HomeMy WebLinkAboutContract 56585 AGREEMENT BETWEEN THE CITY OF FORT WORTH
�9' AND KARLA GARCIA,FOR FINAL DESIGN FOR
TRAIL DRIVERS PARK PUBLIC ART PROJECT
This Agreement,entered into this 20 day of October , 2021, by and between the
City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Fernando
Costa, its.duly authorized Assistant City Manager, and Karla Garcia,an individual,located at 1602 Elmwood
Boulevard,Dallas,Texas,75224. The City has designated the Arts Council of Fort Worth and Tarrant County,
Inc.,to manage this Agreement on its behalf.The Contract Manager shall act through its designated Public Art
Project Manager.
WHEREAS,pursuant to Chapter 2,Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances,
the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth
residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists
into the development of the City's capital infrastructure improvements and to promote tourism and economic
vitality in the City through the artistic design of public spaces;
WHEREAS, City has completed improvements in Trail Drivers Park, located at 2502 Guenther
Avenue,Fort Worth,TX,76106(Council District 2);
WHEREAS,this Project was included in the Public Art Plan for the 2014 Bond Program,adopted by
the Fort Worth City Council on October 21, 2014 as M&C G-18339. Additional funding for the Project was
included in the Fiscal Year 2020 Fund Reprogramming Plan,adopted by the Fort Worth City Council on April
7, 2020 as M&C 20-0205. The project was included in the Fort Worth Public Art Fiscal Year 2021 Annual
Work Plan, with Fund Reprogramming by the Fort Worth City Council on September 22, 2020 as M&C 20-
0678;
WHEREAS, on February 16, 2021, the City entered into a contract with Artist to develop a
Preliminary Design for the Site(Fort Worth City Secretary Contract No. 55322);
WHEREAS, on August 16,2021, the Fort Worth Art Commission("FWAC") approved the Artist's
Preliminary Design, and recommended that the Artist develop a Final Design based upon the Preliminary
Design for public artwork to be incorporated into the Site;
WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be
designed to promote the integrity of Artist's ideas and statements as represented by the Work;
NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements
hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below:
OFF MAL RECORD
Agreement Between the City of Fort Worth and CI Tlfl� �� RY
Karla Garcia for Final Design for Trail Drivers Park F%P
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1.1. Agreement—Means and includes this agreement between the City and Artist for Final Design
of Public Art for the Site.
1.2. Artist—Means and includes Karla Garcia.
1.3. Artwork Design—Means and includes the Preliminary Design and Final Design of the Work,
which is defined in 1.3a and 1.3.b below:
1.3.a.Preliminary Design—Means all preliminary drawings,sketches,narrative descriptions,
budget estimates, and the like that are created by Artist in connection with Fort Worth City
Secretary Contract No. 55322, depictions of which are attached hereto as Exhibit "A" and
incorporated herein for all purposes.
1.3.b. Final Design—Means Artist's final,proposed design of the Work for the Site,which is
based upon the Preliminary Proposal. and includes, but is not limited to, all final drawings,
sketches, prototypes, maquettes, models, and the like that may be created by Artist in
connection with this Agreement,or the like that are related,directly or indirectly,to the Work
and shall include Artist's specifications for fabrication and installation of the Work.
1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc.,and/or its officers, directors,employees.
1.5. City—Means and includes the City of Fort Worth.
1.6. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement.
1.7. Final Design Deliverables—Means and includes those items set forth in Article 2.4 of this
Agreement that are required for City's review and approval.
1.8. Parties—Means and includes City and Artist.
1.9. Project—Means and includes the capital improvement or public art development undertaking
of City for which Artist's services are to be provided pursuant to this Agreement. A project outline attached
hereto as Exhibit"B"describes the parameters and expectations of the project.
1.10. Project Core Team—Means 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 for its duration, in
accordance with the Fort Worth Public Art Master Plan Update,page 23.
1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), the
Trail Drivers Park Project Core Team, the Artist Selection Panel,the FWAC's appointed representative, City
staff,and others as may be appropriate.
1.12. Site—Means the Trail Drivers Park grounds, specifically the main area of the park north of
the baseball fields, located at 2502 Guenther Avenue,Fort Worth,TX, 76106, attached hereto as Exhibit"C."
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1.13. Work—Means and includes the finished objects of art and design that are the subject of this
Agreement,or any intermediary stage of completion of such works.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that the Preliminary Design submitted by Karla Garcia was approved by
the FWAC on August 16,2021,and is the basis for executing this Agreement with the Artist.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Final Design of the Work and for providing the Final Design Deliverables. Services
shall be performed in a professional manner and in strict compliance with all terms and conditions in
this Agreement.
b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the
Work, subject to review and input from Project Stakeholders and approval by City as set forth in this
Agreement. City may request changes to the Artwork Design from time to time under this Agreement,
and Artist will accommodate City's requests.
C. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City
and Artist prior to installation.
d. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with
appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and
permitting.
e. Artist shall meet and coordinate with City staff, and others, as necessary, to integrate the Work into
the Site in terms of structural support,electricity, or other infrastructure needs to support the Work.
f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the Work from said conservator to the Contract Manager.
g. Artist shall present the Final.Design to the FWAC for joint review with the Project Core Team, other
Project Stakeholders,the appropriate City staff,and for the FWAC's approval at a regularly scheduled
FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be
shared with City boards or commissions, as appropriate.
h. Artist shall allow video recording and photography of their participation during activities related to
this project such as presentations and meetings.
2.3. City Assistance.
Upon request by Artist,City shall promptly furnish all information and materials required by Artist to
the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled
drawings of the Site, if available.
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2.4. Final Design Deliverables.
a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to
City for approval. Final Design Deliverables shall consist of the following:
i. Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution
digital format, such as JPEG or TIF files,showing the proposed Work from multiple vantage
points with at least one illustration showing the Work's size and placement in relation to the
Site;
ii. An artist statement, which may include but is not limited to the following topics.: the overall
philosophical approach of the work, how the artwork relates to or engages viewers in the
community, what influenced the Artwork Design, how techniques or materials relate to the
content of the work, and how the work relates to the Artist's studio practice.
iii. A final written narrative for the Work, describing the following: (1) Artist's Final Design
concept;(2)Timeline for completion,proposed materials,fabrication,installation methods for
all elements of the Work, including information regarding Artist's subcontractor(s), if any;
and(3)Maintenance requirements for all elements of the Work as dictated by the Artist,along
with cost estimates for annual maintenance;
iv. Material or fabrication samples and/or model for the Work,as deemed necessary by the
Artist;
V. A detailed final budget,on the budget form attached hereto as Exhibit"D,"for implementation
of the Work in an amount not to exceed $119,613.73 reflecting total costs and inclusive of
remaining artist's fee of $5,577.85, materials, labor, fabrication, travel, transportation,
construction, insurance (City requirements attached hereto as Exhibit "E"),. footings,
installation, all associated costs for the Work, and a contingency of$13,761.37.
vi. Comprehensive working drawings,detailing the means of installing all elements of the Work
on the Site, together with other such graphic material to permit City to carry out structural
design review. Professional Liability Insurance is required in all circumstances for 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 Work. Upon
City's request, drawings must be signed and stamped by an engineer and/or architect licensed
to work in the State of Texas. Artist will provide the Contract Manager a certificate of
insurance for each licensed professional and provide City with athirty(30)calendar day notice
of cancellation of any policy required hereunder. The City's insurance requirements are
attached hereto as Exhibit"E"; and
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vii. Artist shall provide the Final Design presentation materials in PowerPoint format to the
Contract Manager to became part of the City of Fort Worth Public Art archive owned by City.
All documents,models,and/or drawings will be retained for archival and exhibition purposes.
b. Deliverables shall be submitted to the Contract Manager three (3) weeks prior to the scheduled
Final Design presentation for staff review.
2.5. Final Desian Review.
a. Upon completion and submission of the Final Design Deliverables and acceptance by Contract
Manager, Artist shall present the Final Design to the FWAC for joint review with the Project Core
Team, other Project Stakeholders, the appropriate City staff, and for the FWAC's approval at a
regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design
shall subsequently be shared with City boards or commissions, as appropriate.
b. City shall notify Artist of its approval, or disapproval, of the Final Design, either in whole or in part,
within thirty(30)business days of Artist's presentation to the FWAC.
C. If City disapproves of the Final Design,either in whole or in part,then City shall inform Artist of each
revision to be made to the Final Design. City may require Artist to make such revisions to the Final
Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable
statutes,ordinances,or regulations of any governmental regulatory agency having j urisdiction 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 resubmissions will be
by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the
Parties desire not to continue with the resubmission process,then this Agreement will automatically
terminate,with payment for work performed per the payment schedule in Article 3 up through the date
of termination. (see Article 4.4.d)
f. Upon City's approval of the Final Design, any revisions made to a City-approved Final Design shall
become part of the Final Design. Artist shall incorporate any City-approved revisions into the Final
Design in conformance with City's requirements.
g. Artist's Final Design and all other work product under this Agreement shall become the property of
City,without restriction on future use(see Article 6).
h. Upon the expiration ofthe Term(hereinafter defined)of this Agreement,if the Final Design is accepted
by City and funding is appropriated by the Fort Worth City Council, negotiations for fabrication,
delivery, and installation of the work shall commence, which shall become part of the deliverable
under any anticipated artwork commission contract.
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ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall be in an amount of up to TWELVE
THOUSAND, FIVE HUNDRED DOLLARS AND NO CENTS ($12,500.00),which shall constitute full
compensation for any and all costs associated with this Agreement, including, but not limited to, Artist's fee
of$6,500.00, travel, engineering, material sample mock-ups and consulting fees and services performed and
materials furnished by Artist under this Agreement.
3.2. Payment Schedule.
City agrees to pay Artist in the following installments set forth below, each installment to represent
full and final, non-refundable payment for all services and materials provided prior to the due date
thereof:
a. ONE THOUSAND,FIVE HUNDRED DOLLARS AND NO CENTS($1,500.00) upon execution
of this Agreement.
b. TWO THOUSAND DOLLARS AND NO CENTS($2,000.00)within thirty(30)calendar days after
Artist submits the Final Design Deliverables as required under Article 2.4 of this Agreement.
C. ONE THOUSAND DOLLARS AND NO CENTS($1,000.00)within thirty(30)calendar days after
Artist makes a presentation of the Final Design to the FWAC,the Project Core Team,and other Project
Stakeholders.
d. TWO THOUSAND DOLLARS AND NO CENTS($2,000.00)within thirty(30)days after the City
notifies the Artist of its approval of the Final Design.
e. City will provide an allowance of up to SIX THOUSAND DOLLARS AND NO CENTS($6,000.00)
for engineering,material sample mock-ups,professional services,and conservator or other consulting
fees as necessary. Such payment shall be made for actual services rendered only and upon receipt of
an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such
services attached.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due
upon the project. City shall supply Artist with the"Texas Certificate of Exemption"in substantially the same
form as that attached hereto as Exhibit"F"for use by Artist in the fulfillment of this Agreement.
3.4. Artist' Expenses.
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on
submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary
for the proper performance of the services required under this Agreement.
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ARTICLE 4
TERM AND TERMINATION
4.1. Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to
such provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. Gratuities.
City may cancel this.Agreement if it is found that gratuities in the form of entertainment, gifts, or
otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager
official or employee with a view toward securing favorable treatment with respect to the awarding, amending,
or making of any determinations with respect to this performance of this Agreement.
4.3. Termination for Cause.
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of
this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this
Agreement,then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance
with the dispute resolution process set forth in Article S of this Agreement. If the Parties cannot resolve the
dispute(s),then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery
of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement
under this provision shall not relieve the party in default of any liability for damages resulting from a breach
or a violation of the terms of this Agreement.
4.4. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party,subj ect to written
notice submitted thirty(34)calendar days before termination,specifying the grounds for termination.
b. If the termination is for the convenience of City,City shall pay Artist for services actually rendered up
i to the effective date of termination in accordance with Section 3.2 of this Agreement, and Artist shall
continue to provide the City with services requested by City and in accordance with this Agreement
up to the effective date of termination. Upon Artist's receipt of payment in full of all monies due for
services provided up to the effective date of termination, City shall have the right at its discretion to
possession and transfer of title to the sketches,designs, and models already prepared and submitted or
presented for submission to City by Artist under this Agreement prior to the effective date of
termination,provided that no right to fabricate or execute the Work shall pass to City.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay
Artist for services actually rendered up to the effective date of termination in accordance 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 Artist pursuant to this Agreement prior to termination. If City chooses to pay Artist, then all
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work product produced by Artist under this Agreement, including but not limited to finished and
unfinished drawings, sketches, photographs, models, and designs, up to the effective date of
termination shall be come property of the City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.5,then City shall pay Artist
for work performed in accordance with Section 3.2 of this Agreement up through the date of
termination. City shall have the right to possession and transfer of all work product produced by Artist
under this agreement including, but not limited to, finished and unfinished drawings, sketches,
photographs,models,and designs up to the effective date of termination.
4.5. Incapacity of Artist.
a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or
obligations under this Agreement,City shall have the right to terminate this Agreement on payment to
Artist or Artist's successors for all work and services performed prior to incapacity. All finished and
unfinished drawings, sketches, photographs, models, and any other work shall automatically become
property of City.
b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5,
City shall have the right to complete the Work. Due regard shall be made for Artist's intended results
and proper credit and acknowledgement shall be given to Artist.
ARTICLE 5
DISPUTE RESOLUTION
If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations,
services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve these
issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon
as practicable after discovering the claim,dispute,or breach. The notice shall state the nature of the dispute and
list the parry's specific reasons for such dispute. Within ten(10)business days of receipt of the notice,both parties
shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in
connection with this Agreement.
If the Party fails to resolve the dispute within sixty (60)calendar days of the date of receipt of the notice
of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the
authorized representatives ofboth parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies
Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing
and shall request that the mediation commence not less than fifteen(15)or more than forty-five(45)calendar days
following the date of request, except upon Agreement of the Parties. In the event City and Artist are unable to
agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days
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following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to
have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or
lawsuit arising under this Agreement shall be in Tarrant County,Texas, Any agreement reached in mediation shall
be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall
waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot
resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies
available under law regarding the dispute.(See Article 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Title.
Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are
components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment
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 future use,
except as provided below.
6.2. CopyEight 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 the duration of the copyright.
6.3. Reproduction Rights
a In view of the intention that the Artwork Design and the Work be unique,Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant
permission to others to do so except with the express written permission of City. However, nothing
herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and
irrevocable 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 services or its
public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above
limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's
absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify,
destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the
Work when City deems it necessary within its discretion,in order to otherwise exercise City's powers
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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 substantially in the
following form: "0 date,Artist's name."
d. Unless notified otherwise by City,Artist shall use Artist's best efforts in any public showing or resume
use of reproductions to give acknowledgment to City in substantially the following form: "an original
artwork commissioned by and in the public art collection of the City of Fort Worth,Texas."
e. Artist may,at Artist's expense,cause to be registered with the United States Register of Copyrights,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 responsible for
protecting the intellectual property rights of Artist.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
a. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts.
b. Artwork Design and/or Work is and will be unique and original, and does not infringe upon any
copyright or the rights of any person;
C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork
Design and/or Work or any copyright related thereto that may affect or impair the rights granted
pursuant to this Agreement;
d. Artwork Design and/or Work.(or duplicate thereof)have not been accepted for sale elsewhere;
C. Artist has the full power to enter into and perform this Agreement and to make the grant of rights
contained in this Agreement; and
f. All services performed hereunder shall be performed in accordance with all applicable laws,
regulations, ordinances, etc., and with all necessary care,skill and diligence.
ARTICLE 8
ARTIST AS INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor,and not as an officer,
agent,servant or employee of City.Artist shall have exclusive control of,and the exclusive right to control the
details of the work performed hereunder, and all persons performing same, and shall be solely responsible for
the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be
construed as creating a partnership or joint venture between City and Artist,his/her officers,agents,employees
and subcontractors, and doctrine of respondent superior has no application as between City and Artist.
ARTICLE 9
INDEMNIFICATION
9.1. Generallndemnity.
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a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD
HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY
AND ALL CLAIMS,LAWSUITS,JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS,
LOSSES,EXPENSES,COSTS,FEES(INCLUDING,BUT NOT LIMITED TO,ATTORNEY'S
FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES,
LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO,
WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
DAMAGE)AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH)
TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES
IS SOUGHT, OF WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND
THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS
AGREEMENT.
b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to
persons or property sustained by Artist in connection with or incidental to performance under this
Agreement.
C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in
favor of City in substantially the same form as above.
9.2. Intellectual Property.
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws
and any other regulations,including,but not limited to,the assumption of any and all responsibilities for paying
royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no
obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations.
City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by
Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER
AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE
OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT
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VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of Artist.
ARTICLE 10
EQUAL OPPORTUNITY
a. Artist shall not discriminate against any employee or applicant for employment because of age,
disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender,
gender identity,or gender expression. Artist shall take affirmative action to ensure that employees are
treated equally during employment, without regard to their age, disability, race, color, religion, sex,
sexual orientation,national origin,familial status,transgender, gender identity,or gender expression.
Such action shall include, but not be limited to, the following: Employment, upgrading, demotion,
transfer,recruitment or pay or other forms of compensations,and selection for training, including,but
not limited to, apprenticeship. Artist agrees to post in conspicuous places,available to employees and
applications for employment, notices to be provided by the City setting forth the provision of this
nondiscrimination clause.
b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist,
state that all qualified applicants shall receive consideration for employment without regard to race,
color, religion,sex,sexual orientation, national origin,familial status,transgender, gender identity, or
gender expression.
C. Artist shall furnish all information and reports requested by City, and shall permit access to its books,
records, and accounts for purposes of investigation to ascertain compliance with such rules and
regulations.
d. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred
from further agreements with the City.
ARTICLE 11
MISCELLANEOUS
11.1. Compliance.
Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to
the performance of Artist's services under this Agreement.
11.2. Entire Agreement.
This writing embodies the entire agreement and understanding between the Parties hereto, and there
are no other agreements and understandings, oral or written, with reference to the subject matter hereof that
are not merged herein and superseded hereby.
11.3. Amendments.
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 12 of 24
No alteration, change, modification or amendment of the terms of this Agreement shall be valid or
effective unless made in writing and signed by both parties hereto and approved by appropriate action of the
City.
11.4. Waiver.
No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent
default of any terms,covenants,and conditions of this Agreement. The payment or acceptance of fees for any
period after a default shall not be deemed a waiver of any right or acceptance of defective performance.
11.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas or the United States
District Court for the Northern District of Texas—Fort Worth Division, This Agreement shall be construed in
accordance with the laws of the State of Texas.
11.6. Successors and Assigns.
Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of
the other party,and any attempted assignment,sublease or transfer of all or any part hereof without such prior
written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and
Artist and their respective successors and permitted assigns.
11.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any
lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other
person or entity.
11.8. Severability.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
11.9. Force Maieure.
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions;transportation problems;or any other circumstances which are reasonably beyond
the control of the party obligated or permitted under the terms of this Agreement to do or perform the same,
regardless of whether any such circumstance is similar to any of those enumerated or not,the party so obligated
or permitted shall be excused from doing or performing the same during such period of delay,so that the time
period applicable to such design or construction requirement shall be extended for a period of time equal to
the period such party was delayed.
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 13 of 24
11.10. Contract Construction.
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised
this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
14.11. Fiscal Funding Out.
If for any reason,at any time during any term of this Agreement,the Fort Worth City Council fails to
appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this
Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artist of written
notice of City's intention to terminate or(ii)the last date for which funding has been appropriated by the Fort
Worth City Council for the purposes set forth in this Agreement.
11.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed
a part of this Agreement.
11.13. Right to Audit.
Artist agrees that City will have the right to audit the financial and business records of Artist that relate
to the Work(collectively "Records") at any time during the Term of this Agreement and for three (3) years
thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and
for three (3)years thereafter,the Artist shall make all Records available to the City at 200 Texas Street, Fort
Worth,Texas or at another location in the City acceptable to both parties following reasonable advance notice
by the City and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its
subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form
as described in this Article 11.13.
11.14. Certified MVYBE.
If applicable, Artist shall make its best effort to become a certified Minority Business Enterprise
(MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted
by City under the City's Business Diversity Enterprise Ordinance.
11.15. Survival Provision.
The provisions contained in Articles 4.5 (Incapacity of Artist),6(Ownership and intellectual Property
Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification),
and 11.13 (Right to Audit)shall survive the termination or expiration of this Agreement.
11.16. Counterparts and EIectronic Signatures.
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 14 of 24
This Agreement may be executed in several counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument. A signature received via facsimile or
electronically via email shall be as legally binding for all purposes as an original signature.
11..17. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
11.18. Israel.
If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$I00,000
or more,Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City
is prohibited from entering into a contract 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"company"shall have the meanings ascribed to those
terms in Section 808.001 of the.Texas Government Code. If applicable under this Agreement and Artist is
considered a"company,"by signing this Agreement,Artist certifies that Artist's signature provides written
verification to the City that Artist,(1)does not boycott Israel;and(2) will not boycott Israel during the term
of the Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager
City Manager's Office
City of Fort Worth
200 Texas Street
Fort Worth,TX 76IO2
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
200 Texas Street,Third Floor
Fort Worth,TX 76102
Martha Peters,Director of Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth,TX 76107
Agreement Between the City of Fort Worth and
Darla Garcia for Final Design for Trail Drivers Park Page 15 of 24
2. ARTIST: Karla Garcia
1602 Elmwood Boulevard
Dallas,Texas 75224
IN WITNESS HEREOF,the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH ARTIST Dlgltaliy signed by
Karla Garcia
Date:2021.10.20
by. _ _ by. Karla Garcia
16:16:33-05'00'
Fernando Costa Karla Garcia
Assistant City Manager Artist
Date: ZQZZ?&'02-f Date:
CONTRACT COMPLIANCE MANAGER
By signing,I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
Name:ZMichel&Richardson
Title:Public Art Project Manager
APPROVE D h�IAS TO FORM AND LEGALITY:
W.
J sika Williams
Assistant City Attorney
/w.
ATTESTED BY: ��?: C, r4
RonaldP. Gonzales
Acting City Secretary '
Form 1295 Not Required
Contract Authorization:
M&C-No M&C Required
OFFICIAL RECDRD
I
COT'Y SECRETARY
FT. WORTH,TX
—J
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 16 of 24
Exhibit A: Approved Preliminary Design
The Preliminary Design for Trail Drivers Park is inspired by the dandelion seed flower because of the
structural shape, its connection to migration, and the natural landscape. It is spherical in nature which
connects to the idea of communities, and the seeds of this flower are shaped in clusters that form a"T
shape."Combining a symbol of cattle in reference to Fort Worth's historical and cultural history,the work
references the drovers who migrated through the region which the park is named for and the culture that
migrated with them. The resulting mirrored steel sculpture is a large,natural form with repeating stylized
shapes of the cattle horns.
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Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 17 of 24
Exhibit B: Project Outline
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Trail Drivers park
Public Art Project Outline
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The City of Fort Worth has completed improvements at Trail Driver's Park as part of the City of Fort Worth's
2014 Bond Program. Improvements include refurbished parking, a new pavilion, and added bench seating
and tables around several pathways.This location was identified as part of the Fort Worth Public Art Plan
for the 2014 Bond Program.
PUBLIC ART SITE AND APPROACH
This public art project provides an opportunity for a local artist to create a unique artwork for Trail Driver's
Park.The artwork shall be integrated into the north end of the park with a focus on telling the story of the
area.The Project Core Team requested that this project be harmonious with neighboring public artworks by
Leticia Huerta along the Lebow Channel bridges along 28t"Street and Brennan Avenue.They further
discussed artwork that would be approachable for all generations.'
PUBLIC ART BUDGET
The Trail Driver's Park project is included in the Fort Worth Public Art Fiscal Year 2020 Annual Work Plan,
adopted by the Fort Worth City Council on April 7, 2020 (M&C 20-0204). Funding for the project was
included in the Public Art Plan for the 2014 Bond Program as well as the FY2020 Fund Reprogramming Plan
totaling$172,017.17 which includes contingencies and project management costs.
ELIGIBILITY
Staff will recommend 8-1.0 local artists from the Fort Worth Public Art Pre-Qualified List of Artists, and
additional artists by invitation,whose work would be a good fit far the project.
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 18 of 24
PROJECT CORE TEAM
1. Linda Campbell, Diamond Hill-Jarvis Neighborhood Association
2. Tressa Hilburn, North Side Neighborhood Association
3. Roxanne Martinez, Blue Zones& Diamond Hill Resident
4. Jen Sarduy, Diamond Hill-Jarvis Neighborhood Association
5. Orfa Subialdea, North Side Neighborhood Association
6. Cassie Warren, North Side Neighborhood Association
ARTIST SELECTION PROCESS
SELECTION PANEL MEETING#1
FWPA staff shall present a pool of 8-10 local artists from the Fort Worth Public Art Pre-Qualified List of
Artists and other artists by invitation.Artists will be contacted prior to being considered by the Artist
Selection Panel,to ascertain their interest and availability.The Artist Selection Panel shall review the artists'
qualifications and select 3 finalists and one alternate. Upon selecting the finalists,the Artist Selection Panel
will recommend whether the finalists should be invited to create a conceptual proposal prior to the second
Selection Panel meeting.
FINALIST ORIENTATION
The finalists shall participate in an orientation for the project, including a [virtual] site visit.
SELECTION PANEL MEETING#2
The Artist Selection Panel shall interview each of the three artists individually.The Panel may then ask
questions about their professional experience and related work.The Panel will then recommend one artist
and one alternate for the project. Upon the FWAC's approval of the Panel's recommendation, a Preliminary
Design contract will be executed with the selected artist.
MEETING FACILITATOR: Michelle Richardson, Public Art Project Manager,Arts Council of Fort Worth
ARTIST SELECTION PANEL(Voting)
1. Council Member Carlos Flores, District 2
2. Roxanne Martinez, Elected Project Core Team Member
3. Leslie Thompson, Fort Worth Art Commissioner
4. Leticia Huerta,Artist
5. Arts Professional
ADVISORS(Non-voting)
1. Maira Gallegos, District 2 Director
2. Morgan Leal, Park and Recreation Advisory Board, District 2
3. Carlos Gonzalez, Park and Recreation Department,City of Fort Worth
4. Other Project Core Team Members
S. Others as may be appropriate
TIMELINE Suhiect to change)
Project Outline Approved September 14, 2020
Selection Panel Meeting#1 October 2020
Finalist Orientation October 2020
Selection Panel Meeting#2(Interviews) November 2020
FWAC approval December 14, 2020
Agreement Between the City of Foil Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 19 of 24
Exhibit C: The Site
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Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 20 of 24
EXHIBIT D: BUDGET
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FEES INSTALLATION
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Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 21 of 24
EXHIBIT E: INSURANCE REQUIREMENTS
PUBLIC ART PROJECTS-INSURANCE REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication,
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 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent contractors,
products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an
occurrence 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 marine policy shall provide per occurrence coverage at replacement cost value based on the latest
appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care,
custody, and control and shall include property"in transit."
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100.000 Property Damage
A commercial business policy shall provide coverage on "Any Auto," defined as autos owned,hired and non-
owned.
For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation
Statutory limits
Employer's liability
$100,000 Each accident/oceurrence
$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 the Texas
workers' Compensation Act(Art. 8308-- 1.01 et seq. Tex.Rev.Civ. Stat.).
GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers,
Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional
insured requirement does not apply to Workers' Compensation or Automobile policies.
Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 22 of24
Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any
insurance policy and may not change the terms and conditions of any policy that would limit the scope or
coverage,or otherwise alter or disallow coverage as required herein.
The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the
City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas.
If the subcontractor is an international entity and carries insurance through an international insurance company,
then the subcontractor must obtain Ianguage on their certificate of insurance confirming that its insurance
policy extends coverage to operations in the United States. All insurers must have a minimum rating of A-
VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency
to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk
Management is required.
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
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 acceptable to and
approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders'
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 sole discretion, reserves the right to review the insurance requirements and to make reasonable
adjustments to insurance coverages and their limits 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 shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto
and may make any reasonable requests for deletion or revision or modifications of particular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by law or regulations
binding upon either of party or the underwriter on any such policies.
Agreement Between the City of Port Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 23 of 24
EXHIBIT F: TAX EXEMPTION
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Agreement Between the City of Fort Worth and
Karla Garcia for Final Design for Trail Drivers Park Page 24 of 24