HomeMy WebLinkAboutContract 47368 (2)RECEIVED
DEC 2 4 20i5
GIN OF FORT WORT[-
CITYSECRETARY
CITY SECRRTA. '%./r13
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND GRAPHIC CONTENT, INC.FOR FINAL DESIGN AND COMMISSION
OF PUBLIC ART FOR VICTORY FOREST COMMUNITY CENTER
This Agreement is entered into this/day of %
2015, by and between the City of
Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through its duly
authorized Assistant City Manager, Graphic Content, Inc., Texas corporation acting by and through its duly
authorized President, Arturo Garcia. 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 currently designing a new community center near the intersection of
Hemphill Street and Biddison Street in Council District 9, which will be known as Victory Forest
Community Center;
WHEREAS, funding for this Project was included in the Public Art Plan for the 2004 Capital
Improvement Program, adopted by the Fort Worth City Council on May 17, 2005 (M&C G-14801);
WHEREAS, this project was included in the Fiscal Year 2015 Annual Work Plan and Budget,
adopted by the Fort Worth City Council on October 14, 2014 as (M&C C-27031) as part of the City's
agreement with the Contract Manager for administration of the public art program;
WHEREAS, on January 27, 2014, the City entered into a contract with Artist to develop preliminary
artwork design(s) for the Site (Fort Worth City Secretary Contract No. 45312);
WHEREAS, on April 13, 2015, the Fort Worth Art Commission (FWAC) approved the Artist's
Preliminary Design, and recommended that Artist be retained to develop a Final Design based upon the
Preliminary Design for public artwork to be incorporated into the Site, and, upon City approval, fabricate,
deliver, and install the Work at the Site; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall
be designed, fabricated, delivered, and installed to promote the integrity of Artist's ideas and statements as
represented by the Work;
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:
OFFICIAL RECORD
CITY SECRETARY
E
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center Ft WORTHS TX
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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 Artist for Final
Design and Commission of public artwork for the Site.
1.2. Artist — Means and includes Graphic Content, Inc..
1.3. Artwork Design — Means and includes both the Preliminary Design and Final Design of the
Work, which are defined in 1.3.a. and 1.3.b. below.
1.3.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that were created by
Artist in connection with the Preliminary Design Contract, depictions of which are attached
hereto as Exhibit "A" and incorporated herein for all purposes.
1.3.b. Final Design — Means the Artist's final, proposed design of the Work for the Site
which is based upon the City -approved Preliminary Design 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 Work and shall include Artist's specifications for fabrication and
installation of the Work.
1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and/or its officers, directors, or employees.
1.5. City — Means and includes the City of Fort Worth, Texas.
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. Execution Phase — Means and includes fabrication, delivery, and installation of the Work.
1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for
fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this
Agreement.
1.9. Final Design Deliverables — Means and includes those items set forth in Article 2.4 of this
Agreement that are required for City's review and approval.
1.10. Parties — Means and includes City and Artist.
1.11. 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.
1.12 Project Stakeholders — Means and includes the appropriate City Council Member(s), and
their appointed community representatives and the Fort Worth Art Commission's appointed representative
and others as may be appropriate.
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1.13 Schedule - Means and includes a written plan of procedure for completion of fabrication,
delivery, and installation of the Work, including, but not limited to, the submission of progress reports.
1.14. Site — Means and includes the new Victory Forest Community Center to be located near the
intersection of Hemphill and Biddison Streets, Fort Worth, Texas 76110, which is more particularly
described in Exhibit "B,' attached hereto and incorporated herein by reference for all purposes.
1.15. Work — Means and includes the finished object(s) of art and design that are the subject of
this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC on
April 13, 2015, 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 Work 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
Work, subject to review and input from the Project Stakeholders and approval by City as set forth in
this Agreement.
c. Artist shall encourage the community to develop an ongoing archive of information on notable
people who contributed to the development of the surrounding area that could be kept on site and
publicly accessed.
d. Artist's Final Design for the Work shall utilize brightly colored painted steel tubing configured in the
shape of simplified human profiles and shall be based on the Preliminary Design.
e. Artist, 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.
f. Upon request of City, Artist shall provide written maintenance recommendations for the Work to the
Contract Manager.
g. Artist shall present the Final Design to the appropriate City committee, City staff, Project
Stakeholders, and other City boards or commissions, as appropriate, for input and to the FWAC for
review and subsequent approval determination at dates and times mutually agreed upon.
h. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date
and time.
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i. Artist shall install the Work on dates and times mutually agreed upon by Artist and City.
j. Artist shall make trips to Fort Worth, Texas for meetings, presentations, and installation as indicated
above.
k. For the duration of this Agreement, any publicity related to the Work at any stage under this
Agreement shall be coordinated through the Contract Manager. Artist should get the Contract
Manager's consent in writing prior to engaging in publicity for the Work.
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 Site, if available.
2.4. Final Design Deliverables.
a. 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 Design Deliverables shall consist of the following:
(1) Detailed, design illustrations of the Work for the Site, which shall be at least twenty (20)
inches by thirty (30) inches and mounted on foam core and/or in a high resolution digital
format, such as JPEG or TIF files, showing the proposed Work from multiple vantage points
with at least one illustration showing the Work's size and placement in relation to the Site.
(2) A final written narrative of the Work, describing the following: (1) the Final Design concept
and timeline for completion; (2) proposed materials, fabrication, and installation methods for
all elements of the Work, including information regarding Artist's subcontractor(s), if any,
for the Work; (3) maintenance requirements for all elements of the Work as dictated by
Artist, along with cost estimates for annual maintenance;
(4) A detailed budget, on the budget form attached hereto as Exhibit "C," for fabrication and
installation of the Work in an amount not to exceed FIFTY FIVE THOUSAND SIX
HUNDRED SIXTY DOLLARS AND NO CENTS ($55.660.00), which includes all costs
for, materials, labor, engineering, fabrication, delivery, installation, insurance, transportation,
remaining Artist s fee, and all other associated costs for the Work.
(5) Comprehensive working drawings, detailing the means of installing all elements of the Work
on the Site, together with other such graphic material to permit City to carry out structural
design review. Professional Liability Insurance is required 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 Work. Upon
City's request, drawings must be signed and stamped by an engineer and/or architect
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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 thirty (30) calendar day
notice of cancellation of any policy required hereunder.
2.5. Final Design Review.
a. Upon full completion of the Final Design Deliverables, Artist shall present the Final Design to the
FWAC for review and input at a regularly scheduled FWAC meeting.
b. After presenting to the FWAC for initial input, Artist shall meet with the designated Project
Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Final
Design, at a date and time mutually agreed upon, for input.
c. Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled FWAC
meeting
d. City shall notify Artist of its approval, or disapproval, of the Final Design, either in whole or in part,
within thirty (30) business days of Artist's presentation to the FWAC.
e. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist of
each revision to be made to the Final Design. City may require Artist to make such revisions to the
Final Design as City deems necessary in its sole discretion and/or for the Work to comply with
applicable statutes, ordinances, or regulations of any governmental regulatory agency having
jurisdiction over the Site for reasons of safety and security.
f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Final Design in conformance with City's requirements.
g. If City disapproves of the resubmitted Final Design 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, with payment for work performed per the payment schedule in Article 3 up through the
date of termination.
h. If Artist's Final Design is approved by City, then Artist's Final Design shall be incorporated into this
Agreement as an addendum, and shall become the basis for proceeding to the Execution Phase of this
Agreement.
Upon City's approval of the Final Design, Artist shall provide the Final Design presentation
materials to the Contract Manager to become part of the City of Fort Worth Public Art archive
owned by City. These documents models, and/or drawings will be retained for archival and
exhibition purposes. Artist's Final Design and all other work product under this Agreement shall
become the property of City, without restriction on future use (see Article 6).
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2.6. Execution of the Work.
a. If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Phase of this
Project, then Artist shall furnish to the Contract Manager a written Schedule within ten (10) business
days after such authorization by the Parties. After written approval of the Schedule by City, Artist
shall fabricate, deliver, and install the Work in accordance with such Schedule Schedule changes
may be accomplished by written agreement between Artist and City.
b. City and/or Contract Manager, upon written request, shall have the right to review the Work during
its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written
request by the City and/or Contract Manager, provide a written progress report detailing the progress
made toward completion of the Work and the remainder of work to be done to complete the Work.
Artist shall comply with any request made by the City and/or Contract Manager pursuant to this
Article 2.6 within thirty (30) calendar days after receipt of the written request.
c. Artist shall complete the fabrication of the Work in accordance with the City -approved Final Design.
Artist shall present to the Contract Manager, in writing, for further review and approval, any changes
in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its
discretion, shall determine whether the changes are significant and whether the changes conform to
the City -approved Final Design. If the Contract Manager, in its sole discretion, determines that the
changes are significant and do not conform with the City -approved Final Design, then the Contract
Manager shall, in light of the Final Design, determine whether a significant change requires City
approval. If the Contract Manager determines that the significant change(s) 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 11 of this
Agreement.
2.7. Delivery and Installation.
a. Labor associated with preparing the Site to receive the Work and creating a footing for the Work
shall be performed by Artist or his subcontractors, and shall be done in accordance with the
specifications jointly agreed to by Artist and the City
b. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is
completed and ready for delivery and installation at the Site.
c. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of
the Work with City and Contract Manager to ensure proper installation with the Schedule. Delivery
and installation activities may not commence until written permission is dehvered to Artist by the
City.
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d. Should Artist complete the Work in advance of the completion of the Site, Artist shall store the
Work at no expense to City until such a time as both are completed and the Contract Manager
notifies Artist that installation may commence.
e. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of
the Work, including, but not limited to, footing, equipment rentals, transportation, and labor.
£ Artist is responsible for obtaining and paying for all necessary permits through a City -approved
contractor as necessary
Artist, individually and through its subcontractors, including its fabricator, shall take all necessary
precautions to protect and preserve the integrity and finish of the Site while delivering and installing
the Work If City determines, in its sole discretion, that Artist or Artist's subcontractors have
damaged the Site, then City shall inform Artist in writing, of the damage. Artist, at its own expense,
shall have thirty (30) calendar days from receipt of City s written notice to repair the damage to the
Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within
thirty (30) calendar days after receipt of the notice, or within the deadline otherwise agreed to by the
parties, then City shall have the right to deduct the cost of repairs from any remaining payment due
to Artist under this Agreement, which shall be in addition to any and all other rights and remedies
available to City at law or in equity
h. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art
conservator and provide to the Contract Manager written instructions for appropriate maintenance
and preservation of the Work on the form attached hereto as Exhibit "D" (Technical and
Maintenance Record). The appropriate maintenance and preservation instructions shall not be
substantially different from the maintenance and preservation anticipated and conveyed to City for
the Work in the final design phase for the Work. [NOTE: The written instructions provided during
the final design phase of this project may fulfill all or part of this requirement to the extent that such
instructions represent the final Technical and Maintenance Record].
2.8. Post -installation.
a. Within thirty (30) calendar days after the installation of the Work, Artist shall furnish Contract
Manager with a set of at least ten (10) high -resolution digital images (.tiff format) and ten (10) low -
resolution digital images (.jpeg format) showing the Work from multiple vantage points as selected
by Contract Manager, to document the Work after the Work is installed.
b. Artist shall make his/her best efforts to be available at such time or times as may be agreed between
City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the
Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such
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art publications and otherwise as may be determined between City and Artist as soon as practicable
following installation.
2.9. Final Acceptance.
a. Artist 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 Artist shall be an affidavit, attached hereto as Exhibit E" (Affidavit),
certifying that all bills relating to services or supplies used in the performance of this Agreement
have been paid.
b. City shall notify Artist, in writing, of its Final Acceptance of the Work.
c. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification of
Final Acceptance; or, (2) the thirty-fifth (35th) calendar day after Artist has sent the written notice to
City requited under this Article 2.9 unless City, upon receipt of such notice and prior to the
expiration of the thirty-five (35) calendar day period, gives Artist written notice specifying and
describing anything that has not been completed pursuant to this Agreement.
2.10. Risk of Loss.
The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall
take such measures as are necessary to protect the Work from loss or damage until Final Acceptance,
including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage
shall be borne by City or its agents 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 Artist under the Agreement shall be an amount up to SIXTY-TWO THOUSAND,
THREE HUNDRED SIXTY DOLLARS AND NO CENTS ($62,360.00), which shall constitute full
compensation for any and all costs associated with this Agreement, including, but not limited to, engineering
and consulting fees, insurance, storage costs, 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.
3.2. Payment Schedule.
a. 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:
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(1) THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) upon execution of this
Agreement.
(2) TWENTY THOUSAND DOLLARS AND NO CENTS ($20.000.00) within thirty (30) days
after Artist submits the Final Design Deliverables, as required in Article 2.4. of this
Agreement, and the Final Design is approved by the FWAC.
(3) TWENTY THOUSAND DOLLARS AND NO CENTS ($20.000.00) upon the Contract
Manager's verification that fabrication of the sculpture is 100% complete and ready to
install.
(4) EIGHT THOUSAND DOLLARS AND NO CENTS ($8,000.001 upon the Contract
Manager's verification that the Work is installed on the site.
(6) FOUR THOUSAND SIX HUNDRED SIXTY DOLLARS AND NO CENTS ($4.660.00)
within thirty-five (35) calendar days after Final Acceptance and receipt by City of such
documentation it may require concerning payment of supplies and services rendered to Artist
[see Article 2.9].
(7) City may pay Artist contingency funds in an amount up to SIX THOUSAND
SEVEN HUNDRED DOLLARS AND NO CENTS ($6,700.00) for costs associated
with the Work that are incurred by the Artist due to unforeseen changes in
fabrication or installation costs, including an administrative fee of fifteen percent (15%).
Such payment will be made upon (i) receipt of supporting documentation by the
Contract Manager from the Artist and (ii) approval by the Contract Manager of the
additional costs.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon
the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same
form as that attached hereto as Exhibit "F' 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 on submissions to
City and/or Contract Manager, insurance, cost of all travel, and costs for Artist's agents, consultants, and/or
employees necessary for the proper performance of the services required under this Agreement.
ARTICLE 4
WARRANTIES
4.1. Warranties of Title and Copyright.
a. Artist represents and warrants that:
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(1) the Artwork Design and/or Work shall be the original product of Artist's sole creative
efforts;
(2) the Artwork Design and/or Work is and will be unique and original and does not infringe
upon any copyright or the rights of any person;
(3) Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the
Artwork Design and/or Work or any element thereof or any copyright related thereto that
may affect or impair the rights granted pursuant to this Agreement;
(4) the Artwork Design and/or Work (oi duplicate thereof) has not been accepted for sale
elsewhere;
(5) the Artwork Design and/or Work is free and clear of any liens from any source whatsoever;
(6) Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement; and
(7) all services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessary care, skill and diligence.
4.2. Warranties of Ouality and Condition.
a. Artist represents and warrants that all work will be performed in accordance with professional
"workmanlike" standards and free from defective or inferior materials and workmanship (including
any defects consisting of "inherent vice, ' or qualities that cause or accelerate deterioration of the
Work) for one (1) year after the date of Final Acceptance.
b. Artist represents and warrants that the Work and the materials used are not currently known to be
harmful to public health and safety.
c. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this
Article 4.2 that is curable by Artist, City shall give written notice to Artist of such breach with
reasonable promptness. Artist shall, at the request of City cure the breach satisfactorily and
consistent with professional conservation 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) calendar days after
receipt of the written notice, at no expense to City.
d. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this
Article 4.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages,
expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk
of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for
purposes of this Article 4.2.
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e. If, after one (1) year from Final Acceptance, City observes any breach of warranty described in this
Section 4.2 that is curable by Artist, City shall give written notice to Artist to make or supervise
repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing,
within thirty (30) calendar days after receipt of the notice as to whether Artist will make or supervise
the repairs or restorations. Should Artist fail to respond within the thirty (30) calendar day deadline
or be unwilling to accept reasonable compensation under the industry standard, City may seek the
services of a qualified restorative conservator and maintenance expert.
f. Acceptable Standard of Display. Artist represents and warrants that:
(1) 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.
(2) 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.
(3) 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.
(4) Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Artist shall provide copies of such warranties to City.
g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the
Work in accordance with Artist's specifications and the applicable conservation standards. If City
fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist
may have in equity or at law, shall have the right to disown the Work as Artist s creation and request
that all credits be removed from the Work and reproductions thereof until the Work's condition is
satisfactorily repaired.
ARTICLE 5
INSURANCE AND INDEMNITY
5.1. General.
Artist shall carry insurance as set forth in Exhibit "G," which is attached hereto and incorporated herein for
all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation
of the Work on City property. However, if any part of the fabrication process will be conducted on City
property, then Artist shall submit evidence of required insurance to the Contract Manager prior to
performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken
possession of the Work. Except as provided in Article 2.10 hereof, the risk of damage to or loss of the Work,
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during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. The risk shall
transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance.
5.2. Performance Bonds.
Artist shall not be required by City to post any performance bonds or similar undertakings.
5.3. General Indemnity
a. 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 ACTS, ERRORS,
OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTORS AND
SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,
DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION
WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT.
b. 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.
c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in
favor of City in substantially the same form as above.
5.4. 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
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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.
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Title.
Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are
components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment
for the Work or pursuant to the applicable termination provision of this Agreement. These documents,
models and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design,
Work, and all other work products under this Agreement shall become the property of City, without
restriction on future use, except as provided below.
6.2. Copyright Ownership
Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of
the Work for the duration of the copyright.
6.3. Reproduction Rights.
a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant
permission to others to do so except with the express written permission of City. However, nothing
herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and
irrevocable license to graphically depict or publicly display the Artwork Design and Work for any
non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
display of the Artwork Design and/or the Work intended to promote or benefit City, its public
services or its public purposes, regardless of whether or not a fee is charged to the public, or whether
revenue is otherwise received by City shall be deemed a non-commercial purpose. Notwithstanding
the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit
City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change,
modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in
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part, the Work when City deems it necessary within its discretion, in order to otherwise exercise
City's powers and responsibility in regard to public works and improvements, in furtherance of
City's operations or for any other reason
c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the
following form: "O date, Artist's name."
d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or
resume use of reproductions to give acknowledgment to City in substantially the following form:
"an original artwork commissioned by and in the public art collection of the City of Fort Worth,
Texas.'
e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights,
a copyright in the Work in Artist's name.
f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
ARTICLE 7
ARTIST'S RIGHTS
7.1. Identification.
The Contract Manager shall include credit to Artist on the Fort Worth Public Art website
(www.fwpublicart.org) and facilitate the design, purchase, and installation of a permanent plaque at the Site.
7.2. Maintenance.
City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work
City shall reasonably assure that the Work is properly maintained and protected, taking into account the
maintenance instructions provided by Artist in accordance with Article 2.7 and Exhibit D.
7.3. Repairs and Restoration.
a. City shall have the right to determine when and if repairs and restorations to the Work will be made.
During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all
major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval
for any repair or restoration of the Work Should Artist unreasonably withhold approval of any
intended repair or restoration, City shall have the right to make such repair or restoration To the
extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or
personally supervise major repairs and restorations and shall be paid a reasonable fee for any such
services, provided that City and Artist shall agree in writing, prior to commencement of any
significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to
make or supervise the repairs and restorations, City shall have the right to choose another entity or
person to assist with the restoration and/or repairs or make said repairs by City.
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b. All repairs and restorations shall be made in accordance with recognized conservation standards (in
accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for
Practice) and/or construction standards, including, but not limited to, the standards set forth by City.
c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and
restorations prior to commencement of repairs or restorations.
d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to
prevent risks to the public, such repairs shall be undertaken or arranged by City without advance
notice to Artist, and such repairs shall not be deemed to constitute artistic alteration.
7.4. Alteration of the Work or of the Site.
a. In the event that the Work is incorporated into a building, structure or realty, the installation of the
Work may subject it to destruction, distortion, mutilation or other modification by reason of its
removal. If removal of the Work would damage either the Work or the Site, City shall have the right
to remove the Work by any means, including destruction, in performing maintenance, repair,
renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may
give Artist written notice of its intent to take such action under this paragraph.
b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such
that it may be removed without damaging or destroying the Work or the building or structure, Artist
may be given written notice and ninety (90) calendar days to remove the Work at his or her sole
expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose
of the Work by any means, including its destruction.
c. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in
paragraphs a. and b. above.
d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as
that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship
on the grounds stated in this paragraph.
e. City shall, at all times, have the right to move the Work, or remove it from public display. City shall
also have the right to sell or trade the Work
7.5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition of the
Work.
7.6. Artist's Address.
Artist shall notify City of changes in the address set forth in Article 14. 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
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these provisions of Article 7 that require the express approval of Artist. Notwithstanding this provision, City
shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights.
7.7. Additional Rights and Remedies.
Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies
available to Artist under the law, which may now or in the future be applicable.
ARTICLE 8
ARTIST AS 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.
ARTICLE 9
SUBCONTRACTING
Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that
said subcontracting shall not adversely affect the design, appearance or visual quality of the Work and shall
be earned out under the personal supervision of Artist Any subcontract entered into under this Agreement
shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all
subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each
subcontractor to the Contract Manager.
ARTICLE 10
TERM AND TERMINATION
10.1. 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.
10.2 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. In the event this
Agreement is canceled by the City, pursuant to this Article 10.2, City shall be entitled, in addition to any
other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in
providing such gratuities.
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10.3. Incapacity of Artist.
a. In the event that Artist becomes incapable, legally or otherwise, of performing his duties and/or
obligations under this Agreement, City may choose to continue the terms of this Agreement with the
capable party or terminate this Agreement. In the event that Artist becomes incapacitated during the
term of this Agreement, City shall have the right to terminate this Agreement on payment to 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.
b. Should Artist's Final Design have been approved, in the event of termination under this Article 10 3,
City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's
intended results and proper credit and acknowledgement shall be given to Artist.
10.4. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party, subject to
written notice submitted thirty (30) calendar days before termination.
b. If the termination is for the convenience of City, City shall pay Artist pursuant to the payment
provision in Article 3, 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. 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, designs and the Work up to the effective date of termination.
c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay
Artist pursuant to the payment provision in Article 3 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, then all work product produced by Artist under this
Agreement, including, but not limited to finished and unfinished drawings, sketches, photographs,
models, designs, the Work 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 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 under this Agreement,
including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and
designs, up to the effective date of termination.
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10.5. Termination for Cause.
a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of
this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this
Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 10.5
in accordance with the dispute resolution process set forth in Article 11 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 10.5 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 10.5 then City shall have the right to
complete the Work in accordance with the Artwork Design, which shall be in addition to any and all
other rights and remedies available to City at law or in equity. If City exercises its right to complete
the Work, then, notwithstanding anything to the contrary:
(1) title to the Artwork Design, Work, and/or all other work product under this Agreement
and/or any prior agreement for the Work, including, but not limited to, all documents,
models, and/or drawings that constitute or are components of the Artwork Design and/or
Work, shall pass to City and become the property of City, without restriction on future use,
immediately upon the City's exercise of its right to complete the Work;
(2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all other work
product under this Agreement and/or any prior agreement for the Work, including but not
limited to, those stated under Articles 6 (Ownership and Intellectual Property Rights) and 7
(Artist's Rights) of this Agreement;
(3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in
and to the Artwork Design, Work, and/or all other work product under this Agreement or
any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17
U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including,
without limitation, the exclusive right to reproduce, prepare derivative works based upon,
distribute copies to the public as well as display said Artwork Design and/or Work, the same
to be held and employed by City for City's own benefit and use and for the benefit and use
of City's successors, assigns, and legal representatives forever;
(4) Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or
any other work product under this Agreement and/or any prior agreement for the Work; and
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(5)
Artist, pursuant to this Article 10.5, hereby acknowledges the rights of attribution and
integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it
may be amended in the future) Titled "Visual Artists Rights Act," and any other right of the
same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act
hereby waives such rights with respect to any and all uses of the Artwork Design, Work,
and/or all other work product under this Agreement and/or any prior agreement as a public
artwork. Nothing in this Article 10.5 shall affect the survival of Articles 4 (Warranties), 5
(Insurance and Indemnity), and 8 (Artist as an Independent Contractor) of this Agreement,
which shall remain in full force and effect upon termination of this Agreement.
ARTICLE 11
DISPUTE RESOLUTION
a. 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.
b. 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 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 10.5)
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ARTICLE 12
EOUAL 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 13
MISCELLANEOUS
13.1. 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.
13.2. 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.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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
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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.
13.7. No Third -Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful
successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person
or entity.
13.8. 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.
13.9. Force Majeure.
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
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.
13.10. 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.
13.11. 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) calendar days following delivery by
City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
13.12. Cantions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
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13.13. Right to Audit.
Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the
Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years
thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement
and for three (3) years thereafter, the Artist shall make all Records available to 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
audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier
termination of this Agreement. Artist shall require all of its subcontractors to include in their
subcontracts a right to audit in favor of City in substantially the same form as above.
13.14. 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.
13.15. Survival Provision.
The provisions contained in Articles 4 (Warranties), 5 (Indemnification), 6 (Ownership and Intellectual
Property Rights), 8 (Artist as an Independent Contractor), 10.3 (Incapacity of Artist), and 13.13 (Right to
Audit) shall survive the termination or expiration of this Agreement.
13.17. 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.
13.18. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
ARTICLE 14
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: Assistant City Manager
City Manager's Office
City of Fott Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
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2.
Copies to:
ARTIST
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 76 107
Art Garcia, President
Graphic Content, Inc.
509 West Davis Street, Suite 200
Dallas, TX 75208
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the
Effective Date.
CITY OF FORT WORTH GRAPHIC CONTENT, INC.
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Assistant City Manager President
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OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 23 of 36
Exhibit A: The Preliminary Design
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Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 24 of 36
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Concept Zarape celebrates everyone in the community — who contribute to its diversity and growth.
Twenty profiles reflect those in industry, education, business, and our youth - the future. Like the Sarape,
made of vibrant colors, so too, the various members of Victory Forest add to its vitality.
Its colorful citizens included railroad workers, steel mill workers, Sisters teachers and business leaders. The
community boasted modern homes and transportation of the day in addition to progressive industry and
educational standards. The sculpture will provide today's citizen a sense of pride, as they learn they are part
of its continued history.
Description. Zarape utilizes a representation of a human profile to convey the diversity of the community. At
fifteen feet in height the sculpture is fabricated with metal tubing, water -jet cut to shape and powder coated.
Inspired by the vibrant colors of the iconic Sarape blanket of Mexico the artwork uses its hues to identify the
uniqueness of ALL in the community. The sculpture can be viewed from four directions while its height allows
visibility from Hemphill Road.
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
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Exhibit B: Proposed Site
Victory Forest Community Center, Biddison, Fort Worth, Texas, 76110
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Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 26 of 36
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Exhibit C: Budget Form
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 S_ per day
Mileage at $_ per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist / Subcontractors
Worker's Comp. / Employers Liability
Other, as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping (for correspondence, samples, models, drawings etc)
Reprographlc 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'
Electncal 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 $_ per hour) Total
Subcontracted Labor (Total)
Facility/Equloment Rental (used exclusively for this project) related to fabrication
SITE PREPARATION
(Do not include costs covered by F1VPA, City of Fort Worth or others)
Test Drilling'
Removal'
Landscaping/Irrigation'
Electrical Modifications'
Water Work/Mechanical Devices
Other'
(Revised May 2011)
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 27 of 36
TRANSPORTATION
BASEIMOUNTING
Materials to Fabrication Site'
Finished work to Installation Site*
Other'
Base
Mounting Devices and Components
Foundation/Footing
Other
INSTALLATION COSTS
(Costs must include allowance for after hours installation, if applicable. Please attach a
complete list of equipment and individual estimates with this form)
Subcontracted Labor'
Scaffolding'
Equipment Rental related to installation"
Off -duty Police/Security'
Traffic Barriers*
Storage Facility Rental'
City Permits
Display Devices
Fireproofing`
Site Restoration'
Other'
LIGHTING
GRAND TOTAL
Please make any necessary notes here:
Prepared By:
Date:
•
Designers'
Fixtures'
Bulbs'
Site Preparation*
Installation'
(Revised May 2011)
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 28 of 36
Exhibit D: Technical and Maintenance Record
GENERAL INFORMATION
Artist:
Address:
Telephone:
Cell:
E-mail:
Gallery Affiliation:
Other Representation:
ARTWORK
Title of Artwork
Project Name and Location Address:
FWPA Project Manager:
Description of Artwork: (attach separately if necessary):
Artwork Dimensions:
Height:
Pedestal or Pad Material:
Pedestal or Pad Dimensions:
Height:
Width:
Width:
Location & Description of Signature Markings (or copyright):
Edition Information if applicable:
Date of Execution:
Place of Execution:
Depth:
Depth:
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 29 of 36
Collaborating Artist:
Fabricatoi (if other than artist)
Fabricatoi Address:
Methods/Materials Used in Execution of Artwork
Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data.
Include contact names for all suppliers and attach warranty infoimation):
Construction Description: (list all fabricators and any architects, engineers or other technicians involved in
the ci eation 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:
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):
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 30 of 36
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, piovide photo documentation if available. List name and
contact information of installation clew. Attach any diagrams or disassembly instructions )
Recommended Routine Maintenance
Artist recommendation based on experience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 31 of 36
Unusual or Special Circumstances of Note
Artist's Intention
(Please describe your view of how the artwork will change over time and in response to environmental
conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an
appropriate conservation action plan. In addition to environmental conditions public artworks are often
affected by public handling, landscaping and site changes. Please clearly detail your expectations for this
artwork. Please address issues related to the life expectancy of this artwork.)
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 32 of 36
AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Exhibit E: 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 , 2013.
Notary Public, State of Texas
Print Name
Commission Expires
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 33 of 36
Exhibit F: Sales Tax Exemption
01.339 (Back)
tie ,4o0 (Rev.4•13/91
Texas Sales and Use Tax Exemption Certification
This certificate does not require a number to be valid
Name of purchaser, rum or agency
City of Fort Worth
Address (Sheet & number, P.O.13ox or Route number)
1000 Throckmorton street
City, Slate, ZIP code
Fort Worth, Texas 76102
Phone (Area code and number)
817-392.8325
I, the purchaser named above, claim an exemption from payment of sales and use taxes (for the purchase of taxable
items described below or on the attached order or Invoice) from:
Seller' All Vendors
Street address: City, State, ZIP code*
Description of items to be purchased or on the attached order or invoice:
All Items
Purchaser claims thls exemption for the following reason:
Governmental Municipality
1 understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with
the provisions of the Tax Code and/or all applicable law.
I understand that it is a criminal offense to give an exemption certificate to the seller for taxable Items that I know, at the time of purchase,
wilt be used In a mannerotherthan that expressed in this certificate, and depending on the amount of tax evaded, the offense may range
from a Class C misdemeanor to a felony of the second degree.
Purchaser
here
Title
Assistant Finance Director
Dale
NOTE: Thls certificate cannot be Issued for the purchase, lease, or rental of a motor vehicle.
THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID,
Sales and Use Tax "Exemption Numbers" or "Tax Exempt" Numbers do not exist.
This certificate should be furnished to the supplier.
Do not send the completed certificate to the Comptroller of Public Accounts.
2/26/2014
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 34 of 36
Exhibit G: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication,
transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide
by all of the following insurance requirements.
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 Artist and is considered to be in the Artist'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 Artist and/or Artist's Subcontractors who have employees: Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Bodily Injury/Disease - policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas
workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat.).
Agreement with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 35 of 36
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
insuied requirement does not apply to Workers' Compensation or Automobile policies.
Artist 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.
The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the
City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of
Texas. If the subcontractor is an international entity and carries insurance through an international insurance
company, then the subcontractor must obtain language on their certificate of insurance confirming that its
insurance policy extends coverage to operations in the United States. All insurers must have a minimum
rating of A- VII in the current A. M Best Key Rating Guide or have reasonably equivalent financial strength
and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of
Risk Management is required.
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
for any differences is required. Excess Liability shall follow form of the primary coverage
"Unless otherwise stated, all required insurance shall be written on an "occurrence basis."
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 insui ance 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 with Graphic Content, Inc. for Final Design and Commission of Public Artwork for Victory Forest Community Center
Execution Copy 9.10.15 36 of 36
0 Qat site of the 'City of Fort Worth Texas
DATE:
CODE:
SUBJECT:
COUNCIL ACTION: Approved on 12/15/2015
12/15/2015 REFERENCE
NO.:
C TYPE:
06VICTORY FOREST
**C-27554 LOG NAME: COMMUNITY CENTER
PUBLIC ART PROJECT
CONSENT PUBLIC
HEARING:
NO
Authorize Execution of a Final Design and Commission Agreement with Graphic Content,
Inc., in an Amount Up to $62,360.00 for Final Design, Engineering, Construction
Documents, Fabrication and Installation, Which Includes Up to $6,700.00 for
Contingencies, for Artwork at the Victory Forest Community Center (COUNCIL DISTRICT
9)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a final design and commission
Agreement with Graphic Content, Inc., in an amount up to $62 360.00 for final design, engineering,
construction documents, fabrication and installation which includes up to $6,700.00 for
contingencies, for artwork at the Victory Forest Community Center.
DISCUSSION:
The artwork utilizes a representation of a 'ouman profile to convey the diversity of the community.
Approximately 20 of these profiles will be placed inches apart, creating an open rectilinear
sculpture At 15 feet in height the sculpture is fabricated with metal tubing and powder
coated. Inspired by the vibrant colors of the iconic Sarape Blanket of Mexico, the artwork uses its
hues to identify the uniqueness of all in the community. The sculpture can be viewed from four
directions while its height allows visibility from Hemphill Street.
The artist, Arturo Garcia of Graphic Content, Inc., was placed under a preliminary design contract
(City Secretary Contract No. 45312) in the amount of $4,640.00 dated January 27, 2014 and on April
13, 2015, the Fort Worth Art Commission (FWAC) approved the preliminary design. The FWAC
recommended the artist be placed under a final design and commission contract.
Under this final design and commission contract, the artist will finalize the aesthetic design and
provide structural engineering and construction documents Upon approval of the final design and
construction documents, the artist will fabricate, deliver and install the artwork per the approved final
design.
Funding for the final design and commission of the project has been allocated from the 2004 Capital
Improvement Program, Proposition 2 and the project was included in the Fiscal Year 2015 Annual
Work Plan and Budget, which was adopted by the City Council on October 14, 2014 (M&C C-27031).
Fort Worth Art Commission Action - On April 13, 2015, the FWAC approved the artist's preliminary
design and recommended the artist be placed under a final design and commission contract.
Logname: 17ED COMFORWOMEN Page 1 of 3
Project costs and funding sources are as follows:
PROJECT COST ESTIMATE
Preliminary Design
Final Design and Commission
Contingency
TOTAL
FUNDING SOURCES
2004 Capital Improvement
Program Proposition 2
$ 4,640.00
$ 55,660.00
$ 6,700.00
$ 67,000.00
AMOUNT
(Subfund 98)_ _ $ 67,000.00
Total $ 67,000.00
The immediate operating impact is anticipated to be negligible and will be included in the routine
maintenance of all Fort Worth Public Art. The 10-year total cost of ownership is estimated at
$3,600.00 for maintenance
M/WBE OFFICE - The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent
of total capital project dollars expended on public art annually.
Council Member Ann Zadeh concurs with the FWAC's recommendation to proceed with final design
and commissioning of the Victory Forest Community Center Public Art Project.
This project is located in COUNCIL DISTRICT 9, Mapsco 91.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the 2004 Capital
Improvement Program, Proposition 2, for the Victory Forest Community Center Public Art
Project. Existing appropriations in the project are $67,000.00 of which $4,640 00 has been expended
leaving a balance of $62,360.00.
TO
Fund Department Account Project Program Activity Budget Reference # Amount
ID ID Year (Chartfield 2)
FROM
Fund
39801
Department
ID
0200450
Account
5740010
Project
ID
C00130
Submitted for City Manager's Office bv:
Oriainatina Department Head:
Additional Information Contact:
Program
Activity
C09880
Budget
Year
Reference #
(Chartfield 2)
Fernando Costa (6122)
Randle Harwood (6101)
Martha Peters (298-3025)
Amount
$62,360.00
Logname: 17ED COMFORWOMEN Page 2 of 3
ATTACHMENTS
Victory Forest CC MC Attachment October2015.pdf
Logname: 17ED COMFORWOMEN Page 3 of 3