HomeMy WebLinkAboutContract 58125 cl—I y SUGMARY ;s I a s
r 4T ICT NO.!-
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND BILL FITZGIBBONS STUDIO FOR CONCEPTUAL DESIGN
PROPOSALS FOR PUBLIC ART FOR THE NEAR SOUTHSIDE
GATEWAYS PROJECT
This Agreement is entered into this,; ii day of Se "beX , 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 City Manager, and Bill Fitzgibbons, LLC ("Artist"), located at 205 Sheffield Place, San
Antonio, Texas, 78213, acting by and through its authorized President. City has designated the Arts Council
of Fort Worth and Tarrant County,Inc., DB/A Arts Fort Worth to manage this Agreement on its behalf. The
Contract Manager shall act through its designated Public Art project managers.
WHEREAS,pursuant to Chapter 2,Sections 2-56 through 2-61 ofthe 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 Near Southside, Inc. ("NSI"), on behalf of the City of Fort Worth and with funding
from the City of Fort Worth's Tax Increment Financing District t 4 ("Southside TIF") has engaged GAP
Strategies,LLC and TranSystems Corp. ("Project Consultant")to develop conceptual designs for pedestrian,
bicycle and lighting improvements for the South Main Street underpass at Union Pacific Railroad("Site 1")
and the East Rosedale Street underpass at Interstate-35W("Site 2") and wishes to integrate public art into
both Sites.
WHEREAS,funding for the South Main Underpass Public Art Project(Site 1)was included in the
Public Art Plan for the 2014 Bond Program, adopted by the City Council on October 21,2014, as M&C G-
18339(site map attached as Exhibit"A");
WHEREAS, funding for the East Rosedale Street Underpass at Interstate 35W(Site 2)is anticipated
to be available from a combination of reprogramming of public art funds and from the Southside TIF(site
map attached as Exhibit"B");
WHEREAS, on July 11,2022,the Fort Worth Art Commission("FWAC")approved the Project
Outline(attached as Exhibit"C"), including the selection of Bill Fitzgibbons,LLC("Artist")and RE:Site
Studio ("Other Artist") from the Fort Worth Public Art("F WPA")Pre-Qualified List of Established Public
Artists in accordance with Professional Services Team Artist Selection Process guidelines included in the
Fort Worth Public Art Master Plan Update(adopted by City Council on October 17, 2017, as M&C G-
19140);
OFFICIAL RECORD
Agreement Between the City of Fort Worth and 14ECRETARY
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations FT. WORTH,TX
CS0 EC
WHEREAS,the Project Outline specified that Artist and Other Artist shall separately develop
Public Art Conceptual Design Proposals in coordination with the Project Consultant for both Sites I and 2;
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 l
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below:
1.1. Agreement—Means and includes this Agreement between the City of Fort Worth and Artist
for Public Art Conceptual Design Proposals for Site 1 and Site 2.
1.2. Artist- Means and includes Bill Fitzgibbons, LLC, and/or its partners, members, managing
members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary
organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators,
subartists, contractors, and related companies.
1.3 Artist-Site Selection Panel — Means and includes a panel comprised of arts professionals,
community stakeholders,City staff representatives,City Council Members,and a Fort Worth Art Commission
(FWAC) representative who shall review Artist's and Other Artists' conceptual proposals and shall
recommend one(1)artist/conceptual proposal for each site to the FWAC.
1.4. City — Means and includes the City of Fort Worth, Texas and its officers, representatives,
agents, servants, and employees.
1.5. Conceptual Design Proposal—Means all preliminary drawings,sketches,narrative descriptions,
budget estimates, and the like that are created by Artist in connection with this Agreement between Artist and
City for the Work.
1.6. Conceptual Design Proposal Deliverables — Means and includes those items set forth in
Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval.
1.7. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc. DBA Arts Fort Worth, and/or its officers, directors, employees, agents, subsidiary organizations, parent
organization, successor corporations, assigns, predecessors, stockholders, administrators, and related
companies.
1.8. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement,which shall be the official date of execution of this Agreement.
1.9. Other Artist--Means and includes RE:site Studio,who is also preparing proposals for Site I
and Site 2 under a separate Conceptual Proposal Agreement with the City of Fort Worth.
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1.10. Parties—Means and includes City and Artist.
1.11. Project—Means and includes the capital improvement undertaking for which Artist's services
are to be provided pursuant to this Agreement.
1.12. Project Co-Manager—Means and includes the designee of Near Southside,Inc. (NSI).
1.13. Project Consultant—Means and includes GAP Strategies,LLC and TranSystems Corp.
1.14. 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 Fart Worth Public Art Master Plana Update (page 23 in online version). For this project,
the Project Core Teams for Site 1 and Site 2 may be appointed during the Conceptual Design Phase,
1.15. Project Stakeholders—Means and includes the appropriate City Council Members, Project
Core Teams, Project Stakeholders,Near Southside,Inc.,Downtown Fort Worth,Inc,,TxDOT,City Staff, and
others as may be appropriate.
1.16. Site 1—Means and includes the South Main Street Underpass at Union Pacific Railroad,which
is more particularly described on Exhibit "A, attached hereto and incorporated herein by reference for all
purposes.
1.17. Site 2 — Means and includes the East Rosedale Street Underpass at I-35W, which is more
particularly described on Exhibit`B,"attached hereto and incorporated herein by reference for all purposes.
1.18. 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
PURPOSE, SCOPE OF SERVICES,AND DELIVERABLES
Purpose.
The purpose of this Agreement is to solicit two(2) conceptual artwork design proposals from Artist for review
by the Artist-Site Selection Panel for Site 1 and Site 2 of this Project and,ultimately,to select an artist for each
site based on their proposals, to proceed to the next phase of this Project, which may include preliminary and
final design development and commission of the Work.The City does not guarantee that Artist will be selected
to proceed to the next phase of the Project and specifically reserves the right to reject all proposals.
2.2. Scope of Services.
a. Artist shall work closely with the Project Consultant to engage the community and explore ways in
which public art may reflect the unique flavor, history or attributes of the neighboring communities
and provide a safer environment and better connectivity and accessibility for pedestrians and bicyclists
traveling through each site.
b. Artist shall work with Contract Manager to identify local emerging artist(s) from which Artist may
select one or more to receive education and training in the field of public art by observing and/or
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assisting Artist, as determined by Artist, during the course of the project for which Artist may be
selected.
C. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary
for developing a Conceptual Design Proposal of the Work for each site and for providing the
Conceptual Design Proposal Deliverables, Services shall be performed in a professional manner and
in strict compliance with all terms and conditions in this Agreement.
d. Artist shall travel to Fort Worth to make initial site visits and attend Community Engagement events
conducted by Project Consultant and Co-Managers at a mutually convenient date and time.
e. Artist shall keep in frequent contact with Contract Manager regarding all activities performed under
this agreement. Contract Manager, in turn, shall regularly communicate with Project Co-Managers
regarding the Artist's activities and progress.
f. Artist shall meet with Project Consultant,Contract Manager(s)and Project Co-Manager,as needed,to
coordinate the Artist's concepts with the Capital Improvement Project design to ensure feasibility and
aesthetic continuity.
g. Artist shall prepare and present a Conceptual Design Proposal for each site to the Artist-Site Selection
Panel on a mutually agreeable date and time in-person unless a virtual meeting is preferable due to
concerns related to the COVID-19 pandemic.
h. Artist shall allow video recording and photography of their Conceptual Design Proposal Presentations
to the Artist/Site Selection Panel and FWAC.
i. Artist shall make two(2)trips to Fort Worth,Texas for meetings and presentations as indicated above.
Additional trips,if required per this Article,may be negotiated and agreed upon in writing by City and
Artist.
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.
2.4. Conceptual Design Proposal Deliverables
a. Artist shall provide a separate set of Conceptual Design Proposal Deliverables for Site 1 and Site 2.
b. Conceptual Design Proposal Deliverables shall consist of the following:
i. A written narrative description of the Artist's concept, proposed materials, fabrication and
installation methods,timeline for completion and maintenance requirements;
ii. Two-dimensional rendering(s) of the Artist's concepts; and no more than five images of
examples of relevant projects by the Artist, presented within a power point presentation;
iii. Installation diagram showing the concept's relationship to the Site, including approximate
weight of the Work,proposed attachment method(s), and location(s)for lighting, if any;
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iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "D," for
implementation of a final design of the Work in an amount not to exceed$340,000.00,which
includes all costs for materials, labor, fabrication, delivery, installation, insurance,
transportation, Artist's fee of $41,000.00, and all other associated costs for the Work
including,but not limited to,lighting and travel. Budget estimate should also include the cost
of material or fabrication samples and/or prototype models for the Work that show the size
and placement of the Work in relation to the Site,as appropriate;and
V. OPTIONAL:Material sample(s)that illustrate what the proposed Work would be made from,
showing durability,texture, color, etc.; however, no models or prototypes shall be presented
to the Artist/Site Selection Panel
C. Artist shall submit an electronic version of their initial concept sketches for each Conceptual Design
Proposal for the purpose of a design progress report as described in 2.21 These sketches shall be
submitted to Michelle Gonzales, Public Art Project Co-Manager no later than 12:00 Noon (Central
Time), Monday, September 26, 2022, and shall be available for a Zoom call with Contract Manager
and Project Co-Managers at a mutually convenient time.
d. Artist shall submit an electronic version of their final Conceptual Design Proposals for the purpose of
staff review as described in 2.21 These sketches shall be submitted to Michelle Gonzales,Public Art
Project Co-Manager no later than 12:00 Noon(Central Time), Monday, October 24, 2022, and shall
be available for a Zoom call with Contract Manager and Project Co-Managers at a mutually convenient
time.
e. The initial concept sketches and the Conceptual Design Proposal Deliverables shall be sent in one of
the following manners:
i. Via email tom onzalestartsfortworth.org(9 MB size limit per each email)
ii. Via an FTP site,such as wwwwousendit.com or dropbox.com
iii. Mailed or hand delivered on a flash drive to Arts Fort Worth, ATTN:Fort Worth Public Art,
1300 Gendy Street,Fort Worth,TX 76107.
£ Artist acknowledges that he/they will present their concepts to the Artist/Site Selection
Panel in early November 2022 (date TBD).
2.4. Notification of Selection
a. The Contract Manager shall notify the Artist, in writing, of the final outcome of the artist selection
process, i.e., which Artist was selected to proceed to the next phase of the Project for either Site 1 or Site 2,
within 5 business days of the FWAC's approval of Artist-Site Selection Panel's recommendations.
ARTICLE 3
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COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall be ELEVEN THOUSAND DOLLARS AND NO
CENTS ($11,000.00) which shall constitute full compensation for any and all costs associated with the
Agreement, including,but not limited to, all travel expenses and services performed, and materials furnished
by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if
additional services are required.
3.2. Payment Schedule
a. 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.
i. ONE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($1,500.00) upon
execution of this Agreement,recognizing that Artist has already invested time and expense in
preliminary coordination with Co-Managers.
ii. THREE THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($3,500.00)
within thirty(30)days after Artist attends Site Visit and Community Engagement Meeting.
ii. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty (30) calendar
days after Artist submits all of the Conceptual Design Proposal Deliverables for both sites
required under Article 2.4 of this Agreement and presents the Conceptual Design Proposals to
the Artist-Site Selection Panel.
iii. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) within thirty (30) calendar
days of Art Commission's approval of Conceptual Design,
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"E"for use by Artist in the fulfillment of this Agreement.
3.4. Artist's Ex eases.
Artist shall be responsible for the payments of expenses incurred during the performance of this Agreement,
including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to
City and/'or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees
necessary for the proper performance of the services required under this Agreement.
ARTICLE 4
TERM AND TERMINATION
4.1. Term
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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
The City may terminate this Agreement for cause in the event Artist fails to perform in accordance with the
requirements contained herein. In such event,City shall give Artist written notice of Artist's failure to perform,
giving Artist seven(7)calendar days to come into compliance with the Agreement. If Artist fails to come into
compliance with this Agreement, City shall notify Artist in writing, and this Agreement shall be terminated as
of the date of such notification.In such event, Artist shall not be entitled to any additional compensation.
4.4. 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.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion., to pay
Artist for services actually rendered up to the effective date of termination or require the Artist to remit
to City a sum equal to all payments(if any)made to the Artist pursuant to this Agreement prior to the
effective date of termination.
ARTICLE 5
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
5.1 Non-Selected Artists
a. If Artist is not selected to proceed to the next phase of the Project as the Project artist for either site,
f then,upon payment in full to the Artist, the Conceptual Design Proposals and all other work product
under this Agreement shall become the property of City for a period of one year from the date the City
sends final payment to Artist under this Agreement.Artist shall retain copyright and other intellectual
property rights in and to the Conceptual Design Proposals.
b. In view of the intention that the Conceptual Design Proposals be unique, Artist shall not make
any additional exact duplicate reproductions of the Conceptual Design Proposals,nor shall Artist
grant permission to others to do so except with the express written permission of City.
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c. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
d. If, within the above-stated one-year period,the City decides to select the Artist to proceed to the next
phase of the Project as the Project artist for either site and Artist agrees to such selection, then the
rights set forth in Article 5.2 for the selected artist shall supersede and govern any ownership and
intellectual property rights associated with or related to this Agreement.
5.2 Selected Artist
a. If Artist is selected to proceed to the next phase of the Project as the Project artist for either site, then
the ownership and intellectual property rights set forth in this subsection shall apply.
b. Upon payment in full to Artist, the selected Conceptual Design Proposal and all other work product
under this Agreement shall become the property of City, without restriction on future use, except as
provided below. Artist shall retain copyright and other intellectual property rights in and to the selected
Conceptual Design Proposal and/or Work.Artist grants to the City an exclusive,perpetual,irrevocable,
and royalty free license to graphically depict or display the selected Conceptual Design Proposal and/or
Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic
depiction or display of the selected Conceptual Design Proposal and/or Work intended to promote or
benefit City,its public services or its public purposes,regardless of whether or not a fee is charged to
the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial
purpose.
C. In view of the intention that the selected Conceptual Design Proposal .and the Work be unique,
Artist shall not make any additional exact duplicate reproductions of the selected Conceptual
Design Proposal 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.
d. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the selected Conceptual Design Proposal and/or Work,
except as those rights are limited by this Agreement. If Artist is selected to proceed as the Project
artist, City may make and disseminate photographs, drawings, and other two-dimensional
reproductions of the selected Conceptual Design Proposal and/or Work and accompanying materials
for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a
copyright notice substantially in the following form:"0 date,Artist's name."
e. Nothing in this Agreement shall prevent the Artist from using images of the selected Conceptual
Design Proposal and/or Work for marketing and promotional purposes in connection with the Artist's
business.
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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 6
WARRANTIES OF TITLE AND COPYRIGHT
a. Artist represents and warrants that:
i. Conceptual Design Proposals and/or Work shall be the original product of the Artist's sole
creative efforts.
ii. Conceptual Design Proposals and/or Work is and will be unique and original, and does not
infringe upon any copyright or the rights of any person;
iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Conceptual Design Proposals and/or Work or any copyright related thereto that may affect or
impair the rights granted pursuant to this Agreement;
iv. Conceptual Design Proposals and/or Work(or duplicate thereof) have not been accepted for
sale elsewhere;
V. Artist has the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement;and
vi. 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 7
ARTIST AS INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor,and not as an officer,
I
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 their officers, agents, employees, and subcontractors. Nothing herein shall be
construed as creating a partnership or joint venture between City and Artist, their officers, agents, employees
and subcontractors, and doctrine of respondent superior has no application as between City and Artist.
ARTICLE S
INDEMNIFICATION
8.1. General Indemnity
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
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LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO,
WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
DAMAGE)AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH)
TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES
IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY 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 or caused 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.
8.2. Intellectual Prop.e
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 Iicenses 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
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 9
E_OUAL 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
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criteria in any employment decisions relating to this Agreement, and Artist represents and warrants
that to the extent required by applicable laws, it is an equal opportunity employer and shall comply
with all applicable laws and regulations in any employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred
from further agreements with City.
ARTICLE 10
MISCELLANEOUS
10.1. 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.
10.2. Entire A.g7eement.
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.
10.3, Amendments.
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective
unless made in writing and signed by both parties hereto and approved by appropriate action of City.
10.4. 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.
10.5. 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.
10.6. 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.
10.7. No Third-Party Beneficiaries.
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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.
10.8. 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.
10.9. Force Majeure.
City and Artist will exercise their best efforts to meet their respective duties and obligations as set forth in this
Agreement,but will not be held liable for any delay or omission in performance due to force majeure or other
causes beyond their reasonable control, including, but not limited to, compliance with any government law,
ordinance,or regulation; acts of God; acts of the public enemy; fires;strifes;lockouts;natural disasters;wars;
riots; epidemics or pandemics; government action or inaction; orders of government; material or labor
restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court,
board, department, commission, or agency of the United States or of any States; civil disturbances; other
national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the
reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The
performance of any such obligation is suspended during the period of,and only to the extent of,such prevention
or hindrance,provided the affected Party provides notice of the Force Majeure Event,and an explanation as to
how it prevents or hinders the Party's performance,as soon as reasonably possible after the occurrence of the
Force Majeure Event,with the reasonableness of such notice to be determined by the City in its sole discretion.
The notice required by this section must be addressed and delivered in accordance with this Agreement.
10.10. 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.
10.11. 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(1)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.
10.12. Captions.
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Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
10.13. 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 10.13.
10.14 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.
10.15. Survival Provision.
The provisions contained in Articles 4.5(Incapacity of Artist),Articles 6(Ownership and Intellectual Property
Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (indemnification),
and 10.13 (Right to Audit)shall survive the termination or expiration of this Agreement.
10A6. 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.
10.17. Time Extensions,
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in.this Agreement.
10.18. Israel,
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 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
Agreement Between the City of Fort Worth and Page I3 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
verification to the City that Artist: (1)does not boycott Israel;and(2)will not boycott Israel during the term
of the Agreement.
10.19. 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
company 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 thatArtist's signatureprovides written verfcation to the City thatArtist:(1)does
not boycott energy companies;and(2) will not boycott energy companies daring the term of thisAgreement.
10.20. 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 apractice,policy,guidance,or directive that discriminates against a firearm
entity or 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., 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 11
NOTICES
All notices,requests, demands, and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested,postage prepaid, as follows:
Agreement Between the City of Fort Worth and Page 14 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager
City of Fort Worth
1000 Throckrmorton Street, 'Third Floor
Fort Worth,Texas 76102
Copies to: Leann Guzman, City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street,Third Floor
Fort Worth,Texas ?6 S 02
Martha Peters
Director of Public Art
Arts Fort Worth
1300 Gendy Street
Fort Worth,Texas 76107
2. ARTIST
Bill Fitzgibbons,LLC
205 Sheffield Place
San Antonio,TX 78213
IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT WORTH BILL FITZGIBBONS,LLC
rr
by: Fernando Costa by: Bill FF it?,gihbons, President
CO-CONTRACT COMPLIANCE MANAGERS
By signing, I uftowledge that l am the person responsible
for the monitoring and administration of this contract, including
ensuring all perfonnance and reporting requirements.
Name:Alida Labbe spa :Michelle Gonzales
Title:Public An Proje�ctand Capital Biidget Manager Trtl . Public Art project Manager
APPROVED AS TO FORM
AND LEGALITY:
EOFFICIAL RECORDAgreement Between the City of Fort Worth and P �CR 'ARVBill Fitzgibbons for Conceptual Design Proposals of Public Art for IInderpass Gateway LocationsWORTH,TX
Jessika Williams
Assistant City Attorney
ATTESTED BY:
J tte S, Goodallr
Ci ecretary
Form 1295:Not required
Contract Authorization:
No M&C required. Ordinance No.24161-04-2020
F(OFFOCIAL RECORD
CRETAgRYR'THyrX
Agreement Between the City of Fort Worth and Page 16 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
Exhibit A: Site 2
The highlighted area illustrates the boundaries of the I-35W Underpass at East Rosedale Street in Council
District S,Fort Worth,Texas.
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Agreement Between the City of Fort Worth and Page 17 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
Exhibit B: Site 1
The highlighted area illustrates the boundaries of the South Main Street Underpass at Union Pacific
Bridge, along with I-30 in Council District 9,Fort Worth,Texas.
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Agreement Between the City of Tort Worth and Page 18 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
Exhibit C: Project Outline
CiTY OF FORT WORTH
AR f COM M I5SM
• - _ F*age 1 ssf�
MEETING DATE: JUNE 20,2022 AGENDA(TEM:YI.a.
PROJECT NAME., SOUTH MAIN TUNNEt/135W UNDERPASS
PRESENTAWN: Approve the Combined Project Outline foti South Main Tunnel District 9)/135W at
East Rosedale Street Underpass(District B)Public Art Projects
Near Southside Gateways Project Public Art Project Outline
Near5outhside Inc.(NS11,In partnership with Fort WorM Pubf1c Art(FWPA)manaEed by Arts Fort Worth,the City of For+
Worth and TxDOT,has initiated a proposed project scope that,led by neighboehood residents and local stakeholder
input,will study the aesthetic and functional Improvements at the key gateway underpass locations of South Main
Street at Union Pacific Railroad and i;Rosedale Street at 35W,at She norther and eastern edges of the Near Southside
district.
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SOICrMI MAIN 1UNNEL l35W at FW ROSEMM
Initlal discLos€ono amonethe collatoratinR.entlfte i Irjlcate-that imprm--mints shot'd likely address lightlrra,
pedestrian facilities,traffic safety for all modes Including bicycles,as well a-.€icargsrate public art.The community
engtgernent pro:ess wou'd be tailored to separately solicit ideas and Input from stakeholders representing the two
areas of Sc Fth Main and East Rosedale,acid this input will be erat€al for the resulting conceptual improvement plan
proF:aed for each locatic-i.
Near South-Ae Inc.hay recently gained aptroval from the Board of Director»erving on the Tax Incremental
Reinvestment Zo-te Number tour,to adacate a maximum of$100,000 towards th's conceptual design effort.NSI will
serve as the project manager to hire an Interdisciplinary team with uYban design,engineering,and community
en f,4ement expertise.This team will wo*closely with the identified artists,contracted with the City through FWPA,to
develop a conceptual approarh for the integration of public art into the improvement pan.
The first phase of this project Is planned to be completed by the end of 2022 and the resulting conceptual plans will
Include cost estimates to serve as the basis for a subsequent TIF proposal for final design are d construction funding.This
next phase of the project will beg,;n In early 2023.
PUBLIC A81 BUDGETS
South Main Tunnelk$340,000(2014 Bond Program,Proposition A)
135W at East Rosedale Street Underpass: $95,00012004 Bond Program and Public Art Fund)pL-n(1r3 fund
reprogramming from tKa proposed Guinn School Plata subject to City Zouncil apF-oval
stuff Contact--Martha PrFters Eman, ++r ,g-. Phone:1317.799.3075
Agreement Between the City of Fort Worth and Page 19 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
CRY OF FORT WO"
Afar COM M IWMN
4 I��Iit 1 of t
MEETING DATE: JUNE 20,2022 AGENDA I MM:Vl.8_
RO&Cr NAME: SOUTH MAIN Tl1NNEL/135W UNDERPASS
Approve the Combined Project Outline for South Main Tunnel(District 9j/13.5W at
PRirSENTATil3N. East Rosedale Street Underpass(District 8)Public Art Projects
RECOMMENDEO ARTISTS
Among the artist selection processes outlined In the Fort Worth PubkArt Master plan Update is one in which a
Professional Services Team selects an artist from the Fort Worth Public Art Pre-Qualified List(see Appendix IV.&.)as part
of their response to an RFQ, Since NSI has already selected the design team for the Near 5outhslde Gateways Projects,
they have recommended the following artists from the Pre-Qualified List of Estoblished PubikArtias to each be invited
to prepare proposal for tenth sites:
• RE Studio[Norman Lee and Shane Allbritton] hK1ps://www.resite-studlw.com/
s Bill r<ttzigilJbons ]�ps:UbiBfitr{iiill�ns,com
Upon approval by the Art Commission,the artists will beOaced under separate Artwork Proposal Agreements with the
City of Hart Worth and will be informed by community inprrt and work closely with the design team to Gevvcirp proirosais
for Integral public art for both sites for consideration.
CONCEPTUAL DEFIGN/AOTWORK PRI]PI3rAt PHAsg TIMELINE
,July 2:Design Team under contract
€WFA—Artist$each placed under Atnvotk Proposa I Agreements
July i-Aug S.Site Visit,project Fesearch and base documents and presentation preparatWn
Aug a-Sept 2:Public Engagement
FWPA—Artists visit riles and participate In public engagement
FrWPA-Project Core Team established for each pubi Ic ail project
Sept 5-Oct 1S.,Develop Concepts w Prelirn Cost Estimate
Oct 17-28:Update Community;and Gather Feedback
FWPlA•Artist f prpppsais reviewed by on Artwork Selection Panel composed of Art Cornmisslonefs,
arts prafmsionals and tepresentatives from each Project Core Team
Nov 3-is.,Finalize Concept and Cost Estimate
FWPA-Art Cornrnl 5lart ctxnsiders Artwork Selection Panel's recommendations
Nov 21-Dec 2-NSI team prepares TIF proposal
Early Dec.,TIF Board rmeeting—N51 submits proposal and cost for deslign development and cGostruction
FWPA-Artlsts placed under Final design Contratrk5
Early 2023:Final Design Phase beg!rs
PUBLIC ART PROJECT M—&NAGERS
• South Main Tunnel—AlidaLabbe
• 1-35 W Underpass-Michelle Gonzales
staff Contact;Mureltia Peters Emalt Phone:817.29B.3Q25 -
Agreement Between the City of Fort Worth and Page 20 of 22.
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
Exhibit D: Budget
PROJECTBUDGET ARTIST PROJECTSUDGET
COSTSDEVELOPKENT TEMPLATE PROJECT DEVELOPMENT TEMPLATE PROJECT
FEES INSTALLATION
Artist Fee(Stub.o Overhead, Design,Adrnin) Trans?orLation of Artwork
Engineer Permits
ughting DesignEr Site Preperation I Remediartor,
Conservator Footings I Foundations
orotographer Electrical Connections/ivlodificotforis
Other Professional Fees rr%stailer Labor
qusrlenr Rental
Traffic control
SUID-TOTALi~EiES $ D_00 SeCLIFty
5U I3-TOTAL IN5TALLATiON $ 0.00
TRAVEL(Based an GM Rite
Tranxporation INSURANCE
Lodging Genera'Lipbility(prorated)
Per diem(meals and in6dentais)
SUR-TOTAL TRAVEL $ 0.00
Ot ie,
SUBTOTAL OVERHEAD i 0_00
FAMCATION
Materials CONTINGENCY
Artist labor(hours x$per hour) 5%Artist-Held Contingency
Required in Preliminary Design Phase
Fabricator/Labor by others GRAND TOTAL
Rentals(equipment,fabrication space,etc.)
Storage
SUB-TOTAL FABR4CATION $ 0.00
Agreement Between the City of Fort Worth and Page 21 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations
,�FF��,�y Exhibit E: Sales Tax Exemption
��10(Rev349--1319j)
Texas Sales and Use Tax Exemption Certification
This certificate does not require a number to be valid.
Name of purchaser,firm er egenoy
Gfty of Fort Worth,Texas
Address(Street Rnumber:PO.Box omoula number) Phone(Area code and number)
200 Texas Street 817-3924517
City.Stale.LP code
Fort Worth,Texas 76102
I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable
items described below or on the attached order or invoice) from:
Seller: All Vendors _
Street address: City,State,ZIP code:
Description of items to be purchased or on the attached order or Invoice:
All Items.Purchaser acknowledges that this Certificate cannot be used for the purchase,lease or rental of a motor _
vehicle.
Purchaser claims this exemption for the following reason:
Municipality,Governmental Entity
I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with
the provisions of the Tax Code andfor all applicable law.
i undomtandthatitisa criminaloflonso togive an exemption certificate to the sellerfortaxahleitems thatl krnow,althe tlmeofpurchaso,
willbe usedinamannerotharthan thatexpressedln thiscerlificale,anddependingontheamoantoftaxevaded,the offensomayrange
from a Class C misdemeanor to a felony of the second dogroo.
Purchaser Tllla Dale
hw ft
f alrq
NOTE: This certificate cannot be Issued for the purchase,lease,or rental of a motor vehicle.
THIS CER77FICA TE DOES NOT REQUIRE A NUMBER To BE VALID.
Sales and Else Tax"Exemption Numbers"or"Tax Exampt"Numbers do not exist.
This certificate should be furnished to the supplier.
Do gillsend the completed certificate to the Comptroller of Public Accounts.
Agreement Between the City of Fort Worth and Page 22 of 22
Bill Fitzgibbons for Conceptual Design Proposals of Public Art for Underpass Gateway Locations