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HomeMy WebLinkAboutContract 44223 (2)Cbrif UN, c©)P&GT AGREEMENT BETWEEN THE CITY OF FORT WORTH AND TESSERAE MOSAIC STUDIO, INC FOR FABRICATION, DELIVERY, AND INSTALLATION OF PUBLIC ARTWORK FOR MARINE PARK FAMILY AQUATIC CENTER t This Agreement is entered into this Z dayof gr � kiovt/tjtl t2/ , 2013, by and between the Cityof Fort Worth, a home -rule municip al corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and TESSERAE MOSAIC STUDIO, INC., a Texas for -profit corporation, located at 661 North Plano Road, Suite 321, Richardson, Texas 75081. 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, City is constructing a bathhouse for the new Family Aquatic Center at Marine Park on the corner of 20t'1 and Ellis Street in north Fort Worth, Texas; WHEREAS, the Fort Worth Art Commission (FWAC) has recommended funds from the Public Art Fund to fund public art for the Site, which was included in the Fiscal Year 2013 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 16, 2012 as (M&C C-25920) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, City conducted a competitive proposal -based selection process for the development of a design for the Site with the express understanding that City would hire another person or entity to fabricate the Work based on such design and install it at the Site; WHEREAS, City selected Artist based on his design proposal for the Site and has acquired the Artwork Design (excepting any ownership rights in and to the copyright); WHEREAS, FWAC approved direct selection of Fabricator on October 8, 2012 and recommended that the Work consist of fabrication and installation of a mosaic tile mural on a large arch inset of the bathhouse facade, and be based on the Artist's Artwork Design; WHEREAS, the City has also retained the Artist to serve as a consultant to ensure that the integrity of his Artwork Design is preserved throughout the fabrication and installation process; WHEREAS, City and Fabricator wish to set out the terms and conditions under which said Work shall be fabricated in a way as to preserve the in integrity of the Artist's Artwork Design and delivered and installed at the Site. OFFICIAL RECORD Agreement for Fabrication, Delivery and Installation of Public Artwork cmy socRETARY between the City of Fort Worth and Tesserae Mosaic Studio, Inc. RECEIVED FEB292ih 20i3 tjtwORtN,TX 1of30 NOW, THEREFORE, City and Fabricator 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 and Fabricator for fabrication, delivery, and installation of public artwork. 1.2. Artist - Means and includes the selected Artist, Samuel Kenneth O'Toole d/b/a ARTworks DFW for this Project that designed the Artwork Design. 1.3. Artwork Design - Means and includes the artwork design by Artist titled Dreams at 100 Fathoms, more particularly described in Exhibit "A," attached hereto and incorporated herein by reference for all purposes, that was acquired by the City through an Artwork Design Acquisition Agreement with Artist. 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. Fabricator - Means and includes Tesserae Mosaic Studio, Inc., a Texas for -profit corporation, and/ or its partners, members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, predecessors, stockholders administrators, contractors and related companies. 1.8. Final Acceptance - Means City written acknowledgement to Fabricator that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.9. Parties - Means and includes City and Fabricator. 1.10. Project - Means and includes the public art development undertaking of City for which Fabricator's services are to be provided pursuant to this Agreement. 1.11. Project Consultant - Means and includes the design fit dprofessional(s) Brinkley Sargent, hired by City to design the Site. 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. Agreement for Fabrication, Delivery and Installation of Public Artwork 2 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. 1.13. Site — Means and includes the bathhouse for the new Marine Park Family Aquatic Center on Ellis Street in North Fort Worth in Council District 2, more particularly described in Exhibit ` B," attached hereto and incorporated herein by reference for all purposes. 1.14. Work — Means the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work and includes a mosaic tile mural based on the Artwork Design that will be approximately 10'4" high x 6'8" wide and be installed at Site. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Fabricator Selection. City and Fabricator acknowledge that Fabricator's experience and ability was reviewed and approved by the FWAC on October 8, 2012, and is the basis for executing this Agreement. 2.2. Scone of Services. a. Fabricator understands and acknowledges that City has acquired the Artwork Design (excluding any ownership rights in and to the copyright) from the Artist for the purpose of hiring Fabricator to fabricate the Work based on the Artwork Design and deliver and install the Work at the Site. b. To ensure the integrity of the Artwork Design during the fabrication and installation process, Fabricator shall coordinate/consult with the Artist. a. Fabricator shall meet with the Artist at the beginning of the fabrication process to discuss the Artwork Design and the Artist's expectations for the Work. b. Fabricator shall meet with the Artist at least once every two weeks to allow the Artist a visual inspection of the Work and allow for any input from the Artist concerning the Artwork Design. c. Fabricator shall permit the Artist to be present during the installation of Work. d. Fabricator shall be available to the City and Artist for any questions or concerns that may arise during the fabrication, delivery, and installation process. e If any disputes arise between the Artist and the Fabricator as to the Artwork Design, then Fabricator must seek to resolve those issues through the Contract Manager first. c. Fabricator shall detennine the scope, material, and texture of the Work, subject to review and acceptance by Artist and City as set forth in this Agreement. d. Fabricator, with Artist, shall present a material sample of the Work to the FWAC for review and approval at a regularly scheduled meeting of the FWAC early in the fabrication process. e. Fabricator, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. Agreement for Fabrication, Delivery and Installation of Public Artwork 3 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. f. Fabricator shall meet and coordinate with Project Consultant for proper integration of the Work into the Site and into the construction documents and to allow for sufficient structural support and appropriate lighting for the Work. g. Fabricator shall install the Work on dates and times mutually agreed upon by Fabricator and City. 2.3 Execution of Work a. Fabricator 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, Fabricator shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Fabricator 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 Fabricator 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 Fabricator shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.3 within thirty (30) days after receipt of the written request. c. Fabricator shall complete the fabrication of the Work in accordance with the Artwork Design and in consultation with Artist. d. Fabricator shall present to the Artist and 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 10 of this Agreement. 2.4 Delivery and Installation a. Fabricator 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. Construction of the Site, including, but not limited to, the design, engineering, and labor associated with preparing the Site to receive the Work shall be done in accordance with the specifications jointly agreed to by Fabricator, the Project Consultant, and City. Fabricator is responsible for Agreement for Fabrication, Delivery and Installation of Public Artwork 4 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. ensuring that these specifications are provided in accordance with the schedule provided by City so that City can incorporate them into the construction documents and construction contract. c. Fabricator shall be responsible for obtaining and paying for all necessary permits and any required traffic barriers appropriate for this project. d. Fabricator is responsible for installing all elements of the Work. Fabricator 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 Fabricator by the City. e. Fabricator 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. f. Should Fabricator complete the Work in advance of the completion of the Site, Fabricator shall store the Work at no expense to City until such a time as the Site is completed and the Contract Manager notifies Fabricator that installation may commence. g. Fabricator, individually and through its subcontractors, 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 Fabricator or Fabricator's subcontractors have damaged the Site, then City shall inform Fabricator, in writing, of the damage. Fabricator, 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 Fabricator 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 nght to deduct the cost of repairs from any remaining payment due to Fabricator under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. h. Upon request of City, Fabricator shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to Contract Manager for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). 2.5 Final Accentance. a. Fabncator shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement Included in such notice from Fabricator 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. Agreement for Fabrication, Delivery and Installation of Public Artwork 5 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc b. City shall notify Fabricator 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 Fabricator has sent the written notice to City required under this Section 2.6, unless City, upon receipt of such notice and prior to the expiration of the 35- day period, gives Fabricator written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.6 Risk of Loss The risk of loss or damage to the Work shall be borne by Fabricator prior to Final Acceptance, and Fabricator 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. Compensation Total compensation to Fabricator under the Agreement shall be TWENTY SIX THOUSAND DOLLARS AND NO CENTS ($26,000.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Fabricator under this Agreement including, but not limited to, labor, fabrication, transportation, installation, 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 Fabricator 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. TEN THOUSAND FOUR HUNDRED DOLLARS AND NO CENTS ($10,400.00) upon execution of this Agreement. b. SEVEN THOUSAND EIGHT HUNDRED DOLLARS AND NO CENTS ($7,800.00) upon Contract Manager's written verification of 50% fabrication. c. FIVE THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($5,200.00) upon Contract Manager's written verification that the Work is ready to install. d. TWO THOUSAND SIX HUNDRED DOLLARS AND NO CENTS ($2,600.00) within thirty-five (35) days after Final Acceptance and receipt by City of such documentation it may require concerning payment of services and supplies rendered to Fabricator (see Article 2); provided, Agreement for Fabrication, Delivery and Installation of Public Artwork 6 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. however, that final delivery shall not be tendered prior to the expiration of thirty (30) days after Final Acceptance. 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 Fabricator with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "E" for use by Fabricator in the fulfillment of this Agreement. 3.4. Fabricator's Expenses. Fabricator 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 Fabricator'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 Fabricator by City. 4.2. Duration. The services to be required of Fabricator 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 Fabricator and City. 4.3. Early Completion of Fabricator Services. Fabricator 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 Fabricator, 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 party'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. Agreement for Fabrication, Delivery and Installation of Public Artwork 7 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Convrieht. a. Fabricator represents and warrants that: i. The Work (or duplicate thereof) has not been or will be accepted for sale elsewhere; ii. Fabricator has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Work or any element thereof that may affect or impair the rights granted pursuant to this Agreement. iii. The Work is free and clear of any liens form any source whatsoever. iv. Fabricator has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. v. 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 Oualitv and Condition a. Fabricator 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. Fabricator 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 Fabricator, City shall give written notice to Fabricator of such breach with reasonable promptness. Fabricator 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. 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 Fabricator, Fabricator is responsible for reimbursing City for damages expenses, and losses incurred by City as a result of the breach. However, if Fabricator disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 5.2. e. If, after one year from Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Fabricator, City shall give written notice to Fabricator to make or Agreement for Fabrication, Delivery and Installation of Public Artwork 8 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. supervise repairs or restorations at a reasonable fee during Fabricator's lifetime. Fabricator shall notify City in writing, within thirty (30) days after receipt of the notice as to whether Fabricator will make or supervise the repairs or restorations. Should Fabricator 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. Fabricator 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, Fabricator 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 Fabricator's specifications and the applicable conservation standards. 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, INDEMNITY, AND RELEASE 6.1 General. Fabricator 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 Fabricator 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 2.7 hereof the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance shall be solely that of Fabricator. This risk shall transfer to City and shall no longer be the responsibility of A Fabricator upon Final Acceptance. 6 2 Performance Bonds. Agreement for Fabrication, Delivery and Installation of Public Artwork 9 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. Fabricator shall not be required by City to post any performance bonds or similar undertakings. 6.3. Indemnity a. General Indemnity i. FABRICATOR 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 ANY ACTS, ERRORS, OR OMMISSIONS OF FABRICATOR AND/OR FABRICATOR'S 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. Fabricator agrees to and shall release City of and from any and all claims, demands, debts, liens, costs, defects, expenses actions, and causes of action of whatsoever kind or character arising out of, related to, or resulting from this Agreement and/or Fabricator's performance under this Agreement, including, but not limited to, any and all claims for property damage, property loss, injury, including, but not limited, to death, and/or intellectual property. iii. Fabricator shall require all of its subcontractors to include in their subcontracts a release and mdemmty in favor of City in substantially the same form as above. b Intellectual Property Fabricator 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 Fabricator. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees Agreement for Fabrication, Delivery and Installation of Public Artwork 10 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Fabricator without the appropriate licenses or pennission being secured by Fabricator in advance. IT IS FURTHER AGREED THAT FABRICATOR 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 Fabricator. 6.4 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 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. The 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 Convright. The parties agree that the Work fabricated pursuant to this Agreement shall be a work made for hire within the meaning of the Copyright Act of 1976, as amended; the parties agree the Artist and/or the copyright claimant grant to Fabricator only that right and license to fabricate the Work, including, but not limited to, as a reproduction or as a derivative work, and Fabricator hereby irrevocably assigns and agrees to assign and transfer any and all right, title and interest in any copyright resulting from the fabrication of the Work, including, but not limited to, as a reproduction or as a derivative work, throughout the world for the entire Agreement for Fabrication, Delivery and Installation of Public Artwork 11 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. term of copyright to Artist or copyright claimant. Fabricator agrees to sign and execute any documents reasonably required to effectuate the purposes of this provision, and further, Fabricator grants to Artist or copyright claimant by execution of this Agreement the specific power of attorney and to act as attorney in fact to execute an assignment or other documents on behalf of Fabricator reasonably necessary to transfer and assign any copyright accruing to Fabricator and the right to register the copyright in Artist's or copyright claimant's own name. Further, should any rights arise pursuant to the Visual Artists Rights Amendment to the Copyright Law of the United States, Fabricator specifically waives all rights in the Work specifically for the Work being fabricated and produced for the Site as intended, which may arise or be conferred by subsection (A) of Section 106A of the United States Copyright Act, 17USC Section 101, et sec, as provided by Section 106A(e)(1); all rights of copyright in the underlying work, specifically including, but not limited to, the Artwork Design, maquettes, models, drawing or other documentation shall remain with the Artist or copyright claimant. 7.3 Renroduction Rights. a. In view of the intention that the Work be unique, Fabricator shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, except with the express written permission of City and Artist. b. City grants to Fabricator a sublicense to graphically depict the Artwork Design or Work for non-commercial purposes. For purposes of this limitation, any graphic depiction of the Artwork Design or Work intended to promote the Fabricator or City, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by Fabricator, shall be deemed a non-commercial purpose. Any graphic depiction of the Artwork Design or Work shall be subject to review and approval by Contract Manager or City. The City reserves the absolute right to reject any such requests hereunder and to terminate this sublicense at any time with or without cause. ARTICLE 8 FABRICATOR AS AN INDEPENDENT CONTRACTOR Fabricator shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Fabricator 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 Fabricator, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Fabricator. ARTICLE 9 TERMINATION Agreement for Fabrication, Delivery and Installation of Public Artwork 12 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. 9.1. 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 Fabricator 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 9.1, City shall be entitled, in addition to any other rights and remedies, to recover from Fabricator a sum equal in amount to the cost incurred by Fabricator in providing such gratuities. 9.2. Death or Incapacity of Fabricator. a. In the event that Fabricator 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 Fabricator or Fabricator's successors for all work and services performed prior to incapacity. All work product produced by Fabricator up to the effective date of termination shall become property of City. b. In the event of tennination under this Article 9.2, City shall have the right to complete the Work. 9.3 Termination for Convenience. a. The services to be perfonned under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If termination is for the convenience of City, City shall pay Fabricator for services actually rendered up to the effective date of tennination, and Fabricator shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination 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 Fabricator under this Agreement including, but not limited to, sketches, photographs, and models, and the Work, up to the effective date of tennination. c. If termination is for the convenience of Fabricator, City shall have the right, in its sole discretion, to pay Fabricator for services actually rendered up to the effective date of tennination or require the Fabricator to remit to City a sum equal to all payments (if any) made to the Fabricator pursuant to this Agreement prior to the effective date of tennination If City chooses to pay Fabricator for services actually rendered, then all work product produced by Fabricator under this Agreement, including, but not limited to, sketches, photographs, and models, and the Work, up to the effective date of tennination shall become property of City. 9.4. Termination for Cause Agreement for Fabrication, Deliveiy and Installation of Public Artwork 13 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. 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 9.4 in accordance with the dispute resolution process set forth in Article 10 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 9.4 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 9.4, then all work product produced by the Fabricator shall immediately become the property of the City and the City shall have the right to complete the Work, which shall be in addition to any and all other rights and remedies available to City at law or in equity. ARTICLE 10 DISPUTE RESOLUTION If either Fabricator or City has a claim, dispute, or other hatter 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 parry'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 Fabricator 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 Agreement for Fabrication, Delivery and Installation of Public Artwork 14 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. 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 9.4) ARTICLE 11 EQUAL OPPORTUNITY a. Fabricator 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 Fabricator 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 Fabricator noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated or suspended in whole or in part, and Fabricator may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Fabricator shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Fabricator services under this Agreement. 12.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 12.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 12.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 12.5. Governing Law and Venue. 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. 12.6. Successors and Assigns. Agreement for Fabrication, Delivery and Installation of Public Artwork 15 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. 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 Fabricator and its respective successors and permitted assigns. 12.7. No Third-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Fabricator, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or unpaired. 12.9. Contract Construction. The Parties acknowledge that each party and, if it so chooses its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.10. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the 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 Fabricator 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. Any termination hereunder shall be treated as a termination for convenience subject to Article 9.3.b. 12.11. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.12. Fabricator's Address. Fabricator shall notify the Contract Manager of changes in address. 12.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Fabricator. 12.14. Right to Audit. Fabricator agrees that City will have the right to audit the financial and business records of Fabricator that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) Agreement for Fabrication, Delivei y and Installation of Public Artwork 16 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Fabricator 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 12.14 shall survive expiration or earlier termination of this Agreement. 12.15. Certified MBE/WBE. If applicable, Fabricator 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. 12.16 Survival Provision The provisions contained in Articles 5 (Warranties), 6 (Indemnity and Release Provisions), 7 (Ownership and Intellectual Property Rights) and 8 (Fabricator as Independent Contractor) shall survive the termination or expiration of this Agreement. 12.17 Public Information Act Fabricator 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. Fabricator shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Fabricator'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 Fabricator prior to disclosure of such documents, and give Fabricator the opportunity to subimt reasons for objections to disclosure. City agrees to restrict access to Fabricator'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 Fabricator'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 Fabricator 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. 12.18 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. Agreement for Fabrication, Delivery and Installation of Public Artwork 17 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. 12.19. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 13 NOTICE S 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. FABRICATOR 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 Shug Jones and Julie Dilling Tesserae Mosaic Studio Inc. 661 North Plano Road, #321 Richardson, TX 75081 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement for Fabrication, Delivery and Installation of Public Artwork 18 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. 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 F. Wallach Assistant City Attorney ATTESTED BY: 1 l Mary J. Kayser City Secretary Contract Authorization: M&C — No M&C Reauired TESSERAE MOSAIC STUDIO, INC ocvisuctaittn ton• • • • Agreement for Fabrication, Delivery and Installation of Public Artwork between the City of Fort Worth and Tesserae Mosaic Studio, Inc. Lima Diane �nes Director and President Julie Dilling Director OFFIMAL RECORD CITY SECRETARY fl.WORTh,TA 19 of30 Exhibit A: The Artwork Design Agreement for Fabrication, Delivery and Installation of Public Artwork 20 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. Concept Narrative Dreams at 100 Fathoms By Ken O'Toole My vision for the mosaic mural at Marine Park Family Aquatic Center is looted in my own childhood experience of public pools. The joy and excitement of spending an afternoon around the water was not just about splashing my sisters or trying out the high board. It was also about a place where my imagination took flight Regardless of how many of my friends or other kids were at the pool, or how loud the crowd became, I could slip under the water into a silent dream-like world. There, I was a famous deep sea explorer, a treasure hunter looking for sunken ships. I was a spaceman visiting a hostile environment. I cannot have been the only child who thought like that, and I am sure those types of dreams and imaginings are common to all children Dreams at 100 Fathoms depicts the view from a diver's eyes as they look toward the surface. The sun reflects down through the waters' depths Although the darker figures in the distance are indistinct, they speak of adventure, intrigue and the mysterious future. Though this is assuredly abstract, I believe it embraces the spirit and purposes of the Marine Park Family Aquatic Center. Agreement for Fabrication, Delivery and Installation of Public Artwork 21 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. Exhibit B: the Site Agreement for Fabrication, Delivery and Installation of Public Artwork between the City of Fort Worth and Tesserae Mosaic Studio, Inc. 22 of 30 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Fabricator: 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 Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions* Height: Width: Depth: Location & Description of Signature Markings (or copyright): Agreement for Fabrication, Delivery and Installation of Public Artwork 23 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. Edition Information if applicable: Date of Execution* Place of Execution* Designing Artist: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufactures 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: Agreement for Fabrication, Delivei y and Installation of Public Artwork 24 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. 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.) Agreement for Fabrication, Delivery and Installation of Public Artwork 25 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc Recommended Routine Maintenance Fabricator recommendation based on experience and consultation with conservation expert Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions Explain how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please address issues related to the life expectancy of this artwork.) Agreement for Fabrication, Delivei y and Installation of Public Artwork 26 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Exhibit D: Affidavit 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 Agreement for Fabrication, Delivery and Installation of Public Artwork 27 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. Exhibit E: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMPTION etcmptii,n lion) pia)ii ei0 of s lies ant1 use taxes tin the purchase it taxable items described heliw ii 011 the atlai licit Order it IlIvujce Description of hens Ior an attached order w Ina 4111:0 To Be Purchased: I claim this exemption tin :hc following rcasrm: Name of Exempt Organization: (TIN OF FORT WORTH, TEXAS TEXAS SALES AND USE 'I AX PERMIT NUMBER 1-75-6000528-6 I'rroiect for which rr,atcnals and supplte,i are purchascxl: I undcnnand that I will he liable for payment of sales tax, which Inay become due fbr failure to :amply with the pan isions of the state, city, andfor mctrnpolitan transit authority sales and use tax tats's and comptroller rule rcganhng exempt purchases. Liability for the tax will he determined by the price paid for the taxable items purehnscd or the fair market rental value for the pci iod of time used, 1 understand Ihan it is a misdemeanor to give an exemption certificate to the seller for taxable items which 1 know, al the time of the purchase, will he used in a mairner other than that expensed in this certificate and, upon coin iction, may be tined up to 5500 per offense. Tax Exemrit Status Due to Being u Governmental Entity Purchaser: Street Address. y, State, Zip Cc Sign Her. curls OF FORT WORTH,'rEXAs 101)0'1'HROC KMORTON STREET FOR 1 %OKI'H, TEXAS 76102 Ibis certificate does not require a manlier exempt" numhets do not exist This certificate should he furnished to ih C'onipirolle- of Pt=hli * Accounts. Dui.: Jun. 1 I, 1009 Phone: e c alid. Sales and it I. "exemption numbers" nr tat Do nil send L' completed ecntticate to dle Agreement for Fabrication, Delivery and Installation of Public Artwork 28 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc. Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Fabricator shall meet all the following insurance requirements for this Project. . 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 Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Fabricator and is considered to be in the Fabricator's care, custody, and control and shall include property 'in transit." 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 Fabricator and/or Fabricator's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception. . the additional insured requirement does not apply to Workers Compensation or Automobile policies. Agreement for Fabrication, Delivery and Installation of Public Artwork 29 of 30 between the City of Fort Worth and Tesserae Mosaic Studio, Inc. Fabricator is responsible for providing the City a thirty day (30) notice of cancellation or non -renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein 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 forin of the primary coverage "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." 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. Agreement for Fabrication, Delivery and Installation of Public Artwork 30 of 30 between the City of Fort Worth and Tesserae Mosaic Studio Inc.