HomeMy WebLinkAboutContract 55767� ��
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AGREEMENT BETWEEl�T THE CITY OF FORT WORTH Al�iD
ELYZABETH AKAMATSU FENCI FOR C011�MISSIO,l� OF PUBLIC ART
FOR DYAN�OI�ID HILL COMMUl�TITY CENTER
This Agreement is entered into tk�is 6��day of Q, , 2021, by and between the City of
Fort Worth, a boxzxe-rule municipal corporation of the State of Texas, acting by and through Fernando Costa,
iis duly authorized Assistant City Manager, and Elzzabeth Akamatsu Fenci, an individuat located at 1000I
Appleby Sand Road, Nacogdac�aes, Texas 75965. City has designated the Arts Council of Fort Worth and
Tarrant County, Inc., to manage this Agreement on its bei�alf The Contract Mat�ager shall act through its
designated Public Art Project Manager.
WHEREAS, pursuani to CI�apter 2, Sections 2-56 through 2-b 1 of the Fort Worth Code of Ordinances,
the F'ort Worth Public Art Program's goals are to create an enhanced visual environment for Fart Worth
residents, to commemorate the City's rich cultiu-al and ethnic diversity, to integraie the d�sign work of artists
into the development of the City's capitaf infrastructure i�nprovements, and io promote Courism and economic
vitality in the City through the artistic design of public spaces;
WHEREAS, City is currently working wiih Project Consu�tant to design a replacerrzent building for
the Diamond H�II Cammunity Center, to be located near the tntersection of Weber Street and 36'b Street, Fart
Worth, Texas 76106 (Council Distr[ct 2). The building is currently anticipated to be completed in 2d22;
WHEREAS, this Project �vas incl uded in the Public Art Plara far the 201 S Bond Program, adopted by
the Fort Worth City Council pn November b, 2018 as M&C G-19401. The projeci was also included in the
Fort Worth PublicArt�'iscal Year 2021 Annual WorkPlan, adopted by the Fort Worth Cify Council September
22,2020 as M&C 20-0678;
WHEREAS, on June 25, 2020, fhe City entered into a contract with Artist to develop a Finai Design
for tY�e Szi� (Fort Worth City Secretary Contract No. 54144);
WHEREAS, on January 11, 2021, the k'ort Worth Art Commission ("FWAC") approved Artist's Final
Design and on Apri128, 202I, the Park and Recreatian Advisory Board endorsed tha location for the sculpture;
WHEREAS, City and Artist wish to set out the ierms and conditions under which said Work shall be
fabricated, delivered, and installed at the Site;
NOW, THEREFORE, Czty and Artisf for and in consideration of the co�enaz�is and agreements
hereinafter s�t forth, the sufficiency of which is here6y aclrnowledged, agxee as follows:
AR`I'ICLE 1
DEFINITIONS
As used in this Agree�nrzeni, the following terms shall have the meanings as set forth below:
7..1.. Agreement — Means and includes this Agreement beiween the City of Fort Worth and Artist
for Commission of Public Artwork for the Site.
Agreement for Commission of Public Artwprk wilh
Elizabeth Akamatsu Fenci for Diatnond Hill CommuniEy Center
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Execution Copy 5/1 U2021,
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I.2. Arfist — Means and includes Elizabeth Akamatsu Fenci.
1..3. Artwork Design — Means the final, City-approved design of the Work for the Site created in
connection witl� the Final Design Contract and includes, but �s not limited to, all final City-approved maquettes,
drawings, sketches, prototypes, modeis and the like that were created by Artist in connection with the Fina1
Design Contract. The design and dascriptzon are attached k��reto as Exhibit "A" and incorporated herein for aIl
purposes.
�.4.
1.5.
Inc.
�.6.
1.7.
Agreement.
1.8.
Final Design Confract — Means and includes Fort Worth City Secretary Con#ract No. 54144.
Coniract Manager — Means and includes the Arts Council a� Fort Warth and Tarrant County,
City — Means and includes the City of Fort Worth, Texas.
Effective Date — Means and includes the date represented in the first paragraph of this
k'inal Aeceptance - Means City's written acknowledgement to Artist that all services for
fabrication, delivery, and instalIation of the Work l�ave been completed in accordance with the terms of this
Agreernent.
1.9.
1.10.
Parties -- Means and includes City and Artist.
Praject — Means and includes the capitai improverr�ent or public art develapment undertaking
of City for which Artist's services are to be provided pursuant to this Agreement.
�.zx.
1.12.
Proje�t Consultant — Means and includes GFF Architects.
Project Core Team — Me�s and includes the group of community members, generally 5-7
individuals, who are invited by the City Council Member to provide input on the project far its duration, in
accordance with th� Fort Worth Public Art Master Plara Update {page 23).
1.13. Project Stakeholders — Means and includes the appropriate City Council Member(s), the
Project Core Teatn, the Artist Selection Panel, the FWAC's appointed representative, City siaff, and others as
may be appropriate.
1.14. Schedule - Means and includes a written plan of procedure far eqrnpletion of fabrication,
de�ivery, and installation ofthe Work, including, but not limited to, the submission of pzogz�ess reports.
1.15. Srte — Means the exterior of the new Diamond Hill Community Center to be located at the
intersection of Weber Street and 3b��' Street, attached hereto as "Exlaibit B."
�.�.6. Wark— Means and includes the finished object(s) of art and design that are the subject offihis
Agreement, or a�y intermediary stage of completion of such works, which specifically inctudes the Artwork
Design.
Agreement for Commission af Public Artwork with
Elizabeth Akamatsu Fenci for Diamond IIill Community Center Execution Copy 5/11/2021
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ARTICLE 2
SCOPE OF SERVICES AND DEL[VERABLES
2.1. Artist SelectiQn.
City and Artist acknowlecEge that Artist's Final Design was reviewed and approved by the FWAC on .Tanuary
l 1, 2021 and is the basis for executzng this Agreement vvith Artist.
2.2. Scope of Services.
a. Artist shall perform all services and shal] furnish all supplies, tnaterials, and equipment as necessary
for iabricating, delzvering, and installing the Work at the Site. Services shal] be performed in a
professior�al manner and in strict compliance with all ierms and conditions in this Agreement.
b. Artast shall determine the artistic expression, scope, design, color, size, material, and texture of t�e
Work, subject to review and acceptance by City as set forth in tl�is Agree�nent. The location at the Site
where the Wark shall be installed sha11 be mutually agreed upon by City and Artist.
c. Artist shalI znsta2l a decornposed granite pathway around the triangular• base of the Work required by
the City of Fort Worth Park and Recreaiion Department, as shown in the site plan endorsed by the Park
and Recreation Advisory Board on Apri] 2$, 202i (see E�ibii "A").
d. Artist, upon request of Contract Manager, shall provide fnformation and/or attend rneetings witt�
appropriate City staff for purposes af risk assessment, safety review, sighting of the Work, and
permitting.
e. Artist shall caordinate with City staff, its contractors, the Froject Consultant, and others, as necessary,
to ensure proper iz�stallation and integration of the Work into the Site as applicable including, but not
Iimited to, installation equiprrient brought onto the site to install tt�e sculpture and the decomposed
granite patk�way.
f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the Work iram said conservator to the Contract Manager.
g. Artist shall participate in one public education event in Fort Worth at a mutualIy agreed upon date and
time, to be completed within one year of the completed installation date.
�. Artist shall instalI the work on dates and times mutually agxeed upon by Artist and City.
2.3. Citv Assista�ce.
Upon request by Artist, City shall proinptly furnish all information and materials required by Ar�ist to the
extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings
of the Site, if available.
2.4. Execution of Work.
a. Artist shall f�rnish the ScheduIe to the Contract Manager wiihzn �fteer� (1S) business days af�er the
Effective Date and �notice of construction schedule from City. After written approval of the Schedulc
A�reement for Commission of Yublic Artwork with
Elizabeth Akamats�t Penci For Diamond �Till Commuruty Center CxecuGon Copy 5/1 ]/2021
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hy City, Artist shail iabricate, deliver, and install the Wor� in accordance with sucYt Schedule. Schedule
changes may be accomplished by written agreement between Artist and City.
b. City and/ar Contract Manager, upon written request, shall have the right tQ review the Work during its
fabrication andlor request visual documentation of the fabrication. Artist shall, upon ovritten request
by the City and/or Contract Manager, provide a wriiten progress report detailing #he progress made
toward coznpletion of the Wark and the r•emainder of work to be done to complete the Work. Artist
shall comply with any rec�uest made by the City and/or Contract Manager pursuant to this Arkicle 2.4
within thirty (30} calendar days after receipt of the wriiten request.
Ariist shall complete the fabricatian of tk�e Work in accor•dance with the Artwork Design. Artist sha�l
present to the Con#ract Manager, in writing, for further review and appraval, any changes in the scope,
design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall
determine whether the charages are signif�cant and whether the changes conform to th� Artwork
Design. If the Contract Manager, in its sole discretion, determines that the c�azzges are signi�cant and
do not conform with the Artwork Design, then tlie Contract Manager shall, in light of the Artwork
Design, determine whether a significant change requires City approvaL Tf the Cont�•act Manager
determines that the significant change requires City approval, then the change(s) rnay be presented to
the FWAC for review and approval at an �'WAC scheduled meeting. If ar�y disputes arise thereafter,
the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process
set forth in ArticIe I 2 of this Agreement.
2.5. Delivery and InstaIIation.
a. Artist shalI notify City, through its Contraci Manager, in writing when fabrication of the Work is
completed and is ready for its delivery and installation at �he Site.
b. Artisi shall be respansible for obfaining and paying for all necessary permits and any required firaffic
barriers appropriate for this Project.
c. Artist is responsible For installing aI� eleinents of the Work. Artist shafl coordinate the installation of
the Work with City and Cantraci Manager. Delivery and instalIation activities may not commence
until written permission is delivei•ed to Artist by ihe City.
d. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of
the Work, inclucEing, but not limiied to, equipment rentals, transportation, and labor.
e. Should Artist complete the Work in advance of the completion of the Site, Artist shall store the Work
at no expense to City uniil such a time as #he Site is complet�d and the Contract Manager notifies
Artist that installation may commence.
f Artist, individually and through its subcantractors, including ats fabricator and/or instaI�er, shaIl take
all necessary precautions to protect and preserve #he integrity and finish of th� Site, including but not
Agreement fpr Commission of PuhEic Ar{work wilh
Elizabeth A[cantatsu Fenci for Uiamond Hill Communify Center �xecution Copy 5ll 112U21
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limited to interiQr finishes, painted structures, pathways, and landscaping, while detivering and
installing the Work. If City determir�es, in its sole discretian, that Artist or Artist's subcontractors have
damaged tlae Site, then City shall inform Artist, Fn writing, of the damag�. Artist, at his/her own
expense, shaii have thirty (3Q} days frozz� receipt of City's written notice to repair the damage to the
Site to the satisfaction of City. If Artist fails io repair the daz�ages to the satisfaction of City within
thirty (30} days after receipt of the notice, or within the deadline otherwise agreed to by the parties,
then City shall have the right to deduct the cost af repairs from any remaining payrnent due to ArCist
under this Agreemenf, which shall be ir� addition to any and all othez- r�ghts and remedies available to
City at law or in equity.
g. Upon City's reqEiest, prior to installation of the Work, Artist shall consult with a qualiiied art
conservator and provide to Contract Manager writCen insiructions for appro�riate maintenance and
preservation of the Work on ik�e form attached hereto as Exhibit "C" (Technical and Maintenance
Record). The appropriate mainfenance and pres�rvation instructions sha11 not be substantia]ly different
froxn ihe maintenance and preservatian anticipated and conveyed to City for the Work in the final
design phase for the Work.
2.6. �'ost-installation.
a. Within thirty (30) days after the instaIlation af the Work, Artist shaIl funoisl� Cantract Manager with a
set of at least fifteen (15} high-resolution digital images (.tiff farmat) and fifteen (15) low�r�solution
digital images ( jpeg format} showing each elemeni o,f the VS/ork, including detail shots, with af leas#
ten (IO) of these zz�rzages showing ihe Work installed, as se�ected by Contz�act Manager, to document
�he Work after the Work is installed. Images should inciude daytime and ni�hitime vzews.
b. Artist shall maice their best effort to be available at such time{s) as may be set by the City to ai�end
any inauguration or presentation ceremonies relating to the txansfer of the Work to City. City shall
use its best effoi-ts to arrange fo�� publicity for the completed Work in such art publicaiions and
otl�erwise as may be deterinined between City and Artist as soon as practicable following installation.
c. Far the duration af t�e Agreement, if Artist intends to seek its own �ublicity far the Work, such efforts
and/or press releases must be approved, in advance, by City.
2.7. Final Accepiance.
a. Artist shall notify City and Contract Manager, in writing, when all servicas for fabrication, delivery,
and installation of the Work have baen completed in accordance with the terms of this Agre�anant.
Included in such notice from Artist shall b� an affidavif, attached hereto as Exhibii "D" (Afiidavit),
Agreement for Cammissian of Public Arlwork with
Elizaheth Akamalsu I'enci fpr Diamond Hill Communify Center Exectrtion Copy 5/1 1/2D21
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certifying that alI bills relating to services or supplies used in the performance ofthis Agreement have
been paid.
b. City shall natz,fy Artist in rx�riting of its Final Acceptance of the Work.
c. Fina� Acceptance shall be effective as of tk�e earlier to occur of (1} the date of City's notification of
Final Accepfance; or (2) the 35th day after Artist has sent the written notice to City rec�uired under this
Section 2.7, unless City, upon receipt of such notice and prior to the expiration of the 35-day period,
gives Artist writ#en notice specifyin� and descz-ibing anything that has not been completed pursuani to
this Agreement.
2.8. Risk of Loss.
The z'isk of loss or damage to the Work shall be borne by A�tist prior to completed artwork ins#allation, and
1�rtist shall take such measures as are necessary to protect the Work fro�m loss or damage until this time,
including, but not limited to, the purchase of property Ioss insurance, except that the risk of loss ar darnage
shall be borne by City prior to completed artwork instalIatia� during such periods of #ime as ihe partially or
wholiy compleied Work is in the custody, controI ar supervision of City or its agents for the purposes of
maving, storing, or performing any other ancillaxy services to the Work.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Coxxa�ensatian.
Total compensation to Artist undez the Agreement shall be in an amount no# to exceed ONE HUNDRED
FIFTY�S�VEN THOUSAND, ONE HUNDRED NINTY-SIX DOLLARS AND SIXTY-NINE CENTS
($157,196.69), which shalI constitute full compensation for all services to be performed and materials to be
furnished by Artist under this Agr�enaent, mcluding, but not limited to, mock-ups, fabrication, transportation,
installatian, remaining Artist's fee of $6,813.OQ, i�surance, incidental costs, an aIIowance/contingency of
$26,923.00, a11 travel expenses, and any other costs associated with the Work. The Parties may amend this
Agreement to allow for additional payment if additional services are required.
3.2. Payment Schedule.
City agrees to pay Artist in the following instailments set forth below, eack� it�stallment to represent full and
fnaI, non-refundable payment for ai� services and materials provided prior to the due date thereof:
a. F4RTY THOUSAND DOLLARS AND NO CENTS $40 000.00 upon execution of this
Agreement to enabl� Artist to purchase materials for fabrication.
b. TWENTY-FNE THOUSAND DOLLARS AND NO CENTS {$25,OOOAO) upon Coz�t�ract
Manager's verificati�n of 56% fabrication.
c. TWENTY-F�VE THOUSAND DOLLARS AND NO CENTS �$25 0, oo.00� upon Contract
Manager's verification thaC the Wor�C is 100°/o fabricated and ready to ins#all.
Agreement for Cammission of PubEic Artwark with
Elizabeth Akamatsu Fenci for Diamond Hill Community Center Execution Copy 5/11/2021
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d. TWENTY THOUSAND DOLLARS AND NO CENTS ($20 00, 0•00l upan Contract Manager's
verification that the Work is installed.
e. TWENTY THOUSAND TWO HUNDRED SEVENTY-THREE DOLLARS AND SIXTY-
NINE CENTS ($20,273.69) wzthin thirty-five {35) days afEer Final Acceptance and recaipt by City af
such documentation it may require concerning payment of services and supplies rendered to Artist (see
Article 2); provzded, however, that final delivery shall nat be tendered prior to the expirafion of thirty
{30) days after Final Acceptance.
f. An allawance of up to TWENTY-SIX THOUSAND, N�NE HUNDR�D TWENTY-THREE
DOLLARS AND NO CENTS $26 923A0 for {1) Costs associated with installation of a
decomposed granite pathway which was not inc�uded in Artist's budget under the Final Design
Agreement; and {2) Costs associated with the Work that are incurred by the Artist due to unfareseen
changes in materiais, fabricaiion or instaIlation costs. Such payment will be made upon (i) receipt of
supporting docu�nentatfon by the Contract Manager from the Artist and (ii) approval by the Contract
Ma�ager of the additional costs. Any unused contingency fuzzds sha11 remain with the City.
33. SaIes Taxes.
City is a tax-exempt organization and no state or local sales i�es or federal excise taxes shall be due upon the
Work. City shall suppiy Artist �vith the "Texas Certificate of Exemptio�n," in substantially the same form as
that attached hereto as E�i6it "E" for use by Artist in t�e fulfillment of this Agreement.
3.4. Artist's Ex enses.
Artist shall be respor�sibie for the payments of all expenses incurred d�ring ihe perfqrmance of this Agreement,
including, but not limited to, servzces, materials, mailing/shipping charges and insurance on submissions to
City and/or Contrac# Manager, cost of all tra�el, arad cosis for Artist's agents, consultants, and/or eznployees
necessary fox the praper performance of the services required under this Agreement.
ARTICLE 4
TERM AND TIME OF PERFORMANCE
4. i . Terrr►.
This Agreerxzent shall be in effect from the Effective Date, and, uniess terminated earlier pursuant to such
provisions in this Agi•eement, shall extend until final payment to Artist by City.
Du.ration.
The services to be required of Artist set forth in Article 2 sha11 be completed in accordance with the Schedule;
provided, however, s�ch time limits anay be exiendecf ar otherwise �nadified by written a�'eement between
Artist and City.
43. Earl Co�n letian af Artist Services.
Agreement for Commissio�t of Pub[ic Artwork with
Elizaheth Akamatsu Fenci %r Diamoa�d Hill Community Center Execution Copy 5l11I2021
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Artist shall bear any transportation and storage charges incurred from the co�pletion of his or her services
prior to ihe time provided in the scheduIe for delivery.
4.4. Time Extensions; Force Majeure.
City or Artist, as appropriate, shall grant a reasonable extension of time to the at�er party if conditions beyond
the parties' control ar Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal
governrnent render timely performance of tk�a parties` services impossible or unexpectedly burdensome. The
par�y suffering the impossibility ar burdensome conditions must inform the other in writing within ten (10)
days oi the onsei of such performance delay, specifying the reasons therefore. Failure to fulfill cantractual
obligations due to conditions beyond either party's reasor�able control shall not be considered a breach of this
Agreemeni; provided, however, that such obligations shali be suspended only for th� duz-at�o�n of such
conditions.
ARTICLE 5
WARRA.NT�ES
5. �. Warranties of Title and Co ri ht.
a. Artist represents and warrants that:
i. Artwark Design and Work shail be the origiz�ai product af Artist's sole creative efforts.
ii. Artwork Design and Work are and will be unique and original, and da not infringe upon a.ny
copyright or t�ae rights of any person or entity;
ifi. Artwork Design and Work (or duplicate thereof} have not been accepted for sale elsewhere;
iv. Ar�ist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Designs or Work or any element thereo� or any copyright related thereto that may
affect or impair the rights granted p�arsua�t to this Agreement;
v. Artwork Designs and Work are free and cIear of any Iiens from any source whatsoever;
vi. Artist has ihe full power to enter into and perform thts Agreement and #o make the grant of
rights contained in this Agre�meni; and
vii. A�l services performed hereunder shall be performed in accordance with all applicable laws,
regulaiions, ordinances, ete., and with all nec�ssary care, skilI, and diligence.
5.2. Warrant�es of QuaIitv and Condition.
a. Artist represents and �varrants that all work will be performed in accordance wit� pro�essional
"warkmanlike" standards and fre� from defective or inferior mater�als and workmanship (including
any defects consisting of "inherent vice," or qualities thaf cause or accelerate deterioration of the
Wor�) fot one (1) year after the date of Final Acceptance.
b. Artist represents and wanraaats that the Work and the materials used are not currenCly known to be
harmful to public health and safety.
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E] izabeth Akamatsu Fenci for Diamond Hiil Community Cenicr Executian Capy 5/L 1/202 [
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c. If, within one (1} year after Pinal Acceptar�ce, City observes any breach of warranty described in this
Ar�icle 5.2 tha# is curable by Artist, City shaIl gi�e writien notice to Artist of such breach with
reasonable promptness. Artist shall, at the request of City, cure the breach satisfactarily and consistent
wi�h professiona] conservation standards (in accordance with the American Institute of Conservation
{A�C) Code of Ethics and GuideIines for Practice} andlor co�structian standards, inciuding, but not
limited to, any standards set forth by City, within thirty (30) days after receipt ofthe written notice, at
no expense to City.
d. If, witk�in one {1) year after Final Acceptar�ce, City observes any bz-each af warranty described in this
Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for da�nages,
expenses, and losses incurred by City as a resuli of the breach. However, if Artist disclosed the risk
of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach far
purposes of this ArticTe 5.2.
e. If, after one {1} year from Final Accepiance, City observes any breach of warranty described in this
Article 5.2 that is curable by Artist, City shall give writtEn not�ce to Artisi to mal�e or supervise repairs
or restorations at a reasonable fee d�ring Arlist's iifetime. Artist shall notify City, in writing, withir�
thirty (30) days after receipt of the notice as to whether Artist vvill make ar supervtse the repairs or
restorations. Sl�o��ld Artist faif to respond within the thirty-day (30) deadline or be unr�villing to accept
reasonable compensation Under tk�e industry standard, City may seek the services of a quaIified
restorative conservator and maintenance expert.
f. Acceptable Standard of Display. Artis# represents and warrants that:
i. General routine cleaning and repair of the Work and any associated wor�in� parts and/or
equipment will maintain the Work within an acceptable standard of public display.
ii. Foreseeable exposure ta the e�ements and generai wear and tear will cause the Work to
experience only minoz- repairable damages and will not cause the Work to fall below an
acceptable standard of public display.
iii. With genez-al routine cleaning and repair, and within �he context of fareseeable exposure to
the elements and general wear and tear, the Work will not experience irreparable cpnditEons
that do not fall within an acceptable standard of public display, including, but not Iimited to,
mold, r�isi, fracturing, staining, chipping, tearing, abradi�g, and/ar peeling.
iv. Manufacturer's Wa�rxanties. To the extent the Work incorporates products covered by a
manufactt�rer's warranty, Artist shall provide copies of such warranties to City.
g. Th� foregoing vvar�'anties are conditional and shall be voided by the failure of City to rnaintain the
Work in accordance with Artist's specifications and the applicable conservation standards. If City
fails ta maintain the Work in gaod condition, Artist, in addition to other rights or re�nedies Artist may
Agrecmcnt far Commission of Public Artwork wi#h
Elizabeth Akamatsu Fenci %r Diamond Hill Community Center Execution Copy 5/11/2021
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have in equity or at law, shail t�ave the right to disoum the Work as Artist's creation and request that
all credits be removed from the Wo�� and reproductions thereof until the Work's condition is
satisfactorily repaired.
ARTICLE 6
iNSURANCE AND INDEMNITY
6.1. GeneraI.
Artist shall carry insurance as set aut in Exhibit "F," which is attached hereto and incozporated herein for all
purposes. Evidence of reqL�ired insurance shall be submitted to the Contract Manager prior to instaila�ion of
the Work on City property. However, if any part ofthe fabricaiion process wiil be conducted on City property,
then A�tist shatl submit evidence of required insurance to the Contract Manager prior to perfozmance of tha.t
work. Evidence of subsequent renevtrals of said insurance is required unti� City has taken possession of the
Wark. Except as provided in Section 2.8 hereof, �he risk of damaga to oX Ioss of the Wo�'k shall, during
fabrication ar�d installaiion but prior to Final Acceptance, shaIl be saIe]y tha# of Artist. This risk shall t�ransfer
to City and shall na longer be the responsibility of Artis� upon Final Acceptance.
6.2. �'erformance Bonds.
Artist shaIl not be requir�d by City to post any performance bonds or similar undertakings.
6.3. GeneralIndemnitv.
a. ARTIST COVENANT� AND AGR�ES TO AND DOES HEREBY IND�MNIFY, HOLD
HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGA�NST ANY
AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS,
LOSSES, EXPENSE�, C05TS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S
F�ES AND C�STS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES,
LIABILITIES, AND/OR SUITS OF ANY KTND OR NATURE, INCLUDING, BUT N�T
LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIlVIITED TO,
WORK�RS' COMPENSATION ACT LIABILITY, LDST PROFIT�, AND PROPERTY
DAMAGE) ANDIOR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, D�ATH)
TO ANY AND ALL PERSONS, OR OTHER HARM k'OR WHICH RECOVERY OF DAMAGES
IS SOUGHT, �F WHATSOEVER KIND OR CH�iItACTER, WHETHER AEAL OR
ASSERTED, ARISING OUT OF OR RESULT7NG FROM ANY ACTS, ERRORS, OR
OMISSIONS OF ARTIST ANDIOR ARTIST'S SUSARTiST AND CONTRACTORS AND
TH�IR RESPECTIVE OFFYCERS, AGENTS, EMPLOYEES, DIl�ECTORS, MEMBERS,
PARTNERS, AND RCPRESENTATIVES IN CONNECTION WITH THE EXCCUTION,
�ERFORMANC�, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS
AGREEMENT.
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b. Artzsi agrees to and shaIl release City from any and all liability foz- injury, death, damage, or loss to
persons or property sustained or caused by Artist in cannection with or incidental to �ez-formance under
this Agreement.
c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in
favor of City in substantzalIy the same form as above.
6.4. Intellectual Property.
Artist agrees to assurr►e full t•esponsibility far complying with all State and Fedsral Capyrighf Laws and any
other regutations, including, but not lia�ited tq the assumption of any and att r•esponsibilities for payiz�g
z'oyalties that are due for the use af other third-party copyrig�ated works by Artist. City express�y assumes no
obligations, implied or otherwise, regarding payment or collection of any such fees or �inancial obligations.
City specificaliy does not authorize, permit, or condone the reproduction or use of copyri�hted materials by
Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FIFRTHER
AGREED THAT ART�ST SHALL RELEASE, DEFEND, IND�MNIFY, AND HOLD HARMLE�S
CYTY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPEN�ES OF EV�RY TYPE AND DESCRIPTION, �NCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WI�ICH THEY MAY BE SUBJECTED ARISING OUT 4F C�TY'S USE
OR POSSESSION OF THE WORKS BY REASON O�' AN ALLEGED OR ACTUAL COPYRIGHT
VI�LAT��N OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shali be the
exclusive obligation of Artist.
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PI�OPERTY RIGHTS
7.1. Title.
Title to the Work, including, but nat lixzaiied to, aIl documents, models, and drawings that constiiute or are
corr�ponents of tl�e Artwork Design and/or WQrk shall pass to City upon Final Acceptance and payment for the
Work. These documents, models, and drawings will be re#ained for archival and exhibition pUrposes. Artist's
Artwork Design and Work and all other work products under this Agreement shall become the property of
City, without testriction on f�ature use, except as provided below.
7.2. Co�vright Ownership.
Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of
the Work for �he duratian of ihe co�yright.
7.3. Reproduct�on Ri�hts.
a. In view of the intention ihai the Artwork Design and the Work be unique, Artist shall not x�za�Ce any
additional exact duplicate reproductions of the Artwoa�k Design or the Work, nor shal� Ar�ist grant
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permission to others to do so except with the �xpress written permission of City. Hawever, nothing
herein sl�all prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
b. By execution of this Agreement, Artist gxants to City an exclusive, perpetual, royalty free, and
irrevocable license to graphically depict and publicly display the Artwor� Desigr� and Work for any
non-commercial purpose whatsoever. For purposes ofthis limitatio�, any graphic depiction or display
of the Artwork Designs ar the Work iniended to promote or beneff City, its public services or its
public pu�rposes, regardless of whether or not a fee is charged to ihe pubIic, or whether revenue is
otherwise receEved by City, sha�� be deemed a non-commercial purpose. Notwithstanding the above
�imitation, Artist agrees and understands tk�ai nothing in this paragraph shall affect or ]imit City's
absalute, ��nresiricted rights incidental to City's fu�l ownership of ihe Wor� to alter, cha.nge, modify,
destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whoTe or in part, ihe
Work vvhen City deems it necessary within �ts discret�oz�, in order to otherwise exercise City's powers
and responsibility in regard to public works and improvements, in furt�erance of City's operations or
for any other reason.
c. Al1 reproductions by City shall contain a credit to Artisi and a copyright notice substantially in the
foIlowing form: "�O date, Ar�ist's name."
d. Unless notif ed otherwise by City, A� tist shall use Artist's best efforts in any public showing or resuzn e
use of reproductions to give acknowledgment to City in substantially the foIIowing form: "an originai
arCwork coma�aissioned by and in the public art colIection of the City of Fort Worth, Texas."
e. Artist may, at Artist's expense, cause to be �•egistered with t�e United States Register of Copyrights, a
capyright in the Work in Artist's name.
f. City zs 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. Identiiication.
Contract Manager sha11 include credii to Artist on the Fort Worth Pub]ic Art website (www.ii�ublicart.org)
and facilitate the design, purcl�ase and installation of a pernnanent plaque at the site.
8.2. Maintenance.
Ciiy recognizes that maintenance of the Work on a regular basis is essentia] to the integrity of th� Work.
Czty shall reasonably assure that the Work is properIy maintained and protected, taking into account ihe
maintenance instructions provided by Artist in accordance with Sectioz� 2.5 and Exhibit "C."
83. Repairs and Res#oration.
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a. City sk�all have the right to determine when and if repairs and restorations to the Work will be made.
b. A11 repairs and restoz-ations shaIl be made in accordance with recognized conservation standards (in
accordance with the American Institute of Conser�+aCion (AIC) Code of Ethics and Guidelines for
Practice} and/ar construction standards, incIuding, but not limited to, any standards set forth by City.
c. 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 shatl be undertaken or arranged by City as appropriate and
such repairs shall not be deemed to constitute artistic alteration.
8.A . Alteration of the Work or of the Site.
a. City agrees that it will not wiIlfully destroy, dainage, or modify the Work, exce�t as provided in
Article 8.4(b) and 8.4(c) below.
b. in the event that the City deiermines the Site will be altered, sold, or no longer used by City and the
Work is integrated into a building, structure or realty, City shall have ihe right to remove the Work by
any means, including destructipn. City may give Artist written notice of its intent to take such action
under this Article 8.4.
�n ihe event that the City determines the Site wili be altered, sold, or no longer used by City and t�e
Work is freestanding, or incorporated into a building, structure or realty such that it may be removed
withoui damaging or destroying the Work or the building oz- structure, City at its sale discretion may
relocate, sell, or store the Work. If City chooses not to relocate, se11, or store Che Work, Artist rx�ay ba
given written notice and nznety (90) days to remove the Work at his or her sole expense. Upon Artist's
failure to remove the Work, City shaIl have the right to remove and dispose of the Wark by any means,
including its destruction.
d. In the event the Work is substantially damaged or altered, City shall no Ionger represent the Work as
that af Artist if Artist gives written notice io City tl�at it is ti�e position of Artist to deny authorship on
the grounds stated in this Article 8.4.
e. City shall, at all tiznes, h.ave the right to move the Work, ar remove it fro�n public display. C�ty shail
also ha�e the right to sell or trade the Work.
8.5. Permanent Record.
City shall maintain on pennanent fle a record of this Agreement and of the �ocation and disposition of the
Work.
8.b. Art�st's Address.
Artist shall no�ify City of changes m the address set forth in Article 15. The failure to do so, if such failure
prevents City from locating Artist, shall be deezx�ed a waiver by Artist of the rig�t subsequently to enforce
these provisions af Article S that require #he express approva] of Ar�ist. Notwi�hstanding this provisiox�, City
shall make every reasonable effort io locaie Artist when matters arise relating to Artist's rights.
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8.7. AddiiionaI Ri�hts and Remedies.
Nothing contained in this Artic�e 8 shall be construed as a limitation on such other rights and remedies auailabI�
to Artist under the law, which may now or in the future be applicab]e.
ARTICLE 9
ARTIST AS AN INDEPENDENT CONTRACTOR
Artist shall perform all waz-k and services hereunder as an independent contractor, and not as an officer, agent,
servant or er�ployee of City. Artist shall have e�clusive cantrol of, and the exclusive right to cantrol the de#ails
of the work performed hereunder, and atl persons performing same, and shall be soleiy responsible for the acts
and omissions of hisll�er offtcers, agents, employees, and subcontractors. Nothing herein shall be consirued
as creating a partnership or joint venture between Czty and Artist, his/her officers, agents, ernpIoyees and
subcontractors, and doctrine of respondent superior has no appltcation as between City and Artist.
ARTICLE 1 Q
SUBCONTRACTING
Artist may subcontract portions of the services to ba provided t�ereunder at Artist's expense, provided that said
subcontracting shall not adversely affect the design, appearance, or visual quaIzty of tlae Wark and shall be
carried out under the personai supervisian of Artist. Any subcontract entered into under this Agreement shaIl
be expressly subject to the applicable terms afthis Agreement, including, but not limited to, al] indemnification
and reJease provisions. Artist shall provide information regarding all subcontractors, including its fabricator,
along with a copy of the subcontraci between Artist ar�d each subcontractor to the Contract Manager.
ARTICLE 1 I
TERMINATiON
I1.1. Graiuities.
Cfty may cancel this Agreemenf if it is found that gratuities in the form oi entertaix�z�r�e�t, gifts or otherwise
were offered or given by Artisi or any agent or representative to any City or Contracf Manager official or
employo� witt� a view toward securing favorab]e treatment with respect to the awarding, amending, or making
of any determinations with respect to this performa.nce of this Agreement. In the event this Agraament is
canceled by the City, pursuant to this Article I 1.1, City shall be entitled, in additian to any other rights and
remedies, to recover from Artist a sum equal in amount to ihe cast incurred by Artist in providing such
grat«ities.
11.2. Death or Incapacitv of Artist.
a. In the event o�Artist's death or Artist becoming physical�y oz- legally incapacitated during the term of
ihis Agreenaent, City shall ha�e the right to terminate this Agreeixient on payment to Ar�ist ar Artist's
successors for ail work and services performed prior to death or incapacity. All work product produced
by Art�st, including, but not limited to, fnished and unfinis�ed drawings, sketches, photographs,
models, and desi�ns, up to ihe effective date of termination sha11 become property of Ciiy.
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b. In the event of termination under this ArtfcIe 11.2, City shall have the right io complete the 'UVorlc, if
feasible. Due regard shali be made for Artist's intended resuits and prop�r credit and
acknowledgement shail be given to Artist. Thzs provision shall survive the termination or expiration
of this Agreement.
113. Termination for Convenience.
a. The services to b� performed under this Agreement xnay be terminafed by either party, subject to
written notzce subinitted thirty (30) calendar days before termination.
b. If t�e termination is for the convenience of City, City shall pay Artist far services actually rendered up
to the effective date of termination in accordance with the payrr�ent schedule in Section 3.2 of this
Agreement as dete�x►�i�aed in City's sole discretion, and Artist shal] coniinue to provide the Ciiy with
services requested by City and in accordance with this Agreement up to the effective date of
termination. Upon payment in fulI of all monies due for services provided up to the effective date of
termination, City sk�all have the right, in its sole discretion, to possession and tz�ansfer pf all work
product produced by Artist under this Agreez�nent, incIuding, 6ut not limited to, finished and unfinished
drawings, sketches, photographs, models, designs and the Wor� up to the effecti�ve date oftennination.
c. [f termination is for the convenience of Artist, City shall have the right, in its sole discretian, to pay
Artist for services actually rendered up to the effective date of terrnination in accor•dance with Section
3.2 of this Agreement or require the Artist to remit to City a sum equal to all payments (if any) made
to the Ariist pursuani to this Agreeinent prior to the effective date of t�nnination, as determined in
City's sole discretion. If City chaoses io pay Artist, then all wark product produced by Artist uz�der
i�is Agreement, including, but not limited to, finished and un�nished dra�vings, sketches, photographs,
models, designs, the Work up to the effective date of termination shall beco��e property of City.
d. If termination is by mutual a�reement of the Parties as set fortl� in Section 1].4.a, then City shall pay
Artist per the payment schedule in Section 3.2 as determined rn City's sole discretion up through #he
date of termination. City sha11 have the right to possession and trans%r of all work prqduct produced
by Artist under tl�is Agr•eement, including, but not limited to, iinished and unfinished drawings,
sketches, pl�otographs, models, and designs, up to the effective date of termination.
11.4. Termination for Cause.
a. If either party to this Agreement shall fail io fulfill their obligations in accordance with the terms of
this Agreezner�t, or otherwise violate any of fhe covenants, agxeern ents, ar stipulations �naterial to this
Agreement, tIaez� ilae Pa�ties shall first atterript to resoIve any disputes arising from this Article 11.4 in
accordance with the dispute resolution process set forth in Article 12 of this Agreement. If th� Parties
cannot resolve the dispute(s), then tl�e disputing party shall thereupon have the right to terminate this
Agreement upon the deIivez-y of a wriiien "Notice of Termir�ation" specifying the graunds for
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tennination. Termination of this Agreement under this Article 11.4 shall not re]ieve the pa.rty in default
of any ltability for damages resulting from a breach or a violation of the terms flf this Agreement.
b. Ii City t�nninates tl�is Agreement piirsuant to this Article 11.�, then City shall have the righ# to
complete the Work in accordance with the Artwork Design, wlaich shall be in additio�-► to any and all
other rights and rernedies available to City at law or in equity. If City exercises its right to completa
the Work, then, notwithstanding anything to ihe contrary:
(1) title to the Artwork Design, Work, and al� other work product under this Agreement and
any prior agr•ee�nent far the Work, incIuding, but no# litnited to, all documents, modeis, and
drawings that consiituie or are cot►aponents of the Artwork Design and Work, shall pass to
City and become the property of City, without restriction or� futL►re use, immediately upon the
City's exercise of its right to complete the Work;
(2) Artisi shall forfeii ar�y and all rights ta the Artworl� Design, Work, and aIl other work
product under this Agreement and/or any prior ageement for the Work, includ�ng, but not
limited fo, those stated under Articles 7(Ownership and Inteliectual Property) and 8{Artist's
Rights) of this Agreement;
(3} Artist automatically sells, assigns, and transfers to City, the entire righi, title, and interest
in and to tl�e Artwork Design, Wark, and all other work product under this Agreement or any
prior agreement for the Work that the Artzst has �nder the Copyright Act of T976, 17 U.S.C.
SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without
lixxziiat�on, the exclusive right to reproduce, prepare derivative works based upon, distribute
copies io the public as well as display said ArtvS+ork Design and Wark, the same to be he]d and
employed by City for CFty's own benefit and use and for the benefit and use of City's
successors, assigns, and Iegal represen#atives forever;
(4) Artist sha11 have no copyrzght or other property interest in the Artwork Design, Work, or
any otiher work product under this Agreement and any prior agreerne�# for the Work; and
(5) Artist, pursuant to this ArYicle 11.4, hereby acknowledges the righis oi attribution and
integrity conferred by Section 106A(a) of Tit�e 1'7 of the U.S. Code, {as amended ar as it may
be amended in the firture) Titled "Visual Artists Rights Act," and any other right of the same
nature gz-anted by U.S. �ederal, state, or foreign laws, and of his/her own free act hereby waives
such rights with respect to any and all uses of the Artwork Design, Work, and all other work
product under t�is Agreement and/or any prior agreeznent as a public artwor�C. Nothing in this
Article I 1.4 shall affect the survival ofthe Ar�icles outlined in ArticIe 14.16 afthis Agreement,
which shall remain in full force and effect upon termination of this Agreement.
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ARTICLE 12
DTSPUT� RESOLUTION
a. If eitl�er Artist or City has a clairn, disp�te, or other matt�r ir� question for breach of duty, ob]igations,
services rendered or any wanranty that arises under this Agreement, the Parties ,sha11 �z-st attempf to resolve
these issues through this dispute resolution �rocess. The disputing party shall notify the ather party in
writing as soan as practicable a$er discovering the claixn, dispute, or breach. The notice shall state the
nature ofthe dispute and list ihe party's specific reasons for such dispute. Within ten (10) business days
of receipt of the notice, both parties shali znake a good faith effort, either through email, mail, phane
conference, in person �neetings, or other reasonable means io resalve any claim, dispute, breach, or other
matter in question that rnay az�se out of, or in connection witl� this Agreement.
b. If the Parties fail to resolve the dispute wiihin si�ty {60) calendar days of ti�e date of receipt of the notice
of the dispuie, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the
Texas Civit Fractice and Remedias Code and Chapter 2009 of the Texas Government Code, tk�e� in effect.
Request for mediation shall be in writing, and shalI request ihat the mediation commence not less ihan
fifteen {IS} or more than forry-five (45) calendar days followi�g ihe date of request, except upon
Agreement of the Parties. In t�ae event City and Artists are unable to agree ta a date for the mediation or
ta ihe identity of a mutual�y ag�eed mediator wi�thin thirty (30) calendar days following the date of tk�e
request for naediation, then all the conditions precec�ent in this article shall be dee�ned to ha�e occ�rred.
The Parties sha11 share the mediator's fee and any fiIing fees equally. Ver�ue for any mediation or lawsuit
arising under this Agreement shall h� in Tarrant County, Texas. Any agreernent reached in mediation
shall be enforceable as a settlement agreement in any court hauing jurisdiction. No provision of this
agreement shall waive any immu�nity or defense. No provision of this Agreement constitutes consent to
sue. If the Parties cannot resolve the dispute through mediation, then either party shali have tk�e right to
exercise any and all remedies available undei• law re�arding the dispute. (See Article 11.4)
ARTICLE I3
EQUAL OPPORTUNITY
a. Artist sha11 not engage in any unlawful discrimination based on race, creed, color, natio�al oz'igin, se�,
age, religion, disability, ma��ital status, citizenship status, sexuaI orientation or any other prahibited
criteria in any employment decisions relating to this Agreement, and Artist represents and vvarrants
that to the e�tent required by applicable laws, ii zs an equal opportunity employer and shali comply
with a11 applicable laws and reguiations in any employrr�ent dEcis�ons.
b. In the event of Artist noncampliance with the nondiscrimination cIauses af this Agreement, this
Agreement may be canceled, terminated, oz- suspended in whole or in part, and Artist may be debarred
from further agreements with City.
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ARTICLG 14
MISCELLANEOUS
14.1. Com liance.
Artist shall comply with alI Fed�ral, State and City statutes, oz'dinances and regulations applicable to the
performance of Artist services under this Agreement.
14.2. Entire A reement.
This writing embodies the enEire agreernent anc� understar�ding bet�x+een the Parties hereto, and there are no
other agreements and undersiandings, oral or wr�tten, with reference to the subject matter hereof that are not
merged herein and superseded hereby.
14.3. Amendrnents.
No alteratian, change, modification or amendment of the terms oi this Agreement shall be valid or effective
unless made in writing and signed by both pariies hereto and approved by appropriate action of City.
1�.4. Waiver.
No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default
of any ter�xis, cavenants, and conditions of this A�reezr�ent. The payment or acceptance of fees for any period
after a default shall not be deemed a waiver of any right or acc�ptance of defective performance.
14.5. Governing Law and Venue.
Iiany action, whether real or asserted, at law or in equiiy, arises on the basis af any provision ofthis Agreement,
venue for such actioz� shali Iie in state courts located in Tarrant County, Texas or the United States District
Couri for the Northern District of `I'exas — Fort Worth Division. This Agree�nent shall be construed in
accordance with the laws of the State of Texas.
14.6. Successors and Assi�ns.
Neither party hereto shall assign, sublet or transfer its interest herein without prior wz�itten consent ofthe other
party, and any atte►r�pted assignment, sublease or trans,fer qf all or any part hereof without s�ch prior written
consent shall be void. This Agreement shaIl be binding upon and shall mure to ihe benefit of City and Artist
and its respective successors and pennitted assigns.
14.7. No Third-Part Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefii of City and Artist, and any lawiul
successor Qr assign, and are not intended to creafe any rights, contractual or otherwise, to any ather person or
entity.
14.8. SeverabiIitv.
If ar�y provision of this Agreement shall be held to be inva]id, illegal ar unenforceable, the validity, legality
and en%rceability of the remaining provisions shall not in any �wvay be affected ar impaired.
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14.9. Contract Constructiox�.
The Parties acknowledge that each party and, if ii so chooses, its counsel have reviewed and revised this
Agreement and ihat the normal rule of construction to the effect that any anr�bzguities are to be resolved against
the drafting party must not be e�xtpioyed in ihe interpretation ofthis Agreemer�t or any arnendments or exhib�ts
hereto.
14.10. Fiscal Funding Out.
If, for any reason, at any tizne durin� any ierm of fhis Agreement, the Fort Worth City Council fails to
appropriate funds sufficient for City to fulfill its obligations under thrs Agreement, City may terminate this
Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written
notice of City's intention to terminate or (ii} tlae last date for which funding has been appropriated by the Fort
Worth City Council for the purposes set forth in this AgreEx�rzent.
14.11. Captior�s.
Captions and headings used in this Agree�x�ent are for reference purposes onIy and sha11 not be deemed a part
of this Agr•eement.
14.12. Artist's Address.
Artist shall notify the Contract Manager of changes in address.
14.13. Survivin� Cavenants.
The covenants and obligations set forth in this Agreement shai� not survive the death or legal zncapacity af
Artist.
I4.14. Ri ht to Audit.
Artist agrees that City wiIl have the right fo audit the financial and business records oiArtist that relate io the
Cancep#uaI Design {collectively "Racords") at any time during the Term of this Agreemenl and %r three (3)
years thereafter in arder to determine compliance with t�ais Agreement. 'Throughout the Term of this
Agreement and for tkn-�� (3) years thereaf�er, Artist shall make al] Records a�ailable to Ciiy on 200 Texas
Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance
r�otice by City ancf sha.lI otherwise cooperate fu11y with City during any audit. Artist shall require all of its
subcontractors to include in t�eir subcantracts a right to audtt in favor of City in substantially the same form
as above.
14.15. Certified MBE/WBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Busiz�ess Enterprise
(MBE) or Woman Business Ente�rprise (WBE) firm with a certifying agency whose certiiication is accepted
by the City under the City's Business Diversity Enterprise Oz'dir�ance.
14.16. Survival �rovision.
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The provisions contained in Articles 5{Warranties), 6(Indemnity Provisions), '7 (O�+nership and Jniellectual
Property Rtghts), 9(Artist as Independent Contractor), 1 1.2 {Deat� or Incapacity of Artisti), and 14.14
Righi to Audit shall survive the terinination or expiration of this Agreement.
14.17. Counter ar�s ar�d E�ectronic Si naiures.
This Agreement �nay be executed in several counterparts, each of whtch will be deemed an original, but all of
which together wi11 constitute one and the same instrument. A signature rece�ved via facsirnile or electronically
via email shall be as �egally binding for al] purposas as an original signature.
14.1 S. Time ExCensions.
The Parties may agree, in writing, to extend or modify any afthE time deadIines set forth in #his Agreement.
14. � 9. Israei.
If Artis� is a company with ten (10) or mare fu21-time empIoyees and if this Agreement is for $100,000 or rn ore,
Artist acicnowIedges that in accordance with Chapter 2270 of the Texas Government Code, the City is
prahibited frarn entering inio a contracC with a company for goods or services unless the contract contains a
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during
the term of the contract. The terms "boycott Israel" and "eqmpany" slaail have the meanings ascribed to thase
terms in Section 80$.001 of the Te�as Govemment Code. If applicable under this Agreement and Artist is
considered a"company," hy signing thisAgreement, Artist eertifies thatArtrst's signature provides written
verificafion to the Crty that Artist: (I) �ioes not 6oycott .Isrc�el; and {2) fuill not Loycott Israel �Iuring the term
of the Agreement.
ARTICT,E 15
NOT�CES
AIl noiices, r�quests, dexx�ands, and o�her communications which are required or perinitted to be given under
this Agreement shalI be in wrEting and shall be deemed to have been duly given upon the delivery or raceipt
thereof, as the case may be, if delivered personalty ar sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
l. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager's Off ce
Czty of Fort Worth
20q Texas Street, Third Floor
Fort Worth, Texas 76102
Copies to: Sarah Fu�lenwider, City Attorr�ey
Office of the City Attorney
City of Fort Worth
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2U0 T�xas Streef, Third ��oor
Fort Worth, Texas 76I42
2. ARTIST
Martha Peters, Director aiPublic Art
Arts Council of Fort Worth
1300 Gendy Stt-eet
Fort Worth, Texas 761 U7
EIizabeth Akamatsu Fenci
].0041 Appleby Sand Road
Nacogdoches, Texas 759G5
IN WITNESS HEREOF, the Parties hereto have execuied �is A�t'eement ta be effective as of the Effective
Date.
C�TY 4F FORT WO1zTH
�y:
Fernando Costa
Assisiant City Mariager
ARTIST
�'�� �� `�,�.� --
Eiizabeth Ak�xnatsa Fenci
Artist
CONTRACT COA'fFLIANCE MANAGER
By signing, I acknowledge that I ara the person responsible
for the monitvring and adtninistration of this contract, including
ensuring all per%z�mance and repnrting requirements.
. . " ,.;
.
Narpe: MichelIe Ric ardson
Title: Public Art i'roject Manager
APPROVED AS TO FOR11+�
AND LEGALITY:
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Tho���as Royce ��at�sc�� �
Assistant City Attorr�ey
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ATTESTED BY: • ��
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Mary J. Kayser -
City Secretazy
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Agreement for Commission of Pub[ic Artwork with
Elizabetli Aka�3�atsu Fenci for Diamond Hill Cornmunity Center
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Executior� Copy 5/1 i12D21
21 af34
Contract Authorizafion:
Form 1295: 2021-71716�4
M&C #: 2I -032 i
DATE: 05/11/2021
Agreement for Cotnmission of Yublic Artwork with
Elixabeth Akamatsu Fenci for Diamond �Ti[l Community Genter �xecution Copy 5/1 L/2021
22 of 34
Exhibi� A: Artwork Design
Narrative Descriptipn
The idea af pianting a seed, setting roots, and growing a bountiful Iife serves as a metaphor for the Diamond
Hill community and is the inspiratton for tk�is sculpture titled, RisingStYong. Designed as a bouquet, three
various gem-shaped flowers create a tripartzte farm representative ofthe power of fanr�ily, community, and a
commitment to the fuhire. The stainless-sieel sculpture will become one with its environment, reflecting the
vibrancy of the building, the peaple it serves, and the ever-changing seasons that surround it.
Intended as a visual landmark for the new Diaznond Hill Community Center, the sculpture spans eight (8) feet
in iength by eight (8) feet in width by sixteen (16) feet tn height. The artwark will sit atop a twenty (20) inch
trianguIar concrete platform, each side measuring roughly thirteen (13) feet, eight (8) inches, which also acts
as integrated bench seating. Decomposed granite will surround the platform for passers-by, a minimum ofthree
(3) feet in width at any given point fpr ADA accessibi]ity.
Artwark Design� �mages
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Agreemcnt for Commission oi Public Arturork with
E[izabeth Akamatsu Fenci ior Diamond I�Iip Community Center Execution Copy 5/11l202)
23 of 34
Rendering wzt� Architectural Building Detail
Stainless steel sculpture: 8' i�a length by 8' in width by 16' in heigh�
'I'riangular concrete l�ase: 13' 8 5/16" in length per side by 20" in heigh.t
*Suggested r�ative grasses not irtcluded in artist scope.
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Agreement for Commission of Public Artwork wifh
Elizahcth Akamatsu Penci for Aiamond Hill Communily Center Execution Cupy 5/1 1/2021
24 of 34
Rendering aF mocic-up environment shornr sky calors refTected in scUlpture
Defiail of diaznand gem-shaped ilowers
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Added Deconnposed Granite Walkway
27' 3/4" in length by 27' 3/4" in width by 39' 61/z" diaganally across
Total Square Footage: 364'�/4 sf
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AgreemenE for Comrnission of Public Artwork with
Eliza6eth Akamatsu Fenci for Diamond T�ill Community Center Execution Copy S/l ]/2421
25 of 34
Exhibit B: The Site
Diamond Hill Com�nunity Center, to be located at the intersection of Weber Street and 36t'' Street (76I06)
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Agreement for Cammission af Public Ariwork with
�lizabeth Akamatsu Fenci for 17iamond Hill Community Center Execution Copy 5/11/2021
26 of 34
Exhibit C: Technical and Maintenance Record
GENERAL INFORMATION
Artist:
Address:
TeZephone:
Cell:
E-�nai�:
Gallezy Affiliation:
Other Representation:
ARTWORK
Title oiArtwork:
Project Name and Locaiion Address:
FWPA Project Manager:
Descripiion of Artwork: (attach separately if necessary}:
Artwork Dimensions:
Height:
Pedestal or Pad Material:
Pedestal or Pad Dimensions:
Height:
Width:
W idth:
Depth:
Depth:
Location & Descripiion of Signature Marrkings {or copyright):
Agreemer�t for Commission of Public Artwork with
�lizaheth Akamafsu Fenci for Diamond Hill Community Genter Execution Copy 5/11/2021
27 of 34
Edition Infornaation zf applicable:
Date of Execution:
Place of E�ecution:
Collaborating Artist:
Fabricator (if other than artist)
Fabricator Address:
Methods/Materials Used in Execu#ion of Ariwork
Materials (list type, branc! name and manufacturer of all materials; attach Material Safety &
Technical Data. Include contact names for all suppliers and attack� warxanty i�afoz-�r�ation}:
Construction Description: (list all fabricators and any architects, engineers or other technicians
involved in the creation and installation of this ariwork. Attach all warranties & agreemenis)
Material(s) Speciiications:
Joining Methods:
Welding Rod AIloy or Joint Material & Application Method:
Agreemctat for Commission of Pu6lic Artworic with
Elizabeth Akamatsu Fenci for Diamond Hill Community Center Execution Copy S/l 1/2021
28 of34
Casting Alloy, Wax Body, Glass or Fiber Type:
Finishes & Coatings {paint color and type, glaze, patina, any and all coatings including fixative,
UV, graffiti, etc. Please list vendors and contact inforrr�ation anc! provzde all pz-oduct infarmation):
Pedesia�s, Foundations & Footings, Mounting and Attachment Applications
(List all rnaterials used to instalI artwork on site. Include vendor information, parts numbers,
warran#ies and agreements.)
Integrated Components
(List all componezats included in design and fabrication contracts that function as a part of ihe �nal
installation including but not limited to: Iighting, media, landscaping, etc. Include all vendor
information, parts numbers, warranties and agreements and any/alI deszgn schematics):
Instal�ation
Izastallatian Date:
Ynstallation Method: (describe installation method, provide photo documenfiation if available. List
name and contact infoz�raation of installation crew. Attach any diagrams or disassezxibIy
instructions.)
Agreement for Commission oP Pubiic Artwork with
Elizabeth Akamatsu Fenci for Diamond �Iill Commu�ity Center Execution Copy 5/11/2021
29 of 34
Recorrimended Routine Maintenance
Artist recommendation based on e�perience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Canser�vator's Long Term IVlaintenance Recommendaiior�s)
Unusual or Special Circumstances of Note
Artist's Tntention
(Please describe your view of how the artwork will change over time and in response to
environmental conditians. Artis�'s vision of how the artvvork will look in the future assists FWPA
in realizing an appropriate conserrvation action plan. In addition ta environmentaI conditi4ns public
artworks are often affected by public handIing, landscaping a�d siie changes. Please clearly detaiI
your expectaiions for thzs artwark. Please address issues related to the life e�pectancy of this
artwork.)
Agreement for Commission of Public Artwork with
Elizabeth Akamatsu �'enci for Diamond Hill Communify Center ExecuEion Copy 5/! 1/2021
3fl of34
Exhibit D: Af�davit
AFFIDAV�T OF. B�LLS PAID
Date:
Affiant:
Purck�aser:
Property:
Affiant on oath swears that the followzng statement is true:
Affiant has paid each of Ai�ant's cantractors, laboxers, and materialmen in fulI for al1 labor and
materia�s pravided to Affiant for the construction af any and all izxiprovements on the property.
Affant is not indebted to any person, firm, or corporation by reason of any such construction. There
are no claims pending for persanal injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me, ihe undersigned authority, on this the
Day of , 2Q_.
Notary Public, Staie of Texas
Print Name
Commission Expirres
Agrcement for Commission of Pablic Artwork with
Elizabeth Akamatsu Fenci for Diamond Hill Community CenCcr Cxecution Copy 5/11/2021
31 of34
Exhibit E: �ales Tax Exemption
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Agreement For Commission of Public Artwork with
Elizabeth Akamaisu Fei�ci for l�iamond I Iill Community Center Execution Copy 5/11/2021
32 of 34
E�chibit F: Ins�rauce Requirements
PUBLIC ART PROJECTS - IIVSURA.NCE REQUIREMEN`I'S
Artist shall rneet all the following ins�rance requirements for this Project. If Artist subcontracts fabrication,
transportatior�, and/or instaltatian of the Work, then Artist shall a�so require his/her subcontractor{s) to abide
by a�l of the following insurance reyuirements.
Commercial General Liability (CGL}
$1,OQ0,004 Each occurrence
$2,000,000 1lggregate limit
Coverage shall include, but noi be limited to, fhe follovving: premises, operations, independent contractors,
products/co�pleted operaiians, persona] injury, and contractuaI liability. Insurance shall be provided on an
occuz-irence basis, and be as comprehensive as the current Insurance Services Office (ISO} policy. The policy
shall name City as an additional insured.
Bailee's/Property (if applicable)
The inland rr�arine policy shall provide per occurrence coverage at replacement cosi value based on tk�e latest
appraised value of the Artwork, which zs entrusted to the Artist and is considered ta be in the Artist's care,
custody, and control and shall include prop�rty "in transit."
Automobile Liab�lity
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$ l 00,aoa Property Damage
A commercial bL�siness palicy shall provide coverage on "Any Auto," defined as autos owned, hired and non-
owr�ed.
For Artist and/or Artist's Subcontractors who ha�e employees: Workers' Compensation
Stafu�tory limits
Employer's liability
$ l DO,aoa Each acc�dent/occurrence
$100,000 Disease - per �ach eznployee
$500,000 Bodily Injury/Disease - policy lirzz�t
Workers' Cornpensation coverage shall provide limits consistent with statutory benefits outlined in the Texas
workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.}.
GENERAL POLICY REQiTIREMENTS
The certificate of insurance shall inciude an endorsement narrzing the City of Fart Wprth, its' Officers,
�mployees and Volur�teers as an "AdditionaI Insured" on all liability policies. Exception... the additional
insured reqturement does not apply to Workers' Connpensation or Automobile policies.
Agreement for Commission ofPu6[ic Artwork with
Elizabeth Akamatsu Penci for Diampnd Hill Cpmmunity Center Execution Copy 5!l 112021
33 of34
Artist is responsibte for providing the City a thirty day (3d) notice of cancellation or non-renewal of any
insurance poIicy and may not change the terms and conditions of any' policy that wo�zld limit the scope or
coverage, or otherwise �lter or disallow coverage as required herein.
The workers' compensation policy sha11 include a Waiver of Subrogation (Right of Recovery} in favor of the
City oiFort Warth. The insurers for all policies must be licensedlapproved ta do business in the ,State of Texas.
`I'he insu�rez-s for all poIicies �rzaust be licensed/approved to do business in the State of Texas. The insurers for
all policies rnusf be licensed/approved to do business in the State of Texas. All ins��rez-s nr�ust have a rnzniznuzn
rating of A� VIT in ihe current A. M. Best Key Rating Guide or have reasonably equivalent �nancial strength
and solvency to the satisfaction of Risk Management. Tf the rating is below ihat required, written approval of
Risk Management is required.
If insurance policies are not written for specified coverage li�its, an UmbreIla or Excess Liability insurance
for any differences is required. Excess Liability shal] follow form of the primary co�erage.
"Unless otherwise stated, all required insurance shall be written on an "occurrence basis."
T�ae deductible or self-insured retention (SIR) affectzng zequired iz�suranc� coverage sha11 be acceptable to and
approved in writing by tk�e Risk Managar of City of Fort Wort� in regards to asset value and stockl�olders'
equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk
retention groups, must also approved by City's Risk Manager.
City, at its so]e discretian, reserves the right to review the insurance requirements and to make reasonable
adjustments to insurance coverages and their ]imits when deemed necessary and prudent by City based upon
changes in statutory law, court decision or the claims history of the industry as well as of the contracting party
to City of Fort Worth. City shall be required to provide prior notice of ninety days.
City sha�l be entitled, upon request and without e�pense, to receive copies of policies and endorsements ihereto
and may make any reasonable req�esis for deietion or revision ar modificaiions of pat�Yicular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by Iaw or regulations
binding upon either of party or the underwriter on any such policies.
Agreement for Commission ofPublic Artwork with
EGzabeth Akamatsu Fenci for Diamond � Till Community Center Execution Copy 5/11/2021
34 of 34
5/25/2021
���Y �OU�Ci� �C����►na
M&C Review
O�cial site of the Ciry o€ Fort worch, Texas
���{�
DATE: 5/91/2027 RFF�R€NC€ **M&C 21- LOG
NO.; 0321 IVArili�:
COD�: C TYPI�: CONSENT �U�LIC
HEARIfVG:
03DIAMOND HI�.L COMMUNfTY
CENTER PUBLIC ART PROJECT
NO
SU�JEGT: (CD 2) Authorize Execution af an Artwork Commission Contract with Elizabeth Akamatsu
Fenc� in an A�ount Up to $157,'�96.69 for Fabrication, Delivery, Instalfation and
Contingencies for Artwork at the New Diamond Hill Community Center, to be L.ocated at
the lntersection of Weber St�eet and 36t�' Street, Fort Worth, Texas 76106 and �'ind �hat
the Use of the Funds far Pubiic Ar� for this Project Complies with th� Voted Purpose of th�
Bond Funds (201$ Bond Program)
RECOIUIfVIEIVDATION:
lt is recommended that the Cify Council:
1. Authorize the execution of an Artwflrk Commission Contract with �lizabeth AEcamatsu Fenci in
an amount up to $157,195.69 for fabrication, deiivery, installation and contingenci�s for
artwork ai the new Diamond Hifl Cammunity Cen�er, to be located at the intersection of
Weber Street a�d 36th Stre��, 76106; and
2. Find that the use oF the funds for pub�ic art for this project complies witl� the voied purpase
of the bond funds.
DISCLISSION:
T�e idea of plan#ing a seed, settir�g roots, and growing a bountiful life serves as a metapi�ar for tYte
DiamoncE Hill communify and is the inspiration for this sculpture titled, Rising Sfrong. Designed as a
bouquet, three �arious gem-shaped flowers create a tripartite forrrt representati�e of t�e power of
family, community, and a commitment to the future. The stainless-steel sculpture will become one with
its en�ironment, reflecting the vi�rancy af the building, tf�e people it serves, and the ever-changing
seasans that surround it.
A �isual landmark for the new Diamor�d Hilf Community Genter, the sculpf�are will stand sixteen {16}
feet in height, �ight (S) feet in length, and eight (8) feet in width. ft will sif afop a triangular concrete
platform twenty (20) inches in heighf with each side measuring approximately thir�een (13) feet, eight
(8) inches, which pro�ides inkegrated bench seating. Surrounding the platform is a decomposed
granife pathway For accessibility that will set it apart from the great lawn.
On June 25, 2020, Elizabeth Akamatsu Fenci was placed under a Fina! Design Agreement {City
Secretary Contract No. 54144) in an amount up to $12,449.00,
Fort Worth Art Commission {FWAC) Action: On January 11, 2021, the F'WAC approved the final
design and recommended that the ar�ist be placed under an Artwork Commission Contract.
ParK and Recreation Ad�isory Board Action: The Final Design was presented to the Park and
Recreation Advisory Board as an information item on March 24, 2021. They endorsed ti�e artwork
location on March 28, 2021.
Funding for the project was approved as part of the Publlc Art Plan for fhe 2098 Bond Program,
adopted by the Fort Worth Cify Council on November 6, 201$ �Mayor and Covncil Communicatior�
(M&C) G-1940� ). The projecf was included in the Fort Warth Public Art Fiscal Year 202� Annua! Work
Plan, adopted �y the Fort Worth City Council September 22, 2020 {M&G 20-0678},
The arfist shall require her subcantractors to p[�II all permifs required for this project; however, the City
shafl waive any fees for these permits as this project is funded by City Band funds.
Estimatecf regular maintenance on this project is anticipated to be $9,70q.00.
apps.ciwnet.orglcou ncil_packet/mc_review.asp? I D=28871 &councildate=511'[ 1202'E 113
5/25/2021
PROJECT BUDG�T
Public Art Prajec#
Management Allocation
Selection Process
Contracts
Prefirnirtary Design
Contract
Final Design Cantract
Commissi�n and
Cantingency
TOT�4L
AMOUfVT
___.. _.�.�.. _.�._._..�..�.. �._.........
$32,307.Q0
4��� W$900.00
�� $9,187.44
�..e.___$ � 1,942.87�
,
.^_$1�i,196.69�
�..�.�._�_.___. _ _ _ �... _ . _._�._;
$2'i 1, 534.00 ��
M&C �teview
CONTRACT
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CSC #52702, 52703 �
___. _.�.�.,_�_. .. _.____.�.�. _�.�._._.�.�._ �._. �.J
CSC #5295'!
._ ..� ____�.�_..�__.__-•___ _ _.._� .___�
CSC #541 �4� �
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This M&C ,
]�Ufi[D1WG SOURC�S ,po,iViOUNT
2�9 S�ond Program, Proposifion B $211,534.00
i0 i�oL $291,534�.pQ
This project is included in the 2018 Bond Program. Available resources within the General Fund will
be used to pravide interim fnancing until debt is issued. Once debt associated with tY�e project is
sold, bond praceeds will reimburse the Generaf Fund fn accordance with the statement expressing
official ln#ent to Reimburse that was adopted as part of the ordinance canvassing the bond election
(Ordinance No. 23209-05-20�8) and subsequent actions taken by the Mayor and Councii.
M11NBE OFFICE - The City's overali MIWBE goai for the Fort Worth Public Art Program is 25 percent
of tofal capita� project dollars expended on pub[ic ar� annually.
Council Member Car�os Flores cor�curs with the FWACs recommendation to proceed with the
corrrmission of the Diamand Hill Community Center Public Ar� project.
This �roject is focated in COUNC��. DiSTRICT 2.
F'ISCAL NNF'ORIU�ATI4�IICER�I�r1CATION:
The Director of Finance certifies that funds are available in the current capital budget, as previously
appropriated, ir� the 20�8 Bond Program F'und for the �'WPA Diamand H�[I CC project ta suppor� the
appro�al of the above recommendations and ex�cution ofi the eommission contracf. Prior ta any
expenditure being incurred, the Pfanning & Dafa Analytics Department has the responsibility to
validate the avaifabil�ty of funds.
Submitted for City fVianager's Office by�.
Originating Department Head;
�dditionai Information Contact:
Fernando Cos�a {6122}
Mark McAvoy {6222}
apps.cfwnei.orglcouncil�acketlmc_review.asp?iD=28871 &councildate=519112021 213
5125/2029
M&C Review
Martha Peters {8�7�298�3025)
ATTACHM�MTS
apps.cfwnet.org/council_packeUmc_review.asp?I D=2887'f &counci ldate=51'1 � I2421 313