HomeMy WebLinkAboutContract 63635CSC No. 63635
AGREEMENT BETWEEN THE CITY OF FORT WORTH; ETTY ISH-HOROWITZ; AND DSGN
ASSOCIATES, INC. FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE STATE
HIGHWAY 121 PUBLIC ART AND LANDSCAPING PROJECT
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;
Etty Ish-Horowitz ("Artist"), an individual of 4318 Gilbert Avenue, Dallas, Texas, 75219; and DSGN Associates,
Inc. ("Design Consultant"), a corporation of 115 West Greenbrier, Dallas, Texas, 75208. 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 the City's behalf. The Contract Manager shall act through its designated Public Art project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the
Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to
commemorate the City's rich cultural and ethnic diversity, to integrate the design work of Artists into the
development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the
City through the artistic design of public spaces;
WHEREAS, 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;
WHEREAS, on July 25, 2019, the design team of Artist Etty Ish-Horowitz and Landscape Architect Kevin
Sloan Studio were placed under a Final Design Agreement (City Secretary Contract No. 52588-A1) to develop a
Final Design and Construction Documents for the State Highway 121 Public Art and Landscaping Project
("Project");
WHEREAS, City advertised the Project for bidding by qualified TxDOT contractors, opened the bids on
August 22, 2024, and on November 18, 2024, received concurrence from TxDOT to award the contract to the lowest
qualified bidder;
WHEREAS, DSGN Associates, Inc., an architectural ad landscape architectural firm, has acquired the
assets of Kevin Sloan Studio and shall serve as the Design Consultant going forward; and
WHEREAS, City desires Artist and Design Consultant to assist City by providing construction management
services during the implementation phase.
NOW, THEREFORE, City, Artist, and Design Consultant, for and in consideration of the covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
1.1 Agreement — Means and includes this Agreement between the City, Artist, and Design Consultant
for construction management services for Project.
1.2 Artist — Means and includes Etty Ish-Horowitz. OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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1.3 Bid Phase — Means and includes specific tasks as required by City that support the bid phase of the
project, including but not limited to creating Unit Price Proposal Documents and uploading Plan Sets to
the City's document management system.
1.4 City — Means and includes the City of Fort Worth, Texas.
1.5 Construction Phase — Means and includes specific tasks as required by City that support the
construction phase of the project, including but not limited to attending bi-weekly construction progress
meetings and reviewing shop drawings, samples, and other submittals submitted by the contractor for general
conformance with the design concepts.
1.6 Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.
d/b/a Arts Fort Worth and its officers, directors, or employees.
1.7 Deliverables — Means and includes those items set forth in Articles 2.1 and 2.2 of this Agreement
that are required to assist City during implementation.
1.8 Design Consultant — Means and includes DSGN Associates, Inc.
1.9 Effective Date — Means and includes the date this Agreement is executed by the City.
1.10 Parties — Means and includes City, Artist, and Design Consultant.
1.11 Project — Means and includes the capital improvements/public art development undertaking of City,
known as the State Highway 121 Public Art and Landscaping Project, for which construction management
services are to be provided pursuant to this Agreement.
1.12 Site — Means and includes the TxDOT-approved and State of Texas -owned property in the right- of -way
median on the north side of State Highway 121 (west of Maxine Street and east of Beach Street), approved on
February 14, 2017, by TxDOT's North Area Office.
1.13 Work — Means and includes the construction management services that are the subject of this
Agreement, to include any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1 Design Consultant Scone of Services.
Under this Agreement, Design Consultant and/or their subcontractor(s) shall provide the following services:
a. Perform all services and furnish all supplies, materials, and equipment as necessary for providing Bid Phase
and Construction Phase services during project implementation as outline herein. Services shall be
performed in a professional manner and in strict compliance with all terms and conditions in this Agreement.
b. Provide support for Issuing Conformed Contract Documents during the Bid Phase.
c. Provide consulting including subcontracting engineering, for services during Construction phase to include
the following:
i. Attend preconstruction conference, which may be held virtually or in -person
ii. Attend public meetings, which may be held virtually or in -person
iii. Create exhibits for public meeting(s), upon request by City
iv. Attend bi-weekly construction meetings, which may be held virtually
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V. Review all shop drawings, samples, and other submittals submitted by the contractor for general
conformance with the design concepts and general compliance with the requirements of the contract
for construction. Such review shall not relieve the Contractor from its responsibility for performance
in accordance with the contract for construction, nor is such review a guarantee that the work
covered by the shop drawings, samples, and submittals is free of errors, inconsistencies, or
omissions. Log and track all shop drawings, samples, and other submittals in e-Builder.
vi. Review requests for information and change orders
vii. Conduct Project Site visits as requested by Contract Manager
viii. Coordinate with T/PW, upon request by City
ix. Provide monthly Project status reports
X. Participate with City and City's contractor on final walk through and punch list
xi. Record drawings
xii. Submission of completed Technical Maintenance Record attached hereto as Exhibit "A"
d. Upon completion of the Project by the City, Design Consultant shall make every effort to attend Project
dedication event set by the City.
e. Professional Liability Insurance is required in all circumstances for on -site artwork requiring engineering
and/or architectural services. Upon City's request, drawings must be signed and stamped by an engineer
and/or architect and/or landscape architect licensed to work in the State of Texas. Design Consultant will
provide the Contract Manager a certificate of insurance for each licensed professional and provide City with
at least thirty days' notice of cancellation of any policy required hereunder. The City's insurance
requirements are attached hereto as Exhibit "D."
f. Design Consultant shall allow video recording and photography of their participation during activities
related to this project, such as presentations and meetings.
2.2 Artist Scone of Services.
Under this Agreement, Artist shall provide the following services:
a. Perform all services and furnish all supplies, materials, and equipment as necessary for providing
Construction Phase services during project implementation as outlined below. Services shall be performed
in a professional manner and in strict compliance with all terms and conditions in this Agreement.
b. Provide consulting during Construction Phase to include the following services:
i. Attend preconstruction conference, if held virtually
ii. Attend public meeting, if held virtually
iii. Attend select bi-weekly construction meetings, if held virtually
iv. Review all shop drawings, samples, and other submittals submitted by the contractor for general
conformance with the design concepts and general compliance with the requirements of the contract
for construction. Such review shall not relive the Contractor from its responsibility for performance
in accordance with the contract for construction, nor is such review a guarantee that the work
covered by the shop drawings, samples, and submittals is free of errors, inconsistencies, or
omissions. Log and track all shop drawings, samples, and other submittals in e-Builder.
V. Participate with Design Consultant, City, and City's contractor on final walk through and punch list,
which may be held virtually or in -person
c. Upon completion of the Project by the City, Artist shall make every effort to attend Project dedication event
set by City.
d. Artist acknowledges there is no travel compensation provided under this agreement.
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e. Artist shall allow video recording and photography of their participation during activities related to this
project, such as presentations and meetings.
£ Artist may communicate with City and Design Consultant via email, telephone, virtually, or in -person.
2.3 hi order to maintain the integrity of the City of Fort Worth's public art process, for the duration of the
Agreement, any potential publicity being sought for the Work, including press and social media, must be
approved, in advance, by Contract Manager, and shall credit the City of Fort Worth in substantially the
following form, "an original artwork commissioned by and in the public art collection of the City of Fort
Worth, Texas" and shall include the hashtag "#fwpublic art."
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1 Compensation.
Total compensation for the Project under this Agreement shall be in an amount not to exceed FORTY-FOUR
THOUSAND THREE HUNDRED THIRTY-FIVE DOLLARS AND ZERO CENTS ($44.335.00), which shall
constitute full and final compensation for any and all costs associated with this Agreement, including insurance,
engineering and consulting fees up to $15,035.00 and construction management fees of $29,300.00, to be divided
between Design Consultant ($23,780.00) and Artist ($5,520.00), for services performed and materials furnished
under this Agreement. The Parties a--ree and acknowledbee that all navments under this A-areement shall be made
to Design Consultant. who shall be responsible for all navments to Artist, engineers, and consultants. Citv shall
not be liable to Artist or subcontractors for anv navments under this Agreement. Design Consultant, Artist, and
City may amend this Agreement to allow for additional payment if additional services are required.
a. While the $5,520.00 allocated to Artist corresponds to approximately 36.8 hours at an hourly rate of $150.00,
Artist may allocate her time between the services outlined in Section 2.2 above as appropriate to meet project
goals; provided, however, that payment to Artist shall follow the schedule stated in Section 3.2 below and
shall not exceed a total of $5,520.00 for all services outlined in Section 2.2 regardless of the total number
of hours of work actually performed by Artist. Artist shall not perform any additional services beyond those
outlined in Section 2.2 above without the prior written approval of City. If additional services are requested
of Artist beyond those identified in Section 2.2 above, the parties may amend this Agreement to address
those additional requested services.
3.2 Pavment Schedule.
City agrees to pay Design Consultant in the following installments set forth below, each installment to represent full
and final, non-refundable payment for all services and materials provided prior to the due date thereof:
a. TWO THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($2.500.00) upon execution of
this Agreement. It is understood that Design Consultant shall pay ONE THOUSAND DOLLARS AND
ZERO CENTS ($1,000.00) of this amount to Artist.
b. TWO THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($2,500.00) upon Contract
Manager's verification that Bid Phase services have been completed. It is understood that Design Consultant
shall pay ONE THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) of this amount to Artist.
c. THREE THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($3.500.00) within thirty
days after Design Consultant and Artist participate in preconstruction conference. It is understood that
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Design Consultant shall pay ONE THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) of this
amount to Artist.
d. SEVEN THOUSAND DOLLARS AND ZERO CENTS ($7,000.00) within thirty days after City's
contractor has begun the Construction Phase. It is understood that Design Consultant shall pay ONE
THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) of this amount to Artist.
e. SIX THOUSAND DOLLARS AND ZERO CENTS ($6.000.00), within thirty days after Construction
Phase is 50% complete. It is understood that Design Consultant shall pay ONE THOUSAND DOLLARS
AND ZERO CENTS ($1,000.00) of this amount to Artist.
£ THREE THOUSAND SEVEN HUNDRED EIGHTY DOLLARS AND ZERO CENTS ($3,780.00)
within thirty days after Construction Phase is 100% complete.
g. THREE THOUSAND TWENTY DOLLARS AND ZERO CENTS ($3,020.00) within thirty days after
Construction Phase final walk-through and punch list is completed. It is understood that Design Consultant
shall pay FIVE HUNDRED TWENTY DOLLARS AND ZERO CENTS ($520.00) of this amount to Artist.
h. ONE THOUSAND DOLLARS AND ZERO CENTS ($1.000.00) upon submission of Exhibit `B"
(Affidavit of Bills Paid) by Design Consultant.
i. City will provide an allowance of up to FIFTEEN THOUSAND THIRTY-FIVE DOLLARS AND
ZERO CENTS ($15,035.00) for engineering and consulting. Such payments shall be made upon receipt of
an invoice from Design Consultant with the original invoice for such services attached (a retainer fee of up
to 50% is allowed
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
Project. City shall supply Design Consultant with the "Texas Certificate of Exemption" in substantially the same
form as that attached hereto as Exhibit "C" for use in the fulfillment of this Agreement.
3.4 Expenses.
Design Consultant shall be responsible for the payment of all expenses incurred during the performance of this
Agreement, including but not limited to payments for services, materials, mailing/shipping charges on submissions
to City and/or Contract Manager, insurance, costs of all travel, and costs for Design Consultant's agents, consultants,
and/or employees necessary for the proper performance of the services required under this Agreement.
ARTICLE 4
TERM AND TERMINATION
4.1 Term.
This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to provisions in
this Agreement, shall extend until completion of punch list and final payment to Artist and Design Consultant by
City.
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 Design Consultant or Artist, or any agents or representatives of either, to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to the awarding,
amending, or making of any determinations with respect to the performance of this Agreement. In the event this
Agreement is canceled by the City pursuant to this Article 4.2, City shall be entitled, in addition to any other rights
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and remedies, to recover from Design Consultant and/or Artist a sum equal in amount to the cost incurred by Design
Consultant and/or Artist in providing such gratuities.
4.3 Death or Incapacity of Artist and/or Design Consultant.
a. In the even of Artist and/or Design Consultant's death, or if Artist and/or Design Consultant becomes
physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate
this Agreement upon payment for all work and services performed prior to Artist and/or Design Consultant's
death or incapacity. All work product produced by Artist and/or Design Consultant up to the effective date
of termination shall become property of City.
b. In the event of termination under this Article 4.3, City shall retain the right to complete the Work. Due
regard shall be made for Artist's and Design Consultant's intended results and proper credit and
acknowledgment shall be given to Artist and Design Consultant. This provision shall survive the termination
or expiration of this Agreement.
4.4 Termination for Convenience.
a. The services to be performed by any party under this Agreement may be terminated by that party, subject
to written notice submitted to the other Parties at least thirty calendar days before termination.
b. If the termination is for the convenience of City, City shall pay Design Consultant for services rendered up
to the effective date of termination in accordance with the payment schedule in Article 3, as determined in
City's sole discretion. Design Consultant 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 to Design Consultant of all monies due for service provided up to the effective date of
termination, City shall have the right, in its sole discretion, to the possession and transfer of all work product
produced by Artist and Design Consultant 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. Termination for the convenience of the City shall terminate the City's obligations under the
Agreement as to both Design Consultant and Artist.
c. If termination is for the convenience of Design Consultant, City shall have the right, in its sole discretion,
to pay Design Consultant pursuant to the payment provisions in Article 3 or require the Design Consultant
to remit to City a sum equal to all payments (if any) made to the Design Consultant pursuant to this
Agreement prior to the effective date of termination, as determined in the City's sole discretion. If City
chooses to pay Design Consultant, then all work product produced by Design Consultant under this
Agreement up to the effective date of termination shall become property of City. Termination for the
convenience of Design Consultant shall automatically terminate the City's obligations under the Agreement
with regard to Artist as well.
d. Termination of Artist's obligations at Artist's convenience shall not automatically terminate the remainder
of the Agreement as between City and Design Consultant.
e. If termination is by mutual agreement of the Parties, then City shall pay Design Consultant 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 and Design Consultant under this Agreement up to the effective date
of termination.
4.5 Termination for Cause.
a. If a party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this
Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this
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Agreement, then the Parties shall first attempt to resolve any disputes in accordance with the dispute
resolution process set forth in Article 5 of this Agreement. If the Parties cannot resolve the dispute(s), then
the disputing party shall thereupon have the right to terminate their obligations under the Agreement upon
the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of
this Agreement under this Article 4.5 shall not relive 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 4.5, then City shall have the right to complete the
Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and
remedies available to City at law or in equity. If City exercises its right to complete the Work, then,
notwithstanding anything to the contrary:
(1) Title to the Work, and/or all other work produce under this Agreement and/or any prior agreement
for the Work shall pass to City and become the property of City, without restriction on future use,
immediately upon the City's exercise of its rights to complete the work;
(2) Artist and Design Consultant automatically sell, assign, and transfer to City, the entire right, title,
and interest in and to the Artwork Design, Work, and/or all other work product under this Agreement
or any prior agreement for the Work that the Artist and Design Consultant have under the Copyright
Act of 1976, 17 U.S.C. § 101 et seq., and all the rights and privileges appertaining thereto, including
without limitation the exclusive right to reproduce, prepare derivative works based upon, distribute
copies to the public as well as display said Artwork Design and/or Work, the same to be held and
employed by City for City's own benefit and use and for the benefit and use of City's successors,
assigns, and legal representative forever;
(3) Artist and Design Consultant shall have no copyright or other property interest in the Artwork
Design, Work, and/or any other work product under this Agreement and/or an prior agreement for
the Work; and
(4) Artist and Design Consultant, pursuant to this Article 4.5, hereby acknowledge rights of attribution
and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code (as amended or as it may
be amended in the future) titled "Visual Artist Rights Act," and any other right of the same nature
granted by U.S. federal, state, or foreign laws, and of his/her own free will hereby waives such rights
with respect to any and all uses of the Artwork Design, Work, and/or all other work product under
this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 4.5 shall
affect the survival of Articles 7 (Indemnification), 6 (Artist and Design Consultant as Independent
Contractors), and 9.13 (Right to Audit) of this Agreement, which shall remain in full force and effect
after termination of this Agreement.
ARTICLE 5
DISPUTE RESOLUTION
If Artist, Design Consultant, or City have a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered, or any warranty that arises under this Agreement, the Parties shall first attempt to
resolve these issues through this dispute resolution process. The disputing party shall notify the other parties in
writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the
dispute and list the party's specific reasons for such dispute. Within ten business days of receipt of the notice, all
parties shall make a good faith effort, whether through email, mail, phone conference, in -person meetings, or other
reasonable means, to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in
connection with, this Agreement.
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If the notified party fails to resolve the dispute within sixty calendar days of the date of receipt of the notice
of the dispute, then the Parties may submit the matter to non -binding mediation upon written consent of the
authorized representatives of all parties. 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, Artist, and Design Consultant are unable to agree to a date for the
mediation or to the identity of a mutually agreed upon mediator within thirty calendar days following the date of the
request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties
shall share any mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this
Agreement shall be in Tarrant County, Texas. No provision of this agreement shall waive any immunity or defense.
No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through
mediation, then a party shall have the right to exercise any and all remedies available under law regarding the dispute.
ARTICLE 6
ARTIST AND DESIGN CONSULTANT AS INDEPENDENT CONTRACTORS
Artist and Design Consultant shall perform all work and services hereunder as independent contractors and not as
officers, agents, fiduciaries, servants, or employees of City. Artist and Design Consultant shall have exclusive
control of, and the exclusive right to control the details of, their work performed hereunder and all persons
performing same, and hall be solely responsible for the acts and omissions of their respective officers, agents,
employees, and subcontractors. Nothing herein shall be construed as creating a partnership, fiduciary relationship,
or joint venture between City and Artist or Design Consultant, including Artist's and Design Consultant's respective
officers, agents, employees, and subcontractors. The doctrine of respondeat superior has no application as between
City and Artist or Design Consultant.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnity for En2ineerin2 or Architectural Services.
a. IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904(a),
ARTIST AND DESIGN CONSULTANT COVENANT AND AGREE TO AND DO HEREBY
INDEMNIFY AND HOLD HARMLESS, AT ARTIST'S AND DESIGN CONSULTANT'S OWN
EXPENSE, CITY FROM AND AGAINST ANY LIABILITY FOR DAMAGE TO THE EXTENT
THAT THE DAMAGE IS CAUSED BY OR RESULTS FROM AN ACT OR NEGLIGENCE,
INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO
PAY A SUBCONTRACTOR OR SUPPLIER (WHERE CITY HAS FIRST PAD ARTIST AND
DESIGN CONSULTANT ALL SUMS THAT ARE THE SUBJECT OF SUCH FAILURE TO PAY
CLAIM) COMMITTED BY ARTIST OR DESIGN CONSULTANT, ITS/THEIR CONSULTANT
UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH ARTIST OR DESIGN
CONSULTANT EXERCISES CONTROL.
b. To the extent permitted by Texas Local Government Code section 271.904, Artist and Design Consultant
agree to and shall release City from any and all liability for injury, death, damage, or loss to persons or
property to the extent caused by Artist or Design Consultant in connection with or incidental to Artist's or
Design Consultant's performance under this Agreement except to the extent caused by the City, the City's
agents, the City's employees, representatives, City's contractors or consultants of all tiers (excluding Artist
and Design Consultant), or another entity over which the City exercises control.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
c. NOTWITHSTANDING THE FOREGOING OR ANY OTHER TERM OR CONDITION TO THE
CONTRARY, IN NO EVENT SHALL ARTIST OR DESIGN CONSULTANT BE OBLIGATED TO
RELEASE, INDEMNIFY, OR HOLD HARMLESS CITY FROM ANY LIABILITY OR DAMAGE
(INCLUDING BUT NOT LIMITED TO LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS
TO PERSONS OR PROPERTY) TO THE EXTENT THAT THE LIABILITY OR DAMAGE IS
CAUSED BY OR RESULTS FROM ANY ACT, EROR, OR OMISSION OF CITY, ITS AGENTS,
EMPLOYEES, REPRESENTATIVES, CONTRACTORS OR CONSULTANTS OF ANY TIER
(EXCLUDING ARTIST AND DESIGN CONSULTANT), OR ANOTHER ENTITY OVER WHICH
CITY EXERCISES CONTROL.
d. The City shall be entitled to recover its reasonable attorney's fees from Artist or Design Consultant for
engineering or architectural services in proportion to Artist's or Design Consultant's liability under this
Section 7.1
e. Artist and Design Consultant shall require all of Artist's and Design Consultant's subcontractors to include
in their subcontracts a release and indemnity in favor of City in substantially the same form as above.
7.2 General Indemnitv for Other than Ensineerins or Architectural Services.
a. FOR OTHER THAN ENGINEERING OR ARCHITECTURAL SERVICES ADDRESSED IN 7.1
ABOVE AND TO THE EXTENT PERMITTED BY TEXAS INSURANCE CODE SECTION
151.102, ARTIST AND DESIGN CONSULTANT COVENANT AND AGREE TO AND DO
HEREBY INDEMNIFY AND HOLD HARMLESS, AT ARTIST'S AND DESIGN CONSULTANT'S
OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS,
JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS (WHERE CITY HAS FULLY AND
TIMELY PAID ARTIST AND/OR DESIGN CONSULTANT ALL SUMS THAT ARE THE
SUBJECT OF SUCH CLAIMS), LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT
LIMITED TO, ATTORNEYS' FEES AND COSTS OF DEFENSE), PROCEEDINGS, DAMANGES,
DAMAGES, LIABILTIES, 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 (INLUDING, 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
(COLLECTIVELY, THE "CLAIMS AND LOSSES"), TO THE EXTENT ARISING OUT OF OR
RESULTING FROM THE ACTS, ERRORS, OR OMISSIONS OF ARTIST AND DESIGN
CONSULTANT AND/OR THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,
DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH
THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING OR
ANY TERM OR CONDITION TO THE CONTRARY, IN ACCORDANCE WITH TEXAS
INSURANCE CODE SECTION 151.102, IN NO EVENT SHALL ARTIST AND DESIGN
CONSULTANT BE OBBLIGATED TO INDEMNIFY OR HOLD HARMLESS CITY OR ANY
OTHER PARTY, INCLUDING A THIRD PARTY, AGAINST ANY CLAIMS AND LOSSES
CAUSED BY THE NEGLIGENCE OR FAULT, THE BREACH OR VIOLATION OF A STATUTE,
ORDINANCE, GOVERNMENTAL REGULATION, STANDARD, OR RULE, OR THE BREACH
OF CONTRACT OF CITY, ITS AGENTS OR EMPLOYEES, OR ANY THIRD PARTY UNDER
THE CONTROL OR SUPERVISION OF CITY.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
b. For other than engineering or architectural services addressed in 7.1 above, Artist and Design Consultant
agree to and shall release City from any and all liability for injury, death, damage, or loss to persons or
property sustained or caused by Artist or Design Consultant to the extent resulting from Artist's or Design
Consultant's performance under this Agreement except to the extent caused by the City, the City's agents,
the City's employees, or another entity over which the City exercises control.
c. Artist and Design Consultant shall require all of Artist's and Design Consultant's subcontractors to include
in their subcontracts a release and indemnity in favor of City in substantially the same form as above.
7.3 Intellectual Prouertv.
Artist and Design Consultant agree 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 or Design Consultant. 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 or Design Consultant without the appropriate licenses or permission being secured by Artist or Design
Consultant in advance. City expressly assumes no obligation to review or obtain appropriate licensing, and all such
licensing shall be the exclusive obligation of Artist or Design Consultant.
ARTICLE 8
EQUAL OPPORTUNITY
a. Artist and Design Consultant 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 and Design Consultant
represent and warrant that to the extent required by applicable laws, Artist and Design Consultant are equal
opportunity employers and shall comply with all applicable laws and regulations in any employment
decisions.
b. In the event of Artist or Design Consultant noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist or
Design Consultant may be debarred from further agreements with City.
ARTICLE 9
MISCELLANEOUS
9.1 Compliance.
Artist and Design Consultant shall comply with all federal, state, and local statutes, ordinances, and regulations
applicable to the performance of Artist and Design Consultant services under this Agreement.
9.2 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.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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9.3 Amendments.
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless
made in writing and signed by all parties and approved by appropriate action of City.
9.4 Waiver.
No waiver of performance by a party shall be construed as or operate as a waiver of any subsequent default of any
terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default
shall not be deemed a waiver of any right or acceptance of defective performance.
9.5 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.
9.6 Successors and Assigns.
No party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the City, 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 the Parties and their respective successors
and permitted assigns.
9.7 No Third-Partv Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of the Parties, and any lawful successors
or assigns, and are not intended to create any rights, contractual or otherwise, to any other person or entity.
9.8 Severability.
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.
9.9 Force Maieure.
It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligation
hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions,
regulations, or interferences; fires; strikes; lockouts; national disasters; riots; material or labor restrictions;
transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated
or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such
circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from
doing or performing the same during such period of delay, so that the time period applicable to such design or
construction requirement shall be extended for a period of time equal to the period such party was delayed.
9.10 Contract Construction.
The Parties acknowledge that each party and its counsel have had an opportunity to review and revise this Agreement
and that the normal rule of contract construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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9.11 Fiscal Funding Out.
If for any reason at any time during any term of this Agreement the Fort Worth City Council fails to appropriate
funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement
to be effective on the earlier of (i) thirty calendar days following delivery by City to Design Consultant of written
notice of City's intention to terminate, or (ii) the last date for which funding has been appropriate by the Fort Worth
City Council for the purposes set forth in this Agreement. If the Agreement is terminated pursuant to this provision,
City shall pay Design Consultant for services and expenses actually rendered up to the effective date of termination
in accordance with the schedule in Article 3.
9.12 Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this
Agreement.
9.13 Right to Audit.
Artist and Design Consultant agree that City will have the right to audit the financial and business records of Artist
and Design Consultant that related to the Work (collectively "Records") at any time during the Term of this
Agreement and for three years thereafter in order to determine compliance with this Agreement. Throughout the
Term of this Agreement and for three years thereafter, the Artist and Design Consultant shall make all Records
available to the City at 100 Fort Worth Trail, Fort Worth, Texas, or at another location in the City acceptable to both
parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any
audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of the City
in substantially the same form as above.
9.14 Certified MBE/WBE.
If applicable, Artist and Design Consultant are encouraged to make their 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.
9.15 Survival Provision.
The provisions contained in Articles 7 (Indemnification), 6 (Artist and Design Consultant as Independent
Contractors), 4.3 (Death or Incapacity), and 9.13 (Right to Audit) shall survive the termination or expiration of this
Agreement.
9.16 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.
9.17 Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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ARTICLE 10
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: Dana Burghdoff, Assistant City Manager
City Manager's Office
City of Fort Worth
100 Fort Worth Trail
Fort Worth, TX 76102-6314
Copies to: Leann Guzman, City Attorney
Office of the City Attorney
100 Fort Worth Trail
Fort Worth, TX 76102-6314
Anne Allen, Public Art Program Manager
Arts Fort Worth
1300 Gendy Street
Fort Worth, Texas 76107
2. ARTIST Etty Ish-Horowitz
4318 Gilbert Avenue
Dallas, Texas 75219
DESIGN CONSULTANT Robert L Meckfessel, Principal
DSGN Associates, Inc.
115 West Greenbrier Lane
Dallas, Texas 75208
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective as of the
Effective Date.
CITY OF FORT WORTH
bay &'W'01aarlyZ
ByIna Burghdoff (JuK 2025 M09 CDT)
Dana Burghdoff
Assistant City Manager
Recommended for Approval by:
M*8 Cla6j .jut 9, 2025 10:09 CDT)
Library Director
ARTIST: ETTY ISLI-HOROWITZ
1
Etty Moro
2�j�- /-/VrM`W.
Date: 0l0 - rP 5 g-r->
DESIGN CONSULTANT: DSGN Associates, Inc.
robert L. �Meckfessel, Principal
Date: 11G J UN a 2D Z-.
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 Program Manager
APPROVED AS TO FORM AND LEGALITY
i� qua
By:
Trey Qualls
Ag=ment with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
-l4-
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Assistant City Attorney
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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o�p 'Wo dd
ATTESTED BY d (((... j
dddn a n�656po
Jan�tte Goodall
City Secretary
Form 1295 Not Required
Contract Authorization:
M&C — No M&C Required
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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Exhibit A: 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 with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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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:
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 with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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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.)
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)
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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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 FVWPA 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 with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Project:
Exhibit B: 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:
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 with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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Exhibit C: Sales Tax Exemption
Texas Sales an d Use Tax Exem pti an Ce rtific A an
TI'h's cerM. to dues not rW! nm a nu"er W M vaAV.
Fa rta y kr_��� 7Tff ¢kr
CR f of Fort Wodh, TOMM
1 a0 Fort Ulodh Trel I 617-M2*600
C d 5 LY 211sd•
Fatd WDrth, TWe FG1 D2
I, the pLmW3ser naned above, ciaim an 3cernplon arum paymerR of sates and use muss 1.ror the pwcl w of L3xmIE
fterns Wscrded below or on the =3Med order Dr lnvDlce} from:
Seller AN Yrr'W1N.9
Street address:
Oty. start, ?JP DDd-
Descdptlon of Ifrms 13 to prno-:eo or rn -Pe atmr-rtd 5roer 3r nY3 ce:
Ml 1t@m& Purchaser acknowledges Mat Ml$ cerlln€-ela can not be used for the pu rchase. leasa, or rental cf a
muter v@hlde_
Purrtaser Calms-h : excmDllo-ri br ne f3I cw np reason:
Munlc1palltyr, Gawemraent Entity
rdcrslann that Poll be noble ror p.*ment o' 2YI state wid IDcal sales or use taxes wNch may become due iorfalure b mrrpay irlth
�e a2V .Ionsofthe Tw-rode anVw al applkahle fair.
J undrrstif�d dFarh's a crhsftat ofEefine fa ohm an exempdwa rer&k2r&2v d1esraerftrrf2,c2ok fdems that) knDff, at the flme adpurc#rx,
wE liras edhra nrar?nerofrserM,&a nrrtexpressedJn M cr=cmkt, wNfd&peeKWa or1 ffrr amotmtoddr etvded, -fie offense ffw armor
"m r Ctrs s C m?P4emearar 20 a WJmp c? Wx secs due&.
here Onler Flna eW Dmeff 6ar1-3f2D2+L
MGM Thd ceMcate cannot be bsued r r the purchase, lease. ar — I of a mat ryehtk.
TAJrS tMUA%rATE GhDE3 MT FLEONFEE A ALW&ER TO J3E VALJA
Saks wd use T&2'Eiempbw plumbers' or 'Tax P3empr NLn-ter, do nol odst
ThIs cei cWx- shWd trtiu nl:hcdio thesupplkr. Dnno! send the completed redlfkatr. to the Gor 4Arolerof Putlk A=Drd3.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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Exhibit D: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Design Consultant shall meet all the following insurance requirements for this Project. If Design Consultant
subcontracts engineering, then Design Consultant shall also require any 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, 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 Design Consultant and is considered to be in the
Design Consultant'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 Design Consultant and Design Consultant'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.).
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth and its
officers, employees, and volunteers as an "Additional Insured" on all liability policies. Exception: the
"additional insured" requirement does not apply to Workers' Compensation or Automobile policies. All
applicable policies shall be endorsed to name comprised of the City of Fort Worth and ,as respects to
the contracted service, agents, officers, directors and employees [City] as its interests may appear
pursuant to written agreement. Applicable policies shall each be endorsed with a waiver of subrogation
in favor of City with respect to the Project and shall be endorsed to provide that said insurance is
primary protection and any self -funded or commercial coverage maintained by the City shall not be
called upon to contribute to loss recovery. Design Consultant is responsible for providing the City with
at least thirty days' notice of cancellation or non -renewal of any insurance policy and may not change
the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or
disallow coverage as required herein. A ten ( 10) days' notice shall be acceptable in the event of non-
payment of premium.
The insurers for all policies must be licensed/approved to do business in the State of Texas. If the
subcontractor is an international entity and carries insurance through an international insurance
company, then the subcontractor must obtain language on their certificate of insurance confirming
that its insurance policy extends coverage to operations in the United States. All insurers must have a
minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent
financial strength and solvency to the satisfaction of Risk Management. If the rating is below that
required, written approval of Risk Management is required.
If insurance policies are not written for specified coverage limits, Umbrella or Excess Liability
insurance for any differences is required. Excess Liability shall follow form of the primary coverage.
Unless otherwise stated, all required insurance shall be written on an "occurrence basis."
The deductible or self -insured retention (SIR) affecting required insurance coverage shall be
acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to
asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained
through insurance pools or risk retention groups must be approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the 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 for any
such adjustments to these insurance requirements.
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, revision, modification of particular policy
terms, conditions, limitations, or exclusions except where policy provisions are established by law or
regulation binding upon either party or the underwriter on any such policies.
Agreement with Etty Horowitz and DSGN Associates, Inc. for Construction Management Services
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