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Home My WebLink AboutContract 60700CITY SECRETARY • CONTRACT NO. _l,,l~:..,_,1..,}...,j~- AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ANITRA BLAYTON FOR COMMISSION OF PUBLIC ART FOR ALLIANCE PARK This Agreement is entered into by and between the City of Fort Worth ("City"), a home-rul e municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Anitra Blayton ("Artist"), an individual located at 912 Lark Spur Lane, Fort Worth, Texas 76112. City has desi gnated the Arts Council ofFort Worth and Tarrant County, Inc., d/b/a Arts Fort Worth ("C ontract Manager"), to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art Project Manager. WHEREAS , pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents , to commemorate the City's rich cultural and ethnic diversity , to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City has completed construction of Phase 1 of Alliance Park, located at 3800 Litsey Road , 76262 (Council District 1 O); WHEREAS, this Project was included in the Public Art Plan for the 2018 Bond Program, adopted by the Fort Worth City Council on November 6, 2018 (M&C G-19401), and was also included in the Fort Worth Public Art Fiscal Year 2024 Annual Work Plan, adopted by the Fort Worth City Council on October I 7, 2023 (M&C 23-0844); WHEREAS, on May 25 , 2023, the City entered into a contract with Artist to develop a Final Design of public art for the Site (City Secretary Contract No. 594 77); WHEREAS , on September 25, 2023, the Fort Worth Art Commission ("FWAC") approved Artist's Final Design , and on November 15 , 2023, the Park and Recreation Advisory Board endorsed the location for the artwork; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be fabricated, delivered , and installed at the Site; 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 I 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 Commission of Public Artwork for the Site. Agreement for Commission of Public Artwork with Anitra Blayton fo r Alli ance Park Execution Copy OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of34 1.2. Artist -Means and includes Anitra Blayton. 1.3. Artwork Design -Means the final, City-approved design of the Work for the Site created in connection with Fort Worth City Secretary Contract No. 59477 and includes, but is not limited to, all final City-approved maquettes, drawings, sketches, prototypes, models , and the like that were created by Artist. The design and description are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.4. Contract Manager-Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., d/b/a Arts Fort Worth. 1.5. City -Means and includes the City of Fort Worth , Texas. 1.6. Effective Date -Means and includes the date this Agreement is executed by the City. 1.7. Final Acceptance -Means City's written acknowledgement to Artist that all services for fabrication , delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.8. Parties -Means and includes City and Artist. 1.9. Project-Means and includes the capital improvement or public art development undertaki ng of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. Project Core Team -Means and includes the gro up of community members, generally 5-7 individuals, who are invi ted by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update (page 23). 1.11. Project Stakeholders -Means and includes the appropriate City Council Member(s), the Project Core Team, the Artist Selection Panel , the FW A C 's appointed representative, City staff, and others as may be appropriate. 1.12. Schedule -Means and includes a written plan of procedure for completion of fabrication, delivery , and installation of the Work, includin g, but not limited to , the subm ission of progress reports. 1.13. Site -Means Alliance Park, located at 3800 Litsey Road, 76262 , identified in the Project Outline. The specific site within the park included is attached hereto as Exhibit "B." 1.14. 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 works, which specifica lly includes the Artwork De sign. ARTICLE2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Final Design was reviewed and approved by the FWAC on September 25 , 2023 , and placement of the artwork in Alliance Park was endorsed by the Fort Worth Park and Recreation Advisory Board on November 15 , 2023 , and is the basis for executing this Agreement with Artist. Agreement for Com mi ssion of Publ ic Artwork with Anitra Sl ay ton for All ia nce Park Execution Copy 2 of34 2.2. a. Scope of Services. Artist shall perform all services and shall furnish all supplies, materials , and equipment as necessary for fabricating , delivering, and installing the Work at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design , color, size, material , and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. c. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. d. Artist shall coordinate with City staff, its contractors, and others, as necessary, to ensure proper installation and integration of the Work into the Site, as applicable, including, but not limited to , artwork location and installation equipment brought onto the Site. e. 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. f. Artist shall install the work on dates and times mutually agreed upon by Artist and City. g. Artist shall collect shoe tread patterns from community members ofall ages for inclusion in the Work. Such an effort may take place digitally and /or in-person. Artist shall coordinate with Contract Manager to identify dates/times/locations for in-person collections and for assistance in inviting community members to participate. h. Artist shall allow video recording and photography of her participation during activities related to this project such as presentations and meetings. i. If Artist intends to seek her own publicity for the Work, including publication of the artwork design on Artist 's website , social media, or press/media release(s), all such publicity must be approved , in advance, by Contract Manager, and shall credit the City of Fort Worth in substantially the following form, "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." A social media plan must be approved, in advance , by Contract Manager, and shall include the hashtag #fwpublicart. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City , upon request by Artist, shall also provide correct scaled drawings of the Site , if availab le. Agreement fo r Co mm iss ion of Publ ic Artwork with Anitra Blayton for Alliance Park Ex ecut io n Copy 3 of34 2.4. a. Execution of Work. Artist shall furnish the Schedule to the Contract Manager within fifteen business days after the Effective Date.. After written approval of the Schedule by City, Artist shall fabricate , deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City . b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall , upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4 within thirty calendar days after receipt of the written request. c. Artist shall complete the fabrication of the Work in accordance with the Artwork Design . Artist shall present to the Contract Manager, in writing , for further review and approval, any changes in the scope , design , color, size, material , or texture of the Work. The Contract Manager, in its discretion , shall determine whether the changes are significant and whether the changes conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Design , then the Contract Manager shall , in light of the Artwork Design , determine whether a significant change requires City approval. If the Contract Manager determines that the significant change requires City approval, then the change(s) may be presented to the FW AC for review and approval at an FW AC scheduled meeting. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of thi s Agreement. 2 .5 . Delivery and Installation. a. Artist shall notify City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. b. Artist shall be responsible for obtaining and paying for all necessary permits and any required traffic barriers appropriate for this Project. c . Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager. Delivery and installation activities may not commence until written permission is delivered to Artist by the City . d. Artist shall be responsible for all costs as sociated with the materials , fabrication, and installation of the Work, including, but not limited to , equipment rentals , transportation , and labor. Agreem ent fo r Commi ss ion of Pu blic Art wo rk with Anitra Bl ay ton fo r Alli ance Park Ex ecuti on Co py 4of34 e. Should Artist complete the Work in advance of the approved installation date, Artist shall store the Work at no expense to City until such a time as the Site is completed and the Contract Manager notifies Artist that installation may commence. f. Artist, individually and through its subcontractors, including its fabricator and /or installer, shall take all necessary precautions to protect and preserve the integrity and finish of the Site, includin g but not limited to interior finishes, painted structures, pathways , and landscaping, while delivering and installing the Work. If City determines , in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at his/her own expense, shall have thirty days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. g. Upon City's request , prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. 2.6. a. Post-installation. Within thirty days after the installation of the Work, Artist shall furnish Contract Manager with a set ofat least fifteen high-resolution digital images (.tiff format) and fifteen low-re so lution digital images (.jpeg format) showing each element of the Work, including detail shots, with at least ten of these images showing the Work installed, as selected by Contract Manager, to document the Work after the Work is installed. Images should include daytime and nighttime views. b. Artist shall make their best effort to be available at such time(s) as may be set by the City to attend any inauguration or presentation ceremon ies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. c . For the duration of the Agreement, if Artist intends to seek her own publicity for the Work, such efforts and/or press releases must be approved, in advance, by Contract Manager. Agreement for Commission of Public Artwork with Anitra Slayton for Alliance Park Ex ecution Copy 5 of34 2.7. a. Final Acceptance. Artist shall notify Contract Manager, in writing, when all services for fabrication , delivery , and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D " (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist in writing of its Final Acceptance of the Work. c. Final Acceptance shall be effective as of the earlier to occur of: (1) the date of City's notification of Final Acceptance; or (2) the 35th day after Artist has sent the written notice to City required under this Section 2.7, unles s City, upon receipt of such notice and prior to the expiration of the 35-day period, g ive s Artist writte n notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.8. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to completed artwork installation, and Artist shall take such measures as are necessary to protect the Work from loss or damage until this time , including, but not limited to , the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to completed artwork installation during such periods of time as the partially or wholly completed Work is in the custody , control , or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount of ONE HUNDRED SEVENTY- NINE THOUSAND DOLLARS AND ZERO CENTS ($179,000.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, any costs associated with gathering shoe tread patterns from community members , fabrication , transportation, installation , remaining Artist 's fee of $7,960.00, insurance, incidental costs, a contingency of $18 ,609.00 , and any other costs associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. City agrees to pay Artist in the following 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. SEVENTY THOUSAND DOLLARS AND ZERO CENTS ($70,000.00) upon execution of this Agreement to enable Artist to purchase materials and begin fabrication. Agreement for Commission of Public Artwork with Anitra Blayton for Alliance Park Execution Copy 6 of34 b. THIRTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($35,000.00) upon Contract Manager's verification of 50% fabrication. c. TWENTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($25,000.00) upon Contract Manager's verification that the Work is 100% fabricated and ready to install. d. TWENTY-TWO THOUSAND, FOUR HUNDRED THIRTY-ONE DOLLARS AND ZERO CENTS ($22,431.00) upon Contract Manager's verification that the Work is installed . e. SEVEN THOUSAND, NINE HUNDRED SIXTY DOLLARS AND ZERO CENTS ($7,960.00) within thirty-five days after Final Acceptance and receipt by City of such documentation as it may require concerning payment of services and supplies rendered to Artist (see Article 2); provided , however, that final delivery shall not be tendered prior to the expiration of thirty days after Final Acceptance . f. A contingency of up to EIGHTEEN THOUSAND, SIX HUNDRED NINE DOLLARS AND ZERO CENTS ($18,609.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes such as materials, fabrication , or installation costs. Such payment will be made upon (i) receipt of supporting documentation by the Contract Manager from the Artist, and (ii) approval by the Contract Manager of the additional costs. Any unused contingency funds shall remain with the City. 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 Work. 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 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, mailin g/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. ARTICLE4 TERM AND TIME OF PERFORMANCE 4.1. Term. This Agreement shall be in effect from the Effective Date , and , unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. Agreem e nt fo r Comm iss io n of Publi c Artwork with Anitra Sl ayt on for Al I ian ce Park Ex ecutio n Copy 7 of34 4.2. Duration. The services to be required of Artist set forth in Article 2 shall be completed in accordance with the Schedule ; provided , however, that such time limits may be extended or otherwise modified by written agreement between Artist and City. 4.3. Early Completion of Artist Services. Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedu le for delivery . 4.4 . Time Extensions; Force Majeure. City and Artist will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but wi ll 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 a uthority; 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. 5.1. a . Warranties of Title and Copyright. Artist represents and warrants that: ARTICLE 5 WARRANTIES i. Artwork Design and Work shall be the original product of Artist's sole creative efforts; ii. Artwork Design and Work are and will be unique and original , and do not infringe upon any copyright or the rights of any person or entity; 111. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; iv . Artist has not sold, assigned, transferred , licensed, granted, encumbered , or utilized the Artwork Designs or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; v. Artwork Designs and Work are free and clear of any liens from any source whatsoever; Agreement for Commission of Public Artwork with Anitra Blayton for Alliance Park Execution Copy 8 of34 5.2. a. vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Ag reement; and vii. All services performed hereunder shall be performed in accordance with all applicable laws , regulations , ordinances, etc., and with all neces sary care, skill , and diligence . Warranties of Quality and Condition. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmans hip (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one year after the date of Final Acceptance . b. Artist represents and warrants that the Work and the material s used are not currentl y known to be harmful to public health and safety. c. If, within one year after Final Acceptance, City observes any breach of warranty described in thi s Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness . Artist shall , at the request of City , cure the breach satisfactoril y and consistent with professional conservation standards (in accordance w ith the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to , any standards set forth by City , within thirty day s after receipt of the written notice , at no expense to City. d. If, within one year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is not curable by Artist, Artist is responsible for reimburs ing City for damages, expenses, and losses incurred by City as a result of the breach . However, if Artist disclosed the risk of this breach in the proposal and City accepted that ri sk , it shall not be deemed a breach for purposes of this Article 5.2. e . If, after one y ear from Final Acceptance , City observes an y breach of warranty described in thi s Article 5.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime . Artist shall notify City , in writing, within thirty days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations . Should Artist fail to respond within the thirty -day deadline, or be unwilling to accept reasonable compensation under the industry standard , City may seek the services of a qualified restorative conservator and maintenance expert. f . Acceptable Standard of Display. Artist represents and warrants that: 1. General routine cleaning and repair of the Work and an y associated workin g parts and/or equipment will maintain the Work within an acceptable standard of public display. Agre ement fo r Co mmiss ion of Publi c Art wo rk with An itra Bl ay ton for Alli anc e Park Exec uti on Copy 9 of34 ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. iii . With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display , including, but not limited to, mold, rust , fracturing, staining, chipping, tearing, abradi ng , and/or peeling. iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in go od condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work 's condition is satisfactorily repaired . 6 .1. General. ARTICLE 6 INSURANCE AND INDEMNITY Artist shall carry insurance as set out in Exhibit "F ," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property , then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Exce pt as provided in Section 2.8, the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. a. General Indemnity . 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, Agreement for Commission of Public Artwork w ith Anitra Blayton for A ll iance Park Execution Copy 10 of 34 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 OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTIST 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. 6.4. 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 payin g 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 for Commission of Public Artwork wi th Anitra Blayton for Alliance Park Execut ion Copy 11 of34 ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to , all documents, models, and drawin gs that constitute or are components of the Artwork Design and /or Work shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and drawings will be retained for archival and exhibition purposes. Artist 's Artwork Design and Work and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below . 7 .2. Copyright Ownership. Artist retain s all rights under the Copyright Act of 1976 , 17 U.S .C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3 . a . Reproduction Rights. [n 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 Arti st 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 thi s Agreement, Artist grants to City an exclusive , perpetual , royalty free , and irrevocable license to graphically depict and publicly display the Artwork Des ign and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Designs or the Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwi se received by City , shall be deemed a non-commercial purpose . Notwithstanding the above limitation , Artist agrees and understands that nothing in this paragraph shall affect or limit City 's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify , destroy , remove, move, replace , operate, maintain , transport, sell , or transfer, in whole or in part, the Work when City deems it necessary within its discretion , in order to otherwise exercise City 's powers 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 in substantially the following form: "© date , Artist 's name ." 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." Agreement fo r Co mmi ss io n of Pu bli c Artwork with Anitra Bl ay ton fo r Alli ance Park Exec ut io n Copy 12 of34 e. Artist may , at Artist's expense , cause to be registered with the U nited 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 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art webs ite (www.fwpublicart.org) and facilitate the design , purchase, and installation of a permanent plaque at the s ite . 8.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected , taking into account the maintenance in structio ns provided by Artist in accordance with Section 2.5 and Exhibit "C." 8.3. a. b. Repairs and Restoration. City shall have the right to determine when and if repairs and restorations to the Work will be made. All repairs and restorations shall be made in accordance w ith recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards , including, but not limited to , any standards set forth by City. c. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to 8.4. a. prevent risks to the public, such repairs shall be undertaken or arranged by City as appropriate and such repairs shall not be deemed to constitute artistic alteration. Alteration of the Work or of the Site. City agrees that it wi ll not willfu ll y destroy, damage , or modify the Work, except as provided in Artic le 8.4(b) and 8.4(c) below. b. In the event that the City determines the Site will be altered, so ld , or no lon ger used by City and the Work is integrated into a building, structure, or realty , City shall hav e the right to remove the Work by any means , including destruction. City may give Artist written notice of its intent to take such action under this Article 8.4. c. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is freestanding or incorporated into a building, structure, or realty such that it may be removed without damaging or destroying the Work or the building or structure , City at its sole discretion may relocate , sell , or store the Work. If City chooses not to relocate , sell, or store the Work, Artist may be given written notice and no more than ninety days to remove the Work at hi s or her sole expense. Agreement for Commission of Public Artwo rk wi th Anitra Sl ayton for Alliance Park Exec ution Copy 13 of34 Upon Artist 's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. d. In the event the Work is substantially damaged or altered , City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this Article 8.4. e. City shall at all times have the right to move the Work or remove it from public display. City shall also have the right to sell or trade the Work. 8.5. Permanent Record . City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist 's rights. 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE9 ARTIST AS AN 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 partners hip or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and the doctrine ofrespondeat superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions. Artist shall provide information regarding all subcontractors , including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. Agreement for Commission of Public Artwork wi th Anitra Slayton for Alliance Park Execution Copy 14 of34 11.1. Gratuities. ARTICLE 11 TERMINATION City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City pursuant to this Article I 1.1 , City shall be entitled, in addition to any other rights and remedies , to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 11.2. Death or Incapacity of Artist. a. In the event of Artist's death or of Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity . All work product produced by Artist, including, but not limited to , finished and unfinished drawings, sketches, photographs , models, and designs, up to the effective date of termination, shall become property of City. b. ln the event of termination under this Article 11.2 , City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This Article 11.2 shall survive the termination or expiration of this Agreement. 11.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party , subject to written notice submitted at least thirty calendar days before termination. b. If the termination is for the convenience of City , City shall pay Artist for services actually rendered up to the effective date of termination in accordance with the payment schedule in Section 3.2 of this Agreement as determined in City 's sole discretion , 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 payment in full of all monies due for services provided up to the effective date of termination, City shall have the right , in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings , sketches, photographs, models, designs , and the Work up to the effective date of termination. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist 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) Agreement for Commi ss ion of Public Artwork wi th Anitra Blayton for Alliance Pa rk Ex ecut ion Copy 15 of3 4 made to the Artist pursuant to this Agreement prior to the effective date of termination , as determined in City 's sole discretion. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to , finished and unfinished drawings , sketches, photographs , models , designs , and the Work up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties , then City shall pay Artist per the payment schedule in Section 3.2 as determined in City's sole discretion up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs , models, and designs , up to the effective date of termination. 11.4. Termination for Cause . a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate an y of the covenants, agreements , or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination " specifying the grounds for termination. Termination of this Agreement under this Article 11.4 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. b. If City terminates this Agreement pursuant to this Article 11.4 , then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to an y and all other rights and remedies available to City at law or in equity. If City exerci ses its right to complete the Work, then, notwithstanding anything to the contrary: (1) title to the Artwork Design , Work, and all other work product under this Agreement and any prior agreement for the Work, including, but not limited to , all documents, models , and drawings that constitute or are components of the Artwork Design and Work, shall pass to City and become the property of City, without restriction on future use , immediately upon the City 's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and all other work product under this Agreement and /or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property) and 8 (Artist's Rights) of this Agreement; (3) Artist automatically sells , assigns , and transfers to City , the entire right, title , and interest in and to the Artwork Design , Work, and all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copy right Act of 1976 , 17 U.S.C. Agre em ent for Com missio n of Pu bli c Art work with An itra Sl ay to n fo r Alli ance Park Execution Co py 16 of34 Section 101 et seq., and all the rights and privileges appertaining thereto , including, without limitation , the exclusive right to reproduce , prepare deri vative works based upon, distribute copies to the public, as well as display said Artwork Design and Work, the same to be held and employed by City for City 's own benefit and use and for the benefit and use of City 's successors, assigns , and legal representatives forever ; (4) Artist shall have no copyright or other property interest in the Artwork De s ign , Work, or any other work product under this Agreement and an y prior agreement for the Wo rk ; and (5) Artist, pursuant to this Article 11.4 , hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S . Code (as amended or as it may be amended in the future), Titled "Visual Artists Rights Act," and an y other right of the same nature granted by U.S. federal, state, or foreign laws , and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 11.4 shall affect the survival of the Articles outlined in Article 14.16 of this Agreement, which shal l remain in full force and effect following termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If either Artist or City has a claim , di spute , or other matter in question for breach of duty , obli gations , services rendered, or any warranty that arises under thi s Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution proces s. 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 business days of receipt of the notice, both parties shall make a good faith effort, whether 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. b. If the Parties fail to resolve the dispute within sixty calendar days of the date ofreceipt of the notice of the dispute, then the Parties sh all submit the matter to mediation 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 reque st that the mediation commence not less than fifteen or more than forty-five calendar days follo w ing the date ofrequest, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutuall y agreed mediator with in thirty calendar days following the date of the request for medi ation , then all the conditions precedent in this article sh a ll be deemed to have occurred. The Partie s shall share the mediator 's fee and any filing fees equall y . Venue for any mediation or lawsuit arising under this Agre ement fo r Co mmi ss ion of Publ ic Artwo rk with Ani tra Sl ay ton fo r Alli anc e Park Ex ecution Co py 17 of34 Agreement shall be in Tarrant County, Texas . No provision of this agreement shall wai ve any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation , then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 11.4) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age , disability , race, color, religion , se x, sexual orientation , national origin, familial status, tran sgender, 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, pay or other forms of compensation , and selection for training, including, but not limited to , apprenticeship. Artist agrees to post in conspicuous places , available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed by 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 14 MISCELLANEOUS 14 .1. Compliance. Artist shall comply with all federal , state and City statutes, ordinances, and regulations applicable to the performance of Artist services under this Agreement. 14.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto , and there are no other agreements or understandings , oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby . Agre ement for Comm iss ion of Publi c Art wo rk with Anitra Bl ay ton for Alli ance Park Ex ecuti on Copy 18 of34 14.3. Amendments. No alteration , change, modification , or amendment of the terms of this Agreement shat I be val id or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent 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. 14.5. Governing Law and Venue . If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas , Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 14.6. Successors and Assigns . Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of 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 assi gns. 14.7. No Third -Party Beneficiaries. The provisions and conditions of thi s Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights , contractual or otherwise, to any other person or entity. 14.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable , the validity , legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 14.9. 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 shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto . 14.10. FiscalFundingOut. 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 days following delivery by City to Artist of written notice Agreement for Commission of Public Artwork with Anitra Blayton for Alliance Park Exec uti on Copy 19 of34 of City's intention to terminate, or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14 .11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14 .12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 14.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 14.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (collectively "Records") at any time during the Term of this Agreement and for three years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three years thereafter, Artist shall make all Records available to City at 200 Texas Street, Fort Worth , Texas, or at another location in City acceptable to both parties following reasonable advance notice by City , and shall otherwise cooperate fully with City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. 14.15. Business Equity Goal. 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. 14 .16. Survival Provision. The provisions contained in Articles 5 (Warranties), 6 (Indemnity Provisions), 7 (Ownership and Intellectual Property Rights), 9 (Artist as Independent Contractor), 11.2 (Death or Incapacity of Artist), and 14.14 Right to Audit shall survive the termination or expiration of this Agreement. 14 .17 . 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. 14.18. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 14.19. Israel. Agreement for Commission of Public Artwork with Anitra Blayton for Alliance Park Execution Copy 20 of34 If Artist is a company with ten (10) or more full-time employees and thi s Agreement is for $100 ,000 or more , Artist acknowledges that in accordance with Chapter 2271 of the Texas Government Cod e, 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 compan y that it: (1) does not boycott Israel ; and (2 ) will not bo ycott 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 Chapter 2271 of the Texas Government Code is applicable under this Agreement, by signing this Agreement, Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 14.20 . Energy Companies. If Artist is a company with ten (10) or more full-time employees and this Agreement is for $100 ,000 or more , Artist acknowledges that in accordance with Chapter 2276 of the Texas Government Code , the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (I) 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 meanings ascribed to those terms by Section 809.001 of the Texas Government Code. To the extent that Chapter 2276 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. 14.21. Firearms and Ammunitions Industries. If Artist is a company with ten (10) or more full-time employees and this Agreement is for $100 ,000 or more , Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services 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 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 meanings ascribed to those terms by Chapter 2274 of the Texas Government Code. 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. Agreeme nt fo r Com m issio n o f Pu bl ic Artwork with Anitra Sl ayton for Alliance Park Exec uti o n Co py 21 of 34 ARTICLE 15 NOTICES All notices, requests, demands , and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be , if delivered personally or sent by registered or certified mail , return receipt requested , postage prepaid, as follows: 1. CITY OF FORT WORTH: Copies to: 2. ARTIST Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 200 Texas Street, Third Floor Fort Worth , Texas 76102 Leann Guzman, City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street, Third Floor Fort Worth , Texas 76102 Martha Peters, Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth , Texas 76107 Anitra Blayton 912 Lark Spur Lane Fort Worth , Texas 76112 [Remainder of page intentionally left blank.] Agree ment fo r Commi ss ion of Public Artwork with Anitra Sl ayton fo r Alli ance Park Exec ution Copy 22 of34 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORIB by:_~--<----'-'-~;;.;;__:_L __ -__ _ F emando Costa Assistant City Manager Date: / /3 /2oz4 ~, 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. C\ l ,...._---..,....><,.;><,_.,,..,__, Name: Michelle Richardson Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: Trey Qualls Assistant City Attorney ATTESTED BY: Contract Authorization: Form 1295: 2023-1092224 M&C: 23-1029 DATE: 12/12/2023 Agreement for Commission of Public Artwork with Anitra Blayton for Alliance Park Execution Copy OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 23 of34 . "· ..... " ~. ,( ~( .e ' . . "' . . "'4 .. , i-".t . . ... ~ .. ) ' , .. ?" ,.t' ~Qt~'" Exhibit A: Artwork Design Narrative Description In response to the Project Core Team's interest in artwork that acts as a landmark, artist Anitra Blayton has developed a Final Design which will act as a symbol of harmony and positivity for the newly opened Alliance Park . Inspired by the wetland and the patterns of organisms in the environment, including footprints of visitors which become one with the ecosystem, Blayton proposes a larger-than-life hummingbird appearing to drink water. The faceted, mirrored stainless steel "hu mmingbird" will have a series of five (S) wings on each side of its body to mimic the wings' motion . All wings will be sandblasted stainless steel, detailed with laser-cut shoe treads submitted by community members. The artwork will be placed near the entrance of the park in proximity to the newly constructed sidewalk , making it highly visible to a variety of passersby. Final Design Rendering of Sipping From the Wetland 24 ft. (h) x 20 ft. (w) 12 ft. (d) Mirrored Stainless Steel, Sandblasted Stainless Steel, and Painted Steel Laser-Cut Stainless Steel Wing Mockup with Sample Shoe Treads (10 total) Wing sizes range from 8.5 ft. (1) x 3.5 ft . (w) to 10 ft. (I) x 8 ft. (w). Agre ement for Co mm is s ion of Public Artwork with Ani tra Blayton for Alliance Park Execution Copy 24 of34 B A Dl1DE: 1121/JllJ _...,_ IIEV: 11 DONOIICIII! SIBI'IOIJ Detail of Faceted Mirrored Sta in less Steel Body 14 ft . {h) x 5 ft . (w) x 5 ft . (d) I 48 .00 DATE: 8/18/2023 DRAWN BY': Olayton REV: DO NOT SCALE SHEET 1 OF 1 Deta il of Conical Water Pi laster 111.96 - ~ 08.00 PIPE HOLE WATER RIPPLES HUMMINGBIRD 3111111111 IIISIGN & MITALWCJll: ® an3 US-217 lids c a-e .. h 76071 3 1THREE (117) 733 -Sm OES,GN & MElALWOAA J lTHDIIDlSIGN.CDM '"'"N OTE ·MAX PIPE RADIUS AT 4FT ·A LL PIPE AN O PLATE ARE 55 • THE SMALLEST DIAMETER OF PIPE 2r IS SMALLER THAN TH E BASE MUST GO OVER BASE TO KEEP SPACING A 31 THREE DESIGN & METALWORK 8333 US-287 Bldg C Rhome, Tx 76078 (817) 733-5733 31THRE EDESIGN .COM @ 31THREE DESIGN A HETAl'NORK 10 ft. (h) x 4 ft. in diameter at ba se, flaring outward to 8 ft. in diameter at top Steel and automotive pa int Agreement fo r Co mmi ssion of Publi c Artwork wi th Anitra Blayto n fo r All iance Park Execution Copy 25 of34 Exhibit B: Site A lliance Park , 38 00 Litsey Road , Fort Worth, Texas 76262 achum ~ DFW Adven ure Park 9 ..e:J ~ 1hwest High School ;, ' Amazon TTW3 / FTW4 , 9 @) Polo Ra lph La ur en Facto Store E11za~ethtown • • Ama zon DDF5 9 * .. Hawa ii an Falls Roanoke , LG Electronics 9 FedEx Ground 9 FedEx Sh rp Center Q ,,.. -~-~~-~--~--! - -- \ \ ( I \ I / \ \ \ Agreement for Commission of Public Artwork with Anitra S layton fo r All iance Park Exec uti on Copy .. ,._ n;: M O o:,;n.,c OJRO Ha'O E,g'" 6oC, e; l ""'""""""'""..,.,..1 N -19 _ • .,, .,,,. .... l .--------,'9 _;~ LO~ _-·--7 ~ A10'-f' =~ :r.m: ?~ -iTM ~ " W -S~HET l • CS 4\0 lJ. 00 ,---,-,=---, Vj ~•If: .,,.DJ'< C ,, ~-~--~ Vl ~~=(PL•: 11 t:j 1------~ ~ ~ &J~ 83' llll:ll>J;.ol [OUI"""" -~n.ECTIOCH. l i--, 1 18 l I:::; l Ji I W t I ~ -1 I~ I ..J .t.llc:l~TE ~ ~ Tr Wall Th et- Roanok (§ C Roanok, 26 of34 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Addres s : Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: ----------------------------- Project Name and Location Address: _____________________ _ FWPA Project Manager: _________________________ _ Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: _______ Width : ________ Depth: _____ _ Pedestal or Pad Material: ------------------------Pede st a I or Pad Dimensions : Height: ________ Width : ________ Depth: _____ _ Location & Description of Signature Markings ( or copyright): Agreeme nt fo r Commi ssio n of Pu bl ic Artwork with Anitra Sl ay ton for Alli a nce Park Execut ion Copy 27 of34 Edition Information if applicable: ______________________ _ Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) _________________________ _ Fabricator Address: ___________________________ _ Methods/Materials Used in Execution of Artwork Materials (list type , brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description : (list all fabricators and any architects , engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method : Agreement fo r Com mis sio n of Publi c Artwork wi th A nitra Sl ay ton fo r Alli ance Park Exec uti on Copy 28 of34 Casting Alloy , Wax Body, Glass or Fiber Type: Finishes & Coatings (paint color and type , glaze , patina, any and all coatings including fixative , UV , graffiti , etc. Please list vendors and contact information and provide all product information): Pedestals , Foundations & Footings , Mounting and Attachment Applications (List all materials used to install artwork on site . Include vendor information , parts numbers , warranties and agreements .) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to : lighting , media, landscaping, etc. Include all vendor information , parts numbers , warranties and agreements and any/all design schematics): Installation Installation Date : _________ _ Installation Method : (describe installation method , provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions .) Agreement fo r Co mm iss ion of Pu bli c Artwork with Ani tra Bl ayton fo r All iance Park Execution Copy 29 of34 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name:--------------------------------- Address: ______________________________ _ Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Agreement for Commission of Pub l ic Artwork with Anitra Blayton for Alliance Park Execution Copy 30 of34 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and /or property damages. Affiant: ----------------- SUBSCRIBED AND SWORN TO before me , the undersigned authority , on this the ___ Dayof __________ ,20_ Agre ement fo r Commi ss ion of Publi c Artwork w ith Anitra Bl ay ton fo r Alliance Pa rk Ex ecuti on Copy Notary Public , State of Texas Print Name Commission Expires 3 I of 34 Exhibit E: Sales Tax Exemption Texas Sales and Use Tax Exemption Certification Thki; oer ;;r, ~ di.= ,rill!' r, qt1.'re a mm,!mrto oo WJ.'rd. -i:t,,n,-,rtc,;t !$1i7-3fl~ All Vc-ndoos ________________ Git,•,~•, ZIP 11.Cdo _· ----------- til':e aanno'I he U2d fer n. -. --. . •. -.·.' ' ' Agreement fo r Commission of Public Artwork with Anitra Slayton fo r Alliance Park Execution Copy 32 of34 Exhibit F: 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 al so require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000 ,000 $2 ,000 ,000 E ach 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 Arti st 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 Bodil y 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 . *E xception: the additional insured requirement does not appl y to Workers' Compen sation or Automobile policies . Agree ment fo r Co mmi ss ion of Publi c Artwo rk wit h Anitra Sl ay ton for Alli ance Park Ex ecut io n Co py 33 of34 Artist is responsible for providing the City at least thirty days ' 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 . All insurers must have a minimum rating of A-VII in the current A . M. Best Key Rating Guide or hav e reasonably equivalent financial strength and solvency to the satisfaction of Ri s k 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 these 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 at least ninety days . City shall be entitled , upon request and without expense , to receive copies of policies and endorsements thereto , and to 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 party or the underwriter on any such policies. Agre ement fo r Commi ssio n of Pu bli c Artwork w ith Anitra Bl ay ton fo r Alliance Park Ex ec uti on Copy 34 of 34 City of Fort Worth, Texas Mayor and Council Communication DA TE: 12/12/23 M&C FILE NUMBER: M&C 23-1029 LOG NAME: 03ALLIANCE PARK PUBLIC ART PROJECT SUBJECT (CD 10) Authorize Execution of an Agreement with Anitra Slayton in an Amount Up to $179 ,000.00 for Fabrication , Delivery , Installation , and Contingencies for Artwork at Alliance Park , Located at 3800 Litsey Road , Fort Worth , Texas 76262 , and Find that the Use of the Funds for Public Art for this Project Complies with the Voted Purpose of the Bond Funds (2018 Bond Program) RE COMMENDATION: It is recommended that the City Council: 1 . Authorize the execution of an agreement with Anitra Slayton in an amount up to $179,000.00 for fabrication , delivery , installation , and contingencies for artwork at Alliance Park , located at 3800 Litsey Road, Fort Worth , Texas 76262 ; and 2 . Find that the use of the funds for public art for this project complies with the voted purpose of the bond funds . DISCUSSION: Local artist Anitra Blayton 's design symbolizes harmony and positivity and will be a landmark located at the entrance of Alliance Park . Inspired by the park's wetlands, Slayton will create a larger-than-life hummingbird drinking water. In order to mimic the quick rotation of hummingbird wings , the sculpture will have series of five (5) wings in various positions on each side of the bird . Each laser-cut wing will have detailed shoe tread patterns , reflecting the footprints of visitors which become one with the ecosystem . The artist will invite community members to submit pictures of their shoe treads via WhatsAPP and will also collect them at a meet and greet event in the park. The twenty-four-foot (24 ') tall sculpture begins with an exposed concrete foundation measuring four feet (4 ') in diameter and six inches (6'') above grade . From the base , a translucent blue painted con ical water shape reaches ten feet (1 O') in height, fla ring outward w ith circular water ripples eight feet (8 ') in diameter. A mirrored stainless steel faceted hummingbird stretches upward, its body approximately fourteen feet (14 ') high and five feet (5 ') at its widest point. The bird 's sandblasted stainless steel wings fan outward , making the overall sculpture twenty-four feet (24 ') at its widest point. The sculpture is in proximity to Litsey Road , the entryway and associated parking lot, and an existing pathway , making it highly visible to a variety of passersby . Fort Worth Art Commission (FWAC) Action: On September 25 , 2023 , the Fort Worth Art Commission approved the Final Design and recommended Anitra Slayton be placed under an Artwork Commission Agreement. The Park and Recreation Advisory Board endorsed the location of artwork on November 15 , 2023. Funding for the Alliance Park Public Art Project was approved as part of the Public Art Plan for the 2018 Bond Program, Proposition 2 , adopted by the Fort Worth City Council on November 6, 2018 as Mayor & Council Communciation (M&C) G-19401 . The project is included in the Fort Worth Public Art Fiscal Year 2024 Annual Work Plan , adopted by the Fort Worth City Council October 17 , 2023 as M&C 23-0844. The artist shall require their subcontractors to pull all permits required for this project , however, the City shall waive any fees for these permits as this project is funded by City Bond funds. Estimated annual maintenance for this project is anticipated to be a total of $2 ,000 .00 . PROJECT BUDGET IArts Council Project Management Allocation Preliminary Design !Contract ! Com_mission Contract and :1 !Contingency j AMOUNT $39 ,000.00 : $10 ,250 .00 -., .. ---------- $16 ,750 .00 ' CONTRACT I -----• -··--····-··. I csc #54598 I : i i - csc #57688 I csc #59477 ... $245,000.001 .. -·················~-----·····-· .. -· .. ...... I -. ·-··· ____ .. ................ --....... ·-·---.. l FUNDING SOURCES AMOUNT 2018 Bond Program , Proposition B $245 ,000.00 TOTAL $245,000.00 Funding is budgeted in the 2018 Bond Program Fund for the purpose of funding the FWPA Alliance Park project , as appropriated. BUSINESS DIVERSITY OFFICE -The City 's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project dollars expended on public art annually . The Business Equity Division waived the Business Equity Goal requirement because most artists are individuals and not businesses . The Arts Council of Fort Worth and Tarrant County , Inc., D/B/A Arts Fort Worth, has agreed that 25% of all artists commissioned will be a minority individual(s) or a minority business owner(s). Arts Fort Worth and the FWLab Department will report its utilization to the Business Equity Division on a semi-annual basis at the end of March and September. This project is located in COUNCIL DISTRICT 10. FISCAL INFORMATION/ CERTIFICATION: The Director of Finance certifies that funds are available in the current capital budget, as previously appropriated , in the 2018 Bond Program Fund for the FWP A Alliance Park project to support the approval of the above recommendations and execution of the commission contract. Prior to any expend iture being incurred , FWLab has the responsibility to val idate the availability of funds . Submitted for City Manager's Office by: Fernando Costa 6122 Originating Business Unit Head: Clay Pearson 6222 Additional Information Contact: Martha Peters 817-298-3025