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HomeMy WebLinkAboutContract 42135 4 j CITY SECRETARY CONTRACT NO. 4a"13 AGREEMENT FOR DESIGN AND COMMISSION OF PUBLIC ART BETWEEN THE CITY OF FORT WORTH AND MURALS OF BALTIMORE, L.L.C. This Agreement is entered into this day of , 2011, by and between the City of Fort Worth, a home-rule municipal corporation of th tate of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Murals of Baltimore, L.L.C., acting by and through Michael William Kirby, its duly authorized president, of 1902 Payne Avenue, Austin, Texas 78757. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., 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; WHEREAS, the Fort Worth Public Art Program has a mural initiative that seeks to engage youth volunteers nominated by Safe City Commission, Inc., in the process of mural making under the guidance of a professional artist to support the City's efforts to curb graffiti; WHEREAS, City desires to integrate a painted mural on the east-facing exterior wall of the gymnasium at the Southwest Community Center located at 6300 Welch Avenue in District 6 to build identity for the building and enhance users' and visitors' experience of the Site; WHEREAS, funds for design and commission of a mural have been allocated from the Public Art Fund per guidelines in the Long-Range Public Art Plan for the Water Fund, as adopted by the Fort Worth City Council on May 9, 2006; WHEREAS, the Project was included in the FY2011 Fort Worth Public Art Annual Work Plan, adopted by the Fort Worth City Council on October 19, 2010 (M&C C-24554); WHEREAS, Artist was selected by City through a selection process conducted by Contract Manager to design and implement a two-dimensional painted mural with participation of Youth Participants selected by Community Organization; OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 of 42 OS-17-1 1 I N A09 :48 s 4: d WHEREAS, on March 14, 2011, the Fort Worth Art Commission ("FWAC") formally recommended Murals of Baltimore, L.L.C., for this Project; WHEREAS, Youth Participants are volunteers and, as such, their services will be offered freely and without pressure or coercion, either direct or implied; WHEREAS, Youth Participants will act at the direction of Artist during all phases of Project that involve Youth Participants; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed and implemented to promote the integrity of Artist's ideas and statements as represented by the Artwork Design; NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: I.I. Agreement — Means and includes this Agreement between the City and Artist for Artwork Design and Commission of Public Art for the Site. 1.2. Artist — Means and includes Murals of Baltimore, L.L.C., and all other persons or entities for which Artist is legally responsible, including, but not limited to, its members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, subartist, contractors, and related companies. 1.3. Community Organization—Means and includes Safe City Commission, Inc., and all other persons or entities for which Community Organization is legally responsible, including, but not limited to, its members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, contractors, and related companies. 1.4. Contract Manager— Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and all other persons or entities for which Contract Manager is legally responsible including, but not limited to, its officers, directors, employees, agents, subsidiary organizations. 2 of 42 parent organization, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. City — Means and includes the City of Fort Worth, Texas and City's officers, representatives, agents, servants, and employees. 1.6. Effective Date — Means and includes the date that is represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.7. Final Acceptance— Means City's written acknowledgement to Artist that all services required of the Artist have been completed in conformity with the approved Artwork Design. 1.8. Artwork Design— Means the Artist's final, proposed design of the Work for the Site and includes, but is not limited to, all preliminary and final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for Implementation of the Work. 1.9. Artwork Design Deliverables — Means and includes those items set forth in Article 2.4 of this Agreement required for City's review and approval prior to Implementation of the Work 1.10. Implement or any derivative thereof—Means and includes all services committed at the Site to complete the Work. 1.11. Parties—Means and includes the City and Artist. 1.12. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.13. Schedule — Means and includes Artist's written plan of procedure for Implementation of the Work, which includes, but is not limited to, the submission of progress reports. 1.14. Site — Means and includes the east-facing fagade of the gymnasium at the Southwest Community Center located at 6300 Welch Avenue, which is more particularly described in Exhibit "A," attached hereto and incorporated herein by reference for all purposes. 1.15. Work — Means and includes the finished object(s) of art and design that is the subject of this Agreement, or any intermediary stage of completion of such Work. 1.16. Youth Participants — Means and includes community youth selected by the Community Organization to serve as Volunteers. "hose services will be offered freer and 3 of 42 ti• without pressure or coercion (either direct or implied), for the Project and who will act at the direction of Artist or Community Organization during all phases of the Project that involve Youth Participants; ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1 Scope of Services a. Artist shall perform, direct, and oversee all Implementation services and shall furnish all supplies, materials, and equipment as necessary for the Artwork Design and to complete 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 must pass a thorough background investigation by an entity approved by City before beginning any portion of the Project, including the design workshop, with any of the Youth Participants. If Artist fails the background investigation, for any reason, City shall have the right to terminate this Agreement immediately. The results of any background investigation must be submitted promptly to City for review. Failure of any background investigations shall be determined by City, in its sole discretion. If City determines that Artist has failed any portion of the background investigation, then this Agreement shall terminate immediately with no payments due to Artist under this Agreement. C. Prior to commencing work on the Artwork Design, Artist shall meet with and seek input from the community stakeholders as designated by Fort Worth Council Member Jungus Jordan, as well as Fort Worth Parks & Community Services Department staff and representatives of the Community Organization. d. Artist shall facilitate five (5) design workshops with the Youth Participants in a location determined by the Contract Manager. The workshop will be scheduled at a time that benefits Youth Participants and is mutually agreed upon by Artist and Contract Manager. Artist shall submit a class schedule and a workshop syllabus to Contract Manager prior to the onset of the workshops. Contract Manager must approve the class schedule and workshop syllabus before Artist can begin the workshop. The design workshop will inform Artist's Artwork Design for the Work, but the Artwork Design shall be produced by Artist. Artist understands and recognizes that Youth Participants are volunteers and, as such. their services will be offered freely and without pressure or coercion. either direct or implied. 4 of 42 e. 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 in which the Work shall be implemented shall be mutually agreed upon by City and Artist. f. Artist, upon request of Contract Manager, shall attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. g. Artist shall perform, direct, and oversee all Implementation services and shall furnish all supplies, materials, and equipment necessary to complete 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. To the extent that any Youth Participants are involved in the Implementation process, Artist understands and recognizes that Youth Participants are volunteers and, as such, their services will be offered freely and without pressure or coercion, either direct or implied. h. Artist shall Implement the Work on dates and at times mutually agreed upon by Artist and City. 2.2. Implementation Budget Total Artist shall develop an Artwork Design that is financially feasible relative to the budget for Artwork Design and Implementation. It is understood that the budget for Artwork Design and Implementation of the Artwork Design is THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00), which includes all costs for materials, labor, Implementation, delivery, installation, insurance, transportation, travel, Artist's fee, and all other associated costs for the Work and/or Artwork Design. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "B," for the Work. 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 and are available. City upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Artwork Design Deliverables Within two (2) months after the Effective Date of this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this section to City for approval. Artwork Design Deliverables shall consist of the following: 5 of 42 i a. Artist shall provide one conceptual design illustration showing the Work as it would appear to a visitor viewing the full Work. Illustrations shall be mounted on 20" x 30" foam core and/or in a high resolution digital format, such as a PowerPoint presentation. b. Artist shall provide a written narrative describing the following items: (1) Artwork Design concepts and timeline for completion; (2) proposed materials, implementation, and implementation methods for all elements of the Work; and (3) maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance. C. Artist shall submit material or implementation samples and Materials Data Safety Sheets (MSDS) for approval by City. d. Artist shall submit a final budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including the Artist's fee, in an amount not to exceed THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) (see Article 2.2). 2.5. Artwork Design Review. a. Upon completion of the Artwork Design Deliverables, Artist shall meet with the designated City staff and City boards or commissions, as appropriate, to present the Artwork Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Artwork Design to the FWAC for approval at a regularly scheduled FWAC meeting. C. City may require Artist to make such revisions to the Artwork Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site and/or for reasons of safety and security. d. City may also require Artist to make such revisions to the Artwork Design as City deems necessary in its sole discretion. e. Within thirty (30) days of its receipt of Artist's submission of the Artwork Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Artwork Design. Revisions made pursuant to this section, upon approval by City. shall become part ot'the Artwork Design. 6 of 42 w a e f. If the Artwork Design or any required revision is disapproved by City, Artist shall have thirty (30) days to resubmit the Artwork Design in conformance with City's requirement, unless agreed to otherwise in writing by the Parties. g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Artwork Design presentation materials to the Contract Manager to become part of the City of Fort Worth's Public Art archive. h. If Artist's Artwork Design is approved by City, then Artist's Artwork Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the Implementation phase of this Agreement, as set forth below. i. Upon approval of the Artwork Design by City, Artist shall provide the Artwork Design presentation materials to City to become part of the City of Fort Worth's Public Art archives. Should Artist require Artwork Design presentation materials to assist in the Implementation of the Work, Artist may request to borrow said materials, but shall provide to the Contract Manager copies or digital representations illustrating the Artwork Design. 2.6 Implementation of the Work a. If City approves Artist's Artwork Design and authorizes Artist to proceed to the Implementation phase of this project, then Artist shall furnish to Contract Manager, within ten (10) days after such authorization (or unless otherwise agreed, in writing, by the Parties) a written Schedule. After written approval of the Schedule by City, Artist shall Implement the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. Artist shall Implement the Work at the Site in accordance with the Schedule; provided, however, that activities may not commence until written permission is delivered to Artist by Contract Manager. C. Artist is responsible for Implementing all elements of the Work. Artist shall coordinate the Implementation of the Work with City and/or Contract Manager to ensure proper Implementation with the Schedule. d. Prior to Implementation of the Work, Artist shall provide to the Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form 7 of 42 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 artwork design phase for the Work. [NOTE: The written instructions provided during the artwork design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. e. General cleaning to prepare the Site for the Work will be conducted by Artist and City of Fort Worth Parks & Community Services staff, as available. Artist will inform City, in writing, of any defects or conditions that may affect the scope of Work and the Work. Artist shall be responsible for determining that the Site is prepared properly for Implementation and agrees to hold the City harmless should the mural fail as a result of preparatory work. However, Artist shall not be held responsible should the Site or elements of the Site fail mechanically for reasons beyond the scope of work. f. City and/or Contract Manager, upon written request, shall have the right to review the Work during its Implementation and/or request visual documentation of the Implementation. Artist shall, upon written request by City, 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 City pursuant to this section within thirty (30) days after receipt of the written request, unless the Parties agree in writing otherwise. g. Artist shall complete Implementation of the Work in accordance with the City- approved 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 sole discretion, shall determine whether the changes are significant and whether the changes conform to the City-approved Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the approved 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(s) requires City approval, then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting. 8 of 42 i h. Artist shall be responsible for all costs associated with Implementation of the Work, including, but not limited to, materials, equipment rentals, transportation, and labor. i. Artist shall be responsible for obtaining and paying for all necessary City permits. j. Artist, individually and through its subcontractors, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while Implementing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then Contract Manager shall inform Artist, in writing, of the damage. Artist, at his own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Site. This time limit can be extended by written agreement of the Parties. If Artist fails to repair the damages within thirty (30) 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. k. Should the Youth Participants volunteer on Site, Artist shall prohibit any and all Youth Participants from climbing on ladders, scaffolding, or on any elevation above the Youth Participant's personal ability to reach. Artist, in coordination with Community Organization, shall be responsible for providing hydration, shade, rest, and any other provisions that protect the health, safety, and welfare of Youth Participants. 2.7. Post-Implementation a. Within thirty (30) days after the complete Implementation of the Work, Artist shall furnish Contract Manager with a set of at least twenty (20) high-resolution digital images (.tiff format) and twenty (20) low-resolution digital images (.jpeg format) showing the painted mural, including detail shots, as well as photos of the east side of the Site with the mural installed, as selected by Contract Manager, to document the Work after the Work is installed. b. Artist shall make every effort to be available at such time or times as may be determined by City and Artist 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 implementation. C. For the duration of the Agreement, if Artist intends to seek his/her own publicity for the Work, such efforts and/or press releases must be approved, in advance, by City. 2.8. Final Acceptance 9 of 42 a. Artist shall notify City and Contract Manager, in writing, when all services required have been completed in conformity with the Artwork Design. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), 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 Section 2.8.a 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. 2.9. Risk of Loss The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City or its agents prior to Final Acceptance 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 this Agreement shall be in the amount of THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00), 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, Implementation, transportation, installation, Artist's fees, insurance, incidental costs, all travel expenses, and any other costs associated with the Artwork Design and/or Work. 10 of 42 3.2. Payment 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. FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00), upon full execution of this Agreement, a passed background investigation, and receipt by Contract Manager of Artist's schedule for design and implementation of the Work. b. TEN THOUSAND DOLLARS AND NO CENTS ($10,000-00) upon completion of all five (5) of the design workshops with Youth Participants and all community meetings. C. SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($7,500.00) upon the Contract Manager's verification that Implementation of the Work is 75% complete. d. SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($7,5000.00) within thirty-five (35) days after Final Acceptance and receipt by Contract Manager of such documentation it may require concerning payment of supplies and services rendered to the Artist (see Section 2.8). 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 Artist with the "Texas Certificate of Exemption," attached hereto and made apart hereof for all purposes 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. 1 I of 42 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, 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. 4.4. Time Extensions; Force Majeure City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright Artist represents and warrants that: a. the Artwork Design and/or Work shall be the original product of Artist's sole creative efforts; b. the Artwork Design and/or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; 12 of 42 C. the Artwork Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere; d. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; e. the Artwork Design and/or Work is free and clear of any liens from any source whatsoever; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; g. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence; 5.2. Warranties of Quality 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 Section 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 (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) days (unless the parties agree otherwise in writing) after receipt of the written notice, at no expense to City. d. If, within one year after Final Acceptance, City observe any breach of warranty described in this Section 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages. expenses, and losses incurred bN Cite as a result of the breach. Howeyer. if 13 of 42 Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Section 5.2. e. If, after one year from Final Acceptance, City observe any breach of warranty described in this Section 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 during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) 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 (30) 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 Display. 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. 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 that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City and/or Contract Manager. g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. 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. 14 of 42 5.3 Survival of Representations and Warranties The representations and warranties in this Article 5.3 shall survive the termination or other extinction of this Agreement. ARTICLE 6 INSURANCE AND INDEMNITY 6.1. General. Artist shall carry insurance as set forth in Exhibit "F," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to Contract Manager prior to commencement of the first youth workshop and Work at the Site. Evidence of subsequent renewals of said insurances is required until City has taken possession of the Work. Except as provided in Section 2.9 hereof, the risk of damage to or loss of the Work, during Implementation but prior to Final Acceptance, shall be solely that of Artist, except at such times as the Work is installed on City property or in City's care or custody. 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. Indemnity. a. General Indemnity i. ARTIST COVENANTS AND AGREES TO 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 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 RECOEVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR 15 of 42 ASSERTED, ARISING OUT OF OR RESULTING FROM ARTIST'S NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained by Artist in connection with or incidental to performance under this Agreement. iii. 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. b. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third-party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, INSOFAR AS THE SAME ARE BASED ON ANY CLAIM THAT THE WORK PROVIDED UNDER THIS AGREEMENT CONSTITUTES AN INFRINGEMENT OF ANY PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. c. Survival 16 of 42 All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 7.2 Copyright 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 a perpetual, irrevocable license to graphically depict or display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or the Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist 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 17 of 42 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 substantially in 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 Fort Worth Public Art, a program 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. ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and 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 2.6 and Exhibit"C," Technical and Maintenance Record. 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. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations, provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended major repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services. provided that Cit" and 18 of 42 Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon services and Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, the standards set forth by City. C. City may require Artist to submit professional documents supporting the Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work, or should public safety be at risk, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 8.4 Lifespan. Artist recognizes that painted murals have a limited lifespan and understands that City retains the right to review the efficacy, cultural value, and associated costs of maintaining and conserving the mural to determine a reasonable lifespan for the Work in accordance with the deaccessioning policy contained in the Fort Worth Public Art Master Plan. City agrees to weigh the desire of the community, the City's ability to maintain the Work, and the interest of the Artist before deaccessioning the Work. The Artist agrees herein, to suspend his rights under the Visual Artists Rights Act (VARA), for all purposes, should the Work be deemed to have fulfilled its lifespan and deaccessioned. 8.5. Alteration of the Work or of the Site a. In the event that the Work is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph. 19 of 42 b. In the event that 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, Artist may be given written notice and ninety (90) 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. C. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. 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 paragraph. 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. 8.6. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.7. 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. 8.8. 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 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 20 of 42 partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and 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 terms of this Agreement. 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 official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by City, pursuant to this Section 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. Incapacity of Artist. a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under 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 incapacity. All finished and unfinished drawings, sketches, photographs, models, and any other work shall automatically become property of City. b. Should Artist's design have been approved or if Artist's work has progressed to the point of Implementation of the Work, in the event of termination under this Section 11.2, Cite shall have the right to complete the Work. Due regard shall be made for Artist's intended 21 of 42 results and proper credit and acknowledgement shall be given to Artist. This provision 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 thirty (30) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of City, Artist shall have the right to an equitable adjustment in Artist's Fee (without allowance for anticipated profit on unperformed services), in which event City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models already prepared and submitted or presented for submission to City by Artist under this Agreement prior to the date of termination, provided that no right to implement or execute the Work shall pass to City. C. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist pursuant to this Agreement prior to 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 arising from this section 11.4 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 provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 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. If City exercises its right to complete the Work, then: (1) title to the Artwork Design, Work, and/or all other work product under this Agreement or any prior agreement for the Work, including, but not limited to, all documents, models, and/or drawings that constitute or are components of the Artwork Design and/or Work, shall pass to City and become the property of City, 22 of 42 without restriction on future use, immediately upon the City's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all other work product under this Agreement or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 and 8 of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and/or all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and/or Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4)Artist shall have no copyright or other property interest in the Artwork Design, Work, and/or any other work product under this Agreement or any prior agreement for the Work; and (5) Artist, pursuant to this section 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 his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and/or all other work product under this Agreement or any prior agreement as a public artwork. Nothing in this section 11.4 shall affect the survival of Articles 5, 6, and 9 of this Agreement, which shall remain in full force and effect upon termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered. or any warranty, that arises under this Agreement, the Parties shall 23 of 42 first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) 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 both parties 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 (15) or more than forty-five (45) days following the date of request, except upon Agreement of both parties. In the event City and Artist are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) 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. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement is constitutes consent to sue. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. ARTICLE 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 identitN. or gender expression. Such action shall include. but not be limited 24 of 42 to, the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including, but not limited to, apprenticeship. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Artist shall, in all solicitation or advertisements for employment placed on or on behalf of 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 the City of Fort Worth, 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 of Fort Worth. 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 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 and 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. 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 25 of 42 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 its respective successors and permitted assigns. 14.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.8. 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. 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 must 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 later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for 26 of 42 which funding has been appropriated by City Council for the purposes set forth in this Agreement. 14.11. Ca tip •ons. 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. 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 Conceptual Design (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City on 1000 Throckmorton Street, 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. Notwithstanding anything to the contrary herein, this Section 14.14 shall survive expiration or earlier termination of this Agreement. 14.15. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by City under City's M/WBE ordinance. 14.16 Survival Provision The provisions contained in Articles 5 (Warranties), 6 (Insurance and Indemnity), and 9 (Artist as Independent Contractor) shall survive the termination or expiration of this Agreement. 14.17 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such. all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems 27 of 42 proprietary. If City is required to disclose any documents that may reveal any of Artist's Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. 14.18 Counterparts 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 via email shall be as legally binding for all purposes as an original signature. 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 thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Copies to: Sarah Fullenwider. City Attorney, Office of the City Attorney 28 of 42 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Vice President—Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 2. ARTIST Murals of Baltimore, LLC Michael William Kirby, (President) 1902 Payne Avenue Austin, Texas 78757 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] 29 of 42 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH MURALS OF BALTIMORE, L.L.C. -57&=4t'� l r 42, by: Fernando Costa by: Michael William KirK, President Assistant City Manager 1902 Payne Avenue Austin, TX 78757 APPROVED AS TO FORM: Tyler W ach Assistant City Attorney ATTESTED BY: X 0000000000 V Marty Hendrix d �� City Secretaryrz Contract Authorization: y LD No M&C required MOFFICIAL RECORD CITY SECRETARY FT.WORTH,TX 30 of 42 Exhibit A: The Site Southwest Community Center Southwest ommuni!center Southwest Community Center, District 6 6300 Welch Avenue Fort Worth, TX 76133 31 of 42 Exhibit B: Budget Form 0 fyW3 li ARTIST'S FEE('D%) TRAVEL (Far artlate who We more than fill mites from Fort Wwth) Airfare Car Rental Per©leen Expenses at$per day Mileage at$ per mile R1SURANCE Auto+Wad Vehicle Llabiifty General Liability for Artiste Subcontractors Worker's Camnp.i Employer's Liability Other,as applicable Cost Increases?;Pfo*ted Increase In Cost Insurance 12 Months In Future, AMNISTRATIVE EXPENSES PhorWFerc €3`ali+efyrSMpptr9(for corraapordeme,s,ampAea,models,drawings.eft) Beprographlc Service ias Cog Ircreasee?.il4vJected Increase In CostAdmkt 12 Months In Future PROFESSIONAL CONSULTANT FEES (It applicable,drawing must be signed and seated by a pfofessfcnal registered to practice in the State of Tw a9) Archftect 8truoturai Engineer' Electrical Engineer' Conservator` Photovaphet(br documentation of complewd wority Other' Cost Ifrcteasas?1 Projected Incresse M Cost Ccnsuftnte Fees 12 Momhe In Futnxe MATERIALS (Please attach a complete list of rttatarials.Itemize all entiaosted aspects and cornpcnents with per Lu*cost esurnstea) Matsrlals'Total Cost Incresses?.Projected Increase in Cost AAateriats 12 Months In Future FABRICATION COSTS (include and itemize all portions d subcontracted work and work to be completed by artist.) Artist's Labor f_houra of$ per hour)Total Subcontracted Labor*(Total) Facility?Equipment Rental(used occlusiveiy for this project)related to fabrication Cost Increases,Projected Increase In Cost Fatxicetion 12 Monthe In Future SITE PREPARATION (Do not inc►rde costs covered by FWPA,City of Fort Worth or others) Test Drilling' 32 of 42 Landswing Irrigation' Electrical Modilicatiorw Water WorklMechanical Devices other' Cm lnoreaws?:Projected increase in Coal Site Preparation 12 Months In Future TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Sits' other' Gael lncveeseel:Projected Increase in Cost Transportation 1216ionthe In Future BASEMOUNTING Base Mounting Devices and Components FoundaWwFcctkV cow CW Increases?.,Projected massae in Cost MountliVI'boting 12 Moriths,In Future INSTALLATION COSTS (Coos must include allowance for after hours instafistim,If applicable,Please attach a complete liat of equipment and Individual estirnetee with this form) Siulacmtmcted Labor* Scaffolding' Equpment Rental related to Installation* Off-duty PoIic&1Seouw*1* Trafflo Barriers' Stmage Facility Rental* city Permits Display Devi,.ee Firep-ofiV SAO Reawadiw Otw Cost Increases?:Projected Increase in Cost Installation 12 Monthe In Future UG+MNG Designere Fixtures* Bulbs' Site Preparation' Installation' Cost lncreases?;Projected I rr-Tease in Ccal Lighting 12 Months in Future GRAND TOTAL(ImUdIng pfoyic"d cost lmcmM if NV) PbRagg MaKQ Orly IHK*Mry ncros rwo PrOpMd By, DOW 33 of 42 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): Edition Information if applicable: 34 of 42 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: 35 of 42 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.) 36 of 42 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.) 37 of 42 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 20 . Notary Public, State of Texas Print Name Commission Expires 38 of 42 Exhibit E: Sales Tax Exemption TEXAS ACERTIFICATE OF EXEMPTION I claim an exemption frOln PO)II)efit of sales and use taxes f(w the Purchase of taxable itonis described hq,-Jolkor tat)the attached anta or invoice, Dm,riptiuri of Items(qr at,artacited order or Invoice)ro Be Purchased: I claim this cxcnip(jon f"the following rc2.%)n- Name of Exempt Orpni7atwn- CITY OF FORT NVORT-H.TEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-600052" Pft'ject far which material%arxi%upplies are purchased: I undcound fliat I toil]be liable for pa—meat of,4eq tax,which may becarre,due for failure to cormilv with the provisions of the state.city.aa&or metropolitan transit authority sales and use tax laws and comptroller rules regarding exetnpt purchases, Liability for the tax will be determined by the price paid ftv the taxable item pwchmcd Or the fait market rental val uc for the period of time used. I understand that it is a niisdemeanor to give an CUMPri0li CeftiticUIC 10 the set ter fim mwabit itents which I krww,at the time of the purchase,will be used in a manner other than that expensed in this cenificate and,upon conviction,may be fined up to 5500 Pe T offewqe. LU-E�Ish�,,-Dua,�OB6 �1-► �Imt-1 Em� Purchaser CIX'()F FORT WORTH.TEXAS Start Addrm; 1000 THROCKNIORTON STREET Cit}'.State.Zip Code: FORT WORTH.TEXAS 76 102 Date: Junclj,.19)(,)9 phone,- 8[7-192-g5j" .............................. This certificate does n(r'fe4ulre a number to be x3hd, S310 and use tax-c-nijujon numbe "'or"tax exemfm-numbers do not exist, This certificate shoulj be fuxmshL-d to thcsupplier rh)rK,4 send the conipletvd cenifIca(e tai the C(imp4rollcr of Public Accounis, 39 of 42 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project, naming City as an additional insured on each policy of insurance, except Workers Compensation. 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. Artist shall require the subcontractor(s) to name Artist and City as additional insureds. 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. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non-owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). 40 of 42 GENERAL POLICY REQUIREMENTS Thirty (30) days notice of cancellation or non-renewal. Example: "This insurance shall not be cancelled or non-renewed, until after thirty (30) days prior written notice has been given to City of Fort Worth, except for ten (10) days notice for non- payment of premium. Waiver of rights of recovery (subrogation)in favor of 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." (If coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to City shall evidence such insurance coverage.) 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 41 of 42 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 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 as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 42 of 42