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HomeMy WebLinkAboutContract 59357AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BILL FITZGIBBONS, LLC FOR FINAL DESIGN OF THE SOUTH MAIN STREET UNDERPASS PUBLIC ART PROJECT This Agreement, entered into this 9~ day of ~ , 2023, by and between the City of Fort Worth, a home-rule municipal corporation of the State of\exas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Bill Fitzgibbons, LLC ("Artist"), located at 205 Sheffield Place, San Antonio, Texas, 78213 , acting by and through its authorized President. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., D/B/A Arts Fort Worth 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 City has designated Near Southside, Inc. as its Capital Improvement Project Manager to act on behalf of the City with funding from the City of Fort Worth's Tax Increment Financing District #4 ("Southside TIF"). Capital Improvement Project Manager has engaged TranSystems Corp. with Garrison/Jones ("Project Consultants") subcontracted to design and implement pedestrian, bicycle and lighting improvements for the South Main Street Underpass at Union Pacific Railroad ("Site") in Council District 9; WHEREAS, funding for the South Main Street Underpass is available from a combination of 2014 Bond public art funds and the Southside TIF; WHEREAS, this project was included in the Public Art Fiscal Year 2023 Annual Work Plan adopted by City Council on November 29, 2022, as M&C 22 -0935; WHEREAS, on September 26, 2022, the City entered into a contract with Artist to develop a Preliminary Des ign for the Site (Fort Worth City Secretary Contract No . 58125); WHEREAS, on November 14, 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 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 ide as 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 s ufficiency of which is hereby acknowledged , agree as follo,ws~===----, Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass OFPICIAL RECORD CITY SECRETARY FT. WORTH, TX Page I of29 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 of Public Art for the Site . 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. Artwork Design -Means and includes the Preliminary Design and Final Design of the Work , which is defined in 1.3a and 1.3.b below: 1.3.a. Preliminary Design -Means all preliminary drawings , sketches, narrative descriptions , budget estimates , and the like that are created by Artist in connection with Fort Worth City Secretary Contract No . 58125 , depictions of which are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.3.b. Final Design -Means Artist 's final , proposed design of the Work for the Site, which is based upon the Preliminary Proposal and includes, but is not limited to, all final drawings , sketches, prototypes, maquettes , models , and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly , to the Work and shall include Artist's specifications for fabrication and installation of the Work. 1.4. Capital Improvement Project Manager -Means and includes Near Southside Inc. 1.5. City-Means and includes the City of Fort Worth. 1.6. Contract Manager -Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., D /B/A Arts Fort Worth , and/or its officers, directors, employees. 1.7. Effective Date -Means and includes the date represented in the first paragraph of this Agreement. 1.8. Final Design Deliverables -Means and includes those items set forth in Article 2.4 of this Agreement that are required for City 's review and approval. 1.9. Mentee Artist-Means and includes local artist Nicholas Papa, selected by Artist through a process conducted by Contract Manager. 1.10 Mentorship Program -Means and includes a program involving Artist and Mentee Artist as described in Exhibit "F" 1.11. Parties -Means and includes City and Artist. 1.12. Project -Means and includes the capital improvement or public art development undertaking of City for which Artist 's services are to be provided pursuant to this Agreement. Agree ment Betwee n th e C ity o f Fort Worth and Bill Fitzg ibbons , LLC fo r Fin al Des ign o f South Main Street Und e rp ass Page 2 of29 1.13. Project Consultants -Means and includes TranSystems Corp. and Garrison/Jones . 1.14. Project Core Team -Means and includes the group of community members, generall y 5-7 individual s, who are invited by the City Council Member to provide input on the Project for its duration , in accordance with the Fort Worth Public A rt Master Plan Updat e, page 23. 1.15. Project Stakeholders -Means and includes the appropriate City Council Member(s), the South Main Street Underpass Project Core Team, Near Southside, Inc., Downtown Fort Worth, Inc ., TxDOT, the Artist Selection Panel , the FWAC's appointed representative, City staff, and others as may be appropriate. 1.16. Site-Means and includes the South Main Street Underpass, located at Union Pacific Railroad , South of Lancaster Avenue (76102) in Council District 9 , identified in the Project Outline. Further details are attached hereto as Exhibit "B." 1.17. Work -Means and includes the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that the Preliminary Design submitted by Artist was approved by the FW AC on November 14 , 2022, and is the basis for executing this Agreement with the Artist. 2.2. a. Scope of Services. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, s cope, design, color, size, material , and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. City may request changes to the Artwork Design from time to time under this Agreement, and Artist will accommodate City's requests. c. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City, Capital Improvement Project Manager, and Artist prior to installation. d. Artis t , upon request of Contract Manager, shall provide information and/or attend meetings with Capital Improvement Project Manager and/or appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. e. Artist shall meet and coordinate with Capital Improvement Project Manager, Project Consultants, City staff, railroad representatives and others , as necessary , to integrate the Work into the Site in terms of structural support, installation method requirements , or other infrastructure needs to support the Work. Agreem ent Betwe en th e C ity of Fort Worth and Bill Fitzg ibbons , LLC for Final Des ign of South M ain Street U nd erpas s Pag e 3 of29 f. Artist shall coordinate with Project Consul tants on the Final Design of the Work to ensure visual continuity with the infrastructure. g. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. h. Artist shall present the Final Design to the FWAC for joint review with the Project Core Team, other Project Stakeholders, Capital Improvement Project Manager, the appropriate City staff, and for the FWAC's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be shared with City boards or commissions , as appropriate. 1. Artist shall allow video recording and photography of their participation during activities related to this project such as presentations and meetings. j. 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 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 . k. This Project includes an Artist-led mentorship program for emerging artists, all of whom are at least eighteen (18) years of age, to gain public art experience. Details for the program in the Final Design phase are attached hereto as "Exhibit F." It is understood by all Parties that there is no contractual relationship between the City and the participants of the mentorship program. All participants must provide a signed waiver included as "Exhibit G". The mentorship program will include, but is not limited to, the following: 2.3. 1. Artist shall include Mentee Artists in planning for upcoming community engagement meetings or events and design development. 2. Artist shall include Mentee Artists in community engagement meetings and events in various roles as deemed appropriate by Artist. 3 . Artist shall require Mentee Artists to participate in a check-in meeting with Artist and Contract Manager mid-way through Final Design. 4 . Artist shall require Mentee Artists to develop materials to be included as part of Artist 's Final Design Deliverables (see 2.4.a.viii). City Assistance . Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the Agreement Between th e C ity of Fo rt Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street U nd erpass Page 4 of29 extent that such materials are available. City , upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. a. Final Design Deliverables. Within six (6) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. Final Design Deliverables shall consist of the following: i. Signed letter of agreement between Artist and Mentee, which outlines meetings, payment schedule, and involvement for the Final Design phase as described in Exhibit "F ii. Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution digital format , such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site ; iii. An artist statement, which may include but is not limited to the following topics: the overall philosophical approach of the work, how the artwork relates to or engages viewers in the community , what influenced the Artwork Design, how techniques or materials relate to the content of the work, and how the work relates to the Artist's studio practice. iv. A final written narrative for the Work, describing the following: (1) Artist's Final Design concept; (2) Timeline for completion, proposed materials, fabrication , installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any; and (3) Maintenance requirements for all elements of the Work as dictated by the Artist, along with cost estimates for annual maintenance; v. Material or fabrication samples and/or model for the Work, as deemed necessary by the Artist; v1. A detailed final budget, on the budget form attached hereto as Exhibit "C," for implementation of the Work in an amount not to exceed $408,767.00 reflecting total costs and inclusive of remaining artist's fee of $17,821.00, materials, labor, fabrication, travel, transportation , construction, insurance (City requirements attached hereto as Exhibit "D"), footings, installation, all associated costs for the Work, contingencies, and all other associated costs for the Work. v11. Comprehensive working drawings , detailing the means of installing all elements of the Work on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on-site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work. Upon the Agreement Between the City of Fort Worth and Bill Fitzgibbons , LLC for Final Design of South Main Street Underpass Page 5 of29 City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager with 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. The City's insurance requirements are attached hereto as "Exhibit E;" and viii. Artist shall provide the Final Design presentation materials in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. All documents, models, and/or drawings will be retained for archival and exhibition purposes. ix. A written report detailing the South Main Underpass Artist-led Mentorship Program for a local artist including, but not limited to: 1. Overview summary to date ofMentorship Program 2. Deliverables as indicated in Exhibit "F" from Mentee Artist, including the following: a. Log of hours worked and corresponding activities ( e.g., meetings, research, etc.) b. Exit Summary Form explaining mentorship experience and future plans for engaging in public art as an individual artist. b. Deliverables shall be submitted to the Contract Manager three (3) weeks prior to the scheduled Final Design presentation to the FWAC for staff review. 2.5. a. Final Design Review. Upon completion and submission of the Final Design Deliverables and acceptance by Contract Manager, Artist shall present the Final Design to the FW AC for joint review with the Project Core Team, other Project Stakeholders, Capital Improvement Project Manager the appropriate City staff, and for the FWAC 's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be shared with City boards or commissions, as appropriate. b. City shall notify Artist of its approval , or disapproval, of the Final Design, either in whole or in part, within thirty (30) business days of Artist's presentation to the FW AC. c. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Final Design. City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having 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. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 6 of29 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. (s ee Article 4.4.d) f. Upon City 's approval of the Final Design, any revisions made to a City-approved Final Design shall become part of the Final Design. Artist shall incorporate any City-approved revisions into the Final Design in conformance with City's requirements. g. Artist's Final Design and all other work product under this Agreement shall become the property of City, without restriction on future use (see Article 6). h. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council , negotiations for fabrication, delivery, and installation of the work shall commence, which shall become part of the deliverable under any anticipated artwork commission contract. 3 .1. Compensation. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE Total compensation to Artist under the Agreement shall be in an amount of up to SIXTY-SIX THOUSAND , FOUR HUNDRED SIXTY-THREE DOLLARS AND NO CENTS {$66,463 .00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, Artist's fee of$53 ,463 .00, travel , engineering, material sample mock-ups , an allowance of$2,000 for honoraria to the Mentee Artists, consulting fees and services performed, and materials furnished by Artist under this Agreement. 3.2. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final , non-refundable payment for all services and materials provided prior to the due date thereof: a. FIVE THOUSAND FIVE HUNDRED D OLLARS AND NO CENTS {$5,500 .00) upon execution of this agreement and submission of copies of signed Letters of Agreement with each of the Mentee Artists. b . FIVE THOUSAND FIVE HUNDRED DO LLARS AND NO CENTS {$5,500.00) within thirty (30) calendar days after Artist meets with Project Core Team and other stakeholders to gather input prior to Final Design development. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 7 of29 c. FIFTEEN THOUSAND FOUR HUNDRED SIXTY-THREE DOLLARS AND NO CENTS ($15,463.00) within thirty (30) calendar days after Artist submits the Final Design Deliverables as required under Article 2.4 of this Agreement. d. TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) within thirty (30) calendar days after Artist makes a presentation of the Final Design to the FW AC, the Project Core Team, and other Project Stakeholders. e. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) within thirty (30) days after the City notifies the Artist of its approval of the Final Design. f. City will provide an allowance of up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for artist-led mentorship program, further detailed in Exhibit "F." g. City will provide an allowance of up to EIGHT THOUSAND DOLLARS AND NO CENTS ($8,000.00) for engineering, material sample mock-ups, professional services, and conservator or other consulting fees, as necessary. Such payment shall be made for actual services rendered only and upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached. h. City will provide a travel stipend of ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00) per trip for up to three (3) trips should Artist travel to Fort Worth to attend a project and/or Fort Worth Art Commission meeting in person. 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. Artists' Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. 4.1. Term. ARTICLE 4 TERM AND TERMINATION 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. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of So uth Main Street Un derp ass Page 8 of29 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants , agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party , subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 ofthis Agreement, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon Artist's receipt of payment in full of all monies due for services provided up to the effective date of termination , City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the effective date of termination , provided that no right to fabricate or execute the Work shall pass to City. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion , to pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including but not limited to finished and unfinished drawings, sketches, photographs , models, and designs , up to the effective date of termination shall become property of the City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artist for work performed in accordance with Section 3.2 of this Agreement up through the date of Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final De s ign of South M ain Street Underpass Page 9 of29 4.5. a. 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. Incapacity of Artist. If Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to incapacity. All finished and unfinished drawings, sketches , photographs, models, and any other work shall automatically become property of City. b. Should Artist's Final Design have been approved , in the event of termination under this Article 4.5 , City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 5 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty , obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute , or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days ofreceipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute , breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Party fails to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the a uthorized 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 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 Agreement Between th e C ity of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underp ass Page 10 of29 resolve the dispute through mediation, then either party shal l have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) ARTICLE6 OWNERSHIP AND INTELLECTUAL PROPERTY RJGHTS 6.1 . Title. Title to the Work, including, but not limited to , all documents, models and/or drawings that constitute or are components of the Work and/or the Artwork Design , shall pass to City upon Final Acceptance and payment for the Work or pursuant to the applicable termination provision of this Agreement. These documents , models and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 6.2. 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. 6.3. a. Reproduction Rights. 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 w heth er revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation , Artist agrees and understands that nothing in this paragraph shall affect or limit City 's absolute, unrestricted rights incidental to City's full ownershjp 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 and responsibility in regard to public works and improvements, in furtherance of City 's operations or for any other reason. c . All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form:"© date, Artist's name." Agreement Between th e City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 11 of29 d. Unless notified otherwise by City , Artist shall use Artist's best efforts in any public showing or resume use ofreproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may , at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artwork Design and/or Work shall be the orig inal product of the Artist's sole creative efforts. b. Artwork Design and/or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; c. Artist has not sold, assigned, transferred, licensed , granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artwork Design and/or Work (or duplicate thereof) have not been accepted for sale elsewhere; e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f . All services performed hereunder shall be performed in accordance with all applicable laws, regulations , ordinances , etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his /her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his /her officers , agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. 9.1. a. General Indemnity. ARTICLE9 INDEMNJFICA TION 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 Agreement Betwee n the City of Fort Worth and Bill Fitzgibbons, LLC for Final Desi gn of South Main Street Unde rpass Page 12 of29 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 ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained by Artist in connection with or incidental to performance under this Agreement. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to , the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations , implied or otherwise , regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT 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. Agreement Between the C ity of Fo rt Worth and Bill F itzg ibbons , LLC for Fi nal Design of South Main Street Underpass Page 13 of29 ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin , familial status , transgender, gender identity , or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability , race , color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity , or gender expression. Such action shall include, but not be limited to , the following: Employment, upgrading, demotion , transfer, recruitment or pay or other forms of compensations, and selection for training, including, but not limited to , apprenticeship . Artist agrees to post in conspicuous places , availab le to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race , color, religion , sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. c. Artist shall furnish all information and reports requested by City, and shall permit access to its books , records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d . In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated , or suspended in whole or in part, and Artist may be debarred from further agreements with the City . ARTICLE 11 MISCELLANEOUS 11.1. Compliance . Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. Agreement Between the C ity of Fort Worth and Bill Fitzgibbons, LLC for Fin a l Des ig n of South Main Street Underp ass Page 14 of29 11.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any s ubsequent default of any terms , covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall no t be deemed a waiver of any right or acceptance of defective performance. 11.5 . Governing Law and Venue. If any action , whether real or asserted, at law or in equity, arises on the basis ofany provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County , Texas or the United States District Court for the Northern District of Texas -Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party , and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon a nd shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7 . No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity . 11 .8. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired . 11.9. Force 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; strikes; 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 s uspended 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 po ssible after the occurrence of the Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for F in al Design of South Main Street U nderpass Page 15 of29 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. 11. 10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counse l, 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. 11.11. Fiscal Funding Out. If for any reason , at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following de livery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 . Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records ") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term ofthis Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 200 Texas Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 11.13. 11.14. Certified MWBE. If applicable , Artist shall make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by City under the City 's Business Diversity Enterprise Ordinance. 11.15 . Survival Provision. The provisions contained in Articles 4 .5 (Incapacity of Artist), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification), and 11.13 (Right to Audit) shall survive the termination or expiration of this Agreement. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpas s Page 16 of29 11.16. 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. 11.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 1 1.18. Israel. If Artist is a company with ten ( I 0) or more full -tim e 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 verification to the City that A rtist: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 11.19. 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 that Artist's signature provides written verification to the City that Artist: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 11.20. 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 Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 17 of29 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 or firearm trade association; and (2) will not di scriminate 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 ofthe 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 12 NOTICES All notices, requests , demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been dul y given upon the delivery or receipt thereof, as the case may be, if delivered personall y or sent by registered or certified mail , return receipt requested , po stage prepaid , as follows: 1. CITY OF FORT WORTH : Copies to: 2. ARTIST: Agree ment Between the C ity o f Fort Wo rth and Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 200 Texas Street Fort Worth , TX 76102 Leann Guzman, City Attorney Office of the City Attorney 200 Texas Street, Third Floor Fort Worth, TX 76102 Martha Peters , Director of Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth , TX 76107 Bill Fitzgibbons, LLC 205 Sheffield Place San Antonio , Texas, 78213 Bill Fitzg ibbon s, LL C for Fin al Des ign of So uth M ai n Street Und e rp ass Pa ge 18 of29 IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH BILL FITZGIBBONS, LLC Fernando Costa Assistant City Manager Bill Fitzgibbons President Date: -=-~_,__/4 ...... a _,__/2-""z _o_Z3 ____ _ Date: CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. ~ Name: Alida Labbe Title: Public Art Project and Capital Budget Manager APPROVED AS TO FORM AND LEGALITY: Jessika Williams Assistant City Attorney ATTESTED BY: Form 1295 Not Required Contract Authorization: M&C -No M&C Required Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass I OFFICIAL RECORD CITf SECRETARY FT. WORTH, TX Page 19 of29 EXHIBIT A: APPROVED PRELIMINARY DESIGN Artist's Narrative: The current underpass located on Main Street in the Near Southside has a very dark and foreboding experience for pedestrians and motorists. My goal was to create an inviting and placemaking light sculpture as well as a gateway to this important Southside community. A unique light sculpture that celebrates Fort Worth as well as the community in which it finds itself. To this end, Main Street Gateway will have te n to twelve unique light programs throughout the year. My renderings show a couple of possible programs . The blue and green was inspired by the former flag of Fort Worth (the blue represented the space age to come and the green represented the green of the prairie), the purple and white colors of TCU and the red , white, and blue representing the Juneteenth flag (as well as other patriotic days). As part of my creating these unique color programs I would like to meet local neighborhood groups and other local stakeholders for input concerning important aspects of their community to celebrate. Artist 's rendering depicting possible lighting P,rogram for S. Main Underpass -~ "1 ; Artist's rendering depicting possible lighting program for S. Main Underpass, showing th e LED fixtures in the upper corner of the pedestrian walkway. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Fi na l Design of South Main Street U nd erpass Page 20 of29 EXHIBIT B: SITE South Main Street Underpass, located at Union Pacific Railroad, South of Lancaster A venue (76102) 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. ~1::1:J .,,, ~-J\ I -. J -·--~~;--= I i"° I ·.- Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 2 1 of29 EXHIBIT C: BUDGET FORM Artist Fee (St!11d io,o ·,er hea d, Design, Adminl Engi er Lig htin.g Desifner Co11sen.rallior :Ph otograp' er Other Professiona l Fees SUB-TOTAL i:'EES TRAVEl {Base:d o n GSA Rates) nanspora1iion LO dfi ng :Per di em (m eals a ndl i ncidentals) SUB-TOT AL TR.14 EJL FA BRICATI.ON M at erials rtist la bor (hours x $ p er hour ) Fa .ricator/Lab or by Others Renta (e 11 ipment , fabr ication. s;pace, etc.I --l St,ar.age SUB-TOTAL FABR:IC AT IO . Agreement Between the City of Fort Worth and . . PROJECT BUDGET ARTIST DEVELOPMENT TEMPLATE ~~~~ INSTAllATtON lranspo rtation ot A:rtw a,rk Permits ~Jte, Pr epa ranon./ emediation Footings I f a ndations - Electr ical CD n:nectio:ns / Modificatio ns l nsta er labor fq, i pment Rent Traffic ,com:rn1 security SUB-TOTAL INSTA'i.UT ION INSURA -lCE •Ge11e~ Li ab ility (pr,oratedl othe.r S LB-TOTAL O\t,ERiJ,.f:EA 11) CONTINGENCY GRANOT,OTAL Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 22 of29 EXHIBIT D: INSURANCE REQUIREMENTS PUBLIC ART PROJECTS -INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation , and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1 ,000 ,000 $2 ,000 ,000 Each occurrence Aggregate limit Coverage shall include, but not be limited to , the following: premises, operations , independent contractors, products/completed operations, personal injury , and contractual liability. Insurance shall be provided on an occurrence basis and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody , and control and shall include property "in transit." Automobile Liability $1 ,000 ,000 or $250 ,000 $500 ,000 $100 ,000 Each accident Bodily Injury per person Bodily Injury per occurrence Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned , hired 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 $500 ,000 Bodily Injury/Disease -policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 -1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth , its ' Officers , Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers ' Compensation or Automobile policies. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for F in a l Design of South Main Street Und erpass Page 23 of29 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 stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City , at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions , limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 24 of29 EXHIBIT E: TAX EXEMPTION Te·xas Sales and U e lax Exemption Certification Thi!:: ~Iii · .t.1 &!K .m:i r.!liJV.'r.e a nimv.bon•a ba Wl Plkln ~ i:,& -tf • · iDR) fron:t All Vl!'ndors ________________ Gll r, ,.ZIP l!Cdo _· __________ _ lioo of ilent~ :t.i ~ p.tl'dtltv..cd a-oo ll1"le-alliYJJetl w or lrrmb!: PlJru'iQ. d.i!m111 Is, -11r.oo lil r · rlllmlfl!J ro11 n : I EnU ly I uu:I rlltln d I v,1 ba I le: fur p;:r,-rnc:t al' I~ lo: r.JIM ffl r bOOD lfUD i'i:a m "ID OOITp 'Ii' 'lho l!)l"('l: m;, af 1110 Tllr. CIMID ,.m:f{or 1111 app l.m.. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final De s ign of South Main Street Underpass Page 25 of29 EXHIBITF South Main Underpass Artist-Led Mentorship Program Participation Plan and Waiver The activities of the South Main Underpass Mentorship Program include, but are not limited to , coordination and attending community and agency meetings, conducting research regarding materials, design elements; writing reports, and any other duties requested by Artist that relate to the design. 1. Mentee Professional Development Objectives: a. Learn how to take a public art project from brainstorm ing with the community through Final Design. b. Assist Artist in engagement efforts with the community by developing public meetings and gathering feedback from residents . c. Collaborate and provide input on artwork design. 2 . Compensation and Meeting Schedule: a. A total ofup to $2,000.00 will be allocated for Artist-Led Mentorship Program participants ' commitment to the project and paid directly to the Artist. Mentee will be compensated up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for participation in the Mentorship Program: 1. $500.00 for attending check-in meeting with Artist and Contract Manager at the mid-way point of the mentorship. 11. $500.00 after Mentee Artist submits materials as outlined in Mentee Deliverables (Exhibit F, 4.a). 111. $1,000.00 as a travel stipend should Mentee travel to San Antonio, TX to visit Artist studio. b. It is anticipated that there will be in-person and/or virtual meetings for a minimum of two (2) times per month throughout the duration of the mentorship. Schedule can be modified as needed. c. Mentee will keep a log of hours spent on the project per week. Mentorship shall not exceed eighty (80) hours. 3. Mentee Responsibilities a. Mentee will play a vital role in refining the Preliminary Design using input from community engagement to aid Artist in creating a Final Design. As an artist with deep roots in the community, Mentee wi ll be essential team members in helping select design elements that speak to the neighborhood 's history , b. Mentee will be involved in diverse administrative and artistic aspects of the project, but three (3) primary activities include: 1. Conducting research regarding des ign elements a. Mentee will research what neighborhood and business associations exist, and what unique festivals or events occur in this community on a regular or annual basis. b . Mentee will also research the history and current activities of the South Main area, that might be referenced by the design, c. Mentee may research other sym bols, patterns , or components brought up by the community during engagement. 2. Conducting research regarding materials and log istic constraints a. Mentee may attend meetings with Project Consultant and research regulations and requirements as appropriate. b. Mentee may research materials and attachment methods as required. Agreement Between the City o f Fort Worth and Bill Fitzgibbons, LLC for Fin al Design of South Main Street Unde rpass Page 26 of29 3. Community engagement a. Mentee will advise on approaches and modalities for community engagement and assist with meetings and otherwise facilitating dialogue with Project Stakeholders and community members. b. Mentee will attend community meetings related to this project. 4. Mentee Deliverables a. At the conclusion of the mentorship, Mentee will deliver the following: i. Log of hours with description of tasks ii. Report of activities and meeting attendance iii. Exit Summary explaining mentorship experience and future plans for engaging in public art as an individual artist. Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Underpass Page 27 of29 EXHIBITG MENTORSHIP PROGRAM PARTICIPANT WAIVER Each Mentorship Program Participant will sign the waiver below and return a signed original to the Artist, who in turn shall submit the document to the City prior to participating in the program. I , --------------~ am at least 18 years of age and, for myself, my heirs and assigns , hereby affirm that I am aware that my participation in the Artist-led Mentorship Program ("Program ") is solely managed by BILL FITZGIBBONS, LLC, but partly taking place at facilities owned by the City of Fort Worth ("City"), has inherent risks which may result in serious injury or death. As a condition precedent to participating in the Program and entering onto the City 's property, I confirm that I understand and accept all risks , dangers and hazards presented by my participation in the Program, and I am participating in these activities freely and voluntarily. In consideration of being permitted to participate in the Program specifically at a City Facility, I hereby assume all risk of harm and injury to myself and others, as well as to the property of others, which may result from my participation in the Program , regardless of the cause or blame. I agree to act in a reasonable and cautious manner in all aspects of my participation in the Program. Further, I, for myself, my heirs and assigns, in consideration of being able to utilize the Facility and participate in the Program, do hereby FOREVER RELEASE AND WAIVE all claims against the City of Fort Worth, its officers, agents and employees, for injuries, death or property damage which may arise from my use or presence at the Facility. This waiver and release is intended to release and forever discharge the City of Fort Worth, its officers, servants, agents and employees from any and all claims, actions, causes of action, damages, losses or expenses, including attorney's fees whether real or asserted, of every kind or character, arising out of my use of the Facility, including going to and from such Facility. I, for myself, my heirs and assigns, hereby assume the risk of all conditions of the Facility , dangerous or otherwise, all occurrences that may be encountered while using or going to or from such Facility and waive any and all spec ific notice of the existence of such conditions or occurrences. This waiver is intended to release the City of Fort Worth, its officers, servants, agents and employees even if said injuries, death or other damages are caused in whole or in part by the alleged acts of commission, omission, negligence or fault of the City of Fort Worth, its officers, servants, agents or employees. I, for myself, and my heirs and assigns hereby assume all responsibility and liability for such injuries or damages, including death , and hereby covenant not to sue the entities and parties named above for such injuries or damages. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE CITY AND HOLD THE CITY HARMLESS FROM ALL CLAIMS, TOGETHER WITH ALL COSTS, EXPENSES, AND LEGAL FEES IN DEFENDING ALL CLAIMS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO MY USE OF Agreement Between the City of Fort Worth and Bill Fitzgibbons, LLC for Final Design of South Main Street Und erpass Page 28 of29 THE FACILITY. THIS INDEMNITY PROVISION (INCLUDING, WITHOUT LIMITATION, INDEMNITY FOR COSTS, EXPENSES AND LEGAL FEES) IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED AS A WHOLE OR IN PART BY ANY ACT, OMISSION, NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW, BREACH OF WARRANTY, PRODUCT DEFECT, STRICT PRODUCT LIABILITY, OR ANY OTHER CONDUCT WHATSOEVER OF THE CITY. I REALIZE THAT BY SIGNING THIS AGREEMENT, I AM GIVING UP MY RIGHT TO SUE THE CITY FOR INJURY, DEATH OR DAMAGE I MAY SUFFER AT THE EVENT. IF ANY COURT FINDS A PORTION OF THIS AGREEMENT TO BE INVALID, THE REMAINDER OF THE AGREEMENT WILL NOT BE AFFECTED. I have read thi s Waiver, Re lease, and Indemnity Agree ment a nd full y und e rstand it s term s, provis ions a nd conditions . I have not been influenced to an y extent whatsoev er by any repres entations , agreem ents , promi ses, or statements not contained w ithin thi s agr ee ment. Dated thi s ___ day of _________ , 20_ Parti c ip ant Signatur e Address Ci ty, State and Z ip Code Telephone Agree me nt Between the City of Fo rt Worth and Bill F itzgi bb ons, LLC for Final Design of So uth Main Street Unde rp ass Page 29 of29 FORT WORTH Routing and Transmittal Slip Planning & Data Analytics Department Fort Worth Public Art DOCUMENT TITLE: Final Design Agreement between the City of Fort Worth and Bill Fitzgibbons LLC CSO :~cG~D ~1]~ 1.;" 5 722 -::.•:~:t_:: C(2 M&C ------CPN ------CSO# ------DOC# _____ _ DATE: TO: INITIALS DATE OUT 1. Jessika Williams , Assistant Ci t y Attorney JJW 5/2/23 2. ACM Fernando Costa ?C-sls/2023 w - 3 . Jannette Goodall , City Secretary 4 . 5 . 6 . DOCUMENTS FOR CITY MANAGER'S SIGNTURE: All documents received from any and all City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip , David will review and take the next steps. NEEDS TO BE NOTARIZED: D Yes □X No RUSH: D Yes D NoX SAME DAY: D Yes D No ROUTING TO CSO: □X Yes D No Action Required: NEXT DAY: □X Yes D No □ As Requested □ Attach Signature, Initial and Notary Tabs □ For Your Information X □ Signature/Routing and or Recording □ Comment □ File Return to: Please email a copy of the fully executed contract to : Alida Labbe , Public Art Project and Capital Budget Manager, Arts Fort Worth at alabbe@artsfortworth.org Thank you !