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HomeMy WebLinkAboutContract 62017CSC No. 62017 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND SUSAN NARDULI FOR FINAL DESIGN OF PUBLIC ART FOR FAR NORTHWEST LIBRARY 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 Jesica McEachern, its duly authorized Assistant City Manager; and Susan Narduli ("Artist"), an individual, located at 1944 Cotner Avenue, Los Angeles, CA, 90025. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., D/B/A Arts Fort Worth (the "Contract Manager") to manage this Agreement on the City's 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 Artist 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, funding for this project was included in the Public Art Plan for the 2022 Bond Program, Proposition C, adopted by the Fort Worth City Council on October 17, 2023 (M&C 23-0844), and the project is 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 January 24, 2024, Artist was placed under a Preliminary Design Agreement (City Secretary Contract No. 60701); WHEREAS, on August 19, 2024, the Fort Worth Art Commission ("FWAC") approved the Artist's Preliminary Design and recommended that Artist develop a Final Design based upon the Preliminary Design; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's 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: I.I. Agreement — Means and includes this Agreement between the City and Artist for Final Design of public artwork for the Site. 1.2. Artist — Means and includes Susan Narduli. 1.3. Artwork Design — Means and includes the Preliminary Design and Final Design of the Work, OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX as defined below: 1.3.a. Preliminary Design — Means all developed preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.3.b. Final Design — Means the Artist's final proposed design and exact locations for the Work for the Site, which is based upon the approved Preliminary Design and includes, but is not limited to, all final structural engineering drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for fabrication and installation of the Work. 1.4. City — Means and includes the City of Fort Worth, Texas. 1.5. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., DB/A Arts Fort Worth, and/or its officers, directors, or employees. 1.6. Effective Date — Means and includes the date this Agreement is executed by the City. 1.7. Final Design Deliverables — Means and includes those items set forth in Article 3.1 of this Agreement that are required for City's review and approval. 1.8. Parties — Means and includes City and Artist. 1.9. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. Project Core Team — Means and includes the group of community members, generally 5-7 people invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update. 1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Far Northwest Library Project Core Team, the Artist Selection Panel, the FWAC's appointed representative, City staff, and others as may be appropriate. 1.12. Site — Means the Far Northwest Library, to be constructed at 1297 Avondale Haslet Road, Haslet, 76052 (Council District 10), which is depicted in the attached Exhibit "A." 1.13. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Scone of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing the Final Design of the Work and for providing the Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all 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 input from the Project Core Team and approval by City as set forth in this Agreement. c. Artist will develop a community engagement component, in cooperation with Contract Manager and the Fort Worth Public Library, with the purpose of requesting and collecting text, phrases, and/or imagery to consider incorporating into the Artwork Design. d. The locations at the Site on which the Work shall be installed shall be mutually agreed upon by City and Artist prior to installation. e. 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. f. Artist shall meet and coordinate with City staff and others, as necessary, to integrate the Work into the Site in terms of structural support, installation method requirements, or other infrastructure needs to support the Work. g. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. h. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be shared with City boards or commissions, as appropriate. i. Artist shall allow video recording and photography of their participation during activities related to this project, such as presentations and meetings. 2.2. In order to maintain the integrity of the City of Fort Worth's public art process, for the duration of the Agreement, if Artist intends to seek their own publicity for the Work, including publication of the artwork design on Artist's websites or social media, such efforts will occur after Final Design has been approved by the FWAC. Any potential publicity being sought for the Work, including press and social media, 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" 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. ARTICLE 3 FINAL DESIGN OF THE WORK 3.1. Final Design Deliverables. a. Within three months of the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables as set forth in this Article 3.1 to City for approval. Final Design Deliverables for the Work shall consist of the following: i. Detailed, design illustrations of the Work for the Site in a high -resolution digital format, such as JPEG or TIF files, showing the proposed individual artwork designs from multiple vantage points with at least one illustration showing the overall Work's size and placement in relation to the Site. ii. A final written narrative of the Work describing the following: (1) the Final Design concept and timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any, for the Work; and (3) maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance. iii. A detailed final budget on the budget form attached hereto as "Exhibit C" for final design and implementation of the Work in an amount not to exceed $182,416.00, reflecting total costs and inclusive of. a remaining Artist's Fee of $9,890.74; a City -held contingency of $21,332.40; and all engineering, consulting, travel, materials, labor, fabrication, transportation, construction, insurance, installation, and all associated costs for the Work under this Agreement. iv. Along with the detailed final budget, Artist shall submit to Contract Manager supporting documentation for costs for all items on the budget form, excepting the City -held contingency. V. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material to permit City to carry out structural design review. Professional Liability Insurance is required in all circumstances for on -site artwork requiring engineering and/or architectural services. City will conduct a review of structural design and other related graphic material prior to installation of the Work. Upon City's request, drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with at least thirty calendar days' notice of cancellation of any policy required hereunder. The City's insurance requirements are attached hereto as Exhibit "E." vi. Artist shall provide an Artist's statement, of no more than one page in length, which may include but is not limited to the following topics: the overall philosophical approach of the work, how the artwork relates to or engages viewers in the community, what influenced the Artwork Design, how techniques or materials relate to the content of the work, and how the work relates to the Artist's studio practice. Artist shall provide the Final Design presentation materials (with the exception of the budget form, which shall be submitted separately) in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. All documents, models, and/or drawings will be retained for archival and exhibition purposes. b. Deliverables shall be submitted to the Contract Manager at least three weeks prior to the scheduled Final Design presentation for staff review. 3.2. Final Design Review. a. Upon completion and submission of the Final Design Deliverables and acceptance by Contract Manager, Artist shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. The Final Design shall subsequently be shared with City boards or commissions, as appropriate. b. City shall notify Artist of its approval or disapproval of the Final Design, either in whole or in part, within thirty business days of Artist's presentation to the FWAC. C. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artist in writing of each revision to be made to the Final Design. City may require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of any governmental agency having jurisdiction over the Site. d. Artist shall have no more than thirty calendar days from the date City informed Artist of the revision(s) to present the revised Final Design in conformance with City's requirements. e. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed and services rendered per the payment schedule in Article 4.2 up through the date of termination. f. Upon City's approval of the Final Design, any revisions made to a City -approved Final Design shall become part of the Final Design. Artist shall incorporate any City -approved revisions into the Final Design in conformance with City's requirements. g. If Artist's Final Design is approved by City, then Artist's Final Design shall be incorporated into this Agreement as an addendum and shall become the basis for proceeding to the Commission Phase of this Agreement. h. Upon City's approval of the Final Design, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings for the work performed under this Agreement will be retained for archival and exhibition purposes. Artist's Final Design and all other work product related to this Agreement shall become the property of City, without restriction on future use (see Article 7). ARTICLE 4 COMPENSATION AND PAYMENT SCHEDULE 4.1. Compensation. Total compensation to Artist under the Agreement shall be in the amount not to exceed TWENTY-ONE THOUSAND FOUR HUNDERED FIFTY-FOUR DOLLARS AND ZERO CENTS ($21,454.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, engineering and consulting fees, an Artist's fee of $9,454.00, insurance, services performed, and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 4.2. 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. TWO THOUSAND EIGHT HUNDRED DOLLARS AND ZERO CENTS ($2,800.00) upon execution of this Agreement. b. ONE THOUSAND NINE HUNDRED DOLLARS AND ZERO CENTS ($1,900.00) within thirty days after Artist submits the Final Design Deliverables, as required in Article 3.1. of this Agreement. C. ONE THOUSAND FIFTY-FOUR DOLLARS AND ZERO CENTS ($1,054.00) within thirty days after Artist makes a presentation of the Final Design to the FWAC and Project Core Team. d. THREE THOUSAND SEVEN HUNDRED DOLLARS AND ZERO CENTS ($3,700.00) within thirty days after Final Design is approved by the FWAC. e. City will provide an allowance of up to TWELVE THOUSAND DOLLARS AND ZERO CENTS ($12,000.00) for engineering and consulting. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached. 4.3. Sales Taxes. City is a tax-exempt organization, and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption" in substantially the same form as that attached hereto as "Exhibit F" for use by Artist in the fulfillment of this Agreement. 4.4. Artist Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges on submissions to City and/or Contract Manager, insurance, costs of all travel, and costs for Artist agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement and any contingencies. ARTICLE 5 TERM AND TERMINATION 5_1 Term. This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to provisions in this Agreement, shall extend until installation and final payment to Artist by City. 5.2 Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. In the event this Agreement is canceled by the City pursuant to this Article 5.2, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 5.3 Death or Incapacity of Artist. a. In the event of Artist's death or if Artist becomes 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 5.3, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results, and proper credit and acknowledgment shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. 5.4 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 rendered up to the effective date of termination in accordance with the payment schedule in Article 4 as determined in City's sole discretion. Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to the possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, and the Work up to the effective date of termination. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provision in Article 4 or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination, as determined in City's sole discretion. If City chooses to pay Artist, then all work 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 Article 4 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. 5.5 Termination for Cause. a. If a 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 6 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 5.5 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. b. If City terminates this Agreement pursuant to this Article 5.5, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) Title to the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, all documents, and/or drawings that constitute or are components of the Artwork Design and/or 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/or all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property Rights) 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/or all other work product under this Agreement or any prior agreement for the Work that the Artist may have under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public, as well as display said Artwork Design and/or Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or any other work product under this Agreement and/or any prior agreement for the Work; and (5) Artist, pursuant to this Article 5.5, hereby waives 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 Artist Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and/or all other work product under this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 5.5 shall affect the survival of Articles 8 (Warranties), 10 (Indemnification), 9 (Artist as Independent Contractors), and 12.13 (Right to Audit) of this Agreement, which shall remain in full force and effect after termination of this Agreement. ARTICLE 6 DISPUTE RESOLUTION If Artist or City have 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 parties 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, all 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. If the notified party fails to resolve the dispute within sixty calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of all parties. Requests 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 Artist are unable to agree to a date for the mediation or to the identity of a mutually agreed upon 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 a party shall have the right to exercise any and all remedies available under law regarding the dispute. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models, and/or drawings that constitute or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment for the Work or pursuant to the applicable termination provision of this Agreement. These documents, models, and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 7.2. ConvriRht Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty -free, and irrevocable license to graphically depict or publicly display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or the Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agree and understand 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 names." d. Unless notified otherwise by City, Artist shall use best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist names. f. City is not responsible for any third -party infringement of Artist copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 8 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrant that: a. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts; b. Artwork Design and/or Work is and will be unique and original and does not infringe upon any copyright or the rights of any person; C. Artist has not offered, sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artwork Design and/or Work (or duplicate thereof) have not been offered or accepted for sale elsewhere; e. Artist have the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. ARTICLE 9 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, fiduciary, 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 Artist's officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership, fiduciary relationship, or joint venture between City and Artist, Artist's officers, agents, employees, and subcontractors, and the doctrine of respondeat superior has no application as between City and Artist. ARTICLE 10 INDEMNIFICATION 10.1. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGM NTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND SUITS OF ANY HIND 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 PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OM SSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agree 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 Artist's performance under this Agreement unless caused by the City, the City's agents, the City's employees, or another entity over which the City exercises control. C. Artist shall require all of their subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 10.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all state and federal copyright laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, TO WHICH THEY MAY BE SUBJECTED TO THE EXTENT 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 11 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation, or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, Artist is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall comply with all federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist services under this Agreement. 12.2. 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. 12.3. 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 all parties and approved by appropriate action of City. 12.4. Waiver. No waiver of performance by a 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. 12.5. 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. 12.6. Successors and Assigns. No party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 12.7. No Third-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successors or assigns, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. 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. 12.9. Force Maieure. It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligation hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts; national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 12.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of contract construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.11. Fiscal Funding Out. If for any reason at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the earlier of (i) thirty calendar days following delivery by City to Artist of written notice of City's intention to terminate, or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. If the Agreement is terminated under this provision, City shall pay Artist for services and expenses actually rendered, up to the effective date of termination, in accordance with the payment schedule in Article 4. 12.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.13. RiL-ht to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three years thereafter, the Artist shall make all Records available to the City at 100 Fort Worth Trail, Fort Worth, Texas, or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. 12.14. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 12.15. Survival Provision. The provisions contained in Articles 8 (Warranties), 10 (Indemnification), 7 (Ownership and Intellectual Property Rights), 9 (Artist as Independent Contractor), 5.3 (Death or Incapacity of Artist), and 12.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 12.16. Countemarts 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 shall be as legally binding for all purposes as an original signature. 12.17. Time Extensions. The Parties may mutually agree, in writing, to extend or modify any of the deadlines set forth in this Agreement. 12.18. 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 Chapter 2271 of the Texas Government Code. To the extent that Chapter 2271 of the Texas 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.(]) does not boycott Israel, and (2) will not boycott Israel during the term of the Agreement. 12.19. Ener&v 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 in Chapter 2276 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 thatArtist's signatureprovides 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. 12.20. Firearms and Ammunitions Industries. If either 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 in 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 13 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: CITY OF FORT WORTH: Jesica McEachern, Assistant City Manager City Manager's Office City of Fort Worth 100 Fort Worth Trail Fort Worth, TX 76102-6314 Copies to: Leann Guzman, City Attorney Office of the City Attorney City of Fort Worth 100 Fort Worth Trail Fort Worth, TX 76102-6314 Martha Peters, Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Susan Narduli 1944 Cotner Avenue Los Angeles, CA, 90025 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH: By: Cv JU Jesica McEachern Deputy City Manager Date:S2p 20, 2024 ARTIST: Susan Narduli Owner Date: 09.11.24 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 Gonzales Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: B�T � di�©u".' -z;- Trey ualls Assistant City Attorney ATTEST By. Janette Goodall City Secretary Form 1295 Not Required Contract Authorization: No M&C Required b-dg4Upn�� oFORr�a�� P-0 o��- 0o s= P. da o o. nEZASa-�a OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Exhibit A: THE SITE The artwork will be centrally placed in the main lobby of the library located at 1297 Avondale Haslet Road, Haslet, 76052 (Council District 10). 297 Popeyes }•. Louisiana Kitchen AVaNaALE Piiza Hut CRI leMexican Grin j ,1 The Beacon Cafe •f i ry �7acas�El Primp Willow Springs Golf Course 9 1297 Avondale Haslet Rd, Haslet TX 76052 Avondale Haslet Rc {Holleman T Enterprises, Llc Exhibit B: Preliminary Design "The Through Line" For the Far Northwest Library Public Art Project, Susan Narduli proposes a two-part interactive frieze that provides a multi -faceted exploration of this growing district. While the formal inspiration is rooted in the architectural design of the building, the conceptual inspiration responds directly to the surrounding neighborhoods. In this newly developed area of Fort Worth, the artwork serves a crucial role in establishing a sense of place that reflects the current identity of the region and can evolve alongside the community over time. The frieze will extend along the north side of two-story library wall, beginning at the entry, and continuing through the vestibule. The artwork is composed of two parts that together juxtapose words, imagery and dynamic content to create a visual narrative reflective of the community's voice. The "fixed" component, a laser cut metal panel with a custom perforated surface, integrates imagery and text in a poetic representation of the regions past and present. The "fluid" interactive digital canvas reflects day to day life through a collection of site inspired imagery, community -sourced words and phrases, and a library interactive component that triggers playful animations in real time.. Exhibit C: Budget Form FEES COSTS I JARTIST TRAVEL SBdsed on GSA Rates) CU 15 Artist's Fee IDeslgri. Studio OYerhead,Admin) I IhansportatIon IAlrfare, CarFtental) Engineer I (Lodging Ughting Designer I IPer Clem IMeaLs and incldentaLs) Con serwaroar OtherConsultaun I ISUB-TDTALTRAVEL SUB-TOTALFEES $ - I JTGTALFINALDESIGN PHASE FEES CosCos 1 JAMIS1 1 RAVEL tiBased Du GSA RjteSil CUs15 Artist's Fee IDeslgn. Studio OWerhEad, Admin) I I I •ansportatlon IAlrhare, CarRerrtat, Engineer I (Lodging Ughting Designer I IPer Dlem IMeaLs and incidentals) Con serwatar I I Photographer I ISUB-TDTALTRRVEL $ - Other Consultants i I I NISTAL1ATiON CUB 15 SUB -TOTAL FEES = - I ITransportationotArtwork toSlte Installation Crew Travel FABRICATION COSIt, I (Permits Materials I (Site Preparation!Remediatlon Ughtl ng Fixtures and Connections I IFootl ngs J Fou ndatlons Artist's Labor f_ hours at $_ per haurl I IEtectrlcaIConnectlonsI Modifications FabncatarILatsorbyOthers i,1stallerLabor Re-ntatsIequlpment,fabricationspace} I I.:�o,itals(Sc aft Iding,equipment,generator) Storage I ITraffIC Control Security SUB-TOTALFAMCATION $ - I ISUB-TOM FABRICATION $ - INSURANCE Cos k, General Liarsdlty{Prflrated} I CC) MMISSIQN PHASE I - Other as Applicable I Property. Auto-) CITY HELD CONTINGENCY SUB-TOTALTRAVEL $ - I ITOTAL COMMISSION+CONTINGENCY Attach a written quote or estimate complete with per unit costs for au items City held contingent' funds are only accessed for unforeseen costs with supportingdocurnrentation approvetl ny contract manager, Any unusedcontingencyhindsshall remainwith the City. Exhibit D: Sales Tax Exemption Texas Sales and Use Tax Exemption Certification This c erWicaM dos not raWre a nvmrbcr. o ba Maid Rom dpe%Io", sirs. MoAY City of Fart Wo tl, Texas A "s ' finnW. P.V 9W vr1a>�1rr�rWr] RsaM iMwwt�.v,u+aa.1 M Tel= Strom W-M-4517 Fan WoM, Tax" 7i102 1. the p trr)e369+ rained a*cve, cLgen of, eAenVflon from pdrt"w-rt of sash and utte tortes (for the purchatte of wade ftms descrited bekm cc or the attached order or w" ce) Armed Sake All Vandom svgw w*XPRR Up, s'aa, PP coda I7aso'prr n of H!r!•a to tr Mron," 0 or on or rrr.vee Al hirers. PJfCh;!r'.e* , _. that thn CergAcose =-irw; to used for the curcvrsc rove or 'rival of a rr4w ,A Ch di Pwrt.arer dams the exrarptan for ihr Inlaxra raawn >Vft,nrcip814. G. : . .:I Enlity I u+derttnd i m I Mtt bo l%bte for parmo't of all state w,4 hXX wins or use :axon vbch may Dorm duo ix &MLra to coffvy nth the pr wiewnt of the TaF Coda a-r:.tx alt Vpk abla law fern+lrvrle•rf(ArilX+IddC1ifiYM1nlrxnmk]¢•rHMIMe TAOl'+hrilrG-r4.rv.t'nM14rr(kip WXnt*Rk'nrthwrk"A,Af!MAmre7fp•.v[Yraan. ■%'bvurnll'reAgSWW00WAenhhafnra•nsVdnrhuctwMram.. on Pv- arn-uW ciffa if rt-a *4 fhek rOeaw pWrvW f•am a 01ssa C MademerKw Ro s feWV of Yee eu► arai cVVer ►vy rr tie Finance plrnc*0fiCF0 Lt(�rr I j q HATE Trir. 4Artlk>Nrt CY.nut W a+4.ta7 roe Tw Fwrurow*A I"tw, of rw" of i moor wfwc v TIME CIM TIMA iE DE5 NO 7 RE A rtrWBER TO BE VALID. Sriw ■od UM Trim 'Esrrplec NLr tafu' , r ' 1 41 Fai9 mlir HwT*Nnl dong olio! This corWx ate shot,ld Aa fumir hod To tho suppllc r Do lt4.t send tree competed ceinftato to trio Comptroller of F'uWsc Accounts, Exhibit E: 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 any subcontractor(s) to abide by all of the following insurance requirements as well. 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 and its Officers, Employees, and Volunteers as an "Additional Insured" on all liability policies. Exception: the "additional insured" requirement does not apply to Workers' Compensation or Automobile policies. Artist is responsible for providing the City with 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. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an "occurrence basis." The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 be 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 or of the contracting party to City of Fort Worth. City shall be required to provide prior notice of at least ninety days of such changes. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto, and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon a party or the underwriter on any such policies. FORT WORTH CSC No. 62017 Routing and Transmittal Slip Library - FWPA Department TITLE: FAR NORTHWEST LIBRARY SUSAN NARDULI FINAL DESIGN CONTRACT CPN CSO # DATE: TO: 1. Trey Qualls 2. Jesica McEachern 3. Janette Goodall rd k, 0 DOC# INITIALS DATE OUT Sew 2024 :pep 20, 2024 :Sep 20, 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 V No SAME DAY: ❑ Yes X No NEXT DAY: ❑ 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 Anne Allen at 817-298-3028 or at 817-637-7388 (aallen@artsfortworth.org) for notification when executed. Thank you.