HomeMy WebLinkAboutContract 45312 (2)CITY SECRETARYCONTL- ta 1 NO. �
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AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND GRAPHIC CONTENT, INC. FOR PRELIMINARY DESIGN OF
PUBLIC ART FOR VICTORY FOREST COMMUNITY CENTER
This Agreement is entered into this tiday of Jo 1 V_ G Yt J , 2014, 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 Graphic Content, Inc., Texas for profit 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, Proposition 2 of the 2004 Capital Improvement Program allocates funds for the
construction of a new Southside community center located in City Council District 9, which includes
funds for public art;
WHEREAS, the City initially planned to construct the new community center at Rosemont Park;
WHEREAS, on November 18, 2009, artist Art Garcia was competitively selected through a
process outlined in the Fort Worth Public Art Master Plan to create an integral artwork for the planned
Rosemont Community Center; however, the City subsequently abandoned those plans in favor of a new
location near the intersection of Hemphill Street and Biddison Road 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, the Project and Artist were included in the Fiscal Year 2014 Annual Work Plan and
Budget, adopted by the Fort Worth City Council on November 12, 2013 (M&C C-26557) as part of the
City's agreement with the Contract Manager for administration of the public art program;
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall
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be designed and implemented to promote the integrity of Artist's ideas and statements as represented by
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the Preliminary Design;
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NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements
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hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
Preliminary Design Contract with Graphic Content, Inc.
OFFICIAL RECORD
CITY SECREflh 9
FT. WORTH, TX
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 Art
Garcia for Preliminary Design of Public Art for the Site.
1.2. Artist - Means and includes Graphic Content, Inc.
1.3. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and/or its officers, directors, employees.
1.4. City - Means and includes the City of Fort Worth, Texas.
1.5. Effective Date — Means and includes the date that is represented in the first paragraph of this
Agreement, which shall be the official date of execution of this Agreement.
1.6. — Parties — Means and includes City and Artist.
1.7. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes,
models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with
this Agreement and/or any prior agreement between Artist and City for the Work.
1.8. Preliminary Design 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.
1.9. Project - Means and includes the capital improvement or public art development undertaking
of City for which Artist's services are to be provided pursuant to this Agreement.
1.10 Project Stakeholders — Means and includes the appropriate City Council Member(s), and
their appointed community representatives and the Fort Worth Art Commission's ("FWAC") appointed
representative and others as may be appropriate.
1.11 Project Consultant — Means and includes the design f"inn/professional(s) hired by City to
design the Site.
1.12. Site — Means and includes the new Victory Forest Community Center located near the
intersection of Hemphill and Biddison Streets, Fort Worth, Texas 76110, which is more particularly
described in Exhibit 'A,' attached hereto and incorporated herein for all purposes.
1.13. Work — Means and includes the finished object(s) of art and design that is the subject of the
Agreement, or any intermediary stage of completion of such Work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLE
2.1 Scone of Services.
a. Artist shall perform all services and will furnish all supplies materials and equipment as
necessary for developing a Preliminary Design of the work and for providing the Preliminary
Design Deliverables. Services shall be performed in a professional manner and in strict
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compliance with all terms and conditions in this Agreement.
b. Artist, in consultation with Project Consultant, 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(s) 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. Prior to commencing work on the Preliminary Design, Artist shall meet with and seek input from
Project Stakeholders.
f. Artist shall work with the Project Consultant to explore design enhancements that may be integral
to the Project and covered by the construction budget.
g. Artist shall explore concepts for the Work, within the preliminary implementation budget set
forth in Article 2.3.
h 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, lighting, electricity, or other
infrastructure needs to support the Work.
i. Artist shall present the Preliminary Design to Project Stakeholders, the appropriate City staff, the
Parks and Community Services Advisory Board and other City boards or commissions, as
appropriate, for input and to the FWAC for review and approval at dates and times mutually
agreed upon.
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. Preliminary 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 Section 2.3
to Contract Manager. Preliminary Design Deliverables shall consist of the following*
i. Two preliminary design illustration(s) showing the proposed Work from two
vantage points, including a plan view which shall be in a high resolution digital
format or mounted on foam core and at least 20 ' x 30' ;
ii A narrative description of concept, proposed materials, fabrication, and
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installation methods, timeline for completion and maintenance, and anticipated
annual maintenance requirements;
iii. Installation diagram, including approximate weight of the Work, proposed base,
footing, or attachment method(s) and, if applicable, location(s) for any electrical
outlets and lighting fixtures; and
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for
implementation of a final design of the Artwork in an amount not exceed FIFTY-EIGHT
THOUSAND DOLLARS AND NO CENTS ($58,000.00). which includes all costs for
materials, labor, fabrication, delivery, installation, insurance, transportation, remaining
Artist's fee, and all other associated costs for the Work including, but not limited to,
lighting and travel.
2.4. Preliminary Design Review.
a. Upon completion of the Preliminary Design Deliverables, Artist shall present the Preliminary
Design to the FWAC for review and input at a regularly scheduled FWAC meeting.
b. After presenting to the FWAC for input, Artist shall meet with the designated Project
Stakeholders, City staff, Parks and Community Services Advisory Board, and other City boards
or commissions, as appropriate, to present the Preliminary Design, at a date and time mutually
agreed upon, for input.
c. Artist shall then present the Preliminary Design to the FWAC for approval at a regularly
scheduled FWAC meeting
d. City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty
(30) business days of Artist's presentation to the FWAC.
e. If City requires any revisions to the Preliminary Design, then City shall inform Artist of each
revision City may require Artist to make such revisions to the Preliminary 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.
£ Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Preliminary Design in conformance with City's requirements.
g. If City disapproves of the resubmitted Preliminary Design, any further Preliminary 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 to the Artist per the payment schedule in
Article 3 up through the date of termination (See Article 4.4.d)
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h. Upon City approval of the Preliminary Design, any revisions made to a City -approved
Preliminary Design shall become part of the Preliminary 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 if the Artist proceeds to the final
design phase. Artist shall provide the Preliminary 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.
i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Preliminary
Design is accepted by City and funding is appropriated by the Fort Worth City Council,
negotiations for final design or final design and commission for fabrication, delivery, and
installation of the Work shall commence, which shall become part of the deliverable under any
anticipated final design or final design/artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Comnensation
Total compensation to Artist under the Agreement shall be FOUR THOUSAND SIX HUNDRED
FORTY DOLLARS AND NO CENTS ($4,640.001 which shall constitute full compensation for all
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. ONE THOUSAND SIX HUNDRED TWENTY FOUR DOLLARS AND NO CENTS
($1,624.00) upon execution of this Agreement.
ii. ONE THOUSAND EIGHT HUNDRED FIFTY-SIX DOLLARS AND NO CENTS
($1,856.00) within thirty (30) calendar days after Artist submits Preliminary Design
Deliverables, as required under Article 2.3. of this Agreement, and makes a presentation
of the Preliminary Design to the FWAC.
iii. ONE THOUSAND ONE HUNDRED SIXTY DOLLARS AND NO CENTS
($1,160.001 within thirty (30) days after the City's approval of the Preliminary Design.
3.2. 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 Sales Tax and Local Sales Tax Exemption
Certificate," attached hereto and made apart hereof for all purposes as Exhibit "C" for use by Artist in the
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fulfillment of this Agreement.
3.3. 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, 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
TERM AND TERMINATION
4.1. Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to any
provision in this Agreement, shall extend until final payment to Artist by City, whichever is later.
4 2 Gratuities.
The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or
otherwise were offered or given by the Artist or any agent or representative to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to the
awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
4.3. Termination for Cause
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this
Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this
Agreement, then the Parties shall first attempt to resolve any disputes arising from Article 4 3 in
accordance with the dispute resolution process set forth in Article 5 If the Parties cannot resolve the
dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the
delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this
Agreement under this provision shall not relieve the party in default of any liability for damages resulting
from a breach or a violation of the terms of this Agreement.
4.4. Termination for Convenience.
a. The services to be performed under this Agreement may be tenninated by either party, subject to
written notice submitted thirty (30) calendar days before tennination.
b. If 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 the Agreement up the effective date of termination. Upon payment in full
of all monies due for services provided up 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,
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photographs, models, and designs, up to the effective date of termination, provided that no right
to fabricate or execute the Work shall pass to City.
c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to
pay Artist 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, and designs, up to the effective date of termination shall become
property of City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, 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.
4.5. 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
finished and unfinished drawings, sketches, photographs, models and work shall become property
of City.
b. Should Artist's design have been approved, in the event of termination under this Article 4.5, City
shall have the right to complete the Work, if feasible. Due regard shall be made for the Artist s
intended results and proper credit and acknowledgement shall be given to Artist. This provision
shall survive the termination or expiration of the Agreement.
ARTICLE 5
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.
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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 shall submit the matter to mediation 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 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artist or pursuant to the applicable termination provision of this
Agreement, the Preliminary Design, Work, and all other work product under this Agreement shall
become the property of City, without restriction on future use, except as provided below. Artist
shall retain copyright and other intellectual property rights in and to the Preliminary Design
and/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual,
royalty free, and irrevocable license to graphically depict and publicly display the Preliminary
Design and/or Work for any non-commercial purpose whatsoever. For purposes of this limitation,
any graphic depiction or display of the Preliminary Design and/or 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.
b. In view of the intention that the Preliminary Design and the Work be unique, Artist shall not
make any additional exact duplicate reproductions of the Preliminary 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.
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c. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Preliminary Design and/or Work, except as those
rights are limited by this Agreement. City may make and disseminate photographs, drawings,
and other two-dimensional reproductions of the Preliminary Design and/or Work and
accompanying materials for any municipal purpose. All reproductions by the City shall contain a
credit to the Artist and a copyright notice substantially in the following form: "O date, Artist's
name.'
d. Nothing in this Agreement shall prevent the Artist from using images of the Preliminary Design
and/or Work for marketing and promotional purposes in connection with the Artist's business.
e. City is not responsible for any third -party infringement of Artist's copyright and not responsible
for protecting the intellectual property rights of Artist.
6.2 Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if
such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right
subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this
provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's
rights.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Preliminary Design and/or Work shall be the original product of the Artist's sole creative
efforts.
ii. Preliminary Design and/or Work is and will be unique and original, and does not infringe
upon any copyright or the rights of any person;
iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Preliminary Design and/or Work or any copyright related thereto that may affect or impair
the rights granted pursuant to this Agreement;
iv. Preliminary Design and/or Work (or duplicate thereof) have not been accepted for sale
elsewhere;
v. Artist has the full power to enter into and perfonnr this Agreement and to make the grant of
rights contained in this Agreement, and
vi. All services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessary care, skill and diligence.
ARTICLE 8
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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
INDEMNIFICATION
9.1. 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 ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S
SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS,
EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN
CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT.
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.
9.2. Intellectual Property
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and
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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 appropnate 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.
ARTICLE 10
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 11
MISCELLANEOUS
11.1. Compliance.
Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the
performance of Artist services under this Agreement.
11.2. Entire Agreement.
This writing embodies the entire agreement and understanding between the Parties hereto, and there are
no other agreements and understandings, oral or written, with reference to the subject matter hereof that
are not merged herein and superseded hereby.
11.3. Amendments.
No alteration, change, modification or amendment of the terms of this Agreement shall be valid or
effective unless made in writing and signed by both parties hereto and approved by appropriate action of
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City.
11.4. 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.
11.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the Umted
States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
11.6. Successors and Assigns.
Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the
other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior
written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City
and Artist and its respective successors and permitted assigns
11.7. No Third-Partv Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any
lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other
person or entity.
11.8 Severabilitv.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
11.9. Forces 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 pennitted 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.
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11.10. Contract Construction.
The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
11.11. Fiscal Funding Out.
If for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to
appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate
this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of
written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated
by City Council for the purposes set forth in this Agreement.
11.12. Cautions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
11.13. Right to Audit
Artist agrees that city will have the right to audit the financial and business records of Artist that relate to
the Worth (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.
11.14 Certified MWBE
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business
Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose
certification is accepted by the City under the City's Business Diversity Enterprise Ordinance.
11.15 Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of
Title and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the
termination or expiration of this Agreement.
11.16 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.
Preliminary Design Contract with Graphic Content, Inc. 13 of 19
-,11.17. 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 Managers Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Copies to:
2. 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, TX 76107
Art Garcia, President
Graphic Content, Inc
509 West Davis Street, Suite 100
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.
By: By:
Fernando Costa
assistant City Manager
Date:
Date:
Arturo Garcia,
President
Preliminary Design Contract with Graphic Content, Inc. 14 of 19
11.17. 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
Fort Worth, TX 76102
Copies to:
2. 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, TX 76107
Art Garcia, President
Graphic Content, Inc.
509 West Davis Street, Suite 100
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
By777/44a414
Fernando Costa
Assistant City Manager
Date:
:.
//23�/4
RAPHI f ENT IN . G C CONT
By:
/rturo Garcia v
v
President
Date:
2-0\9-
Preliminary Design Contract with Graphic Content, Inc. 14 of 19
APPROVED AS TO FORM
AND LEGALITY:
Tyler a'11ach
Assistant City Attorney
ATTESTED BY:
t
Marry J.Kays
City Secretary
Contract Authorization:
No M&C Required
OFFICIAL RECORD
CITY SECRETARY
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n Contract with Graph1C Content, Inc.Preliminary Desig
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Exhibit A:
Site
Victory Forest Community Center, Biddison, Fort Worth, Texas, 76110
t )1,
:tear
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OPEN
LAWN
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94
VICTORY FOREST COMMUNITY CENTER
Fisher More
College
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Our Lady
of Victory .I.
Catholic School
cr^
W Ripy St
Woodland Ave
B tddisor 1 Si
4�
s8 O `rf 1
0n
a
e.
TXU Energy
Payments
/1.1(1
Ripy St
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W Lev ick St
Z
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U;
O
Hayes & Stolz
• Industrial
Manufacturing
''/ 13ipy :;I
•4 J
W Mason Ct
P
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Campbell a
Glass & Mirror
Nash
A•..•...f.. is lit . rlr'..-.
`' Products
H & E
•
Movers
?on
(
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V'J Bewick St
'// Ripy St
Biddison St
Preliminary Design Contract with Graphic Content, Inc. 16 of 19
Satellite
Traffic
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Transportati'
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Exhibit B: Implementation 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(7. Cost increases must
also have a written estimate attached.
ARTISTS FEE (15%)
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
INSURANCE
Airfare
Car Rental
Per Diem Expenses at $_ per day
Mileage at $_ per mile
Auto/Hired Vehicle Liability
General Liability for Artist / Subcontractors
Worker's Comp. / Employer's Liability
Other, as applicable
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)
TRANSPORTATION
Test Drilling*
Removal*
Landscaping/Irrigation*
Electrical Modifications*
Water Work/Mechanical Devices
Other*
Materials to Fabrication Site*
Finished Work to Installation Site*
Other*
Preliminary Design Contract with Graphic Content, Inc. 17 of 19
BASE/MOUNTiNG
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
Designers*
Fixtures*
Bulbs*
Site Preparation*
Installation*
GRAND TOTAL
Please make any necessary notes here:
Prepared By:
Date:
Preliminary Design Contract with Graphic Content, Inc. 18 of 19
Exhibit C: Sales Tax Exemption
TEXAS CERTIFIC iTE OF EXEMPTION
1 claim an cxcmptiun from payment of sales and use taxes tar the purchase of taxable items dt scribcxl
below or on the attached order i r invt,i
Dcscrhflion of Miens (or an attached order or Invoice) To Be PurehaseJ:
t claim Ibis exemption for the ibllowme reason:
Name or -Exempt Organization_ CITY OF FORT \VORTII, TEXAS
TEXAS SALES AND USE TAX 1'f:RMIT NUMBER 1-75-6000528-6
Project for which matenais and sopplie are purchased:
I understand That 1 will be liable for payment of sales tax, which may become due ti'r ftailure to comply
with the provisions of the state, city, andior metropolitan transit authority salve and use tax laws and
comptroller rules regarding exempt purchases. Liability fiir the tax will he determined by the prig paid
bar the taxable items purchased or the far marrket rental value tiir the period of time used.
I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable ileitis which
I know. at the time of the purchase, will be used in a manner other than that expensed in this certificate
and, upon conviction. muv he tined up to 5500 per offense.
Tax. Exernvt Status Due to Being a Governmental limits:
Purchaser: CITY OF FORT WORTH, TEXAS
Street Address: 1000 THROCKNIORTON STREET
City. State. Zip Code: FORT WORTH. TEXAS 76102
Sign Here:
rl
fnrmri4Stn tc ui at warns:
Date: June 11, 2009 Phone: 31?-+i)?-K51
This certificate does not require a nurnher to he valid, Safes and use tax "examnion nuunbc ' ur "tax
exempt" numb..is do not cxssl.
This cernticate should he furnished to the .supplier Do non sent) the completed certificate to the
Comptroller of I'uhlic Accounts.
Preliminary Design Contract with Graphic Content, Inc.
19 of 19