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HomeMy WebLinkAboutContract 57940 CITY SECRETARY CSO REC D CONTRACT NO._ 57q` 0 RUG 1122 AM10:29 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SOCIAL SPACE,LLC FOR FINAL DESIGN AND COMMISSION OF PUBLIC ART FOR NORTHWEST COMMUNITY CENTER This Agreement is entered into this 0 day of US t- 2022, 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 Social Space, LLC, a New York limited liability company located at 41 East Main Street,Canton,New York, 13617(the"Artist"). City has designated the Arts Council of Fort Worth and Tarrant County, Inc., DB/A (the "Contract Manager") 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,the Public Art Plan for the 2018 Bond Program, adopted by City Council on October 16, 2018 (M&C G-19401),set aside$211,534.00 in 2%public art funds from Proposition B to the Northwest Community Center. The Project was included in the Fort Worth Public Art Fiscal Year 2022 Annual Work Plan adopted by the Fort Worth City Council on November 9,2021 (M&C 21-0830), WHEREAS,on November 18,2021,the City entered into a contract with Artist to develop a Preliminary Design for the Site(Fort Worth City Secretary Contract No. 56709); WHEREAS,on February 21,2022,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,and on approval,fabricate,deliver and install the Work; WHEREAS,City and Artist wish to set out the terms and conditions under which said Work shall be designed, fabricated, delivered, and installed 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 agreeIments hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement—Means and includes this Agreement between the City and Artist for Final Design and Commission of public artwork for the Site. 1.2. Artist—Means Social Space,LLC,a New York limited liability company. Page I of36 s, , 1.3. Artwork Design—Means and includes the Preliminary Design of the Work, and Fina Design of the Work,as defined below: 1.3.a. Preliminary Design — Means all developed preliminary drawings, sketches, prototypes, maquettes,models,narrative descriptions,budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.3.b. Final Design—Means the Artist's final proposed design and exact locations for the Work for the Site, which is based upon the approved Preliminary Design and includes, but is not limited to, all final structural engineering drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in indi connection with this Agreement, or the like that are related, directly or rtly,to the Work and shall include Artist's specifications for fabrication and installation of the Work. 1.4. City—Means and includes the City of Fort Worth,Texas. 1.5. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.,DB/A Arts Fort Worth,and/or its officers,directors, or employees. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement. 1.7. Execution Phase—Means and includes fabrication,delivery,and installation of the Work. 1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.9. Final Design Deliverables—Means and includes those items set forth in Article 3.1 of this Agreement that are required for City's review and approval. 1.10. Parties—Means and includes City and Artist. 1.11. Project—Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Consultant—Means Brinkley, Sargent and Wiginton Architects. 1.13. Project Core Team—Means and includes the group of community members, generally 5-7 people 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. 1.14. Site—Means the Northwest Community Center,planned for the southeast corner of Northwest Community Park, 8575 Blue Mound Road, 76131,Council District 7, as depicted in the attached Exhibit"B." 1.15. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Page 2 of 36 Project Core Team,and the FWAC's appointed representative,and others as may be appropriate. 1.16. Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery,and installation of the Work,including,but not limited to,the submission of progress reports. 1.17. Work—Means and includes the finished object(s)of art and design that are the subject of this Agreement,or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that on February 21,2022,the FWAC voted unanimously to approve the Artist's Preliminary Design,and on May 24,2022,)City Council authorized a Final Design and Commission for ublic artwork to be incorporated into the Site,and,upon City approval,fabricate,deliver,and install the Wor at the Site, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies,materials,and equipment as necssary for developing the 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 tergis and conditions in this Agreement. b. Artist shall determine the artistic expression,scope,design,color,size,material,and texture of the Work, subject to review and input from the Project Core Team and approval by City as set forth in this Agreement. c. Artist shall attend meetings with appropriate City staff for purposes of risk assessment, safety review,siting of the Work,and permitting as necessary. d. Upon finalization of the exact location for the Work at the Site and upon completion of engineering, Artist shall present the Final Design to the FWAC for joint review with the Project Core Team,City staff, and other stakeholders. e. Upon approval of Final Design,Artist shall fabricate,deliver,and install the Work at a date and time mutually agreed upon by Artist and City. f. Upon completion of Project,Artist shall participate remotely in an artwork dedication and a public education event in Fort Worth at a mutually agreed upon date and time. g. Artist shall make one (1) trip to Fort Worth, Texas during artwork installation. Additional trips may be negotiated, if necessary, and agreed upon in writing by City and Artist provided there is available budget. 2_3. In order to maintain the integrity of the City of Fort Worth's public art process, for the duration of the Agreement, if Artist intends to seek his/her own publicity for the Work, including publication of the artwork design on Artist's website or social media, such efforts will occur after Final Design has been Pagr 3 of 36 approved by the FWAC. Any potential publicity being sought for the Work, including press/media release(s),must be approved,in advance,by Contract Manager,and shall credit the City of Fort Worth substantially in the following form,"an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." A social media plan must be approved, in advance, by Contract Manager,and shall include the hashtag#fwpublicart. 2.4. 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. ARTICLE 3 FINAL DESIGN AND EXECUTION OF THE WORK 3_1. Final Design Deliverables. a. Within three (3)months after the execution of this Agreement and issuing of City's Purchase rder, Artist shall provide services and all supplies, materials, and equipment necessary to provide lertain deliverables,as set forth in this Article 3.1 to City for approval.Final Design Deliverables for the Work shall consist of the following: (1) Detailed,design illustrations of the Work for the Site, in a high-resolution digital format,such as JPEG or TIF files,showing the proposed Work from multiple vantage points with at least o le illustration showing the Work's size and placement in relation to the Site. (2) A final written narrative of the Work, describing the following: (1)the Final Design concept and timeline for completion; (2)proposed materials,fabrication,and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s),if any,for the Work; (3)maintenance requirements for all elements of the Work as dictated by Artist,along with cost estimates for annual maintenance; (3) A detailed budget,on the budget form attached hereto as"Exhibit C,"for final design and implementation of the Work in an amount not to exceed$161,093.00,reflecting total costs and inclusive of a remaining Artist's fee of$20,542.00, a contingency of$16,139.00,and all engineering,consulting,travel,materials,labor,fabrication,transportation,construction, insurance,installation,and all associated costs for the Work under this Agreement. (4) 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 esign and other related graphic material prior to installation of the Work. Upon City's request,dralwings Page 4 of 36 must be signed and stamped by an engineer and/or architect licensed to work in the State oft Texas.Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a thirty(30)calendar day notice of cancellation of any policy required hereunder. (5) Artist shall provide 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 materiIS relate to the content of the work,and how the work relates to the Artist's studio practice. 3.2. Final Design 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 and other Project Stakeholders for approval at a regularly scheduled FWAC meeting. 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 in writing of each revision to be made to the Final Design.City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. 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 11.4.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. If Artist's Final Design is approved by City,then Artist's Final Design shall be incorporated into this Agreement as an addendum and shall become the basis for proceeding to the Execution Phase of this Agreement. h. Upon City's approval of the Final Design,Artist shall provide the Final Design presentation ma�erials Pag�5 of 36 to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings will be retained for archival and exhibition put oses. Artist's Final Design and all other work product under this Agreement shall become the prop rty of City,without restriction on future use(see Article 7). 3.3. Execution of the Work. a. If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Phase of this Project,then Artist shall furnish to the Contract Manager a written Schedule within ten(10)business days after such authorization by the City. After written approval of the Schedule by City,Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and/or Contract Manager,upon written request,shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 3.3 within thirty(30)calendar days after receipt of the written request. C. Artist shall complete the fabrication of the Work in accordance with the City-approved Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval,any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the City-approved Final Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the City-approved Final Design, then the C ntract Manager shall, in light of the Final Design, determine whether a significant change require City approval. If the Contract Manager determines that the significant change(s) requires City apIduled. roval, then the change(s)may be presented to the FWAC for review and approval at a regularly sch meeting. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 3.4. Delivery and Installation. a. Labor associated with preparing the Site to receive the Work including footings for the Work shall be performed by Artist or her subcontractors and shall be done in accordance with the specifications jointly agreed to by Artist and the City. b. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is completed and ready for delivery and installation at the Site. C. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of Pag�6 of 36 the Work with City and Contract Manager to ensure proper installation with the Schedule. Delivery and installation activities may not commence until written permission is delivered to Artist by th�City. d. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work,including,but not limited to,footing,equipment rentals,transportation,and labor. e. Artist is responsible for obtaining and paying for all necessary permits through a City-approved contractor as necessary. f. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work.If City determines,in its sole discretion,that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage within fourteen (14) calendar days after installation.Artist,at its own expense, shall have thirty(30)calendar days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty(30)calendar days after receipt of the notice,or 7thin the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement,which shall be in addition to any and all other rights and remedies available to City at law or in equity. g. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to the Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as "Exhibit D." The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and prese ation anticipated and conveyed to City for the Work in the Final Design phase for the Work. 3.5. Post-installation. a. Within thirty (30) calendar days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least ten(10)high-resolution digital images (.tiff format) and ten(10) low- resolution digital images(jpeg format)showing the Work from multiple vantage points as selected by Contract Manager,to document the Work after the Work is installed. b. Artist shall make his/her best efforts to be available at such time or times as may be agreed between City and Artist to attend any dedication or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. 1 3_6. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Page 7 of 36 Included in such notice from Artist shall be an affidavit,attached hereto as"Exhibit E,"certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist,in writing,of its Final Acceptance of the Work. C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of Final Acceptance; or (2) the thirty-fifth (35 ) calendar day after Artist has sent the written notice to City required under this Article 3.6 unless City,upon receipt of such notice and prior to the exp}ration of the thirty-five (35) calendar day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 3.7. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to completed artwork installation, and Artist shall take such measures as are necessary to protect the Work from loss or damage until this time, including, but not limited to,the purchase of property loss insurance,except that the risk of loss or damage shall be borne by City prior to completed artwork installation during such periods of time as the partially or wholly completed Work is in the custody,control or supervision of City or its agents for the purposes of moving,storing,or performing any other ancillary services to the Work. ARTICLE 4 COMPENSATION AND PAYMENT SCHEDULE 4_1. Compensation. Total compensation to Artist under the Agreement shall be in the amount of ONE HUNDRED SIXTY-ONE THOUSAND NINETY-THREE DOLLARS AND NO CENTS ($161,093.00),which shall constitute full compensation for any and all costs associated with this Agreement,including,but not limited to,engineering and consulting fees,a remaining Artist's fee of$20,542.00,insurance,all travel expenses, services performed, and materials furnished by Artist under this Agreement, and a contingency of$16,093.00. Artist and C}ty may amend this Agreement to allow for additional payment if additional services are required. 4.2. Payment Schedule. City agrees to pay Artist in the following installments set forth below,each installment to represent full and final,non-refundable payment for all services and materials provided prior to the due date thereof: a. SEVEN THOUSAND DOLLARS AND NO CENTS($,7000.00)upon execution of this Agreement. b. EIGHT THOUSAND DOLLARS AND NO CENTS ($8,000.00)within thirty(30) days after Artist submits the Final Design Deliverables, as required in Article 3.1. of this Agreement and makes a presentation of the Final Design to the FWAC and Project Core Team. C. THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) within thirty (30) days after Final Design is approved by the FWAC. d. THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) upon the Contract Manger's Page 8 of 36 verification that the materials have been purchased. e. TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00)upon the Contract Manager's verification that fabrication of the Work is 50%complete. f. TWENTY THOUSAND DOLLARS AND NO CENTS ($20,000.00)upon the Contract Manager's verification that the Work is complete and ready to install. g. FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) upon the Contract Manager's verification that installation of the Work is complete. h. SIX THOUSAND, ONE HUNDRED FIFTY FOUR DOLLARS AND NO CENTS ($6,154.00) within thirty-five(35)calendar days after Final Acceptance and receipt by City of such documentation it may require concerning payment of supplies and services rendered to Artist. i. City may pay Artist contingency funds in an amount up to SIXTEEN THOUSAND ONE HUNDRED THIRTY-NINE DOLLARS AND NO CENTS($16,139.00)for costs associated with the Work that are incurred by the Artist due to unforeseen changes in fabrication,installation or travel costs if travel costs are in excess of$1,800.00 and are preapproved by Project Manager. These contingency funds will include an artist administrative fee of fifteen percent (15%) of the total amount of conti gency funds applied for by Artist. Such payment will be made upon(i) receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. j. City will provide an allowance of up to SEVEN THOUSAND DOLLARS AND NO CENTS ($7,000.00) for engineering and consulting. Such payment shall be made upon receipt of an invoice from Artist with the original invoice(a retainer fee of up to 50%is allowed)for such services attached. k. City will provide a travel allowance of$1,800.00 for one roundtrip for one person to Fort Worth, Texas, during installation, for a total amount up to ONE THOUSAND, EIGHT HUNDRED DOLLARS AND NO CENTS ($1,800.00) for travel costs, should the artist be approved by Project Manager to participate in-person during installation. These stipends are provided in accordance with GSA Per Diem Guidelines and shall cover all travel expenses. 4_3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the"Texas Certificate of Exemption," in substantially the same form as that attached hereto as"Exhibit F"for use by Artist in the fulfillment of this Agreement. 4.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges on submissions to City d/or Pag�9 of 36 Contract Manager, insurance, 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,and any contingencies. ARTICLE 5 WARRANTIES 5_1. Warranties of Title and Copyright. a. Artist represents and warrants that: (1) the Artwork Design and/or Work shall be the original product of Artist's sole creative efforts; (2) the 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; (3) Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork Design and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; (4) the Artwork Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere; (5) the Artwork Design and/or Work is free and clear of any liens from any source whatsoever; (6) Artist has the full legal power and authority to enter into and perform this Agreement and to make the grant of rights contained in this Agreement,including,but not limited to,all rights pertaining to copyright, contained in this Agreement; and (7) all services performed hereunder shall be performed in accordance with all applicable,laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. 5.2. Warranties of Quality and Condition. a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of"inherent vice,"or qualities that cause or accelerate deterioration of the Work) for one(1)year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known!to be harmful to public health and safety. C. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness.Artist shall,at the request of City,cure the breach satisfactorily and con$istent with professional conservation standards (in accordance with the American Institute of Conser*ation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) calendar days after receipt of the written notice, at no expense to City. d. If,within one (1) year after Final Acceptance, City observes any breach of warranty described i,n this Page 10 of 36 Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses,and losses incurred by City as a result of the breach.However,if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 5.2. e. If, after one (1) year from Final Acceptance, City observes any breach of warranty described in this Section 5.2 that is curable by Artist,City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) calendar days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty(30) calendar day deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display.Artist represents and warrants that: (1) General routine cleaning and repair of the Work and any associated working parts 9d/or equipment will maintain the Work within an acceptable standard of public display. (2) Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. (3) With general routine cleaning and repair, and within the context of reasonably foreseeable exposure to the elements and general wear and tear,the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to,mold,rust, fracturing, staining,chipping,tearing,abrading,and/or peeling. (4) Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty,Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards.If City fails to maintain the Work in good condition,Artist,in addition to other rights or remedies Artist ma have in equity or at law, shall have the right to disown the Work as Artist's creation and request ma all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. ARTICLE 6 INSURANCE,INDEMNITY.AND RELEASE 6_1. General. Artist shall carry insurance as set out in"Exhibit G," which is attached hereto and incorporated herein fpr all purposes.Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property.However,if any part of the fabrication process will be conducted on City property, Page 11 of 36 then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Section 3.7 hereof,the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist.This risk shall transfer to City and shall no longer be the responsibility of Artist upon installation of the Work. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, FOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINSTi ANY AND ALL CLAIMS, LAWSUITS,JUDGMENTS,ACTIONS, CAUSES OF ACTION, LIENS, LOSSES,EXPENSES,COSTS,FEES(INCLUDING,BUT NOT LIMITED TO,ATTO"EY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT!NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)AND/OR PERSONAL INJURY(INCLUDING,BUT NOT LIMITED TO,DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTORS AND SUBCONTRACTORS 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 doss to persons or property sustained or caused by Artist in connection with or incidental to performanceiunder 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. 6.4. Intellectual PropeM. 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 Page 12 of 36 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 FUR HER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS,LOSSES,DAMAGES,ACTIONS,OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP,AUTHORSHIP,OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. 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 pa ment for the Work or pursuant to the applicable termination provision of this Agreement. These documents, odels 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. 7.2. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7_3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not 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 Page 13 of 36 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 i and responsibility in regard to public works and improvements, in furtherance of City's operatipns or for any other reason. C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially din the following form: "© date,Artist's name." d. Unless notified otherwise by City in writing,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 i protecting the intellectual property rights of Artist. ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org)and facilitate the design,purchase,and installation of a permanent plaque at the Site. 8.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected,taking into account the maintenance instructions provided by Artist in accordance with Article 3.4 and "Exhibit D." 8_3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice)and/or construction standards,including, 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 shall be undertaken or arranged by City as appropriate and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site. a. City agrees that it will not willfully destroy,damage,or modify the Work,except as provided Page 14 of 36 in Article 8.4(b)and 8.4(c)below. b. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is integrated into a building,structure or realty,City shall have the right to remove the Work by any means, including destruction. City may give Artist written notice of its intent to take such action under this Article 8.4. C. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, City at its sole discretion may relocate, sell, or store the Work. If City chooses not to relocate,sell, or store the Work,Artist may be given written notice and ninety(90)days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work,City shall have the right to remove and dispose of the Work by any riicans, including its destruction. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this Article 8.4. e. City shall, at all times, have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 8_5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law,which may now or in the future be applicable. ARTICLE 9 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 toe 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 Page 15 of 36 subcontractors,and doctrine of respondent superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense,provided that said subcontracting shall not adversely affect the design, appearance or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 11 TERM AND TERMINATION 11.1. Term. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 11.2. 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. In the event this Agreement is canceled by the City, pursuant to this Article 11.2, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 11.3. Death or Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity.All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination shall become property of City. b. In the event of termination under this Article 11.3, City shall have the right to complete the Work, if feasible.Due regard shall be made for Artist's intended results and proper credit and acknowledgment shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. 11.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty(30)calendar days before termination. b. If the termination is for the convenience of City,City shall pay Artist for services actually rendered up to the effective date of termination in accordance with the payment schedule in Article 4 as determined Page 16 of 36 in City's sole discretion.Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs and the Work up to the effective date of termination. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provision in Article 4 or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination,as determined in City's sole discretion.If City chooses to pay Artist,then all work p oduct produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, the Work up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 11.4.a,then City shall pay Artist per the payment schedule in Article 4 as determined in City's sole discretion up through the date of termination. City shall have the right to possession and transfer of all work product 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. 11.5. Termination for Cause. a. 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 11.5 in accordance with the dispute resolution process set forth in Article 12 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 groun for termination.Termination of this Agreement under this Article 11.5 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. b. If City terminates this Agreement pursuant to this Article 11.5, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work,then,notwithstanding anything to the contrary: (1) title to the Artwork Design,Work,and/or all other work product under this Agreement d/or any prior agreement for the Work, including, but not limited to, all documents, d/or drawings that constitute or are components of the Artwork Design and/or Work,shall pass to Page 17 of 36 City and become the property of City,without restriction on future use,immediately upon the City's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property Rights) and 8 (Artist's Rights)of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and intctest in and to the Artwork Design,Work, and/or all other work product under this Agreement pr any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and/or Work,the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns,and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design,Work, and/or any other work product under this Agreement and/or any prior agreement for the Work and (5) Artist,pursuant to this Article 11.5,hereby acknowledges the rights of attribution and in egrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S.federal,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/or all other work product under this Agreement and/or any prior agreement as a public artwork.Nothing in this Article 11.5 shall affect the survival of Articles 5 (Warranties), 6(Insurance and Indemnity), 9(Artist as an Independent Contractor), and 14.13 (Right to Audit)of this Agreement,which shall remain in full force and effect upon termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If either Artist or City has a claim,dispute,or other matter in question for breach of duty,obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first atte pt to resolve these issues through this dispute resolution process. The disputing party shall notify th other party in writing as soon as practicable after discovering the claim,dispute,or breach.The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice,both parties shall make a good faith effort,either through email, mail,phone conference, in person meetings,or other reasonable means to resolve any claim, spute, breach,or other matter in question that may arise out of or in connection with this Agreement. Page 18 of 36 b. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be 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 written 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 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 eitheit party shall have the right to exercise any and all remedies available under law regarding the disput�. (See Article 11.5) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race,creed,color,national origin,sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreeme this Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be de arred from further agreements with City. ARTICLE 14 MISCELLANEOUS 14.1. Conpliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 14.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and 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. 14.3. Amendments. Page 19 of 36 No alteration, change,modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent efault of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any enod after a default shall not be deemed a waiver of any right or acceptance of defective performance. 14.5. Governing Law and Venue. If any action,whether real or asserted,at law or in equity,arises on the basis 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. 14.6. Successors and Assigns. Neither party hereto shall assign,sublet,or transfer its interest herein without prior written consent of th other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such priortten 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. 14.7. 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. 14.8. 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. 14.9. Force Majeure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance f any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement w�ather; 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. 14.10. Contract Construction. Page 20 of 36 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 cAibits 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 the City to fulfill its obligations under this Agreement,the City may terminate this Agreement to be effective on the later of(i)thirty (30) calendar 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. 14.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14.13. 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 above. 14.14. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 14.15. Survival Provision. The provisions contained in Articles 5 (Warranties), 6 (Indemnification), 7 (Ownership and Intellectual Property Rights), 9 (Artist as an Independent Contractor), 11.3 (Incapacity of Artist), and 14.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 14.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original,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. Page 21 of 36 14.17. Time Extensions. The Parties may agree,in writing, to extend or modify any of the time deadlines set forth in this Agreement. 14.18. Israel. If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or inore, 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:(I)does not boycott Israel;and(2) will not boycott Israel during the term of the Agreement. 14.19. Energy Companies. If Artist is a company with ten(10) or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the compan that it: (1)does not boycott energy companies;and(2)will not boycott energy companies during the term of the contract. The terms"boycott energy company"and"company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement,Artist certifies that Artist's signature provides written verification to the City that Artist: (I) does not boycott energy companies; and(2) will not boycott energy companies during the term of this Agreement. 14.20. Firearms and Ammunitions Industries. If Artist is a company with ten(10) or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice,policy, guidance, or directive that discriminates against a firearm entity orl firearm trade association; and(2) will not discriminate during the term of the contract against a firearm entity or,firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg.,R.S., Page 22 of 36 S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement,by Signing this Agreement,Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not have a practice,policy,guidance, or directive that discriminates against a firearm entity or firearm trade association;and(2)will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. ARTICLE 15 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, Third Floor Fort Worth,TX 76102-6314 Copies to: Leann Guzman, City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street Fort Worth, TX 76102-6314 Martha Peters,Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Matthew Mazzotta Social Space,LLC. 41 East Main Street Canton, NY 13617 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH ARTIST: Social Space LLC By: Fernando Costa By: Matthew Mazzotta Assistant City Manager Date: 8�/�zo2z Date: 7i27i22 OFFICIAL. RECORD CITY S&I&A V FT. WORTH#X 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: Anne Allen Title:Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: By: Jessika Villiams ! � Assistant City Attorney ATTESTED BY: J !? Janet e ooda11 City e retary r Form 1295: 2022-848780 M&C:-�!5-9-3fi5 a-OA--5 Date: May 24,2022 0FROAL �ECXI'�, w-ti fC91y ¢K&%'R " "I w Exhibit A: Approved Preliminary Design Matthew Mazzotta's artwork for Northwest Community Center,titled Open Plains, seeks to bring the outdoors in by transposing a natural scene within the community center lobby.As patrons enter the building,they see a grassy berm in the middle of the lobby space.Proceeding further into the building,they will look up and see a small group of sculptural birds gently gliding in a circle,moving their wings as they float in the airspace over the berm. The large berm element will have indentations for seating and is centered in the space underneath the bir , replacing some seats in the reception area. Built over a cushioned,sound dampening plywood substruc e it will be upholstered in varieties of artificial turf that seeks to approximate colors and textures in the local ative landscape. The berm will provide multiple,inviting organic seating arrangements and be durable enough to withstand being climbed on. Design Images NWCC - PROPOSED ARTWORK LOCATION capsc cWM sleetetrotic s s design searing(13 teat eapaeHy,2 rabies) s as * s 1+rl � s r' POINT OF ENTRY Page 25 of 36 DESIGN PROPOSAL Architectural sehemati �. Design sealing(!seat Ca 7.6• 7-w rb r 1 MAINTAINS ARCHITECTURAL FF&E SEATING AND PROVIDES 6 SEATINGS CN THE BRM I f VIEW FROM GROUND Rw Page 26 of 36 Exhibit B: Site The Northwest Community Center, 8575 Blue Mound Rd,Fort Worth,TX 76137 (Council District 7); Platined for the southeast comer of Northwest Community Park 61�M i�0�fld OQAso.r.�se►aaa C +M 9 y ' C" O hjRd Ise* ' _ 01 Page 27 of 36 Exhibit C: Budget Form DEVELOPMENTARTIST ARTIST PROJECT BUDGET PROJECT PRQJECT SUDGET PROJECT DEVELOPMENT . FEES INSTALLATION Artist Fee(Studs Overhead,Design.Admin) Ttansportation of Artwork Engineer Peffnas Lighting Designer Site Preparation/Remediation Conservator Footings/Foundations Photographer Ekarical Connections/Modifications Other Professional Fees Installer Labor Equipment Rental Traffic control SUB-TOTAL FEES $O_00 Security SUB-TOTAL INSTALLATION $O.QQ TRAVEL(Based on GSA Rates) Tmnsporation INSURANCE Lodging General Liability(prorated) Per diem(meals and incidentats) Other SUB-TOTAL TRAVEL $Q OD SUB-TOTAL OVERHEAD $O.00 FABRICATION Materials CONTINGENCY Sib Artist-Held Contingency Artist labor(hours x S per hour) Required in Preliminary Design Phase Fabricator/l.abor by Others GRAND TOTAL $ 0.00 Rentals(equipment,fabrication space,etc) storage SUB-TOTAL FABRICATION $0.00 Studio assistant(hours x S per how) Page 28 of 36 Exhibit D: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location&Description of Signature Markings (or copyright): Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: Fabricator(if other than artist) Page 29 of 36 Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type,brand name and manufacturer of all materials; attach Material Safety&Technical Data. Include contact names for all suppliers and attach warranty information): I Construction Description: (list all fabricators and any architects, engineers or other technicians involve in the creation and installation of this artwork. Attach all warranties &agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material&Application Method: I Casting Alloy,Wax Body, Glass or Fiber Type: Finishes &Coatings(paint color and type, glaze,patina, any and all coatings including fixative, UV, gr4ffiti, etc. Please list vendors and contact information and provide all product information): Pedestals,Foundations&Footings,Mounting and Attachment Applications Page 30 of 36 List all materials used to install artwork on site. Include vendor information, arts numbers,warranties nd ( P F agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting,media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method,provide photo documentation if available. List name,and contact information of installation crew.Attach any diagrams or disassembly instructions.) Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Page 31 of 36 i Artists Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions.Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling,landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) I Page 32 of 36 Exhibit E: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person,firm,or corporation by reason of any such construction.There are no claims pending for peirsonal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me,the undersigned authority, on this the day of 2022. I Notary Public, State of Texas Print Name Commission Expires Page 33 of 36 Exhibit F: Sales Tax Exemption ` wows1M Texas Sales and Use Tax Exemption Certification Thu oerEiGoale doff flat regale a mfmaber to be vaW Cft of Pat",Texas Addw Lwwh RB.f�.rAxa►wwlq w Rra+xpbwxxarw+Ltrxxxd an Texeaf Iftreat •17-3t/a-ASi7 Cft'"",fermtr Fan Waft,Tetras 76102 1.Me pfachOW fferned"W.CbbM W ftMtptioo AMn1 pb7rlferft of txales and uee fates(1a the purchase of tuable in. deyw1bed bebr or an the attached order or rrtroicr)IFalft saw An ltatldanl _ 9"W.donee ap,Blau,aP oode t)eap` wn d nears fo t e Read wmd cr on Me altefied order a hraWA N Myrna Rodwow MtM!kdbes that ttois COl COM oennol be lead for the orlrchun.bow at rental of a mots r shkie. 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Do to send the comptabd certlNcals to the Compboger of Pubbe Accour*L Page 34 of 36 Exhibit G: 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) $1,0009000 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 $1,0009000 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/occurrence $100,000 Disease-per each employee $5009000 Bodily Injury/Disease -policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the�exas workers' Compensation Act(Art. 8308— 1.01 et seq.Tex.Rev. Civ. Stat.). Page 35 of 36 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. 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 language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States.All insurers must have a minimum 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 stockhdlders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools of 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 basedi 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. Page 36 of 36 814122,811 AM M&C Review CITY COUNCIL AGENDA FORT Ab RT11 Create New From This MSC DATE: 5/24/2022 REFERENCE**M&C 22- LOG NAME: 03NORTHWEST COMMUNITY NO.: 0365 CENTER PUBLIC ART CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: (CD 7) Authorize Execution of a Final Design and Commission Contract with Social Space LLC in an Amount Up to $162,511.00 for Final Design, Engineering, Fabrication, Delivery, Installation and Contingencies for Artwork for the Northwest Community Center, to be Located in the Southeast Corner of Northwest Community Park, 8575 Blue Mound Road, 76131 RECOMMENDATION: It is recommended that the City Council authorize execution of a final design and commission contract with Social Space LLC. in an amount up to $162,511.00 for final design, engineering, fabrication, delivery, installation and contingencies for artwork for the Northwest Community Center, to be located in the southeast corner of Northwest Community Park, 8575 Blue Mound Road, 76131. DISCUSSION: This Mayor and Council Communication (M&C) is to authorize execution of a final design and commission contract with Social Space LLC. in an amount up to $162,511.00 for final design, engineering, fabrication, delivery, installation and contingencies for artwork for the Northwest Community Center. Social Space LLC's artwork for Northwest Community Center entitled, Open Plains, brings the outdoors in by transposing a natural scene into the new community center lobby. As patrons enter the building, they see a "grassy hill" in the middle of the lobby space. Proceeding further into the building, they will look up and see a small group of"birds" gently moving their wings and ''flying" in a circle above the "hill". The "grassy hill" will be centered in the space underneath the birds, replacing some of the architecturally specified seating in this reception area. The durable structure will be upholstered in varieties of artificial turf that approximate colors and textures of the local native landscape. Designed to be climbed on, it will provide multiple, inviting, organic seating arrangements. The "birds" will be animated by a small fan that will push them forward and cause their wings to slowly flap. This whimsical, playful artwork is designed to give the viewer the experience of connecting with the open landscape of Northwest Community Park that surrounds the community center. Fort Worth Art Commission (FWAC) Action: On February 22, 2021 the FWAC approved the Selection Panel's recommendation of Social Space LLC for the Northwest Community Center public art project. On November 18, 2021, Social Space LLC was placed under a Preliminary Design Agreement (City Secretary Contract No. 56709) in an amount up to $20,061.00. On February 21, 2022, the FWAC approved the Preliminary Design and recommended that the artist be placed under a Final Design and Commission Contract. Funds for public art for the Northwest Community Center project in the amount of$211,533.00 were included in the Public Art Plan for the 2018 Bond Program, Proposition B, adopted by City Council on October 16, 2018 (M&C G-19401). This project is included in the Fort Worth Public Art Fiscal Year 2022 Annual Work Plan, adopted by the Fort Worth City Council on November 9, 2021 (M&C 21-0830). Artist shall require their subcontractors to pull all permits required for this project, however, the City shall waive any fees for these permits as this project is funded by City Bond funds. apps.cfwnet.org/council_packet/mc_review.asp?ID=29917&councildate=5/24/2022 113 8/4/22,8:11 AM M&C Review Estimated annual maintenance on this project is anticipated to be$500.00. Project Budget Amount City Secretary Contract Project Management $35,961.00 CSC #54598 Allocation Preliminary Design $13,061.00 F CSC #56709 Final Design & commission—I 162,511.001 This M&C Total 1$211,533.001 1 Funding Sources I Amount 2018 Bond $211,533.00 Total $211,533.00 Funding is budgeted in the Development Services Other General Gov Department's 2018 Bond Program Fund for the purpose of funding the FWPA NW Community Center project, as appropriated. BUSINESS DIVERSITY OFFICE -The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project dollars expended on public art annually. The Business Equity Division waived the Business Equity Goal requirement because most artists are individuals and not businesses. THE ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY, INC. D/B/A ARTS FORT WORTH have agreed that 25\% of all artists commissioned will be a minority individual(s) or a minority business owner(s). The Arts Fort Worth and the Planning and Data Analytics Department will report its utilization to the Business Equity Division on a bi-annual basis at the end of March and September. Council Member Leonard Firestone concurs with the FWAC's recommendation for Social Space LLC to develop a Final Design and complete engineering and, upon approval, fabricate, deliver, and install artwork in the Northwest Community Center. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds are available in the current capital budget, as previously appropriated, in the 2018 Bond Program Fund for the FWPA NW Community Ctr project to support the approval of the above recommendation and execution of the commission contract. Prior to any expenditure being incurred, the Development Services Department has the responsibility to validate the availability of funds. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID I I ID Year Chartfield 2 Submitted for City Manager's Office by_ Fernando Costa (6122) Originating Department Head: Mark McAvoy (6222) Additional Information Contact: ATTACHMENTS apps.cfwnet.org/council_packet/mc_review.asp?ID=29917&councildate=5/24/2022 2/3 8/4/22,8:11 AM M&C Review 03NORTHWEST COMMUNITY CENTER PUBLIC ART funds availabilitypdf (CFW Internal) 101991 NWCommunityCenter PublicArt CompMemo 4.11.22 GV.pdf (CFW Internal) Form 1295 Certificate 100870188.pdf (CFW Internal) M&C Attachment NW CC.pdf (Public) NWCC M&C FID Chart.xlsx (CFW Internal) apps.cfwnet.org/counci l_packet/mc_review.asp?I D=29917&counci(date=5/24/2022 3/3