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HomeMy WebLinkAboutContract 55710/ ( I I CITY SECRETARY CONTRACT NO . 5[J \ 0 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND DIXIE FRIEND GAY FOR FINAL DESIGN AND COMMISSION OF PUBLIC ART FOR NORTH Z BOAZ P ARr This Agreement is entered into this ~ day of M~ , 2021 , by and between the City of Fort Worth , a home-rule municipal corporation of the State of Texas, acting by and through Feman~o Costa it s duly authorized Assistant City Manager, and Dixie Friend Gay, an individual , located at 1901 I est 14th Street, Houston , TX 77008. City has designated the Arts Council of Fort Worth and Tarrant Count , Inc., to manage thi s Agreement on its behalf. The Contract M a nager shall act through its d es igna ted Public t project manager. WHEREAS , pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Or mances , the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth re s id ents, to commemorate the City's rich cultural and ethnic di ver sity , to integrate the de s ign work b f a rtist s into the deve lopment of the City's capital infrastructure improve ments, and to promote touri s m and e l onomic v itality in the City through the artistic de s ign of public spaces; WHEREAS , funding for thi s Project was a pproved as part of the Public Art Plan for th e 20 8 Bond Program (Proposition D), adopted by the Fort Worth City Council on November 6, 2018 (M&C G 19401), and the project was included in the Fort Worth Public Art Fis ca l Year 2021 Annual Work Plan a d pted by City Council on September 22, 2020 as M&C 20-0678; WHEREAS , on December 14 , 2020, the Fort Worth Art Commission ("FW AC ") appr ved the Artist 's R evised Pre liminary Design for a 20 foot ta ll , Corten steel sculpture titled, On e With the Bee, o I iginally develope d for Foster Park (City Secretary Contract # 54207) WHEREAS , after gathering input from the Project Core Team and Park and Recreation De staff, it ha s been determine d that the artwork will be located at the northern end of the pa rk nea r a new lanned entrance , where it will be easily accessible , highly visible and have the greatest impact with the exact ocation to be s pecified in Final De s ign phase of thi s contract. WHEREAS , City and Artist wish to se t out the terms and conditions under which sa id Work h all be de s igned , fabricated , delivered , and in stalled to promote the integrity of Artist's ideas and state ents as repre se nted by the Work; NOW, THEREFORE , City and Artist for and in consideration of the covenants and agr e ments hereinafter se t forth, the sufficiency of which is hereby acknowledged , agree as follows: ARTICLE 1 ,;;r DEFINITIONS (' l\cCc\\Jt:.O ,. -As u se d in this Agreement, the following terms shall have the meanings as se t forth below: ( \A~'( \ () 101\ . I ..----,--7 ·cl1'f OH0\\\woi1\\ OFF ICIAL R .CORD cU'{S~ent w ith D1 x1e Friend Gay fo r Final Des ign CITY SEC RI TARY and Comrm ss10n of Public Artwork fo r North Z Boaz Park EXECUTION COPY ff. WQR~ ~ 1 TX 1.1. Agreement -Means and includes this Agreement between the City and Artist for Fi I Design and Commission of public artwork for the Site. 1.2. Artist -Means and includes Dixie Friend Gay. 1.3. Artwork Design -Means and includes both the Revised Preliminary Des ign and Fin I Design of the Work, which are defined in 1.3.a . and 1.3 .b. below . 1.3.a. Revised Preliminary Design-Means a ll preliminary drawings , ske tches , p totypes , maquettes , models , n arrative descriptions , budget estimates, and the like that were c eated by Artist in connection with the North Z Boaz Revise d Preliminary Design Contr ct, City Secretary Contract No. 54207 for On e With th e B ee, de pictions of which are attach . d hereto as Exhibit "A" and incorporated herein for all purposes. 1.3.b. Final Design -Means the Artist's final, proposed de s ign and exact location of the I ork for the Site , which is base d upon the approved Re v ise d Preliminary Design and includ s, but is not limited to , all final structural engineering drawing s, ske tche s, prototypes , m qu e tte s, models , and the like that may be created by Artist for On e With the B ee in connec ion with this Agreement, or the like that are related , directly or indirectly , to the Work and sha include Artist's specifications for fabrication and installation of the Work . 1.4. City -Means and includes the City of Fort Worth , Texas. 1.5. Contract Manager -Means a nd include s the Arts Council of Fort Worth and Tarran Inc ., and/or it s officers, directors, or employees . 1.6. Effective Date -Means and includes the date represented m the first paragrap of this Agreement. 1.7. Execution Phase -Means and includes fabrication, delivery, a nd in sta llation of the ork. 1.8. Final Acceptance -Means City's written acknowledgement to Artist that all se fabrication, delivery , and installation of the Work have been completed in accordance with the ter Agreement. 1.9. Final Design Deliverables -Means and includes those items set forth in Article 3. of thi s Agreement th at are required for City's re v iew and approval. 1.10. Parties -Means and includes City and Artist. 1.11. Project -Means and includes the capital impro ve ment/public art development undert king of City for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Core Team -Means and include s the group of community members, gene l.lly 5-7 people , who were invited by the City Council Member to provide input on the project for its dur tion , in accordance with the Fort Worth Public Art Master Plan Update, page 23. Agreement w ith Dixi e Friend Gay for Fina l Des ign and Commission of Public Artwork for North Z Boaz Park EXECUTION COPY 2 of 7 1. 1.13. Site -Means and includes the location in the northern part ofNorth Z Boaz Park reco by the Project Core Team and by the Park and Recrea tion Department as outlined in Section 2. Agreement, which upon approval shall become incorporated into thi s Agreement as the general Sit ended Work. 1.14. Project Stakeholders -Means and includes the a ppropriate appropriate City staff, representative from the Park and Recreation Advisory Board, and the Fort Commission's appointed representative and others as may be appropriate . 1.15. Schedule -Means and includes a written plan of procedure for completion of falJrication, delivery , and in s tallation of the Work, including, but not limited to , th e s ubmi ss ion of progress repor . 1.16. Work -Means and includes the finished object( s) of art and des ign for On e With Th e Bee that are the s ubject of this Agreement, or any intermediary stage of completion of s uch work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2 .1. Artist Selection. City and Artist acknowledge that on December 14 , 2020, the FWAC voted unanimously to approve the Artist 's Revised Preliminary Des ign for On e With th e Be e, and that the Artist be retained to develop a Fina Design based upon the approved Revi sed Preliminary Des ign , for public artwork to be incorporated into the ite, and, upon City approval , fabricate, deli ve r, and install the Work at the Site , and is the basis for execu ing this Agreement with Artist. 2 .2 . Scope of Services. a . Artist shall perform all serv ices and will furnish all supplies, material s, and equipment as n cessary for deve loping the Final Design of the Work and for pro v iding the Final Design Deli erables . Services shall be performed in a professional manner and in strict compliance with all te ms and conditions in this Agreement. b. Artist shall determine the artistic expression, sco pe, design , color, s ize , material , and textu e of the Work, subject to review and input from the Project Core Team and approval by City as et forth in thi s Agreement. c. Artist's Final Des ign for the Work shall consist of a 20 foot tall sculpture in a flow r form fabricated in Corten steel with a 30-inch diameter base, flaring to a 1-foot diameter to ard the top and with a 160-degree opening on one si de of the piece allows the viewer to see th . center pollination of the flower , crafted in stainless steel. d . Artist shall attend remote meetings with appropriate City and Park and Recreation Dep rtment staff for purpose s of risk assessment, safety review , siting of the Work, and permitting. e . Artist shall provide written maintenance recommendations for the Work to the Contract Agreement wi th Di xie Friend Gay for Fi na l Design a nd Comm ission of Public Artwork fo r North Z Bo az Park EXECUT IO N COPY 3 of 7 2 .3 . f. Artist will propose a location for the Work in the northern portion of the park, based n initial input from the Project Core Team and in coordination with the City's Park Department. g. Upon selection of a location for the Work at the Site and upon completion of engineeri g, Artist shall present the Final Design to the FWAC for joint review with the Project Core Team, t e City 's Park Department and other stakeholders . h . Artist shall participate in the artwork dedication and one public education event in Fo t Worth , which may be remote due to the pandemic, at a mutually agreed upon date and time . 1. Artist shall install the Work on date s and times mutually agreed upon by Artist and City. J. Artist shall make up to three (3) trip s to Fort Worth, Texas, to determine siting for the ork, to oversee installation of the Work and if feasible to attend the dedication as indicate , above; however, artist may remotely attend meetings and presentations during Final Design . A ~ditional trips, if required per this Article, may be negotiated and agreed upon in writing by City a Id Artist. k . For the duration of this Agreement, any publicity related to the Work at any stage u ter this Agreement shall be coordinated through the Contract Manager. Artist should get the Contract Manager's consent in writing prior to engaging in publicity for the Work. City Assistance . Upon request by Artist , City s hall promptly furnish all information and materials required by Arti t to the extent that such materials are available . City, upon request by Artist, shall also provi de correct scaled rawings of the Site, if available. 3.1. a. ARTICLE 3 FINAL DESIGN AND EXECUTION OF THE WORK Final Design Deli verables . Within three (3) months after the Execution of this Agreement, Artist shall provide service and all supplies, materials, and equipment necessary to provide certain deliverables , as set forth in thi Article 3 .1 to City for approval. Final Design Deliverables for the Work shall consist of the followin : ( 1) Detailed , design illustrations of the Work for the Site, in a high-resolution digital for at, such as JPEG or TIF file s, s howing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site. (2) A final written narrative of the Work, describing the following: (I) the Final Design oncept and timeline for completion; (2) proposed materials , fabrication, and in s tallation metJI ods for all elements of the Work, including information regarding Artist's subcontractor(s), if ny, for the Work; (3) maintenance requirements for all elements of the Work as dictated b Artist, along with cost estimates for annual maintenance; Agreement with Dixie Friend Gay for Final Design and Commission of Publi c Artwork for North Z Boaz Pa rk EXECUT IO N C OPY 4 of3 3 .2. a. (3) A detailed budget, on the budget form attached hereto as Exhibit "C," for D sign and Implementation (final design, fabrication and installation) of the Work in an amoJnt not to exceed TWO HUNDRED TWO THOUSAND, THREE HUNDRED TWE~VE DOLLARS AND NO CENTS ($202,312 .00), reflecting total costs and inclus ve of a remaining Artist's fee of $6 ,750.00; a contingency of $15,070.00, and any enginee ing fees, travel, materials , labor, fabrication, transportation , construction, insurance , install tion, and all associated costs for the Work under this Agreement. (4) Comprehensive working drawings, detailing the means of installing all elements of he Work on the Site, together with other such graphic material to permit City to carry out r ructural design review. Professional Liability Insurance is required in all circumstances fo on-site artwork requiring engineering and/or architectural services . City will conduct a review of structural design and other related graphic material prior to installation of the Wol k . Upon City 's request, drawings must be signed and stamped by an engineer and/or architec licensed to work in the State of Texas. Artist will provide the Contract Manager a certipcate of insurance for each licensed professional and provide City with a thirty (30) calendar d~y notice of cancellation of any policy required hereunder. Final Design Review . Upon completion and submission of the Final Design Deliverables and acceptance by f on tract Manager, Artist shall present the Final Design to the FW AC for joint review with the Proj ct Core Team, other Project Stakeholders and for the FWAC's approval at a regularly schedule FW AC meeting . The Final Design shall subsequently be shared with City boards or comm1s 10ns , as appropriate. b . City shall notify Artist of its approval, or disapproval , of the Final Design, either in whole o in part , C. within thirty (30) business days of Artist's presentation to the FW AC. If City disapproves of the Final Design , either in whole or in part , then City shall inform L tist in writing of each revision to be made to the Final Design. City may require Artist to make such T visions to the Final Design as City deems necessary in its sole discretion and/or for the Work to com ly with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security . d. 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. e. If City disapproves of the resubmitted Final Design, any further Final Design resubmission 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 auto atically Agreement with Di xie Friend Gay for Final Design and Comm issio n of Public Artwork for North Z Boaz Park EXECUT ION COPY 5 of . 7 terminate, with payment for work performed per the payment schedule in Article 3 up throug the date of termination . (See Article 11.4 .d .) f. Upon City 's approval of the Final Design, any revisions made to a City-approved Final De ign shall become part of the Final Design. Artist s hall incorporate any City-approved revisions into he Final Design in conformance with City 's requirements. g. If Artist's Final Design is approved by City, then Artist 's Final Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the Implementati , n Phase of this Agreement. h. Upon City 's approval of the Final Design, Artist shall provide the Final Design presentation aterials 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 nurposes. Artist 's Final Design and all other work product under this Agreement shall become the pr perty of City, without restriction on future use (see Article 7). 3.3 . a . Execution of the Work. If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Pha le of this Project, then Artist shall furnish to the Contract Manager a written Schedule within two (2) weeks after such authorization by the City. After written approval of the Schedule by City, Artist shall fl bricate, deliver, and install the Work in accordance with such Schedule. Schedule changes ay be accomplished by written agreement between Artist and City . b. City and/or Contract Manager, upon written request, shall have the right to review the Work d ring its fabrication and/or request visual documentation of the fabrication . Artist shall , upon writte request by the City and/or Contract Manager, provide a written progress report detailing the progre s made toward completion of the Work and the remainder of work to be done to complete the Wor . Artist shall comply with any request made by the City and/or Contract Manager pursuant to this within thirty (30) calendar days after receipt of the written request. c . Artist shall complete the fabrication of the Work in accordance with the City-approved Final es1gn . Artist shall present to the Contract Manager, in writing, for further review and approval , any changes in the scope , design, color, size , material , or texture of the Work. The Contract Manage , in its discretion, shall determine whether the changes are significant and whether the changes con orm to the City-approved Final Design. If the Contract Manager, in its sole discretion, determines fhat the changes are significant and do not conform with the City-approved Final Design, then the ontract Manager shall, in light of the Final Design, determine whether a significant change requines City approval. If the Contract Manager determines that the significant change(s) requires City a proval, I then the change(s) may be presented to the FWAC for review and approval at a regularly sche uled or Agree ment with Dixie Fri e nd Ga y for Final Des ign and Commi ssion o f Public Artwork for North Z Boaz Pa rk EXECUTIO N C OPY 6 o f3 3.4. a . special meeting of the FW AC. If any disputes arise thereafter, the Parties shall first attempt t resolve those disputes in accordance with the dispute resolution process set forth in Article 1 of this Agreement. Delivery and Installation. Labor associated with preparing the Site to receive the Work including footings for the Wor · shall be performed by Artist or her subcontractors, and shall be done in accordance with the spec· 1cations jointly agreed to by Artist and the City. b. Artist shall not be responsible for engineering, grading or labor related to City's N Z B , az Park improvement project. c. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is completed and ready for delivery and installation at the Site. d. Artist is responsible for installing all elements of the Work. Artist shall coordinate the instal ation of the Work with City and Contract Manager to ensure proper installation with the Schedule. elivery and installation activities may not commence until written permission is delivered to Artist by he City. e. Should Artist complete the Work in advance of the completion of the Site, Artist shall store t e Work at no expense to City until such a time as both are completed and the Contract Manager notifi s Artist that installation may commence . f. Artist shall be responsible for all costs associated with the materials, fabrication, and instal ation of the Work, including , but not limited to , footing, equipment rentals , transportation, and labor. g. Artist is responsible for obtaining and paying for all necessary permits through a City-a proved contractor as necessary. h. Artist, individually and through its subcontractors, including its fabricator , shall take all n cessary precautions to protect and preserve the integrity and finish of the Site while delivering and i{stalling the Work. If City determines , in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage within fourteen (14) calen ar days afte, installation. Artist, at its own expense, shall have thirty (JO) calendar days from receipt ±City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to rr air the damages to the satisfaction of City within thirty (30) calendar days after receipt of the notice, o within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in ad ition to any and all other rights and remedies available to City at law or in equity. 1. Upon City's request, prior to installation of the Work, Artist shall consult with a quali 1ed art conservator and provide to the Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "D" (Technical and Mai)enance Agreement with Dixie Friend Gay for Final Des ign and Commission of Publi c Artwork for North Z Boaz Park EXECUTION COPY ... ., 3.5 . a. Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work . [NOTE: Th e written instru ctions pro vided during th e final d es ig phase of thi s proj ect may fitlfill all or part of this r equirement to th e ex tent that su ch instru ction s rep es ent th e final Tec hnical and Maint enance R ecord]. Post-installation . Within thirty (30) calendar days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least ten (10) high-resolution digital images (.tiff format) and ten 10) low- resolution digital images (.jpeg format) showing the Work from multiple vantage points as se ected by Contract Manager, to document the Work after the Work is installed. b . Artist shall make his /her best efforts to be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the trans '.f r of the Work to City. City shall u se its best efforts to arrange for publicity for the completed Worf in such art publications and otherwise as may be determined between City and Artist as soon as pr cticable following installation . c. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work, s ch efforts and/or pres s releases must be approved , in advance , by City . 3.6 . a. b . C. Final Acceptance . Artist shall notify City and Contract Manager, in writing, when all services for fabrication , , elivery , and installation of the Work have been completed in accordance with the terms of this Ag I eement. Included in such notice from Artist shall be an affidavit , attached hereto as Exhibit "E" (A fidavit), certifying that all bills relating to s ervices or supplies used in the performance of this Agreem nt have been paid. City shall notify Artist, in writing, of its Final Acceptance of the Work. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notifil ation of Final Acceptance ; or (2) the thirty-fifth (35 th) calendar day after Artist has sent the written notice to City required under this Article 3 .6 unless City , upon receipt of such notice and prior to thee lpiration of the thirty-five (35) calendar day period, gives Artist written notice specifying and de cribing anything that has not been completed pursuant to this Agreement. 3 .7. Risk of Loss . The risk of los s or damage to the Work shall be borne by Artist prior to completed artwork installatio , , and Artist shall take such measures as are necessary to protect the Work from loss or damage until this time , including, but not limited to, the purchase of property loss insurance, except that the risk of loss or da ! age shall be borne by City prior to completed artwork installation during such periods of time as the parti lly or Agreement with Dixi e Fri end Ga y for Fin a l Design and Commi ssion o f Publi c Artwork for North Z Boaz Park EXECUTION C OPY wholly completed Work is in the custody, control or supervision of City or its agents for the pu oses of mo vi ng , s toring , or performing any other ancillary services to the Work. 4 .1. Compensation. ARTICLE4 COMPENSATION AND PAYMENT SCHEDULE Total compensation to Artist under the Agreement shall be in the amount of TWO HUNDRED TWO THOUSAND, THREE HUNDRED TWELVE DOLLARS AND NO CENTS ($202,3 I 2 .00), whi h shall constitute full compensation for any a nd all costs associated with thi s Agreement, including, but n t limited to , engineering and consulting fees , a remaining Artist's fee of $6,750 .00 , in surance , storag costs , a ll tra vel expenses and services p erformed and materi a ls furni s hed by Artist under thi s Agreement, contingency of $15 ,070 .00. Artist and City may amend thi s Agreement to allow for additional if additional services are required. 4.2. a . P ayment Schedule. City agrees to pay Artist in the following in s ta llments set forth below, each in s tallment to r present full and final, non-refunda bl e payment for all services and materials pro v ided prior to the , ue date thereof: 1) THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00 ) upon executio of thi s Agreement. 2) FIVE THOUSAND DOLLARS AND NO CENTS ($5 ,000.00) within thirty (30) d ys after Artist submits the Final D esign Delivera bles , as required in Article 3. I .of thi s Agree makes a presentation of the Final Des ign to the FW AC and Projec t Core Team. 3) TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000 .00) within thirty ( 0) day s after Final Des ign is approved by the FW AC. 4) TWENTY THOUSAND DOLLARS AND NO CENTS ($2 0,000 .00) upon the (i;I ontract Manager's verification that the s teel has been purchased. 5) THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000 .00) upon the ontract Manager's verification that fabrication of the Work is 25% complete. 6) THIRTY THOUSAND DOLLARS AND NO CENTS ($3 0,000.00) upon the I ontract Manager's verification that fabrication of the Work is 50% complete. 7) FORTY THOUSAND DOLLARS AND NO CENTS ($4 0,000.00) upon the ontract Manager 's verification that the Work is complete and re a dy to install. 8) EIGHTEEN THOUSAND DOLLARS AND NO CENTS ($18,000 .00) upon th e ontract Manager 's verification that in stallation of the Work is complete. Agree me nt wi th Di x ie Friend Gay fo r Final Design and Commission of Pu b lic Artwork for North Z Boaz Park EXECUTION COPY 9 of3 9) TEN THOUSAND, FOUR HUNDRED FORTY-TWO DOLLARS AND NO CEN . S ($10,442 .00) within thirty-five (35) calendar days after Final Acceptance and recei ! t by City of such documentation it may require concerning payment of supplies and services endered to Artist. 10) City may pay Artist contingency funds in an amount up to FIFTEEN THOUSAN SEVENTY DOLLARS AND NO CENTS ($15,070.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes in fabrication or installation costs . These contingency funds will include an artist administrative fee of fifteen perc nt (15 %) of the total amount of contingency funds applied for by Atiist . Such payment will J e made upon (i) receipt of supporting documentation by the Contract Manager from the ArL st and (ii) approval by the Contract Manager of the additional costs . 11) City will provide an allowance ofup to NINE THOUSAND DOLLARS AND NO I ENTS ($9000) for engineering and consulting. Such payment shall be made upon receipt o an invoice from Artist with the original invoice (a retainer fee ofup to 50 % is allowed) or such services attached . 12) City will provide a travel allowance of $600 .00 per roundtrip to Fort Worth, Texas, or a total amount up to ONE THOUSAND EIGHT HUNDRED DOLLARS AND NO C}£NTS ($1,800 .00) for travel costs for up to three trips , should the artist be approved by ProJect Manager to participate in-person during design, installation and dedication. This stip nd is provided in accordance with GSA Per Diem Guidelines and shall cover all travel exp nses. 4 .3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due pon the Project. City shall supply Artist with the "Texas Certificate of Exemption ," in substantially the same form as that attached hereto as Exhibit "F" for use by Artist in the fulfillment of this Agreement. 4.4 . Artist's Expenses . Artist shall be responsible for the payments of all expenses incurred during the perfonnance of this Ag eement, including, but not limited to, services, materials , mailing/shipping charges on submissions to Cit and/or Contract Manager, insurance, cost of all travel , and costs for Artist's agents, consultants, and/or e ployees necessary for the proper performance of the services required under this Agreement, and any con ting ncies . 5.1. a . Warranties of Title and Copyright. Artist represents and warrants that: ARTICLE 5 WARRANTIES (l) the Artwork Design and/or Work shall be the original product of Artist's sole creative efforts ; Agreeme nt with Dixi e Fri end Ga y for Final Design and Commi ssion of Publi c Artw ork for North Z Boaz Park EXEC UTION COPY 10 o 37 ... 5.2. a. (2) the Artwork Design and/or Work is and will be unique and original and does not infri ge upon any copyright or the rights of any person ; (3) Artist has not sold , assigned , transferred, licensed, granted, encumbered or uti ized the Artwork Design and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; ( 4) the Artwork Design and/or Work ( or duplicate thereof) has not been accepted for sale elsewhere; (5) the Artwork Design and/or Work is free and clear of any liens from any source what oever; (6) Artist has the full legal power and authority to enter into and perform this Agreeme t and to make the grant of rights contained in this Agreement, including, but not limited to, II rights pertaining to copyright, contained in this Agreement; and (7) all services performed hereunder shall be performed in accordance with all applica , le laws , regulations , ordinances, etc ., and with all necessary care, skill and diligence . Warranties of Quality and Condition. Artist represents and warrants that all work will be performed in accordance with pro essional "workmanlike" standards and free from defective or inferior materials and workmanship (i eluding any defects consisting of "inherent vice ," or qualities that cause or accelerate deterioratio, of the Work) for one (l) year after the date of Final Acceptance . b . Artist represents and warrants that the Work and the materials used are not currently kno n to be C. harmful to public health and safety . If, within one (1) year after Final Acceptance, City observes any breach of warranty describer in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such brel h with reasonable promptness . Artist shall, at the request of City , cure the breach satisfactorily and crsistent with professional conservation standards (in accordance with the American Institute of Cons rvation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards , including, but not limited to , any standards set forth by City, within thirty (30) calendar days after receipt of the written notice, at no expense to City . d. If, within one (l) year after Final Acceptance, City observes any breach of warranty describe in this Article 5 .2 that is not curable by Artist, Artist is responsible for reimbursing City for d mages , expenses , and losses incurred by City as a result of the breach . However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a br . ach for purposes of this Article 5 .2. I e. If, after one ( 1) year from Final Acceptance, City observes any breach of warranty described in this Section 5 .2 that is curable by Artist, City shall give written notice to Artist to make or supervis repairs Agreement with Di x ie Friend Gay for Final Des ign and Commi ssion of Public A rtwork fo r North Z Boaz Park EXECUTION C OPY ... .. or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City , in writin , within thirty (30) calendar days after receipt of the notice as to whether Artist will make or supe ise the repairs or restorations . Should Artist fail to respond within the thirty (30) calendar day dead! ne or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants that: ( l) General routine cleaning and repair of the Work and any associated working par and/or equipment will maintain the Work within an acceptable standard of public display. (2) Foreseeable exposure to the elements and general wear and tear will cau s e the L ork to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display . (3) With general routine cleaning and repair, and within the context of reasonably for seeable exposure to the elements and general wear and tear, the Work will not experience irr parable conditions that do not fall within an acceptable stand ard of public display , including but not limited to , mold , rust , fracturing , staining , chipping , tearing , abrading , and/or peeling (4) Manufacturer 's Warranties . To the extent the Work incorporates products covered by a manufacturer 's warranty , Artist shall provide copies of such warranties to City. g . The foregoing warranties are conditional , and shall be voided by the failure of City to mai tain the Work in accordance with Artist 's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition , Arti s t, in addition to other rights or remedies Ar ist may have in equity or at law , shall have the right to disown the Work as Artist 's creation and reg est that I all credits be removed from the Work and reproductions thereof until the Work 's con ition is satisfactorily repaired . ARTICLE 6 INSURANCE, INDEMNITY, AND RELEASE 6.1. General. Artist shall carry insurance as set out in Exhibit II G," which is attached hereto and incorporated herei for all purposes . Evidence of required insurance shall be submitted to the Contract Manager prior to installat on of the Work on City property. However, if any part of the fabrication process will be conducted on City p operty , then Artist shall s ubmit evidence of required insurance to the Contract Manager prior to performance fthat work. Evidence of subsequent renewals of said insurance is required until City ha s taken possession o the Work . Except as provided in Section 2. 8 hereof, the risk of damage to or loss of the Work shall, duri1 g fabrication and installation but prior to Final Acceptance , shall be solely that of Artist. This risk shall ansfer to City and shall no longer be the responsibility of Artist upon Installation of the Artwork. Ag reement with Di xie Fri end Gay for Fina l Design and Commi ssio n o f Publi c Artwo rk for No rth Z Boaz Park EX EC UTIO N COPY 12 o f 7 I, \ 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. a. General Indemnity. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAIN~ ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTO EY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAlAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, B T NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMI ED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PR~PERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO,fATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF D GES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER RE OR ASSERTED, ARISING ouT OF OR RESULTING FROM THE ACTS, ERRoks, OR OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTO~ AND SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLpYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTIO~ WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT. b . Artist agrees to and shall release City from any and all liability for injury, death, damage, persons or property sustained or caused by Artist in connection with or incidental to performa this Agreement. c . Artist shall require all of its subcontractors to include in their subcontracts a release and inde ity in favor of City in substantially the same form as above. 6.4. Intellectual Property . A1iist agrees to assume full res ponsibility 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 fo paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly ass mes no obligations , implied or otherwise, regarding payment or collection of any such fees or financial obi gations. City specifically does not authorize, permit , or condone the reproduction or use of copyrighted maty ials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FU,THER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTioJ s, OR Agreement with Dixie Friend Gay fo r Final De s ign and Commi ssion of Public Artwork fo r North Z Boaz Park EXECUT IO N CO PY 13 o 37 EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMIT D TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITrs USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COP ~RIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINAL! Y. City expressly assumes no obligation to review or obtain appropriate licensing and all such licen s ing sh 11 be the exclusive obligation of Artist. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7. I. Title. Title to the Work, including , but not limited to , all documents , models and/or drawings that consti e or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and ayment for the Work or pursuant to the applicable termination provision of this Agreement. These documents models and /or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work!, and all other work products under this Agreement shall become the property of City, without restriction on fu re use, except as provided below. 7.2. Copyright Ownership . Artist retains all rights under the Copyright Act of 1976, 17 U.S .C. Section 101 et seq ., as the sole thor of the Work for the duration of the copyright. 7 .3 . Reproduction Rights. a . In view of the intention that the Artwork Design and the Work be unique, Artist shall not ake any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Art st 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 o artistic expression. b. By execution of this Agreement , Artist grants to City an exclusive , perpetual , royalty fi ee , and iITevocable license to graphically depict or publicly display the Artwork Design and Work for any non -commercial purpose whatsoever. For purposes of this limitation , any graphic depiction or display of the Artwork Design and/or the Work intended to promote or benefit City , its public servic s or its public purposes , regard less of whether or not a fee is charged to the public, or whether re enue is otherwise received by City , shall be deemed a non-commercial purpose. Notwithstanding th above limitation , Artist agrees and understands that nothing in this paragraph shall affect or limi City 's absolute , unrestricted rights incidental to City's full ownership of the Work to alter, change , odify , destroy, remove , move , replace , operate , maintain , transport, sell or transfer, in whole or in r1art , the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers Ag re e ment with Di xie Friend G ay for Final Des ig n and C ommissio n o f Public A rtwo rk for No rth Z Boaz Park EXEC UTION C OPY 14 of 3 7 and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. c . All reproductions by City shall contain a credit to Artist and a copyright notice substantial y in the following form:"© date , Artist's name ." d . Unless notified othe1wise by City in writing, Artist shall use Artist's best efforts in any public bowing or resume u se of reproduction s to give acknowledgment to City in substantially the followi g form: "an original artwork commissioned by and in the public art collection of the City of Fo Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Cop rights, a copyright in the Work in Artist's name . f. City is not responsible for any third-party infringement of Artist's copyright and not re s pon ible for protecting the intellectu a l property right s of Artist. 8.1. Id entification . ARTICLE 8 ARTIST'S RIGHTS The Contract Manager s ha ll include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and facilitate the des ign , purchase, a nd in s tallation of a permanent plaque at t , e Site . 8.2. Maintenance. City recognizes th a t maintenance of the Work on a regular basi s is essential to the integrity of the Wok. City shall reasonably assure that the Work is prop erly maintained and protected , taking into ace lunt the maintenance in structions provided by Artist in accordance with Article 3.4 and Exhibit D. 8.3. a. Repairs and Restoration. City shall have the right to determine when and ifrepairs and restorations to the Work will be made. b . All repairs and restorations shall be made in accordance with recognized conse ation standards (in accordance with the American Institute of Conservation (AIC) Code o and Guidelines for Practice) and/or construction standards, including, but not limited standards set forth by City. c. When emergency repairs are necessary to prevent the loss of or further damage to th , Work I or to prevent risks to the public , such repairs shall be undertaken or arranged by I ity as appropriate and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site . Agreement with Dixie Friend Gay for Final Desig n and Commission of Public Artwork for North Z Boa z Park EXECUT ION COPY 15 of 7 a. City agrees that it will not willfully destroy, damage, or modify the Work, except as provided in Article 8.4(b) and 8.4(c) below. b. In the event that the City determines the Site will be altered, sold, or no longer use by City and the Work is integrated into a building, structure or realty, City shall have the right to remove the Work by any means , including destruction. City may give Artist written otice of its intent to take such action under this Article 8.4. c. In the event that the City determines the Site will be altered , sold , or no longer used by City and the Work is freestanding, or incorporated into a building, structure or realty suah that it may be removed without damaging or destroying the Work or the building or struc e, City at its sole discretion may relocate, sell, or store the Work. If City chooses not to reloc te , sell, or store the Work, Artist may be given written notice and ninety (90) days to remove t l e Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have ,he right to remove and dispose of the Work by any means , including its destruction. d. In the event the Work is substantially damaged or altered , City shall no longer repre ent the Work as that of Artist if Artist gives written notice to City that it is the position of rtist to deny authorship on the grounds stated in this Article 8.4. e. City shall, at all times , have the right to move the Work, or remove it from public isplay . 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 15 . The failure to do so , if sue 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 pro v isi n , City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights . 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedie s ailable to Artist under the law, which may now or in the future be applicable . ARTICLE 9 ARTIST AS INDEPENDENT CONTRACTOR Ag reement w ith Di xie Fri end Gay for Fin a l Des ig n and Commi ssio n o f Publi c Artwo rk for No rth Z Boaz Park EXECUTION C OPY 16 o f 37 Artist shall perform all work and services hereunder as an independent contractor, and not as an offic r, 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 fo I the acts and omissions of his/her officers, agents, employees, and subcontractors . Nothing herein shall be c nstrued as creating a partnership or joint venture between City and Artist, his/her officers , agents, emplo ees and subcontractors , and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided hat said subcontracting shall not adversely affect the design , appearance or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreem nt shall be expressly subject to the terms of this Agreement. Artist shall provide information regartling all subcontractors, including its fabricator, along with a copy of the subcontract between Artist a l d each subcontractor to the Contract Manager. ARTICLE 11 TERM AND TERMlNA TION 11. 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 A1iist by City. 11 .2 . Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or o erw,se were offered or given by Artist or any agent or representative to any City or Contract Manager o 1cial or employee with a view toward securing favorable treatment with respect to the awarding, amending , or making of any determinations with respect to this performance of this Agreement. In the event this Agre ment is canceled by the City, pursuant to this Article 11 .2, City shall be entitled, in addition to any other ri1hts and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providi g such gratuities. 11.3. Death or Incapacity of Artist. a. ln 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 ist 's successors for all work and services performed prior to death or incapacity. All work product p 1oduced 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. Agreement with Dixi e Friend Gay for Final Design and Commission of Public Artwork for North Z Boaz Park EXECUT IO N COPY 17 of 37 b . In the event of termination under this Article 11.3 , City shall have the right to complete the Work, if feasible . Due regard shall be made for Artist's intended results and proper er dit and acknowledgement shall be given to Artist. This provision shall survive the termination or e l piration of this Agreement. 11 .4 . Termination for Convenience. a . The services to be performed under this Agreement may be terminated by either party, subje t 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 reryiered up to the effective date of termination in accordance with the payment schedule in Article 4 as delermined in City 's sole discretion . Artist shall continue to provide the City with services requested by f ity and in accordance with this Agreement up to the effective date of termination . Upon payment in , II 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 u der this Agreement, including, but not limited to , finished and unfinished drawings , sketches, photographs, models , designs and the Work up to the effective date of termination. c. If termination is for the convenience of Artist, City shall have the right , in its sole discretio , to pay Artist pursuant to the payment provision in Article 4 or require the Artist to remit to City a s m equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effectiv date of termination , as determined in City's sole discretion. If City chooses to pay Artist, then all wor produced by Artist under this Agreement, including, but not limited to , finished and u drawings, sketches, photographs, models, designs , the Work up to the effective date of ter ination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 11 .4.a, then City s all pay Artist per the payment schedule in Article 4 as determined in City 's sole discretion up through the date of termination . City shall have the right to possession and transfer of all work product pro ced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings , s etches, photographs, models, and designs, up to the effective date of termination . 11.5. Termination for Cause . a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the erms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations materi II to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Articl 9 11.5 in accordance with the dispute resolution process set forth in Article 12 of this Agreement. If th d Parties cannot resolve the dispute(s ), then the disputing party shall thereupon have the right to termi I ate this Ag re e ment with Di xie Friend Gay for Fin a l Des ign and Commi ssion of Public Artwork for North Z Boaz Park EXEC UTION COPY I 8 of37 Agreement upon the delivery of a written "Notice of Termination" specifying the gr unds for termination . Termination of this Agreement under this Article 11 .5 shall not relieve the party n default of any liability for damages resulting from a breach or a v iolation of the terms of this Agree , ent. b . If City terminate s this Agreement pursuant to thi s Article l 1.5 , then City shall hav e th , right to complete the Work in accordance with the Artwork Des ign , which shall be in addition to a y and all other rights and remedies available to City at law or in equity . If City exercises its right to complete the Work, then , notwiths tanding anything to the contrary: ( l) title to the Artwork Design, Work, and/or all other work product under this Agreeme t and/or any prior agreement for the Work, including, but not limited to , all document , and/or I drawings that constitute or are components of the Artwork Design and/or Work, shal I pass to City and become the property of City, without restriction on future use , immediately upon the City 's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all ot er work product under this Agreement and/or any prior agreement for the Work, including but not limited to, those stated under Articles 7 (Ownership and Intellectual Property Righ s) and 8 (Artist 's Rights) of this Agreement; (3) Artist automatically s e lls , assigns , and transfers to City, the entire right , title , and i terest in and to the Artwork Design , Work, and/or all other work product under this Agreeme tor any prior agreement for the Work that the Artist has under the Copyright Act of 1976 , I U .S.C . SS 10 l et. seq ., and all the rights and privileges appertaining thereto , including, without limitation, the exclusi v e right to reproduce , prep are derivative works b a sed upon , distribute copies to the public as well a s display said Artwork Design and/or Work, the same t I be held and employed by City for City's own benefit and use and for the benefit and u se f City 's successors, assigns , and legal representative s forever ; (4) Artist shall have no copyright or other property interest in the Artwork Design, Wor , and/or any other work product under this Agreement and/or any prior agreement for the Wo k ; and (5) Artist , pursuant to this A1ticle 11.5 , hereby acknowledges the rights of attribution and ntegrity conferred by Section l 06A(a) of Title 17 of the U .S . Code, (as amended or as it may be amended in the future) Titled "Vi sual Artists Rights Act ," and any other right oft nature granted by U .S . federal , state, or foreign laws , and of his/her own free act hereb such rights with respect to any and all uses of the Artwork Design, Work, and/or allot product under this Agreement and/or any prior agreement as a public artwork. Nothin in this Article 11.5 shall affect the survival of Articles 5 (Warranties), 6 (Insurance and Ind mnity), Agree ment with Di xie Fri e nd Gay for Fin a l Desig n and Commi ssio n o f Publi c Artwork fo r No rth Z Boaz Park EXECUTIO N C OPY 19 o 37 9 (Artist as an Independent Contractor), and 14.13 (Right to Audit) of this Agreeme t , which shall remain in full force and effect upon termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute , or other matter in question for breach of duty , ob igations , services rendered or any wan-anty that arises under this Agreement, the Parties shall first attempt t resolve the se issues through this dispute resolution proces s. The disputing party shall notify the othe 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 reaso ns for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, ma \, 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 wi th this Agreement. b . If the Parties fail to resolve the dispute within sixty ( 60) calendar days of the date of receipt oft e notice of the di sp ute , 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. Re uest for mediation shall be in writing, and shall request that the mediation commence not le ss than fiftee1 (15) or more than forty-five ( 45) calendar days following the date of request, except upon written AgreJ ment of the Parties . In the event City and Artist are unable to agree to a date for the mediation or to the id ntity of a mutually agreed mediator within thirty (30) calendar days following the date of the request form diation , then all the conditions precedent in this article shall be deemed to have occmTed. The Patties sh hll share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising uf er this Agreement shall be in Tan-ant County, Texas . Any agreement reached in mediation shall be enforceable I as a settlement agreement in any court having jurisdiction . No provision of thi s agreement shall waive any immunity or defens e. No provision of this Agreement constitutes consent to sue. If the Partie l 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 l I .5) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national ori m , sex, age, religion , di sa bility , marital status, citizenship status, sexual orientation or any other prr ibited criteria in any employment decisions relating to this Agreement, and Artist repre se nts and arrants that to the extent required by applicable laws, it is an equal opportunity employer and shall omply with all applicable laws and regulations in any employment decisions . Agree me nt with Di xie Friend Gay for Final Design and Comm issio n of Public Artwork for North Z Boaz Park EXECUTION COPY 20 of 7 b. In the event of Artist noncompliance with the nondiscrimination clauses of thi s Agree ent, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be ebarred from further agreements with City . 14.1. Compliance. ARTICLE 14 MISCELLANEOUS Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicab e to the performance of Artist's services under this Agreement. 14.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and the e are no other agreements and understandings, oral or written, with reference to the subject matter hereof th t are not merged herein and superseded hereby . 14 .3. Amendments. No alteration, change , modification , or amendment of the terms of this Agreement shall be valid or ffective unless made in writing and signed by both parties hereto and approved by appropriate action of City . 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subseque default of any terms , covenants , and conditions of this Agreement. The payment or acceptance of fees for an period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 14 .5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis ofany provision of this Ag eement, 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 cons rued in accordance with the laws of the State of Texas. 14.6. Successors and Assigns. Neither party hereto shall assign, s ublet , or transfer it s interest herein without prior written consent oft e other party , and any attempted assignment, sublease, or transfer of all or any part hereof without such prio written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City a and their respective successors and permitted assigns . 14 .7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and an lawful successor or assign, and are not intended to create any rights , contractual , or otherwise , to any other p rson or entity. 14 .8. Severability. Agreement with Di xie Friend Gay for Final Design and Commission of Publi c Artwork fo r North Z Boa z Park EXECUT IO N COPY 21 o 37 If any provision of this Agreement shall be held to be in valid , illegal , or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 14.9 . Force Majeure. It is expressly unders tood and agreed b y the Parties to thi s Agreement th at, if the performanc . of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement eather; governmental restrictions , regulations, or interferences; fire s ; strikes ; lockouts , national di sas te s; riots; ma terial or labor restrictions ; transportation problems; or any other circumstances which are rea so n a bl beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform t e same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so bligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such d es ign or construction requirement sh a ll be extended for a period of time equal to the period such party was delayed . 14 .10 . Contract Construction. The Partie s acknowledge that each party and, if it so chooses, its counsel, h ave reviewed and re v sed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be re so lve against the drafting party mu st not be employed in the interpretation of this Agreement or any amendments or exhibits he reto . 14 .11. Fiscal Funding Out. If, for a ny re aso n , at any time during any term of thi s Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the C ity to fulfill its obligations under thi s Agreement, the City may t rminate thi s Agreement to be effective on the later of (i) thirty (30) calendar days following delivery by City o Artist of written notice of City's intention to terminate or (ii) the last d a te for which funding has been appr priated by the Fort Worth City Council for the purpo ses set forth in thi s Agreement. 14.12. Captions. Captions and headings u sed in this Agreement are for reference purposes only and shall not be deem d a p art of thi s Agreement. 14 .13 . Right to Audit. Artist agrees th at City will h ave the right to audit the financial and bu s ine ss re cords of Artist that rela ,e to the Work (collectively "Records ") at any time during the Term of thi s Agreement and for three (3) years th reafter in order to determin e compliance with thi s Agreement. Throughout the Term of thi s Agreement and r three (3) years thereafter, the Arti s t shall make all Records available to the City at 200 Texas Street, Fort Worth, Texas or at another location in the City acceptable to both partie s following reasonable advance notic . by the I City and shall otherwise cooperate fully with the City during any audit. Artist s hall require a l of its Ag reement w ith Dixi e Friend Gay for Fi na l Des ign and Commi ssion of Public Artwork for North Z Boaz Park EXEC UTION C OPY 22 of 7 subcontractors to include in their subcontracts a right to audit in favor of City in substantially the s me form as above . 14.14 . Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business E terprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is ccepted by the City under the City's Business Diversity Enterprise Ordinance. 14 .15 . Survival Provision. The provisions contained in Articles 5 (Warranties), 6 (Indemnification), 7 (Ownership and In llectual Property Rights), 9 (Artist as an Independent Contractor), 11.3 (Incapacity of Artist), and 14 .13 ( ·ght to Audit) shall survive the termination or expiration of this Agreement. 14 .16. Counterparts and Electronic Signatures . This Agreement may be executed in several counterparts, each of which will be deemed an original, , ut all of which together will constitute one and the same instrument. A signature received via facsimile or electJo nically via email shall be as legally binding for all purposes as an original signature. 14.17. Time Extensions. The Parties may agree , in writing, to extend or modify any of the time deadlines set forth in this Agre ment. 14. 18 . Israel. If Artist is a company with ten (10) or more full-time employees and if this Agreement is for$ 00,000 or more , Artist acknowledges that in accordance with Chapter 2270 of the Texas Govemme Code, the City is prohibited from entering into a contract with a company for goods or services un ess the contract contains a written verification from the company that it: (1) does not boycott Israel; nd (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "co pany" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government ode. If applicable under this Agreement and Artist is considered a "company," by signing this Agr ement, Artist certifies that Artist's signature provides written verification to the City that Artist: () does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. ARTICLE 15 NOTICES All notices , requests , demands, and other communications which are required or permitted to be give under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery o receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail , return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Assistant City Manager of Public Art Agreement with Di x ie Fri end Gay for Final De sign and Co mmi ssion of Publi c Artwork for North Z Boa z Park EXECUTION C OPY 23 of 7 I Copies to : 2. ARTIST City Manager 's Office City offort Worth 200 Texas Street Fort Worth , TX 76102-6314 City Attorney Office of the City Attomey City ofFort Worth 200 Texas Street Fo1t Worth , TX 76102-6314 Martha Peters , Director of Public Art Aris Council of Fort Worth & Tammt County 1300 Gendy Street Fort Worth , Texas 76107 Dixie Friend Gay 1901 West 14th Street Houston TX 77008 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective a s of the Effe tive Date . CITY OF FORT WORTH Fernando Costa Assis tant City Manager Date: s;/7 /2tJt/ CONTRACT COMPLIANCE MANAGER: ARTIST Dixie Friend Gay Date : May 04, 2021 By s ig ning, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ens ming all perfonnance and reporting requirements . ~II~ Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: Thomas Royce Hansen Assis tant City Attorney Agreement with Dixie Friend Gay for Final De sign and C'onuni ss ion of Public An work for No11h Z Boaz Park EXECUTION COPY OFFI CIAL f ECORD CITY SEC ETARY FT. H, TX Form 1295: Contract Authorization: M&C: Agreement w ith Dixie Friend Gay fo r Final Des ign and Commission of Publi c Artwork for No rth Z Boaz Park EXECUTION COPY OFFICIAL REi:ORD CITY SECRE' ;ARY FT. WORTfi,, TX Exhibit A: Approved Revised Preliminary Design One With the Bee One With th e Bee, arti s t Di xie Friend Gay's Pre liminary Desi gn for an artwork for North Z Boaz P ar , w ill be a pl ayful , 20 foot tall flo wer form , fabricated in Corten steel , w ith a swe lling form at ground level th a t tapers as it ri ses, fl aring outward in tipped peta ls at th e top . A 160-degree opening on one s ide of the 1ece allows th e v iewer to see into th e center of th e flower, and the sca le allows the visitor to experience th art much as an in sec t would an actual flower. DIXIE FR IE O GAY One ,th the Be• North Z Bo z P-,rk 11 /27/2020 Agree ment w ith Di xie Fri e nd Gay fo r Fi na l Des ign an d Commissio n of Public Artwork for North Z Boaz Park OI XIE FRIE NO GAY One with the Bee orth Z Boaz Park 11 /27/2020 COR Uf ~nd STAI NLESS EXECUT ION CO PY 26 of 7 I 20' Exhibit B: Artist Proposed Site The artwork will be located at the northeast corner of the park near a new planned entrance, where i will be easily accessible, highly visible a nd have the greatest impact. The exact location for the artwork is l being determined in coordination with the City 's Parks Department, the Project Core Team and in relatio ship to the improvements called out in the Updated North Z Boaz Park Master Plan . VI C: C r' -.... i •J'i Agreement with Di xie Friend Gay for Final Design and Commission of Public Artwork for North Z Boaz Park ra:. J EXECUTION COPY 27 o 37 "' .. Exhibit B: Artist Proposed Site -G eneral Artwork Location Circled Ag ree me nt w ith Di xie Friend Gay for Fin a l De s ig n and Commission of Public Artwork fo r No rth Z Boaz Park EXECUT IO N COPY 28 of 7 Ex hibit C: Budge t Form ARTIST PROJECT BUDGET PROJECT DEVELOPMENT TEMPLATE COSTS FEES Artist fee Des ig n (Preliminary/ Final) Pro fessiona l f ees Engi neer Architect Ligh t ing Designer Co nservato r Other SUB -TOTAL FEES TRAVEL Transporation Lodging Per d iem (me al s an d inc id entals) SUB-TOTAL TRAVE L FABRICATION Artist ad m ini strat ion (ho urs x $ per hour) Materials Art ist labor (hours x $ per hour) Labor Renta ls ( equipment, space, etc.) Storage SUB -T OTAL FABRICATION Ag ree ment w ith Di x ie Fri end Gay fo r Final De sig n INSTALLATION Tr ansportation Perm its Site preparat io n / r emed iation Footings/ foun dations Electr ical connections/ modi fica t ions Labor Eq uip ment rental Tr affic control Security SUB-TOTAL INSTALLATION OVERHEAD Insurance (pro r ated) St udio assistan t (hours x $ per hou r) SUB-TOTAL OVERHEAD CONTINGENCY G RAND TOTAL ARTIST PROJECT COSTS and Co mm iss ion of Pub lic A rt wo rk fo r No rth Z Boaz Park EXECUT ION CO PY 29of37 ♦ Exhibit D: Technical and Maintenance Record GENERAL INFORMATION Artist: Address : Telephone: Cell: E-mail : Gallery Affiliation : Other Representation: ARTWORK Title of Artwork : Project Name and Location Address : FWP A Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth : Pedestal or Pad Material : Pedestal or Pad Dimensions : Height: Width: Depth: Location & Description of Signature Markings ( or copyright): Edition Information if applicable: Date of Execution: Place of Execution : Collaborating Artist: Fabricator (if other than artist) Agreement with Di xie Fri e nd Ga y for Fina l De s ign and Commission of Publi c Artwork for No rth Z Boaz Park EXECUTION C OPY 30 o f 37 .. Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials ; attach Material Safety & Technica Oat a. Include contact names for all suppliers and attach warranty information): Constrnction Description: (list all fabricators and any architects , engineers or other technicians invol ed i n the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: Finishes & Coatings (paint color and type , glaze, patina, any and all coatings including fixative , UV, ~ raffi ti , etc . Please list vendors and contact information and provide all product information): Pedestals , Foundations & Footings, Mounting and Attachment Applications Ag reement with Di x ie Fri e nd Gay for Fina l Des ign and C ommi ssion o f Public Artwo rk for No rth Z Boaz Park EXEC UTION C OPY 31 of 7 (List all materials used to install artwork on s ite . Include vendor informa tion, parts numbers , warran 1e s and agreements.) Integrated Components (Li st all components included in de sign and fabrication contracts that function as a part of the fin a l installation including but not limited to : lighting , media , land scap ing, etc . Include all vendor informa ton , parts numbers, warranties and agreements a nd any/a ll de sign sc hematic s): Installation Insta llation Date: ------------ In s tallation Method : ( de sc ribe in sta llation m e thod , provide photo documentat ion if ava il a ble . List narne and contact informa tion of in sta llation crew. Attach a ny diagrams or disassembly instructions .) Recommended Routine Maintenance Artist recommendation ba sed on experience a nd consultation w ith conservation expert Artist's Conservation Consultant Name: Address : --------------------------------------- Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Agreement w ith Di xie Friend Gay for Final De s ign and Commission of Publ ic Artwork for No rth Z Boaz Park EXECUT ION COPY 32 of 37 t Artist's Intention (Plea se describe your view of how the artwork will change over time and in response to environment, 1 conditions. Artist 's vision of how the artwork will look in the foture assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes . Please clearly detail your expectations for his artwork . Please addres s issues related to the life expectancy of this artwork.) Agree me nt with Dixi e Fri end G ay for Fin a l Desig n and Commi ssion of Publi c A rtwork for North Z Boaz Park EXEC UTIO N C OPY 33 o f ~7 .. t Exhibit E: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: ________________ _ Purchaser: Property : Affiant on oath swears that the following statement is true : Affiant has paid each of Affiant's contractors , laborers, and materialmen in full for all labor and aterials provided to Affiant for the construction of any and all improvements on the property. Affiant is not ndebted to any person, firm , or corporation by reason of any such construction . There are no claims pentling for personal injury and/or property damages. Affiant: _________________ _ SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the __ day of __________ , 2021. Notary Public, State of Texas Print Name Commission Expires Agreement with Dixi e Fri end G ay for Final De s ign and Commi ss ion of Public Artwork for North Z Boaz Park EXECUTION C OPY 34 of 7 Exhibit F: Sales Tax Exemption @??'.~ 01..J39 (Back) -;:;;-(Re v.4-13/8) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Na me of purchaser, firm or agency City of Fort Worth, Texas Address (S treet & number. P.O. Box or Route number) I· Phone (Area code and number) 200 Texas Street 817-392-8360 City , State , ZIP code Fort Worth , Texas 76102 I, the purchaser named above, claim an exemption from payment of sales and use taxes (for the purchase of taxable items described below or on the attached order or invoice) from: Seller: All Vendors Street address: City , State , ZIP code: Description of items to be purchased or on the attached order or invoice : All items. Purchaser acknowledaes that this Certificate cannot be used for the ourchase lease or rental of a motor vehicle. Purchaser claims this exemption for the following reason : Municipal ity, Governmental Entity I I I I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failu re to comply wrth the provis ions of the Tax Code and/or all applicable law . I understand that it is a criminal offense to give an exemption certificate to the sellerfortaxable items that I know, atthe time of purchase, will be used in a manner otherthan that expressed in this certificate, and depending on the amount of tax evaded, the offense may range from a Class C misdemeanor to a felony of the second degree. • Purch~, sign ► here ./ I rrtle Finance Director/CFO I ;~v~, 28, 11/8 I NOTE : This certificate cannot be issued for the purchase, lease, or rental of a motor vehicle. THIS CERT/FICA TE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax "Exemption Numbers" or ''Tax Exempt" Numbers do not exist. This certificate should be furnished _to the supplier. I Do run send the completed certificate to the Comptroller of Public Accounts. -----···------------· . Agreement with Dixie Fri e nd Ga y fo r Final De s ign a nd Commiss ion of Pu blic Artwork for North Z Boaz Park EXECUTION COPY 35 of 37 ... j Exhibit G: Insurance Requirements PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fab ication, transportation , and/or installation of the Work, then Artist shall also require his /her subcontractor(s) to abide by all of the following insurance requirements . Commercial General Liability (CGL) $1,000,000 $2 ,000 ,000 Each occurrence Aggregate limit Coverage shall include, but not be limited to, the following : premises , operations, independent con ractors , products/completed operations , personal injury , and contractual liability . Insurance shall be provid d on an occurrence basis , and be as comprehensive as the current Insurance Services Office (ISO) policy . Th policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on t e latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artis 's care, custody, and control and shall include prope1iy "in transit." Automobile Liability $1,000 ,000 or $250 ,000 $500 ,000 $100 ,000 Each accident Bodily Injury per person Bodily Injury per occurrence Property Damage A commercial business policy shall provide coverage on "Any Auto ," defined as autos owned, hired a d non- owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100 ,000 Each accident/occurrence $100 ,000 Disease -per each employee $500 ,000 Bodily Injury/Disease -policy limit Workers ' Compensation coverage shall provide limits consistent with statutory benefits outlined in th Texas workers ' Compensation Act (Art. 8308 -1.01 et seq. Tex . Rev. Civ. Stat.). Agreeme nt w ith Dixi e Fri e nd Gay for Final Des ign and Co mmi ssion of Public Artwork for North Z Boaz Park EX EC UTION COPY 36 o f 7 GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its ' pmcers , Employees and Volunteers as an "Additional Insured" on all liability policies . Exception: the a ditional insured requirement does not apply to Workers ' Compensation or Automobile policies. Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renew insurance policy and may not change the terms and conditions of any policy that would limit the coverage, or otherwise alter or di sa llow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in fav r of the City of Fort Worth. The insurers for all policies mu s t be licensed/approved to do busines s in the State , [Texas. If the s ubcontractor is an international entity and carries insurance through an international insurance c mpany , then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum ratihg of A - VII in the current A . M. Best Key Rating Guide or have reasonably equivalent financial strength and olvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Ri s k Management is required. If insurance policies are not written for specified coverage limits , an Umbrella or Excess Liability i , surance for any differences is required . Excess Liability shall follow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an "occurrence basis." The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptab e to and approved in writing by the Risk Manager of City of Fort Worth in regard s to asset value and stoc · olders' equity. In lieu of traditional insurance , alternative coverage maintained through insurance pool or risk retention groups , mu st also approved by City's Risk Manager. City, at it s sole di sc retion , reserves the right to review the insurance requirements and to make re so nable adjustments to insurance coverages and their limits when deemed necessary and prndent by City ba 1 ed upon changes in statutory law , court decision or the claims history of the industry as well as of the contracti g party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsement thereto and may make any rea sonable requests for deletion or revi sion or modifications of particular policr terms , conditions , limitations, or exclusions except where policy provisions are established by law or re ulations binding upon either of party or the underwriter on any such policies . Agreem ent wi th Di xie Friend Gay for Final Design and Commi ssion of Publi c Artwork for North Z Boaz Park EXECUTIO N COPY 37 o , 37