HomeMy WebLinkAboutContract 44938 (2)CITY S Ckifi VARY
CONTRACT NO.
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND BENITO HUERTA FOR DESIGN OF PUBLIC ART FOR
SOUTH MAIN URBAN VILLAGE
This Agreement is entered into thisibi"'day of boaa.q..A , 2013, by and between the City of
Fort Worth, ahome-rule municipal corporation of the State of Texas, acting by and through Fernando Costa,
its duly authorized Assistant City Manager, and Benito Huerta, an individual, residing at 1128 West Park
Row Drive, Arlington, Texas. City has designated the Arts Council of Fort Worth and Tarrant County, Inc.,
to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art
project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort
Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of
artists into the development of the City's capital infrastructure improvements, and to promote tourism and
economic vitality in the City through the artistic design of public spaces;
WHEREAS, City is designing and constructing certain streetscape improvements in the South Main
Urban Village, more particularly described as the roadway and sidewalks along South Main Street between
Vickery Street and in Fort Worth, Texas;
WHEREAS, City desires to include integral public art / design enhancements that would contribute
to a pedestrian -friendly streetscape;
WHEREAS, funds for the project have been allocated from the Public Art Fund, and the Project was
included in the Fort Worth Public Art Fiscal Year 2013 Annual Work Plan and Budget, adopted by the Fort
Worth City Council on October 16, 2012 (M&C C-25920), as part of the City's agreement with the Contract
Manager for administration of the public art program;
WHEREAS, Artist was competitively selected through a process outlined in the Fort Worth Public
Art Master Plan, which was conducted by Contract Manager with oversight of the Fort Worth Art
Commission; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall
be designed 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:
RECEIVED OCT - 32013
�rrIOiAL RECORD
CITY UCRETARY
PT1WORTH,TX
Agreement Between the City of Fort Worth and Page 1 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
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
Benito Huerta for Design of public art for the Site.
1.2. Artist - Means and includes Benito Huerta and/or his heirs, executors, administrators, legal
representatives, successors, agents, subartists, contractors, and assigns.
1.3. Artwork Design - Means and includes both the Preliminary Design and Final Design of the
Work, which are defined in 1 3 a and 1.3.b. below.
1.3.a. Preliminary Design - Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that are created by
Artist in connection with this Agreement and/or any prior agreement between Artist and City
for the Work.
1.3.b. Final Design - Means the Artist's final, proposed design of the Work for the Site,
which is based upon the City -approved Preliminary Design and includes, but is not limited
to, all fmal drawings, sketches, prototypes, maquettes, models, and the like that may be
created by Artist in connection with this Agreement, or the like that are related, directly or
indirectly, to the Work and shall include Artist's specifications for fabrication and
installation of the Work.
1.4. Contract Manager - Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc , and/or its officers, directors, employees agents, subsidiary organizations, parent organization,
successor corporations, assigns, predecessors stockholders, administrators, and related companies.
1.5. City - Means and includes the City of Fort Worth, Texas and its officers, representatives,
agents, servants, and employees.
1.6. Effective Date - Means and includes the date represented in the first paragraph of this
Agreement, which shall be the official date of execution of this Agreement.
1.7. Final Design Deliverables - Means and includes those items set forth in Article 2.5 of this
Agreement that are required for City's review and approval.
1.8. Parties - Means and includes City and Artist.
1.9. 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 prior to proceeding to
the Final Design phase of this Agreement.
1.10. 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.
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Benito Huerta for Design of Public Art for South Main Street Urban Village
1.11. 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 deemed appropriate by the City.
1.12. Project Consultant - Means and includes the design firm/professional(s) hired by City to
design the Site.
1.13. Site - Means and includes South Main Street from Vickery Street to Magnolia Avenue,
which is more particularly described in Exhibit "A," attached hereto and incorporated herein by reference for
all purposes.
1.14. Work - Means and includes the finished object(s) of art and design that are the subject of
this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Preliminary Design and Final Design of the Work and for providing the Preliminary
Design Deliverables and Final Design Deliverables. Services shall be performed in a professional
manner and in strict compliance with all terms and conditions in this Agreement.
b. Artist, in collaboration 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 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 work with the Project Consultant to explore design enhancements that may be integral to
the Project and covered by the construction budget.
f. Artist shall explore concepts for the Work, within the implementation budget set forth in Article 2.3.
g. Artist shall meet and coordinate with Project Consultant 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.
h. Artist shall present the Preliminary Design to Project Stakeholders, the appropriate City staff, 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.
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Benito Huerta for Design of Public Art for South Main Street Urban Village
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 Article 2.3 to
City for approval. Preliminary Design Deliverables shall consist of the following
Two preliminary design 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*
ii. A narrative description of the Artist's concept, proposed materials, fabrication, and
installation methods, timeline for completion and maintenance, and anticipated annual
maintenance requirements;
iii. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for
implementation of a final design of the Work in an amount not exceed FORTY-FOUR
THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($44,200.00), which
includes all costs for materials, labor, fabrication, delivery, installation, insurance,
transportation, remaining Artist's fee, and all other associated costs for the Work; and
iv. Material or fabrication samples and/or prototype models for the Work that show the size and
placement of the Work in relation to the Site, as appropriate.
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 initial input, Artist shall meet with the designated Project
Stakeholders, City staff, 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 disapproves of the Preliminary Design, either in whole or in part, then City shall inform Artist
of each revision to be made to the Preliminary Design. City may require Artist to make such
revisions to the Preliminary Design as City deems necessary in its sole discretion and/or for the
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Benito Huerta for Design of Public Art for South Main Street Urban Village
Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory
agency having jurisdiction over the Site for reasons of safety and security.
f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Preliminary Design in conformance with City's requirements.
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 for work performed per the payment schedule in Article
3 up through the date of termination (See Article 4.4.d)
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.
2.5. Final Desil?n Deliverables
a. If City approves Artist's Preliminary Design and authorizes Artist to proceed to the Final Design
phase of this Agreement, then, within sixty (60) calendar days after City authorizes Artist to proceed
to the Final Design phase, Artist shall provide services and all supplies, materials, and equipment
necessary to provide certain deliverables, as set forth in this Article 2.5 to City for approval. Final
Design Deliverables shall consist of the following:
i. Detailed, design illustrations of the Work for the Site, which shall be 20" x 30" and mounted
on foam core and/or in a high resolution digital format, such as JPEG or TIP files, showing
the proposed Work from two vantage points with at least one illustration showing the Work's
size and placement m relation to the Site.
ii. A final written narrative of the Work, describing the following (1) the Final Design
concepts and timeline for completion; (2) proposed materials, fabrication, and installation
methods for all elements of the Work, including information regarding Artist's
subcontractor(s), if any, for the Work; (3) maintenance requirements for all elements of the
Work as dictated by Artist, along with cost estimates for annual maintenance; and (4)
proposed public education program or activity to be conducted by Artist at a time mutually
agreed upon by the Parties.
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iii Comprehensive working drawings, detailing the means of installing all elements of the Work
on the Site, together with other such graphic material to permit City to carry out structural
design review. City will conduct a review of structural design and other related graphic
material prior to installation of the Work. Professional Liability Insurance is required in all
circumstances for on -site artwork requiring engineering and/or architectural services. 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 30-day notice of
cancellation of any policy required hereunder.
iv. A detailed, final budget, on the budget form attached hereto as Exhibit "B " for installation
of the Artwork in an amount not to exceed FORTY-FOUR THOUSAND TWO
HUNDRED DOLLARS AND NO CENTS ($44,200.001, 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, travel.
The detailed budget will be for implementation of the Work through a possible artwork
commission contract with City.
2.6. Final Design Review.
a. Upon completion of the Final Design Deliverables, Artist shall present the Final Design to the
FWAC for review and mput at a regularly scheduled FWAC meeting.
b. After presenting to the FWAC for initial input, Artist shall meet with the designated Stakeholder
Group, City staff, and other City boards or commissions, as appropriate, to present the Final Design,
at a date and time mutually agreed upon, for input
c. Artist shall then present the Final Design to the FWAC for approval at a regularly scheduled FWAC
meeting.
d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30) business
days of Artist's presentation to the FWAC.
e. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist of
each revision to be made to the Final Design. City may require Artist to make such revisions to the
Final Design as City deems necessary in its sole discretion and/or for the Work to comply with
applicable statutes, ordinances, or regulations of any governmental regulatory agency having
jurisdiction over the Site for reasons of safety and security.
f. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Final Design in conformance with City's requirements.
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g. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be
by mutual agreement of the Parties and subject to the procedures and terms in this Article If the
Parties desire not to continue with the resubmission process, then this Agreement will automatically
terminate, with payment for work performed per the payment schedule in Article 3 up through the
date of termination. (See Article 4.4.d)
h Artist shall incorporate any City -approved revisions into the Final Design in conformance with
City's requirements. Upon City approval of the Final Design, Artist shall provide the Final Design
presentation materials to the Contract Manager to become part of the City's Public Art archive.
These documents, models and/or drawings will be retained for archival and exhibition purposes.
Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is
accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for
fabrication, delivery, and installation of the Work shall commence, which shall become part of the
deliverable under any anticipated artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation
Total compensation to Artist under the Agreement shall be in an amount up to FIVE THOUSAND EIGHT
HUNDRED DOLLARS AND NO CENTS ($5.800.00). which shall constitute full compensation for any
and all costs associated with the Agreement, including, but not limited to engineering and consulting fees 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. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) upon execution of this
Agreement.
ii. ONE THOUSAND DOLLARS AND NO CENTS ($1.000.00) within thirty (30) calendar
days after Artist submits all of the Preliminary Design Deliverables required under Article
2.3 of this Agreement and makes a presentation(s) of the Preliminary Design to the FWAC
for approval.
TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) calendar
days after Artist submits all of the Final Design Deliverables required under Article 2.5 of
this Agreement and makes a presentation(s) of the Final Design to the FWAC for approval.
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Benito Huerta for Design of Public Art for South Main Street Urban Village
iv. ONE THOUSAND DOLLARS AND NO CENTS ($1.000.00) within thirty (30) calendar
days after City's approval of the Final Design.
v. City may pay Artist up to EIGHT HUNDRED DOLLARS AND NO CENTS ($800.00)
for engineering and consulting fees in order to fulfill the terms of this Agreement. Such
payment shall be made upon receipt of an invoice from Artist with the original invoice (a
retainer fee of up to 50% is allowed) for such services attached thereto.
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 "C ' 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
TERM AND TERMINATION
4.1. Term
This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such
provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. 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.
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 this 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.
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4.4. 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 for services actually rendered
up to the effective date of termination, 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, includmg, but not limited to finished and unfinished
drawings, sketches, 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 for services actually rendered up to the effective date of termination or require the Artist to
remit to City a suin 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 for services actually rendered, 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 Articles 2.4 and 2.6 then City
shall pay Artist for work performed 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 work
product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches,
photographs, models, and designs, up to the effective date of termination shall become property of
City.
b. Should Artist's Preliminary 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
Artist's intended results and proper credit and acknowledgement shall be given to Artist. This
provision shall survive the termination or expiration of this Agreement.
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ARTICLE 5
DISPUTE RESOLUTION
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.
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
m 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 Artwork 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 Artwork 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 or publicly display the Artwork Design and/or Work for any
non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
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display of the Artwork 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 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.
c. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Artwork 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 Artwork 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 foi m. "O date, Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork 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
WARRANTIIS OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Artwork Design and/or Work shall be the original product of the Artist's sole creative
efforts.
ii 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;
iii Artist has not sold assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Design and/or Work or any copyright related thereto that may affect or impair the
rights granted pursuant to this Agreement;
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iv. Artwork Design and/or Work (or duplicate thereof) have not been accepted for sale
elsewhere;
v. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained m this Agreement; and
vi. All services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordmances, etc., and with all necessary care, skill and diligence.
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
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 HIND 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 ME EXECUTION,
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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 m 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 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.
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 10
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.
Agreement Between the City of Fort Worth and Page 13 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
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 local statutes, ordinances, and regulations applicable to the
performance of Artist's 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 hatter 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 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 United
States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be
construed m 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 their respective successors and permitted assigns.
11.7. 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.
Agreement Between the City of Fort Worth and Page 14 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
11.8 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.
11.9. 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 colmnotion; 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.
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 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.
11.12. Captions
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
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
Agreement Between the City of Fort Worth and Page 15 of 22
Benito Huerta foi Design of Public Art for South Main Street Urban Village
audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier
termination of this Agreement.
11.14. Certified MBE/WBE
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise
(MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by the City under the City's Business Diversity Enterprise Ordinance.
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 Public Information Act
Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as
such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code.
Artist shall clearly indicate to City what information it deems proprietary If City is required to disclose any
documents that may reveal any of Artist's Proprietary Information to third parties under the Texas
Government Code, or by any other legal process, law, rule, or judicial order by a court of competent
jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to
submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those
persons within its organization who have a need to know for purposes of management of this Agreement.
City agrees to inform its employees of the obligations under this paragraph and to enforce rules and
procedures that will prevent any unauthorized disclosure or transfer of information City will use its best
efforts to secure and protect Artist's information in the same manner and to the same degree it protects its
own proprietary information; however, City does not guarantee that any information deemed proprietary by
Artist will be protected from public disclosure if release is required by law. The foregoing obligation
regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this
Agreement.
11.17 Counterparts and Electronic Signatures
This Agreement may be executed in several counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument. A signature received via facsimile or
electronically via email shall be as legally binding for all purposes as an original signature.
11.18. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
Agreement Between the City of Fort Worth and Page 16 of 22
Benito fluerta for Design of Public Art for South Main Street Urban Village
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: Fernando Costa, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to:
Sarah Fullenwider, 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
2. ARTIST Benito Huerta
1128 West Park Row Drive
Arlington, TX 76013
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the
Effective Date.
CITY OF FORT WORTH ARTIST
by:
Fernando Costa
Assistant City Manager
Date: /a/ZAS
Date:
o HueMa
Agreement Between the City of Fort Worth and Page 17 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
( 0
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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: Fernando Costa, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Copies to:
Sarah Fullenwider, 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
2. ARTIST Benito Huerta
1128 West Park Row Drive
Arlington, TX 76013
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the
Effective Date.
CITY OF FORT WORTH ARTIST
by: cars2-44ests€Z
Fernando Costa
Assistant City Manager
Date: !p/iZ A 3 Date:
1
APPROVED AS TO FORM AND LEGALITY:
Assistant At mcy
{
Benito Huerta
FFICk ECORD
CITY SECRETARY
Ft WORTH, TX
Agreement Between the City of Fort Worth and
Benito Huerta for Design of Public Art for South Main Street Urban Village
'-gage I7 of 22 y�_
APPROVED AS TO FORM
AND LEGALITY:
c
Tyler F. VAT
Assistanity Attorney
ATTESTED BY:
Ma J. Kayser
City Secretary
Contract Authorization:
M&C — No M&C Reuuired
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Agreement Between the City of Fort Worth and
Benito Huerta for Design of Public Art for South Main Street Urban Village
Page 18 of 22
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1103
Agreement Between the City of Fort Worth and Page 19 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
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 Between the City of Fort Worth and Page 20 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
Water WarkMethanrsal Devi;es
c hr.I'
G:4t Inueairn? Prolectel Incxeas? In r'c!t ?ate Preparation 12 racr4hs In Futile
TRANSPORTATION
Materials to Fatirkatlon Sit?'
Fin hhe4Work to Iretrdlatlnn Sup'
Il liir'
CoeI ses' Ptcj.:cted lr.:erase In Ccet Tram:•:+tatn5n 12 Mc ahs In Future
BASE' MOUNTING
ea a
Mounting [deices and conlrc.nents
Fc•undati3n' Fccfing
Cnhe+
r: Pt+=palled) Inuerne In C.:u thtunt119^Foatng 12 Ideate In Future
INSTALLATION COSTS
iC Wit*. ptllrt oxhide nllA*Art4 bar Ali Al hurl; InddABArnn. Ir np:k:nhIa. Pleas* atitnn11 A
Isla Iist ca equipment end Iltdlylduat estimate* *Ah this tort
LIGHTING
aboco
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Designers"
Fixtures"
Bulhr
rule Prn. 11 eat itn'
Insta llat kn.
Lost Ilrleases?: Pro)ected Im ease in Gast Lighting 12 tdcaAhs In Future
GRAND TOTAL I Including projected cost In CIO 11 aflyl
mice any necessary notes Nero:
Pr6palod By
Data:
Agreement Between the City of Fort Worth and Page 21 of 22
Benito Huerta for Design of Public Art for South Main Street Urban Village
I :taint .an esclu ,tat511 tutu
1t.l.rtt. tit , It Oft .xtLIC
Exhibit C: Sales Tax Exemption
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I urdcr.tsa;d that I will in 1iab c lilr paymcrt tlf.a`r. tux_ .t'Ilich miry hcctrmz stile
,.Oh the prOrvisatn, rlfc!,e sttkte. 1114`, and/or metropolitan tr:u1>It aNllionty sale
el tr;,,trnllc' rule, repnrtlt„ ktckauspt radtashcs [Jahtlll4" f •rthe set u:!i hi'detenn
islr the usable sterns purchased Or the fair market rental value tof the pocriod ,lftim
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C11 Y OF FORT WORTH. TEXAS
10410 E11RO( hMOR 1'(1\ STRFFT
'Isle: FORT WF)RI11,'I LXAS 76102
[ So comply
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Agreement Between the City of Fort Worth and
Benito Huerta for Design of Public Art for South Main Street Urban Village
Page 22 of 22