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Contract 52131
CITY SECRETARY CONTRAcT NO. 5a i 31 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JOE O'CONNELL CREATIVE MACHINES, INC. FOR PRELIMINARY DESIGN OF PUBLIC ART FOR EASTSIDE FAMILY LIBRARY PUBLIC ART PROJECT This Agreement is entered into this 511"day of 2019,by and between the City of Fort Worth,a home-rule municipal corporation of the State of Texas,acting by and through Jesus J.Chapa, its duly authorized Assistant City Manager, and Joe O'Connell Creative Machines, Inc., an Arizona corporation, located at 4141 E. Irvington Road, Tucson,Arizona 85714. The City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS,City is currently working with Project Consultant to design the new Eastside Family Library,a space specifically designed to engage youth ages 0— 18 and their families.The new building will be located at 3 85 1 East Lancaster Avenue,76103,in Council District 8.Construction is anticipated to begin in January 2019; WHEREAS, funding for this project has been allocated from the 2014 Bond Program, Proposition 3, adopted by the Fort Worth City Council on October 21, 2014 (M&C G-18339). Additional funding for the Project was included in the Fund Reprogramming Plans from the 2007 Critical Capital Needs Program and the 2008 Bond Program, adopted by the Fort Worth City Council on June 26, 2018 (M&C G-19323). The project was included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan, adopted by the Fort Worth City Council November 6, 2018 (M&C G-19412); WHEREAS, on October 26, 2018, the City entered into a contract with Artist to develop a Conceptual Design Proposal for the Site(Fort Worth City Secretary Contract No. 51490); WHEREAS, the Contract Manager conducted an Artist Selection Process in accordance with the Project Outline and the guidelines in the Fort Worth Public Art Master Plan Update; and on February 11, 2019,the Fort Worth Art Commission("FWAC") approved the Selection Panel's recommendation of Joe O'Connell Creative Machines, Inc. for the project based on their proposal for the Site; Agreement Between the City of Fort Worth and Page 1 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Exec OFFICIAL RECORD CITY SECRETARY FT. WORTH,,TX Ile WHEREAS,due to reprogrammed funding,the funding requires the design incorporate an artwork element that specifically engages the intersection reconstructed with the funding source; WHEREAS,City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1. Agreement—Means and includes this Agreement between the City of Fort Worth and Joe O'Connell Creative Machines,Inc.for Preliminary Design of public art for the Site. 1.2. Artist — Means and includes Joe O'Connell Creative Machines, Inc., and its officers directors or employees.An artist resume and portfolio image is attached hereto as"Exhibit A." 1.3. Artwork Design—Means and includes the Conceptual Design Proposal and Preliminary Design of the Work,which is defined in 1.3.a.below. 1.3.a.Conceptual Design Proposal—Means all conceptual drawings,sketches,narrative descriptions, budget estimates, and the like that are created by Artist in connection with Conceptual Proposal Contract, depictions of which are attached hereto as Exhibit`B"and incorporated herein for all purposes. 1.3.b. Preliminary Design — Means all developed preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County,Inc., and its officers, directors,and 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. Parties—Means and includes City and Artist. 1.8. Preliminary Design Deliverables—Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval prior to proceeding to the Final Design phase of this Agreement. Agreement Between the City of Fort Worth and Page 2 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 1.9. Project — Means and includes the capital improvement or public art development undertaking of City at the Northwest Community Park for which Artist's services are to be provided pursuant to this Agreement. A project outline attached hereto as"Exhibit C"describes the parameters and expectations of the project. 1.10 Project Core Team—Means and includes the group of community members,generally 5- 7 people, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Master Plan Update,page 23. 1.11. Project Stakeholders—Means and includes the appropriate City Council Member(s),and the Project Core Team and the FWAC's appointed representative and others as may be appropriate. 1.12. Site— Means the entirety of the library both interior and exterior, including an element with a street presence along East Lancaster Avenue,located at 3851 East Lancaster Ave.,Fort Worth,Texas 76103, attached hereto as"Exhibit D." 1.13. 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. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Scope of Services. a. Artist shall perform all services and will furnish all supplies,materials,and equipment as necessary for developing a Preliminary Design of the Work and for providing the Preliminary Design Deliverables based on the Conceptual Design Proposal and incorporating an element that specifically engages the intersection reconstructed with the funding source. 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 input from Project Stakeholders and approval by City as set forth in this Agreement. City may request changes to the Artwork Design from time to time under this Agreement,and Artist will accommodate City's requests. C. Prior to commencing the Preliminary Design, Artists shall meet with and seek input from Project Stakeholders. d. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. Agreement Between the City of Fort Worth and Page 3 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. f. Artist shall explore concepts for the Work, within the implementation budget set forth in Article 2.3. g. Artist shall meet and coordinate with Contract Manager and others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of structural support, lighting, electricity, or other infrastructure needs to support the Work. h. Artist shall present the Preliminary Design to the FWAC for joint review with the Project Core Team, other Project Stakeholders, the appropriate City staff, and for the FWAC's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be shared with City boards or commissions,as appropriate. i. Artist shall make a minimum of two(2)trips to Fort Worth, Texas for meetings and presentations as required in this Agreement.Additional trips can be negotiated as necessary. 2.2. 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. 2.3. Preliminary Design Deliverables. a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3 to City for approval. Preliminary Design Deliverables shall consist of the following: i. Detailed,design illustrations for the Work for the Site,which shall be in a high-resolution digital format, such as JPEG or TIF files, showing the proposed Work from multiple vantage points with at least one illustration showing the Work's size and placement in relation to the Site; ii. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements; iii. A preliminary budget estimate,on the budget form attached hereto as Exhibit"E,"for final design and implementation of the Work in an amount up to $312,760.91 which includes all costs for materials,engineering,labor,fabrication,delivery,installation,insurance(City Agreement Between the City of Fort Worth and Page 4 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 requirements attached hereto as Exhibit "I"'), travel costs, transportation, remaining Artist's fee of$36,883.39 and all other associated costs for the Work; and iv. Artist shall provide the Preliminary Design presentation materials in PowerPoint format to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. All documents, models, and/or drawings will be retained for archival and exhibition purposes. b. Preliminary Design Deliverables shall be submitted to the Contract Manager two(2)weeks prior to the scheduled Preliminary Design presentation for staff review. 2.4. Preliminary Design Review. a. Upon completion and submission of the Preliminary Design Deliverables and acceptance by Contract Manager, Artist shall present the Preliminary Design to the FWAC for joint review with the Project Core Team,other Project Stakeholders,the appropriate City staff, and for the FWAC's approval at a regularly scheduled FWAC meeting with a date and time mutually agreed upon. The Final Design shall subsequently be shared with City boards or commissions, as appropriate. b. City shall notify Artist of its approval,or disapproval,of the Preliminary Design within thirty(30) business days of Artist's presentation to the FWAC. C. If City disapproves of the Preliminary Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the Preliminary Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes,ordinances,or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s)to present the revised Preliminary Design in conformance with City's requirements. e. If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) f. Upon City approval of the Preliminary Design,any revisions made to a City-approved Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any City-approved revisions into the final design in conformance with City's requirements. Any revisions shall become part of any final design deliverables if the Artist proceeds to the final design phase. Agreement Between the City of Fort Worth and Page 5 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount up to FIFTEEN THOUSAND, NINTY-FIVE DOLLARS AND NO CENTS ($15,095.00) which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to engineering and consulting, travel (see Section 2.1(i)), an Artist's fee of$12,295.00, and all other services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. a. 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. i. THREE THOUSAND DOLLARS AND NO CENTS($3,000.00)upon execution of this Agreement. ii. THREE THOUSAND DOLLARS AND NO CENTS($3,000.00)within thirty(30) calendar days after Artist travels to Fort Worth and meets with Project Core Team and other stakeholders to gather input prior to Preliminary Design development. iii. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist submits all of the Preliminary Design Deliverables required under Article 2.3 of this Agreement. iv. THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) within thirty (30) calendar days after Artist makes a presentation(s)of the Preliminary Design to the FWAC, the Project Core Team,and other Project Stakeholders. V. TWO THOUSAND, NINTY-FIVE DOLLARS AND NO CENTS ($2,095.00) within thirty(30)calendar days after City's approval of the Preliminary Design. vi. An engineering allowance of up to ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00)for preliminary consultation as needed.Such payment shall be made for actual services rendered only and upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed)for such services attached. Agreement Between the City of Fort Worth and Page 6 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"G"for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date and,unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. 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 favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written"Notice of Termination"specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. 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 for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement,and Artist Agreement Between the City of Fort Worth and Page 7 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full 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,and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. C. If termination is for the convenience of Artist,City shall have the right,in its sole discretion,to pay Artist for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement 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 for services actually rendered,then all work product produced by Artist under this Agreement, 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. d. If termination is by mutual agreement of the Parties as set forth in Article 2.4, then City shall pay Artist for work performed in accordance with Section 3.2 of this Agreement up through the date of termination. City shall have the right 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, and designs, up to the effective date of termination. 4.5. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of 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 death or 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. Should Artist's Preliminary Design have been approved, in the event of termination under this Article 4.5, 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 to Artist. Agreement Between the City of Fort Worth and Page 8 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 ARTICLE 5 DISPUTE RESOLUTION If either Artist or City has a claim,dispute,or other matter in question for breach of duty,obligations, services rendered or any warranty that arises under this Agreement, the Parties shall 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 parry's specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings,or other reasonable means to resolve any claim,dispute,breach,or other matter in question that may arise out of or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute,then the Parties may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing,and shall request that the mediation commence not less than fifteen(15)or more than forty-five (45)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 conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County,Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement 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 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General. a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and/or Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or publicly display the Artwork Design and/or Agreement Between the City of Fort Worth and Page 9 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design and/or 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. b. 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. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and/or Work,except as those rights are limited by this Agreement. City may make and disseminate photographs,drawings, and other two-dimensional reproductions of the Artwork Design and/or Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "©date,Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business. e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist 6.2. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. 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 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. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. ii. Artwork Design and/or Work is and will be unique and original,and does not infringe upon any copyright or the rights of any person; Agreement Between the City of Fort Worth and Page 10 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Artwork Design and/or Work (or duplicate thereof) have not been accepted for sale elsewhere; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws,regulations,ordinances,etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer,agent,servant or employee of City.Artist shall have exclusive control of,and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist,his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity. 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 IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTISTS AND Agreement Between the City of Fort Worth and Page I I of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 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 caused by Artist in connection with or incidental to performance under this Agreement. 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. 9.2. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations,including,but not limited to,the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize,permit,or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE,DEFEND,INDEMNIFY,AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,ATTORNEY'S FEES, 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 review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. ARTICLE 10 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 applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. Agreement Between the City of Fort Worth and Page 12 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 11 MISCELLANEOUS II.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto,and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. 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. 11.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms,covenants,and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assi ns. 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 their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist,and any lawful successor or assign,and are not intended to create any rights,contractual,or otherwise,to any other person or entity. Agreement Between the City of Fort Worth and Page 13 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 11.8. 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. 11.9. Force Majeure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i)thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work(collectively "Records")at any time during the Term of this Agreement and for three (3)years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three(3)years thereafter,the Artist shall make all Records available to the City at 200 Texas Street, Agreement Between the City of Fort Worth and Page 14 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Fort Worth,Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 11.13. 11.14. Certified MBE/WBE. 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. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artist), Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification),and 11.13(Right to Audit)shall survive the termination or expiration of this Agreement. 11.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts,each of which will be deemed an original,but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.17. Time Extensions. The Parties may agree,in writing,to extend or modify any of the time deadlines set forth in this Agreement. 11.18. Israel. Artist acknowledges that in accordance with Chapter 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. If Artist is considered a"company,"by signing this contract,Artist certifies 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 the Agreement ARTICLE 12 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: Agreement Between the City of Fort Worth and Page 15 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 1. CITY OF FORT WORTH: Jesus 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 200 Texas Street,Third Floor Fort Worth,Texas 76102 Martha Peters,Director of Public Art Arts Council of Fort Worth& Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST Joe O'Connell Joe O'Connell Creative Machines,Inc. 4141 E.Irvington Road Tucson,Arizona 85714 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITE'OF FORT WORTH ARTIST by: ` 1 Jesus J. Chapa 'Conn 11 Assistant City Manager President,Joe O'Connell Creative Machines,Inc Contract Compliance Manager By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: ichelle Richardson Title: Public Art Project Manager Agreement Between the City of Fort Worth and Page 16 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 OFFICIAL RECORD CITY SECRETARY FT, WORTH,TX APPROVED AS TO FORM AND LEGA Y Jessica Sangsv g Senior Assist t ity Attorney Form 1295:Not required s. ATT ED BY: -,. M J.Kayser City Secretary Contract Authorization: M&C—No M&C Required Agreement Between the City of Fort Worth and Page 17 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 M AL.RECORDECRETARYORTH,TX Exhibit A:Joe O'Connell Creative Machines,Inc.Resume Joe O'Connell,Creative Machines 4141 E.Irvington Rd, Joe O'Connell founded his studio,Creative Machines,in 1995.His studio develops the detail design,interactive Tucson,AZ 85714 technology,bespoke lighting,and singularf a brication techniques,which are the signatures of his art.His work 520-294-0939 hasbeenshowningalleriesandatfestivals across the country including:the Accel Design Conference,Spark! joconnell@creativemachines.com ww joconnell@creativemachines.com nes.Com Mesa's Festival of Creativity,Chalk the Block,Glow,All Souls Procession,Firestone Gallery,and the Joseph Gross Gallery.Throughout his career,Joe has at times collaborated with ether artists and designers(including Nina Borgia-Aberle&Blessing Hancock)on specific projects to co-develop concepts for artwork,melding his interests in science and perception with other perspectives. PROJECT RESPONSIBILITY Joe leads the creation and integration of public art within the Creative Machines is a mu'ai-disciplinary design and fabrication company led by Joe O'Connell,founded in 1995.Our site.He also oversees the process of community engagement. companyincludes 35 unique individuals with backgroundsin art,engineering,design,architecture and fabrication. We would greatly appreciate an opportunity to work with you.Our 75,000 s.f.shop in Tucson,Arizona is devoted EDUCATION entirelyto pushing the boundaries of public art and interactive exhibits through comprehensive prototyping and University of California at San fabrication.Smart,inquisitive people and extensive capabilities in electronics,CNCmachiningand3Dforminggive Diego, 1993, Graduate Program in ustheabilityto explore pioneeringmaterialsand processes.Creative Machines has created and installed public art Sociology/Science. and exhibits forclientsthroughoutthe world.Because wetakeprojectsfromstartto finish,we can prototype ideas Princeton University, 1992, extensively during the design process and can respond quickly to whatever obstacles and opportunities arise Graduate Program in History of during fabrication.With comprehensive resources under one roof,we can extend a consistency of vision to all Science.Visiting scholar supported aspectsofa project. by NSF Graduate Research CREATIVE MACHINES PROJECT LEADERS Fellowship. Bachelor of Arts, University of Christina Albert:Christinaisacreativeanddetail-oriented prof essionaI with p rove n success inIeadingprojectsfroinconceptionto completion.She is expertly skilled atsteeringiclientsthrough the entire design process to consistently exceed expectations and Chicago, ''989. Highest honors, Phi bring projects in under budget. Beta Kappa, Kate Psyk:Asa Design Engineer,Kate has embraced the challenge of making complicated,interactive,kinetic exhibits underthe veryintense aesthetic,safety,and reliability constraintsthatdrivetheMuseum/Exhibition Industry.Asa Project Manager,she isahighly Rutgers University, ±987, organized and energetic problem solver.Throughout her experience she has learned about the distinct difference between making something work and making something work well. Program.NSF undergraduate grant for research. Dove Davis: With 24+patents arid significant engineering work with the NSF on the Gemini 8m telescope,Dave brings a proven abilitytodesign and manage projects on time,under budget and exceeding objectives.His respected track record for novel problem SELECT HONORS solving in design,manufacturing and management in varying industries makes him avaluableassettoourteam. Public Art Network Year in Review, Chris Biagi:Chrisenjoys creating impactful visualizations to help communicate concepts that utilize hisengineering talentsto create 2M4, Americans for the Arts uniqueand inspiring experiences.He became a leader in certification testing in aerospace and energy,and worked extensively in novelsensor design in both academic and industrial settings. Transformative Design Award,2013, Chrissy McMillan:Chrissy oversees general design management,budgeting,coordination and logistics management.She primarily coordinates with Project Managers on the progression of all projects.She manages communication,goals,timelines and daily SXSW Eco 'Place By Design' operations. Award. Agreement Between the City of Fort Worth and Page 18 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 SELECT PROJECTS Title/Project Budget Date Codes,Flagler Banyan Square,West Palm Beach,FL $700,000 currently commissioned Bends Toward Justice,MLK.Jr.Innovation Corridor, $250,000 currently Atlanta,GA commissioned Body Politic, Lenexa Civic Center Campus,Lenexa,KS $180,000 2018 Shimmering Sea,The Watermark,Tempe,AZ $121,000 currently i commissioned City o/Stars,Multi-Generational Recreation Center, $200,000 2018 Grapevine,TX Elements,Campos Verdes,Irvine,CA $112,000 currently commissioned Earth's Blanket,Colorado State University,Fort Collins, $282,500 2017 CO Rising Star,The Gables Rolfe Street Plaza,Rockville, S112,000 currently Yi MA commissioned - Growing Home,Ballpark Village,San Diego,CA $350,000 currently P31111402i commissioned Crescent,Four Seasons,Abu Dhabi,United Arab $185,000 2017 Fft Emirates Din Don Ball Machine Restoration,Umie Shopping Center, $330,000 2047 t� span As Above, � As Above,So Below,Four Seasons,Abu Dhabi,United 5185;000 2016 Arab Emirates Sprouts,Phoenix Children's Hospital, Phoenix,AZ S172,000 2017 li Convergence,University of Iowa,Iowa City,IA $161,000 2017 : ,,• 'h Puzzle Wall,ASCO Annual Meeting,Chicago,IL $230,000 2016 -. Latent Energy,Sam Houston State University, $220,000 2017 w. €T Huntsville,TX Wings Over Water,George R.Brown Convention 51,400,000 1016 Center,Houston,TX MOXI, The Wolf Museum of Innovation+Exploration, $5,600,000 2017 A Santa Barbara,CA Twilight Garden,Morris Plaza, Mesa,AZ $100,000 2015 •�v1' :G L... �.�., Sound Machine,MOXI,Santa Barbara,CA $I25,000 2016 Wet Wheel,Tucson,AZ $100,000 currently J 4 commissioned C �x Stories Interweave,Colfax Avenue Bridge,Aurora,CO $300,000 2017 �11 Ellipsis,Alma Park,Walnut Creek,CA S200,000 currently commissioned Le Reve de Newton,Pass Museum,Frameries Belgium $160,000 2015 Lenses,Scottsdale Quarter,Scottsdale.AZ $800,000 2015 Lite-Bite,ASH&ASCO Annual Meetings $230,000 2014 t Piole Kabuto,piole Himeji,Himjei,.lapan $85,000 2014 Exploratorium,Kayseri Science Center,Kayseri,Turkey $123.000 2015 Texas Rising,Texas Tech University,Lubbock,TX* $485,000 2014 ���w wt it Color Wash,Pantano Wash,Tucson,AZ* S99,000 2017 Hurricane of Words,Encino Branch Library,San $100,000 2014 Antonio,TX* Philosopher's Stone,Chengdu,China* $60,000 2014 S Adcetris,ASH&ASCO Annual Meetings $220,000 2013 Camaraderie,Department of Veterans Affairs,Palo $300,000 2018 Alto,CA* Mirror of Thoughts,Rockville Town Square,Rockville, $200,000 2015 MD* The Thinkery,Austin,TX $53000 2013 Small Talk About the Weather,Oklahoma City,OK" S185,000 2016 Bloom,Women&Children's Hospital,Hoffman Estates, $105,000 2014 IL On Display,South Broadway Renovation,Denver,CO* $250,000 20t5 Ballroom Luminoso;1-35 Underpass,San Antonio,TX* $100,000 2013 Fish Bellies,Texas State University,San Marcos,TX* $250,000 2013 Heart Beacon,Emergency Coordination Center, S150,000 2013 Portland,OR* Inspiria,Sarpsborg,Norway $405,275 2011 Agreement Between the City of Fort Worth and Page 19 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 SELECT PROJECTS(CONT.) Title/Project Budget Date Line and Sky,The Commonlink,Shreveport,LA* $750,000 currently commissioned Chinook Arc,Barb Scott Park,Calgary,Alberta, $500,000 2014 Canada* Brilliance,Main Library and Arts Center,Palo Alto, $200,000 2014 CA* ° PusatSains Negara,Kuala Lumpur $161,000 2010 Cyclorama,University of Central Florida,Orlando, $130,000 2012 FL* Empire o/Giants,Ross Ave Gateway,Dallas,TX* $150,000 currently commissioned y"r Origo Environment Sphere,Inspira,Sarpsborg, $35,000 2011 yi4 Norway* Utah Bit and Mine,Midvale Light Rail,Midvale, $130:000 2011** UTSeed Pods,Tinsletown,The Woodlands,TX* $325.000 currently commissioned t4Q Cocoon,Houghton Road Corridor Improvements, $200,000 2014 I - Tucson,AZ** *L Wandering Stars,Tucson Modern Streetcar, $130,000 2013 5 , Tucson,AZ* Bends Towards Justice,MILK Tower,Tucson,AZ $170,000 currently ` t commissioned ■I # � SEED[popl],Art for the Solar Decathlon, $25,000 2009 - Washington�.., Toby,Scott Avenue Renovation,Tucson,AZ $75,000 2009 Bike Church, Barrio Anita Neighborhood,Tucson, $90,000 2009 P. t AZ i W Durango Discovery Museum Durango,CO $125;000 2010 phaeno,Wolfsburg,Germany $151,000 2010 Science Museum o/Minnesota,St. Paul,MN $80,000 2010 Aiganater Children's Museum,Cairo,Egypt $125,000 2009 r Science Centre Singapore,Central Area,Singapore $202,000 2009 ! National Taiwan University Hospital,Taipei, $110,000 2008 Taiwan Anchorage Museum,Anchorage,AK $364,000 2008 77 Exploratorium,San Francisco,CA $68,000 2008 VILVITE,Bergen,Norway $192,000 2008 Public Drums,Ochoa Park,Tucson,AZ $40,000 2008 Wondrous,Wheeler Taft Abbett Sr.Public Library, $100,000 2008 Marana,AZ { Don Harrington Discovery Center,Amarillo,TX $125,000 2008 Liberty ScienceCenter,JerseyCity,NJ $373,275 2007 Color Factory,Discovery Gateway,Salt Lake City, $130,000 2006 UT Children's Museum of Utah,Salt Lake City,UT $130.000 2006 Bishop Museum,Honolulu,HI $586,000 2005 Desert 0,Luminarias del Pueblo,Tucson,AZ $75,000 2004 California Science Center,Los Angeles,CA $435,000 2004 Denver Museum o/Natural Science,Denver,CO $110,000 2001 Leepa Rattner Museum o/Art,Tarpon Springs,FL $189,000 2000 Gul/coast Wonder and Imagination Zone,Sarasota, $120,000 1999 FL Discovery Science Center,Santa Ana,CA $245,000 1998 *Collaboration with Blessing Hancock -Collaboration with Nina Borgia-Aberle&Blessing Hancock Agreement Between the City of Fort Worth and Page 20 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit B: Conceptual Design Proposal A .4 r �•, ' 'P 1� €�I irk f" �� ��r���_-•7�i� .� *�*' EEL— .�♦:fah `� �iC�},��. _ .. i�f.._ w j-•� ���y� � Y KA �• 1 V A ' 'M ON SOL A � ;ril f ,y, Cy. 4... ;7 � � v i � $♦ i Agreement Between the City of Fort Worth and Page 21 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit C: Project Outline AY TA va�ft WO#t7N VQ#4$C A., Eastside Family Library New Artist Selection Process Outline ft r ' E � :-�"' 'i► _��,,' is�@� �� e a c_s �S' «'`+:•;rn,r"�-'.rua."..iJ'�.:�+ik'lsia�l�.ti ,.:., e... �» ✓.: dJ r.i Fri- The City of Fort Worth is currently working with KAI Texas architects to design the new Eastside Family Library,a space specifically designed to engage youth ages 0-18 and their families.The 8,000 square foot library will be the first of its kind in North Texas.The new building will be located at 3851 East Lancaster Avenue in Council District 8.Construction is anticipated to begin in early 2019. This project is informed by the East Lancaster Corridor Public Art Plan,a document that outlining that sets forth a conceptual design framework linking the"nodes"of activity along the East Lancaster Corridor.The plan suggests"a framework for well-designed, linked,visual elements that create a sense of pride, identity,connectivity and delight while reflecting the distinct character of the neighborhoods and urban villages that the corridor supports." At the Project Kick-Off Meeting on November 8,2017, Library Department Director Manya Shorr asked the design team to create an immersive interior design with interactive components to engage children and teens,and promote exploration and creativity. KAI Texas representatives expressed enthusiasm about the prospect of collaborating with an artist to achieve that goal. The Eastside Family Library Project Core Team met January 22, 2018 at which they discussed their aspirations for the project.A consensus was reached that the artwork should be dynamic and futuristic, be approachable for different types of learners(and ages),and have creative longevity. Agreement Between the City of Fort Worth and Page 22 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 A competitive Artist Selection Process was conducted,which was overseen by the Fort Worth Art Commission (FWAC)who later approved the Selection Panel's recommendation in March 2018.As of late August 2018 the selected artist will not be moving forward,therefore it is necessary to select a new artist for the project. PUBLIC ART APPROACH The goal remains to create an inspiring and imaginative learning environment for youth in the community working with the design team,with input from the library staff and community stakeholders that will be a truly unique space in Fort Worth that is engaging for young patrons and their parents. Since the configuration of the library will remain flexible, it is important that the artwork be designed in such a way that it will appeal to all ages regardless of location within the building.Though the project is considered to be both interior and exterior,the holistic environment must include an exterior presence*. Since the library is at the end of the Design Development phase,opportunities have been identified that the artist may address which include, but are not necessarily limited to: • Lightweight suspended sculpture(interior) • Free standing sculpture,which could include reading nooks(interior) • Windows(interior/exterior) • Free-standing sculpture in the East Lancaster Avenue plaza or Sensory Garden(exterior) • Sensory garden and/or sensory garden screening wall facing East Lancaster Avenue and Haynes Avenue(exterior) PUBLIC ART BUDGET The Eastside Family Library project is included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan and Budget,which was adopted by the Fort Worth City Council on October 17, 2017 (M&C G-19139). $ 65,000.00 2014 Bond Program $264,230.00 2008 Bond Program* $ 96,497.00 2007 Critical Capital Needs Program* -$26,065.64 LESS FUNDS EXPENDED FIRST SELECTION PROCESS&PRELMINARY DESIGN $399,661.36 TOTAL AVAILABLE FOR OVERALL PROJECT(including Project Management Costs and Contingencies) $338,955.91 TOTAL AVAILABLE FOR ARTIST'S BUDGET *2007 CCN and 2008 Bond Program funding from two nearby street projects requires that part of the artwork must be exterior and visible from the intersections of S.Perkins Street and Clairemont Avenue with East Lancaster Avenue. --ww" Vnv J arsel f wss National MuhK uftufal kr! 4.f Western Heritage ` h' +a•do" ■ate Avs U—J S A R G II } * AV11= K Agreement Between the City of Fort Worth and Page 23 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 An additional$10,000.00 has been pledged by community members Don Boren and Wanda Conlin for public art at the new Eastside Family Library. ARTIST ELIGIBILITY Arts Council Public Art staff will select approximately 10 public artists whose work will be a good fit for the project;this list will be based on the Fort Worth Public Art program's recently updated Pre- Qualified List of Public Artists as well as artists by invitation. PROJECT CORE TEAM 1. Wanda Conlin 2. Don Boren 3. Amy Milenkov 4. Robyne Kelly 5. Greg Hughes 6. Sultan Cole 7. Joanna Hudspeth 8. Erin Blythe 9. Tonya Ferguson ARTIST SELECTION PROCESS ARTIST SELECTION PANEL#1(October 2018) Arts Council Public Art staff shall curate approximately 10 qualified artists from the Fort Worth Public Art Pre-Qualified List of Artists,and artists by invitation.All artists will be contacted prior to the Artist Selection Panel Meeting to ascertain their interests and availability.After an initial presentation of artist images and qualifications to the panel,the panel shall select the three finalists and one alternate they feel are the best fit for the project. ARTIST ORIENTATION (October 2018) The selected finalists shall participate in a virtual site visit via conference call with the architects,the Project Core Team,City staff,and other stakeholders to discuss the vision of the new Eastside Family Library.After orientation,the artists will create a conceptual proposal. ARTIST SELECTION PANEL#2 (January 2019) Finalists will individually present prepared proposals to the Selection Panel and shall be paid an honorarium and will have any travel expenses reimbursed.The Panel will then recommend one artist and one alternate for the project. Upon the Fort Worth Art Commission's approval of the Panel's recommendations,the selected artist will be placed under a Final Design Contract. Selection Panel Meetings Facilitator: Michelle Richardson, Public Art Project Manager,Arts Council of Fort Worth and Tarrant County ARTIST SELECTION PANEL(Voting) 1. Wanda Conlin, Project Core Team Voting Member 2. Tonya Ferguson, Project Core Team Voting Member 3. Leslie Thompson, Fort Worth Art Commissioner 4. Maria Haag,Artist 5. Jasmine Martin, KAI Texas, Project Consultant Agreement Between the City of Fort Worth and Page 24 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 1 ADVISORS(Non-voting) 1. Council Member Kelly Allen Gray, District 8 2. Andrea Rogers-Henry, Library Advisory Board,Council District 8 3. Manya Shorr, Fort Worth Library Director 4. Marilyn Marvin,Assistant Library Director—System Wide Services 5. Michelle Lee,Youth and Teen Services Supervisor 6. Alfonso Meza,Project Manager,City Property Management 7. Other Project Core Team Members 8. Others,as appropriate TIMELINE(Subject to change) Fort Worth Art Commission (FWAC)Approval of Project Outline September 10,2018 Artist Selection Panel#1 October 2018 Orientation of Finalists October 2018 Artist Selection Panel#2 January 2019 FWC Approval of Artist January 14, 2019 Final Design Team Contract Executed January 2019 Library Opens Summer 2020 Agreement Between the City of Fort Worth and Page 25 of 31 Joe O'Connell Creative Machines,[tic.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit D: Site W S MEADOW - OOK -law LAM lot CUW*O~ gk,P0M6W*W I uwa"WAm lid RFTUV MAG pol Cf F-am RAM S-1 WRY GARDEN ♦ Gin FORT WORTH FORT WORTH EASTSIDE FAMILY LIBRARY N SITE PLAN MAROi 6TK 2M V Er Agreement Between the City of Fort Worth and Page 26 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 ir F_ FORT WOLA STER AVEFAMILY wRARY tlJiUdTER A NEW ti -11114 f r a F�F 0 y WO R MT WOMEASTSM FAMILY LIBRARY RIrER"YO.W Agreement Between the City of Fort Worth and Page 27 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit E: Budget Form BUDGETPROJECT DEVE L•PPROJECT PROJECT r O• COSTSCOSTS FEES INSTALLATION Artist fee Transportation Design(Preliminary/Finao Permits Professional fees Site preparation/remediation Engineer Footings/foundations Architect Electrical connections/modifications Lighting Desk Labor Conservator Equipment rental Other Traffic control SUB-TOTAL FEES Security SUB-TOTAL INSTALLATION TRAVEL Transporation OVERHEAD Long Insurance(prorated) Per diem(mead and incidentals) Studio assistant(hours x$per hour) SUB-TOTAL TRAVEL SUB-TOTAL OVERHEAD FABRICATION Artist administration(hours x$per hour) CONTINGENCY Materials Artist labor(hours x$per hour) GRAND TOTAL ARTIST Labor PROJECT COSTS Rentals(equipment,space,etc) Storage SUB-TOTAL FABRICATION Agreement Between the City of Fort Worth and Page 28 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS-INSURANCE 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 $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on"Any Auto," defined as autos owned, hired and non- owned. For Artist and/or Artist's Subcontractors who have employees: Workers'Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease-policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Agreement Between the City of Fort Worth and Page 29 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 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 licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A.M.Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an"occurrence basis." 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 binding upon either of party or the underwriter on any such policies. Agreement Between the City of Fort Worth and Page 30 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019 Exhibit G: Sales Tax Exemption Texas Sales and Use Tax Exemption Certification ttltls aeml fteby dblt net gnhr• b WNW ?at Iftm T ..ago.• , ,;;v►•yaw.�+a 9'IM Tuft#b 517-w4m F'on Waft,Taffies?"i#t#Gt t,!tr r-%W- O ads,cant a" t) of Wes rid use own t;!<w ft use d Iaxew swft t�a �tllt�+�M�'+N I 11 I M III 11 Illllli/��Y NO tmM/*"of own le be owavaw or W wo alb~wdar ar ftam 1 w1ft 604"Igo"Wa M ete11 sift amd Ia*woo a"oft 00 ba1- 1 bn fV iWri a ow"YIft the 0 -We al the Tw Cody w w d swWAft*w 1 00"Waml<ma�ted�twrlmllaaMt wtMlaeasr+dlAnm+�wwfna,► IIRMh�li1MM���'m�#MiW�MIfJ�M+M� ��� ftw a Cam C tvft* w —me s**m of ft wratr I ilpnes htCJf E' TAms sarei0rAr OarnCt be mlfalUd Amm b/YMC�1aMe.%M or 1111 W of a NOW wNkM. YMCWTV CATED=NOT#WQUMANUMVTOWVAL& soft ow "Tas IUVRON tIMWMW ar'7lrc 1Etr"W-- 1,s+s 4b na1 edK 7fitoeml�IWeeMaM�e�tMM:'1�tMar. O�rWeaW IMltnl�l�btdlletl�Aslrat>i�eCemtm�MetlMimof't11�MIAo�M1m1M�. Agreement Between the City of Fort Worth and Page 31 of 31 Joe O'Connell Creative Machines,Inc.for Preliminary Design of Public Artwork for Eastside Family Library Execution Copy 3/27/2019