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HomeMy WebLinkAboutContract 61889CSC No. 61889 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ALICIA EGGERT STUDIO INC FOR COMMISSION OF PUBLIC ART FOR MARINE CREEK PARKWAY This Agreement is entered into by and between the City of Fort Worth ("City"), a home -rule municipal corporation of the State of Texas, acting by and through Mark McDaniel, its duly authorized Deputy City Manager, and Alicia Eggert Studio Inc ("Artist"), a corporation with a mailing address located at 917 Crescent Street, Denton, Texas 76201. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., d/b/a Arts Fort Worth ("Contract Manager"), to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art Project Manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City completed improvements along Old Decatur Road, stretching from Longhorn Road northbound to Bailey -Boswell Road, in Fort Worth, Texas 76179, at the border of Council Districts 2 and 7. Upon completion the roadway was annexed to the City of Saginaw. The City Manager's Office has approved moving the public art project to two new roundabouts along Marine Creek Parkway at the intersections of Longhorn Road and Cromwell -Marine Creek Road due to their close proximity to the original location; WHEREAS, the Old Decatur Road Public Art Project was included in the Public Art Plan for the 2008 Bond Program, approved by City Council on October 26, 2010, as M&C G-17094. The remaining 2008 Bond funds for this project were exchanged for General Capital Project funds as authorized by City Council on June 27, 2023, as M&C 23-0521. The renamed Marine Creek Parkway Public Art Project was included in the Fort Worth Public Art Fiscal Year 2024 Annual Work Plan, adopted by the Fort Worth City Council on October 17, 2023 (M&C 23-0844); WHEREAS, on July 14, 2022, the City entered into a contract with Artist to develop a Final Design of public art for Site B (City Secretary Contract No. 57856); WHEREAS, on April 15, 2024, the Fort Worth Art Commission ("FWAC") approved Artist's Final Design for Site B (see Article 1.15.b.) and recommended Artist be placed under an individual artwork commission contract for the Project; WHEREAS, Artist shall be responsible for fabricating, delivering, and installing Work for Site B in close coordination with Curatorial Consultant and Other Project Artist; and Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of 36 W REAS, City and Artist wish to set out the terms and conditions under which said Work shall be fabricated, delivered, and installed at Site B, maintaining the integrity of Artist's ideas and statements as represented by the Work; NOW, THEREFORE, City and Artist, for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Artist. 1.2. Artist — Means and includes Alicia Eggert Studio, Inc. 1.3. Artwork Design — Means the final, City -approved design of the Work for Site B created in connection with Fort Worth City Secretary Contract No. 57856, 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. Curatorial Consultant — Means and includes Iris Bechtol. 1.6. City — Means and includes the City of Fort Worth, Texas. 1.7. Effective Date — Means and includes the date this Agreement is executed by the City. 1.8. Final Acceptance — Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.9. Other Project Artist — Means and includes Leticia R. Bajuyo. 1.10. Parties Means and includes City and Artist. 1.11. 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. 1.12. Project Core Team — Means and includes the group of community members, generally 57 individuals, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update. 1.13. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Project Core Team, the Artist Selection Panel, the FWAC's appointed representative, City staff, and others as may be appropriate. 1.14. Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 2 of 36 1.15. Site — Means and includes the roundabouts located along Marine Creek Parkway at the intersections of Longhorn Road and Cromwell -Marine Creek Road (76179), attached hereto as Exhibit `B." 1.15.a. Site A — Means and includes the roundabout at the intersection of Marine Creek Parkway and Cromwell -Marine Creek Road. 1.15.b. Site B — Means and includes the roundabout at the intersection of Marine Creek Parkway and Longhorn Road. 1.16. 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 specifically includes the Artwork Design for Site B. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Final Design for Site B was reviewed and approved by the FWAC on April 15, 2024, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall coordinate on fabrication, delivery, and installation with the Curatorial Consultant and the Other Project Artist. b. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at Site B. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. C. 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 Site B where the Work shall be installed shall be mutually agreed upon by City and Artist. d. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with Curatorial Consultant, Other Project Artist, and appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. e. Artist shall coordinate with Curatorial Consultant, as well as City staff, its contractors, and others, as necessary, to ensure proper installation and integration of the Work into Site B, as applicable, including, but not limited to, artwork location and installation equipment brought onto Site B. f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. g. Artist shall install the Work at Site B on dates and times mutually agreed upon by Artist and City. h. Artist shall allow video recording and photography of their participation during activities related to this project such as presentations and meetings. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 3 of 36 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." Any 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 available. 2.4. Execution of Work. a. 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. A copy of the Schedule shall also be provided to the Curatorial Consultant. b. Artist shall submit fabrication reports to Contract Manager and shall also be provided to the Curatorial Consultant. C. 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. d. Artist shall complete the fabrication of the Work in accordance with the approved Artwork Design. However, if necessary, after discussions with Curatorial Consultant, 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 approved 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 FWAC for review and approval at an FWAC scheduled meeting. If any disputes arise thereafter, the Parties shall Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 4 of 36 first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 2.5. Delivery and Installation. a. Artist shall notify City, through its Contract Manager and Curatorial Consultant, in writing when fabrication of the Work is completed and the Work 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 and Curatorial Consultant. 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 associated with the materials, fabrication, and installation of the Work, including, but not limited to, equipment rentals, transportation, and labor. 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, including but not limited to 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 up to 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 a 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. Post -installation. a. Within thirty days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least fifteen high -resolution digital images (.tiff format) and fifteen low -resolution digital images Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 5 of 36 (.jpeg format) showing each element of the Work, including detail shots, with at least ten of these images showing the Work installed to document the Work after the Work is installed. Images should include daytime and nighttime views. b. Artist shall make her best effort to be available at such time(s) as may be set by the City to attend any dedication or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. 2.7. Final Acceptance. a. 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, unless City, upon receipt of such notice and prior to the expiration of the 35-day period, gives Artist written 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. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount not to exceed TWO HUNDRED NINTY-FIVE THOUSAND. ONE HUNDRED ONE DOLLARS AND ZERO CENTS ($295.101.00), 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, fabrication, transportation, installation, remaining Artist's fee of $14,260.00, insurance, incidental costs, a City -held contingency of $11,938.00, and any other costs Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 6 of 36 associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2. Pavment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. ONE HUNDRED EIGHTEEN THOUSAND, TWO HUNDRED FIFTY DOLLARS AND ZERO CENTS ($118,250.00) upon execution of this Agreement to enable Artist to complete shop drawings and purchase materials for fabrication. b. NINE THOUSAND DOLLARS AND ZERO CENTS ($9,000.00) upon Contract Manager's verification that steel rail support structure has been formed and bending is complete. C. FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00) upon Contract Manager's verification of 50% fabrication. d. FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00) upon Contract Manager's verification that the Work is 100% fabricated and ready to install. e. TWENTY-ONE THOUSAND, SIX HUNDRED FIFTY-THREE DOLLARS AND ZERO CENTS ($21,653.00) upon Contract Manager's verification that foundation work is complete. £ TWENTY THOUSAND DOLLARS AND ZERO CENTS ($20,000.00) upon Contract Manager's verification that the Work is installed. g. FOURTEEN THOUSAND, TWO HUNDRED SIXTY DOLLARS AND ZERO CENTS ($14.260.00) 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. h. A City -held contingency of up to ELEVEN THOUSAND, NINE HUNDRED THIRTY-EIGHT DOLLARS AND ZERO CENTS ($11,938.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes such as materials, fabrication, or installation costs, and/or the addition of professional photography if sufficient contingency funds are available and approved by Contract Manager, in advance. 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. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 7 of 36 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, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, costs of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND 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. 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 schedule 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 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 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 State; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Parry 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. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copvriaht. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 8 of 36 a. Artist represents and warrants that: 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 other rights of any person or entity; iii. Artwork Design and Work (or duplicate thereof) have not been offered or accepted for sale elsewhere; iv. Artist has not offered, 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; vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vii. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. 5.2. Warranties of Quality and Condition. a. Artist represents and warrants that all work will be performed in accordance with professional, "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for at least one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. C. If, within one year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty days 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 reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that risk, it shall not be deemed a breach for purposes of this Article 5.2. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 9 of 36 e. If, after one year from Final Acceptance and during Artist's lifetime, City observes any breach of warranty described in this 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. 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 Disi3lay. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display; 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; and 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, abrading, and/or peeling. g. 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. h. The foregoing warranties are conditional and shall be voided by the failure of City to maintain the Work in accordance with the applicable conservation standards. If City fails to maintain the Work in good 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 attribution to Artist be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. ARTICLE 6 INSURANCE AND INDEMNITY 6.1. General. 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. Except as provided in Section 2.8, the risk of damage to or loss of the Work shall, during fabrication Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 10 of 36 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. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT 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 SUBARTISTS, CONTRACTORS, AND ALL 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 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 Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 11 of 36 CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing, and all such licensing shall be the exclusive obligation of Artist. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models, and drawings 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 retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty -free, and irrevocable license to graphically depict and 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 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 otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell, or transfer, in whole or in part, the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 12 of 36 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 r6sum6 use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights a copyright in the Work in Artist's name. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist or anyone else. ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.oral and facilitate the design, purchase, and installation of a permanent plaque at the site. 8.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 2.5 and Exhibit "C." 8.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. C. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City as appropriate and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site. a. City agrees that it will not willfully destroy, damage, or modify the Work, except as provided in Article 8.4(b) and 8.4(c) below. b. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is integrated into a building, structure, or realty, City shall have the right to remove the Work Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 13 of 36 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 his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any 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 reasonable efforts to locate Artist when matters arise relating to Artist's rights. 8.7. Additional RiLyhts and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 9 ARTIST AS 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 partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and the doctrine of respondeat superior has no application as between City and Artist. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 14 of 36 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. ARTICLE 11 TERMINATION 11.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City pursuant to this Article 11.1, 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. In 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 Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 15 of 36 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) 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 any 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 any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) title to the Artwork Design, Work, and 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; Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 16 of 36 (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 Copyright Act of 1976, 17 U.S.C. Section 101 et seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public, as well as display said Artwork Design and Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, or any other work product under this Agreement and any prior agreement for the Work; 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 any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and 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 shall remain in full force and effect following termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that arises under this Agreement, the Parties shall first 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 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 of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 17 of 36 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 or more than forty-five calendar days following the date of request, 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 mutually agreed mediator within thirty 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. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 11.4) ARTICLE 13 EOUAL 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, 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 Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 18 of 36 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. 14.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 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 parry hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 14.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and their respective successors and assigns, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.8. Severabilitv. 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. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 19 of 36 The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of contract 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. 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 earlier of: (i) thirty days following delivery by City to Artist of written notice of City's intention to terminate, or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14.11. 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. Survivinl? Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 14.14. Risht to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the performance of this Agreement (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 100 Fort Worth Trail, 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 Equitv 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. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 20 of 36 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. If Artist is a company with ten or more full-time employees and this Agreement is for $100,000 or more, Artist acknowledges that in accordance with Chapter 2271 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 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. Ener2v Companies. If Artist is a company with ten 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: (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 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 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 Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 21 of 36 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. ARTICLE 15 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 100 Fort Worth Trail (formerly Energy Way) Fort Worth, Texas 76102 Copies to: Leann Guzman, City Attorney Office of the City Attorney City of Fort Worth 100 Fort Worth Trail (formerly Energy Way) Fort Worth, Texas 76102 Martha Peters, Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Alicia Eggert Alicia Eggert Studio, Inc. 917 Crescent Street Denton, Texas 76201 Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 22 of 36 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH Mark McDaniel Deputy City Manager Date:Aug 5, 2024 ARTIST Alicia ert Presid Al' is Eggert Studio, Inc. Date: 7/19/2024 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: Michelle Richardson Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: irev aualls Trev Ouah (Aug 5. 2024 09*43 CDT) Trey Qualls Assistant City Attorney 4 � inn ep Fogt�9pd ATTESTED BY: o�c Pve o=C Q/� ppp * 000 08* o V � PdIl� nE6654pp� Jannette S. Goodall City Secretary Contract Authorization: Form 1295:2024-1149935 M&C: 24-0531 DATE: 6/25/2024 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 23 of 36 Exhibit A: Artwork Design Narrative Description The word "now" can have very different meanings when it is used in different contexts. It can refer to this very second (which has already passed), the time it will take to give this presentation (which is halfway over), this year, or this century. In our daily lives, we tend to think in short terms and see the present moment as very narrow and small. But our capacity to create a better future seems like it might depend on our collective ability to conceive of "now" in much longer terms —one that is longer or wider than our narrow fields of vision can contain. How would our behaviors change if we imagined a "now" that extends 10,000 years into the past, or 10,000 years into the future? A Very Long Now encourages both living in the present and thinking in longer terms. There are 60 NOWs in total, which alludes to those small increments of time counted by clocks —the number of seconds in a minute and the number of minutes in an hour. Each NOW, like a brief moment in time, is so thin that it is almost non-existent when viewed from the side. Yet they all work together to create an upward -spiraling form that is greater than the sum of its parts. That form is both linear and cyclical in nature, just like the different ways we perceive and experience Time. Some things in life are cyclical and seemingly infinite, like the path a clock's hands travel around its face, the revolution of the earth around the sun, or the motion of a car in the roundabout. At the same time, other things are linear and finite in nature, like the hours in a day or the length of a human life. Although the path of these NOWs comes to a finite end, hovering in the air above the road, they also suggest the potential of extending and spiraling endlessly outward and upward, into a future that does not yet exist. Artwork Design Images N Final Design Rendering (Eastbound View) 28 ft., 10 in. (h) x 35 ft., 9 in. (w) x 25 ft., 2 in. (d) Painted aluminum "NOWs" with steel support structure Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 24 of 36 Final Design Rendering (Northbound View) 28 ft., 10 in. (h) x 35 ft., 9 in. (w) x 25 ft., 2 in. (d) Painted aluminum "NOWs" with steel support structure NOTE: RED LINES IDENTIFY WHERE TUBING RAIL SPLITS INTO DIFFERENT SECTIONS ONE END OF TUBING RAIL SECTION WILL HAVE THE COLLAR TO INSERT INTO ADJACENT SEGMENT OTHER END WILL BE CONNECTED AND LOCKED INTO PLACE BY DRILLING/TAPPING CITY 4 - 1 /2"-13 0 EQ SPACING THROUGH BOTH TUBING RAIL AND COLLAR AND INSERTING SEGMEM HEX BOLTS SEGMR S SEGMENT RADIUS HEIGHT LENGTH I A 0/360" V 25.3" I W' I I B 12(Y 51" 115.8" I I C 114" 86" 141.2" I I D 144" W: 86.6' I 1 E 150" 40" 76Z I I F 240" V 3W 86.6' 1 1 G -196" 14" 115.8" 1 Final Design of Support Structure Bent steel rail, segmented into 5 parts SECTION 1 b A VERY LONG NOW Kuhn Design, LLC STRUCTURAL DESIGN ALIORNC EGGERT 19 LONGHORN -MARINE CREEK RD -V E^�5 ROUNDABOUT Services OT' of FORT WORTH p0lgi5CA1F MGIv � I I 3 G D.]L—'TX mK:) Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 25 of 36 1 /4" ASTM A36 STEEL ROLLED TO FIT INTERMEDIATE TYP ALL CONNECTIONS CONNECTION SLEEVE TO RAIL 5/16"V 4.00 IL` INTERMEDIATE -';, PERMANENT CONNECTION 01.00 rA CONNECTON THRIIAu I} - 5116 - -- PERMANENT . ONLY II CONNECTION WAS'TYP 8.00 l I INTERMEDIATE ! ___1!� DRavrAP CONNECTION On -IITA3 HOLES 3/47-10 HEX BOLT 1 EO SPACING TMP � GTH I INTERMEDIATE SIDE FOR 3L.00 ztt-.00 CONNECTION ATE ONE SIDE ONLY CONNECTION _ D TODxI/4'WALL ASTM A500 GR B TYP X4 D8 INTERMEDIATE{ SCALE 1 171.00 CONNECTION m 7.631D INTERMEDIATE 92-50 CONNECTION Ak\ AL• Ah� �Ll 18.00 NOTES 1. PERMANENT RALCONEC110NS: USE WCOUAR AND PULL SFAMwHD. CLEAN WELDS AND I A VERY LONG NOW jnuvr�m J A[ 0]/]Y4 Kuhn Design, LLO SAND SMOOTH. EXP:3/3112025 ••JJ STRUCTURAL DESIGN 2 INTERMEDIATE RAICONECTIONS: PLUG WELD COLLAR N PLACE ON ONE END. DRLL AND F#20463 ADCIA EGGEFTT Dr sn s \ Dmfbng TAP THROUGH III&NG AND COLLAR AFTER INSTALLATION WITH O7T 4-IIZ'-13 SCREW: SPACING 7k� N == m LONGFIORN DABOUTNE EEK RD En9rec^9 Services J , �ws�n..cearr.li Y of FO WO CITY of FORT WORhI 3. SEE PG 11 FOR MORE INFORMATION ON IMFRMEDIATE CONNECTION POINTS awn �T»Nmscwtowc� vv, w � srffTad N� e � Dalbs. Final Design of Support Structure Bent steel rail, ranging from 1 ft., 6 in. to 25 ft. in height 91.10 28.75 •V-V • TYP 00.375 TYP Xl2 1 /4' 6061-T6 ALUMINUM PANELS PANE_ SUPPORT PLATE TYP X2/ASSY 1.375 0.875 0.25 0.25 DETAIL E — SCALE 1 : 2 1/2'-13 = 2" LENGTH 188 SS TYP X3 E - 1/5-20 3/47 LENGTH BUTTON HEAD TYP BOTH SIDES J 19M 1-1/4'LENGTH J' - 1/1 6'PLASTIC SPACER BETWEEM STEEL & ALUM. _ COUPLING NUT 1.89 7.61 00•63 0.7� TYP BOTH SIDES TYP X3 0.06 0.76 15.62 +0.13 R4.31 0.00 60e PANEL SUPPORT PLATE SCALE - 1:6 NOTES: t_ PANEL SHAPE CHANGES GRADUALLY THROUGH SCULPTURE PAN THERE WILL BE30 I I Irxu.,.+n N I A VERY LONG NOW Kuhn Design, LLO UNIQUE VERSIONS OF THE PANEL ASSEMBLY. EXP:31312025 low® STRLPMPAL DESIGN 2 FOR PANEL SUPPORT PLATE- A IS RECOMMENDED TO GAUGE THE 'RA U TUBING PRIOR F820463 Iw�w I �^ & ALICIA EGGEFTT Drafb^9 TOMANUFACIURNGOFTHEPLATB.VERIFY&SELECT APPROPRIATE DIAMETF£ mmrA�sror • OVALSHAPED CUTOUT MAY BE PREFERRED FOR HIGHSLOPED SECTIONS - Sl - �••� I ROLADAEIOl1T Services LONIGFI RCX41IPANE CREEK RD EngneNrg:K) 3. SEE PAGE 8 FOR ALL PANEL SHAPE VARIATIONS.... . •.• : CITY d FORT WOFl7H �:2!E= maim .oA.aoo�... ITX)NgTTG1E p•Gl vew ec..e T. o�affTTgF IT�ej Dallis, Tx Final Design of Support Structure Bent steel rail, ranging from 1 ft., 6 in. to 25 ft. in height Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 26 of 36 Final Design Rendering (Aerial View) 40' diameter roundabout groundscaped with crushed limestone and return of existing boulders Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 27 of 36 Exhibit B: Site Roundabouts along Marine Creek Parkway at Cromwell -Marine Creek Road and Longhorn Road RaceTrac 0 J ,P LAKE CREST EMcLer", s�c'n Center Blvd ESTATES Exxon Saginaw LV McLe ray NO MARINE Blue Mound CREEK HILLS Ensure Dental Care Cromwell-Marme Greek Read Papa ® ' Bake Take'NIU$wife Pizza Cantrell5ansam Rd i Tarrant Couatj�Gjllege GREENFIELD-Nor[hwestrC$npus r ACRES 'a Fort Worth Meacham NS Intl Airport Meacham BWd r5 - A 116GE {■� CEMEX Fort Worth Overall Site for Project (North Star: Site A; South Star: Site B) Site B: Marine Creek Parkway Roundabout at Longhorn Road FOSSI_?ARK l HillE Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 28 of 36 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: V.111411Iffill:11 Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location & Description of Signature Markings (or copyright): Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 29 of 36 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 for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 30 of 36 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 for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 31 of 36 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 Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 32 of 36 AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Exhibit D: Affidavit 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 Day of , 20 Notary Public, State of Texas Print Name Commission Expires Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 33 of 36 Exhibit E: Sales Tax Exemption WaWag, snry l: 4E-:,m Texas Sales and U sALL Tax Exemption Certification 7'hil; deriWade d&e,; aX r+eirar a rwaabEr!u be vYld tiiri d pup*r 4n a &prey 0thr of Fort worth, Texm 140 Fort WDM Tr4rll al I-M4N }fl :ke Sra Er -&ar Fort'r♦ITorth, T17Kar. FEri01 I, the puntdaer named aNwe, cIafn an ammptlar, lun peym>et d se Ls w d Ilse taares -;nrthe FLr&mse ce titabt Nw,& drmAbed bekrm won tic attad-pt d order -or kio tr}tlrwn: k4 AD lfluld W& fim*K ■ddrzki Or p. AWOL ZIP Ctdr DwuvSsn :0hinal7erv_-tiImsw! urciiTv WM diml aLiRa rtvu All ttan-rr- PLrahwAr aaknoK+ladQe-& that thlc aar[Maabe unnot to ucad har 1h4 purohaac. kac4, or rantal of a molar wahlala. Nidirari L:Wru Qn rmuWAwn f2r Gir hdbwkig iNara, Y u niol PWY, G*W*Ur nt Flliftfbr I u rrdi h rasa ear J 1 t�i rr err 14sr � bl it r. ir5 d I� I irrtrr �' uri Irmir rF�sr� rYi X b*co eed &a br hill ur4 % to ffo hr rr a, e. prUvhOra QI d►i rim C&M i.rslaI M MAP&MIhr low. r rk r•Ylavdobitertr 'hAmftwmVAr* m ■.wnxom -wdm carra ti■ ra%iip Rr obABl**wn■ nwwrKnare oihr&marm# MWbfU**dca 1m0 &OWdsrr,Aitmidn dtixcWhilLzft WKJc0mrwz*tprnA* chiQ rvmAnk dl4r --AlinitAft �hr�,r &Wn 0 r-6o C "Ak6inii[rlrb r ia4o�y dMW awsYU it.Ww �s rarar � r� rw.ryar u.rarumcrn l�hLf FlnandalrtRcts 113�13�@� NOTE. nib ri R kirti br hhde W ll k" 1W W& 01�. M*k k bl W brl o t ■ u r br r. h &ia Pd f CER nnCA M DOF8 J(3ff ASfJUW d IMiIAKUM 7-0 IRE VLLM. Salarrrd Lim TmLEmaT „Muripsir a4'TiQtJdnWr!4uh do ndrrdti T I i a Lwilnmhm Mkula to hAhhdd b 6w wwprm ❑o A-W irhd 11■ ca,F-hW -wrrul• In I I m {arr-lnir :0 F1 Arrtuili Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 34 of 36 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 also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property "in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired, and non - owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/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 for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 35 of 36 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 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 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 law, court decision, or the claims history of the industry or 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, including where policy provisions are established by law or regulations binding upon either party or the underwriter on any such policies. Agreement for Commission of Public Artwork with Alicia Eggert Studio Inc for Marine Creek Parkway 36 of 36 FORT WORTH CSC No. 61889 Routing and Transmittal Slip FWLAB - FWPA Department DOCUMENT TITLE: MARINE CREEK PARKWAY FINAL DESIGN CONTRACT M&C n/a CPN DATE: TO: 1. Trey Qualls 2. Mark McDaniel 3. Jannette S. Goodall rd IJ E. CSO # DOC# INITIALS DATE OUT Ta 4ug 5, 2024 rrorio dug 5, 2024 ,J 6 Aug 5, 2024 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: ❑ Yes X No RUSH: ❑ Yes X No SAME DAY: ❑ Yes X No NEXT DAY: X Yes ❑ No ROUTING TO CSO: X Yes ❑ No Action Required: ❑ As Requested ❑ For Your Information X Signature/Routing and or Recording ❑ Comment ❑ File ❑ Attach Signature, Initial and Notary Tabs Return to: Please call Michelle Richardson at 817-298-3040 (mrichardson@artsfortworth.org) for pick up when completed. Thank you.