinity Water Fowl
SH-121 FAST CI FAR FORK CROSSING BRIDGE MONUMENTS
FOR1 WOR111 StI-121 PARKWAY
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SIDE ELEVATION -
PARALLEL TO ROACH AY
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FRONT ELEVATION -
PERPENOCULAR TO ROADWAY
EAST CLEAR FORK CROSSING BRIDGE MONUMENTS MOSAICS
Agreement Between the City of Fort Worth and SATO SERVICE, LLC
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121 T)
Page 23 of 28
711.
``.• -
- -' - - - --.a
WATERSHED CROSSING MARKERS
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 24 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121 T)
3
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Exhibit B: The Sites
d+ards tianich �t!
Rd. (Future) L
jj 183 ,i•��
L
Jbodawn
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Future
4 4-
Qastnont Blvd.
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Section 2B - 0.8 miles
UPRR Yard 8 Hulen Bridge
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Section 2C - 2.4 miles
UPRR DavidsonYard
j I
dI
37�
a
a� J
Benbook
Chisholm Trail Parkway
1-30 to U.S. 67
27.6 miles
Watershed Tributar
Lodations are approxi
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Johnson Couhtt'
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to and subject
other technic re
Sycamore Sch
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art
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i Stewart
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Section 1 - 0.9 miles
1-30 interchange
1
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Section 2 - 3.1 mites
University Dr. to Arborlawn ter.
Sections 3A & 38 -1 6 miles
3A• Access al interchange
3B• 1.20 interchange
I its -
Section 4- 2.3 miles
South of Overton Ridge to
Dirks Rd /Altemese Blvd,
f
Evorrnan
,Fort Worth?
Sprnks,Airport
Section 5 - 5.8 miles
Diri+s Rd./Altamesa Blvd. to FM 1187
•
Agreement Between the City of Fort Worth and SATO SERVICE, LLC
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121 T)
Page 25 of 28
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs (no lump sums) for all items designated with an asterisk('). Cost increases must
also have a written estimate attached.
ARTIST'S FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rental
Per Diem Expenses at $ per day
Mileage at $_ per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist / Subcontractors
Worker's Comp. / Employer's Liability
Other, as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping (for correspondence, samples, models, drawings etc)
Reprographic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable, drawing must be signed and sealed by a professional registered to practice
in the State of Texas)
Architect'
Structural Engineer'
Electrical Engineer
Conservator*
Photographer (for documentation of completed work)'
Other'
MATERIALS
(Please attach a complete list of materials. Itemize all anticipated aspects and
components with per unit cost estimates)
Materials' Total
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and work to be completed by
artist.)
Artist's Labor ( hours at $,u per hour) Total
Subcontracted Labor' (Total)
Facility/Equipment Rental (used exclusively for this project) related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA, City of Fort Worth or others)
Test Drilling"
Removal'
Landscaping/Irrigation'
Electrical Modifications*
Water Work/Mechanical Devices
Other*
(Revised May 2011)
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 26 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
TRANSPORTATION
BASEMOUNTING
Matenars to Fatxicatien Ste
Finished Qa,-k to Insta'laticn Ste'
air
Mooning Devices and
FoundatcattFooting
Omer
INSTALLATION COSTS
(Costs mast include ai':ovance for after hours instalaton. if appfcaNe Flease attach a
ccmpiete'ist of equipment and indivkual estimates with this form)
LIGHTING
GRAND TOTAL
Please make any necessary notes here:
Prepared By:
Date:
Sul:contra ed Labor'
Scaffcldng'
Equipment Renta. vela:ed to instal at1on'
Off-dtry Police=Security'
Traffic Barriers'
Storage Facility Rental'
City Pem;ts
Display Devices
Fireproofing'
Site Restofatron'
Other
Designers'
FF•tures'
Bulbs'
Site Preparation'
Installation'
(Revised May 207 71
Agreement Between the City of Fort Worth and SATO SERVICE, LLC Page 27 of 28
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
Exhibit D: Sales Tax Exemption
TEXAS (:'E:R'TIFIC',tTE OF EXE:1'IPTION
:laid .u! escuipit. 39 i}9tIB'=.: 161tfclIl tit yjl1-c
hrlol. „rt>n
ert r into
ptetnr ut hems (r)r:.9.�[ta:= t^rdbr or 1ntuiccr 10 Fie Pt
Ibis ctclnlrtitm li,• I#9e
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TEX.A SALES :AND USE TAX PFRMIT NUMBER
rr9t}
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c,.niptr,tller rules re, riling
tuhte Rent~ lturchacc
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twirIC11Cnta
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Purch:,:er.
Street Addrt
tus Due to Beim .z Govc'mmenta 1_nn v
CT11 OF f' (OR T ChOR rll, `I F=XAS
1000 T1IROCKNIORTO\ STREET
FORT WORTII, TEXAS 76102
1
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1 }t; coil usc a nunthcr to Ik
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y the price paid
tlt the cllc3 lot I,a=Ihlc otitis ss bich
posed in this cctifikstr
)4100
nttr_9h t or "tax
tics e ttt 1
Agreement Between the City of Fort Worth and SATO SERVICE, LLC
for Final Designs of Public Art for Chisholm Trail Parkway (SH-121T)
Page 28 of 28
M&C Review
COUNCIL ACTION: Approved on 1/8/2013
DATE: 1/8/2013 REFERENCE
NO.:
CODE:
SUBJECT:
C TYPE:
**C-26045 LOG NAME:
CONSENT PUBLIC
HEARING:
Page 1 of 2
Official site of the City of Fort Worth, Texas
FORT WORTI I
20CLEAR FORK BRIDGE
WATERSHED CROSSING
MARKERS
NO
Authorize Execution of a Final Design Agreement with Sato Service, LLC, in the Amount
of $59,000.00 for a Series of Public Artworks to be Installed at Various Locations Along
the Chisholm Trail Parkway, SH-121T, from 1-30 to FM 1187 (COUNCIL DISTRICTS 3 6
and 9)
RECOMMENDATION:
It is recommended that the City Council authorize entering into a Final Design Agreement with Sato
Service, LLC, in the amount of $59,000.00 for a series of public artworks to be installed at various
locations along the Chisholm Trail Parkway, SH-121T, from 1-30 to FM 1187.
DISCUSSION:
Under the final design contract (Contract) artist Norie Sato will finalize the aesthetic design and
installation specifications for large-scale glass mosaic murals titled 'Trinity Water Fowl" for insets in
six bridge monuments. Sato will invite local amateur and professional photographers to submit
images of birds seen along the Trinity River for possible use in the design of the glass mosaic murals.
In addition, Sato will complete aesthetic design and engineering for the Watershed Crossing Markers
- a series of glass mosaic -clad concrete columnar sculptures (approximately 18 feet in height and two
feet in diameter). Each glass mosaic will be unique in design featuring flora and fauna of the
watershed environment and the Chisholm Trail Parkway alignment with its specific location
marked. A unique sculptural cap on the top of each marker will reference human water -related
tools. Sato will subcontract with Kimley-Horn to provide engineering services and construction
documents for these stand-alone elements, which mark the tributary crossings locations along the
Chisholm Trail Parkway.
This project seeks to enhance the visual quality of the Chisholm Trail Parkway for motorists and
pedestrians (in some locations) and celebrate the natural environment through which the Parkway
traverses, in keeping with the goals of the Southwest Parkway (SH-121T) Corridor Master Plan
(Corridor Master Plan).
BACKGROUND
On October 25, 2005, the City Council adopted the Corridor Master Plan — a collaborative effort of the
City of Fort Worth, the North Texas Tollway Authority (NTTA) and the Texas Department of
Transportation (TxDOT) to establish aesthetic design for the Parkway in order to harmonize it with the
urban and natural conditions of the corridor. The Corridor Art Plan by artist Lorna Jordan, which was
included in the Corridor Master Plan, identified public art opportunities and recommended that artists
consider the Parkway's place within the Trinity River Watershed in order to provide viewers with
meaningful aesthetic and perceptual experiences.
In the Spring of 2005, (City Secretary Contract Nos. 33443, 34357, 33433-A2, M&C C-21231) the
SH-121T Citizen Advisory Group's (CAG) Art Committee selected artists Norie Sato and Lorna
Jordan After adoption of the Corridor Master Plan, Sato was engaged to develop conceptual design
http://apps.cfwnet.org/council_packet/mc review.asp9ID=17736&councildate=1/8/2013 2/5/2013
M&C Review Page 2 of 2
proposals for various sites. Throughout the preliminary design process, Sato has coordinated closely
with HOK Architects (Parkway), Gideon Toal (Bridge Monuments), Kimley-Horn and NTTA to insure
the feasibility of her concepts. On July 9 2012 the CAG Art Committee endorsed Sato's concepts
and the Fort Worth Art Commission recommended that Sato proceed into the Final Design phase.
This is a REGIONAL project, specifically located in COUNCIL DISTRICTS 3, 6 and 9.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above
recommendations and adoption of the attached appropriation ordinance, funds will be available in the
current capital budget as appropriated, of the SH121T Southwest Parkway Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
C221 531200 303980000530 $59.000.00
Submitted for Citv Manaaer's Office bv: Fernando Costa (6122)
Oriainatina Department Head: Douglas W. Wiersig (7801)
Additional Information Contact: Martha Peters (298-3025)
ATTACHMENTS
MAP PDF
http://apps.cfwnet.org/council_packet/mc review.asp?ID=17736&councildate=1/8/2013 2/5/2013