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HomeMy WebLinkAboutContract 62960CSC No. 62960 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND TREVOR O'TOOL FOR PUBLIC ART FOR GATEWAY PARK 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 Trevor O'Tool ("Artist"), an individual located at 1445 E Hampton Street, Tuscon, Arizona, 85719. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc. D/B/A Arts Fort Worth ("Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art Project Manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; and WHEREAS, funding for this project was included in the Public Art Plan for the 2018 Bond Program, adopted by the Fort Worth City Council on October 16, 2018, as M&C G-19401, and this project is included in the Fort Worth Public Art Fiscal Year 2025 Annual Work Plan, adopted by the City Council on November 12, 2024, as M&C 24-1001; and WHEREAS, the Public Art Project Outline was approved by the Fort Worth Art Commission ("FWAC") on August 19, 2024, and is attached as Exhibit "A"; and WHEREAS, Contract Manager conducted an Artist Selection Process based on qualifications 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; and on January 27, 2025, the FWAC approved the Selection Panel's recommendation of Artist for the Project; and WHEREAS, under this Agreement, Artist shall develop a Preliminary Design 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; 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: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement Between the City of Fort Worth and Page 1 of 51 Trevor O'Tool for Public Art for Gateway Park 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 Preliminary Design of Public Art for the Site and may also potentially include subsequent Final Design and Commission Addenda, at the City's sole discretion, 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 Trevor O'Tool. 1.4. Artwork Design — Means and includes the Preliminary Design and, if applicable, Final Design, which are defined below: Site. 1.4.a. Preliminary Design — Means all developed preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, presentations, and the like that are created by Artist in connection with this Agreement or any prior agreement between Artist and City for the Work. 1.4.b. Final Design — Means Artist's final proposed design and exact location(s) of the Work for the Site, which will be based upon the Preliminary Design and includes, but is not limited to, all final structural engineering drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with any Final Design Addendum, and shall include Artist's specifications for fabrication and installation of the Work. 1.5. Artwork Commission — Means the fabrication, delivery, and installation of the Work at the 1.6. City — Means and includes the City of Fort Worth. 1.7. City Council — Means the City Council of the City of Fort Worth, Texas. 1.8. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc. DB/A Arts Fort Worth and its officers, directors, and employees. 1.9. Design Deliverables — Means and includes those items set forth in Article 2.3 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. 1.10. 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. Agreement Between the City of Fort Worth and Page 2 of 51 Trevor O'Tool for Public Art for Gateway Park 1.11. 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 Artwork Commission Addendum. 1.12. FWAC — Means the Fort Worth Art Commission, an advisory body appointed by Fort Worth City Council to oversee the Fort Worth Public Art Program. 1.13. Parties — Means and includes City and Artist. 1.14. 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. 1.15. Project Consultant — Means and includes an entity contracted by City to design or construct the capital improvement associated with Project. 1.16. 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. 1.17. 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. 1.18. 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. 1.19. Site — Means Gateway Park, 750 Beach Street, Fort Worth Texas, 76111, (Council District 11), as depicted in the Project Outline attached hereto as Exhibit "A." 1.20. 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 PRELIMINARY DESIGN SCOPE OF SERVICES AND DELIVERABLES 2.1. Preliminary Design Scone of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Preliminary Design of the Work. 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 approval by City as set forth in this Agreement. City may request changes to the Artwork Design from time to time under this Agreement, and Artist will accommodate City's requests. C. Prior to commencing the Preliminary Design, Artist shall meet with and seek input from the Project Core Team, either in -person or virtually. Agreement Between the City of Fort Worth and Page 3 of 51 Trevor O'Tool for Public Art for Gateway Park d. 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. e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. f. Artist 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. g. Artist, upon request of Contract Manager, shall provide information and/or attend meetings to communicate their design concepts and coordinate matters pertaining to the Site. h. Artist shall develop the Preliminary Design within the budget set forth in Article 2.3.a.iv below. i. Artist shall present, in -person (preferred) or remotely, the Preliminary 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. j. Artist shall allow video recording and photography of their participation during activities related to this Project such as presentations and meetings. k. To maintain the integrity of the City of Fort Worth's public art process, for the duration of this Preliminary Design Agreement, 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 Preliminary 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 preliminary 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." 2.2. 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. 2.3. Preliminary Design Deliverables. a. Within three months after City issues a purchase order for this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3, to City for approval. Preliminary Design Deliverables shall consist of the following: Agreement Between the City of Fort Worth and Page 4 of 51 Trevor O'Tool for Public Art for Gateway Park 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 preliminary budget estimate, presented on the budget form attached hereto as Exhibit "B," for Final Design and Commission of the Work in an amount not to exceed FOUR HUNDRED NINETY-FOUR THOUSAND THREE HUNDRED SIXTY-THREE DOLLARS AND ZERO CENTS ($494,363.00), which includes all costs, including, but not limited to, materials, engineering, consulting, labor, fabrication, delivery, installation, insurance (City requirements attached hereto as Exhibit "C"), travel costs (if applicable), transportation, remaining Artist's fee of $52,588.00, and all other associated costs for the Work. b. Artist shall provide the Preliminary Design 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. Preliminary Design Deliverables shall be submitted to the Contract Manager for staff review at least three weeks prior to the scheduled Preliminary Design presentation to the FWAC. 2.4. Preliminary Design Review. a. Upon completion of the Preliminary Design Deliverables and acceptance by Contract Manager, Artist shall present the Preliminary Design to the FWAC, Project Core Team, Project Stakeholders, City staff, and other community members for review and approval at a regularly scheduled FWAC meeting. b. City shall notify Artist of its approval or disapproval of the Preliminary Design within thirty calendar days of Artist's presentation to the FWAC. C. If City requires any revisions to the Preliminary Design, then City shall inform Artist of each revision. City may require Artist to make such revisions to the Preliminary 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. d. Artist shall have thirty calendar days from the date City informed Artist of the requested revision(s) to submit the revised Preliminary Design to Contract Manager in conformance with City's requirements. e. If City disapproves of the resubmitted Preliminary Design, any further Preliminary 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 Agreement Between the City of Fort Worth and Page 5 of 51 Trevor O'Tool for Public Art for Gateway Park will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. f Artist shall incorporate any City -approved revisions into the Final Design in conformance with City's requirements if the Artist proceeds to the Final Design phase. 2.5. Final Design and Commission Phases. If the Preliminary Design 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 attached Exhibit ` E," and Artist hereby acknowledges that this Agreement will continue pursuant to said Final Design Addendum. Likewise, if the City subsequently chooses to proceed to the Artwork Commission phase, Artist understands that Artist will be required to execute an Artwork Commission Addendum in substantially similar form as attached Exhibit "H," and Artist hereby acknowledges that this Agreement will continue pursuant to said Artwork Commission Addendum. ARTICLE 3 PRELIMINARY DESIGN COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist pursuant to this Preliminary Design Agreement shall be in an amount not to exceed TWENTY-EIGHT THOUSAND NINE HUNDRED TWO DOLLARS AND ZERO CENTS ($28,902.00), which shall constitute full compensation for any and all costs associated with this Preliminary Design Agreement, including but not limited to an Artist's Fee of $25,902.00, an engineering and consulting fee allowance of up to $2,000.00, a travel allowance of up to $1,000.00, and any and all other costs for services performed and materials furnished by Artist under this Agreement. Any changes to Artist's Preliminary Design 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. Payment 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 THOUSAND DOLLARS AND ZERO CENTS ($3,000.00) within thirty calendar days after the City issues a purchase order for this Agreement. b. FIVE THOUSAND DOLLARS AND ZERO CENTS ($5,000.00) within thirty calendar days after Artist travels to Fort Worth for a site visit and meets in -person with Project Core Team to gather input on the project. c. FIVE THOUSAND DOLLARS AND ZERO CENTS ($5,000.00) within thirty calendar days after Artist submits all Preliminary Design Deliverables required under Article 2.3 of this Agreement. Agreement Between the City of Fort Worth and Page 6 of 51 Trevor O'Tool for Public Art for Gateway Park d. SEVEN THOUSAND DOLLARS AND ZERO CENTS ($7,000.00) within thirty calendar days after Artist makes presentation of the Preliminary Design to the FWAC pursuant to Article 2.4.a. e. FIVE THOUSAND NINE HUNDRED TWO DOLLARS AND ZERO CENTS ($5,902.00) within thirty calendar days after City's approval of the Preliminary Design. f. City will provide an allowance of up to TWO THOUSAND DOLLARS AND ZERO CENTS ($2,000.00) for engineering and consulting. Such payment shall be made upon receipt of an invoice from Artist with the engineer's or consultant's original invoice for services attached (a retainer fee of up to 50% is allowed). g. City will provide a stipend of ONE THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) for travel costs to Fort Worth for up to 1 trip by Artist, provided that Project Manager has approved the travel in writing, in advance. This stipend shall cover all allowable travel expenses consistent with GSA guidelines after travel has occurred. 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 the attached Exhibit "D" for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payment 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, and 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. Agreement Between the City of Fort Worth and Page 7 of 51 Trevor O'Tool for Public Art for Gateway Park 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 party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted 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 "B"), 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 Agreement Between the City of Fort Worth and Page 8 of 51 Trevor O'Tool for Public Art for Gateway Park 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. 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 Agreement Between the City of Fort Worth and Page 9 of 51 Trevor O'Tool for Public Art for Gateway Park 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. General. a. 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 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. b. 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. C. 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." d. 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. e. 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 any third -party. 6.2 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 Agreement Between the City of Fort Worth and Page 10 of 51 Trevor O'Tool for Public Art for Gateway Park enforce 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. Preliminary Design and/or Work shall be the original product of the Artist's sole creative efforts; ii. Preliminary Design 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 Preliminary Design and/or Work, or any copyright related thereto, in such a way as 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 INDEMNIFICATION 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, Agreement Between the City of Fort Worth and Page 11 of 51 Trevor O'Tool for Public Art for Gateway Park 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 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 Pronertv. 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, 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 Agreement Between the City of Fort Worth and Page 12 of 51 Trevor O'Tool for Public Art for Gateway Park 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 Artist's fabricator, to the Contract Manager. ARTICLE 11 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation, or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, 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 or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 12.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties and approved by appropriate action of City. Agreement Between the City of Fort Worth and Page 13 of 51 Trevor O'Tool for Public Art for Gateway Park 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. Governina 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-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successors or assigns, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. Severabilitv. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, then the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 12.9. Force Maieure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any 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 parry so obligated or permitted shall be excused from doing or performing the same during such period of delay and the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 12.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel have had an opportunity to review and revise this Agreement and that the normal rule of contract construction to the effect that any Agreement Between the City of Fort Worth and Page 14 of 51 Trevor O'Tool for Public Art for Gateway Park ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.11. Fiscal Funding Out. If for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the earlier of. (i) thirty 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. Captions. 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. Countemarts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically shall be as legally binding for all purposes as an original signature. Agreement Between the City of Fort Worth and Page 15 of 51 Trevor O'Tool for Public Art for Gateway Park 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 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. Enerav Companies. If Artist is a company with ten or more full-time employees and this Agreement is for $100,000 or more, Artist acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meanings ascribed to those terms in Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276 of the Texas Government Code is applicable to this Agreement, by signing this Agreement, Artist certifies that Artist's signatureprovides written verification to the City that Artist: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 12.20. Firearms and Ammunitions Industries. If 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 meanings ascribed to those terms by Chapter 2274 of the Texas 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 Agreement Between the City of Fort Worth and Page 16 of 51 Trevor O'Tool for Public Art for Gateway Park 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 Anne Allen, Public Art Program Manager Arts Fort Worth 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Trevor O'Tool 1445 East Hampton Street Tuscon, AZ, 85719 [Remainder of page intentionally left blank.] Agreement Between the City of Fort Worth and Page 17 of 51 Trevor O'Tool for Public Art for Gateway Park IN WITNESS WHEREOF, the Parties hereto have executed this Preliminary Design Agreement as of the Effective Date. CITY OF FORT WORTH by(--)A9?1Q-----1 Jesica McEachem Assistant City Manager Date.Mar 14, 2025 RECOMMENDED BY: Mid,..i ri—L IM— i n Inns 11-as rnT) Midori Clark, Library Director Contract Compliance Manager ARTIST by: Trevor O'Tool Date: 2—/1712-02.5- 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: Anne Allen Title: Public Art Program Manager APPROVED AS TO FORM AND LEGALITY: Trey Qualls Tra�� nua Ic /Fah 1 a 9n95 14d7 rGT) Trey Qualls Assistant City Attorney ATTESTED BY Jannette S. Goodall City Secretary �,p9avnRU o0o' 0—a'�.1dd o a Ov8 0=4 c aaac��zAs4pa Form 1295: N/A Contract Authorization: N/A OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement Between the City of Fort Worth and Page 18 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit A: Approved Project Outline vrry OF FORT V!a!I FF AW: COMMISSION r-zge 1'3l s MEE71NG IDATI� AUGL6719, ZC24 AGENDA ITEM: IV.a. PROJ ECT NALME: GATEWAY BARK ACT ON ITELE 14pp,Dve Project Mtline for Garteway Park, 75C Beach Street, 76111 (Council Dutrict 11, CDrnmissianers GiddmV-droa•:s and Newburn Area MOV i iZ� rt� Zqwb _ + M lam' .. OFF"M040 + YI1i41�l4 n ► .. r r 6 }T 8 , I .r 4 r��r• ' 4. Site Mai: actai MWwing Weams and Vsllews drde Drive f *.b t irrrrd4 or Agreement Between the City of Fort Worth and Page 19 of 51 Trevor O'Tool for Public Art for Gateway Park DF FoRT wmAli ART OZ JPA IISS:QN Fz�{ _ at 4 MEETING DATE- A4GUST 19, 202A AGEN1111L TrEht Ikr.c. PROI ECT NAME-. GATEWAY PARK r5pprare Prajeact Oadine for Gaiawa•: Park. 75C Beach 5ttrcmt; 76111 [Ca+uncil Mtritt 11, ACTION Cornmissinners Gidd rvp-Braes grid Newburn j At the t-mirYus 0 Stream s end "Ikrr Circle Driver ardjaeewit to the Trirrty Riser, bWe gels end rfsc 6o r eaume B,A r-KGRQVJ4'a As pa-L cr the 24322 .91prnd Ftogr-9m the City of Fort Worth is rnekinG _ _ .. to Glte" Pwk a 79i-acre Ilan P�^c �n the s t side Located inside the 1-820 loop, north 0Ir,mer3tatt-30 and cast or Intrrlte-37r the perk is oo-der_c ay the Trinity River on the south and rn-iarys ow SM,�7 1ssitars annually, who use itS sfrrthetit turrMeM pAy norlt}a;4 socmr end disc Sort, ride Fes rrio�unteir, 3ikc tM7s�, end exerdae their dabs in thie Fart l OOT Dan Part Faibwiq a ne•,v.� adopted Gateway Perk Master Flan, Phase I o-fthene _ _ wiH moms an the OKoow g.rea ofthe Trii- ty R:s+er and will include _ y the P .l. addm6 hell lickis4 parl*% _ . . . . i c ther feo7ities, eNor6inSthe dab peek and cremir-G:m Ue4t lawn. Phase 7" _ _ ..Orr eMptctcd to b e5in in surr. mcr of zo21 and cantir4ue into Ott 20Z6. �WTE Th9 W11`11`1! rPYhf1[ art MP 60tffW43r F�Crk 09ffN?S P7wn end Xi3 Sarni °rugram). PUELUC ART SITE AND A.PIPWACH Gateway Faro was: identi6ed in thrt Fart Worth PAO An Fear 11r?,r t" 2013 Spr?d Program as err in: Docnl Wcation for p uhlic af—. Tfre ptihlit art tuMing rarthe aert Pi . _ .l %yAh Streams and Val Wp Circle aril :5 aark rr+aad thret serves as th-e cost aabewow iFft the park windng irdo the park aid _ _ _ • 3 a densely woadsd areo that is harre to pert of the aark's popular disc plf course. Locat;nS ne ertorark here would add on i mpa#ftil reatture to or. erne& Or the nark not 3 _ _ _ _ _• et this 4me. The "ntiaal wtwork K}mtion will ae _. _.I wiitlr f'A.RCr iMr Tarrant Resi iral 4m7L.-t* Oistri� and rye Amy Garps ar Enruineefs mo amid p•atentsal Mod zones amd s;eaaonal f1c-:�afls. The Perri G _ . . . . iu nports hiShly visitde and irr aaC:hul artwort in Dr near 3trebm s and Valleys circle C ive thaws re=•aects tine existin6, treesr .mountain 43ikc traits amd cirri: golf torurse. The iP raoct. ire Trent •nst far ar%aricnta Lion an the aro9azt 1xrly IS. Zlkt4,ond artk ulatbead a desire f� a loIe, h#Py visih le artwom-t that woulr= apPee: to the entire dLy and he on aaddlional draw to GatL-" Pit Crrsider+ed Fart Wi;rtWs Agreement Between the City of Fort Worth and Page 20 of 51 Trevor O'Tool for Public Art for Gateway Park RfEETING DATE PRO]ECT NAME A4!GUST 19r M24 GATEWAY PARK AGE MDA rMR& fib a. CrrY aF F0Wr X0R'TH ART WIVIMISSION F-!ge 5 of d �4pp•arv�e Project Outline for Gete,�ray Park, 750 Beach Street. 76111 j�rnuil Gs-ric, U. ACTION ITEM:C . '_:. _ Gidd i-ip-Brows arid Newhum l `Cent al Fart" so'ne comnhented the arbrork might 3e desiSned to invite ennoSe rnent trim if hzt kiihetic. The artwork shGurd not 3e about a . ' _ 3erk user pup or ethletic ect Ay end should Yneek to all Fart WDrth wizens. The naftural 3eeut f od the :loa wzs cited w a, m sihle ertwon khrtmer a& w-5s hhe Ewterin 11Fiehird, Fart W orth's official bird. -rMre was a regies# to light the !Awort at night orouided the pe n of the nark where the wrt+wDrfL w1l he lovarhed is open pant duA A RT44f Die K E U D SET The Gateway Park Punlir Art Pry iect is incudad in tine .corf Liortn Pvhilr Art Form pynnr.2024 Arinrral 4LrM RAm, adopted her the Fort %Forth pit( Couno I on Ocko 3er 17, 2023, w M ELC 23r . The Gateway Park Punbr .art Artk'ork oud6et of _ �33+4,700.00 is funded tx f the 20IS Band F?,ojremr F � ' . B. ELIGIMILM, If Due to the _. _ _ o+fthe site and scale ofthe part, srhfr T e I this pro itd:. _. ar• for on I putdart t artist who will create a unique artwork that is Fele:% rt to the Groipo Lnis perk s,eriez and which Will he prop rt.. tlr' . _ � . I kTta thee: site:. Staff WW ... _ 1 B-a artists fna'n khe:.1;qr+ PYarrn R.0rir A FtPrra-groqfa-d f si of Estate&M?d .art -tits aand a+ther gjalif ed ati;u as oppr+apriwter whose work would he a Goad fit for the 3rojec#. AR'TtS F SE. EMO N PROMSS SELECTION PAIJEL M E1IhG *1 FWFA off sha.- pier L a poo . or rxa artists for conaideretion hY the krtkI Se3ectkm Hone 1. kRti.' = wf II be min tocted Prior to[. _ a . ' . _ -.1, to .. . ' their i derest and a,rai tS3ility. The krtkt Se`ie#ion Perie:l shell review the artists' 9uaIilitefians nc, sclea 3'inaIi-t; and L alternate. FINALIST G 31EItiCTAMDM The: iiMfsts s#ha,TI ..' . -in an ' . .. for the project _ a sate 4isik, wrhRM mar 3e .. _ _ I Mirtuolh . SELECTION PANEL M EET1NrG *2 I In Person PreferFed) The Artist SeJ=tiarti Panel shell ihrrter,riew each of the 3 Ifnegsks: indi,ridua T1- a Part -nay adc fi.iestians p trfinenk to the 3rojett aniVor about their pFaftssionol _ . _ ' . ... The Panel will tlhen ... _ I :.r t e - s - erd we alternate for the 3rojett. Upon the Fort;North .irk Corn migsiaWs eppFa ral, a Prelim Marf Derior, contract Will he tAe,cutecl w th t2le sa# ed antiA MEETING FACHLITAlU i:.erne Allen, Pubic Art Project M-5noner, Arts Fork W.rtri ARTLST SE LECnON PAIN E L rpb6'hq1 I. Coincil M err. her Jror-!zk Martir4c2, Dis:tritt 11, or dcsianee 2. LoLra San&.1!2 Knk'a+de, Elected Project Cone Team Me rnber *1 3. Siharon Buse, Elected Frojert Dort Team Mernber #2 A. Dr. Jeshnrfer Giddinny Brooks, Fart 44arth Art C. 1. Philip Newt,.irn, Fort ~worth Art Comrni&oner B. Dan han, Artist 7. Lc+r:e: KinleF, L _ _ Ar& xck Agreement Between the City of Fort Worth and Page 21 of 51 Trevor O'Tool for Public Art for Gateway Park CITY OF FORT VVOqTFf AWF ODkJ1M15510.1 Page 4 of 4 MEETING DATE AUGLFSf ig, ZM4 AGENDA ITEM IV.a. PRQJ'EGT NAME: GATEWAY PARK �4pprmm Prajrct G<adine for Gatemmy Perk, 75C Bench 5treek 76M (�Jncil Mstrict 11, ACTION ITEM:Grenmiasiamm Giddand Ncwbu-"; A DVtW S r` . . j 1. Rachel Arellarra, Distritt 1-1, airertar Z. Jason Colley, Fmjevt Mwm%er, Park and Recreation r _. (PARD1, City of Fort Mcirth 3. Melissa Pcrette, AE Coin (PAFID C. .I 4. 9co d Perin, PA.RD 1. srea Hues, PerFs Adwisory &card Member, District U 2. Eundal A.rcr e, Fart WoM M ot_nkein E it ns.4., 3. Crystal and John Hagerbon, Disc DaIr 4. Ste 3htir Walsh, Streams a.9c Valleyr, a. Other Rrojec Core Team Iktem aers 6. -Dkhers, 42s may oe aP 3roprfarte PROJECT CDFIJE TEILM [List rtirhot rye-ohbarhoacVorea they represr" 1. Laura Sanchez 16nkade, Fort Worth H�;306c Morn aer or C _ .. 2. - fr2ah 8rowr, 9osemart 14 e iS h bo rh a oc: A.. .• 3. LeeAnn TLrfner, South Hernphill Heights Mei5hborhoDci A.- 4. Kern Hicks, darter Riverside K-'3 . i A .. _ •. 3. S'4aror 3use, CD li, Friends of Dathurrt Park 6. 9rer•do Sanders wise, Darden of Eden M661h rorhaad ..• .. , CD 1i 7. Eme-co Perez, "sideut, F;3rt WDM Pon Arneritarr Gott _ :. , CD 3 71MEUNE i Jhiot[ t:c ckmaifl Project Dore Te-sm D _ PrajeCt Outine Ap3rOVEd Selsrtiun Panel Meerfns491 Finalist D _ Selettfan Panel MeetfnS*Z trterviews) FMAC aoprar-al J rlyr i-E. Z 0L4 ArLtSusti9, 2024 S . . 12, 202+4 Cldx3berr, 2024 1 . . _ , 2024 Agreement Between the City of Fort Worth and Trevor O'Tool for Public Art for Gateway Park Page 22 of 51 Exhibit B: Budget Form FEES COSTS (Artist's Fee (Design, Studio Overhead, Admin) (Engineer ILighting Designer IConservator 10therConsultants SUB -TOTAL FEES ARTIST TRAVEL (Based on GSA Rates) Transportation (Airfare, Car Rental) Lodging Per Diem (Meals and incidentals) SU B-TOTAL TRAVEL (TOTAL FINAL DESIGN PHASE •• 1 MINIMUM IN • FEES COSTS ARTIST TRAVEL (Based on GSA Rates) (Artist's Fee (Design, Studio Overhead, Admin) Transportation (Airfare, Car Rental) (Engineer Lodging ILighting Designer Per Diem (Meals and incidentals) Iconservator (Photographer SUB -TOTAL TRAVEL (Other Consultants INSTALLATION (SUB -TOTAL FEES $ Transportation of Artwork to Site Installation Crew Travel IFABRICATION COSTS Permits (Materials Site Preparation I Remediation ILighting Fixtures and Connections Footings I Foundations (Artist's Labor (_ hours at $_ per hour) Electrical Connections / Modifications IFabricator / Labor by Others Installer Labor (Rentals (equipment, fabrication space) Rentals (Scaffolding, equipment, generator) IStorage Traffic Control I Security ISUB-TOTAL FABRICATION $ SUB -TOTAL FABRICATION INSURANCE COSTS IoeneralLiability (Prorated) ITOTAL COMMISSION PHASE IOtheras Applicable (Property, Auto) SUB-TOTALTRAVEL $ Attach a written quote or estimate complete with per unit costs for all items. COSTS COSTS COSTS 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 23 of 51 Trevor O'Tool for Public Art for Gateway Park 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 to include 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 24 of 51 Trevor O'Tool for Public Art for Gateway Park Artist is responsible for providing the City at least thirty days notice of cancellation or non -renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below A- VII, 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 with regard to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups must be approved by City's Risk Manager. City, 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 or of the contracting party. City shall be required to provide prior notice of at least ninety days for such changes. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto, and may make any reasonable requests for deletion or revision or 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 25 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit D: Sales Tax r.aSD,J�I Texas Sales and Use Tax Exem pti an Ce r ific ati an 7UsfaoM-3P down reqi&a anam, erM M v&AV. rb f -A �Ml 1TQ ¢rcr Cry of FortWCMIl, Texas M&& rsrr! i cur%!w 1' �; nu w rm%,r =7M Iticrt }fw:�d4��C n. � 100 FOrt Vfarttl Tra11 I 817-92-a5@0 tb sdr.�r x� Furl warbk Texas 7V 02 I, the pu 1,-hwar naned aWve, dalrn an exernplon fmm paymEA or sates and use t m ea I.ror the purchase of taxable Items Mwgrded below or on the attarJled Order ar Irradce} horn: veld AN Vendors 3trrel aodt}s: elty, 3tafr. ZIP rxdr: 0escrlplim of Items b be pu &orsed or on"aflartrtd orderar nv:. ce: 811 l e rre. Purchaser &cknowledgae that this cerMeate cannot he Deed For the pu rchaee. lease, or rental of 3 motor vehicle. Purd-laser dalms thh exemotlon for the tbIDMng rt3s09: Mau nlclpalltyr. Gowmm-mt F1lttfyf I lrryrrstand that I yll be Imbe ror parimerk ce all sztc wid local sales or- use tames Mich max become due iorfalure to oor-ply alth C-1e pmYIslonsofthe TaorC*.de and., r al applkahle fair. J mfemtm-ed rharfrfs a crAnrml orre ese fD Wm a34!D! Rtraa reMk2re2a rhese.tierfo,rfax2ale gems rhatJ " of the Mm a?Furce?ase. mM brtlsrdh a Imr, aeraf.'+er05,r rharexpresmifJn 23As crnYDcaft`1 anddeper4hg on Me amounro?mx ru,zdEd, Me offense a ay range fiom a CSrss C ftVderJ[reanPr 20 a fenny c?+- a Pnrmd degree. Iv1�f l� urr nq� O um.�t.rl Chlef FMa•Iclal 01TIcer Of13r2D2 4 HOTS. This cereflmlle: canna be Issued for the purchase, lease. or rental ar o motcwvehtk. rM GERMrATE ODES HOT f2EQtfFbE A AILMISER TO 9E V L 12 Sales and Ure Tax Fsernpdan Numbers' or 'To[ EympC Numbers do nol exlsL This cedaflrate v-F:.0 o be fumisrrtd to the suppller. Dc not sexy the completed cellfcate to the Gorr ler ar Puhlk huou ft. Agreement Between the City of Fort Worth and Page 26 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit E: Final Design Addendum WHEREAS, on [DATE], the City and Artist entered into City Secretary Contract No. , to develop a Preliminary Design for Public Art for the Site; and WHEREAS, on [DATE], the FWAC approved Artist's Preliminary Design and recommended that the Artist be placed under contract to develop a Final Design based on the Preliminary Design for public artwork to be incorporated into the Site; and WHEREAS, City and Artist wish to set out the terms and conditions under which said 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 Preliminary Design, 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 Preliminary Design 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. 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. Agreement Between the City of Fort Worth and Page 27 of 51 Trevor O'Tool for Public Art for Gateway Park 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 Final 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. ON 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]; 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 Agreement Between the City of Fort Worth and Page 28 of 51 Trevor O'Tool for Public Art for Gateway Park 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 ($XXXXXR 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 a 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 for staff review at least three weeks prior to the scheduled Final Design presentation to the FWAC. 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, Project Core Team, Project Stakeholders, City staff, and other community members for the FWAC's approval at a regularly scheduled FWAC meeting. If the Final Agreement Between the City of Fort Worth and Page 29 of 51 Trevor O'Tool for Public Art for Gateway Park 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. f. 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 Preliminary Design Agreement, which is the foundation for this Final Design Addendum. ARTICLE 16 FINAL DESIGN COMPENSATION AND PAYMENT SCHEDULE 16.1. Compensation. Total compensation to Artist under this Final Design Addendum shall be in an amount not to exceed [SPELL OUT DOLLAR AMOUNT ($XXXXX)I. 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 Agreement Between the City of Fort Worth and Page 30 of 51 Trevor O'Tool for Public Art for Gateway Park 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 $XXXXX)] within thirty calendar days after Artist submits the Final Design Deliverables as required under Article 15.4 of this Addendum. C. [SPELL OUT DOLLAR AMOUNT ($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 ($XXXYX)l within thirty calendar days after City's approval of the Final Design. e. City will provide an allowance of up to [SPELL OUT DOLLAR AMOUNT ($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 shall cover all allowable travel expenses consistent with GSA guidelines 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. 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, costs of all travel (that are not covered by a travel Agreement Between the City of Fort Worth and Page 31 of 51 Trevor O'Tool for Public Art for Gateway Park 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 owed under this Addendum or any subsequent Commission Addendum (if applicable). 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 and any subsequent Commission Addendum (if applicable). Agreement Between the City of Fort Worth and Page 32 of 51 Trevor O'Tool for Public Art for Gateway Park IN WITNESS WHEREOF, the Parties hereto have executed this Final Design Addendum as of the Effective Date stated in Article 14. CITY OF FORT WORTH ARTIST by: Jesica McEachern Trevor O'Tool Assistant City Manager Date: Date: RECOMMENDED BY: Midori Clark, Library Director 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: Anne Allen 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: Agreement Between the City of Fort Worth and Page 33 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit F: Approved Preliminary Design [Insert here in its entirety] Agreement Between the City of Fort Worth and Page 34 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit G: Budget Form (Commission Phase) (FEES (Artist's Fee (Design, Studio Overhead, Admin) Engineer Lighting Designer (Conservator (Other Consultants ISUB-TOTAL FEES $ COSTS JARTIST TRAVEL (Based on GSA Rates) (Transportation (Airfare, Car Rental) (Lodging I IPer Diem (Meals and incidentals) I I I ISUB-TOTAL TRAVEL TOTAL FINAL DESIGN PHASE COSTS FEES COSTS ARTIST TRAVEL (Based on GSA Rates) COSTS (Artist's Fee (Design, Studio Overhead, Admin) ITransportation (Airfare, Car Rental) IEngineer ILodging I Lighting Designer IPer Diem (Meals and incidentals) (Conservator I I Photographer ISUB-TOTAL TRAVEL $ IOther Consultants I I INSTALLATION COSTS ISUB-TOTAL FEES $ ITransportation of Artworkto Site Ilnstallation Crew Travel IFABRICATION COSTS IPermits I Materials (Site Preparation I Remediation I Lighting Fixtures and Connections IFootings I Foundations (Artist's Labor (_ hours at $_ per hour) (Electrical Connections I Modifications IFabricator / Labor by Others I Installer Labor IRentals (equipment, fabrication space) IRentals (Scaffolding, equipment, generator) IStorage ITraffic Controt I ISecurity ISUB-TOTAL FABRICATION $ ISUB-TOTAL FABRICATION $ I INSURANCE COSTS IGeneral Liability (Prorated) COMMISSION PHASE $ - (Other as Applicable (Property, Auto) I ICITY HELD CONTINGENCY $ ISUB-TOTAL TRAVEL $ ITOTAL COMMISSION + CONTINGENCY $ li Attach a written quote or estimate complete with per unit costs for all items. City held contingenyfunds are only 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 35 of 51 Trevor O'Tool for Public Art for Gateway Park 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 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 Artwork 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 " ,"was reviewed and approved by the FWAC on [DATE], and is the basis for executing this Artwork 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. 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. Agreement Between the City of Fort Worth and Page 36 of 51 Trevor O'Tool for Public Art for Gateway Park 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 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 Agreement Between the City of Fort Worth and Page 37 of 51 Trevor O'Tool for Public Art for Gateway Park 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, 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 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. 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. Agreement Between the City of Fort Worth and Page 38 of 51 Trevor O'Tool for Public Art for Gateway Park 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. h. If, at the request of Contract Manager, Artist consulted with a qualified art conservator to provide written maintenance requirements for the Work (see Section 20.2(f)), Artist shall attach said recommendation to the Technical and Maintenance Records attached hereto as Exhibit "J," which is to be completed by Artist and provided to Contract Manager. 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 "Y' 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 Agreement Between the City of Fort Worth and Page 39 of 51 Trevor O'Tool for Public Art for Gateway Park this Article 20.7, unless City, upon receipt of such notice and prior to the expiration of the thirty -five- 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 Agreement Between the City of Fort Worth and Page 40 of 51 Trevor O'Tool for Public Art for Gateway Park unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants 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 conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. g. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. h. The foregoing warranties are conditional and 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.orQ) 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 41 of 51 Trevor O'Tool for Public Art for Gateway Park 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 Agreement Between the City of Fort Worth and Page 42 of 51 Trevor O'Tool for Public Art for Gateway Park services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, fabrication, transportation, installation, remaining Artist's Fee of $XXXXXX , insurance, incidental costs, a City -held contingency of [$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. e. [SPELL OUT DOLLAR AMOUNT ($XXXXX)l within thirty-five calendar days after Final Acceptance and receipt by City of such documentation as it may require concerning payment of services and supplies rendered to Artist (see Commission Addendum Article 20.7.a); provided, however, that final delivery shall not be tendered prior to the expiration of thirty calendar days after Final Acceptance. f. A City -held contingency of up to [SPELL OUT DOLLAR AMOUNT ($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. Agreement Between the City of Fort Worth and Page 43 of 51 Trevor O'Tool for Public Art for Gateway Park 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 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 44 of 51 Trevor O'Tool for Public Art for Gateway Park IN WITNESS WHEREOF, the Parties hereto have executed this Artwork Commission Addendum as of the Effective Date stated in Article 19. CITY OF FORT WORTH ARTIST by: Jesica McEachern Trevor O'Tool Assistant City Manager Date: Date: 1704[f 111a03 Midori Clark, Library Director 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: Anne Allen 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 # Agreement Between the City of Fort Worth and Page 45 of 51 Trevor O'Tool for Public Art for Gateway Park Exhibit I: Approved Final Design Agreement Between the City of Fort Worth and Page 46 of 51 Trevor O'Tool for Public Art for Gateway Park 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 47 of 51 Trevor O'Tool for Public Art for Gateway Park 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 48 of 51 Trevor O'Tool for Public Art for Gateway Park 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 availablejist 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 49 of 51 Trevor O'Tool for Public Art for Gateway Park 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 50 of 51 Trevor O'Tool for Public Art for Gateway Park AFFIDAVIT OF BILLS PAID Date: Affiant: Project: 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 Project. 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 , 20_. Notary Public, State of Texas Print Name Commission Expires Agreement Between the City of Fort Worth and Page 51 of 51 Trevor O'Tool for Public Art for Gateway Park