HomeMy WebLinkAboutContract 47358 (2)Agreement with Leticia Huerta for Partial Redesign and Commission of
Public Art for Hemphill/Berry Urban Village Execution Copy 12/21/15
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'` AGREEMENT BETWEEN THE CITY OF FORT WORTH
4&#AND LETICIA HUERTA FOR PARTIAL REDESIGN AND COMMISSION
OF PUBLIC ART FOR THE HEMPHILL/BERRY URBAN VILLAGE
C1TY SECRETAm
CONTNACTNO. 'l "35�'__
This Agreement is entered into this ay of 4/0-;Ifidebc___, 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, and Leticia Huerta Studio, LLC, a limited liability company, with an
address of 9630 Requa Road, Helotes, Texas, 78023, acting by and through its duly authorized Member,
Leticia Huerta. 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 designing and constructing certain streetscape improvements in the
Hemphill/Berry Urban Village, more particularly described as the sidewalks along Hemphill Street
between W. Bowie Street and W. Devitt Street, with the exception of the area 150' north and 150'
south of the intersection of Hemphill and Berry Streets, as shown on the map attached herein as
Exhibit "A" (the "Site"); and,
WHEREAS, the City desires to include integral public art / design enhancements that reflect
the area's historic "Arts and Crafts" architecture, as recommended in the Hemphill / Berry Urban
Village Master Plan, as adopted by City Council on December 4, 2007 (M&C G-15990); and,
WHEREAS, funds for the project have been allocated from the Specially Funded Capital Projects
Fund for public art associated with the Hemphill -Berry Urban Village (the "Project") and the public art
project is included in the Fiscal Year 2015 Annual Work Plan and Budget, adopted by City Council on
October 14, 2014 (M&C C-27031); and
WHEREAS, on February 28, 2009, the City entered into a contract with Leticia Huerta to develop a
design for the Site (Fort Worth City Secretary Contract No. 38286); and
WHEREAS, on August 13, 2009, the Fort Worth Art Commission (FWAC) approved Leticia
Huerta's Final Design, and recommended that Leticia Huerta be retained to fabricate, deliver, and install the
OFFICIAL 1tEC011
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art panel elements of the Work at the Site and that the City's Project Contractor fabricate, deliver, and install
the furniture elements of the Work at the Site; and
WHEREAS, Leticia Huerta is now acting by and through her limited liability company, Leticia
Huerta Studio, LLC, and this Agreement is being entered into with Leticia Huerta Studio, LLC as the Artist;
and
WHEREAS, when the City's Project construction commenced in 2015, certain design changes to the
Final Design, and structural engineering were determined to be required to enable fabrication of the Work;
and
WHEREAS, City has requested Artist to partially redesign the Final Design of the Work to allow for
feasible implementation, while being similar to the approved original Final Design and, upon City approval,
fabricate, deliver, and install the art panel elements of the Work at the Site; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be
redesigned and under which the art panel elements of the Work shall be 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:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and
Leticia Huerta Studio, LLC for Partial Redesign and Commissioning of public art for the Hemphill/Berry
Urban Village.
1.2. Artist - Means and includes Leticia Huerta Studio, LLC.
1.3. Artwork Design — Means and includes both the Final Design and Partial Redesign Design
of the Work, which are defined in 1.3.a. and 1.3.b. below.
1.3.a. Final Design — Means Leticia Huerta's Final 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 were
created in connection with Leticia Huerta's previous Agreement, or the like that are related,
directly or indirectly, to the Work and shall include Leticia Huerta's specifications for
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fabrication and installation of the Work by Artist, which were created by Leticia Huerta in
connection with the Final Design Contract, depictions of which are attached hereto as
Exhibit "B" and incorporated herein for all purposes.
1.3.b. Partial Redesign - Means all drawings, sketches, prototypes, maquettes, models,
narrative descriptions, budget estimates, and the like that 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, and 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. Final Acceptance - Means City's written acknowledgement to Artist that all services for
redesign of the Work and fabrication, delivery, and installation of the art panel elements of the Work have
been completed in accordance with the terms of this Agreement.
1.8. Parties — Means and includes City and Artist.
1.9. Partial Redesign — Means all redesign drawings, sketches, prototypes, maquettes, models,
narrative descriptions, budget estimates, and the like that are created by Artist in connection with this
Agreement and/or any prior agreement between Artist and City or Leticia Huerta and City for the Work
1.10. Partial Redesign Deliverables— Means and includes those items set forth in Article 2.3 of
this Agreement that Artist is required to submit to City for its review and approval.
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.
1.13. Project Contractor — Means and includes the firm/professional(s) hired by City to construct
the Site.
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1.14. Site — Means and includes the sidewalks along Hemphill Street between W. Bowie
Street and W. Devitt Street, with the exception of the area 150' north and 150' south of the
intersection of Hemphill and Berry Streets, which is more particularly described in Exhibit "A," 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.
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ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Partial Redesign of the Work to allow for feasible implementation, while being
similar to Leticia Huerta s approved original Final Design and for providing the Partial Redesign
Deliverables. If City approves Artist's Partial Redesign and authorizes Artist to proceed to the
Commission Phase of this Project, then Artist shall fabricate and install the art panel elements of the
Work. The Project Contractor will fabricate and install the furniture elements of the Work. 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 Project Stakeholders and approval by City as set forth in this
Agreement.
c. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and
Artist.
d. 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.
e. Artist shall meet and coordinate with City staff and others, as necessary, to explore the feasibility of
integrating the Work into the Site in terms of structural support, or other infrastructure needs to
support the Work.
f. If work is deemed substantially different from Leticia Huerta's approved Final Design, Artist shall
present the Partial Redesign to Project Stakeholders, the appropriate City staff, and other City boards
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or commissions, as appropriate, for input and to the FWAC for review and approval at dates and
times mutually agreed upon.
g. If City approves Artist's Partial redesign and authorizes Artist to proceed to the Commission Phase
of this Project as it relates to the art panel elements of the Work, then Artist shall fabricate and install
the art panel element of the Work on dates and times mutually agreed upon by Artist and City.
h. 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.
i. After commissioning of the Work, Artist shall participate in one public education event in Fort
Worth at a mutually agreed upon date and time
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2.2. 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.
2.3. Partial Redesign Deliverables
a. Within thirty (30) calendar days 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 2.3 to City for approval. Partial Redesign Deliverables shall consist of the following:
i. Two (2) Partial Redesign illustrations showing the proposed Work from two vantage points,
including a plan view, which shall be at least 20' x 30" and mounted on foam core and/or in
a high resolution digital format such as JPEG or TIF files;
Installation diagram, Including approximate weight of the Work, and attachment method(s)
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C, ' for
implementation of a final design of the art panel elements of the Artwork in an amount not
exceed TWENTY-TWO THOUSAND DOLLARS AND NO CENTS ($22,000.00), which
includes all costs for materials, labor, fabrication, delivery, installation, insurance
transportation, remaining Artist's fee, and all other associated costs for the art panel
elements of the Work including, but not limited to, lighting and travel.
v. Comprehensive working drawings, detailing the means of installing art panel 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 art
panel elements of the Work Upon City's request drawings must be signed and stamped by
an engineer and/or architect licensed to work in the State of Texas. Artist will provide the
Contract Manager a certificate of insurance for each licensed professional and provide City
with a thirty (30) calendar day notice of cancellation of any policy required hereunder.
2.4. Partial Redesign Review.
a. Upon completion of the Partial Redesign Deliverables Artist shall meet with project stakeholders
Project Contractor and City staff to present the Partial Redesign, at a date and time mutually agreed
upon for input and approval, as appropriate.
b. Artist shall then present the Partial Redesign to the FWAC for approval at a regularly scheduled
FWAC meeting but only if the Partial Redesign is substantially different from the approved Final
Design as determined by the Contract Manager.
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c. If FWAC approval is necessary, City shall notify Artist of its approval, or disapproval, of the Partial
Redesign within thirty (30) business days of Artist's submission of Partial Redesign Deliverables.
d. If FWAC approval is necessary, and if City requires any revisions to the Partial Redesign, then City
shall inform Artist of each revision. City may require Artist to make such revisions to the Partial
Redesign 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.
e. If FWAC approval is necessary, Artist shall have thirty (30) calendar days from the date City
informed Artist of the revision(s) to present the revised Partial Redesign in conformance with City's
requirements.
f. If FWAC approval is necessary, and if City disapproves of the resubmitted Partial Redesign, any
further Partial Redesign 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 to the Artist per the
payment schedule in Article 3 up through the date of termination.
g Upon City approval of the Partial Redesign, any revisions made to a City -approved Partial Redesign
shall become part of the Final Design. Artist shall incorporate any City -approved revisions into the
Final Design in conformance with City's requirements. Any revisions shall become part of any final
design deliverables. Artist shall provide the Partial Redesign 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.
2.5. Commission of the Art Panel Elements of the Work.
a. If City approves Artist's Partial Redesign and authorizes Artist to proceed to the Commission Phase
of this Project for the art panel elements of the Work, 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 art panel
elements of 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 art panel
elements of 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 art panel elements of the Work and the
remainder of work to be done to complete the art panel elements of the Work. Artist shall comply
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with any request made by the City and/or Contract Manager pursuant to this Article 2.5 within thirty
(30) calendar days after receipt of the written request.
c. Artist shall complete the fabrication of the art panel elements 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 art
panel elements 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. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the art panel
elements of the Work is completed and ready for delivery and installation at the Site.
b. Artist is responsible for installing the art panel elements of the Work. Artist shall coordinate the
installation of the art panel elements 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 delivered to Artist by the City.
c. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of
the art panel elements of the Work, including, but not limited to, equipment rentals, transportation,
and labor.
d. Artist is responsible for obtaining and paying for all necessary permits.
e. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary
precautions to protect and preserve the integrity and finish of the Site while delivering and installing
the art panel elements of 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
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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.
f. Upon City's request, prior to installation of the art panel elements 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 six (6) high -resolution digital images (.tiff format) and six (6) low -
resolution digital images (peg format) showing the Work from multiple vantage points, 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
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 art panel elements 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 ` D" (Affidavit), certifying that all bills relating to services or supplies used in the
performance of this Agreement have been paid.
b. City shall notify Artist, in writing, of its Final Acceptance of the Work.
c. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification of
Final Acceptance; or, (2) the thirty-fifth (35`h) calendar day after Artist has sent the written notice to
City required 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.
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2.10. Risk of Loss.
The risk of loss or damage to the art panel elements of the Work shall be borne by Artist prior to Final
Acceptance, and Artist shall take such measures as are necessary to protect the art panel elements of 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 art panel elements of the Work is fully
installed in its intended, final location, or 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 art panel elements of the
Work.
2.11. Early Completion of Artist Services.
Artist shall bear any transportation and storage charges incurred from the completion of his or her services
prior to the time provided m the schedule for delivery.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall be an amount up to TWENTY-SEVEN
THOUSAND DOLLARS AND NO CENTS ($27,000.00), which shall constitute full compensation for any
and all costs associated with the Agreement, including, but not limited to, remaining artist fee, engineering
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:
i. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) (upon execution of this
Agreement.
ii. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar
days after Artist submits all of the Partial Redesign Deliverables required under Article 2.3
of this Agreement.
iii. TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) within thirty (30) calendar
days after City's approval of the Partial Redesign.
iv. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000 001 upon the Contract Manager's
verification that fabrication of the art panel elements of the Work is 100% complete and
ready to install.
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v. TWO THOUSAND DOLLARS AND NO CENTS ($2.000.00) upon the Contract Manager's
verification that the art panel elements of the Work is installed on the Site.
vi. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.001 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].
viii. City may pay Artist contingency funds in an amount up to FIVE THOUSAND DOLLARS
AND NO CENTS ($5,000.00) for costs associated with the art panel elements of the Work
that are incurred by the Artist due to unforeseen changes in fabrication or installation costs.
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 "E ' for use by Artist in the fulfillment of this Agreement.
3.4. Artist's Expenses.
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on
submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants,
and/or employees necessary for the proper performance of the services required under this Agreement.
ARTICLE 4
WARRANTIES
4.1. Warranties of Title and Copyright.
a. Artist represents and warrants that:
(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 (or 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
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(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 Quality and Condition.
a. Artist represents and warrants that all work will be performed in accordance with professional
"workmanlike" standards and free from defective or inferior materials and workmanship (including
any defects consisting of "inherent vice, ' or qualities that cause or accelerate deterioration of the
Work) for one (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.
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:
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.
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.
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(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.
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 "F," which is attached hereto and incorporated herein for
all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation
of the art panel elements 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 art panel elements of the Work. Except as provided in Article 2.10
hereof, the risk of damage to or loss of the art panel elements of the Work, 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
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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
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.
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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
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:
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"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.fwpubhcart.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.
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.
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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
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.
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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 carried 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.
10.3. Death or Incapacity of Artist.
a. In the event of Artist s death or Artist becoming physically or legally incapacitated during the term
of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or
Artist's successors for all work and services performed prior to death or incapacity. All work product
produced by Artist, including, but not limited to, finished and unfinished drawings, sketches,
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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.
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
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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),
Article 7 (Artist's Rights), and Article 13.13 (Right to Audit) 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
(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.
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ARTICLE 11
DISPUTE RESOLUTION
a. If either Artist or City has a claim, dispute or other matter m 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 rn 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)
ARTICLE 12
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin,
sex age, religion, disability marital status, citizenship status, sexual orientation or any other
prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and
warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall
comply with all applicable laws and regulations in any employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be
debarred from further agreements with City.
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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
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.
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13.9. Force Maieure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions; transportation problems; or any other circumstances which are reasonably
beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the
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) 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. Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
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. 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.
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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 (WRE) 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), Articles 10.3 (Incapacity of Artist), and 13.13
(Right to Audit) shall survive the termination or expiration of this Agreement.
13.16 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.
13.17. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
1 CITY OF FORT WORTH: Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to:
City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President, Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
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2. ARTIST
Leticia Huerta Studio, LLC
P.O. Box 396
He I cues, TX 78023
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the
Effective Date.
CITY OF FORT WORTH
by: /fi
Fernando Costa
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Jessi ' ; Sangsvt
Assist: nt City A
ATTESTED B Y :
T4;,T���
it. ,
se,
X l aty J. Kayser
City Secretary I
ARTIST
Leticia Huerta Studio, LLC
[3yr: Leticia Huerta, Member
A ueement with Leticia Huerta for Partial Redesign and Commission of
Public Art for HemphillBerry Urban Village Execution Copy 12/21/15
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Agreement with Leticia Huerta for Partial Redesign and Commission of
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Agreement with Leticia Huerta for Partial Redesign and Commission of
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Agreement with Leticia Huerta for Partial Redesign and Commission of
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EXHIBIT "C" - BUDGET
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs (no lump sums) for all items designated with an asterisk(*). Cost increases must
also have a written estimate attached.
ARTIST'S FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rental
Per Diem Expenses at $_ per day
Mileage at $ per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist / Subcontractors
Worker's Comp. / Employer's Liability
Other, as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivery/Shipping (for correspondence, samples, models, drawings etc)
Reprographic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable, drawing must be signed and sealed by a professional registered to practice
in the State of Texas)
Architect"
Structural Engineer"
Electrical Engineer*
Conservator'
Photographer (for documentation of completed work)*
Other
MATERIALS
(Please attach a complete list of materials. Itemize all anticipated aspects and
components with per unit cost estimates)
Materials' Total
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and work to be completed by
artist.)
Artist's Labor ( __ hours at $__ per hour) Total
Subcontracted Labor (Total)
Facility/Equipment Rental (used exclusively for this project) related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA, City of Fort Worth or others)
Test Drilling'
Removal'
Landscaping/Irrigation'
Electrical Modifications'
Water Work/Mechanical Devices
Other'
(Revised May 2011)
Agreement with Leticia Huerta for Partial Redesign and Commission of
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TRANSPORTATION
BASEJMOt1NTING
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 Pciice/Secur1ty'
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)
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Exhibit D: Affidavit of Bills Paid
AFFIDAVIT OF BILLS PAID
Date:
Affiant (Artist):
Purchaser (City of Fort Worth):
Property (Artwork Site):
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 (as listed in contract):
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the
day of
, 20 .
Notary Public, State of Texas
Print Name
Commission Expires
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Exhibit E: Sales Tax Exemption
or-9 9 (dark)
(RN 907(a)
TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION
Name or purchaser, rrm or agency
City of Fort Worth, Texas
Address (Street & number, PO. Boy or Route nunrber) Phone (Area code end number)
1000 Throckmorton Street 817-392.8360
City, Stale, ZIP coda
Fort Worth, Texas 76102
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:
Description of items to be purchased or on the attached order or invoice:
All items except motor vehicles as listed below
Purchaser claims this exemption for the following reason:
Municipality, Governmental Entity
City, State, ZIP code
I understand that I will be liable for payment of all slate 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 lime of purchase,
will 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 Iho .second degree.
Po
here r
Tire
Finance Director/CFO
NOTE: This 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.
Date
March 23, 2015
This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts.
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Exhibit F: 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.).
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GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers,
Employees and Volunteers as an "Additional Insured" on all liability policies. Exception. . the additional
insured requirement does not apply to Workers Compensation or Automobile policies.
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 subconti actor 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 insurance requirements and to make reasonable
adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon
changes in statutory law, court decision or the claims history of the industry as well as of the contracting
party to City of Fort Worth. City shall be required to provide prior notice of ninety days.
City shall be entitled, upon request and without expense, to receive copies of policies and endorsements
thereto and may make any reasonable requests for deletion or revision or modifications of particular policy
terms, conditions, limitations, or exclusions except where policy provisions are established by law or
regulations binding upon either of party or the underwriter on any such policies.
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