HomeMy WebLinkAboutContract 43765 CITY SECRUARY 3f7y
• CONTRACT N0.
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND ANN EKSTROM FOR ARTWORK DESIGN OF PUBLIC ART FOR
BOMBER HEIGHTS
This Agreement is entered into this J day of , 2012, 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 Ann Ekstrom, an individual, of 3202 Greene Avenue, Fort
Worth, Texas 76109. 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, allocated from the 2004 Capital Improvement Program (CIP) as part of the Long-
Range Public Art Plan for the 2004 CIP approved by the Fort Worth City Council on May 17, 2005, are
funds for the design and production of artwork integrated into neighborhood streets in conjunction with street
improvements in Council District 3 (Proposition 1);
WHEREAS, the City has constructed improvements to Fairfax, Pamela, and Penrose Streets in the
Bomber Heights Neighborhood in Council District 3 in west Fort Worth,Texas 76116;
WHEREAS, the Long Range Public Art Plan for the 2004 CIP pooled the available public art funds
for artwork at the intersection of Penrose Avenue and Vickery Boulevard(M&C G-14801, May 17, 2005);
WHEREAS, the Artist was selected by the City through a selection process conducted by the
Contract Manager,with oversight of the Fort Worth Art Commission("FWAC")to design, fabricate, deliver,
and install a gateway monument and functional benches to be located the City right-of-way at the
OFFICIAL RECORD
CITY SECRETARY
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intersection of Penrose and Vickery and to provide the design for a neighborhood identification street sign
topper;
WHEREAS, on April 21, 2009,the City and Artist entered into an agreement for the final design of
the above-stated proposal (Fort Worth City Secretary Contract No. 38459) with the expectation that Artist
may fabricate her final design through a subsequent artwork commission contract;
WHEREAS, pursuant to section 2.1 A(a) City Secretary Contract(CSC)No. 3 84591, City paid Artist
$1,500.00 and agreed to pay Artist another $570.00 within 30 days after the City notified the Artist of its
approval of the Artist's final design;
WHEREAS, the Artist submitted her final design to the City for approval; however, the City could
not approve of the Artist's final design because it subsequently learned that the initial proposed location of
the Work was actually located in the City of Benbrook, Texas;
WHEREAS, as a result, City had to revise the proposed location of the Work to a new site located
in Fort Worth at South Z. Boaz Park in Bomber Heights neighborhood;
WHEREAS, the relocation of the site has changed the project in such a way that the FWAC has
recommended that Artist develop a new design for incorporation into the new Site, which may integrate
some of the same design concepts contained in the Preliminary Design and Initial Final Design;
WHEREAS, the City and Artist have also agreed that the City will hire another person or entity to
fabricate the Artist's Final Design, which materially affects the future rights of the Parties as to the Final
Design product;
WHEREAS, because the relocation of the Site has materially changed the design concept, and
because the future rights of the parties have substantially changed, the Artist and City wish to enter into a
new agreement rather than amend the existing Fort Worth City Secretary Contract (CSC) No. 38459 to
prevent any confusion as to the expectations and rights of the parties moving forward;
WHEREAS, the Parties desire to simultaneously terminate CSC 38459 and enter into this
Agreement to develop an Artwork Design for the Site; and
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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:
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 Ann
Ekstrom for Artwork Design of public art for the Site.
1.2. Artist— Means and includes Ann Ekstrom and/or her heirs, executors, administrators, legal
representatives, successors, agents, subarti sts, contractors, and assigns.
1.3. Artwork Design—Means the Artist's final, proposed design of the Work for the Site,
which may integrate some of the same design concepts contained in the Preliminary Design and
Initial Final Design, and includes, but is not limited to, all 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. Artwork Design Deliverables — Means and includes those items set forth in Article 3.4 of
this Agreement that are required for City's review and approval.
195. 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.
1.7. 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.
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1080 Initial Final Design — Means the Artist's proposed design created pursuant to CSC 38459,
which is attached hereto as Exhibit A and incorporated herein for all purposes, and includes, but is not
limited to, all drawings, sketches, prototypes, maquettes, models, and the like that were created by Artist in
connection with CSC 38459, or the like that were related, directly or indirectly,to CSC 38459.
1.90 Parties—Means and includes City and Artist.
1.10. Preliminary Design—Means and includes the design attached hereto as Exhibit 13, which is
incorporated herein for all purpose, and all preliminary drawings, sketches, prototypes, maquettes, models,
narrative descriptions, budget estimates, and the like that were created by Artist in connection with any
agreement for the Work or the work as defined in City Secretary Contract No. 38459.
1.11. Project — Means and includes the capital improvement or public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
1.12. Site--Means and includes South Z. Boaz Park—Bomber Heights, which is more particularly
described in Exhibit C, attached hereto and incorporated herein by reference for all purposes.
1.13. 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
TERMINATION OF CSC 38459
The Parties hereby terminate Fort Worth City Secretary Contract No. 38459 in favor of this
Agreement with the understanding that this termination shall not affect any survival provisions
contained in CSC 38459, including, but not limited to, those reserved in Article 10.15.
ARTICLE 3
SCOPE of SERVICES AND DELIVERABLES
3.1. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing an Artwork Design of the Work and for providing the Artwork Design Deliverables.
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Services shall be performed in a professional manner and in strict compliance with all terms and
conditions in this Agreement.
b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the
Work, subject to review and input from the Bomber Heights Neighborhood Association and approval
by City as set forth in this Agreement.
C. The exact location at the Site where the Work will be installed shall be determined by City.
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 consult with the City's selected fabricator to ensure that the Artwork Design may be
implemented within the implementation budget.
f. Artist shall coordinate with City,as necessary,to ensure proper integration of the Work into the Site.
g. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the Work from said conservator to the Contract Manager.
h. Artist shall present the Artwork Design to the appropriate City committee, City staff, Bomber
Heights Neighborhood Association, 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.
3.2. -Implementation of Artwork Desi n
Artist understands that this Agreement is for design only. The Work shall be fabricated and installed by
another entity selected through a process overseen by City. Artist shall develop an Artwork Design that is
financially feasible relative to the budget for implementation, which is on the budget form attached hereto as
Exhibit D, based upon consultation with the City-selected fabricator It is understood that the total budget for
implementation of the Artwork Design is estimated to be FIFTEEN THOUSAND NINE HUNDRED
SEVENTY-ONE DOLLARS AND NO CENTS C115,971.00), which includes all costs for materials, labor,
fabrication, delivery, installation, insurance, transportation, travel, and all other associated costs for the
completion of the Work.
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3.3. Ci 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.
3.4. Artwork Design Deliverables
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 3.4 to City for
approval. Artwork Design Deliverables shall consist of the following:
a. Final illustrations of the Work that show the entry monument and bench size and location(s)
in relation to the Site, provided either as high resolution digital images Opeg or tiff) or as
illustrations mounted on 20" x 30" boards, as well as a final drawing to scale of the
neighborhood identification street sign topper design. [NOTE; The illustrations and model
provided during the proposal phase of this project may fuffill this requirement provided
there are no changes to the design].
b. A narrative description of the Artist's concept, proposed materials, fabrication and
installation methods, and maintenance requirements for all elements of the Work.
C. Final budget for each element of the Work, with written estimates attached for supplies and
services provided by others on the budget form hereto as Exhibit D.
d. Artist shall provide comprehensive working drawings, detailing the means of installing all
elements of the Work on the Site, together with other such graphic material as may be
requested by City to permit City to carry out structural design review. Upon City's request,
these drawings must be signed and stamped by an engineer and/or architect licensed to work
in the State of Texas as required by City, and Artist will obtain and furnish to the Contract
Manager certificates of professional liability insurance from each such licensed professional
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and will require the City to be named as a "certif cate holder" entitled to notice of
cancellation/nonrenewal in accordance with standard practices. Artist shall not be liable for
the use of the drawings submitted under this section for any use other than the Artwork
Design.
e. Scaled drawings of the graphics to be etched into each bench and entry monument for use in
making stencils to be used during fabrication.
3.5. Final Design Review.
a. Upon completion of the Artwork Design Deliverables, Artist shall meet with the designated
community group, City staff, and other City boards or commissions, as appropriate, to present the
Artwork Design, at a date and time mutually agreed upon, for input.
b. Artist shall present the Artwork Design to the FWAC for approval at a regularly scheduled FWAC
meeting.
C. City shall notify Artist of its approval, or disapproval, of the Artwork Design within thirty (30)
business days of Artist's presentation to the FWAC.
d. If City disapproves of the Artwork Design, either in whole or in part, then City shall inform Artist of
each revision to be made to the Artwork Design. City may require Artist to make such revisions to
the Artwork 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.
e. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Artwork Design in conformance with City's requirements.
f. If City disapproves of the resubmitted Artwork Design, any further Artwork 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
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automatically terminate, with payment for work performed per the payment schedule in Article 4 up
through the date of termination. (See Article 5.4.d)
g
Upon City approval of the Artwork Design, any revisions made to aCity-approved Artwork Design
shall become part of the Artwork Design. Artist shall incorporate any City-approved revisions into
the final design in conformance with City's requirements. Artist shall provide the Artwork 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.
ARTICLE 4
COMPENSATION AND PAYMENT SCHEDULE
4.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed FOUR THOUSAND SIX HUNDRED
FORTY DOLLARS AND NO CENTS ($4.,640.00),, which shall constitute full compensation for any and
all costs associated with this 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.
4.2. Pa ment Schedule
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:
a. ONE THOUSAND FIVE HUNDRED SEVENTY DOLLARS AND NO CENTS
($1,570.0 within thirty (30) calendar days after Artist submits all of the Artwork Design
Deliverables required under Article 3.4 of this Agreement and makes a presentation of the
Artwork Design to the community.
b. ONE THOUSAND SEVENTY DOLLARS AND NO CENTS $1,070.00 within thirty
(30) days after City notifies the Artist of its approval of the Artwork Design (see Section
5.5).
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C. City may pay Artist up to TWO THOUSAND DOLLARS AND NO CENTS_($2.A00.00) for
engineering and consulting fees in order to fulfill the terms of this Agreement. Such P a y ment 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.
4.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon
the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same
form as that attached hereto as Exhibit E for use by Artist in the fulfillment of this Agreement.
4.4. Artist's Ex enses.
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 5
TERM AND TERMINATION
5.1. 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.
5.2. 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.
5.3. 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,
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then the Parties shall first attempt to resolve any disputes arising from this Article 5.3 in accordance with the
dispute resolution process set forth in Article 6. If the Parties cannot resolve the disputes), then the
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disputing a shall thereupon have the right to terminate this Agreement upon the delivery of a written
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"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.
5.4. Termination for Convenience
a. The services to be performed under this Agreement may be terminated by either party, subject to
written notice submitted thirty (3 0) calendar days before termination., specifying the grounds for
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, including, 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 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 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.
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d. If termination is by mutual agreement of the Parties as set forth in Article 3.5 then City shall pay
Artist for work performed per the payment schedule in Article 4 up through the date of termination.
City shall have the right to possession and transfer of all work product produced b y Artist under this
Agreement, including, but not limited to, finished and unfinished drawings, sketches, hoto ra hs
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models,and designs, up to the effective date of termination
5.5. Incavacity 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 Artwork Design have been approved, in the event of termination under this Article
5.59 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.
ARTICLE 6
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 proc°ss. 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 (1 D) 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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If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice
des then the Parties may submit the matter to non-binding mediation upon written consent of the
dispute,of the p ,
authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and
Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be
in writing, and shall request that the mediation commence not less than fifteen (15)or more than forty-five (45)
calendar days following the date of request,except upon Agreement of the Parties. In the event City and Artists
are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30)
calendar days following the date of the request for mediation,then all the conditions precedent in this article shall
be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for
any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement
reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No
provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes
consent to sue. If the Parties cannot resolve the dispute through mediation,then either party shall have the right
to exercise any and all remedies available under law regarding the dispute.(See Article 5.3)
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1 General
Upon final payment by the City to Artist, City shall take title to the Preliminary Design, Initial Final Design,
Artwork Design, Work, and all other work product under this Agreement or any prior agreement for the
Work,, including, but not limited to, all documents and/or drawings that constitute or are components of the
Preliminary Design, Initial Final Design, Artwork Design and/or Work, without restriction on future use,
except as provided below.
7.2 Copyright Ownership.
Artist retains all rights under the Copyright Act of 1 975, 17 U.S.C. Section 101 et seq., as the sole author of
the work for the duration of the copyright
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7.3 Re rod uction Rights.
a. In view of the intention that the Preliminary Design, Initial Final Design, Artwork Design and Work
be unique, Artist shall not make any additional exact duplicate reproductions of the Preliminary
Design, Initial Final Design, Artwork Design or Work nor shall Artist grant permission to others to
do so except with the express written permission of City. However, nothing herein shall prevent
Artist from creating future artworks in Artist's manner and style of artistic expression.
b. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Preliminary Design, Initial Final Design, Artwork
Design and/or Work, except as those rights are limited by this Agreement.
C. Artist understands and acknowledges that City will fabricate or hire another person or entity to
fabricate the Artwork Design and/or Work and install the Work under a separate contract. Due
regard shall be made for Artist's intended results and proper credit and acknowledgement shall be
given to Artist.
d. Artist grants to City an exclusive, absolute, and unrestricted right and license to fabricate or hire
another person or entity to fabricate the Work as reproductions or as derivative works based on the
Artwork Design. City shall own full right and title, excluding any rights of copyright, to any
reproductions or derivative works created by City.
e. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of
the Preliminary Design, initial Final Design, Artwork Design and/or Work and accompanying
materials for any municipal purpose.
f. Artist also grants to the City an exclusive, perpetual, and irrevocable license to graphically depict or
display the Preliminary Design, Initial Final Design, Artwork Design and/or Work for any non-
commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of
the Preliminary Design, Initial Final Design, 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
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the P ublic, or whether revenue is otherwise received by City, shall be deemed a non-commercial
purpose.
g. Notwithstanding anything to the contrary, Artist agrees and understands that nothing in this
paragraph shall affect or limit City's exclusive, absolute, and unrestricted rights incidental to City's
full ownership of the Preliminary Design, Initial Final Design, Artwork Design and/or Work to alter,
change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in
whole or in part, the Preliminary Design, Initial Final Design, Artwork Design and/or Work when
City deems it necessary within its discretion, in order to otherwise exercise City's powers and
responsibility in regard to public works and improvements, in furtherance of City's operations or for
any other reason.
h. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or
resume use of reproductions to give acknowledgment to City in substantially the following form:
"an original artwork commissioned by and in the public art collection of the City of Fort Worth,
Texas."
L 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.
j. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
ARTICLE 8
ARTIST'S RIGHTS
8.1. Identification.
Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fw ublicart.org)
and a permanent plaque at the site.
8.2. Maintenance.
City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work.
City shall reasonably assure that the Work is properly maintained and protected, taking into account the
maintenance instructions provided by the City-selected fabricator.
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8.3. Re airs and Restoration.
a. City shall have the right to determine when and if repairs and restorations to the Work will be made.
During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all
major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval
for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any
intended repair or restoration, City shall have the right to make such repair or restoration. To the
extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to personally
supervise major repairs and restorations and shall be paid a reasonable fee for any such services,
provided that City and Artist shall agree, in writing, prior to commencement of any significant
repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or
supervise the repairs and restorations, City shall have the right to choose another entity or person to
assist with the restoration and/or repairs or make said repairs by City.
b. All repairs and restorations shall be made in accordance with recognized conservation standards (in
accordance with the American Institute of Conservation (AIQ Code of Ethics and Guidelines for
Practice)and/or construction standards, including, but not limited to, any standards set forth by City.
C. City may require Artist to submit professional documents supporting Artist's proposal for repairs and
restorations prior to commencement of repairs or restorations.
d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to
prevent risks to the public, such repairs shall be undertaken or arranged by City without advance
notice to Artist,and such repairs shall not be deemed to constitute artistic alteration.
8.4. Alteration of the work or of the Site.
a. In the event that the Work is incorporated into a building, structure or realty, the installation of the
Work may subject it to destruction, distortion, mutilation or other modification by reason of its
removal. If removal of the Work would damage either the Work or the Site, City shall have the right
to remove the Work by any means, including destruction, in performing maintenance, repair,
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renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may
give Artist written notice of its intent to take such action under this paragraph.
b. In the event that the work is freestanding, or incorporated into a building, structure or realty such
that it may be removed without damaging or destroying the work or the building or structure, Artist
may be given written notice and ninety (90) days to remove the Work at his or her sole expense.
Upon Artist's failure to remove the work, City shall have the right to remove and dispose of the
Work by any means, including its destruction.
C. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in
paragraphs a. and b. above.
d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as
that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship
on the grounds stated in this paragraph.
e. City shall, at all times, have the right to move the Work, or remove some or all of them from public
display. City shall also have the right to sell or trade the Work.
8.5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition of the
Work.
8.6. Artist's Address.
Artist shall notify City of changes in the address set forth in Article 14. The failure to do so, if such failure
prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce
these provisions of Article 8 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.
8.7. Additional Rijzhts and Remedies.
Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies
available to Artist under the law, which may now or in the future be applicable.
Agreement Between the City of Fort Worth and Page 16 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
ARTICLE 9
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
a. Artist owns legal title and copyright in and to the Preliminary Design, Initial Final Design, Artwork
Design and/or work such that Artist can make the grant of rights contained in this Agreement;
b. Preliminary Design, Initial Final Design, Artwork Design and/or Work shall be the original product
of Artist's sole creative efforts.
C. Preliminary Design, Initial Final Design, Artwork Design and/or Work are and will be unique and
original, and do not infringe upon any copyright or the rights of any person;
d. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Preliminary
Design, Initial Final Design, Artwork Design and/or Work or any copyright related thereto that may
affect or impair the rights granted pursuant to this Agreement;
e. Preliminary Design, Initial Final Design, Artwork Design and/or Work (or duplicate thereof) have
not been accepted for sale elsewhere;
f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights
contained in this Agreement; and
g. 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 to
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,
Agreement Between the City of Fort worth and Page 17 of 31
Ann.Ekstrom for Artwork Design of Public Art for Bomber Heights
agents, employees and subcontractors, and doctrine of respondent superior has no application as between
City and Artist.
ARTICLE I I
INDEMNIFICATION
11.1. Indemnily
i. ARTIST COVENANTS AND AGREES TO 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-9 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 ACT, OMISSION, OR
ERROR 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.
ii. 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.
iii. 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.
11.2. Intellectual Provedy
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 ail responsibilities for paying
Agreement Between the City of Fort Worth and Page 18 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
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 PRELIMINARY DESIGN, INITIAL FINAL DESIGN, ARTWORK
DESIGN, AND/OR WORK 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.
11.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 12
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin,
sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other
prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and
warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall
comply with all applicable laws and regulations in any employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be
debarred from further agreements with City.
Agreement Between the City of Fort Worth and Page 19 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
ARTICLE 13
MISCELLANEOUS
13.1. Compliance
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the
performance of Artist's services under this Agreement.
13.2. _ Entire Agreement
This writing embodies the entire agreement and understanding between the Parties hereto, and there are no
other agreements and understandings, oral or written, with reference to the subject matter hereof that are not
merged herein and superseded hereby.
13.3. Amendments
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective
unless made in writing and signed by both parties hereto and approved by appropriate action of City.
13.4. waiver
No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent
default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for
any period after a default shall not be deemed a waiver of any right or acceptance of defective performance.
13.5. Governing Law and Venue
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
13.5. 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.
Agreement Between the City of Fort worth and Page 20 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
13.7. No Third-Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful
successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person
or entity.
13.8 Seyerabil ity
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable,the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected or impaired.
13.9. Force Ma eure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions; transportation problems; or any other circumstances which are reasonably
beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the
same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so
obligated or permitted shall be excused from doing or performing the same during such period of delay, so
that the time period applicable to such design or construction requirement shall be extended for a period of
time equal to the period such party was delayed.
13.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
13.11. _ Fiscal Fundingout
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
Agreement Between the City of Fort Worth and Page 21 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
13.12. Captions
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
13.13 Ri ht 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 North, 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.
13.14.Certified MBEIWBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise
(MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by the City under the City's Business Diversity Enterprise Ordinance.
13.15 Survival Provision
The provisions contained in Articles 7 (ownership and Intellectual Property Rights), 9 (Warranties of Title
and Copyright), 10 (Artist as an Independent Contractor), and II (Indemnification) shall survive the
termination or expiration of this Agreement.
13.16 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
Agreement Between the City of Fort Worth and Page 22 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
w
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.
13.1.7 Counterparts and Electronic Signatures
This Agreement may be executed in several counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument. A signature received via facsimile or
electronically via email shall be as legally binding for all purposes as an original signature.
13.18. Time Extensions
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in this Agreement.
ARTICLE 14
NOTICES
All notices, requests, demands,and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid,as follows:
Agreement Between the City of Fort Worth and Page 23 of 31.
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
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 Throckrnorton 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 Ann Ekstrom
3202 Greene Avenue
Fort Worth, Texas 76109
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Agreement Between the City of Fort Worth and Page 24 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective on the Effective
Date.
CITY OF FORT WORTH ANN EKSTROM
by:—%
Fernando Costa Ann Ekstrom
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler F. Mach
Assistant City Attorney
ATTESTED BY: ,o'�'oF Foq���
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Mary J. Kayser � °0 o °� dd
City Secretary � 0000000000*q'
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Contract Authorization:
M&C—No M&C Required
OFFICIAL RECORD
CITY SECRETARY
FTT, WORTH,TX
Agreement Between the City of Fort Worth and Page 25 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
Exhibit A: The Initial Final Design
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Agreement Between the City of Fort worth and Page 26 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
i
Exhibit B: The Preliminary Design
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Agreement Between the City of Fort Worth and Page 27 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
Exhibit C: The Site
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Agreement Between the City of Fort Worth and Page 28 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
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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 1 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$_per hour)Total
Subcontracted Labor*(Total)
Facility/Equipment Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA,City of Fort Worth or others)
Test Drilling*
Removal*
Landsca ping/Irrigation*
Electrical Modifications*
Water Work/Mechanical Devices
Other*
(Revised May 2411)
Agreement Between the City of Fort Worth and Page,29 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
r
TRANSPORTATION
i edah to FMWafiM Sftf
FMr WCA to InSURafim SM*
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ASEMOUNTIN
Base
np Devim aM Compowft
FioWFooti
Othw
MSTALLATION COSTS
(mss rntmt indude aloe ki meter hmm gisWahm,it apgUable P*ase aftach a
ub"otracted La!
cOpnieN PtentW " UW
Off-d*Poke/Secu**
TrAc Vim*
Starap Facile Rerdrt
City POTM5
Disp1w Devkes
Fweomoftna
Site toratim"
Other*
LIGHTING
Bbs*
lnstafttion*
GRAND TOTAL
Please make&W nece"afy notes here
rep
Date.,
(RoWsed May 2011.1
Agreement Between the City of Fort Worth and Page 30 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights
Exhibit E: Sales Tax Exemption
TEXAS CMUULA'U_E OF kj,VMUj!Q4N
tIon of w s aid w4c taxes,rot the,pusthase 4 taxable items irx-nbW
Mocrotm of IWM$(tw anittaicbW Andcr or Ir oicO N,He Nnhawd:
.;.....;,,.�.-.....-.:.�;;avn=�+xr�nr..�.K.r.,u.,xA:?r». ..q:n,e„H.....r.::Krrr�rr..�m,,.,:-;:•:-.,.-•:ow..}nv..wn.,... ,.... s�. - :ewe a;••.:r•wrr;::.::::.-,..,,...:.:,s:;n.:,a:,�..,,..:::.�,,:,.ntvr.r.:.:ac„r..:.:::-..r..vPrswrr....:.:...::.-,;.-r w.ti•,��w.....�,��:m:tr•:t;;:p.:rz,�
I claim thi exemrsti4m ftw the kajow g gym.
Name :.A .. .mow ('IT'V OF T W0R' M.`MXAS
TEXAS SALES AND USE TAX E R:I IT NUMBER 415 52"
ursdcrAzod QM I will be hab e,for.peel of Wiles taA. .which may hmom due for What,k�comply
with the PMVI. of t'swo,cs�.wuivc MM0fx)Iitm aunsit t v:t tlts, w4 me t*A lit
%ammptn4fer rtdcs reWwdiog exejW, p ,° : %, Lisbt"-tv Ow tax w l be dktcrmtnW by the pnee pad
fix the mxahk ikzts PwcbasW or the fait market mmal value fret the pewitA of tinm used,
I undid that of is a m..isdw)e&w to P c an cxcmptlon ewi catc W the scl l,er(4, taxabte item w
I km)w,at w e of e • hw�'will N.-used in U Inmoor obef thorl that tpow>wd in Thi'g celvirk4w
arA u Pm ct*v i ct Icm.cit y be f ned up k $00 P, f°en 3e.
IMIMMI . -
ITV OF IFORT WORTH.TEXAS
Sumt'Addrvvc 10 T OCK O tON. TREE
"otya SA :Zip 'txk.:-FOR't WORTH.-FOR' TEXAS 761
Sig,"or- k t . unc 11,2.009 phi. 5t
TIUS cwfftcalt 4 *4 t�NMrr a numb to he It' :t-d M�d use tax tt `*LV-tax
e mp r be"dtl It m ,
TIUS ut"i iCat BMW bt fUMthtd kI t.hC PP 11 Do mil"�Cm the%cgll pk*d C t 16iml.G u t the-
ComptriAltr of Public Accv :ti,
Agreement Between the City of Fort Worth and Page 31 of 31
Ann Ekstrom for Artwork Design of Public Art for Bomber Heights