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HomeMy WebLinkAboutContract 62268CSC No. 62268 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BENJAMIN MUNOZ FOR PUBLIC ART FOR FIRE STATION #43 This Agreement is entered into by and between the City of Fort Worth ("City"), a home -rule municipality of the State of Texas, acting by and through Jesica McEachern, its duly authorized Assistant City Manager, and Benjamin Munoz ("Artist"), located at 9670 Forest Lane, Apartment 2075, Dallas, Texas 75243. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc. D/B/A Arts Fort Worth, to manage this Agreement on its behalf ("Contract Manager"). 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; and WHEREAS, funding for this project was included in the Public Art Plan for the 2014 Bond Program, adopted by the Fort Worth City Council on October 21, 2014 as M&C G-18339, and this project is included in the Fort Worth Public Art Fiscal Year 2024 Annual Work Plan, adopted by the City Council on October 17, 2023 as M&C 23-0844; and WHEREAS, the Public Art Project Outline was approved by the Fort Worth Art Commission ("FWAC") on December 11, 2023, and is attached as Exhibit "A"; and WHEREAS, Contract Manager is conducting an Artist Selection Process based on proposals, in accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan Update, adopted by City Council on October 17, 2017, as M&C G-19140. The Contract Manager facilitated an Artist Selection Panel meeting, during which all panelists reviewed the qualifications of artists and recommended three finalists for the Project; and WHEREAS, Artist has been selected as one of three finalists and is being asked to develop a Conceptual Design Proposal and submit that proposal for review and consideration by the Artist Selection Panel. The City intends to select one proposal for the Project based on submissions by the individual finalists with no guarantee that any particular artist or proposal will be selected to proceed to the next phase of the Project; and WHEREAS, under this Agreement, Artist shall develop a Conceptual Design Proposal for the Site; and, if in the future the City decides to move into the Final Design and Commission phases of the Work, Artist and City may execute Final Design and Commission Addenda in substantially the same form as attached; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be completed to promote the integrity of Artist's ideas and statements as represented by the Work; OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement between the City of Fort Worth and Page 1 of 51 Benjamin Munoz for Public Art for Fire Station #43 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 and Artist for Conceptual Design Proposal of Public Art for the Site, and may also potentially include subsequent Final Design and Commission Addenda, if the City chooses to move forward with the Project, and any amendment thereto. 1.2. Agreement Addenda — Means and includes the attached Final Design and Commission Addenda, which shall define the scope of work and payment schedule for subsequent phases of the Project, if applicable. 1.3. Artist — Means and includes Benjamin Munoz. 1.4. Artist Selection Panel — Means and includes the appointed voting panel generally compromised of art professionals, an elected representative(s) of the Project Core Team, a Fort Worth Art Commission (FWAC) representative, and the City Council Member in whose district the project is located (or their designee). City staff representatives and other members of the Project Core Team serve as non -voting advisors on the panel. 1.5. Artwork Design — Means and includes the Conceptual Design Proposal and, if applicable, Final Design, which are defined below: Site. 1.5.a. Conceptual Design Proposal — Means all developed conceptual drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, presentations, 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. 1.5.b. Final Design — Means Artist's final proposed design and exact location(s) of the Work for the Site, which is based upon the Conceptual Design Proposal 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 any Final Design Addendum, and shall include Artist's specifications for fabrication and installation of the Work. 1.6. Artwork Commission — Means the fabrication, delivery, and installation of the Work at the 1.7. City — Means and includes the City of Fort Worth. 1.8. City Council — Means the City Council of the City of Fort Worth, Texas. 1.9. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc. D/B/A Arts Fort Worth, and/or its officers, directors, and employees. Agreement between the City of Fort Worth and Page 2 of 51 Benjamin Munoz for Public Art for Fire Station #43 1.10. Design Deliverables — Means and includes those items set forth in Article 2.4. of this Agreement, as well as any Final Design Deliverables described in any subsequent Addenda, that Artist is required to submit to Contract Manager for review and approval. 1.11. Effective Date — Means and includes the date this Agreement is executed by the City. It is understood that Final Design and Commission phases, if applicable, will have separate effective dates, as defined therein. 1.12. Final Acceptance — Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed under the Commission Addendum 1.13. FWAC — Means the Fort Worth Art Commission, an advisory body appointed by Fort Worth City Council to oversee the Fort Worth Public Art Program. 1.14. Parties — Means and includes City and Artist. 1.15. 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. 1.16. Project Consultant — Means and includes an entity contracted by City to design and/or construct the capital improvement associated with Project. 1.17. Project Core Team — Means and includes the group of community members (generally 5-7 people) who are invited by the City Council Member(s) to provide input on the Project for its duration, in accordance with the Fort Worth Public Art Master Plan Update. 1.18. 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. 1.19. Schedule — Means and includes a written plan for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports. 1.20. Site — Means the new Fire Station #43 to be located at the intersection of Walsh Ranch Parkway and Walsh Avenue, Fort Worth, Texas 76008, (Council District 3), as depicted in the Project Outline attached hereto as Exhibit "A." 1.21. Work — Means and includes the finished object(s) of art or design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 PURPOSE, CONCEPTUAL DESIGN PROPOSAL SCOPE OF SERVICES, AND DELIVERABLES 2.1. Purpose. The purpose of this Agreement is to solicit a Conceptual Design Proposal from Artist for review by the Artist Selection Panel for this Project, who will ultimately select one artist from among three finalists to recommend to the Fort Worth Art Commission (FWAC) for approval. Upon approval by the FWAC, the selected Artist would then proceed to the Final Design phase of the project. By execution of this Agreement, Agreement between the City of Fort Worth and Page 3 of 51 Benjamin Munoz for Public Art for Fire Station #43 the City does not guarantee that Artist will be selected or approved to proceed to the next phase of the Project and specifically reserves the right to reject all proposals or select one or more other proposals. 2.2. Conceptual Design Proposal Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Conceptual Design Proposal of the Work. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Prior to commencing the Conceptual Design Proposal, Artist shall participate in a finalist orientation at a mutually agreed upon date and time. C. Artist shall coordinate with City staff and City's Project Consultant on safety and engineering requirements for the Work. The specific location at the Site 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 appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. e. Artist will meet and coordinate with Contract Manager, City staff, and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support or other infrastructure needs for the Work. f. Artist shall develop the Conceptual Design Proposal within the budget set forth in Article 2.4.a.iv. below. g. Artist shall prepare and present the Conceptual Design Proposal to the to the Artist Selection Panel via Zoom at a mutually agreed upon date and time. h. Artist shall allow video recording and photography of their Conceptual Design Proposal presentation to the Artist Selection Panel. i. Four weeks prior to final submittals, Artist shall individually meet via Zoom with the Contract Manager for the purpose of a proposal progress report to receive feedback on Artist's initial concepts and have the opportunity to ask questions. j. To maintain the integrity of the City of Fort Worth's public art process, if Artist intends to seek their own publicity for the Work, including publication of the artwork design on Artist's website or social media, such efforts will occur after the artist selection process is complete and a conceptual design proposal has been approved by the FWAC. Any potential publicity being sought for the Work, including press/media release(s), must be approved, in advance, by Contract Manager, and shall credit the City of Fort Worth in substantially the following form, "an original conceptual design proposal for the City of Fort Worth, Texas." A social media plan must be approved, in advance, by Contract Manager, and shall include the hashtag #fwpublicart. Agreement between the City of Fort Worth and Page 4 of 51 Benjamin Munoz for Public Art for Fire Station #43 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. Conceptual Design Proposal Deliverables. a. Within eight weeks after finalist orientation, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City. Conceptual Design Proposal Deliverables shall consist of the following: i. Detailed design illustrations for the Work for the Site, which shall be in a high -resolution digital format, such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site; ii. A narrative description of the Artist's concept, proposed materials, fabrication and installation methods, timeline for completion, and anticipated annual maintenance requirements; iii. Installation diagram, including approximate weight of the Work and proposed installation or attachment method(s); and iv. A conceptual proposal budget estimate, presented on the budget form attached hereto as Exhibit "B," for Final Design and Artwork Commission of the Work in an amount not to exceed SIXTY- SEVEN THOUSAND, THREE HUNDRED EIGHTY DOLLARS AND ZERO CENTS ($67,380.00) which includes all costs, including, but not limited to, materials, engineering, consulting, labor, fabrication, delivery, installation, insurance (City requirements attached hereto as Exhibit "C"), transportation, total Artist's fee of $10,107.00, and all other associated costs for the Work. b. Artist shall provide the Conceptual Design Proposal presentation materials in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by the City. C. Artist shall submit a draft of their initial concept sketches for the Conceptual Design Proposal for the purpose of a design progress report as described in 2.2.i. These sketches shall be digitally submitted to Contract Manager no later than 12:00 Noon (Central Time), at least three business days in advance of the progress report date. C. Artist shall digitally submit a final version of their Conceptual Design Proposal to the Contract Manager no later than three business days in advance of the scheduled Conceptual Design Proposal presentation to the Artist Selection Panel. 2.5. Notification of Selection. Agreement between the City of Fort Worth and Page 5 of 51 Benjamin Munoz for Public Art for Fire Station #43 The Contract Manager shall notify the Artist, by phone and in writing, of the final outcome of the artist selection process, i.e. whether or not the Artist was selected to proceed to the next phase of the Project, within fifteen days of the FWAC's approval of the Project artist. 2.6. Alternate Artist. Any artist not recommended and approved to proceed to the next phase of the Project may be designated as an alternate for a period of one year from the date City sends final payment to Artist under this Agreement. The Artist shall not receive any additional compensation by nature of such designation; however, such designation does affect ownership rights to the alternate Artist's Conceptual Design Proposal, as set forth in Article 6. 2.7. Final Design and Commission Phases. If the Conceptual Design Proposal is approved and accepted by City, and if the City chooses to proceed to the Final Design phase, Artist understands that Artist will be required to execute a Final Design Addendum in substantially similar form as the attached Final Design Addendum, and Artist hereby acknowledge that this Agreement will continue pursuant to said Final Design Addendum. Likewise, if the City subsequently chooses to proceed to the Commission phase, Artist understands that Artist will be required to execute a Commission Addendum in substantially similar form as the attached Commission Addendum, and Artist hereby acknowledge that this Agreement will continue pursuant to said Commission Addendum. ARTICLE 3 CONCEPTUAL DESIGN PROPOSAL COMPENSATION AND PAYMENT SCHEDULE 3.1. Comnensation. Total compensation to Artist pursuant to this Conceptual Design Proposal Agreement shall be in an amount not to exceed SEVEN HUNDRED FIFTY DOLLARS AND ZERO CENTS ($750.00) which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, a proposal fee, any travel, and services performed and materials furnished by Artist under this Agreement. Any changes to Artist's Conceptual Design Proposal that are requested by the City shall not require City to pay Artist any additional compensation under this Agreement. Artist and City 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, each installment to represent full and final, non- refundable payment for all services and materials provided prior to the due date thereof: a. THREE HUNDRED DOLLARS AND ZERO CENTS ($300.00) within thirty (30) calendar days after Artist attends finalist orientation and submits draft of Conceptual Design Proposal Deliverables required under Article 2.4 of this Agreement. Agreement between the City of Fort Worth and Page 6 of 51 Benjamin Munoz for Public Art for Fire Station #43 b. FOUR HUNDRED FIFTY DOLLARS AND ZERO CENTS ($450.00) within thirty (30) calendar days after Artist submits final Conceptual Design Proposal Deliverables and makes presentation to Artist Selection Panel. 3.3. Sales Taxes. City is a tax-exempt organization, and therefore, 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 Exhibit "D" for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, those for services, materials, equipment, Artist's overhead expenses, mailing/shipping charges and insurance on submissions to City, costs of all travel, and costs for Artist's agents, consultants, contractors, subcontractors, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM, GRATUITIES, AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to the provisions of this Agreement, shall extend until final payment to Artist by City of any amounts owed under this Agreement or any subsequent Addendum (if applicable). 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Agreement in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing parry shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. Agreement between the City of Fort Worth and Page 7 of 51 Benjamin Munoz for Public Art for Fire Station #43 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 termination is for the convenience of City, City shall pay Artist pursuant to the payment provisions in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including but not limited to finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. In such event, Artist will be compensated for any services performed and expenses incurred but not yet paid under the Payment Schedule. 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 3 or to 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. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including but not limited to finished and unfinished drawings, sketches, photographs, models, and designs up to the effective date of termination shall become property of City. If termination is for the convenience of Artist and if such termination occurs after Artist's submittal of Final Design Deliverables required under Article 15.4 of the Final Design Addendum (see Exhibit E), City shall, in addition to the other rights provided in this Article, have the right to complete the Work, if feasible. d. If termination is by mutual agreement of the Parties, then City shall pay Artist per the payment schedule in Article 3 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. In such event, Artist will be compensated for any services performed and expenses incurred but not yet paid under the Payment Schedule. 4.5. 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 under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, Work in progress, and designs, up to the effective date of termination shall become property of City. Agreement between the City of Fort Worth and Page 8 of 51 Benjamin Munoz for Public Art for Fire Station #43 b. Should Artist's Final Design have been approved under the Final Design Addendum (see Exhibit E), in the event of termination under this Article 4.5, 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. ARTICLE 5 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 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 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 nor 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 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. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Selected Artist. a. If Artist is selected to proceed to the next phase of the Project as the Project artist, then ownership and intellectual property rights set forth in this subsection shall apply. b. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design, Work, and other work products as selected by City under this Agreement shall become the physical property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Agreement between the City of Fort Worth and Page 9 of 51 Benjamin Munoz for Public Art for Fire Station #43 Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty -free, and irrevocable license to graphically depict and publicly display the Artwork Design and/or Work for any non-commercial purpose whatsoever, except that the Work cannot be reproduced in any three- dimensional form without permission from Artist. 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. C. In view of the intention that the Artwork Design and that 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. d. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and/or Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two- dimensional reproductions of the Artwork Design and/or Work and accompanying materials for a non- commercial purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice in substantially the following form: "© date, Artist's name, Title of Work, All Rights Reserved." e. Nothing in the Agreement shall prevent Artist from using images of the Artwork Design and/or Work (including all work product under this Agreement) for marketing and promotional purposes in connection with Artist's business. f. City is not responsible for any third -party infringement of Artist's copyright and is not responsible for protection of the intellectual property rights of Artist or of anyone else. 6.2. Alternate Artist. a. If Artist is selected as the alternate Project artist, then City shall have a right of first refusal to the Conceptual Design Proposal and all other work product under this Agreement for a period of one (1) year from the date the City notifies Artist of selection as an alternate Project artist. Artist shall retain copyright and other intellectual property rights in and to the Conceptual Design Proposal. b. During the City's one-year right of refusal, alternate Project Artist shall not make any additional exact duplicate reproductions of the Conceptual Design Proposal, nor shall Artist grant permission to others to do so except with the express written permission of City. C. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. Agreement between the City of Fort Worth and Page 10 of 51 Benjamin Munoz for Public Art for Fire Station #43 d. If the City exercises its right of first refusal within the above -stated one-year period, then the rights set forth in Article 6.1 for the selected artist shall supersede and govern any ownership and intellectual property rights associated with or related to this Agreement. 6.3. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 13. 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 that require the express approval of or notice to Artist. Notwithstanding this provision, City shall make reasonable efforts to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Conceptual Design Proposal and/or Work shall be the original product of the Artist's sole creative efforts; ii. Conceptual Design Proposal and/or Work is and will be unique and original, and does not infringe upon any copyright or other rights of any person; iii. Artist has not offered, sold, assigned, transferred, licensed, granted, encumbered, or utilized the Conceptual Design Proposal and/or Work, or any copyright related thereto, that may affect or impair the rights granted pursuant to this Agreement; iv. Artwork Design and/or Work (or duplicate thereof) have not been offered or accepted for sale elsewhere; v. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of, the work performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, its officers, agents, employees, and subcontractors, and the parties agree that the doctrine of respondeat superior has no application as between City and Artist. ARTICLE 9 Agreement between the City of Fort Worth and Page 11 of 51 Benjamin Munoz for Public Art for Fire Station #43 1►�51►tW4W I%l [4J►i 9.1 General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT 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 ANY 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 OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS, CONTRACTORS, AND SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. c. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all state and federal copyright laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permissions 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, Agreement between the City of Fort Worth and Page 12 of 51 Benjamin Munoz for Public Art for Fire Station #43 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 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided under this Agreement 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. Artist will ensure that 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, insurance, audit, and release provisions. Artist shall provide information regarding all contractors and subcontractors, including its fabricator, to the Contract Manager. ARTICLE 11 EOUAL 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, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 12 MISCELLANEOUS 12.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 12.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 12.3. Amendments. Agreement between the City of Fort Worth and Page 13 of 51 Benjamin Munoz for Public Art for Fire Station #43 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. 12.4. 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, or 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. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 12.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. Severabilitv. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, then the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 12.9. Force Mai eure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations 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. Agreement between the City of Fort Worth and Page 14 of 51 Benjamin Munoz for Public Art for Fire Station #43 12.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel, have had an opportunity to review and revise this Agreement and that the normal rule of contract construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 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 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. 12.12. Cautions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of or interpretive to this Agreement. 12.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the 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, the Artist shall make all Records available to the City at 100 Fort Worth Trail, Fort Worth, Texas 76102, or at another location in the City acceptable to both parties following reasonable advance notice by the City, and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 12.13. 12.14. Certified MBE/WBE. If applicable, Artist is encouraged to use 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 4.5 (Incapacity of Artist), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as Independent Contractor), 9 (Indemnification), and 12.13 (Right to Audit) shall survive the termination or expiration of this Agreement. 12.16. Counterparts and Electronic Signatures. Agreement between the City of Fort Worth and Page 15 of 51 Benjamin Munoz for Public Art for Fire Station #43 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 agree, in writing, to extend or modify any of the time 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 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. 12.19. 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 meaning ascribed to those terms in Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276 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. (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 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 against a firearm entity or firearm trade association during the term of the contract. The terms "discriminate," "firearm entity," and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Agreement between the City of Fort Worth and Page 16 of 51 Benjamin Munoz for Public Art for Fire Station #43 Government Code. To the extent that Chapter 2274 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: (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 (formerly Energy Way) Fort Worth, Texas 76102 Copies to: Leann D. 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 Benjamin Munoz 9670 Forest Lane Apartment 2075 Dallas, Texas 75243 [Remainder of page intentionally left blank.] Agreement between the City of Fort Worth and Page 17 of 51 Benjamin Munoz for Public Art for Fire Station #43 IN WITNESS HEREOF, the Parties hereto have ex Agreement as of the Effective Date. CITY OF FORT WORTH A. Jesica McEachern Assistant City Manager Date: Nov 6, 2024 RECOMMENDED FOR APPROVAL bJ M'rl...i rl�r4 fN�..a Erna i "i n rcT? Midori Clark Fort Worth Library Director Contract Compliance Manager Date: � 0 12 Z/ ��� By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. � � C � S���L Name: Michelle Richardson Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: T ti G"aus T rPv C uaX (Nov 1. 20241536 CDT) Trey Qualls Assistant City Attorney 4pgU4dnb ATTESTED BY: 'g ,FART �adO aaaabnnEXa?o4b Jannette S. Goodall City Secretary Form 1295: Contract Authorization: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement between the City of Fort Worth and Benjamin Munoz for Public Art for Fire Station #43 Page 18 of 51 Exhibit A: Approved Project Outline Fire Station #43 Public Art Project Revised New Project Outline z On February 11, 2019, the Fort Worth Art Commission (FWAC) approved a Project Outline for Fire Station #43, which was to be sited at the intersection of Camp Bowie W. Boulevard and Link Meadow Drive. The original Artist Selection Process resulted in Marshall Harris's recommendation as the Project Artist. His Preliminary Design was approved by the FWAC on February 10, 2020. During the development of Final Design, the building location went under review leading to a pause in the public art project. This review resulted in the relocation of Fire Station #43, now planned for construction along Walsh Ranch Parkway near the intersection of Walsh Avenue. Based on the change in site and sharp cost increases for fabrication and installation, Harris was asked to redesign his concept. He presented this redesign to the FWAC for discussion on September 19, 2022. The design was subsequently shared with the Walsh Family, land donors for the new property, who felt the design and its scale was more suited to the original location near Interstate 30 than its new neighborhood location at the entrance of Walsh Ranch. After meeting with Council Member Crain, City staff, and Walsh Family representatives regarding the project, a consensus was reached to restart the public art process. With the new location in mind, stakeholders expressed interest in a wall -mounted aluminum bas relief artwork that tells the story of Walsh Ranch and highlights the firefighters as a part of this tight -knit community. At the suggestion of Council Member Crain, Marshall Harris was asked if he was interested in participating as an automatic finalist; however, he declined. PUBLIC ART BUDGET Approximately $75,000.00 remains from the 2014 Bond, Proposition 4, for an artwork associated with Fire Station #43. This project is included in the Fart Worth Public Art Fiscal Year 2024 Annual Work Plan, which Agreement between the City of Fort Worth and Page 19 of 51 Benjamin Munoz for Public Art for Fire Station #43 was adopted by the Fort Worth City Council on October 17, 2023, as M&C 23-0844. ARTIST SELECTION PROCESS ARTIST SELECTION PANEL (Voting) 1. Council Member Michael Crain, District 3 2. Roland Creswell, Westland (Original Elected Core Team Member) 3. Maggie Adler, Fort Worth Art Commission 4. Caleb Crow, Fort Worth Fire Department 5. Bexie Nobles, Walsh Companies *if a selection panelist is not available, a second Fort Worth Art Commissioner will serve in their place. ADVISORS (Non -voting) 1. Ryan Dickerson, Walsh Companies 2. Jim Henry, Senior Vice President of Community Operations, Republic Property Group (Walsh Companies) 3. Javier Lucio, RPGA Design Group, Inc. 4. Ronnie Clements, Project Manager, City of Fort Worth 5. Gary Hogan, Chapel Creek (Original Core Team Member) 6. Graham Stiles, Tejas Trails (Original Core Team Member) 7. Meredith Tullous, Walsh Ranch (Original Core Team Member) 8. Tim Smith, Lost Creek Estates (to replace Original Core Team Member, Bob Galvin) 9. Others as appropriate Selection Panel Meeting Facilitator: Michelle Richardson, Public Art Project Manager, Arts Fort Worth ARTIST SELECTION PANEL MEETING #1 Staff will present a group of 6-8 artists from the Fort Worth Public Art Pre -Qualified List of Emerging Artists whose work would be a good fit for the project. The Artist Selection Panel shall review the artists' qualifications and select three (3) finalists and one alternate. ARTIST -FINALISTS ORIENTATION Prior to creating their conceptual proposals, the artist -finalists shall attend on -site orientation and tour the Walsh Ranch development. All Artist Selection Panel members and Advisors will be invited to the meeting. Artist -finalists will also tour the temporary Fire Station #43 and visit other neighborhoods in the Fire Station 43 service area. They will also be provided with information about the specific site on the facade of the fire station. ARTIST -FINALIST CONCEPTUAL PROPOSAL PREPARATION Artist -finalists will enter into a Conceptual Proposal Agreement with the City of Fort Worth and will be given eight (8) weeks from the date of the Finalist Orientation or date of contract execution (whichever is later) to prepare proposals for consideration. An honorarium of $750.00 will be paid to each artist -finalist upon completion of the following scope of services: 1. Detailed design illustrations or renderings showing the proposed artwork from multiple vantage points. 2. Narrative description of the artist's concept, dimensions, proposed materials, fabrication and installation methods, timeline for completion, and anticipated maintenance requirements. 3. Estimated budget inclusive of a 15% artist's fee and all costs associated with the final design, fabrication, and installation of the artwork. Agreement between the City of Fort Worth and Page 20 of 51 Benjamin Munoz for Public Art for Fire Station #43 4. A conceptual proposal presentation in PowerPoint format AND presentation of the proposal of their proposal to the Artist Selection Panel and Advisors. ARTIST SELECTION PANEL MEETING #2 — PROPOSAL PRESENTATIONS The Artist Selection Panel and Advisors will convene to hear proposal presentations by each artist -finalist, followed by Q & A. The Artist Selection Panel and Advisors will discuss each proposal and deliberate prior to voting to recommend one artist and one alternate artist to the FWAC. Walsh - David Weekley Homes J7 1 is Storage p Gook Ghildren's Urgent Gulf -Gas -station sr��� Care Walsh Ranch —T — l_� Sprouts Academy West New Fire Station #43 Location (Walsh Ranch Parkway and Walsh Avenue, 76008) Agreement between the City of Fort Worth and Page 21 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit B: Budget Form (Final Design & Commission Phases) •i 1 i f'• i FEES COSTS ARTIST TRAVEL (BasedoiiGSA Kitt _;:I COSTS IArtlsVs Fee (Design, Studio C7verhead, Admin) liransportatian JAirfare, Car Rental) Engineer Lodging Lighting Designer Pe r Diem t M eats and Inc Identals) (conservator I IOtherConsultarns ISUB-TOTAL TRAVEL $ ISUB-TOTAL FEES - ITOTAL F I NAL D ESI GN P HASE $ - YROJECT BUDGETDEVELOPMENT COMMISSION FEES COSTS ARTIST TRAVEL (Based on GSA Rates) COSTS Artists Fee (Design, Studio Overhead, Adm in) Transportation ZAirfare, Car Rental) Engineer ILodging Lighting Designer I Pe r Diem (M eats and Incidentals) I co nservatar I ( Photographer I SU B-TOTAL TRAVEL $ Other Consultants I INSTALLATION COSTS SUB -TOTAL FEES $ - IIran sponatlon of Artwork to Site I instauatlon Crew Travel (FABRICATION COSTS (Permits Materials ISlte Preparation I Remedlation Light ing Fixtures and Connections I Footings I Foundations Anist's Labor{_ hours at $-- per hour) IElectrical Connections f Modifications Fabricator I Labor by Others I Installer Labor Rentals (equipment, fabrication space} Identals (Scaffolding, equipment, generator) I Storage I Traffic Control I (Security ISUB-TOTAL FABficAT1O'N $ - I SU B-TOTAL FABRI CAT] ON $ - INSURANCE COSTS IGene ralLlabillty(Prorated) �TOTAL COMMISSION PHASE Other asAppbcable (Property, Auto) ISUB-TOTAL TRAVEL $ - Attach a written quote or estimate corn plete with per unit costs for all items. The implementation budget above does not include the City -held contingency. Contingent' funds are accessed for unforeseen costs with supporting dncurnentationapproved bycontractmanager. Any unused contingency funds shaUremainwith the City. Agreement between the City of Fort Worth and Page 22 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit C: 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 contractor(s) and 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. Workers' Compensation (for Artist and/or Artist's contractors and subcontractors who have employees) 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, including its Officers, Employees, and Volunteers, as an "Additional Insured" on all liability policies. Exception: the "Additional Insured" requirement does not apply to Workers' Compensation or Automobile policies. Agreement between the City of Fort Worth and Page 23 of 51 Benjamin Munoz for Public Art for Fire Station #43 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. The insurers for all policies must be licensed/approved to do business in the State of Texas. 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, 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, in 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 decisions, or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions, except where policy provisions are established by law or regulations binding upon either party or the underwriter on any such policies. Agreement between the City of Fort Worth and Page 24 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit D: Sales Tax ac ars.r W #r- - . am Tex 3s S a le s and U se Tax Exemption Ce rtifi-aiion 77h'; xr>it "dlaL&F r9 reWre a ruvaablcr!v tt mWd "--orpudawi InargWcf 0f y of Fort Worth TMAM .,=k,.. I irm i weer rr d Q:w vide rarer Pwra �++r mi �c rr 140 Fort YYDrh TMM E17. -M-259d :rr Som EF ear Fort ii cM, TaKac I8102 I, the pxcnwer named above, cIaIm an ekmmpUm tan paymet o' mLLs"use bares -'rwthe puJ&ase o' tax ahe Nh-a descdbed bekra or on H-rt attad-rcd order or htiwte}Irwn: Eiar Ad I Y4ffKkgl O5sr[ ■Mrzki LEI}, Awe; 2 1 P raft D,W=V CIA-0hkefttobrMftFirrid &"otirW[r rhrnl:ifd t1 Pr* Ii An HarFF. Pui3hracar aaknoMbdqe1& that this uertfflaate cannot be used ror the purohaor. kmKa, oI rental of a molar Ybhlile. f _ di�sii Ail -1 1' s c h, 'Lr hdbwvu Immm Mur k4mft, Gx wrmrnt Erb I urKNrrbrP5 eiI r r1 6i NM 1Y oil M i1 Nor irrd kYiI tam & uii libsM m7mh fMX B*Mh'i &A lbr hdufiit m"0�r rm ebr Wuvb6ra of dr. Tim Z&m i'asM1 m WkihW Iiw. r�4dlrr v� obir! rt i B�iYii' bFrskNr m $Art bid, ■imfovn-rrtrkcvw r1b j% rri%mp fir obwuti him ■ rw r h" a m# Wim Ypo= wo. rri eibrifam im&br 814irdliBJlliehi etiaad=WN rtuJ JCn AN wmmoardlb re".W Om-OME■,-s,.Kr XW k4n i116 o D aAkAknii[rY Jet i A &V d Mo irri�iaal Fes. -" I [Am �—,Ih— C1 W FlnaWai C fltu 03113r-NU+4 NOTE. Tilly tirlltltiii bYhrro! br.11rrud fal7ii Fur3�ra• kriri bl krrd st ■ iirtbr r.h.ia Si1i i rd Lmm T it Sm in db8 r♦ uric eW of 'T iac E, irwe N urii h do w v �1 Th kL err mgu b is fum M is k? dr. Da mm ii rd in i vayoin a7 cwrN w a db■ 04roatm i -d Ftdwt Aertu rtt Agreement between the City of Fort Worth and Page 25 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit E: Final Design Addendum WHEREAS, on [DATE], the City and Artist entered into City Secretary Contract No. , to develop a Conceptual Design Proposal for Public Art for the Site; and WHEREAS, on [DATE], the FWAC approved Artist's Conceptual Design Proposal and recommended that the Artist develop a Final Design based on the Conceptual Design Proposal for public artwork to be incorporated into the Site; and IF APPLICABLE: WHEREAS, on [DATE], the Fort Worth City Council authorized the execution of this Final Design Addendum; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Final Design shall be developed 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 14 EFFECTIVE DATE OF FINAL DESIGN ADDENDUM The effective date of this Final Design Addendum is the date this Addendum is executed by the City. ARTICLE 15 FINAL DESIGN SCOPE OF SERVICES AND DELIVERABLES 15.1 Acknowledgment. City and Artist acknowledge that Artist's Conceptual Design Proposal, as described in the attached Exhibit "F," was reviewed and approved by the FWAC on [DATE] and is the basis for executing this Final Design Addendum with Artist. 15.2. Final Design Scone of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables (see Section 15.4.). 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 Project Stakeholders and approval by City as set forth in this Agreement. Artist shall address the feedback received during the Conceptual Design Proposal Review process from the FWAC, Project Core Team, and Project Stakeholders. C. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City and Artist. Agreement between the City of Fort Worth and Page 26 of 51 Benjamin Munoz for Public Art for Fire Station #43 d. 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, permitting, and accessibility, as applicable. e. Artist shall meet and coordinate with City staff, Project Consultant(s), and others, as necessary, to integrate the Work into the Site in terms of structural support, installation requirements, or other infrastructure needs to support the Work. f. Artist shall consult with a qualified art conservator to review the design and develop written maintenance recommendations for the Work upon request of Contract Manager. g. Artist shall present, in -person (preferred) or remotely, the Final Design to the FWAC for joint review with the Project Core Team, other Project Stakeholders, and the appropriate City staff to obtain the FWAC's approval at a regularly scheduled FWAC meeting. h. Artist shall allow video recording and photography of their participation during activities related to this Project such as presentations and meetings. i. To maintain the integrity of the City of Fort Worth's public art process, for the duration of this - Design Addendum, if Artist intends to seek their own publicity for the Work, including publication of the artwork design on Artist's website or social media, such efforts will occur after Final Design has been approved by the FWAC. Any potential publicity being sought for the Work, including press/media release(s), must be approved, in advance, by Contract Manager, and shall credit the City of Fort Worth in substantially the following form, "an original final artwork design for the City of Fort Worth, Texas." A social media plan must be approved, in advance, by Contract Manager, and shall include the hashtag #fwpublicart. 15.3. Citv 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. 15.4. Final Design Deliverables. a. Within three months after the Effective Date of this Final Design Addendum, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 15.4. to City for approval. Final Design Deliverables shall consist of the following: i. Detailed design illustrations for the Work for the Site, which shall be in a high -resolution digital format, such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement on a site plan that clearly shows site dimensions.[NOTE: If model or maquette is required, it should be listed here]; Agreement between the City of Fort Worth and Page 27 of 51 Benjamin Munoz for Public Art for Fire Station #43 ii. A final written narrative for the Work, describing the following: (1) Artist's Final Design concept; (2) timeline for completion; (3) 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 (4) Maintenance requirements for all elements of the Work as dictated by the Artist, along with cost estimates for annual maintenance; iii. Material or fabrication samples, as deemed necessary by Contract Manager and/or Artist; iv. An updated, detailed final budget, on the budget form attached hereto as Exhibit "G," for Artwork Commission of the Work in an amount not to exceed [SPELL OUT DOLLAR AMOUNT ($XXXXXA which includes all costs, including, but not limited to, for materials, engineering, consulting, labor, fabrication, delivery, installation, insurance, travel costs (if applicable), transportation, remaining Artist's fee of [$XXXXXX], and all other associated costs for the Work, with written quotes from subcontractors and vendors attached, if applicable. The Artwork Commission budget of $ does not include I 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 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 attached hereto as Exhibit "C"); and vi. Artist shall provide an Artist's statement, which may include but is not limited to the following topics: the overall philosophical approach of the Work; how the artwork relates to or engages viewers in the community; what influenced the Artwork Design; how techniques or materials relate to the content of the Work; and how the Work relates to the Artist's studio practice. b. Artist shall provide the Final Design presentation materials in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art Archive owned by City. All documents, models, and/or drawings will be retained for archival and exhibition purposes. C. Final Design Deliverables shall be submitted to the Contract Manager at least three weeks prior to the scheduled Final Design presentation to the FWAC, for staff review. Agreement between the City of Fort Worth and Page 28 of 51 Benjamin Munoz for Public Art for Fire Station #43 15.5. Final Design Review. a. Upon submission of the Final Design Deliverables and acceptance by Contract Manager, Artist shall present the Final Design to the FWAC, �roject Core Team, Project Stakeholders, City staff, and otll members, for the FWAC's approval at a regularly scheduled FWAC meeting. If the Final Design is approved by the FWAC, it will subsequently be shared with City boards, commissions, and staff, 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 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 thirty calendar days from the date City informed Artist of the revision(s) to submit the revised Final Design in conformance with City's requirements and subsequently present the revisions at the next regularly scheduled meeting of the Fort Worth Art Commission. e. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 16 of this Final Design Addendum up through the date of termination. £ Artist shall incorporate any City -approved revisions into the Artwork Commission Addendum in conformance with City's requirements. g. If Artist's Final Design is approved by City, then Artist's Final Design shall, upon Fort Worth City Council authorization, be incorporated into this Agreement as an addendum and shall become the basis for proceeding to the Artwork Commission phase. 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, pursuant to Article 6 of Conceptual Design Proposal Agreement, which is the foundation for this Final Design Addendum. ARTICLE 16 FINAL DESIGN COMPENSATION AND PAYMENT SCHEDULE 16.1. Compensation. Agreement between the City of Fort Worth and Page 29 of 51 Benjamin Munoz for Public Art for Fire Station #43 Total compensation to Artist under this Final Design Addendum shall be in an amount not to exceed [SPELL OUT DOLLAR AMOUNT ($XXXXX).l, which shall constitute full compensation for any and all costs associated with this Final Design Addendum, including but not limited to an Artist's Fee of $[XXXXX], an engineering and consulting fee allowance of up to $[XXXXX], a travel allowance of up to [$XXXXX], insurance (if applicable), material samples, and any and all other costs for services performed and materials furnished by Artist under this Agreement. Any changes requested by the City shall not require City to pay Artist any additional compensation under this Final Design Addendum. Artist and City may amend the Agreement to allow for additional payment if additional services are required. 16.2. Pavment Schedule. City agrees to pay Artist in the following installments., each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days of the Effective Date of this Final Design Addendum and after City issuance of a purchase order. b. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days after Artist submits the Final Design Deliverables as required under Article 15.4. of this Addendum. C. [SPELL OUT DOLLAR AMOUNT ($XXXXX)] within thirty calendar days after Artist makes presentation of the Final Design to the FWAC pursuant to Article 15.5. d. [SPELL OUT DOLLAR AMOUNT ($XXXXX).l within thirty calendar days after City's approval of the Final Design. e. City will provide an allowance of up to f SPELL OUT DOLLAR AMOUNT ($XXXXX)_] for engineering, material samples, mock-ups, professional services, and conservator or other consulting fees, as necessary. Such payment shall be made for actual services rendered only (a retainer fee of up to 50% is allowed) and upon receipt of an invoice from Artist with the original invoice for such services attached. f. ONLY IF APPLICABLE: City will provide a travel stipend of up to [SPELL OUT DOLLAR AMOUNT ($XXXXX)] for travel costs for up to [XX] trip(s) by Artist at SPELL OUT DOLLAR AMOUNT ($XXXXX)] per trip, provided that Project Manager has approved the travel in writing, in advance. This stipend is provided consistent with GSA Guidelines and shall cover all allowable travel expenses after travel occurs. 16.3. Sales Taxes. City is a tax-exempt organization, and therefore, 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 "D" for use by Artist in the fulfillment of this Agreement. Agreement between the City of Fort Worth and Page 30 of 51 Benjamin Munoz for Public Art for Fire Station #43 16.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Addendum, including, but not limited to, those for services, materials, mailing/shipping charges on submissions to City and/or Contract Manager, insurance, cost of all travel (that are not covered by a travel stipend), and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 17 TERM OF FINAL DESIGN ADDENDUM This Final Design Addendum shall take effect on the date it is executed by the City and, unless terminated earlier pursuant to the provisions of the Agreement, shall extend until final payment to Artist by City of any amounts due hereunder. ARTICLE 18 CONTINUATION OF AGREEMENT The Parties hereby acknowledge and agree that, unless explicitly modified by the terms of this Final Design Addendum, all other terms and conditions of the original Agreement remain in full force and effect and shall apply throughout the duration of this Final Design Addendum. Agreement between the City of Fort Worth and Page 31 of 51 Benjamin Munoz for Public Art for Fire Station #43 IN WITNESS HEREOF, the Parties hereto have executed this Final Design Addendum as of the Effective Date. CITY OF FORT WORTH ARTIST by: Jesica McEachern Name Assistant City Manager Title Date: Date: Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: Trey Qualls Assistant City Attorney ATTESTED BY: Jannette S. Goodall City Secretary Form 1295: Contract Authorization: DEPARTMENTAL APPROVAL: Midori Clark Director, Fort Worth Public Library Agreement between the City of Fort Worth and Page 32 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit F: Approved Conceptual Design Proposal [Insert here in its entirety] Agreement between the City of Fort Worth and Page 33 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit G: Budget Form (Commission Phase) PROJECTe FEES COSTS Artist's Fee (Design, Studio Overhead, Admin) Engineer Lighting Designer Conservator Photographer Other Consultants SUB -TOTAL FEES FABRICATION COSTS Materials Lighting Fixtures and Connections Artist's Labor (_ hours at $ per hour) Fabricator / Labor by Others Rentals (equipment, fabrication space) Storage SUB -TOTAL FABRICATION - INSURANCE COSTS General Liability (Prorated) Other as Applicable (Property, Auto) SUB -TOTAL TRAVEL - ARTIST TRAVEL (Based on GSA Rates) COSTS Transportation (Airfare, Car Rental) Lodging Per Diem (Meals and incidentals) SUB-TOTALTRAVEL - INSTALLATION COSTS Transportation of Artwork to Site Installation Crew Travel Permits Site Preparation / Remediation Footings / Foundations Electrical Connections / Modifications Installer Labor Rentals (Scaffolding, equipment, generator) Traffic Control Security SUB -TOTAL FABRICATION - TOTAL COMMISSION PHASE - Attach a written quote or estimate complete with per unit costs for all items. The implementation budget above does not include the City -held contingency. Contingenyfunds are accessed for unforeseen costs with supporting documentation approved by contract manager. Any unused contingency funds shall remain with the City. Agreement between the City of Fort Worth and Page 34 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit H: Artwork Commission Addendum WHEREAS, the Final Design Addendum to City Secretary Contract No. [XX-XXXX] was executed on [DATE]; and WHEREAS, on [DATE], the FWAC approved Artist's Final Design and recommended that the Artist be commissioned to fabricate, deliver, and install the Artwork at the Site; and �i.Rn pun_rF�Tc �� WHEREAS, on [DATE], the Fort Worth Park and Recreation Department Advisory Board endorsed the placement of the artwork in [PARK NAME]; and WHEREAS, on [DATE], the Fort Worth City Council authorized the execution of this Artwork Commission Addendum; and WHEREAS, City and Artist wish to set out the terms and conditions under which the Commission phase will be completed; 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 19 EFFECTIVE DATE OF ARTWORK COMMISSION ADDENDUM The effective date of this Commission Addendum is the date this Addendum is executed by the City. ARTICLE 20 ARTWORK COMMISSION PHASE SCOPE OF SERVICES AND DELIVERABLES 20.1 Acknowledgment. City and Artist acknowledge that Artist's Final Design, as described and depicted in the attached Exhibit "I," was reviewed and approved by the FWAC on [DATE], and "...placement of the artwork in [PARK NAME] was endorsed by the Fort Worth Park and Recreation Advisory Board on [DATE]," and is the basis for executing this Commission Addendum with Artist. 20.2. Artwork Commission Scone of Services. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement, the Final Design Addendum, and this Commission Addendum. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement, the Final Design Addendum, and this Artwork Commission Addendum. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. Agreement between the City of Fort Worth and Page 35 of 51 Benjamin Munoz for Public Art for Fire Station #43 C. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, permitting, and accessibility, as applicable. d. Artist shall meet and coordinate with the City's staff, Project Consultant(s), contractors, and others, as necessary, to ensure proper integration and installation of the Work into the Site, as applicable, including, but not limited to, artwork location and installation equipment brought onto the Site. e. Artist shall install the Work at the Site on dates mutually agreed upon by Artist and City. f. Upon request of Contract Manager, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager, if not provided under Final Design Addendum. g. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time, to be completed within one year of the completed installation date. h. Artist shall make their best effort to be available at such time(s) as may be set by the City to attend any inauguration or presentation 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 by City as soon as practicable following installation. i. Artist shall allow video recording and photography of their participation during activities related to this Project such as presentations and meetings. j. If Artist intends to seek their 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 the City of Fort Worth, Texas." A social media plan must be approved, in advance, by Contract Manager, and shall include the hashtag #fwpublicart. 20.3. Citv 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. 20.4. Execution of Work. a. Artist shall furnish the Schedule to the Contract Manager within fifteen business days after the Effective Date of the Commission Addendum. After written approval of the Schedule by Contract Manager, Artist shall fabricate, deliver, and install the Work in accordance with the Schedule. Schedule changes may be accomplished by written agreement between Artist and Contract Manager. b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or to request visual documentation of the fabrication. Artist shall, upon written request Agreement between the City of Fort Worth and Page 36 of 51 Benjamin Munoz for Public Art for Fire Station #43 by the City 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 20.4 within thirty calendar days after receipt of the written request. C. Artist shall complete the fabrication of the Work in accordance with the approved Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its sole discretion, shall determine whether the changes are significant and do not conform to the approved Final Design. If the Contract Manager determines that the changes do not conform to the approved Final Design, then the changes may be presented to the FWAC for review and approval at a regularly scheduled or special called meeting of the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 5 of this Agreement. 20.5. Delivery and Installation. a. Artist shall carry insurance as set out in Exhibit "C." 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 Commission Addendum Section 20.8. hereof, the risk of damage to or loss of the Work shall, during fabrication and installation, shall be solely that of Artist. This risk shall transfer to City upon installation completion and shall no longer be the responsibility of Artist upon installation of the Work. b. Artist shall notify City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. C. Artist shall be responsible for obtaining and paying for all necessary permits and any required traffic barriers appropriate for this Project. d. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. e. 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. Agreement between the City of Fort Worth and Page 37 of 51 Benjamin Munoz for Public Art for Fire Station #43 f. Should Artist complete fabrication of 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. g. 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 interior finishes, painted structures, pathways, and landscaping, while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at their own expense, shall have thirty days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. 20.6. Post -installation. a. Artist shall provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work using the Technical and Maintenance Record, attached hereto as Exhibit "J." 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 Addendum. b. 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 (.jpeg format) showing each element of the Work, including detail shots during and after installation, with at least ten of these images showing the Work installed. 20.7. Final Acceptance. a. Artist shall notify City and 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 Artwork Commission Addendum. Included in such notice from Artist shall be an Affidavit of Bills Paid, attached hereto as Exhibit "K," certifying that all bills relating to services or supplies used in the performance of the Artwork Commission Addendum 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 thirty-fifth day after Artist sends the written notice to City required under this Article 20.7, unless City, upon receipt of such notice and prior to the expiration of the thirty -five - Agreement between the City of Fort Worth and Page 38 of 51 Benjamin Munoz for Public Art for Fire Station #43 day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to the Commission Addendum. 20.8. 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. 20.9. Warranties of Qualitv 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 20.9 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 calendar 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 20.9 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 approved Final Design and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 20.9. e. If after one year from Final Acceptance and during Artist's lifetime City observes any breach of warranty described in this Section 20.9 that is curable by Artist, City shall give written notice to Artist to make or supervise repair or restorations at a reasonable fee. Artist shall notify City, in writing, within thirty calendar 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 calendar day deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services Agreement between the City of Fort Worth and Page 39 of 51 Benjamin Munoz for Public Art for Fire Station #43 of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants each of the following: 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. iii. With general routine cleaning and repair, and within the context of reasonably 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; and iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional and may 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 that Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. ARTICLE 21 ARTIST'S RIGHTS 21.1. Identification. City may include Artist on the Fort Worth Public Art website (www.fwpublicart.org) or other social media platforms during any phase of the Project and will provide appropriate credit to Artist. Upon completion of the Work, Contract Manager shall include credit to Artist on the Fort Worth Public Art website and facilitate the design, purchase, and installation of a permanent plaque at the Site. 21.2. Maintenance. City recognizes that maintenance of the Work is essential to the integrity of the Work. City will, to the best of its ability, and to the extent practicable, and in accordance with appropriated funding, maintain and protect the Work, taking into account the maintenance instructions provided by Artist. 21.3. 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. Agreement between the City of Fort Worth and Page 40 of 51 Benjamin Munoz for Public Art for Fire Station #43 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. 21.4. 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 21.4.b. and 21.4.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 by any means, including destruction. City may give Artist written notice of its intent to take such action under this Article 21.4. 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 ninety days to remove the Work at Artist's sole expense. Upon Artist's failure to remove the Work during the 90-day period, 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 21.4. 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. 21.5. Record Retention. City shall maintain a record of this Agreement and of the location and disposition of the Work consistent with City's document retention schedule. 21.6. Additional Rights and Remedies. Nothing contained in this Article 21 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 22 ARTWORK COMMISSION COMPENSATION AND PAYMENT SCHEDULE 22.1. Compensation. Total compensation to Artist under the Artwork Commission Addendum shall be in an amount not to exceed [SPELL OUT DOLLAR AMOUNT ($XXXXXA which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not Agreement between the City of Fort Worth and Page 41 of 51 Benjamin Munoz for Public Art for Fire Station #43 limited to, fabrication, transportation, installation, remaining Artist's Fee of $XXXXXX , insurance, incidental costs, a City -held contingency of [$XXXX], all travel expenses, and any other costs associated with the Work. The Parties may amend this Commission Addendum to allow for additional payment if additional services are required. 22.2. Pavment Schedule. City agrees to pay Artist under this Commission Addendum in the following installments, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days of the Effective Date of this Addendum and after City issuance of a purchase order. b. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days of Contract Manager's verification of 50% fabrication; C. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days of Contract Manager's verification that the Work is 100% fabricated and ready to install; d. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty calendar days of Contract Manager's verification that the Work is installed; and e. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty-five days after Final Acceptance and receipt by City of such documentation as it may require concerning payment of services and supplies rendered to Artist (Commission Addendum Article 20.7.a.); provided, however, that final delivery shall not be tendered prior to the expiration of thirty days after Final Acceptance. £ A contingency of up to [SPELL OUT DOLLAR AMOUNT ($XXXXX)l for costs associated with the Work that are incurred by the Artist due to unforeseen changes in materials, fabrication, or installation costs. Payments using contingency funds will only be made upon (i) approval, in advance, by the Contract Manager of the additional costs, and (ii) receipt of supporting documentation from the Artist. Any unused contingency funds shall remain with the City. ARTICLE 23 TERM OF ARTWORK COMMISSION ADDENDUM This Artwork Commission Addendum shall take effect on the date it is executed by the City and, unless terminated earlier pursuant to the provisions of the Agreement, shall extend until final payment to Artist by City of any amounts due hereunder. ARTICLE 24 CONTINUATION OF AGREEMENT The Parties hereby acknowledge and agree that, unless explicitly modified by the terms of this Artwork Commission Addendum, all other terms and conditions of the original Agreement and the Final Design Agreement between the City of Fort Worth and Page 42 of 51 Benjamin Munoz for Public Art for Fire Station #43 Addendum remain in full force and effect and shall apply throughout the duration of this Artwork Commission Addendum. Agreement between the City of Fort Worth and Page 43 of 51 Benjamin Munoz for Public Art for Fire Station #43 IN WITNESS HEREOF, the Parties hereto have executed this Commission Addendum as of the Effective Date. CITY OF FORT WORTH ARTIST by: Jesica McEachern Name Assistant City Manager Title Date: Date: Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Title: Public Art Project Manager APPROVED AS TO FORM AND LEGALITY: Trey Qualls Assistant City Attorney ATTESTED BY: Jannette S. Goodall City Secretary Form 1295: Contract Authorization: M&C # DEPARTMENTAL APPROVAL: Midori Clark Director, Fort Worth Public Library Agreement between the City of Fort Worth and Page 44 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit I: Approved Final Design Agreement between the City of Fort Worth and Page 45 of 51 Benjamin Munoz for Public Art for Fire Station #43 Exhibit J: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location & Description of Signature Markings (or copyright): Edition Information if applicable: Date of Execution: Agreement between the City of Fort Worth and Page 46 of 51 Benjamin Munoz for Public Art for Fire Station #43 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: 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): Agreement between the City of Fort Worth and Page 47 of 51 Benjamin Munoz for Public Art for Fire Station #43 Pedestals, Foundations & Footings, Mountings, 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): 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: Agreement between the City of Fort Worth and Page 48 of 51 Benjamin Munoz for Public Art for Fire Station #43 Artist's Intention Please describe your view of how the artwork will change over time, including in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in creating 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 between the City of Fort Worth and Page 49 of 51 Benjamin Munoz for Public Art for Fire Station #43 AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Exhibit K: Affidavit of Bills Paid 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 Signature: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Day of 120. Notary Public, State of Texas Print Name Commission Expires Agreement between the City of Fort Worth and Page 50 of 51 Benjamin Munoz for Public Art for Fire Station #43 FORT WORTH Routing and Transmittal Slip LIBRARY - FWPA Department DOCUMENT TITLE: FIRE STATION #43 PROPOSAL CONTRACT M&C n/a CPN DATE: TO: 1. Trey Qualls 2. Midori Clark 3. Jesica McEachern 4. Jannette S. Goodall k, 0 CSO # DOC# ITIALS DATE OUT vov 1, 2024 lk,e— Nov 4, 2024 CA11- Nov 6, 2024 M Nov 6, 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: 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 214-673-0343 (mrichardson@artscouncilfw.org) for pick up when completed. Thank you.