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Contract 39752 (2)
^1TY 8`;M,RETARy ,NTRACT NO, AGREEMENT FOR COMMISSION OF PUBLIC ART WORK AGREEMENT BETWEEN THE CITY OF FORT WORTH AND MIKE MANDEL This Agreement ("Agreement"), entered into this day of , 2010, by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (the "City"), acting by and through Fernando Costa its duly authorized Assistant City Manager and MIKE MANDEL (the "Artist") of 124 Maplewood Street, Watertown, MA, 02472, The City has designated the ARTS COUNCIL OF FORT WORTH & TARRANT COUNTY, INC., (the "Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through Anne Allen, its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order 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; and, WHEREAS, the City of Fort Worth is constructing the Western Heritage Parking Garage in the cultural district on a site bordered by Gendy Street, Montgomery Avenue, the Fort Worth Community Arts Center and the Fort Worth Museum of Science and History, Fort Worth, TX, 76107, more particularly described in Exhibit "A" hereto (the "Site"); and, WHEREAS, the City has appropriated funds from the 2008 Certificate of Obligation Sale for a public art project at this Site; and, WHEREAS, the Artist was selected by the City through a selection process conducted by the Contract Manager with oversight of the Fort Worth Art Commission to design, fabricate and install an artwork for the Site; and, WHEREAS, the Artist's final design for the artwork (the "Final Design"), approved by the Fort Worth Art Commission on September 14, 2009, includes (1) Four large, vertical format (thirty three feet high by nine feet wide) photographic tile murals; (2) Two horizontal, entryway photographic tile murals (one three feet high by seventeen feet wide, and one three feet high by fifteen feet three inches_wide Page 1 OFFICIAL RECORD CITY aqpCRETARY WORTH, TX that depict multi -cultural individuals and events from the Fort Worth Stock Show & Rodeo from western entertainment history; and (3) Four enamel narrative panels describing the individuals and events depicted in the photographic tile murals (the "Work"). WHEREAS, City and Artist wish to set out the terms and conditions under which the Work shall be fabricated and installed in order to promote the integrity of Artist's ideas and statements as represented by the Final Design. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1. General. a. The Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary to fabricate, deliver and install the Work, as set forth in Section 1.4. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. The Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site in which the Work shall be installed shall be mutually agreed upon by the City and the Artist. c. The Artist shall obtain written permission, as needed, including Copyright permission, for use of the selected photographic images that the Artist has incorporated into his design. d. The Artist shall install the Work on dates and at times mutually agreed upon by the Artist and the City. e. The Artist shall plan and participate in one public education event in Fort Worth at a mutually agreed upon date and time. 1.2. Desig_n Approval. City and Artist acknowledge that the Artist's Final Design, attached hereto as Exhibit "B," has been reviewed and approved by the Fort Worth Art Commission as the basis for executing this Agreement with the Artist. Page 2 1.3. Execution of the Work a. Upon execution of this Agreement. Artist shall promptly furnish to the Contract Manager a schedule ("Schedule") for the completion of the fabrication and installation of the Work, including a schedule for the submission of progress reports, as required. After written approval of the Schedule by the City, the Artist shall fabricate, deliver and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between the Artist and the City. b. The City and Contract Manager shall have the right to review the Work at reasonable times during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the c. The Artist shall complete the fabrication of the Work in substantial conformity with the Final Design. However, Artist may present to the Contract Manager, in writing for further review and approval, any significant changes in the scope, composition, sound, design, color, size, material, or texture of the Work not in substantial conformity with the Final Design. The Contract Manager shall, in li Mght of the Final Design, determine whether a significant change requires City approval. 1.4. Delivery and Installation. a. The Artist shall notify the City, through its Contract Manager, in writing when fabrication of the Work is completed and ready for its delivery and installation at the Site. b. The Artist shall deliver and install the completed Work at the Site in compliance with the Schedule; provided, however, that delivery and installation activities may not commence until written permission is delivered to the Artist by the Contract Manager. c. Should Artist complete the Work in advance of the completion of the Site, Artist shall store the Work at no expense to the City until such a time as the Site is completed and the Contract Manager notifies the Artist that installation may commence. d. The Artist shall install the the murals according to ANSI standards as recognized by the Tile Council of America. e. The lath and plaster application (Installation Method W201), specified by the Artist for the four large the murals, shall be provided for and included in the construction contract for the Site via a change order, and shall be paid for by public art project funds. Page 3 f. Lighting for the Work and electrical for same shall be provided for and included in the construction contract for the Site via a change order, and shall be paid for by public all project funds. g. The Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. The Artist shall repair any damage to the Site due to delivery, installation, or Artist's negligence or the negligence of Artist's subcontractors. h. Prior to installation of the Work, Artist shall consult the American National Standards Association and Tile Council of America standards, and with a qualified art conservator, and provide to the 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. 1.5. Post -installation. a. Within thirty (30) days after the installation of the Work or the opening of the facility, whichever comes first, Artist shall furnish Contract Manager with a set of high resolution digital images (.tiff format) and low resolution digital images (.jpeg format) showing each of the six the murals and each of the six narrative panels of the Work and including detail shots of one large and one entryway the mural; and that at least two of these images show the tile murals in the context of the overall parking structure, as selected by Contract Manager, to document the Work after the Work is installed. b. The Artist shall be available at such time or times as may be agreed between the City and the Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to the City. The City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between the City and the Artist as soon as practicable following installation. 1.6. Final Acceptance. a. The Artist shall notify the City in writing when all services required have been completed in substantial conformity with the Final Design. Included in such notice from the Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. The City shall notify the Artist in writing of its final acceptance of the Work ("Final Acceptance"). c. Final Acceptance shall be effective as of the earlier to occur of (1) the date of the City's notification of Final Acceptance; or, (2) the 35th day after the Artist has sent the written notice to the City required under Section 1.6.a unless the City, upon receipt of such notice and prior to the expiration of the 35-day period, gives the Artist written notice specifying and describing the services which have not been completed. 1.7. Risk of Loss The risk of loss or damage to the Work shall be borne by the Artist prior to Final Acceptance, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including but not limited to the purchase of property loss insurance; except that the risk of loss or damage shall be borne by the City or its agents prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of the City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. The City shall pay the Artist a fee in the amount of TWO HUNDRED SEVENTEEN THOUSAND FIVE HUNDRED FORTY TWO DOLLARS AND NO CENTS ($217,542), (collectively, the "Fee"), which shall constitute full compensation for all services to be performed and materials to be furnished by the Artist under this Agreement, inclusive of fabrication, transportation, installation, Artist's fees, insurance, documentation and incidental costs, and all travel expenses. Page 5 a) Eighty Seven Thousand Seventeen Dollars ($87,017) upon full execution of this Agreement. b) Sixty Five Thousand Two Hundred Sixty Three Dollars ($65,263) upon the Contract Manager's verification that fabrication is 50% complete. c) Forty Three Thousand Five Hundred Ei6ht Dollars ($43,508) upon the Contract Manager's verification that fabrication is 100% complete and ready to install. d) Twenty One Thousand Seven Hundred Fifty Four Dollars ($21,754) within thirty-five (35) days after Final Acceptance and receipt by City of such documentation it may require concerning payment of supplies and services rendered to the Artist [see Section 1.6 (a)]. 2.2. Sales Taxes. The City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. The City shall supply the Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate," in substantially the same form as that attached hereto and incorporated herein as Exhibit "E" for use by Artist in the fulfillment of this Agreement. 2.3. 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 the City, cost of all travel, insurance and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1. Term. This Agreement shall be in effect from the date stated in the first paragraph of this Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 3.2. Duration. The services to be required of the Artist set forth in Article 1 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between the Artist and the City. 3.3. Early Completion of Artist Services. The 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. 3.4. Time Extensions; Force Majeure. The City or the 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 parry suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either parry'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 4 WARRANTIES 4.1. Warranties of Title. The Artist represents and warrants that: a. the Work shall be the original product of the Artist's sole creative efforts. b. the Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; c. the Work (or duplicate thereof) has not been accepted for sale elsewhere; d. the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Work or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; a e. the Work is free and clear of any liens from any source whatsoever; f. the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; g. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence; h. the Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, THE CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, ACTIONS OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF THE CITY'S USE OR POSSESSION OF THE WORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. 4.2 Warranties of Quality and Condition a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. c. If within one year City observes any breach of warranty described in this Section 4.2 that is curable by the Artist, the Artist shall, at the request of the City, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to City. City shall give notice to Artist of such breach with reasonable promptness. d. If after one year City observes any breach of warranty described in this Section 4.2 that is curable by the Artist, City shall contact the Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall have the right of first refusal to make or supervise repairs or restorations. Should Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. e. If within one year City observes any breach of warranty described in this Section 4.2 that is not curable by the Artist, Artist is responsible for reimbursing City for damages, expenses and loss incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the Proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Section 4.2. f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. ilia With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading and 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 the Artist may have in equity or at law, shall have the right to disown the Work as the Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 4.3 Survival of Representations and Warranties These representations and warranties shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 1. General. The Artist shall carry insurance as set out in Exhibit "F." Except as provided in Section 1.7 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 the Artist. This risk shall transfer to the City and shall no longer be the responsibility of the Artist upon Final Acceptance. 5.2. Performance Bonds. The Artist shall not be required by the City to post any performance bonds or similar undertakings. 5.3. Indemnity. (a) ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILLFUL MISCONDUCT; AND ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY ARTIST'S NEGLIGENCE OR WILLFUL MISCONDUCT. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST Page 10 ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. (b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. (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. (d) All indemnification provisions of this Agreement shall survive the termination or expiration A this Agreement. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the Work, including all documents, models and/or drawings which constitute or are components of the Final Design, shall pass to City upon Final Acceptance and payment for the Work. These documents, models and/or drawings will be retained for archival and exhibition purposes. Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 6.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 1 J U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.3 Reproduction Rights. a. In view of the intention that the final Work be unique, Artist shall not make any additional exact duplicate reproductions of the final Work, nor shall Artist grant permission to others to do so Page 11 except with the express written permission of City. However, nothing herein shall prevent the Artist from creating future artworks in the Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Work for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of 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 public works and improvements, in furtherance of City's operations or for any other reason. c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Unless notified otherwise by the City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist shall, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in the Artist's name. f. City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. The Contract Manager shall include credit to the Artist on the Fort Worth Public Art website (www.fwpublicart.ora) and a permanent plaque at the site. Page 12 7.2. Maintenance. The City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. The City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 1.4 and Exhibit "C", Technical and Maintenance Record. 7.3. Repairs and Restoration. a. The City shall have the right to determine when and if repairs and restorations to the Work will be made. During the Artist's lifetime and to the extent practicable, the City shall give the Artist the right to approve all major repairs and restorations; provided, however, the Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended major repair or restoration, the City shall have the right to make such repair or restoration. To the extent practicable, the Artist, during the Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that the City and the Artist shall agree in writing, prior to commencement of any significant repairs and restorations, upon the Artist's fee for such services. Should the Artist fail to agree to make or supervise the repairs and restorations, the City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by the City. b. All repairs and restorations shall be made in accordance with recognized principles of conservation. c. When emergency repairs are necessary in order to prevent the loss of or further damage to the Work, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 7.4. 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, the City shall have the right to remove the Work by any means, including destruction, in performing Page 13 maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. 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, the Artist may be given written notice and 90 days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, the City shall have the right to remove and dispose of the Work by any means, including its destruction. c. The City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. d. In the event the Work is substantially damaged or altered, the City shall no longer represent the Work as that of the Artist if the Artist gives written notice to the City that it is the position of the Artist to deny authorship on the grounds stated in this paragraph. e. The City shall at all times have the right to move the Work, or remove it from public display. The City shall also have the right to sell or trade the Work. 7.5. Permanent Record. The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.6. Artist's Address. The Artist shall notify the City of changes in the address set forth in Article 13. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.7. Additional Rights and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to the Artist under the law, which may now or in the future be applicable. Page 14 ARTICLE 6 ARTIST AS AN 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 respondeat superior has no application as between City and Artist. ARTICLE SUBCONTRACTING The Artist may subcontract portions of the services to be provided hereunder at the 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 the Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor. ARTICLE 10 TERMINATION 10.1. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by the Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Section 10.1, the City shall be entitled, in addition to Page 15 any other rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred by the Artist in providing such gratuities. 10.2. Termination for Cause. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations material to this Agreement, the other parry shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the parry in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 10.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of the City, the Artist shall have the right to an equitable adjustment in the fee including all work preformed to date plus any remaining artist fee up to a total of 5% or $13,414, in which event the City shall have the right at its discretion to possession and transfer of title to the sketches, designs and models already prepared and submitted or presented for submission to the City by the Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to the City. c. If termination is for the convenience of the Artist, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 10.4. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, the 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 Page 16 finished and unfinished drawings, sketches, photographs, models and work shall become property of the City. b. Should Artist's design have been approved or if the Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 10.45 the City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE DUAL OPPORTUNITY a. The Artist shall not discriminate against any employee or applicant for employment because of disability, familial status, race, color, religion, sex, sexual orientation, or national origin. The Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their disability, familial status, race, color, religion, sex, sexual orientation and national origin. Such action shall include but not be limited to the following. Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including apprenticeship. b. The Artist shall state in all solicitation or advertisements for employment placed by or on behalf of the Artist that all qualified applicants shall receive consideration for employment without regard to disability, familial status, race, color, religion, sex, sexual orientation, or national origin. c. The Artist shall furnish all information and reports requested by the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of the Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and the Artist may be debarred from further agreements with the City of Fort Worth. Page 17 ARTICLE 12 MISCELLANEOUS 12.1, Compliance, The Artist shall be required to comply with Federal, State and City statutes, ordinances and regulations applicable to the performance of the Artist services under this Agreement. 12.2 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. 12.3. 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 the City. 12.4. Waiver. No waiver of performance by either parry 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. 12.5. Governing Law and Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Tarrant County, Texas. 12.6. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective successors and assigns. 12.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and the Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 12.8. 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. 12.9. Contract Construction. The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 12.10. Fiscal Funding Out. If for any reason at any time during any term of this Agreement the 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 the City to the Artist of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 12.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Page 19 12.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 12.13. Su1vivin6 Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of the Artist. 12.14. Right to Audit. The Artist agrees that the City will have the right to audit the financial and business records of the 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 on 1000 Throckmorton Street, 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. Notwithstanding anything to the contrary herein, this Section 12.14 shall survive expiration or earlier termination of this Agreement. 12.15. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. ARTICLE 13 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: Page 20 1. CITY OF FORT WORTH: Copies to: ARTIST Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Anne Allen, Public Art Project Manager Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 Mike Mandel 124 Maplewood Street Watertown, MA, 02472 [SIGNATURES APPEAR ON FOLLOWING PAGE.] Page 21 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the latest date below. VED AS TO FORM: Guzman Assistant City Attorney Date: Contract Authorization: M&C # C-23552 Date: May 265 2009 CITY OF FORT WORTH Fernando Costa Assistant City Manager Date: O,/O ARTIST i 6/4 /^ u Mike Mandel Date: ATTESTED BY: Marty Hendrix City Secretary Date: Page 22 T OFFICIAL RECORD CITY SECRETARY T. T WORTH, TX Exhibit A: Site Snii�h Wnll South Wall Page 23 Maln Entrance -East The Site, continued. MIKE MAN DEL 124 MAPLEWOOD STREET, WATERTOWN. MA 02b72 phone: 617.926.3233 - iac:617.926.7602 M�KEqpTHECORNER.NET - WWW.THECORNER.NET Page 24 Exhibit B: Artist's Final Design Four Large Vertical Tile Murals Two Garage Entrance Horizontal Tile Murals Page 25 <xva+Rts e[urtln Tx[ PDDA[t[. R+5I IlbCL ifD IAVTttR[\ai RAT xI lPLO .**SoI RC to( pied% Off iNC x4541I P TEAM roAT[AA AA JPMI Tlo\ or RJ IDEALS ASV VMI" !1 SILT R[lil\<[RCl1}LryA[. TN[ <OYCIAL HPJCftb If MIR KIM 1[ Yi A a. PC01}SIS r,AAR A IIAIA fall. IAPM90In If IN AAINAM CIA"IRt NI It lr 11011} IlTO YSOA NCINIVIS YAA }0160R\ Y\ J RJ\<Y iaf YTR ASNt[TI[AOII+IT YAUJ All A \t[I%At Ppf\ }A[ Dl"WAlb Rubio SS AAllso fOT AS / PEl AT RlP10.50T SM\ 0!{ 11.1. [S[NTS if TA ITT IVVIAD. ARP\a AAV FI El N1111S0 JMRau\ RI<I\C SUE As Acsa Ixc i+AAr l!Y t\ ++• ❑R FI its IS for A"to AMR A �N[7m AID tiTRSIIILI}IM NPPrOSN ON ,iI 61'aA TN[ V 400 r; Enamel Nai7ative Panels Page 26 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist:_ Address: Telephone: Cell: Gallery Affiliation:_ Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Pedestal or Pad Material: Width: Pedestal or Pad Dimensions: Height: Width: Location & Description of Signature Markings (or copyright): Date of Execution:_ Place of Execution Collaborating Artist: Fabricator (if other than artist) Depth: Depth: Edition Information if applicable: - Page 27 Exhibit C: Technical and Maintenance Record Fabricator Address. Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of ail materials; attach Material Safety &Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Materials) Specifications: Joining Methods: Welding Rod Alloy or Joint Material &Application Method: 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): Exhibit C: Technical and Maintenance Record Pedestals, Foundations & Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) 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) Exhibit C: Technical and Maintenance Record Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. The 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.) Page 30 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of 200 Notary Public, State of Texas Print Name Commission Expires Page 31 Exhibit E: Sales Tax Exemption TEXAS CERTIFICATE OF E7�11IPTION T claim an exemption from payment of sales and use taxes for the purchase of taxable items described below or on the attached order or invoice. Description of Items (or an attached order or invoice) To Be Purchased: AIl Items 1 claim this exemption for the following reasou: Name of exempt organization: Ci of F ort Worth Sales and Tise Tax Pexmlt Number 1-75-G000528-6 Project £or which materials and supplies are purchased: I understand Hurt I will be liable for payment of sales tax, which may become due for failure to comply with the provisions of itre state, city, and/or metropolitan transit autbority sales and use tax laws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value for the period of time used_ I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable -items which I know, at the time of the purchase, will be used in a manner other than that expensed in this certificate and, upon conviction, may be fined up to $500 per offense Tax Exempt Status Due to Being a Governmental Entity Purchaser: City of Fort Worth Street Address: 1000 Throckmorton Street City, State, Zip Code: Fort Worth, Texas 76102 Sign Here: Date: 02/07/2007 Phone: j817) 392-8325 This certificate does not require a munber to be valid. Sales and use tax "exemption numbers" or "tax exempt" numbers do not exist. This certificate should be firrnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts. Page 32 Exhibit F: Insurance PUBLIC AN PROJECTS -INSURANCE REQUIREMENTS Artist and/or Artist's Subcontractors will provide the following insurance requirements. 1. Commercial General Liability (CGL) $1,000,000 Each occurrence $25000,000 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. If Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Commercial General Liability Insurance, however Artist's Subcontractor shall provide Commercial General Liability Insurance which shall name the Artist, and The City of Fort Worth, its Officers, Employees and Volunteers as additional insured. 2. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $5009000 Bodily Injury per occurrence $1005000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. If Artist does not drive onto Site and if Artist subcontracts fabrication, transportation and installation of the Work, Artist shall not be required to provide Automobile Liability Insurance, however Artist's Subcontractor shall provide Automobile Liability Insurance which shall name the Artist, and The City of Fort Worth, its Officers, Employees and Volunteers as additional insured. 3. For Artists and/or Artist's Subcontractors who have employees: Workers' Compensation Workers' Compensation Statutory limits Employer's liability $100,000 $ 100,000 $500,000 Each accident/occurrence Disease -per each employee Bodily Injury/Disease - policy limit Page 33 This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. GENERAL POLICYREQUIREMENTS • The City of Fort Worth, its Officers, Employees and Volunteers shall be named as an Additional Insured. Exception: The additional insured requirement does not apply to Workers' Compensation policies. • Thirty (30) days notice of cancellation or non -renewal. Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth, except for ten (10) days notice for non-payment of premium. • Waiver of rights of recovery (subrogation) 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. Except for workers' compensation, 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 riot written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. • "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." (If coverage is written on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage). • The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 the City's Risk Manager. Exhibit F: Insurance Requirements Exhibit F: Insurance Requirements • The 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 the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting parry to the City of Fort Worth. The City shall be required to provide prior notice of ninety days. • The 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 parry or the underwriter on any such policies. Exhibit F: Insurance Requirements Page 35 M&C Review Page 1 of 2 COUNCIL ACTION: Approved on 5/26/2009 Official site of thr� trity cif Fort t�Jnrth, f-oxas DATE: 5/26/2009 REFERENCE C-23552 LOG NAME: 20MANDEL WHPG NO.. — CODE: C TYPE: CONSENT HEAR NG: NO SUBJECT: Authorize a Final Design Contract in the Amount of $50,743.00 and a Subsequent Artwork Commission Contract in the Amount of $217,542.00 with Artist Mike Mandel for Final Design, Fabrication, Delivery and Installation of Artwork for the Western Heritage Parking Garage RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to execute a Final Design Contract with artist Mike Mandel for final design, including lighting design and electrical engineering, for the Western Heritage Parking Garage artwork in the amount of $50,743.00; and 2. Authorize the City Manager to execute a subsequent Artwork Commission Contract with artist Mike Mandel, upon final design approval by the City, for fabrication, delivery and installation of artwork for the Western Heritage Parking Garage, in the amount of $217,542.00. DISCUSSION: The Artwork Commission Contract will enable Watertown, Massachusetts -based artist Mike Mandel to proceed with final design, fabrication, delivery and installation of four large and a number of small mosaic murals and accompanying enamel text panels that depict events, livestock and individuals from Fort Worth Rodeo history at the Western Heritage Parking Garage. The four 32 feet by 8 feet mosaic murals will be installed into insets on the exterior masonry wall, adjacent to the corner towers, on the east and south sides of the building, (three will be located on the east or Gendy facade and one located on the south facade facing the Museum of Science and History). The smaller eight feet by one foot mosaic murals will be installed into insets in the pillars at the east (primary) entrance to the parking garage. The enamel text panels will be installed adjacent to pedestrian areas. These locations will give the artwork high visibility and enhance the parking garage for the benefit of visitors to the Will Rogers Memorial Complex and the cultural district. The amount of $333,280.00 (2 percent) was included in the 2008 Certificate of Obligation Sale for Critical Capital Needs for the Western Heritage Parking Garage artwork. Of the $333,280.00 project budget, $50,743.00 shall be for the Artist's Final Design Contract (artist's fee and engineering and consulting fees), $217,542.00 shall be for the Artwork Commission Contract and $29,995.00 for contingency, with up to an additional $35,000.00 for lighting and electrical needs for the artwork specified by the artist, to be ordered, supervised and installed by the General Contract under the City's Construction Contract. BACKGROUND: Using the process and guidelines established in the Fort Worth Public Art Master Plan, an artist selection panel, chaired by Council Member Carter Burdette, met on October 29, 2008, to review the qualifications of 18 national and regional artists from the Pre -Qualified List ofArtists and selected three finalists and three alternates. On January 12, 2009, the selection panel reconvened to review the http://apps.cfwnet.org/council�acket/mc review.asp?ID=11680&councildate=5/26/2009 2/3/2010 M&C Review Page 2 of 2 propu��als of the three finalists. At that meeting, the panel recommended Mike Mandel for the project. The Artist Selection Panel consisted of: Voting Panelists: Council Member Carter Burdette, Chair (CD 7) Patricia Ward, Community Representative Ed Bass, Event Facilities Fort Worth, Inc., and Chairman, Fort Worth Stock Show David M. Schwarz, Consultant to Event Facilities Fort Worth, Inc. (Not present for vote) Michael Bennett, Gideon Toal (Project Consultant) Rebecca Lawton, Curator, Amon Carter Museum Carol Henderson, Visual Art Professional Non-voting�anel advisors: Leslye Nunnelee, The Projects Group Mike Groomer, Event Facilities Fort Worth, Inc. Kirk Slaughter, Director, Public Events Department Betty Tanner, Assistant Director, Public Events Department Chris Harmon, Will Rogers Memorial Center Gregory Jordan, City of Fort Worth Finance Jody Ulich, President, Arts Council of Fort Worth (Fort Worth Community Art Center) On January 15, 2009, the Fort Worth Art Commission (FWAC) reviewed the selection panel's recommendation and made a formal recommendation to commission Mike Mandel to fabricate and install his proposed mosaic murals at the Western Heritage Parking Garage. M/WBE -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. This project is physically located in COUNCIL DISTRICT 7 but serves the entire City. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current capital budget, as appropriated, of the Western Heritage Parking Garage Fund. TO Fund/Account/Centers Submitted for CitkManager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers P249 531200 031980124030 $50,743.00 P249 541200 031980124080 $217,542.00 Fernando Costa (6122) William Verkest (7801) William Verkest (7801) http://apps.cfwnet.org/council�acket/mc review.asp?ID=11680&councildate=5/26/2009 2/3/2010