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HomeMy WebLinkAboutContract 63020CSC No. 63020 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BALL-NOGUES DESIGN STUDIO, LLC FOR COMMISSION OF PUBLIC ART FOR RIVERSIDE PARK This Agreement is entered into by and between the City of Fort Worth ("City"), a home -rule municipal corporation of the State of Texas, acting by and through Dana Burghdoff, its duly authorized Assistant City Manager, and Ball-Nogues Design Studio, LLC ("Artist"), a limited liability company located at 3533 East Olympic Boulevard, Los Angeles, California 90023, acting by and through Benjamin Ball, its Manager. 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, City has completed construction of Phase 1 of Riverside Park, located at 501 Oakhurst Scenic Drive, 76111 (Council District 7); and WHEREAS, this Project was included in the Public Art Plan for the 2018 Bond Program, adopted by the Fort Worth City Council on November 6, 2018 (M&C G-19401), and was also included in the Fort Worth Public Art Fiscal Year 2024 Annual Work Plan, adopted by the Fort Worth City Council on October 17, 2023 (M&C 23-0844); and WHEREAS, on July 12, 2022, the City entered into a contract with Artist to develop a Preliminary Design and Final Design of public art for the Site (City Secretary Contract No. 57857); and WHEREAS, on July 17, 2023, the Fort Worth Art Commission ("FWAC") approved Artist's Final Design, and on August 23, 2023, the Park and Recreation Advisory Board endorsed the location for the artwork; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be fabricated, delivered, and installed at the Site; NOW, THEREFORE, City and Artist, for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of 34 ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Artist for Commission of Public Artwork for the Site. 1.2. Artist — Means and includes Ball-Nogues Design Studio, LLC. 1.3. Artwork Design — Means the final, City -approved design of the Work for the Site created in connection with Fort Worth City Secretary Contract No. 57857 and includes, but is not limited to, all final City -approved maquettes, drawings, sketches, prototypes, models, and the like that were created by Artist. The design and description are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc. d/b/a Arts Fort Worth. 1.5. City — Means and includes the City of Fort Worth, Texas. 1.6. Effective Date — Means and includes the date this Agreement is executed by the City. 1.7. Final Acceptance — Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.8. Parties — Means and includes City and Artist. 1.9. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. Project Core Team — Means and includes the group of community members, generally 5-7 individuals, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update. 1.11. 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. 1.12. Schedule — Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports. 1.13. Site — Means Riverside Park, located at 501 Oakhurst Scenic Drive, 76111, identified in the Project Outline. The specific site within the park included is attached hereto as Exhibit `B." 1.14. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works, which specifically includes the Artwork Design. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 2 of 34 ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Final Design was reviewed and approved by the FWAC on July 17, 2023, and placement of the artwork in Riverside Park was endorsed by the Fort Worth Park and Recreation Advisory Board on August 23, 2023, which are the bases for executing this Agreement with Artist. 2.2. 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. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. C. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. d. Artist shall coordinate with City staff, contractors, and others, as necessary, to ensure proper installation and integration of the Work into the Site, as applicable, including, but not limited to, artwork location and installation equipment brought onto the Site. e. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. f. Artist shall install the work on dates and times mutually agreed upon by Artist and City. g. Artist shall allow video recording and photography of her participation during activities related to this project such as presentations and meetings. h. If Artist intends to seek its own publicity for the Work, including publication of the artwork design on Artist's website, social media, or press/media release(s), all such publicity must be approved, in advance, by Contract Manager, and shall credit the City of Fort Worth in substantially the following form, "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." A social media plan must be approved, in advance, by Contract Manager, and shall include the hashtag "#fwpublicart." 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 3 of 34 2.4. Execution of Work. a. Artist shall furnish the Schedule to the Contract Manager within fifteen business days after the Effective Date. After written approval of the Schedule by City, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4 within thirty calendar days after receipt of the written request. C. Artist shall complete the fabrication of the Work in accordance with the Artwork Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Design, then the Contract Manager shall, in light of the Artwork Design, determine whether a significant change requires City approval. If the Contract Manager determines that the significant change requires City approval, then the change(s) may be presented to the FWAC for review and approval at an FWAC scheduled meeting. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 2.5. Delivery and Installation. a. Artist shall notify City, through Contract Manager, in writing when fabrication of the templates for the Work is completed and is ready for its delivery and installation at the Site. b. Artist shall be responsible for obtaining and paying for all necessary permits and any required traffic barriers appropriate for this Project. C. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. d. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work, including, but not limited to, equipment rentals, transportation, and labor. e. 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 Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 4 of 34 limited to finishes, painted structures, pathways, and landscaping, while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at his/her own expense, shall have up to thirty days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty days after receipt of the notice, or within 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. £ Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. 2.6. Post -installation. a. Within thirty days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least fifteen high -resolution digital images (.tiff format) and fifteen low -resolution digital images (.jpeg format) showing each element of the Work, including detail shots, with at least ten of these images showing the Work installed, as selected by Contract Manager, to document the Work after the Work is installed. Images should include daytime and nighttime views. b. Artist shall make its 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 between City and Artist as soon as practicable following installation. C. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work, such efforts and/or press releases must be approved, in advance, by Contract Manager. 2.7. Final Acceptance. a. Artist shall notify Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 5 of 34 certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist in writing of its Final Acceptance of the Work. C. Final Acceptance shall be effective as of the earlier to occur of: (1) the date of City's notification of Final Acceptance; or (2) the 35th day after Artist has sent the written notice to City required under this Section 2.7, unless City, upon receipt of such notice and prior to the expiration of the 35-day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.8. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to completed artwork installation, and Artist shall take such measures as are necessary to protect the Work from loss or damage until this time, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to completed artwork installation during such periods of time as the partially or wholly completed Work is in the custody, control, or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount not to exceed TWO HUNDRED FORTY-SIX THOUSAND THIRTY-SEVEN DOLLARS AND ZERO CENTS ($247,612.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, any costs associated with fabrication, transportation, installation, remaining Artist's fee of $21,022.00, insurance, incidental costs, a City -held contingency of $10,000.00, and any other costs associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2. Pavment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. SEVENTY FIVE THOUSAND DOLLARS AND ZERO CENTS ($75.000.00) upon execution of this Agreement to enable Artist to purchase materials and begin fabrication. b. FOURTY-EIGHT THOUSAND DOLLARS AND ZERO CENTS ($48,000.00) upon Contract Manager's approval of fabrication of installation templates. C. FIFTY-TWO THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($52,500.00) upon Contract Manager's verification that the Work is 50% installed. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 6 of 34 d. FIFTY-TWO THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($52,500.00) upon Contract Manager's verification that the Work is 100% installed. e. NINE THOUSAND SIX HUNDRED TWELVE DOLLARS AND ZERO CENTS ($9.612.00) within thirty-five days after Final Acceptance and receipt by City of such documentation as it may require concerning payment of services and supplies rendered to Artist (see Article 2); provided, however, that final delivery shall not be tendered prior to the expiration of thirty days after Final Acceptance. f. A City -held contingency of up to TEN THOUSAND DOLLARS AND ZERO CENTS ($10.000.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes such as in materials, fabrication, or installation costs. Such payment will be made upon (i) receipt of supporting documentation by the Contract Manager from the Artist, and (ii) approval by the Contract Manager of the additional costs. Any unused contingency funds shall remain with the City. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit " E," for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TIME OF PERFORMANCE 4.1. Term. This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Duration. The services to be required of Artist set forth in Article 2 shall be completed in accordance with the Schedule; provided, however, that such time limits may be extended or otherwise modified by written agreement between Artist and City. 4.3. Early Completion of Artist Services. Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedule for delivery. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 7 of 34 4.4. Time Extensions: Force Maieure. City and Artist will exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but will not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action or inaction; orders of government; material or labor restrictions by any governmental authority; transportation problems; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any States; civil disturbances; other national or regional emergencies; or any other similar cause not enumerated herein but which is beyond the reasonable control of the Party whose performance is affected (collectively, "Force Majeure Event"). The performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected Party provides notice of the Force Majeure Event and an explanation as to how it prevents or hinders the Party's performance as soon as reasonably possible after the occurrence of the Force Maj eure Event, with the reasonableness of such notice to be determined by the City in its sole discretion. The notice required by this section must be addressed and delivered in accordance with this Agreement. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and CODvri2ht. a. Artist represents and warrants that: i. Artwork Design and Work shall be the original product of Artist's sole creative efforts; ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person or entity; iii. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; iv. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; V. Artwork Design and Work are free and clear of any liens from any source whatsoever; vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vii. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 8 of 34 5.2. Warranties of Oualitv 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 one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. C. If within one year after Final Acceptance City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty days after receipt of the written notice, at no expense to City. d. If within one year after Final Acceptance City observes any breach of warranty described in this Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that risk, it shall not be deemed a breach for purposes of this Article 5.2. e. If after one year from Final Acceptance City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee. Artist shall notify City, in writing, within thirty days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day deadline, or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of DisDlay. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display; ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor, repairable damages and will not cause the Work to fall below an acceptable standard of public display; and iii. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 9 of 34 that cause the Work to fall outside of 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. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. ARTICLE 6 INSURANCE AND INDEMNITY 6.1. General. Artist shall carry insurance as set out in Exhibit " F," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Section 2.8, the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 10 of 34 OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS OR CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 6.4. Intellectual Prouertv. Artist agrees to assume full responsibility for complying with all state and federal copyright laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing, and all such licensing shall be the exclusive obligation of Artist. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and/or Work shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and drawings will be retained for archival and exhibition purposes. Artist's Artwork Design and Work and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 11 of 34 7.2. CODvri2ht Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty -free, and irrevocable license to graphically depict and publicly display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Designs or the Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell, or transfer, in whole or in part, the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. C. All reproductions by City shall contain a credit to Artist and a copyright notice in substantially the following form: "© date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 12 of 34 ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwnublicart.ore) and facilitate the design, purchase, and installation of a permanent plaque at the site. 8.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 2.5 and Exhibit "C." 8.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. C. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City as appropriate and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site. a. City agrees that it will not willfully destroy, damage, or modify the Work, except as provided in Article 8.4(b) and 8.4(c) below. b. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is integrated into a building, structure, or realty, City shall have the right to remove the Work by any means, including destruction. City may give Artist written notice of its intent to take such action under this Article 8.4. C. In the event that the City determines the Site will be altered, sold, or no longer used by City and the Work is freestanding or incorporated into a building, structure, or realty such that it may be removed without damaging or destroying the Work or the building or structure, City at its sole discretion may relocate, sell, or store the Work. If City chooses not to relocate, sell, or store the Work, Artist may be given written notice and no more than ninety days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this Article 8.4. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 13 of 34 e. City shall at all times have the right to move the Work or remove it from public display. City shall also have the right to sell or trade the Work. 8.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law which may now or in the future be applicable. ARTICLE 9 ARTIST AS AN INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant, or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of, the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist or its officers, agents, employees and subcontractors, and the doctrine of respondeat superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 11 TERMINATION 11.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 14 of 34 of any determinations with respect to the performance of this Agreement. In the event this Agreement is canceled by the City pursuant to this Article 11.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 11.2. Death or Incapacity of Artist. a. In the event of Artist's death or of Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, shall become property of City. b. In the event of termination under this Article 11.2, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This Article 11.2 shall survive the termination or expiration of this Agreement. 11.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted at least thirty calendar days before termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination in accordance with the payment schedule in Section 3.2 of this Agreement as determined in City's sole discretion, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, and the Work up to the effective date of termination. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination, as determined in City's sole discretion. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, and the Work up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties, then City shall pay Artist per the payment schedule in Section 3.2 as determined in City's sole discretion up through the date of termination. City Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 15 of 34 shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination. 11.4. Termination for Cause. a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this Article 11.4 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) title to the Artwork Design, Work, and all other work product under this Agreement and any prior agreement for the Work, including, but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property) and 8 (Artist's Rights) of this Agreement; (3) Artist automatically sells, assigns, and transfers to City the entire right, title, and interest in and to the Artwork Design, Work, and all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public, and display said Artwork Design and Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 16 of 34 (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, or any other work product under this Agreement and any prior agreement for the Work; and (5) Artist, pursuant to this Article 11.4, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code (as amended or as it may be amended in the future), titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of Artist's own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 11.4 shall affect the survival of the Articles outlined in Article 14.16 of this Agreement, which shall remain in full force and effect following termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If 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 parry's specific reasons for such dispute. Within ten business days of receipt of the notice, both parties shall make a good faith effort, whether through email, mail, phone conference, in person meetings, or other reasonable means, to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty calendar days of the date of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen or more than forty-five calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 17 of 34 ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, pay or other forms of compensation, and selection for training, including, but not limited to, apprenticeship. Artist agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed by or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. C. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended, in whole or in part, and Artist may be debarred from further agreements with the City. ARTICLE 14 MISCELLANEOUS 14.1. Compliance. Artist shall comply with all federal, state, and City statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 14.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 14.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 18 of 34 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 14.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 14.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 14.7. No Third-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.8. Severabilitv. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 14.9. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 14.10. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the earlier of. (i) thirty days following delivery by City to Artist of written notice of City's intention to terminate, or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 19 of 34 14.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 14.13. Surviving Covenants. Except as otherwise provided herein, the covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 14.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Artwork Design or Work (collectively "Records") at any time during the Term of this Agreement and for three years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three years thereafter, Artist shall make all Records available to City at 100 Fort Worth Trail, Fort Worth, Texas, or at another location in City acceptable to both parties following reasonable advance notice by City, and shall otherwise cooperate fully with City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. 14.15. Business Eauitv Goal. If applicable, Artist shall make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by City under the City's Business Diversity Enterprise Ordinance. 14.16. Survival Provision. The provisions contained in Articles 5 (Warranties), 6 (Insurance and Indemnity), 7 (Ownership and Intellectual Property Rights), 9 (Artist as an Independent Contractor), 11.2 (Death or Incapacity of Artist), and 14.14 Right to Audit shall survive the termination or expiration of this Agreement. 14.17. Counterparts and Electronic S1Lynatures. 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. 14.18. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 14.19. Israel. If Artist is a company with ten (10) 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 Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 20 of 34 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. If Chapter 2271 of the Texas Government Code is applicable under this Agreement, by signing this Agreement Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott Israel, and (2) will not boycott Israel during the term of the Agreement. 14.20. Ener2v Companies. If Artist is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Artist acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meanings ascribed to those terms by Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreemen, Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott energy companies, and (2) will not boycott energy companies during the term of this Agreement. 14.21. Firearms and Ammunitions Industries. If Artist is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Artist acknowledges that in accordance with Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity," and "firearm trade association" have the meanings ascribed to those terms by Chapter 2274 of the Texas Government Code. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this AgreementArtist certifies that Artist's signature provides written verification to the City that Artist: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. ARTICLE 15 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 21 of 34 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: Dana Burghdoff, Assistant City Manager City Manager's Office City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 Copies to: Leann Guzman, City Attorney Office of the City Attorney City of Fort Worth 100 Fort Worth Trail Fort Worth, Texas 76102 Anne Allen, Public Art Program Manager Arts Fort Worth 1300 Gendy Street Fort Worth, Texas 76107 ARTIST Benjamin Ball, Manager Ball-Nogues Design Studio, LLC 3533 East Olympic Boulevard Los Angeles, California 90023 [Remainder of page intentionally left blank.] Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 22 of 34 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH baila by.Dana Burghdoff (Mar X Jnm9 1 i to rnT) Dana Burghdoff Assistant City Manager Date: Mar 26, 2025 RECOMMENDED BY: .xfel Midori Clark (Mar 25. 2025 13:53 CDTI Midori Clark, Library Director BALL-NOGUES DESIGN STUDIO, LLC Benjamin Ball Manager Date: March 22 9n9r, 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. D4�� Name: Alida Labbe Title: Public Art Project and Capital Budget Manager APPROVED AS TO FORM AND LEGALITY: Trey QSlls (Mar 25, 2025 09:33 CDT) Trey Qualls Assistant City Attorney 4F FOR* k ATTESTED BY: o,000 �d pro A `- °ado Pv8 =d �pPaYi�a I � % ''�9sr�4 a°°ar�xoa5a4 Jannette S. Goodall City Secretary Contract Authorization: Form 1295:2024-1240022 M&C: 25-0131 DATE: 2/25/2025 OFFICIAL RECORD CITY SECRETARY Agreement for Commission of Public Artwork with FT. WORTH, TX Ball-Nogues Design Studio, LLC for Riverside Park 23 of 34 Exhibit A: Artwork Design Narrative Description Riverside Park is a heritage site that honors the history of agriculture that once thrived in the Fort Worth region. The grove of pecan trees spread throughout the site is believed to be a remnant from an early farm dating to the time of the City's founding. This project honors this heritage with a grand -scaled artwork visible throughout the entire park and to drivers on Oakhurst Scenic Drive. The artwork acknowledges the trees by making an abstract representation of their root systems. Depicted on the surface of the path that traverses the park, the artwork is a kind of imaginary X-ray through the ground, showing the intricate pattern of roots beneath it. The title, The Secret Language of Trees alludes to the scientific theory of mycorrhizal networks. In this theory tiny "threads" of fungal organisms wrap around tree roots, which connects individual plants together to transfer water, nitrogen, carbon, and other minerals. Our aim is to call attention to this system. The artwork takes the form of a graphical interpretation of the root systems of individual tress on the site. Where roots fan out below the existing concrete path, a multi -hued radial pattern, suggestive of roots, will be applied by our team. The patterns of "roots" radiate from the existing pecan trees on the site with each serving as a center point for a composition that encompasses the entire park. Approximately 10,000 square feet of area will be covered with RoadColor, an epoxy modified acrylic coating designed to be applied onto both asphalt and concrete. RoadColor coatings are repairable and super durable, handling as many as 10,000 vehicles per day over a several -year period. RoadColor offers unlimited color selections that are UV stable. The scale of the project inspired us to executed it in a systematic fashion. Using a method akin to the sets of guidelines or simple diagrams Sol Lewitt devised for his two-dimensional works drawn directly on walls, we will use the trees themselves as center points for a colossal drawing that spans the entire site. Our team will operate a compass that uses the trees as center points. The compass connects to a template that will enable us to precisely draw the systems of "roots" onto the path. Final Design Rendering of The Secret Language of Trees showing aerial view of artwork on site Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 24 of 34 Final Design Rendering of The Secret Language of Trees showing perspective views -AA Final Design Rendering of The Secret Language of Trees showing color palette Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 25 of 34 Exhibit B: Site 4 Fort Worth Stockyards Station a on� Joe T. Garcia's i2 .R NW21stSt EI f377' Rancho Supermercadc• Pia- .1.hs ENIC BLUFF s" Pa`k .. �e��cr4T }�+,��_,_� — To''=of Town Talk Foods ��E ✓ St N� Nolal HII y E Target9 ;1 -1, �1. GatewayAarE� r Fort Worth `� , 51 o W hh 91 4Kimbell Art Museum r c Fort WotFl Wale -. Vf.Lancaster Ave-- - a I Tapdy Hills Natural rea Stra1 Oid .. �Nature Fort.Wortii _ ,,� Botahic.Garden -- � i \\�Y Arca 8�a q MEAE ba �11 Cook Children's 'aMedical Center N i i EHattie SE i2877\l II EYickery.BW .% N. j. b31fa d St Q \ II I, — +a ofiId St • T River aerrm V14IN C7uanajU2 I�E nis Emlx¢}'tal PDQ Staffing Jail Park ,I GREENWAY ,1 . i � lJccrs kvg Sou I4ern Tire MarT �. Chas y, Southwest lrtierd'Atilo Taco cas port Worth r �. ,. - l =+ A-EZ Out Bail Bonds For! Worth Penske Truck Reraul h 1/ 1- i i L 1 I'h • i. ' .(� • i i ��f}� G r n Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 26 of 34 Exhibit C: 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): Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 27 of 34 Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method: Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 28 of 34 Casting Alloy, Wax Body, Glass or Fiber Type: Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV, graffiti, etc. Please list vendors and contact information and provide all product information): Pedestals, Foundations & Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 29 of 34 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 30 of 34 AFFIDAVIT OF BILLS PAID Date: Affiant: Project: Exhibit D: Affidavit Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the 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: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Day of , 20_. Notary Public, State of Texas Print Name Commission Expires Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 31 of 34 Exhibit E: Sales Tax Exemption �{ELT. 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Do=wrid tha aamphrtmd r:adifJcadisIm Camph-allorofParWaAnaourdzL Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 32 of 34 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property "in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined to include autos owned, hired, and non -owned. For Artist and/or Artist's subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its officers, employees, and volunteers as an "Additional Insured" on all liability policies. *Exception: the "additional insured" requirement does not apply to Workers' Compensation or Automobile policies. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 33 of 34 Artist is responsible for providing the City at least thirty days' notice of cancellation or non -renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an "occurrence basis." The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review these insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision, 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. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto, and to may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions, except where policy provisions are established by law or regulations binding upon either party or the underwriter on any such policies. Agreement for Commission of Public Artwork with Ball-Nogues Design Studio, LLC for Riverside Park 34 of 34 City of Fort Worth, Texas Mayor and Council Communication DATE: 02/25/25 M&C FILE NUMBER: M&C 25-0131 LOG NAME: 84RIVERSIDE PARK PUBLIC ART PROJECT SUBJECT (CD 11) Authorize Execution of an Artwork Commission Contract with Ball-Nogues Design Studio LLC in an Amount Up to $247,612.00 for Fabrication, Delivery, Installation, and Contingencies for Artwork at Riverside Park, Located at 501 Oakhurst Scenic Drive, Fort Worth, Texas 76111 RECOMMENDATION: It is recommended that City Council authorize the execution of an Artwork Commission Contract with Ball-Nogues Design Studio LLC in an amount up to $247,612.00 for fabrication, delivery, installation, and contingencies for artwork at Riverside Park, located at 501 Oakhurst Scenic Drive, Fort Worth, Texas 76111. DISCUSSION: The Riverside Park Public Art Project Core Team expressed interest in a large, impactful artwork or series of artworks with a thematic approach that might speak to the natural environment and would engage visitors and park users. Riverside Park is a heritage site that honors the history of agriculture that once thrived in the Fort Worth region. The grove of pecan trees spread throughout the site is believed to be a remnant from an early farm dating near the time of the City's founding. This project honors this heritage with a grand -scaled artwork visible throughout the entire park and to drivers on Oakhurst Scenic Drive. The artwork acknowledges the trees by making an abstract representation of their root systems visible to park visitors through a multi -hued radial pattern depicted on the surface of the path that traverses the park. The artists' aim is to call upon the cultural and natural histories of the Trinity River site, however, the artwork will also delight the eyes with color and patterns that can be appreciated by all people regardless of their historical knowledge. Fort Worth Art Commission (FWAC) Action: On July 17, 2023, the Fort Worth Art Commission approved the Final Design and recommended Ball-Nogues be placed under an artwork commission contract. The approved design was endorsed by the Park and Recreation Advisory Board on August 23, 2022. Funding for the Riverside Park Public Art project was approved as part of the Public Art Plan for the 2014 Bond Program, adopted by the Fort Worth City Council on October 21, 2014 as Mayor and Council Communication (M&C) G-18339, and 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. The project was included in the Fort Worth Public Art Fiscal Year 2025 Annual Work Plan, adopted by the Fort Worth City Council November 12, 2024, as M&C 24-1001. The artist shall require their subcontractors to pull all permits required for this project, however, the City shall waive any fees for these permits as this project is funded by City Bond funds. Estimated annual maintenance for the artwork is anticipated to be a total of $1,000.00. PROJECT BUDGET AMOUNT CONTRACT Public Art Project $36,750.00 CSC #62494 Management Allocation Preliminary and Final Design $40,638.00 CSC #57857 Commission and $247,612.00 This M&C Contingencies TOTAL $325,000.00 FUNDING SOURCES AMOUNT 2014 Bond Program, Proposition 1 2018 Bond Program, Proposition B TOTAL $80,000.00 $245,000.00 $325,000.00 Funding is budgeted in the 2014 Bond Program Fund and the 2018 Bond Program Fund for the purpose of funding the FWPA Riverside Park and FWPA-Six Points UV, Phase 2 projects, as appropriated. BUSINESS EQUITY DIVISION — The Business Equity Division waived the Business Equity Goal requirement. The Arts Council of Fort Worth and Tarrant County, Inc., D/B/A Arts Fort Worth have agreed to comply with all city contracting and procurement ordinances. Arts Fort Worth will work with the appropriate city departments to provide availability and utilization reporting analysis per city ordinance requirements biannually in March and September for each fiscal year. Council Member Jeanette Martinez concurs with the FWAC's recommendation for Ball-Nogues to fabricate, deliver, and install artwork at Riverside Park. These projects are located in COUNCIL DISTRICT 11. FISCAL INFORMATION / CERTIFICATION: The Director of Finance certifies that funds are available in the current capital budget, as previously appropriated, in the 2014 Bond Program Fund and the 2018 Bond Program Fund for the FWPA Riverside Park and FWPA-Six Points UV, Phase 2 projects to support the approval of the above recommendation and execution of the commission contract. Prior to any expenditure being incurred, the Library Department has the responsibility to validate the availability of funds. Submitted for Citv Manaaer's Office bv: Jesica McEachern 5804 Oriainatina Business Unit Head: Midori Clark 7707 Additional Information Contact: Anne Allen 817-298-0328