HomeMy WebLinkAboutContract 42924CITY SECRETARY
CONTRACT N0. = d `
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement ") is made and entered into this
day of i7 br , 2012, (the "Effective Date ") by and between the City of Fort
Worth, a home -rule muni ' al corporation of the State of Texas, acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and David Newton, an individual, and
Thomas Bustos, an individual.
A.
Definitions
"Artists" means and includes David Newton and Thomas Bustos and all other persons or
entities for which Artists are legally responsible, including, but not limited to, their heirs,
executors, legal representatives, successors, agents, assigns, contractors, subcontractors,
subartists, and any additional claimants.
"City" means and includes the City of Fort Worth, Texas, and its officers,
representatives, agents, servants, and employees but expressly does not include the Vaquero
Committee, as defined herein, or the Latin Arts Association of Fort Worth.
"Contracts" means and includes Fort Worth City Secretary Contract (CSC) Numbers
29528, 36877, and 36877 A -1.
"Parties" means and includes the City and Artists.
"Project" means the Fort Worth Public Art Project concerning the Vaquero Sculpture,
which is a bronze equestrian sculpture depicting a Mexican Vaquero, to be placed at the traffic
triangle located at Ellis Avenue and North Main Street in Fort Worth, Texas (the "Site "), and
includes the Contracts and any and all issues and claims against the City arising out of, related
to, or resulting from the Contracts, including, but not limited to, any Vaquero Sculpture
fundraising and/or intellectual property issues and/or claims.
B.
Recitals
WHEREAS, in or about 2001, a group of private citizens, otherwise known as the
Vaquero Committee, organized for the purpose of commissioning the Vaquero Sculpture and
selected artists David Newton, Thomas Bustos, and Robert Cortez to develop a design concept;
WHEREAS, in or about 2003, Fort Worth Public Art was invited to become involved in
the Project because the Vaquero Sculpture was going to be sited on City property at the traffic
triangle located at North Main Street and Ellis Avenue in Fort Worth, Texas, as part of the North
Main Streetscape Improvement Project;
WHEREAS, the Vaquero Committee was charged with raising matching funds for the
Project and assisting the Artists in the final design of the Vaquero Sculpture;
OF' 1 '` r)Pr
Settlement and Release Agreement Cal,
Vaquero Sculpture CC
WHEREAS, on January 20, 2004, City and David Newton entered into CSC No. 29528
for design of the Vaquero Sculpture;
WHEREAS, on or about August 11, 2004, David Newton presented his final design of
the Vaquero Sculpture to the Fort Worth Art Commission (the "FWAC "), which was approved
by the City;
WHEREAS, on February 5, 2008, the Fort Worth City Council authorized the City to
proceed with the execution of an artwork commission contract for the Project (M &C C- 22659),
which the City and David Newton entered into on April 14, 2008 (CSC No. 36877);
WHEREAS, during the fabrication stage of the Project, certain items were introduced to
the Vaquero Sculpture that led to a contractual dispute;
WHEREAS, issues also arose concerning certain compensation related the fundraising
portion of the Project;
WHEREAS, the Parties disagree and have a bona fide conflict regarding the Contracts
and Project;
WHEREAS, the Parties deny any and all liability but desire to avoid the uncertainties,
annoyance, and expense of litigation and to fully and finally settle and compromise any and all
claims that could have been asserted by the Parties for damages arising out of or in connection
with the Contracts and/or the Project; and
WHEREAS, Artists hereby agree to fully and finally resolve all claims against City
regarding the Contracts and/or the Project as set forth in this Agreement.
C.
Agreement, Release, & Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set
forth herein and intending to be legally bound hereby, stipulate and agree as follows:
1. Artists shall install the Vaquero Sculpture at the Site, as it is currently cast, including
the side arm and gun belt.
2. Artists, in accordance with the terms and conditions of CSC Nos. 36877 and 36877
A -1, shall provide the two bronze plaques depicting donor and educational text
exactly as prescribed on the final layouts, which are attached hereto as Exhibit "A"
and incorporated herein for all purposes, with the exception of the Artists' dates of
birth, which shall be accurately incorporated by the Artists.
Settlement and Release Agreement 2 of I I
Vaquero Sculpture
3. The Parties have mutually agreed to the letter of recommendation attached hereto as
Exhibit "B" and incorporated herein for all purposes. Artists shall copy the City on
any transmission of the recommendation letter to any person or entity. Furthermore,
Artists shall not alter or change the recommendation letter without the mutual written
consent of the Parties.
4. City shall provide Artists with all information in its possession, or that comes into its
possession related to the Vaquero Committee.
5. Artist shall provide an artists' plaque to be placed at the Site. The size, content, and
location of the artists' plaque shall be subject to review and approval by the City and
shall be incorporated into this Agreement as an exhibit after final approval by the
City. Artists must present a full mock -up of the plaque to the City prior to
commencing any fabrication. The artists' plaque shall conform to the City- approved
specifications and details. Artist shall be responsible for all costs related to the artists'
plaque, including, but not limited to, all costs related to design, fabrication, and
installation of the artists' plaque. Artist shall coordinate installation of the artists'
plaque with the City. Artists shall submit the above - referenced specifications and
details to the City within twenty -one (21) calendar days of the Effective Date of this
Agreement. If Artists fail to submit the required specifications, then the City shall
provide Artists notice of such deficiency. Artists shall have seven (7) calendar days
to cure the deficiency. On the eighth (8t') calendar day after the notice of deficiency,
this section five (5) shall be null and void, and City shall not be required to place an
artists' plaque at the Site.
6. City shall pay Artists a total amount of SEVEN HUNDRED SEVENTY DOLLARS
AND NO CENTS ($770.00) for costs related to the storage and repainting of the
Vaquero Sculpture, per Estimate Number 590 dated August 22, 2011 from The Bryan
Group, Inc., which is attached hereto as Exhibit "C" and incorporated herein by
reference. Artists acknowledge that this consideration will be made payable to David
Newton, Thomas Bustos, and Michael Pegues within thirty (30) days following the
execution of this Agreement. Artists further acknowledge that no other party has any
legal claim or interest in these settlement proceeds.
7. City shall pay Artists a total amount of FIVE THOUSAND DOLLARS AND NO
CENTS ($5,000.00) for attorney's fees. Artists acknowledge that this consideration
will be made payable to David Newton, Thomas Bustos, and Michael Pegues within
thirty (30) days following the execution of this Agreement. Artists further
acknowledge that no other party has any legal claim or interest in these settlement
proceeds.
Settlement and Release Agreement 3 ot' I I
Vaquero Sculpture
8. City shall pay all outstanding amounts due under CSC Nos. 36877 and 36877 A -1 in
accordance with the payment terms and conditions set forth in CSC Nos. 36877 and
36877 A -1.
9. Artists do hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT,
and FOREVER DISCHARGE City of and from any and all claims, demands, debts,
liens, costs, expenses, actions, and causes of action of whatsoever nature, description
of character, whether in tort or in contract, or by virtue of the common law, statute, or
regulation, known or unknown, heretofore existing between the Parties, whether
known or unknown, which may have accrued or may accrue, on account of, arising
from, or in any manner growing out of, relating to, resulting from, or in any way
connected to the transactions and occurrences involving the Contracts and/or the
Project described and referenced herein, including, but not limited to, any and all
claims for exemplary damages, intellectual property damages, contractual damages,
economic loss, attorney's fees, and any and all damages recoverable under the laws of
the State of Texas and any and all other statutory or common law legal damages,
known or unknown. This release is applicable to the City only and shall not apply to
the Vaquero Committee, Latin Arts Association, their respective boards or individual
members.
10. All terms and conditions of the Contracts not specifically addressed herein shall
remain in full force and effect
11. This instrument contains the entire agreement between the Parties and the terms of
this instrument are contractual and not merely recitals. There are no other
agreements, either written or oral, and the execution of this Agreement supersedes all
earlier representations, negotiations, or agreements about this matter. The Parties
acknowledge that the covenants, promises, and representations made herein are
binding on, and inure to, the benefit of each party, including, but not limited to, the
Parties' representatives, assigns, agents, and employees, and all other firms,
corporations, and legal entities connected therewith.
12. Artists warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or
representation of any person or party's release, or its representatives, concerning the
nature and extent of the losses, injuries, damages, and/or legal liability therefore; and
that the acceptance of the consideration set forth in Section C is in full accord and
satisfaction of disputed claims for which liability is expressly denied.
Settlement and Release Agreement 4 of I I
Vaquero Sculpture
13. It is understood that this Agreement is a compromise of a disputed claim. The Parties
desire to compromise and settle all matters and things in dispute to avoid the hazard,
inconvenience, uncertainty, and expense of litigation. The payments and settlement
terms referred to herein are not to be construed as an admission of liability on the part
of the City, all of which is expressly denied.
14. Artists represent that they have consulted, or had the opportunity to consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement.
Artists further represent that they have been informed of the content and effect of this
instrument and that the instrument is executed as their act and deed and of their own
free will.
15. Artists represent and warrant that they are the sole owners of the claims, causes of
actions, and rights -in- action being released herein, and they have not transferred,
assigned, or otherwise encumbered said claims or any part thereto.
16. In the event that any provision of this Agreement is held void, voidable, or
unenforceable, the remaining portions shall remain in full force and effect.
17. This Agreement may be executed in multiple originals.
18. 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.
The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know
the contents thereof and have signed the same of their own free will and with the advice of
counsel, if applicable.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
tiettlement and Release Agreement i of I I
Vaquero Sculpture
IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH DAVID NEWTON
By:
Fernando Costa
Assistant City Manager
Tyler ^allach
Assistant City Attorney
ATTESTED BY
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Settlement and Release Agreement b of I I
Vaquero Sculpture
Exhibit A
Educational Text
History of the Vaquero
The vaquero, or `cowman', is a skilled mounted horseman whose stock-tending echniques significantly
contributed to the ranching tradition dating back centuries. Originating in Mexico during the Spanish
colonial period and continuing into the trail- driving era of the nineteenth century, the vaquero shaped
the working methods of the modern -day cattle industry.
Vaqueros were of mestizo or Indian/Spanish ancestry, who worked for land - owning stock raisers
known as patrons or hacendados. Their horsemanship and roping skills were essential to ranching on
northern Mexico's vast open estates. After the Civil WJar, the vaquero helped fuel the economies of
the border states of California, Arizona, New Mexico, and Texas, with Anglo cowboys adopting the
vaquero's stock - tending skills to drive livestock to railheads and northern markets. The vaquero's tools'
and language brought words, such as chaps, lariat, rodeo, and dally, among others, into common use.
The vaquero played a major role in Texas history, guiding cattle and livestock through the Chisholm
Trail, which passed through Fort Worth.
Vaquero de Fort Worth captures the spirit of these proud and skilled men, who left their mark on the
city's cattle industry. Details, such as the sombrero, saddle, and chaps are distinguishing elements of the
vaquero's expertise and affirm the rich Hispanic traditions that define the city's diverse cultural roots.
The vaquero s legacy can still be seen in the Fort Worth Stockyard National Historic District.
Donor Plaque
David Newton (born 19__) and Tomas Bustos (born 19_)
Vaquero de Fort Worth, 2011
Bronze
Commissioned by the City of Fort Worth in partnership with the Vaquero Committe
Honorable Manuel T. Valdez, Chair, Juan DeLeon, Manuel Lopez and Abel Sanchez
MAJOR SPONSORS
Amon G. Carter Foundation Chesapeake Energy Sid Richardson Foundation
Burnett Foundation Southwestern Exposition & Livestock Show Devon Energy
Yolanda Cuevas Ramon Guaiardo Jim Lane
Therese Ferrill and William French M. Hanson Jesse and Pilar Wayne Upchurch
Dr. Arthur Garcia John J. Hernandez Fort Worth Promotion Fund
Fort Worth Convention & Visitors Bureau Y. Leticia Vigil Fort Worth Stockyards Business Association
Special thanks to the many other individuals and organizations that contributed to the Paquero de Fort Worth
VA 91.
f Oli —1. 1-11c .11
To learn more about Fort Worth Public Art visit www.fwpublicart.org
Selllement and Release Agreement 7 of I I
Vaquero Sculpture
Exhibit B
FORTWORTH
October 24, 2011
Subject: Letter of Recommendation for Artists Tomas Bustos and David Newton
Dear Patron of the Arts:
The City of Fort Worth takes pleasure in recognizing the artistic expertise of sculptors Tomas
Bustos and David Newton. They have created a masterful ten foot bronze equestrian sculpture
titled "Vaquero de Fort Worth" located on North Main Street in our city.
Mr. Bustos and Mr. Newton have captured the spirit of the historic Mexican cowboy by creating
a sculpture that has personified the rich contribution the vaquero has made to our city's culture
and prosperity. The artists have created a monument that will inspire in our citizens a sense of
pride in their ancestors' contributions to our shared history.
For these reasons we highly recommend Mr. Bustos and Mr. Newton as professional artists.
They have demonstrated the ability to work with any community that may require the services of
talented sculptors to create public works of art.
Sincerely,
Fernando Costa
Assistant City Manager
CITY MANAGER'S OFFICE
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Settlement and Release Agreement 9 of I I
Vaquero Sculpture
Exhibit C
The Bryant Group, Inc.
dba Bryant Fine Art
1060 E. Reno Rd.
Azle, Tx 76020
817 -444 -4341
I NAME/ADDRESS I
David Newton
4764 Memphis St.
Dallas 1k. 75207
Estimate
DATE ESTIMATE #
Rn212011 590
Settlement and Release Agreement 9 of I I
Vaquero Sculpture
TERMS
PROJECT
90 Days
DESCRIPTION
QTY
COST
TOTAL
Blasting equipment rental
Labor to re -blast Vaquero
1
1
170.00
600.00
170.00
600.00
Estimate Good For 1 so Days.
TOTAL $770.00
Settlement and Release Agreement 9 of I I
Vaquero Sculpture
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Fernando Costa, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was the act of the
City of Fort Worth for the purpose and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day o , 201
gNotaryPublic in and for
EVDNIA DANIELS
)tAr�!SSiON EXPIRES The State of Texas
Maly 10, 2013
STATE OF ` .A §
COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of M I ,
on this day personally appeared David Newton, known to me to be the person whose iikne is
subscribed to the foregoing instrument and acknowledged to me that he executed this Agreement
for the purpose and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this i day o£ , 20
otary Public in and for
The State of
cpffu -6!�V7' Car os- '--2ci1
Settlement and Release Agreement 10 of I I
Vaquero Sculpture
STATE OF §
COUNTY OF §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of
on this day personally appeared Thomas Bustos, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed this Agreement
for the purpose and consideration therein expressed and in the capacity therein} stated.
20 1/- ")
GIVEN UNDER MY HAND AND SEAL OF OFFICE
i/
iea lye P�e : TRENA LYNN JACKSON
Notary Public, State of Texas
�N�. •'H; My Commission Expires
April 05, 2012
Settlement and Release Agreement
Vaquero Sculpture
1112M
M &C Review Page 1 of 2
Official site of the City of Fort Worth, Texas
CITY COUNCIL AGENDA FOR H
DATE: 2/21/2012 REFERENCE NO.: C -25451 LOG NAME: 20VAQUERO
SETTLEMENT
CODE: C TYPE: CONSENT HEARING:
NO
SUBJECT: Authorize Execution of a Settlement and Release Agreement with Artists David Newton
and Thomas Bustos Related to Public Art Design and Commission Agreements for the
Vaquero Sculpture to Be Installed at North Main Street and Ellis Avenue (City Secretary
Contract Numbers 29528, 36877, and 36877 A -1) (COUNCIL DISTRICT 2)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a Settlement and Release
Agreement with artists David Newton and Thomas Bustos ( "Artists ") related to the Public Art Design and
Commission Agreements for the Vaquero sculpture to be installed at North Main Street and Ellis Avenue
(City Secretary Contract Numbers 29528, 36877, and 36877 A -1).
DISCUSSION:
In 2001, a group of private citizens, known as the Vaquero Committee, organized for the purpose of
commissioning a Vaquero sculpture and selected artists David Newton, Thomas Bustos, and Robert Cortez
to develop a design concept. In 2003, Fort Worth Public Art was invited to become involved in the Vaquero
project because the Vaquero sculpture was going to be sited on City property at the traffic triangle located
at North Main Street and Ellis Avenue as part of the North Main Streetscape Improvement Project. The
Vaquero Committee was charged with raising matching funds for the project and assisting the artists in the
final design of the Vaquero sculpture.
On January 20, 2004, the City and David Newton entered into City Secretary Contract (CSC) Number
29528 for design of the Vaquero sculpture. On August 11, 2004, David Newton presented his final design
of the Vaquero sculpture to the Fort Worth Art Commission, which approved that final design. On February
5, 2008, the Fort Worth City Council authorized the City to proceed with the execution of an artwork
commission contract for the project (M&C C- 22659, CSC No. 36877). During the fabrication stage of the
project, questions arose as to whether the addition of a side arm, holster, and gun belt to the Vaquero were
part of the approved design. Issues also arose concerning whether the City was liable for compensation
due the Artists during the fundraising portion of the project.
To avoid the uncertainties, annoyance, and expense of litigation, the City and David Newton and Thomas
Bustos (collectively, the "Parties ") have agreed to enter into a Settlement and Release Agreement. The
Parties have agreed to the following terms and conditions:
1. The Artists will grant the City a full and unconditional release of any and all claims related to the
Vaquero sculpture public art project;
2. The City will pay the Artists only (i) the amounts remaining due under the Public Art Commission
Agreement in accordance with the payment terms and conditions set forth in those contracts; (ii) $770.00
for storage and repainting of the sculpture, and (iii) $5,000.00 towards attorney fees;
3. The Artists will install the Vaquero sculpture, as it is currently cast with the side arm, holster, and gun
belt, at the designated site;
4. The Artists, in accordance with the terms and conditions of the Public Art Commission Agreement, will
provide two bronze plaques depicting donor and educational text exactly as prescribed by the City;
5. The City will provide the Artists with a letter of recommendation;
6. The City will provide the Artists with all information in its possession, or that comes into its possession
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M &C Review Page 2 of 2
related to the Vaquero Committee; and
7. The Artists will provide an Artists' plaque to be placed at the site, the details and specifications of which
shall be subject to the City's approval. The Artists must submit the details and specifications to the City
within a certain designated time frame after execution of the Agreement. If the Artists fail to meet the
designated deadline, then the City will not be required to place an artists' plaque at the site. The Artists will
be responsible for all costs related to the Artists' plaque.
This Settlement and Release Agreement is a compromise of disputed claims. The payments and settlement
terms referred to herein are not to be construed as an admission of liability on the part of the City, all of
which is expressly denied.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the operating budget as
appropriated of the general fund.
TO Fund /Account/Centers
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
FROM Fund /Account/Centers
GG01 539120 0201000 $5,770.00
Fernando Costa (6122)
Douglas W. Wiersig (7801)
Tyler Wallach (6259)
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