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20-1792
ORDINANCE NO.20-1792 AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PUBLIC ARTWORK WITH DANIEL BLACK; APPROVING THE CONCEPTUAL DESIGN FOR A PUBLIC ART MURAL TO BE PAINTED ON THE UNION PACIFIC RAILROAD UNDERPASS LOCATED ON ROBERTSON STREET EAST OF BELL AVENUE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, artist Daniel Black developed, and staff presented, an updated conceptual design for the public art mural painting to the Public Art Committee on March 5, 2020; and WHEREAS, the Public Art Committee recommended approval of the conceptual design and mural donation by a vote of 8-0; and WHEREAS, Union Pacific Railroad approved the proposed mural art project to be painted on Union Pacific property at Robertson Street and Bell Avenue on August 26, 2020 (Exhibit 2); and WHEREAS, the conceptual design was presented at community and neighborhood input meetings on September 3, 2020 and September 14, 2020; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is authorized to enter into a contract for a mural art project, a copy of which is attached hereto as Exhibit 1 and incorporated herein by reference. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The conceptual design for the mural as described in Exhibit 1 and exhibits thereto is hereby approved. SECTION 4. The payment of the administrative fee required by Union Pacific is hereby approved. SECTION 5 This ordinance shall take effect immediately from and after its date of passage. The motion to approve this ordinance was made by ?Mm and seconded by KeeL\t Re: qq S , the ordinance was passed and approved by the following vote A JH : Aye a Nay Abstain Absent Mayor, Chris Watts: Gerard Hudspeth, District 1 : Keely G. Briggs, District 2: Jesse Davis, District 3 : John Ryan, District 4: \/ \/ ./ -/- b/ 7 Deb Armintor, At Large Place 5 : Paul Meltzer, At Large Place 6: PASSED AND APPROVED this the 'URY\ day of OC+obe(_, 2020. ATTEST: ROSA RIOS, CITY SECRETARY ._ A , /Az APPROVED AS TO LEGAL FORM: EXHIBIT 1 CONtRACT FOR THE DESIGN AND coMassioN OF PUBLIC ARTWORK This Contract for the Design and CommIssIon of Public Artwork (this “Contract”) is made and enteled into as of alObe( Z/)!Vt>y and between the City of Denton, a Texas home-rule municipality, (“City”), and Daniel Black (“Artist”). ARTICLE I. INIRODUCIION 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 in accordance with the Final Design as shown in Exhibit A at the location described and depicted in Exhibit B as described in this Contract. The Artist shall retain artistic control of the s©vices 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 Born 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 their respective designees. (g) “Contract Price” means the total compensation, identified in Section 3.1, to be paid to the Artist pursuant to this Contract. (h) “Eaective 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 underpass of the Union Pacific Railroad Bridge across Robertson Street between S. Bell Avenue and Cook Street in Denton, Texas. a) “Final Desigr” means the Final Design of the Artwork depicted in Exhibit A. (k) “Notice” means the prior, written announcement of a Party’s intention to take an action, or readiness to take action, authorimd or required by the Contract. a) “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 at 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 and end on September 1, 2021, unless terminated earlier in acoordance with the requirements of this Contract. ARTICLE 2. ARTIST'S RESPONSBILITIES AND COMMnTMENFS 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, (b) The Artist shall deteruine 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 as depicted on Exhibit B. (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. 2.2. Schedule (a) Prior to beginning any other work under this Contract, the Artist shall develop and provide to the City a tentative Schedule. (b) 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. (c) 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. (d) 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. (e) 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 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 noti8 the City prior to continuing with installation of the Artwork. (b) Within 30 days after the Effective Date the Artist shall prepare and submit to the City, at a minimum, the following: (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 recerpt. (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 oosts. (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. (5) An updated Schedule. (c) Within 30 days of its receipt of the materials and information as set out in Subsection 2.4(b), 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. (3) Any non-aesthetic reason that the City, in its sole judgment and discretion, deems necessary or appropriate. 2.5. Site Inspections The Artist shall inspect the Site at least once and shall continue to conduct inspections, as needed, to ensure all information is known by the Artist about the Site that impacts or could afFect the installation of the Artwork. If the Artist believes any differences, discrepancies, errors, omissions, or inconsistencies exist txtween the Artist’s inspections and the information provided by the City, the Artist shall immediately give Notice to the City and cease the installation of the Artwork until the Parties mutually agree on how to address the Site conditions and the City gives the Artist Notice to proceed. 2.6. Fabrication and Installation (a) 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 identi6ed in the Schedule. 2.7. Changes to the Artwork (a) At any time prior to closeout as set out in Section 2.09, 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 nom 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 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 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 detennines 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 de6ciencies. 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 hom the final milestone payment. (d) if the City accepts the Artwork, either with or without modi6cations 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 rernedies a#orded 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: (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. (5) An affidavit of bills paid, in a form provided by the City. (b) Within 30 days after the Artist completes the services set out 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 $8,000.00. 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 – 50% within 30 days of the City giving Notice to proceed with fabrication of the Artwork. Milestone 2 – 50% 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. TIrE 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 Bee 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. (B) The Artwork, as fabricated and delivered, shall be hee of defects in material and workrnanship, including any defects consisting of inherent vice or qualities that may cause or accelerate deterioration of the Artwork. (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 noti6ed by the City, the Artist shall, at no cost to the City, promptly cure the breach or breaches aonsistent 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 Ar'Lwork 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 Harited to any publicity the City deems appropriate or beneficial. the final Artwork for any purpose whatsoever in any medium or forum, including the internet; for purposes of this limitation, any graphic Any depiction or display of the Artwork bRaIded to promote or benefit the 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 the City, shall be deemed a non- commucial purpose. (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.” 43. Insurance and Risk of Loss (a) The Artist shall tnar aII 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 tn 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 aBer the EBective 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, unrestdcted 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 modi6cation of the work, the City shall have absolute, unrestricted rights incidental to its full ownership of the final artistic work to alter, change, modify, destroy, remove, move, replace, transport, or transfer, in whole or in part, the anal 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 Purchaser, 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 Altist 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 MANAGEMEVr 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 property executed by each of the Parties. 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 a#ect 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 sutxontractors 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 tellus of this Contract at all times. (5) Prior to the Artist entering into a subcontract, the Artist shall give Notice to the City, identibing 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 ContIact. 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 sumcient 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 an 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. (b) The City may also terminate this Contract for cause if: (1) The Artist dies or becomes physically or legally incapacitated duing the tem1 of this Contract. Termination under this paragraph will only require notice to the Artist or the Artist’s legal successor or guanlian, 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 acknowledgment 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 teuninates 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 insu£ncient 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 cvW 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, epidemics, 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. (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 eRects 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 xlay, 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) Notioe to each Party must be given as follows: The City: The City of Denton AtM: Director of Parks and Recreation 321 E. McKinney St Denton, TX 76201 The Artist: ' \>adL\ 'B\a&--In IL tATBP (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. (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. ORDINANCE NO.20-1792 AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PUBLIC ARTWORK WITH DANIEL BLACK; APPROVING THE CONCEPTUAL DESIGN FOR A PUBLIC ART MURAL TO BE PAINTED ON THE UNION PACIFIC RAILROAD UNDERPASS LOCATED ON ROBERTSON STREET EAST OF BELL AVENUE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, artist Daniel Black developed, and staff presented, an updated conceptual design for the public art mural painting to the Public Art Committee on March 5, 2020; and WHEREAS, the Public Art Committee recommended approval of the conceptual design and mural donation by a vote of 8-0; and WHEREAS, Union Pacific Railroad approved the proposed mural art project to be painted on Union Pacific property at Robertson Street and Bell Avenue on August 26, 2020 (Exhibit 2); and WHEREAS, the conceptual design was presented at community and neighborhood input meetings on September 3, 2020 and September 14, 2020; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDA INS: SECTION 1. The City Manager is authorized to enter into a contract for a mural art project, a copy of which is attached hereto as Exhibit 1 and incorporated herein by reference. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The conceptual design for the mural as described in Exhibit 1 and exhibits thereto is hereby approved. SECTION 4. The payment of the administrative fee required by Union Pacific is hereby approved. SECTION 5 This ordinance shall take effect immediately from and after its date of passage. The motion to seconded by Y\eel' the following vote A :a approve B this ordinance was made by %O \ tHe,\tLC( and , the ordinance was passed and approved by Aye a vr Nay Abstain Absent Mayor, Chris Watts: Gerard Hudspeth, District 1 : Keely G. Briggs, District 2: Jesse Davis, District 3 : John Ryan, District 4: \/ ./ ,/ \/ 7 Deb Armintor, At Large Place 5 : Paul Meltzer, At Large Place 6: PASSED AND APPROVED thI, th, 20kh d,y ,f OC+Obe(, 2020. }/ZCHRIS®-MI(MdR ATTEST: ROSA RIOS, CITY SECRETARY ._ aaa . /Zz APPROVED AS TO LEGAL FORM: AARON L CITY ATTa EXHIBIT 1 CONtRACT FOR THE DESIGN AND COM)fiSSION OF PUBLIC ARTWORK This Contract for the Design and CommjssIon of Public Artwork (this “Contract”) is made and entered into as of a+Obe( aptbAy and between the City of Denton, ; Texas home-rule municipality, (“City”), and Daniel Black (“Artist”). ARTICLE I. iiviRODUcrioN 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 in accordance with the Final Design as shown in Exhibit A at the location described and depicted in Exhibit B 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 geneIally 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 cleaned 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 their respective designees. (g) “Contract Price” means the total compensation, identified in Section 3.1, to be paid to the Artist pursuant to this Contract. (h) “Eaective 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 underpass of the Union Pacific Railroad Bridge across Robertson Street between S. Bell Avenue and Cook Street in Denton, Texas. G) “Final Design” means the Final Design of the Artwork depicted in Exhibit A. (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. a) “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 at 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 &gin on the Effective Date and end on September 1, 2021, unless terminated earlier in accordance with the requirements of this Contract. ARTICLE 2. ARTIST'S RESPONSEBILITIES AND COMB4UTMENTS 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. (b) The Artist shall deteIuine 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 as depicted on Exhibit B. (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. 2.2. Schedule (a) Prior to beginning any other work under this Contract, the Artist shall develop and provide to the City a tentative Schedule. (b) 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. (c) 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. (d) 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. (e) Once approved by the City, the Schedule shall control all design, review, fabrication, implementation, Uansportation, 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 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 installation of the Artwork. (b) Within 30 days after the Effective Date the Artist shall prepare and submit to the City, at a minimum, the following: (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 rocerpt. (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. (5) An updated Schedule. (c) Within 30 days of its receipt of the materials and information as set out in Subsection 2.4(b), the City will notify the Artist of any revisions to the Final Design required by the City, which revisions shall automatically become inoorporated 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 acoount for any life, health, safety, or security concerns. (3) Any non-aesthetic reason that the City, in its sole judgment and discretion, deems necessary or appropriate. 2.5. Site Inspections The Artist shan inspect the Site at least once and shall continue to conduct inspections, as needed, to ensure all information is known by the Artist about the Site that impacts or could affect the installation of the Artwork. If the Artist believes any differences, discrepancies, errors, omissions, or inconsistencies exist tntween the Artist’s inspections and the information provided by the City, the Artist shall immediately give Notice to the City and cease the installation of the Artwork until the Parties mutually agree on how to address the Site conditions and the City gives the Artist Notice to proceed. 2.6. Fabrication and Installation (a) The City will issue Notice to proceed with fabrication to the Artist, which will advise the Artist of any required modifications to the Schedule. o) 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. 2.7. Changes to the Artwork (a) At any time prior to closeout as set out in Section 2.09, 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, shaw, 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 classiaed as minor and major. The City may also reject, for non- aesthetic reasons, a minor change within 20 days of receipt of the Notice nom 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 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 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 de£ciencies. 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 teuuinates 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 Bom 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: (1) A full set of as-buihs (updated plans, specifications, and documentation) reflecting the actual installation of the Artwork and noting any deviations aom 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. (5) An a£Rdavit of bills paid, in a form provided by the City. (b) Within 30 days after the Artist completes the services set out 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 $8,000.00. 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 – 50% within 30 days of the City giving Notice to proceed with fabrication of the Artwork. Milestone 2 – 50% within 30 days after the Artist gives Notioe 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. Warrantin 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 Bee 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 workmanhke manner. O) The Artwork, as fabricated and delivered, shall be Bee of defects in material and workrnanship, including any defects consisting of inherent vice or qualities that may cause or accelerate deterioration of the Artwork. (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 noti8ed by the City, the Artist shall, at no cost to the City, promptly cure the breach or breaches oonsistent with professional conservation standards, including but not limited to cure by repairing or refabIicating 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 tnlow, 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 baited to any publicity the City deems appropriate or beneficial. the final Artwork for any purpose whatsoever in any medium or forum, including the internet; for purposes of this limitation, any graphic Any depiction or display of the Artwork intended to promote or benefit the 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 the City, shall be deemed a non- commercial purpose. (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.” 43. 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 tn 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 aBer the Eaective 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 aBeet or limit the City’s absolute, unrestricted right incidental to the City’s fall 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 othwwise 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 modiacation of the work, the City shall have absolute, unrestricted rights incidental to its full ownership of the final artistic work to alter, change, modify, destroy, remove, move, replace, transport, or transfer, in whole or in part, the anal 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 Purchaser, 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 waves 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. 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 a#ect 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 sutx;ontractors 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 subcontrnctor, 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 sumcient 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 rmove the Artist from the City’s vendor list for three (3) years and any future oaer 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. (b) The City may also terminate this Contract for cause if: (1) The Artist dies or becomes physically or legally incapacitated duing 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 AMiR’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 othwwise) 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 insuf6cient 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, epidemics, 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 amet a Party’s cost but not its ability to perform. (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-forxlay, 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) Notiae 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: 'Vadt\ 'S\a&- (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. (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 perfonn 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 represmtatives 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 an 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 IIARMI fESS THE CITY, ITS OFFICERS, APPOnfrED OR ELECTED OFFICIALS, EMPLOYEES, AGENTS, REPRESENTATrVES, SUCCESSORS AND ASSIGNS WE “INDEMNIFIED PARTIES”) AGAUVST ALL COSTS, LIABILITIES, DAMAGES, CLAIMS, SUITS, ACTIONS, AND CAUSES OF ACTIONS (“CLAIMS”), TO Tm EXTENT ARISING DIRECTLY OR HVDnRECTLY our OF (A) A BREACH OF Tins COWRACT OR VIOLATION OF LAW BY THE ARTIST AND TEnt ARTIST'S EMPLOYEES, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS (THE “ ARTIST PARTIES”), (B) A FALSE REPRESENTATION OR WARRANTY MADE BY THE ARTIST PARTIES IN THIS coNiRAcr, UV THE ARTIST'S PROPOSAL, OR THE FORMATION OF THIS CONTRACT, (C) THE DESIGN OR INSTALLATION OF THE ARTWORK, (D) THE UWELLECTUAL PROPERTY INVOLVED IN THE DESIGN AND CREATION OF THE ARTWORK, (D) THE NEGLIGENCE, WILLFUL NascoNDUCT, OR BREACH OF A STANDARD OF STRICT LIABILITY BY Tm ARTIST PARTIES IN CONNECTION WITH THIS CONTRACT. CLAIMS TO BE INDEB©VIFIED 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. THE ARTIST'S OBLIGATIONS UNDER THIS SECTION ARE NOT EXCUSED IN THE EVENT A CLAIM IS CAUSED, HV 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 Indemnined 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. 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 exucise 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. Mandatory Anti-Israel Boycott and Prohibition on Foreign Terrorist Organizations (a) Artist acknowledges that in accordance with Chapter 2270 of the Texas Govemment 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 Contract, Artist cwtifies that Artist’s signature provides written verification to the City that Artist: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this Contract. Failure to meet or maintain the requirements under this provision will be considered a material breach. (b) Section 2252 of the Texas Government Code restricts the City from contracting with companies that do business with Iran, Sudan, or a foreign terrorist organization. By signing this Contract, Artist certifies that Artist’s signature provides written verification to the City that Artist, pursuant to Chapter 2252, is not ineligible to enter into this Contract and will not become ineligible to receive payments under this Contract 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. 6.10. Execution in Counterparts This Contract may be executed in any number of counterparts, each of which when so executed shall tn deemed to be an original and all of which, taken together, shall constitute one and the same Contract. 6.11. 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. 6.12. 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 Exhibit B Exhibit C Exhibit D. Depiction of Artwork Facility and Site Location Insurance Requirements Cati6cate of Interested Parties Electronic Filing [Signature on following page] AGREED: ARTIST: crrY: CITY OF DENTON KL _ City Manager ATTEST: APPROVED AS TO FORM: DEPAR DfaeaCy_ TrrLE &Ne> ; P«!#cAltoN EXHIBIT A Depiction of Artwork F+B_ qr :r+r& ;!!! rhi/ aJni’p+ A • •--W q B EXHiBIT B Artwork Site Location i ?all HI :: T : b:: B 1: }!!q rtI e Jp I •H: :• P [HB &, Y:'; 1 + U+a t n + H r a q& ;) it ib' bit'i! II EXHiBIT C HVSURANCE REQUIREMENrs AND WORKERS’ COMPENSATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without lilniting any of the other obligations or HabiHties of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the wdnimwn insurance coverage as indicated hereinafter. 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. Contractor may, upon written request to the Purchasing Department, ask for clarification of any tasman a req&dremeKts at any time; however, 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 specifuadoKS 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 contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. •Liability policies shall be endorsed to provide the following: U a Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other ingwance 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. H Provide a Waiver of Subrogation in favor of the City of Denton, its oflicials, 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, Contractor shall maintain such coverage continuously throughout the tam 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 Contractor shall either double the occurrence limits or obtain Owners and 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 marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or tonger, if so notedi [X]A. General Liability Insurance: General Liability insurance with combined single limits of not less than $ 1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used •Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. e • Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: ' Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X]Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a oombination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for B • any auto, or all owned hired and non-owned autos. [ ] Workers’ Compensation Insurance Contractor shall purchase and maintain Workers’ Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in acoordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workus’ Compensation Commission (TWCC). []Owner’s and Contractor’s Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as ingured for property damage and bodily injury which may arise in the prosecution of the work or Contractor’s operations under this contract. Coverage shall be on an “occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor’s liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $ 1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders’ Risk Insurance Buildus' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Environmental Liability Insurance Environmental liability insuranoe for $1,000,000 to cover all hazards contemplated by this contract. [ ] Riggers Insurance The Contractor shall provide coverage for Rigger’s Liability. Said coverage may be provided by a Rigger’s Liability endorsement on the existing CGL coverage; through and Installation Floater covering rigging contractors; or through ISO form IH 00 91 12 11 , Rigga’s Liability Coverage form. Said coverage shall mirror the liInits provided by the CGL coverage [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a “blanket” basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. ATTACHMENT 1 [ ] Workers’ Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate'’)- A copy of a certificate of insurance, a certificate of authority to self.insure jsgued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers1 compensation insurance coverage for the personls or entity’s employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor’s/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, suboontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. 'lSwvioes" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.01 1 (44) for all employees of the Contractor providing sewioes on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor’s current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certiBcate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the covwage lnriod shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers1 Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory nquirements of Texas Labor Code, Section 401.011 (44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new aertificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a, a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will tx filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor’s failure to oomply with any of these provisions is a breach of contract by the contractor which entitles the govanmental entity to declare the contract void if the contractor does not remedy the breach within ten days aBer receipt of notice of breach from the governmental entity. 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 electmnically 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: I. Log onto the State Ethics Commission Website at : https://www.ethics.state.tx.us/whatsnew/elf info_form1295.htm 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. Complete and sign the Form 1295 Email the form to purchasing@cityofdenton.com with the contract number in the 5 6 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. BUILDING AMERICA'W EXHIBIT 2 CONSENT LETTER DOT # 795320V Subdivision: ChoctawMP 719.53 Date: 08/26/2020 Folder/Project:3230-82 CARLY WELD PARKS AND RECREATION 601 E. HICKORY STREET, SUITE B DENTON, TX 76205 Dear Ms. Carly Weld: It is the CITY OF DENTON PARKS AND RECREATION (“Public Entity”) intention to perform simple work which may include: mural painting but no structural work (“Work”) at the location noted above. This letter serv6 as an acceptance by Union Pacific Railroad Company (“Railroad”) of the proposed Work to be performed. If a contractor is to do any of the Work on Railroad’s property then the Public Entity shall require its contractor to execute and return the attached contractor endorsement (“Contractor Endorsement”). Under no circumstances will Public Entity's contractor be allowed on Railroad’s property without first executing the Contractor Endorsement. This Consent Letter shall be valid from date of signature until September 1, 2021 until the Work is oomplete or this Consent Letter is revoked by Railroad. For safety reasons, the Public Entity and/or its contractor are required to notify the Railroad’s Representative(s) (“Railroad Representative”), as noted below, at least 48-hours in advance prior to performing the Work described above. MIPlp : Steven Thomas (469) 724-6436 Telecommunications ("Call Before You Dig"): 1-800-336-9193 Regards, Casey Moore Public Projects - Real Estate UNION PACIFIC RAILROAD 1400 Douglas Street Onnha, Nebraska 68179 CONTRACTOR ENDORSEMENT Valid between the dates of May 1, 2020 and September 1, 202 1 Folder/Project 3230-82 A. As a condition to entering upon Union Pacific Railroad Company’s (“Railroad“) property to perform WORK DESCRIPTION (“Work”) described in Consent Letter dated the day of , 2020, ('Public Entity’s”) , contractor,whose address is comply with and be bound by all the general terms and provisions, minimum safety standards, and insurance requirements all set forth at: https://www.up.com/real_estate/indenhtm Altematively, cut and paste the following into browser: https://www.up.com/cs/groups/public/@uprr/@realestate/documents/upJ)df_nativedocs/ re cont endorsement.pdf B.Upon request, all insurance documentation shall tn provided to Railroad. C. Please note that fiber optic cable may be buried on the Railroad's property. Prior to commencing the Work, the Contractor agnes to contact the Railroad’s Telecommunications Operation Center as provided in the general terms and conditions to determine if any fiber optic cable is located on the Railroad’s property on or near the location where the Work is to tn performed. D. The Contractor agrees to also provide notice to railroad representative (“Railroad Representative“): MTM: Adjamoussi Adje: 402•.59Cb7830 MSM: Kdstopher Keith: 682438.7524 E. The term of this Contactor Endorsement shall commence on the date of the execution of this Contractor Endorsement and continue until September 1, 2021 or at such time as Contractor has completed its work on Railroad’s property, whichever is earlier, unless sooner terminated. Please eomplete this Contractor Endorsement by executing below and swbmitting with the S1,025.OO administratiye fee payment with the Folder Number indicated to the following address: Union Pacific Railroad Company AnN: Public Projects Manager 1400 Douglas Street Mail Stop 16%) Omaha, NE 68179 By .\ 1Address6M eE Name: IbM\ThE Email: Date: RaXA&Rbta hO 3nu\. am Qb 4 tO