HomeMy WebLinkAboutContract 51570 CITY SECRETARY
CONTRACT NO. �J 1555 7
AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK
BETWEEN THE CITY OF FORT WORTH
AND MCGEHEARTY HOLDINGS LLC
This Agreement is entered into this day of &00141018, by and between the City of
Fort Worth,a home-rule municipal corporation of the State of Texas,acting by and through its duly authorized
Assistant City Manager,and McGehearty Holdings LLC of 16415 Addison Road#550,Addison,Texas 75001,
acting by and through Eric McGehearty, its duly authorized Member.City has designated the Arts Council of
Fort Worth and Tarrant County,Inc.,to manage this Agreement on its behalf. The Contract Manager shall act
through its designated Public Art project manager.
WHEREAS,pursuant to Chapter 2,Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances,
the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth
residents,to commemorate the City's rich cul ural and ethnic diversity,to integrate the design work of artists
into the development of the City's capital rtfrashucture improvements,and to promote tourism and economic
vitality in the City through the artistic design of public spaces;
WHEREAS, City is designing and constructing certain streetscape improvements in the Six Points
Urban Village,more particularly described as the roadway and sidewalks along Race Street between Sylvania
Avenue and the intersection of Belknap, Riverside Drive,and Race Street in Fort Worth,Texas;
WHEREAS,on March 6,2015,the City entered into a contract with Artist to develop preliminary and
final artwork design(s)for the Site(Fort Worth City Secretary Contract No.46493);
WHEREAS, on April 9,2018,the Fort Worth Art Commission(FWAC)approved the Artist's Final
Design,and recommended that Artist be retained to fabricate,deliver,and install the Work at the Site,and on
May 14,2018,the FWAC approved the Artist's revised Final Design;
WHEREAS, funds for the project have been allocated from the Specially Funded Capital Projects
Fund and the Project was included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan and
Budget,adopted by the Fort Worth City Council on October 17,2017(M&C G-19139);and
WHEREAS,City and Artist wish to set out the terms and conditions under which said Work shall be
fabricated,delivered,and installed at the Site.
NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements
hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement,the foJowing terms shall have the meanings as set forth below:
1.1. Agreement—Means and mCludes this Agreement between the City and Artist for Commission
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of Public Artwork for the Site.
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OFFICIAL 6eOR
CITY SECRETARY
FT. WORTH,TX
1.2. Artist—Means and includes McGehearty Holdings LLC.
1.3. Artwork Design--Means the final,City-approved design of the Work for the Site created in
connection with the Preliminary and Final Artwork Design Contract and includes,but is not limited to,all final
City-approved maquettes,drawings, sketches, prototypes, models and the like that were created by Artist in
connection with the Preliminary and Final Artwork Design Contract.The design and description are attached
hereto as Exhibit"A"and incorporated herein for all purposes.
1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc.,and/or its officers,directors,or employees.
1.5. City—Means and includes the City of Fort Worth,Texas.
1.6. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement,which shall be the official date of execution of this Agreement.
1.7. Final Acceptance - Means City's written acknowledgement to Artist that all services for
fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this
Agreement.
1.8. Preliminary and Final A04work Design Contract—Means and includes Fort Worth City
Secretary Contract Number 46443.
1.9. Parties—Means and includes City and Artist.
1.10. Project—Means and includes the capital improvement or public art development undertaking
of City for which Artist's services are to be provided pursuant to this Agreement,
1.11. Project Consultant —Mems and includes the design firm/professional(s) hired by City to
design the Site.
1.12. Project-Means and includes the capital improvement/public art development undertaking of
City for which Artist's services are to be pt�vided pursuant to this Agreement.
1.13. Schedule - Means and includes a written plan of procedure for completion of fabrication,
delivery,and installation of the Work, including,but not limited to,the submission of progress reports.
1.14. Site—Means and includes Race Street from North Sylvania Avenue to North Riverside Drive,
which is more particularly described in Exhibit"B,"attached hereto and incorporated herein by reference for
all purposes.
1.15. Work—Means and includes the finished object(s)of art and design that are the subject of this
Agreement,or any intermediary stage of completion of such work.
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ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2;1. Artist Selection.
City and Artist acknowledge that Artist's Artwork Design was reviewed and approved by the FWAC on April
9,2018,with the revised Final Design approved on May 14,2018,and is the basis for executing this Agreement
with Artist.
2.2. Scope of Services.
a. Artist shall perform all services and shall furnish all supplies,materials,and equipment as necessary
for fabricating, delivering, and installing the Work at the Site. Services shall be performed in a
professional manner and in strict compliance with all terms and conditions in this Agreement.
b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the
Work,subject to review and acceptance by City as set forth in this Agreement.The location at the Site
where the Work shall be installed shall be mutually agreed upon by City and Artist.
C. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with
appropriate City staff for purpos" of risk assessment, safety review, sighting of the Work, and
permitting.
d. Artist shall meet and coordinate with City Staff,Project contractors,and others,as necessary,to ensure
proper integration of the Work into the Site.
e. Artist shall coordinate with Project Consultant for proper integration of the Work into the Site and into
the construction documents and to allow for sufficient structural support and appropriate Iighting for
the Work.
f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written
maintenance recommendations for the Work from said conservator to the Contract Manager.
g. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and
time.
h. Artist shall install the work on d and times mutually agreed upon by Artist and City.
. City Assistance
Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the
extent that such materials are available. City,upon request by Artist,shall also provide correct scaled drawings
of the Site,if available.
2.4. Execution of Work.
a. Artist shall furnish the Schedule to the Contract Manager within fifteen(15) business days after the
Effective Date. After written approval of the Schedule by City, Artist shall fabricate, deliver, and
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install the Work in accordance with such Schedule. Schedule changes may be accomplished by written
agreement between Artist and City.
b. City and/or Contract Manager,upon written request,shall have the right to review the Work during its
fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request
by the City and/or Contract Manager, provide a written progress report detailing the progress made
toward completion of the Work a>rd the remainder of work to be done to complete the Work. Artist
shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4
within thirty(30)calendar days after receipt of the written request.
C. Artist shall complete the fabricatioO of the Work in accordance with the Artwork Design.Artist shall
present to the Contract Manager,in writing,for further review and approval,any changes in the scope,
design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall
determine whether the changes are significant and whether the changes conform to the Artwork
Design. If the Contract Manager,in its sole discretion,determines that the changes are significant and
do not conform with the Artwork Design,then the Contract Manager shall, in light of the Artwork
Design, determine whether a signlificant change requires City approval. If the Contract Manager
determines that the significant char requires City approval,then the change(s)may be presented to
the FWAC for review and approvil at a regularly scheduled or special meeting of the FWAC. If any
disputes arise thereafter,the Partie4 shall first attempt to resolve those disputes in accordance with the
dispute resolution process set forth;in Article 12 of this Agreement,
2.5. Delivery and Installation.
a. Artist shall notify City, through Contract Manager, in writing when fabrication of the Work is
completed and is ready for its deliery and installation at the Site.
b. Construction of the Site, including, but not limited to,the design, engineering, and labor associated
with preparing the Site to receive the Work shall be performed by others, and shall be done in
accordance with the specifications jointly agreed to by Artist,the Project Consultant,and City. Artist
is responsible for ensuring that these specifications are provided in accordance with the schedule
provided by City so that City can them into the construction documents and construction
contract.
C. Artist shall be responsible for obtaining and paying for all necessary permits and any required traffic
barriers appropriate for this Project.
d. Artist is responsible for installing all elements of the Work.Artist shall coordinate the installation of
the Work with City and Contract Manager. Delivery and installation activities may not commence
until written permission is delWer� to Artist by the City.
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e. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of
the Work, including,but not limited to,equipment rentals,transportation,and labor.
f. Should Artist complete the Work in advance of the completion of the Site,Artist shall store the Work
at no expense to City until such a time as the Site is completed and the Contract Manager notifies
Artist that installation may commence.
g. Artist, individually and through its subcontractors, including its fabricator and/or installer, shall take
all necessary precautions to protect and preserve the integrity and finish of the Site while delivering
and installing the Work. if City determines,in its sole discretion,that Artist or Artist's subcontractors
have damaged the Site,then City shall inform Artist,in writing,of the damage.Artist,at his/her own
expense, shall have thirty(30)days from receipt of City's written notice to repair the damage to the
Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within
thirty(30)days after receipt of the notice, or within the deadline otherwise agreed to by the parties,
then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist
under this Agreement,which shall in addition to any and all other rights and remedies available to
City at law or in equity.
h. Upon City's request, prior to ins aallation of the Work, Artist shall consult with a qualified art
conservator and provide to Contract Manager written instructions for appropriate maintenance and
preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance
Record).The appropriate maintenance and preservation instructions shall not be substantially different
from the maintenance and preservation anticipated and conveyed to City for the Work in the final
design phase for the Work.
2.6. Post-installation.
a. Within thirty(30)days after the installation of the Work,Artist shall furnish Contract Manager with a
set of at least seven(7)high-resolution digital images(.tiff format)and seven(7)low-resolution digital
images(jpeg format)showing the Work from at least two vantage points,including detail shots,with
at least three (3) of these images showing the Work installed, as selected by Contract Manager, to
document the Work after the Work is installed.
b. Artist shall make his/her best effort to be available at such time(s)as may be set by the City to attend
any inauguration or presentation f eremonies relating to the transfer of the Work to City. City shall
use its best efforts to arrange fob publicity for the completed Work in such art publications and
otherwise as may be determined b"City and Artist as soon as practicable following installation.
C. For the duration of the Agreement,if Artist intends to seek its own publicity for the Work,such efforts
and/or press releases must be approved,in advance,by City.
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2.7. Final Acceptance.
a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication,delivery,
and installation of the Work is completed in accordance with the terms of this Agreement. City shall
notify Artist, in writing,of its Final Acceptance of the Work as installed.
b. Artist shall notify City and Contract Manager, in writing,when all services for fabrication,delivery,
and installation of the Work have been completed in accordance with the terms of this Agreement.
Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit),
certifying that all bills relating to services or supplies used in the performance of this Agreement have
been paid.
C. City shall notify Artist in writing of its Final Acceptance of the Work.
d. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of
Final Acceptance;or(2)the 35th d*after Artist has sent the written notice to City required under this
Section 2.7,unless City,upon receipt of such notice and prior to the expiration of the 35-day period,
gives Artist written notice specifying and describing anything that has not been completed pursuant to
this Agreement.
2.8. Risk f Loss.
The risk of loss or damage to the Work shall,be borne by Artist prior to Final Acceptance,and Artist shall take
such measures as are necessary to protect thO Work from loss or damage until Final Acceptance,including,but
not limited to,the purchase of property loss insurance,except that the risk of loss or damage shall be borne by
City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the
custody, control or supervision of City or its agents for the purposes of moving, storing, or performing any
other ancillary services to the Work.
ARTICLE 3
3.1. Cop=mtion.
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Total compensation to Artist under the Agreement shall be in an amount not to exceed SEVENTY-FOUR
THOUSAND, TWO HUNDRED DOLLARS AND NO CENTS ($74,200.00), which shall constitute full
compensation for all services to be performed and materials to be furnished by Artist under this Agreement,
including, but not limited to, fabrication, transportation, installation,Artist's fee, insurance, incidental costs,
all travel expenses,and any other costs associated with the Work, The Parties may amend this Agreement to
allow for additional payment if additional services are required.
3.2. Payment Schedule.
City agrees to pay Artist in the following installments set forth below, each installment to represent full and
final,non-refundable payment for all services and materials provided prior to the due date thereof:
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a. THIRTY-FIVE THOUSAND, OMJ HUNDRED DOLLARS AND NO CENTS ($35,100.00) upon
execution of this Agreement.
b. TEN THOUSAND DOLLARS AND NO CENTS($10,000.00)upon Contract Manager's verification
that construction of the site work required to receive the Work is complete.
C. TEN THOUSAND, FIVE HUNDRED AND THIRTY DOLLARS AND NO CENTS ($10,530.00)
upon Contract Manager's verification that fabrication of the Work is 50%complete.
d. TEN THOUSAND, FIVE HUNDRED AND THIRTY DOLLARS AND NO CENTS ($10,530.00)
upon Contract Manager's verification that the Work is ready to install.
e. FOUR THOUSAND,FORTY DOLLARS AND NO CENTS($4,040.00)within thirty-five(35)days
after Final Acceptance and receipt by City of such documentation it may require concerning payment
of services and supplies rendered to Artist(see Article 2);provided,however,that final delivery shall
not be tendered prior to the expiration of thirty(30)days after Final Acceptance.
f. The total compensation in Article 3.1 includes payment of any unforeseen changes in fabrication or
installation costs from a contingency fund in an amount up to FOUR THOUSAND DOLLARS AND
NO CENTS ($4,000.00)for costs associated with the Work that are incurred by the Artist upon (i)
receipt of supporting documentation by the Contract Manager from the Artist and(ii)approval by the
Contract Manager of the additional costs.
3.3. des Taxes.
City is a tax-exempt organization and no site or local sales taxes or federal excise taxes shall be due upon the
Work. City shall supply Artist with the"` exas Certificate of Exemption," in substantially the same form as
that attached hereto as Exhibit"E"for use Iy Artist in the fulfillment of this Agreement.
3.4. Artist's ExMns.es.
Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement,
including, but not limited to, services, materials,mailinollipping charges and insurance on submissions to
City and/or Contract Manager, cost of all travel,and costs for Artist's agents,consultants, and/or employees
necessary for the proper performance of the services required under this Agreement.
ARTICLE 4
TERM &ND TIME OF PERFORMANCE;
4.1. Term.
This Agreement shall be in effect from they Effective Date,and,unless terminated earlier pursuant to such
provisions in this Agreement,shall exteridlunil final payment to Artist by City.
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4 2. Duration.
The services to be required of Artist set in Article 2 shall be completed in accordance with the Schedule;
provided, however, such time limits may extended or otherwise modified by written agreement between
Artist and City. I
4.3. Early Completion of Artist Service
Artist shall bear any transportation and storage charges incurred from the completion of his or her services
prior to the time provided in the schedule for delivery.
4.4. Time.Extensions.Force Majeure.
City or Artist,as appropriate,shall grant a reasonable extension of time to the other party if conditions beyond
the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal
government render timely performance of the parties'services impossible or unexpectedly burdensome. The
party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10)
days of the onset of such performance defy, specifying the reasons therefore. Failure to fulfill contractual
obligations due to conditions beyond eitherparty's reasonable control shall not be considered a breach of this
Agreement; provided, however, that such obligations shall be suspended only for the duration of such
conditions.
ARTICLE 5
WARRANTIES
5.1, Warranties of Title and Cortyriah
a. Artist represents and warrants that:
i. Artwork Design and Work shall be the original product of Artist's sole creative efforts.
ii. Artwork Design and Work re and will be unique and original,and do not infringe upon any
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copyright or the rights of an�person or entity;
iii. Artwork Design and Work( r duplicate thereof)have not been accepted for sale elsewhere;
iv. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Designs or Work any element thereof or any copyright related thereto that may
affect or impair the rights gr*ted pursuant to this Agreement;
V. Artwork Designs and Work are free and clear of any liens from any source whatsoever;
vi. Artist has the full power to Onter into and perform this Agreement and to make the grant of
rights contained in this Agreement;and
vii. all services performed hereunder shall be performed in accordance with all applicable laws,
regulations,ordinances,ctc and with alI necessary care, skill,and diligence.
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5.2. Warranties of Ouality and Condition.
a. Artist represents and warrants that all work will be performed in accordance with professional
"workmanlike" standards and free from defective or inferior materials and workmanship (including
any defects consisting of"inherent vice," or qualities that cause or accelerate deterioration of the
Work)for one year after the date of Final Acceptance.
b. Artist represents and warrants that the Work and the materials used are not currently known to be
harmful to public health and safety.
C. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with
reasonable promptness. Artist shall„at the request of City,cure the breach satisfactorily and consistent
with professional conservation standards(in accordance with the American Institute of Conservation
(AIC) Code of Ethics and Guidelines for Practice)and/or construction standards, including, but not
limited to,any standards set forth by City,within thirty(30)days after receipt of the written notice,at
no expense to City.
d. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages,
expenses,and losses incurred by City as a result of the breach. However, if Artist disclosed the risk
of this breach in the proposal and Oty accepted that it may occur, it shall not be deemed a breach for
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purposes of this Article 5.2.
e. If,after one year from Final Acceptance,City observes any breach of warranty described in this Article
5.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or
restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within
thirty(30) days atter receipt of the notice as to whether Artist will make or supervise the repairs or
restorations. Should Artist fail to respond within the thirty-day(30)deadline or be unwilling to accept
reasonable compensation under the industry standard, City may seek the services of a qualified
restorative conservator and maintenance expert.
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f. Acceptable Standard of Display. tst represents and wan-ants that:
L General routine cleaning 3 repair of the Work and any associated working parts and/or
equipment will maintain tl>a Work within an acceptable standard of public display.
ii. Foreseeable exposure to $►e elements and general wear and tear will cause the Work to
experience only minor repairable damages and will not cause the Work to fall below an
acceptable standard of public display.
iii. With general routine cleaning and repair, and within the context of foreseeable exposure to
the elements and general wear and tear, the Work will not experience irreparable conditions
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that do not fall within an acceptable standard of public display, including,but not limited to,
mold,rust,fracturing, staining,chipping,tearing,abrading,and/or peeling.
iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty,Artist shall provide copies of such warranties to City.
g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the
Work in accordance with Artist's specifications and the applicable conservation standards. If City
fails to maintain the Work in good condition,Artist,in addition to other rights or remedies Artist may
have in equity or at law,shall have the right to disown the Work as Artist's creation and request that
all credits be removed from the Work and reproductions thereof until the Work's condition is
satisfactorily repaired.
ARTICLE 6
INSURANCE AND INDEMNITY
6.1. General.
Artist shall Bary insurance as set out in Exhibit"F,"which is attached hereto and incorporated herein for all
purposes. Evidence of required insurance skiall be submitted to the Contract Manager prior to installation of
the Work on City property.However,if any part of the fabrication process will be conducted on City property,
then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that
work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the
Work. Except as provided in Section 2.t hereof, the risk of damage to or loss of the Work shall, during
fabrication and installation but prior to Final Acceptance,shall be solely that of Artist. This risk shall transfer
to City and shall no longer be the responsibility of Artist upon Final Acceptance,
6.2, Performance Bonds.
Artist shall not be required by City to post any performance bonds or similar undertakings.
63. Generallndemnity.
a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD
HARMLESS,AND DEFEND,AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY
AND ALL CLAIMS,LAWSUITS,JUDGMENTS,ACTIONS,CAUSES OF ACTION,LIENS,
LOSSES,EXPENSES,COSTS,FEES(INCLUDING,BUT NOT LIMITED TO,ATTORNEY'S
FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES,
LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO,
WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
DAMAGE) AND/OR PERSONAL INJURY (INCLUDING,BUT NOT LIMITED TO,DEATH)
TO ANY AND ALL PERSONS,OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES
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IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND
THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS,
PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS
AGREEMENT.
b. Artist agrees to and shall release City from any and all liability for injury,death, damage, or loss to
persons or property sustained or eauled by Artist in connection with or incidental to performance under
this Agreement. 1
C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in
favor of City in substantially the same form as above.
6.4. Intellectual Pro !U,
Artist agrees to assume full responsibility"r complying with all State and Federal Copyright Laws and any
other regulations, including, but not limited to, the assumption of any and all responsibilities for paying
royalties that are due for the use of other third-party copyrighted works by Artist. City expressly assumes no
obligations, implied or otherwise,regarding payment or collection of any such fees or financial obligations.
City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by
Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER
AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE
OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT
VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to revi+ew,or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of Artist.
ARTICLE 7
OWNEM IP AND MMM&U&P OPERTY RIGHTS
7.1. Title.
Tide to the Work, including, but not limised to, all documents, models, and drawings that constitute or are
components of the Artwork Design and/or Work shall pass to City upon Final Acceptance and payment for the
Work. These documents,models,and drawings will be retained for archival and exhibition purposes.Artist's
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Artwork Design and Work and all other vA�k products under this Agreement shall become the property of
City,without restriction on future use,except as provided below.
7.2. Copyright Ownership.
Artist retains all rights under the CopyrightAct of 1976, 17 U.S.C. Section 141 et seq., as the sole author of
the Work for the duration of the copyright.
7.3. Reproduction Rights.
a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any
additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant
permission to others to do so except with the express written permission of City. However, nothing
herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic
expression.
b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and
irrevocable license to graphically Opict and publicly display the Artwork Design and Work for any
non-commercial purpose whatsoevet.For purposes of this limitation,any graphic depiction or display
of the Artwork Designs or the Work intended to promote or benefit City, its public services or its
public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City,shall be deemed a non-commercial purpose. Notwithstanding the above
limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's
absolute, unrestricted rights incidental to City's full ownership of the Work to alter,change,modify,
destroy,remove, move, replace,operate, maintain,transport, sell or transfer, in whole or in part, the
Work when City deems it necessary(within its discretion,in order to otherwise exercise City's powers
and responsibility in regard to publi4 works and improvements,in furtherance of City's operations or
for any other reason.
C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the
following form:"®date,Artist's name."
d. Unless notified otherwise by City,Artist shall use Artist's best efforts in any public showing or resume
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use of reproductions to give acknovyWglnent to City in substantially the following form: "an original
artwork commissioned by and in the}<<public art collection of the City of Fort Worth,Texas."
C. Artist may,at Artist's expense,causo to be registered with the United States Register of Copyrights,a
copyright in the Work in Artist's name.
f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for
protecting the intellectual property rights of Artist.
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ARTICLE 8
AUM RIGHTS
8.1. Identification,
Contract Manager shall include credit to Ards`on the Fort Worth Public Art website(www.fwMlicart.org)
and facilitate the design,purchase and installation of a permanent plaque at the site.
8.2. Maintenance.
City recognizes that maintenance of the Werk on a regular basis is essential to the integrity of the Work.
City shall reasonably assure that the Work isproperly maintained and protected,taking into account the
maintenance instructions provided by Artist Jn accordance with Section 2.5 and Exhibit'C."
8.3. Repairs and Restoration.
a. City shall have the right to determine when and if repairs and restorations to the Work will be made.
During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all
major repairs and restorations;provided,however,Artist shall not unreasonably withhold approval for
any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended
repair or restoration, City shall hatie the right to make such repair or restoration. To the extent
practicable, Artist, during Artist's Li ifetime, shall bre given the opportunity to make or personally
supervise major repairs and restorations and shall be paid a reasonable fee for any such services,
provided that City and Artist shall a0ree, in writing,prior to commencement of any significant repairs
and restorations,upon Artist's fee far such services. Should Artist fail to agree to make or supervise
the repairs and restorations,City shall have the right to choose another entity or person to assist with
the restoration and/or repairs or mak4 said repairs by City.
i
b. All repairs and restorations shall be�inade in accordance with recognized conservation standards (in
accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for
Practice)and/or construction standards, including,but not limited to,any standards set forth by City.
C. City may require Artist to submit professional documents supporting Artist's proposal for repairs and
restorations prior to commencement of repairs or restorations.
d. When emergency repairs are neeess�vy to prevent the loss of or further damage to the Work or to
prevent risks to the public,such repaits shall be undertaken or arranged by City without advance notice
to Artist,and such repairs shall not bb deemed to constitute artistic alteration.
8.4. Alteration of the Work or of the Site
a. In the event that the Work is incorporated into a building, structure or realty, the installation of the
Work may subject it to destruction, distortion, mutilation or other modification by reason of its
removal. If removal of the Work would damage either the Work or the Site,City shall have the right
to remove the Work by any means, including destruction, in performing maintenance, repair,
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renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may
give Artist written notice of its intent to take such action under this paragraph.
b. In the event that the Work is freestanding,or incorporated into a building,structure or realty such that
it may be removed without damaging or destroying the Work or the building or structure,Artist may
be given written notice and ninety(90) days to remove the Work at his or her sole expense. Upon
Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by
any means, including its destruction.
c. City agrees that it will not willfylly destroy, damage, or modify the work, except as provided in
paragraphs a.and b.above.
d. in the event the Work is substantioilly damaged or altered,City shall no longer represent the Work as
that of Artist if Artist gives writtennotice to City that it is the position of Artist to deny authorship on
the grounds stated in this paragraph.
e. City shall,at all times,have the richt to move the Work,or remove it from public display. City shall
also have the right to sell or trade the Work.
8.5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition of the
Work.
8.6. Artist's Arles
Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure
prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce
these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision,City
shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights.
8.7. Additional Rights and Remedies.
Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available
to Artist under the law,which may now or ib the future be applicable.
ARTICLE 9
ARTIST AS AN INDEPENDENT CONTRACTOR.
Artist shall perform all work and services heieunder as an independent contractor,and not as an officer,agent,
servant or employee of City.Artist shall have exclusive control of,and the exclusive right to control the details
of the work performed hereunder,and all persons performing same,and shall be solely responsible for the acts
and omissions of his/her officers, agents,employees, and subcontractors. Nothing herein shall be construed
as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and
subcontractors,and doctrine of respondeat superior has no application as between City and Artist.
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ARTICLE 10
SUBCONTRACTING
Artist may subcontract portions of the services to be provided hereunder at Artist's expense,provided that said
subcontracting shall not adversely affect the design, appearance,or visual quality of the Work and shall be
carried out under the personal supervision of Artist.Any subcontract entered into under this Agreement shall
be expressly subject to the appl icable terms of this Agreement,including,but not limited to,al I indemnification
and release provisions. Artist shall provide information regarding all subcontractors, including its fabricator,
along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager.
ARTICLE 1.1
TERMINATION
11. ; Gratuities.
City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise
were offered or given by Artist or any agent or representative to any City or Contract Manager official or
employee with a view toward securing favor#ble treatment with respect to the awarding,amending,or making
of any determinations with respect to this p erfbffmi tce of this Agreement. In the event this Agreement is
canceled by the City,pursuant to this Article 11.1,City shall be entitled, in addition to any other rights and
remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such
gratuities.
11.2. Death or Incapacityfc�Artist.
a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or
obligations under this Agreement,City shall have the right to terminate this Agreement on payment to
Artist or Artist's successors for all work and services performed prior to incapacity. All work product
produced by Artist, including, but not limited to, finished and unfinished drawings, sketches,
photographs, models, and designs, up to the effective date of termination shall become property of
City.
b. In the event of termination under this Article 11.2, City shall have the right to complete the Work, if
feasible. Due regard shall be made for Artist's intended results and proper credit and
acknowledgement shall be given t�ArtisL This provision shall survive the termination or expiration
of this Agreement.
113. Termination for Convenience.
a. The services to be performed under this Agreement may be terminated by either party,subject to
written notice submitted thirty(30)calendar days before termination.
b. If the termination is for the convenience of City, City shall pay Artist pursuant to the payment
provisions in Article 3,and Artist shall continue to provide the City with services requested by City
and in accordance with this Agreet>dtent up to the effective date of termination. Upon payment in ful l
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of all monies due for services provided up to the effective date of termination,City shall have the right,
in its sole discretion, to possession and transfer of all work product produced by Artist under this
Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs,
models,designs and the Work up to the effective date of termination.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion,to pay
Artist pursuant to the payment provision in Article 3 or require the Artist to remit to City a sum equal
to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of
termination. If City chooses to pay Artist, then all work product produced by Artist under this
Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs,
models,designs,the Work up to the effective date of termination shall become property of City.
11.4. Termination for Cause.
a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of
this Agreement,or otherwise violate any of the covenants,agreements,or stipulations material to this
Agreement,then the Parties shall fust attempt to resolve any disputes arising from this Article 11.4 in
accordance with the dispute resolutijan process set forth in Article 12 of this Agreement. If the Parties
cannot resolve the dispute(s),then the disputing party shall thereupon have the right to terminate this
Agreement upon the delivery of a written `Notice of Termination" specifying the grounds for
termination.Termination of this Agoeement under this Article I I A shall not relieve the party in default
of any liability for damages resulting from a breach or a violation of the terms of this Agreement.
b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to
complete the Work in accordance with the Artwork Design,which shall be in addition to any and all
other rights and remedies available to City at law or in equity. If City exercises its right to complete
the Work,then,notwithstanding anything to the contrary:
(1)title to the Artwork Design, Work, and all other work product under this Agreement and
any prior agreement for theWork, including, but not limited to, all documents, models, and
I
drawings that constitute or#re components of the Artwork Design and Work, shall pass to
City and become the property of City,without restriction on future use, immediately upon the
City's exercise of its right to complete the Work;
(2) Artist shall forfeit any And all rights to the Artwork Design, Work, and all other work
product under this Agreement and/or any prior agreement for the Work, including, but not
limited to,those stated undetF Articles 7(Ownership and Intellectual Property)and 8(Artist's
Rights)of this Agreement;
(3)Artist automatically sells assigns,and transfers to City,the entire right,title,and interest
in and to the Artwork Design,Work,and all other work product under this Agreement or any
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prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C.
SS 101 et seq., and all the rights and privileges appertaining thereto, including, without
limitation,the exclusive right to reproduce, prepare derivative works based upon, distribute
copies to the public as well as display said Artwork Design and.Work,the same to be held and
employed by City for City's own benefit and use and for the benefit and use of City's
successors,assigns,and legal representatives forever;
(4)Artist shall have no copyright or other property interest in the Artwork Design,Work,or
any other work product under this Agreement and any prior agreement for the Work; and
(5) Artist, pursuant to this Article I I A, hereby acknowledges the rights of attribution and
integrity conferred by Sec4on 106A(a)of Title 17 of the U.S.Code,(as amended or as it may
be amended in the future)Titled"Visual Artists Rights Act,"and any other right of the same
nature granted by U.S,federal,state,or foreign laws,and of his/her own free act hereby waives
such rights with respect to my and al I uses of the Artwork Design,Work, and all other work
product under this Agreement and/or any prior agreement as a public artwork.Nothing in this
Article 11.4 shall affect the survival of the Articles outlined in Article 14.16 of this Agreement,
which shall remain in full force and effect upon termination of this Agreement.
ARTICLE I2
lP PUT E;RESOLUTION
a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations,
services rendered or any warranty that arises under this Agreement,the Parties shall first attempt to resolve
these issues through this dispute resolution process. The disputing party shall-notify the other party in
writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the
nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days
of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone
conference,in person meetings,or other reasonable means to resolve any claim,dispute,breach,or other
matter in question that may arise out 9f,or in connection with this Agreement.
b. If the Parties fail to resolve the dit within sixty(60)calendar days of the date of receipt of the notice
of the dispute,then the Parties shall s> mit the matter to mediation in accordance with Chapter 154 of the
Texas Civil Practice and Remedies Com and Chapter 2009 of the Texas Government Code,then in effect.
Request for mediation shall be in writing,and shall request that the mediation commence not less than
fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon
Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or
to the identity of a mutually agreed mediator within thirty(30)calendar days following the date of the
request for mediation,then all the colritions precedent in this article shall be deemed to have occurred.
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The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit
arising under this Agreement shall be in Tarrant County,Texas. Any agreement reached in mediation
shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this
agreement shall waive any immunity,or defense. No provision of this Agreement constitutes consent to
sue. If the Parties cannot resolve the dispute through mediation,then either party shall have the right to
exercise any and all remedies available under law regarding the dispute. (See Article 11.4)
ARTICLE 13
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination based on race,creed,color,national origin,sex,
age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited
criteria in any employment decisions relating to this Agreement, and Artist represents and warrants
that to the extent required by appligable laws, it is an equal opportunity employer and shall comply
with all applicable laws and regulations in any employment decisions.
b. In the event of Artist noncompliai x with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled,terminated,or suspended in whole or in part,and Artist may be debarred
from further agreements with City.
ARTICLE 14
MENCELLANEOUS
14.1. Complitance.
Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the
performance of Artist services under this A"ment.
14.2. Enc A¢reement.
This writing embodies the entire agreement and understanding between the Parties hereto, and there are no
other agreements and understandings, oral or written,with reference to the subject matter hereof that are not
merged herein and superseded hereby.
14.3. Amendments.
No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective
unless made in writing and signed by both parties hereto and approved by appropriate action of City.
14.4. Waiver.
No waiver of performance by either party"I be construed as or operate as a waiver of any subsequent default
of any terms,covenants,and conditions of this Agreement. The payment or acceptance of fees for any period
after a default shall not be deemed a waiver of any right or acceptance of defective performance.
14.5. Governins Law and Venue
If any action,whether real or asserted,at law� in equity,arises on the basis of any provision of this Agreement,
venue for such action shall lie in state courto located in Tarrant County, Texas or the United States District
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Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in
accordance with the laws of the State of Texas.
14.6. Successors and Assigns..
Neither party hereto shall assign,sublet or transfer its interest herein without prior written consent of the other
party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written
consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist
and its respective successors and pennitted assigns.
14.7. No Third-PAM_Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Artist,and any lawful
successor or assign,and are not intended to create any rights,contractual or otherwise,to any other person or
entity.
14.8. Severability.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired.
14.9. Contract Construction.
The Parties acknowledge that each party fnA if it so chooses, its counsel have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party must not be employed in fete interpretation of this Agreement or any amendments or exhibits
hereto.
14.10. Fiscal Eunding Out.
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to
appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this
3
Agreement to be effective on the later of O thirty (30) days following delivery by City to Artist of written
notice of City's intention to terminate or(ii)the last date for which funding has been appropriated by the Fort
Worth City Council for the purposes set foth in this Agreement.
14,11, CW ions.
Captions and headings used in this Agreern�nt are for reference purposes only and shall not be deemed a part
of this Agreement.
14.12. Artist's Address.
Artist shal I notify the Contract Manager of changes in address.
14.13. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of
Artist.
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14.14. Right to Audit.
Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the
Conceptual Design(collectively"Records"�at any time during the Term of this Agreement and for three(3)
years thereafter in order to determine compliance with this Agreement. Throughout the Term of this
Agreement and for three (3) years dweaf*, Artist shall make all Records available to City on 200 Texas
Street,Fort Worth,Texas or at another location in City acceptable to both parties following reasonable advance
notice by City and shall otherwise cooperate fully with City during any audit. Artist shall require all of its
subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form
as above.
14.15.Certified MBElWBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise
(MBE)or Woman Business Enterprise (WBE)firm with a certifying agency whose certification is accepted
by the City under the City's Business Diversity Enterprise Ordinance.
14.16, Survival Provision.
The provisions contained in Articles 5 (Warranties), 6 (Indemnity Provisions), 9 (Artist as Independent
Contractor), 11.2(Death or Incapacity of Artist), and 14.14 Right to Audit shall survive the termination
or expiration of this Agreement.
14.17, CaunjqE2asand tic 5�tes,
This Agreement may be executed in several counterparts,each of which will be deemed an original,but all of
which together will constitute one and the same instrument. A signature received via facsimile or electronically
via email shall be as legally binding for all purposes as an original signature.
14.18. Time Extensions.
The Parties may agree, in writing,to extend or modify any of the time deadlines set forth in this Agreement.
14.19. Israel.
Artist acknowledges that in accordance withChapter 2270 of the Texas Government Code,the 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 certifies
that Artist's signature provides written veriflcation to the City that Artist.(1)does not boycott Israel;and
(2) will not boycott Israel during the term of the Agreement
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ARTICLE 15
NOTICES
All notices, requests, demands,and other communications which are required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt
requested,postage prepaid,as follows:
I. CITY OF FORT WORTH: Jest's J.Chapa,Assistant City Manager
City Manager's Office
City of Fort Worth
200,Texas Street,Third Floor
Fort Worth,Texas 76102
Copies to: Sarah Fullenwider,City Attorney
Office of the City Attorney
City of Fort Worth
204 Texas Street,Third Floor
Forf Worth,Texas 76102
Martha Peters,Director of Public Art
Arta Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth,Texas 76107
2. ARTIST Eric McGehearty
McGehearty Holdings LLC
16415 Addison Road#550
Addison,Texas 75001
IN WITNESS HEREOF,the Parties hereto Have executed this Agreement to be effective as of the Effective
Date.
CITY 4 FO Tka
�,( U�y MCGEHEARTY HOLDINGS LLC
by: by:
esus J.C Eric McGehearty
Assistant /�;atlap-:7
Member
Date: ` A-" 0 Date: t Cf � ►,t
CONTRACT COMPLIANCE MANAGER
Agmcnient for Commission of Public Artwork with hlcGehe�q Holdings LLC hxecuti Copy 11/12/18
OFFICIAL°RECORD
CITY SECRETARY
FT. WORTH, TX
By signing,I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all rformance and rung requirements.
Nie:Alida- Labbc
Title:Public Art Project Manager
APPROVED AS TO FORM
V.
AND LEG IT..
Jessica Ssvang v
Senior Atigstant City Attorney
Form 1295: 2018-341985
ATTESTED BY: QF F
N46TY J. K ir
City Secret
t;
S
Contract Authorization:
M&C#Q-28715
DATE: August 7.2018
Exhibit A: Artwork Design
AVctmnt for Commission of Public Artwork with M"�v Holdings LLC Exv ution Copy 11112)18
OFFICIAL 2RMJ RD
CITY SECRETARY
FT. WORTH, TX
i
s,
19 �,
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Off the Line sculpture rendering
The artwork plays off the name of iconic Race Street while conveying joyful energy.
ON The Line will consist of 100 to 160 feet of brightly colored tiles laid down in a zig-zag fashion on a
sidewalk. Bordering each side of the line of files will be shallow channels embedded with LED strip lighting.
These lights will be chase lighting programmed to`race'each other via two interactive podiums with steering
wheels. Two individuals can therefore race with each other by using these podiums.
Agreement for Commission of Public Artwork with NWichatry Holdings LLC Execution Copy 11!11118
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Exhibit B: The Site
Along Race Street,between N. Sylvania Ave. and Riverside Dr.
a
e
�•;"� .aaYJ�it3t 'V" N
A�
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V 1
Exhibit C:Technical and Maintenance Record
GENERAL INFORMATION
Artist:
Address:
Telephone:
Cell:
E-mail:
Gallery Affiliation:
Other Representation:
ARTWORK
Title of Artwork:.
Project Name and Location Address:
FWPA Project Manager:
Description of Aztwork:(attach separately if necessary):
Artwork Dimensions:
Height: Width: Depth:
Pedestal or Pad Material: "
Pedestal or Pad Dimension;
Height: Width: Depth:
Location&Description of Signature Markings(or copyright):
Agreement for Commission of Public Artwork with McGchewty Holdings LLC Execution Copy 11112/18
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Edition Information if applicable:
Date of Execution:
Place of Execution:
Collaborating Artist:
Fabricator(if other than artist) I
Fabricator Address:
Methods/Materials Used in Eae+eation;of Artwork
Materials(list type, brand name and naqufacturer of all materials;attach Material Safety&
Technical Data. Include contact names fbr all suppliers and attach warranty information):
i
Construction Description: (list all fabricators and any architects,engineers or other technicians
involved in the creation and installation of this artwork. Attach all warranties&agreements)
Material(s) Specifications:
Joining Methods:
W44i%Roil Alta±'or Joint MatcxW 4 t A*c&Oqa Method:
Agreement for ConunW in of Public Artwork with Holdings LLC Execution Copy I i/12!18
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Casting Alloy, Wax Body,Glass or Fiber Type:
Finishes& Coatings(paint color and type, glaze,patina,any and all coatings including fixative,
UV,graffiti,etc. Please list vendors and contact information and provide all product information):
E
Pedestals,Foundations&Footings,Mg and Attachment Applications
(List all materials used to install artwct on sift. Include vendor information,parts numbers,
warranties and agreements.)
Integrated Components
(List all components included in design and fabrication contracts that function as a part of the final
installation including but not limited to: lighting,media, landscaping,etc.Include all vendor
information,parts numbers,warranties and agreements and any/all design schematics):
Installation
Installation Date:
Installation Method:(describe installation method,provide photo documentation if available. List
name and contact information of installation crew. Attach any diagrams or disassembly
instructions.)
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Recommended Routine Maintenance
Artist recommendation based on experience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
Unusual or Special Circumstances of Note
l Artist's Intention
(Please describe your view of how the artwork will change over time and in response to
environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA
in realizing an appropriate conservation action plan. In addition to environmental conditions public
artworks are often affected by public handling, landscaping and site changes.Please clearly detail
your expectations for this artwork. Please address issues related to the life expectancy of this
artwork.)
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D: Affidavit
AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and
materials provided to Affiant for the construction of any and all improvements on the property.
Affiant is not indebted to any person, firm.,or corporation by reason of any such construction. There
are no claims pending for personal injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me,the undersigned authority, on this the
Day of .20—.
Notary Public, State of Texas
Print Name
Commission Expires
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Exhibit E: Sales Tax Exemption
Texas Safes and Use Tax Exemption Certification
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fort Woof,Taxa 7$102
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Exhibit : Insurance Requirements
PUBLIC ART PROJECTS-INSURANCES REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication,
transportation, and/or installation of the Work,then Artist shall also require his/her subcontractor(s)to abide
by all of the following insurance requirements.
Commercial General Liability(CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent contractors,
products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an
occurrence basis,and be as comprehensive as the current Insurance Services Office(ISO)policy. The policy
shall name City as an additional insured.
Bailee's/Property(if applicable)
The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest
appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care,
custody,and control and shall include property"in transit."
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person i
$500,000 Bodily Injury per pecun ce
$100,000 Property Damage
A commercial business policy shall pru�coverage on"Any Auto,"defined as autos owned,hired and non-
owned.
For Artist and/or Artist's Subcontractors v ho have employees: Workers'Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease-per each emploee
$500,000 Bodily Injury/Disease-F41icy limit
Workers' Compensation coverage shall vide limits consistent with statutory benefits outlined in the Texas
workers'Compensation Act(Art. 8308— .01 et seq. Tex. Rev.Civ.Stat.).
GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers,
Employees and Volunteers as an "Additijmal Insured" on all liability policies. Exception... the additional
insured requirement does not apply to W4kers'Compensation or Automobile policies.
Agreement for Commission of Public Artwork with Holdings LLC Execution Copy 11/12/18
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-1 V
Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any
insurance policy and may not change the terms and conditions of any policy that would limit the scope or
coverage,or otherwise alter or disallow coverage as required herein.
The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery) in favor of the
City of Fort Worth. The insurers for all policies must be licensedlapproved to do business in the State of Texas.
The insurers for all policies must be licensed/approved to do business in the State of Texas. The insurers for
all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum
rating of A-VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength
and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of
Risk Management is required.
1
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
for any differences is required. Excess Liability shall follow form of the primary coverage.
"Unless otherwise stated,all required insu"shall be written on an"occurrence basis."
The deductible or self-insured retention(SIR)affecting required insurance coverage shall be acceptable to and
approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders'
equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk
retention groups,must also approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable
adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon
changes in statutory law,court decision or the claims history of the industry as well as of the contracting party
to City of Fort Worth. City shall be required to provide prior notice of ninety days.
City shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto
and may make any reasonable requests for deletion or revision or modifications of particular policy terms,
conditions, limitations, or exclusions except where policy provisions are established by law or regulations
u binding upon either of party or the underwriter on any such policies.
Agreement for Commission of Public Artwork withmtaftly Holdings LLC ExecutionCopy 11112!18
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 8/7/2018
CONTINUED FROM A PREVIOUS WEEK
DATE: Tuesday, June 5, 2018 REFERENCE NO.: C-28715
LOG NAME: 06SIX POINTS URBAN VILLAGE PUBLIC ART PROJECT
SUBJECT:
Authorize Execution of an Artwork Commission Agreement with McGehearty Holdings LLC in an Amount
Not to Exceed $74,200.00 for Fabrication, Delivery, Installation, and Contingencies for the Six Points Urban
Village, Along Race Street Between North Sylvania Avenue and Riverside Drive (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council authorize execution of an artwork commission agreement with
McGehearty Holdings LLC in an amount of$74,200.00 for fabrication, delivery, installation, and
contingencies for the Six Points Urban Village, along Race Street between North Sylvania Avenue and
Riverside Drive, 76111.
DISCUSSION:
The vibrant, interactive artwork plays off the name "Race Street"while conveying joyful energy and
reflecting the colorful architecture in the Six Points Urban Village. Located on the south side of the street,
"Off The Line"will consist of approximately 100 feet of brightly colored ceramic tile, in a zig-zag pattern,
with LED strip lighting on each side, embedded in the sidewalk. Two (2) interactive podiums with steering
wheels will allow pedestrians to"race"with each other using the lighting, by day or night.
The Six Points Urban Village artwork was designed in conjunction with the City's streetscape project along
Race Street. The artist has worked in coordination with the City's Design Consultant and community
stakeholders in the creation of his artwork design.
The artist, Eric McGehearty (McGehearty Holdings LLC), was placed under a Preliminary and Final
Design Agreement(City Secretary Contract No. 46493) on March 6, 2015, in the amount of$5,800.00.
Fort Worth Art Commission (FWAC) Action: On April 9th, 2018, the FWAC approved the artist' s final
design and recommended the artist be placed under an Artwork Commission Agreement. On May 14,
2018, the FWAC approved the artist's Revised Final Design.
Funding for the project has been appropriated from the Specially Funded Capital Projects Fund. The
project was included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan, adopted by the Fort
Worth City Council on October 17, 2017, as M&C G-19139. Project budget and funding sources are as
follows:
http://apps.cfwnet.org/ecouncil/printrnc.asp?id=25836&print—true&DocType=Print 11/21/2018
PROJECT BUDGET BUDGET CSNTRACT
Preliminary and Final Design 1$ 5,800.0 CSC#46493
Agreement
Commission Agreement $74,200.00 This M&C
Total $80,000.00
FUNDING SOURCE AMOUNT
Specially Funded Capital Projects Fund $80,000.00
Totaill $80,000.00
M/WBE OFFICE-The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of
total capital project dollars expended on public art annually.
Council Member Ann Zadeh concurs with the FWAC' s recommendation to proceed with fabrication,
delivery, and installation of the Six Points Urban Village Public Art Project.
The project is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION /CERTIFICATION:
The Director of Finance certifies that upon the approval of the above recommendation, funds will be
available in the current capital budget, as appropriated, of the Specially Funded Projects Fund. Prior to an
expenditure being incurred, the participating department has the responsibility to validate the availability of
funds.
FUND IDENTIFIERS(FIDs):
TO
Fund Departmentccoun Project JProgram ctivity Budget Reference # moun
ID 1A ID Year Chartfield 2
FROM
Fund Departmentccoun Project JProgram ctivity Budget Reference # moun
ID1A ID Year Chartfield 2
CERTIFICATIONS:
Submitted for City Manager's Office by: Jay Chapa (6122)
Originating Department Head: Randle Harwood (6101)
Additional Information Contact: Martha Peters (8172983025)
ATTACHMENTS
1. McGehearty Form1295.pdf (Public)
2. McGehearty Six Points MC Attachment revised.pdf (Public)
3. McGehearty Six Points MC FID attachment.pdf (CFW Internal)
4. McGehearty Six Points MC SAM.pdf (Public)
http://apps.cfwnet.org/ecouncil/printinc.asp?id=25836&print=true&DocType=Print 11/21/2018