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8244 - Contract Executed Docusign City Council Transmittal Coversheet File Name Purchasing Contact City Council Target Date Piggy Back Option Contract Expiration Ordinance DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A 8244 Bonnie Brae Art Sculpture Erica Garcia Not Applicable FILE SEPTEMBER 19, 2023 N/A 23-1710 CONTRACT FOR THE DESIGN AND COMMISSION OF PUBLIC ARTWORK FILE 8244 This Contract for the Design and Commission of Public Artwork (this “Contract”) is made and entered into as of ____________ by and between the City of Denton, a Texas home-rule municipality (“City”), and Robert L. Barnum (“Artist”) ARTICLE I. INTRODUCTION 1.1 Purpose The purpose of this Agreement is to state the terms and conditions under which the Artist shall execute, fabricate, and install the Artwork, as defined herein, in accordance with the Final Design as shown in Exhibit B at the location described and depicted in Exhibit A as described in this Contract. The Artist shall retain artistic control of the services performed under this Contract, subject only to the limitations and conditions imposed by this Contract. 1.2. Definitions The following terms, as used in this Contract, have the meanings identified below. Terms not defined below will have their ordinary and customary meanings, as generally used in the field of public art. (a) “Approval” means prior, written authorization from the Contract Administrator for the Artist to take an action under this Contract. (b) “Artist” has the meaning as defined in the heading of this Contract. (c) “Artwork” means the original piece of public art conceived, designed, implemented, constructed, and installed by the Artist as set out in this Contract. (d) “City” means the City of Denton, acting by and through its duly authorized City Manager or designee. (e) “Contract” means this contractual document for the Design and Commission of Public Artwork between the City and the Artist, including any and all attachments, exhibits, and amendments. (f) “Contract Administrator” means the Director of the City’s Parks and Recreation Department, or his designee. (g) “Contract Price” means the total compensation, identified in Section 3.1, to be paid to the Artist pursuant to this Contract. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A 09/19/2023 (h) “Effective Date” means the date on which this Contract becomes fully effective as between the Parties, and is the date provided in the heading of this Contract. (i) “Facility” means the vacant lot at the intersection of Bonnie Brae Street and Old Bonnie Brae Street, approximately .23 mile north of Vintage Blvd. (j) “Final Design” means the Final Design of the Artwork depicted in Exhibit B. (k) “Notice” means the prior, written announcement of a Party’s intention to take an action, or readiness to take action, authorized or required by the Contract. (l) “Party” means either the City or the Artist, and “Parties” means the City and the Artist collectively. (m) “Schedule” means the full and complete schedule developed and prepared by the Artist, for input and Approval from the City, to address the design, fabrication, delivery, transportation, and installation of the Artwork. (n) “Site” means the portion of the Facility on which the Artwork will be installed. (o) “Sponsoring Department” means the Parks and Recreation Department of the City. 1.3. Term of the Contract The term of this Contract shall begin on the Effective Date, with a completion date within 6-9 months, unless terminated earlier in accordance with the requirements of this Contract. ARTICLE 2. ARTIST’S RESPONSIBILITIES AND COMMITMENTS 2.1. General Services (a) The Artist shall not start any work under this Contract until the Artist receives the Notice to proceed from the City. A. Project Schedule (a) Prior to beginning any other work under this Contract, the Artist shall develop and provide to the City a tentative Schedule with a completion date within 6-9 months of effective date. (b) The Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Artwork, subject to Approval by the City. (c) The exact location of the Site will be mutually agreed upon by the Parties and shall be within the area depicted on Exhibit A. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (d) The Artist may request, at any time, all information, materials, and scaled drawings of the Site, if available, and any reasonable assistance required by the Artist to enable the Artist to perform the services required by this Contract. To the extent such information is available to the City or to third parties under the City’s control, the City will promptly provide such information to the Artist. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A 2.2. Schedule The Artist shall coordinate with the City in order to ensure that all relevant dates and times are included and accounted for in the Schedule. B. Project Schedule (A) The proposed project must be completed, delivered, and installed within 6-9 months of contract effective date. Any project that would require a later completion date may be submitted with a full explanation of why a later completion date should be considered. (B) The City will either issue Approval of the Schedule, with or without modifications, or reject the draft Schedule. If the City rejects the draft Schedule, the Artist shall revise and resubmit the draft Schedule within the time period required by the City in its Notice of rejection. (C) When the City gives its Approval of the Schedule, either with or without modifications, it will issue Notice to the Artist to proceed with the design of the Artwork. (D) Once approved by the City, the Schedule shall control all design, review, fabrication, implementation, transportation, installation, and completion deadlines for the Artwork. 2.3. Changes to the Schedule (a) The Artist may only make modifications to the approved Schedule upon written request to, and Approval of, the City. The City may request from the Artist any information or documentation it deems necessary in order to evaluate any request to amend the approved Schedule. (b) The City may, on its own initiative and at any time, direct any changes to the approved Schedule it deems necessary or appropriate. 2.4. Design (a) The Artist shall perform all services, including but not limited to meeting with City staff and City-designated advisors and stakeholders as directed by the Contract Administrator, in order to prepare the Final Design of the Artwork. (b) The Artist shall perform as many inspections and investigations of existing Site conditions as needed, prior to installation of the Artwork, and shall ensure that the Final Design appropriately accounts for all existing Site conditions. If the Artist believes any differences, discrepancies, errors, omissions, or inconsistencies exist between the Artist’s inspection of the Site and the Site materials provided by the City, the Artist must notify the City prior to continuing with design and/or installation of the Artwork. (c) Within 30 days after the Notice to Proceed by the City, the Artist shall prepare and submit to the City, at a minimum, the following: DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (1) Working drawings detailing all elements of the Artwork and the means of installing the Artwork at the Site, together with the Design Sketches and any other graphic material requested by the City. The drawings will become part of this Contract upon receipt; (2) A written maintenance plan that includes, but is not limited to, all technical information about the materials, the strength, durability, and maintenance requirements of the proposed Artwork, information on the appropriate maintenance and preservation of the Artwork, and any associated replacement costs; (3) A list of permits that will be required for the completion of the Artwork; (4) An itemized budget for completion of the Artwork, including written vendor quotes for all materials, fabrication, engineering, installation, permitting, insurance, and any other associated costs; and (5) An updated Schedule. (d) Within 30 days of its receipt of the materials and information as set out in Subsection 2.4(c), the City will notify the Artist of any revisions to the Final Design required by the City, which revisions shall automatically become incorporated into the Final Design. The reasons the City may require the Artist to revise the Final Design, include but are not limited to: (1) To comply with any applicable statutes, ordinances, or regulations; (2) To account for any life, health, safety, or security concerns; and (3) Any non-aesthetic reason that the City, in its sole judgment and discretion, deems necessary or appropriate. 2.5. Fabrication (a) Following City approval of the Final Design, the City will issue Notice to proceed with fabrication to the Artist, which will advise the Artist of any required modifications to the Schedule. (b) After the City provides Notice to proceed, the Artist shall begin fabrication and installation of the Work at the Site in accordance with the Schedule. (c) The City shall have the right to review the Artwork at reasonable times and locations throughout the fabrication and installation process. The Artist shall submit to the City any progress reports requested by the City or identified in the Schedule. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (d) Upon completing the fabrication of the Artwork and prior to beginning any transportation or installation, the Artist shall: (1) Give the City Notice that all pre-installation fabrication is complete and that the Artist is ready to begin installation of the Artwork at the Site; (2) Conduct any further Site inspections necessary to verify that installation of the Artwork can proceed according to the Final Design. The Artist shall immediately give Notice to the City of any changes to the Site observed since the inspection conducted pursuant to Section 2.4, and the Parties will resolve any such changes via the change procedures set out in Section 2.8 prior to installation; (3) At the City’s request, attend one or more pre-installation meetings as necessary to allow the Artist to adequately plan for delivery and installation of the Artwork; and (4) Obtain all required permits for delivery and installation of the Artwork. 2.6. Installation (a) After the City has received the Artist’s Notice that pre-installation fabrication is complete and any Site issues are resolved, the City will give Notice to the Artist authorizing installation of the Artwork at the Site. The Artist shall only start installation after receiving this Notice. At the City’s direction, the Artist may be required to successfully complete any Site-specific or general safety training prior to entering the Site. (b) If the City fails to provide notice to proceed with installation within the timeframe specified in the Schedule, despite the fact that the Artist is ready and able to begin installation, the Artist shall store the Artwork at the Artist’s facility at no cost to the City. If the Artist is unable to do so, and provides a written explanation to the City, the City will either: (1) make arrangements for storage of the Artwork at a City-controlled or commercial storage facility; or (2) direct the Artist to obtain three quotes for storage at a commercial storage facility, approve one of the quotes, and agree to reimburse the Artist for any direct, out- of-pocket, reasonable transportation and storage costs incurred by the Artist. Any reimbursements to which the City agrees will be reduced to writing in a Contract amendment. (c) The Artist shall remain responsible for all expenses, labor, and equipment necessary to prepare the Site for installation of the Artwork. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (d) The Artist shall take all necessary precautions to protect and preserve the integrity and finish of adjacent surfaces and landscaping features while installing the Artwork. If requested by the City, the Artist shall return adjacent surfaces or landscape features impacted by the installation to the condition that existed prior to installation of the Artwork. (e) At all times during the installation of the Artwork, the Artist shall comply with all posted safety information signs and shall comply with all requirements for use of personal protective equipment. The Artist shall comply with any directive necessary for the preservation of life, health, or property that is given by the City or any law enforcement or administrative officer with jurisdiction over the Facility. 2.7. Changes to the Artwork (a) At any time prior to closeout as set out in Section 2.9, the Artist may make changes to the Final Design or the Artwork, whether for aesthetic, safety, construction, or other reasons, and the City may likewise direct the Artist to make changes to the Final Design or Artwork for any nonaesthetic reason. Such changes to the Final Design or Artwork shall be made as follows: (1) Minor changes to the Final Design or Artwork initiated by the Artist require Notice to, but not Approval from, the City. Minor changes are changes that do not impact the overall scope, layout, color, shape, size, material, texture, or structural elements of the Artwork. The City has the sole discretion to determine what constitutes a minor or major change. The Artist may consult with the Contract Administrator, as needed, to ensure changes are properly classified as minor and major. The City may also reject, for non- aesthetic reasons, a minor change within 20 days of receipt of the Notice from the Artist of the change. (2) Major changes to the Final Design or Artwork initiated by the Artist require Approval by the City. Major changes include, but are not limited to, changes to the overall scope, layout, imagery, color, shape, size, material, texture, or structural elements of the Artwork. The City may reject any proposed major change for any reason. If the City rejects a major change, the Artist shall either continue with the Final Design as approved by the City or shall revise and resubmit the proposed major change within 10 days of the City's original rejection. If the City rejects any re-submitted change, the City may terminate this Contract for convenience pursuant to Section 5.4, if the Artist will not revert to the Final Design without the proposed changes. (b) All major changes initiated and approved under this Section 2.7 shall be documented in a Contract amendment, executed by both Parties. The City may, in its sole discretion, determine that any change, whether initiated by the City or by the Artist, warrants an adjustment of the Contract Price or the Schedule, or both. Any adjustment to the Contract Price shall be included in a corresponding Contract amendment. Any adjustment to the Schedule must be documented and provided to both Parties. If the City does not change DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A the Contract Price, the Artist shall bear the sole risk and cost of any changes to the Final Design or Artwork. 2.8. Completion (a) The Artist shall give Notice to the City when the Artist believes the installation of the Artwork is complete. The Artist shall attend any inspection of the Artwork by the City. (b) If the City determines that the Artwork is unsafe, incomplete, or materially inconsistent with the Final Design, the City may take any of the following actions: (1) Accept the Artwork as constructed and installed, reserving its right to modify the Contract Price to address the unsafe, incomplete, or materially inconsistent conditions; (2) Direct the Artist to correct any unsafe, incomplete, or materially inconsistent condition in the Artwork, at the Artist’s cost, reserving the City’s right to modify the Contract Price in order to account for any delays caused by the deficiencies. The Artist shall bear the sole risk that the time required to comply with the City’s directions will exceed the time allotted under the Schedule; or (3) Reject the Artwork and terminate this Contract for cause in the manner set out in Section 5.4, reserving any and all other remedies available to the City under this Contract or applicable law. If the City terminates this Contract for cause under this Section, the opportunity to cure provided in that Section will not apply. (c) The Artist shall be responsible for any and all clean-up of the Site, including the proper recycling or disposal of any unused, excess, or leftover materials not incorporated into the Artwork. If the Artist fails to do this and the City incurs additional costs to clean up the Site, the City shall be entitled to deduct all such costs from the final milestone payment. (d) If the City accepts the Artwork, either with or without modifications to the Contract Price, the City will issue a Certificate of Completion in a form provided by the City. The issuance of a Certificate of Completion does not waive any rights or remedies afforded the City in this Contract or by law, nor does it waive any deficiencies in the Artist’s work. 2.9. Closeout (a) Within 30 days after installation of the Artwork is complete and the City has accepted the Artwork, the Artist shall submit to the City the following: DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (1) A full set of as-builts (updated plans, specifications, and documentation) reflecting the actual installation of the Artwork and noting any deviations from the Final Design; (2) A final maintenance plan; (3) A final budget report, if requested by the City; (4) A plaque information form, if requested by the City; and (5) An affidavit of bills paid, in a form provided by the City. (b) Within 30 days after the Artist provides the documents specified above in this Article, the City will evaluate the Artist’s compliance with the terms of this Contract. 2.10. Lectures and Public Education The Artist shall, if requested by the City, attend and present at least one lecture or other public education event to an audience designated by the City, in the format requested by the City and on a mutually agreeable date and time. The public education event, if required by the City, shall be without additional compensation to the Artist. ARTICLE 3. PAYMENT TO ARTIST 3.1. Contract Amount The Contract Price for this Contract is $25,000. 3.2. Full Consideration In exchange and consideration for the Artist undertaking the obligations in this Contract, the City agrees to pay the Artist the Contract Price. The Artist agrees that the Contract Price is the only compensation owed to the Artist under this Contract, and agrees to be solely responsible for all costs related to design, execution, fabrication, transportation, travel, delivery, mailing, shipping, delivery, installation, labor, insurance, permitting and licensing, and any other costs incurred by the Artist in fulfilling all obligations under this Contract. 3.3. Payment Schedule (a) Payment of the Contract Price will be in the following percentages and at the following payment milestones: • Milestone 1 – $8,000 within 30 days of the City giving Notice to proceed with design of the Artwork. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A • Milestone 2 – $8,000 within 30 days of the City Notice to proceed with Artwork fabrication. • Milestone 3 - $9,000 within 30 days after the Artist gives Notice to the City of completion of Artwork and has transferred title to the Artwork to the City. (b) The City may, at its option, withhold payment otherwise due under this Contract in order to offset any debt (including taxes) lawfully owed by the Artist to the City, regardless of whether the amount due arises pursuant to the terms of this Contract or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. 3.4. Tax-Exempt Status The Artist acknowledges that the City is a tax-exempt organization, and that no state or local sales taxes, and no federal excise tax, will be due on the Artwork or the materials and supplies used in the design and fabrication of the Artwork. Upon request of the Artist, the City will provide Artist with a Texas Sales Tax and Local Sales Tax Exemption Certificate for Contractors. The Artist shall only use this certificate in accordance with law. The City shall not reimburse the Artist for state sales tax, local sales tax, or federal excise tax. ARTICLE 4. THE ARTWORK 4.1. Warranties and Representations (a) The Artist warrants and represents that: (1) The Final Design and Artwork are and shall be original creations of the Artist and is not the subject of an existing patent or copyright owned by any other person. (2) The Artist has obtained, or shall obtain prior to any incorporation or use, the written approval and consent of any required third party for the use of any portion of the Final Design or the Artwork that is not the original work of the Artist. (3) Except as otherwise disclosed to the City in writing, the Final Design is and shall be free of any defects of design. (4) From the Effective Date through a date one year following the City’s acceptance of the Artwork, that: (A) The execution and fabrication of the Artwork shall be performed in a good and workmanlike manner; DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (B) The Artwork, as fabricated and delivered, shall be free of defects in material and workmanship, including any defects consisting of inherent vice or qualities that may cause or accelerate deterioration of the Artwork; and (C) Reasonable maintenance of the Artwork shall not require procedures substantially in excess of those described in the final maintenance plan required by Section 2.4(b)(2). (b) The City will give Notice to the Artist of any observed breach of these warranties and representations. Once notified by the City, the Artist shall, at no cost to the City, promptly cure the breach or breaches consistent with professional conservation standards, including but not limited to cure by repairing or refabricating the Artwork or any necessary portion of the Artwork. 4.2. Ownership (a) The Artist will remain the owner of the Final Design and Artwork until title transfers to the City as follows: (1) Within 10 days of the City’s acceptance of the Artwork, the City will issue to the Artist a Transfer of Title for Public Artwork. (2) On issuance of the Transfer of Title for Public Artwork, the City shall become the owner of the Final Design and the Artwork, without restriction on future use except as provided below, and shall also take title in and to any and all drawings, renderings, maquettes, sketches, models, and any other documents and materials created by the Artist in furtherance of the Final Design or the Artwork. The Artist shall promptly deliver to the City all such materials that are still in the Artist’s possession. (b) The Artist will retain all reproduction rights afforded by the Copyright Act of 1976, as currently codified and amended, and any other reproduction rights in and to the Artwork except as limited by and in this Contract. (1) The Artist may not make any additional exact duplicate or three-dimensional scale reproductions of the Artwork and may not grant permission to do so to any third parties except with Approval from the City. The Artist retains the right to make 2-D reproductions of the work for use in promotional materials, portfolios, websites and other locations where the artist is promoting the Artwork. If the Artist is granted Approval by the City to reproduce the Artwork in a limited edition, the Artist agrees to include on or in any form of reproduction of the Artwork initiated or authorized by the Artist a credit to the City of Denton in the following form: “Collection of the City of Denton.” (2) The Artist grants to the City and its assigns an irrevocable license to graphically depict or display the Artwork or make two-dimensional reproductions of the Artwork for any municipal or public purpose, including but not limited to any publicity the City deems appropriate or beneficial. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (3) All reproductions by the City shall credit the Artist and include a copyright notice substantially in the following form: “© [Artist’s name], installation year, Commissioned by the City of Denton.” Any reproductions of the Artwork made by the Artist shall credit the City and shall contain a notice in the form “An original work owned and commissioned by the City of Denton.” 4.3. Insurance and Risk of Loss (a) The Artist shall bear all risk of loss and damage to the Artwork until title transfers to the City as set out in Section 4.2. (b) The Artist agrees to carry insurance in the types and amounts indicated in Exhibit C. (1) Workers’ Compensation and Employers’ Liability insurance coverage must be in place before the Artist begins any work on the Site, including but not limited to installation of the Artwork and any predicate Site preparation. (2) Commercial General Liability insurance coverage and Automobile Liability insurance coverage must be in place no later than 30 days after the Effective Date. (3) Professional Liability insurance coverage for any design professional must be in place at the time the design professional places her/his seal on design drawings submitted to the City. (4) If the Artist is fabricating the Artwork anywhere other than the Site location, a Fine Arts Floater or other Property Insurance must be in place before fabrication of the Artwork begins. (c) Approval by the City of any insurance obtained by the Artist will not diminish or decrease the liability of the Artist under this Contract. 4.4. Visual Artists Rights Act (a) The Artist agrees and understands that nothing in this Contract shall affect or limit the City’s absolute, unrestricted right incidental to the City’s full ownership of the artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell, or transfer, in whole or in part, the Artwork when the City deems it necessary within its discretion, in order to otherwise exercise the City’s powers and responsibility in regard to public works and improvements, in furtherance of the City’s operations or for any other reason. (b) When a work of visual art is incorporated in or made part of a City-owned building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work, the City shall have absolute, unrestricted rights incidental to its full ownership of the final artistic work to alter, DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A change, modify, destroy, remove, move, replace, transport, or transfer, in whole or in part, the final artistic work when the City deems it necessary within its discretion in order to exercise the City's powers and responsibilities in regard to public works and improvements, in furtherance or the City's operations or for any other good cause. (c) The City shall make a good faith effort to provide the Artist with prior Notice of the City’s intent to undertake any alterations to the Artwork that may impact the Artwork. However, the Artist consents to the City’s actions that may destroy, distort, mutilate, or otherwise modify the Artwork. After the Artwork is owned by the City, Artist specifically waives the right to bring a legal action for injunction, money damages, legal fees or any other legal or equitable remedy against the City, its agents and employees, for relocation, damage, modification, or destruction of the Artwork whether intentional, unintentional, negligent, or grossly negligent. (d) To the extent this Section is inconsistent with federal, state, or local law or any applicable rights, including the 1990 Visual Artists Rights Act, the Artist waives any right to preservation of the Artwork provided by those laws. Artist shall retain the right to disclaim authorship of the Artwork as set forth in the 1990 Visual Artists Rights Act. 4.5. Maintenance, Repairs, and Alteration to the Artwork (a) The City recognizes that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. The City shall have the sole right to determine whether, when, and to what extent any repairs or restorations of the Artwork will occur. All repairs and restorations, whether by the City or by the Artist, will be made in accordance with then-current, generally accepted principles of conservation. To the extent this Section is inconsistent with any rights, including moral rights, which would otherwise be provided to the Artist by applicable law, including the 1990 Visual Artists' Rights Act as codified and amended, the Artist waives any right to preservation of the Artwork provided by those laws. The Artist will retain the right to disclaim authorship of the Artwork to the extent allowed by the 1990 Visual Artists’ Rights Act as codified and amended. The City will have the right at any time to either move the Artwork or remove it from public display. The City will also have the right, in its discretion and at any time, to sell, trade, or otherwise transfer ownership of the Artwork. (b) The obligations of the City, and the rights of the Artist, set out in this Section shall not survive the death or legal incapacity of the Artist. ARTICLE 5. CONTRACT MANAGEMENT 5.1. Amendment in Writing This Contract may be modified only by a writing properly executed by each of the Parties. Neither any representation or promise made after the execution of this Contract, nor any modification or amendment of this Contract, shall be binding on the Parties unless made in writing and properly executed by each of the Parties. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A 5.2. Subcontracting by the Artist (a) The Artist may subcontract portions of the services to be provided under this Contract, at the Artist’s sole expense, subject to the following limitations: (1) The Artist’s use of subcontractors may not affect the design, appearance, fabrication methodology, or visual quality of the Artwork. (2) The Artist is responsible for all work performed by subcontractors. (3) The Artist shall remain fully responsible to the City for the actions of any subcontractors engaged by the Artist. (4) Any subcontract must be in writing, must attach this Contract as an exhibit, and must acknowledge the supremacy of this Contract in the case of any conflict between the two. All subcontractors shall remain subject to the terms of this Contract at all times. (5) Prior to the Artist entering into a subcontract, the Artist shall give Notice to the City, identifying the proposed subcontractor, the proposed scope(s) of work, and the dollar amount of the subcontract. The City may reject a subcontractor proposed by the Artist. If the City rejects a proposed subcontractor, the Artist may not use that subcontractor on this Contract. (6) The Artist shall require each subcontractor, as a condition to entering into each subcontract, to comply with the City’s insurance requirements as set out in Exhibit C. The Artist shall further obtain, on request from the City, a certificate or certificates of insurance sufficient to satisfy the City that each subcontractor is in compliance with the insurance requirements of this Contract. 5.3. Termination for Cause (a) In the event of a default by the Artist, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Artist, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City’s reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses, and expenses, incurred by the City as a result of the Artist’s default, including, without limitation, cost of cover, reasonable attorneys’ fees, court costs, and prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Artist, the City may remove the Artist from the City’s vendor list for three (3) years and any future offer submitted by the Artist may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (b) The City may also terminate this Contract for cause if the Artist dies or becomes physically or legally incapacitated during the term of this Contract. Termination under this paragraph will only require notice to the Artist or the Artist’s legal successor or guardian, as applicable. All finished and unfinished drawings, sketches, photographs, models, and work will become property of the City. If, prior to the Artist’s death or incapacity, the Final Design is approved by the City or the Artwork has progressed to the point of fabrication, the City may complete the Artwork, giving due regard to the Artist’s intended results and giving proper credit and acknowledgement to the Artist. 5.4. Termination for Convenience The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days’ prior written Notice to Artist. If the City terminates this Contract for convenience, the Artist shall immediately stop performance under this Contract (unless the Notice directs otherwise) and deliver all drawings, renderings, maquettes, sketches, models, and any other documentation and materials created by the Artist for the Final Design or creation of the Artwork to the City within 10 business days. If the City approves reimbursements for purchases of materials used for the development of the design in excess of the payments the Artist received prior to the City’s termination for convenience, the City will reimburse the Artist for amounts expended under this Contract within 30 calendar days of the Artist’s submission of receipts documenting such material purchases. 5.5. Appropriation The Artist acknowledges that the City’s payment obligations to the Artist are payable only from funds appropriated or available for the purpose of this Contract. If the City does not appropriate funds for this Contract, or if there are no other lawfully available funds for this Contract, this Contract is void. The City shall provide the Artist with Notice of the failure of the City to make an adequate appropriation for any fiscal year to pay the amounts due under this Contract, or of the reduction of any appropriation to an amount insufficient to permit the City to pay its obligations under this Contract. 5.6. Force Majeure (a) Each Party agrees to excuse the failure of the other Party to perform its obligations under this Contract to the extent, and for a period of time during which, the failure is caused by an event of Force Majeure. An event of Force Majeure is any event or circumstance which prevents or delays performance of any obligation arising under this Contract, but only if and to the extent the event or circumstance is not within the control of the Party seeking to have its performance obligation excused and which the Party was unable by the exercise of due diligence to avoid or prevent. Events of Force Majeure include acts of God, riots, sabotage, civil disturbances, acts of domestic or foreign terrorism, lightning, earthquakes, fires, storms, floods, and landslides. Events of Force Majeure do not include economic or market conditions which affect a Party’s cost but not its ability to perform. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (b) The Party invoking Force Majeure shall give timely and adequate Notice to the other Party, by e-mail or orally but confirmed promptly in writing, and shall use due diligence to remedy the effects of an event of Force Majeure as soon as reasonably possible. In the event a Party’s performance of an obligation under this Contract is delayed due to a Force Majeure event, then the time for completion of the Party’s obligation will be extended day-for-day, provided that an event of Force Majeure shall not last more than 90 days. If an event of Force Majeure affecting the Artist’s performance continues for more than 90 days, the City shall have the right to terminate this Contract upon Notice to the Artist. The Contract shall terminate immediately upon receipt of such Notice. 5.7. Notices (a) Unless explicitly stated elsewhere in this Contract, all Notices must be given in the manner set out in this Section in order to be effective. (b) Any Notice required or allowed to be given or to be served in connection with this Contract will be deemed delivered and received on the earlier of the date actually received or a date that is: (1) Three calendar days after being deposited in the United States mail, if sent via certified mail, properly addressed and with postage prepaid; or (2) The date delivery is originally scheduled to occur, if sent via a reputable overnight courier service. (c) Notice to each Party must be given as follows: The City: The City of Denton Attn: Director of Parks and Recreation 321 E. McKinney St Denton, TX 76201 The Artist: Robert L. Barnum 8460 Midstate Drive Mecosta, Michigan 49332 (d) The Parties will each have the right to change their respective addresses for Notice purposes, and will have the right to specify as its address any other address within the United States of America by giving the other Party at least five days’ Notice. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A (e) The Artist is responsible for giving prompt Notice to the City of any changes to the Artist’s address(es). 5.8. Right to Assurance When one Party, in good faith, has reason to question the other Party’s intent to perform its obligations under this Contract, that Party may make demand on the other Party for written assurance of the intent to perform. The Party who is asked for assurance has 10 business days to provide Notice of its written assurance of intent to perform. If the Party fails to provide the assurance, the demanding Party may treat this failure as an anticipatory repudiation of the Contract and terminate the Contract for cause. ARTICLE 6. TERMS AND CONDITIONS 6.1. Right to Audit The Artist agrees that the representatives of the Office of the City Auditor, or other authorized representatives of the City, shall have access to, and the right to audit, examine, or reproduce, any and all of the Artist’s records related to this Contract. The Artist shall retain all such records for a period of three years after final payment on this Contract or until all audit and litigation matters that the City has brought to the attention of the Artist are resolved, whichever is longer. The Artist agrees to refund to the City any overpayments disclosed by any such audit. 6.2. Indemnification (a) THE ARTIST SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS OFFICERS, APPOINTED OR ELECTED OFFICIALS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS (THE “INDEMNIFIED PARTIES”) AGAINST ALL COSTS, LIABILITIES, DAMAGES, CLAIMS, SUITS, ACTIONS, AND CAUSES OF ACTIONS (“CLAIMS”), TO THE EXTENT IT ARISES DIRECTLY OR INDIRECTLY OUT OF (A) A BREACH OF THIS CONTRACT OR VIOLATION OF LAW BY THE ARTIST AND THE ARTIST’S EMPLOYEES, SUBCONTRACTORS, SUCCESSORS, AND ASSIGNS (THE “ARTIST PARTIES”), (B) A FALSE REPRESENTATION OR WARRANTY MADE BY THE ARTIST PARTIES IN THIS CONTRACT, IN THE ARTIST’S PROPOSAL, OR THE FORMATION OF THIS CONTRACT, (C) THE DESIGN OR INSTALLATION OF THE ARTWORK, (D) THE INTELLECTUAL PROPERTY INVOLVED IN THE DESIGN AND CREATION OF THE ARTWORK, AND (E) THE NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF A STANDARD OF STRICT LIABILITY BY THE ARTIST PARTIES IN CONNECTION WITH THIS CONTRACT. CLAIMS TO BE INDEMNIFIED INCLUDE CLAIMS FOR BODILY INJURY OR DEATH, OCCUPATIONAL ILLNESS OR DISEASE, LOSS OF SERVICES WAGES OR INCOME, DAMAGE, DESTRUCTION, OR LOSS OF USE OF PROPERTY, AND WORKERS’ COMPENSATION CLAIMS. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A THE ARTIST’S OBLIGATIONS UNDER THIS SECTION ARE NOT EXCUSED IN THE EVENT A CLAIM IS CAUSED, IN PART, BY THE ALLEGED NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTIES. (b) The City shall give the Artist Notice of any Claim asserted against an Indemnified Party. The Artist shall assume on behalf of the Indemnified Parties and conduct with due diligence and in good faith the defense of all Claims against the Indemnified Parties. The Indemnified Parties shall have the right (but not the obligation) to participate in the defense of any claim or litigation with attorneys of their own selection without relieving the Artist of any obligations in this Contract. In no event shall the Artist admit liability on the part of an Indemnified Party without the prior, written consent of the City Attorney. (c) Maintenance of the insurance required under this Contract shall not limit the Artist’s obligations under this Section. The Artist shall require all subcontractors to indemnify the City in the same manner as provided in this Article. 6.3. Independent Contractor This Contract shall not be construed as creating an employer/employee relationship, a partnership, joint enterprise, or a joint venture between the Parties. The City and the Artist are independent contractors. The Artist agrees and understands that this Contract does not grant any rights or privileges established for employees of the City. 6.4. Competent, Orderly Workers The Artist and any subcontractors of the Artist shall only employ orderly and competent workers, skilled in the performance of the services that they will perform under the Contract. The Artist, the Artist’s employees and subcontractors, and subcontractors’ employees may not: (1) illegally use or possess any firearms, or (2) use or possess alcoholic or other intoxicating beverages, illegal drugs, or controlled substances, while on the job or on City’s property. The workers may not be intoxicated or under the influence of alcohol or drugs on the job. If the City notifies the Artist that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated City rules, has illegally possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Artist shall immediately remove the worker and the worker may not be employed again for work on this Contract without the City’s written consent. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A 6.5. Survival of Obligations All provisions of this Contract that impose continuing obligations on the Parties, including but not limited to warranty, indemnification, limitation of liability, and keeping addresses for Notice current, shall survive the expiration or termination of this Contract. 6.6. Election of Remedies / No Waiver Neither the exercise of nor the failure to exercise a right or to give notice of a claim under this Contract shall constitute an election or waiver of remedies or limit a Party in any manner in the enforcement of any other remedies that may be available to the Party, whether at law or in equity. 6.7. Jurisdiction and Venue This Contract is made subject to the City Charter and ordinances of the City, and all applicable laws of the State of Texas, without regard to conflicts of laws principles which would apply the law of any other jurisdiction. The courts of Texas shall have jurisdiction of any dispute arising out of or concerning this Contract, either administrative or judicial, and venue shall be proper and lie exclusively in Denton County Texas. 6.8. Severability If a court of competent jurisdiction determines that a term or provision of this Contract is void or unenforceable, the remainder of this Contract remains effective to the extent permitted by law. 6.9. Prohibition on Contracts with Companies Boycotting Israel Contractor acknowledges that in accordance with Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. 6.10. Prohibition on Contracts with Companies Boycotting Certain Energy Companies Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms “boycott energy company” and “company” shall have the DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A meanings ascribed to those terms in Section 809.001 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the agreement. Failure to meet or maintain the requirements under this provision will be considered a material breach. 6.11. Prohibition on Contracts with Companies Boycotting Certain Firearm Entities and Firearm Trade Associations Contractor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains written verification from the company that it (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms “discriminate against a firearm entity or firearm trade association,” “firearm entity” and “firearm trade association” shall have the meanings ascribed to those terms in Chapter 2274 of the Texas Government Code. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. Failure to meet or maintain the requirements under this provision will be considered a material breach. 6.12 Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or a Foreign Terrorist Organization Sections 2252 and 2270 of the Texas Government Code restricts CITY from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this agreement, Contractor certifies that Contractor’s signature provides written verification to the City that Contractor, pursuant to Chapters 2252 and 2270, is not ineligible to enter into this agreement and will not become ineligible to receive payments under this agreement by doing business with Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the requirements under this provision will be considered a material breach. 6.13 Termination Right for Contracts with Companies Doing Business with Certain Foreign-Owned Companies The City of Denton may terminate this Contract immediately without any further liability if the City of Denton determines, in its sole judgment, that this Contract meets the requirements under Chapter 2274, and Contractor is, or will be in the future, (i) owned by or the majority of stock or other ownership interest of the company is held or controlled by individuals who are citizens of China, Iran, North Korea, Russia, or other designated country (ii) directly controlled by the Government of China, Iran, North Korea, Russia, or DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A other designated country, or (iii) is headquartered in China, Iran, North Korea, Russia, or other designated country. 6.14. Execution in Counterparts This Contract may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which, taken together, shall constitute one and the same Contract. 6.15. Mutual Drafting This Contract shall be deemed to be the joint work product of the Parties and any rule of construction that a document shall be interpreted or construed against the drafter shall not be applicable to this Contract. 6.16. Complete Agreement This Contract constitutes the entire agreement and understanding between the Parties and supersedes all previous agreements, understandings, discussions, and representations concerning its subject matter. This Contract includes the following exhibits, which are incorporated into this Contract by reference: Exhibit A. Scope of Work and Location Map Exhibit B. Depiction of Artwork Exhibit C. Insurance Requirements Exhibit D. Certificate of Interested Parties Electronic Filing The parties agree to transact business electronically. Any statutory requirements that certain terms be in writing will be satisfied using electronic documents and signing. Electronic signing of this document will be deemed an original for all legal purposes. [Signature on following page] DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A IN WITNESS HEREOF, City and Artist have hereby executed this Agreement; the City acting by and through its duly-authorized Purchasing Agent; and the Contractor acting by and through its duly-authorized, undersigned officer, on this date ________________________. ARTIST: ___________________________________ Name:______________________________ Title:_______________________________ CITY: CITY OF DENTON BY: Sara Hensley City Manager ATTEST: __________________________________ Jesus Salazar, City Secretary APPROVED AS TO LEGAL FORM: BY: Mack Reinwand, City Attorney THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations and business terms. _______________ ________________ SIGNATURE PRINTED NAME __________________________________ TITLE __________________________________ DEPARTMENT DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A Robert Barnum ARTIST Director of Parks and Recreation Gary Packan Parks and Recreation 09/19/2023 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) Parks and Recreation Department 901 Texas St., Denton, Texas 76209 Request for Proposal – Old Bonnie Brae Sculpture Scope of Services It is the intent of the City of Denton, through the Public Art Committee, to request proposals from artists for an outdoor public art project to be located at the juncture of Bonnie Brae Street and Old Bonnie Brae Street, north of Vintage Boulevard (see Map 1 and Map 2 for additional context). The public art project should provide a place-making landmark, amenable to night illumination, that will make contextual sense for the designated location. No water features will be considered. The public art project materials to be used should be durable and be able to wear well over time with proper maintenance. The proposal may be for an already constructed piece that will match site specifications and theme or a piece that will be constructed or modified to fit site specifications. The total estimated project budget includes funds for artist/design fees, cost of materials, construction costs, delivery, and installation. A. Specifications for the Project The art will be sited at the vacant lot at the intersection of Bonnie Brae Street and Old Bonnie Brae Street, approximately .23 mile north of Vintage Blvd, at the southern tip of the parcel of land identified by Property ID: 580184 on the Denton County CAD property map (https://bit.ly/3maof2f). The installation location is south of the Old Bonnie Brae Street curve that intersects with Bonnie Brae, and is located in the grassy area between the two walking paths (see Map 1, Map 2). The Parks and Recreation Department will provide an installation site on a 4 x 4 x 3-foot concrete pedestal, if desired by the artist(s). If the proposed project will not use this particular concrete pedestal, the method by which the art work is anchored to the landscape should be specified in the proposal. The theme of the sculpture should be: North Texas avian wildlife and riparian fauna, and the sculpture should be sized so that it functions as a recognizable landmark from the adjoining streets. Additional information regarding the site and park will be provided upon request DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 2 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) B. Project Schedule The proposed project must be completed, delivered, and installed by October 31, 2023. Any project that would require a later completion date may be submitted with a full explanation of why a later completion date should be considered. C. Project Budget The project has an approved budget of $25,000. The proposal project budget includes funds for one location which includes artist/design fees, cost of materials, construction costs, delivery, and installation. The proposal and project must not include any expenses over $25,000. D. Qualifications of Artist The following should be included in the proposal: 1. Resume of the Artist submitting the proposal that demonstrates qualifications to complete similar projects. 2. No more than eight (8) slides or digital images of completed work by the artist, including any commissioned pieces that have been completed. 3. An artist’s statement. 4. Sketches, rendering, or maquette of the imagery that will be executed. 5. A written statement from the artist discussing their vision and the piece they are proposing. 6. A complete description of the materials from which the piece will be made. 7. A detailed budget that shows artist/design fees cost of materials, and installation costs. 8. A description of what is required to maintain and conserve the piece. 9. A detailed timeline for the completion and installation of the project. E. Selection Process The City of Denton Public Art Committee will review the proposals and select the artist whose submission and qualifications demonstrate best the ability to complete the project. The Public Art Committee’s recommendation will then be presented to City Council for their consideration and if final approval is granted by the City Council, a contract between the selected artist and the City of Denton will be executed. This project is intended to be artistic in nature. Therefore, any proposals that include advertising, soliciting, campaigning, or other promotional or commercially driven content are ineligible. F. Submission Submittals will go through the City of Denton’s Purchasing Department online bidding system, Ionwave. If you have any additional questions please contact Erica Garcia at erica.garcia@cityofdenton.com. The deadline for submitting proposals is April 21, 2:00 PM CST. To view submittal instructions and project requirements please visit: www.dentontx.ionwave.net. New applicants using Ionwave will need to register as a supplier, following the website prompts. When registering Ionwave will ask what NIGP code you want use. Please choose code: 933 (Service Only) DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 3 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) Artist as your NIGP Code. Once logged into Ionwave, you can view all the details regarding the project. The scope of work can be found in the attachment section. For all questions please email Erica.garcia@cityofdenton.com or omar.siddiqi@cityofdenton.com. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 4 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) Exhibit A – Site and Location Information S. Bonnie Brae at Old Bonnie Brae Sattelite Site Map Site indicated by red circle S. Bonnie Brae Street site location, Denton CADMap DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 5 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S. Bonnie Brae at Old Bonnie Brae Close Up Image Site indicated by red circle DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 6 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S. Bonnie Brae at Old Bonnie Brae Site indicated by red arrow Project site in wider, citywide context, Denton CAD Map DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 7 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S. Bonnie Brae at Old Bonnie Brae Site photographs Site location Old Bonnie Brae curving to Bonnie Brae Street Site location, just south of Old Bonnie Brae curve DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A Scope of Work – South Bonnie Brae and Old Bonnie Brae Sculpture Page 8 of 8 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S. Bonnie Brae at Old Bonnie Brae Optional Pedestal Schematic Street view Pedestal Detail DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT A DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A EXHIBIT B EXHIBIT C INSURANCE REQUIREMENTS Respondent’s attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their respective insurance carriers or brokers to determine in advance of Proposal/Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low respondent fails to comply strictly with the insurance requirements, that respondent may be disqualified from award of the contract. Upon contract award, all insurance requirements shall become contractual obligations, which the successful ARTIST/CONTRACTOR shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the ARTIST/CONTRACTOR, the ARTIST/CONTRACTOR shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of contract award, ARTIST/CONTRACTOR shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. ARTIST/CONTRACTOR may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, ARTIST/CONTRACTORs are strongly advised to make such requests prior to proposal/bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposal/bid. ARTIST/CONTRACTOR shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A+ or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the ARTIST/CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claim administration DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A and defense expenses. • Liability policies shall be endorsed to provide the following: o Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. o That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. o Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, ARTIST/CONTRACTOR shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the ARTIST/CONTRACTOR shall either double the occurrence limits or obtain Owners and ARTIST/CONTRACTORs Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A A. COMMERCIAL GENERAL LIABILITY INSURANCE Commercial General Liability Insurance including, but not limited to, Premises/Operations, Personal & Advertising Injury, Products/Completed Operations, Independent ARTIST/CONTRACTORs, and Contractual Liability with minimum combined bodily injury (including death) and property damage limits of $1,000,000.00 per occurrence and $2,000,000.00 general aggregate. B. WORKERS’ COMPENSATION and EMPLOYERS LIABILITY INSURANCE Workers’ Compensation within the regulations of the Texas Workers’ Compensation Act. The minimum policy limits for Employers Liability are: Bodily Injury by Accident: $100,000.00 Each Accident Bodily Injury by Disease: $100,000.00 Each Employee Bodily Injury by Disease: $500,000,000.00 Policy Limit NOTES: a. If ARTIST/CONTRACTOR will not be providing services under the contract at a City facility, has no employees and/or is operating as a sole owner and single operator, ARTIST/CONTRACTOR shall provide a signed letter, with the current date, on official letterhead stating such to meet the requirement. b. If ARTIST/CONTRACTOR is a non-subscriber or is self-insured ARTIST/CONTRACTOR shall provide a copy of its Certificate of Authority to Self-Insure from the Texas Department of Insurance, Division of Workers’ Compensation Self Insurance Regulation Program, evidence of alternative coverage and internal safety and injury coverage policies and procedures. C. BUSINESS AUTOMOBILE LIABILITY INSURANCE Business Automobile Liability Insurance covering owned, hired, and non-owned vehicles, with a minimum combined single limit for bodily injury (including death) and property damage limit of $500,000.00 per occurrence. NOTE: a. If ARTIST/CONTRACTOR does not have owned, hired and non- owned autos or vehicles and/or no autos or vehicles will not be used in the performance of services under the contract, ARTIST/CONTRACTOR shall provide a signed letter, with the current date, on official letterhead stating such to meet the requirement for owned autos. D. PROFESSIONAL LIABILITY INSURANCE If ARTIST will be subcontracting the services of an ENGINEER to provide professional engineer services, then, Professional Liability Insurance to provide coverage against any claim which the ENGINEER becomes legally obligated to DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A pay as damages arising out of the performance of professional services caused by any negligent error, omission or act with minimum limits of $1,000,000 per claim, $2,000,000 aggregate. SUBCONTRACTING LIABILITY (1) Without limiting any of the other obligations or liabilities of the ARTIST/CONTRACTOR, the ARTIST/CONTRACTOR shall require each SubARTIST/CONTRACTOR performing work under the contract, at the SubARTIST/CONTRACTOR's own expense, to maintain during the engagement with the CITY, types and limits of insurance that are appropriate for the services/work being performed, comply with all applicable laws and are consistent with industry standards. The SubARTIST/CONTRACTOR’s liability insurance shall name ARTIST/CONTRACTOR as an additional insured. (2) ARTIST/CONTRACTOR shall obtain and monitor the certificates of insurance from each SubARTIST/CONTRACTOR. ARTIST/CONTRACTOR must retain the certificates of insurance for the duration of the contract and shall have the responsibility of enforcing insurance requirements among its subARTIST/CONTRACTORs. The CITY shall be entitled, upon request and without expense, to receive copies of these certificates. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A Exhibit D Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish a Certificate of Interest Parties before the contract is awarded, in accordance with Government Code 2252.908. The contractor shall: 1. Log onto the State Ethics Commission Website at : https://www.ethics.state.tx.us/filinginfo/1295/ 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on page 2 of this contract. 5. Complete and sign the Form 1295 6. Email the form to purchasing@cityofdenton.com with the contract number in the subject line. (EX: Contract 1234 – Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission’s website within seven business days. DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a) and by City of Denton Ethics Code, Ordinance 18-757. By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the information in this section is being disclosed. Name of Officer Describe each employment or other business relationship with the local government officer, or a family member of the officer, as described by Section 176.003(a)(2)(A). Also describe any family relations hip with the local government officer. This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.00 1(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor? Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of one percent or more? Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. 4 I have no Conflict of Interest to disclose. 5 Signature of vendor doing business with the governmental entity Date DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A Robert L Barnum X 8/30/2023 X X X CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form. Local Government Code § 176.001(1-a): "Business relationship" means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an agency of a federal, state, or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public; or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by, and reporting to, that agency. Local Government Code § 176.003(a)(2)(A) and (B): (A) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds $2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than $100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code § 176.006(a) and (a-1) (a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity, or a family member of the officer, described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity, or a family member of the officer, one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B), excluding any gift described by Section 176.003(a-1); or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity; or (B) submits to the local governmental entity an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer, described by Subsection (a); (B) that the vendor has given one or more gifts described by Subsection (a); or (C) of a family relationship with a local government officer. City of Denton Ethics Code Ordinance Number 18-757 Definitions: Relative: a family member related to a City Official within the third 3rd degree of affinity (marriage) or consanguinity (blood or adoption) City Official: for purpose of this article, the term consists of the Council Members, Department Heads, or member of the Board of Ethics, Planning and zoning Commission Members, Board of Adjustment, Historic Landmark Commission, or Public Utilities Board Vendor: a person who provides or seeks to provide goods, services, and/or real property to the City in exchange for compensation. This definition does not include those property owners from whom the City acquires public right-of-way or other real property interests for public use. Per the City of Denton Ethics Code, Section 2-273. – Prohibitions (3) It shall be a violation of this Article for a Vendor to offer or give a Gift to City Official exceeding fifty dollars ($50.00) per gift, or multiple gifts cumulatively valued at more than two hundred dollars ($200.00) per a single fiscal year. Per the City of Denton Ethics Code, Section 2-282. – Disposition (b), (5) Ineligibility If the Board of Ethics finds that a Vendor has violated this Article, the Board may recommend to the City Manager that the Vendor be deemed ineligible to enter into a City contract or other arrangement for goods, services, or real property, for a period of one (1) year. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 DocuSign Envelope ID: 1D0D09ED-62EF-4055-820E-EA4D3919DC3A Certificate Of Completion Envelope Id: 1D0D09ED62EF4055820EEA4D3919DC3A Status: Completed Subject: Please DocuSign: City Council Contract 8244 Source Envelope: Document Pages: 40 Signatures: 6 Envelope Originator: Certificate Pages: 6 Initials: 1 Erica Garcia AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-06:00) Central Time (US & Canada) 901B Texas Street Denton, TX 76209 erica.garcia@cityofdenton.com IP Address: 198.49.140.10 Record Tracking Status: Original 8/30/2023 1:38:29 PM Holder: Erica Garcia erica.garcia@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Erica Garcia erica.garcia@cityofdenton.com Senior Buyer City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 8/30/2023 1:41:35 PM Viewed: 8/30/2023 1:42:01 PM Signed: 8/30/2023 1:42:42 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Lori Hewell lori.hewell@cityofdenton.com Purchasing Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 8/30/2023 1:42:44 PM Viewed: 8/30/2023 1:44:52 PM Signed: 8/30/2023 1:53:59 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Marcella Lunn marcella.lunn@cityofdenton.com Mack Reinwand City Attorney City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 8/30/2023 1:54:02 PM Viewed: 8/30/2023 2:14:56 PM Signed: 8/30/2023 2:24:08 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Robert Barnum robertlbarnum1969@gmail.com ARTIST Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 173.225.203.195 Sent: 8/30/2023 2:24:10 PM Viewed: 8/30/2023 2:38:14 PM Signed: 8/30/2023 2:50:31 PM Electronic Record and Signature Disclosure: Accepted: 8/30/2023 2:38:14 PM ID: 557397c0-391b-48fe-8555-9797fe265cb9 Signer Events Signature Timestamp Gary Packan Gary.Packan@cityofdenton.com Director of Parks and Recreation Parks and Recreation Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 8/30/2023 2:50:33 PM Viewed: 8/30/2023 4:26:35 PM Signed: 8/30/2023 4:27:50 PM Electronic Record and Signature Disclosure: Accepted: 8/30/2023 4:26:35 PM ID: d7e4bdee-826b-4d8d-bf26-61df50238979 Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Completed Using IP Address: 198.49.140.10 Sent: 8/30/2023 4:27:52 PM Viewed: 9/20/2023 3:36:18 PM Signed: 9/20/2023 3:36:35 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Sara Hensley sara.hensley@cityofdenton.com City Manager City of Denton Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/20/2023 3:36:38 PM Viewed: 9/20/2023 6:13:47 PM Signed: 9/20/2023 6:13:52 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Jesus Salazar jesus.salazar@cityofdenton.com Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 198.49.140.10 Sent: 9/20/2023 6:13:55 PM Viewed: 9/21/2023 7:50:19 AM Signed: 9/21/2023 7:51:00 AM Electronic Record and Signature Disclosure: Accepted: 9/21/2023 7:50:19 AM ID: d8637d09-a3e8-49dc-a52f-271e4f164e8d In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Cheyenne Defee cheyenne.defee@cityofdenton.com Procurement Administration Supervisor City of Denton Security Level: Email, Account Authentication (None) Sent: 8/30/2023 1:42:44 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign Carbon Copy Events Status Timestamp Gretna Jones gretna.jones@cityofdenton.com Legal Secretary City of Denton Security Level: Email, Account Authentication (None) Sent: 8/30/2023 4:27:53 PM Viewed: 8/31/2023 9:17:03 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign City Secretary Office citysecretary@cityofdenton.com Security Level: Email, Account Authentication (None) Sent: 9/21/2023 7:51:04 AM Viewed: 9/21/2023 8:08:08 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Omar Siddiqi omar.siddiqi@cityofdenton.com Security Level: Email, Account Authentication (None) Sent: 9/21/2023 7:51:05 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 8/30/2023 1:41:35 PM Envelope Updated Security Checked 8/30/2023 1:50:02 PM Certified Delivered Security Checked 9/21/2023 7:50:19 AM Signing Complete Security Checked 9/21/2023 7:51:00 AM Completed Security Checked 9/21/2023 7:51:05 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM Parties agreed to: Robert Barnum, Gary Packan, Jesus Salazar How to contact City of Denton: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: purchasing@cityofdenton.com To advise City of Denton of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at melissa.kraft@cityofdenton.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. We do not require any other information from you to change your email address.. 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