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HomeMy WebLinkAboutContract 41162:BY SECRETARY COb\BTRACT NO, I to Se, =x.4 �- AGREEMENT FOR PRELIMINARY DESIGN OF PUBLIC ART WORK FOR THE EAST MULTI -PURPOSE CENTER BETWEEN THE CITY OF FORT WORTH AND MIKE MANDEL This Agreement is entered into this -I� �day of , 2010 (the "Effective Date"), 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"), an individual, of 124 Maplewood Street, Watertown, MA, 02472. The City has designated the ARTS COUNCIL OF FORT WORTH AND 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 Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, 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 the Artist 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, the City is constructing a new East Multipurpose Center on the Will Rogers Memorial Center ("WRMC") campus in the Cultural District, as shown on the map attached herein as Exhibit "A" (the "Site"), according to a design by Hahnfeld Hoffer Stanford, which the City has purchased; WHEREAS, the City desires to commission mosaic tile murals for the East Multipurpose Center that reflect an equestrian theme (the "Work"), to enhance users' and visitor's experience of the facility as well as to enhance visitor's and passersby's overall enjoyment of the WRMC campus; WHEREAS, funds are allocated in the 2010 Certificate of Obligations Sale for construction of the facility for artist's fees and costs related to the production of the artwork for the site; .I 1-24-1 0 1 „f74. OFFICIAL RECORD CITY SECRETARY FT. WORTH, T WHEREAS, the Artist was chosen through the direct -selection process outlined in the Fort Worth Public Art Master Plan, and the Fort Worth Art Commission (the "FWAC") has recommended that the Artist be retained to develop a preliminary design for public artwork to be incorporated into the Site; and WHEREAS, the City and the Artist wish to set out the terms and conditions for the Artist's participation in the project, in coordination with Hahnfeld Hoffer Stanford Architects (the "Project Consultants"). NOW, THEREFORE, the City and the 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 Scope of Services. a. The Artist shall perform all services and will furnish all supplies and materials as necessary for developing a preliminary design concept of the work (` Preliminary Design") and for providing Preliminary Design Deliverables, as defined and set forth in Section 1.3 of this Agreement. 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 input from the City's appointed Steering Committee and approval by the City as set forth in this Agreement. c. The specific location(s) at the Site where the Work shall be installed shall be mutually agreed upon by the City and the Ai tist. d. Prior to commencing work on the Preliminary Design, the Artist shall meet with and seek input from the designated Steering Committee, which shall include City Council Member Burdette, a representative of the FWAC, representatives from national horse associations and the Stock Show, stakeholders, City staff, and the City's Project Consultants. e. The Artist will make two trips to Fort Worth 1) for the purpose of meeting with the Steering Committee associations and conducting preliminary research; and 2) presenting the Preliminary Design to the Steering Committee for input and to the FWAC for approval. f. Upon request by the Artist, the City, the Project Consultant, and/or project manager shall 2of24 promptly furnish all information, materials, and assistance required by the Artist in connection with said submission to the extent such materials are available. The City, upon request, shall also provide correct scaled diawings of the Site, if available. 1.2. Artist Selection. The City and the Artist acknowledge that the Artist's qualifications have been reviewed and approved by the FWAC as the basis for executing this design services contract with the Artist. 1.3 Preliminary Design Phase Scope of Work and Deliverables a. Unless otherwise specified in this section, within three (3) months after the execution of this Agreement, the Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 1.3.a.i—iii (collectively, the "Preliminary Design Deliverables"), to the Contract Manager. Preliminary. Design Deliverables shall consist of the following: One illustration of each mosaic mural with at least one illustration showing the Work's sizes and locations in relation to the Site. Such illustrations shall be approximately 20" x 30" and mounted on foam core and/or supplied in a high - resolution digital format; ii. Preliminary written narrative describing the following items: (1) Design concepts and timeline for completion; (2) Proposed materials, fabrication, and installation methods for all elements of the Work; and (3) Specifications for artwork fight fixtures; iii. Preliminary budget for the Work with written estimates attached for supplies and services provided by others on the budget foim, attached hereto as Exhibit ` B," for a total not to exceed $246,383.00, which shall be inclusive of all phases of the project and the remaining Artist's Fee not included in this Agreement, and implementation of the Work through a subsequent Final Design and Commission Contract with the City (see Section 1.5). b. The Artist shall provide the Preliminary Design presentation materials, other than pioprietary material samples, to the Contract Manager to become part of the City of Fort Worth Public Art archive, as appropriate. 1.4 Design Review. 3of24 a. By December 15th, 2010, the Artist shall meet and coordinate with the Project Consultants, to ensure proper integration of the Work into the Site and into the construction documents, including, but not limited to, providing information on Work location(s), dimensions, and preparation of leave -outs where the Work will be installed, along with lighting requirements for the Work. b. The Artist shall make two formal presentations of the final Preliminary Design at dates and time mutually agreed upon. The Artist shall make the first presentation to the Steering Committee, City Council Member, and City Officials for review and input. The Artist shall make the second presentation to the FWAC for review and approval. c. The City may require the Artist to make such revisions to the Preliminary Design as the City deems necessary in its sole discretion. d If the City requires any revisions to the Preliminary Design, the Artist shall incorporate those revisions into the final design conforming to the City s requitement. Any such revisions shall become part of the deliverables under a subsequent final design contract. e. Upon the expiration of the Term (hereinafter defined in Section 3.1 of this Agreement), if the Preliminary Design is accepted by the City and funding becomes available and is approved by City Council, negotiations for final design, engineering, fabrication, delivery, and installation of the Work shall commence, which shall become pait of the deliverables under a subsequent final design contract. 1.5 Implementation Budget Total. The Artist shall develop a Preliminary Design that is financially feasible relative to the budget for implementation. It is understood that the budget for implementation of the Preliminary Design is estimated at TWO HUNDRED FORTY-SIX THOUSAND THREE HUNDRED EIGHTY-THREE DOLLARS AND NO CENTS ($246,383.00). This budget shall include all preliminary estimated total costs of implementing the Work, including, but not limited to, costs related to all engineering, materials, fabrication, labor, delivery installation, insurance, lighting (if required), the remaining 50% of the 20% Artist s Fee (hereinafter defined) not included in this Agreement, travel expenses, and all other associated costs for the Work, as well as the Artist's participation in an educational event associated with the Fort Worth Public Art Program at a mutually agreed upon date. The Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "B", for implementation of the Work through a Final Design and Commission Contract with the City, which contract is subject to the approval of City Council. ARTICLE 2 4of24 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. The City shall pay the Artist a fee not to exceed TWENTY-NINE THOUSAND EIGHT HUNDRED TWENTY DOLLARS AND NO CENTS ($29,820.00), which shall constitute full compensation for all services to be perfoimed and materials to be furnished by the Artist under this Agreement and be inclusive of incidental costs and all travel expenses (the ' Artist's Fee"). The Artist's Fee shall be paid in the following installments, expressed as portions of the Artist's Fee, each installment to represent full and final payment for all services and materials provided prior to the due date thereof: The Artist's Fee shall be paid as follows: a. THIRTY-FIVE PERCENT (35%) upon execution of this Agreement, recognizing that the Artist has already invested time and expense in preliminary design team coordination with the Project Consultants and the City. b. FORTY-FIVE PERCENT (45%) within thirty (30) days after the Artist submits the `Preliminary Design Deliverables, ' as required in Section 1.3.a.i-iii. of this Agreement and makes a presentation of the Preliminary Design to the FWAC. c. TWENTY PERCENT (20%) within thirty (30) days after the City's approval of the Preliminary Design. 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 as Exhibit "C" for use by the Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. The 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, and costs for the Artist's agents, consultants, 5of24 and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM AND TERMINATION 3.1. Term. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to any provision in this Agreement, shall extend until final payment to the Artist by the City, whichever is later. 3.2. 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 or Conti act 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. 3.3. 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 party 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 (the "Cure Period") If the default is not cured during the Cure Period, then this Agreement shall terminate. 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. 3.4. 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) days before termination. The notice shall specify whether the termination is for convenience or cause. 6of24 b If the termination is for the convenience of the City, the Artist shall have the right to fees for work performed, in which event the City shall have the right at its discretion to possession and transfer of title to the sketches, designs, and models aheady 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 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. 3.5. Incapacity of Artist. a. In the event of the Artist's death or the 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 the Artist or the Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models, and work shall become property of City. b. Should the 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 3.5, the City shall have the right to complete the Work. Due regard shall be made for the Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 4 REPRODUCTION RIGHTS 4.1 General Upon payment in full to the Artist, the Artist's Preliminary Design and all other work product under this Agreement shall become property of the City, without restriction on future use, except as provided below. The Artist shall retain copyright and other intellectual property rights in and to the Preliminary Design. By execution of this Agreement, the Artist grants to the City a perpetual, irrevocable license to graphically depict or display the Preliminary Design for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Preliminary Design intended to promote 7of24 or benefit the City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by the City, shall be deemed a non-commercial purpose. b. Upon payment in full to Artist, the City shall take title to all documents and/or drawings, which constitute or are components of the Preliminary Design. These documents and/or drawings will be retained for archival and exhibition purposes. c. The Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Preliminary Design, except as those rights are limited by this Agreement. The City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Preliminary Design 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 Preliminary Design for marketing and promotional purposes in connection with the Artist s business; provided, however, that the Artist shall make his/her best efforts to credit the City for commissioning the Work whenever possible. e. The City is not responsible for any third -party infringement of the Artist's copyright and not responsible for protecting the intellectual property rights of the Artist. 4.2 Artist's Address. The Artist shall notify the City of changes in the Artist's address as set forth in Article 10. 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 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every seasonable effort to locate the Artist when matters arise relating to the Artist's rights. ARTICLE 5 WARRANTIES 8of24 5.1 Warranties of Title. Artist represents and warrants that: a. The Preliminary Design shall be the original product of Artist's sole creative efforts. b. The Preliminary Design is and will be unique and original, and does not infringe upon any copyright or the rights of any person; c. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Preliminary Design or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; e. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence; f. Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, THE CITY, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST 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 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. This Section 5.1(f) shall survive the expiration or earlier termination of this Agreement. ARTICLE 6 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. The Artist shall have exclusive control of, and the exclusive right to, control the details of the work performed hereunder, and all persons performing 9of24 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 the City and the Artist, his/her officers, agents, employees and subconti actors, and doctrine of respondeat superior has no application as between the City and the Artist. ARTICLE 7 INDEMNIFICATION a. THE ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLFSS AND DEFEND, AT ITS OWN EXPENSE, THE CITY AND ITS REPRESENTAIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARAC IER, 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 THE ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT; AND THE ARTIST HEREBY ASSUMFS ALL LIABILITY AND RESPONSIBILITY OF THE CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KTNDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMP I ED 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 THE ARTIST'S NEGLIGENCE OR WILFUL MISCONDUCT. THE ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS THE CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE, AND/OR DESTRUCTION OF PROPERTY OF THE CITY, ARISING OUT 10 of 24 OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF THE ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. b. THE ARTIST AGREES TO AND SHALL RELEASE THE CITY, ITS REPRESENTATIVES, AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES FROM ANY AND ALL LIABILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY THE ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. c. The Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of the City in substantially the same form as above. d. The Artist agrees to accept indemnification provisions in substantially the same form as above, in the subsequent Artwork Commission Contract. e. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICI_ E 8 EQUAL OPPORTUNITY a. The Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. The Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. 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, but not limited to. apprenticeship. The Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. 1 I of 24 b. The Artist shall, in all solicitation or advertisements for employment placed on or on behalf of the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. c. The Artist shall furnish all information and reports requested by the City, 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 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. ARTICLE 9 MISCELLANEOUS 9.1. Compliance. The Artist shall comply with all Federal, State, and City statutes, ordinances, and regulations applicable to the performance of the Artist services under this Agreement. 9.2. 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. 9.3. 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. 9.4. 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. 12of24 9.5. 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. 9.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artists and their respective successors and permitted assigns. 9.7. 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. 9.8 Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the iemaimng provisions shall not in any way be affected or impaired. 9.9. 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. 13of24 9.10. Contract Construction. The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agieement 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. 9.11. 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 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. 9.12. Ca tip •ons. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.13. Artist's Address. Artist shall notify the Contract Manager of changes in address. 9.14. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of the Artist. 9.15 City's Right to Complete. In the event of the death or legal incapacity of the Artist, the City shall have the right to complete the Work and shall give credit to the Artist, as appropriate. 9.16. 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 at 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 14of24 otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement. 9.17. Certified MWBE. If applicable, the Artist shall make its best effort to become a certified Minority/Women Business Enterprise (MWWBE) firm with a certifying agency whose certification is accepted by the City under the City's MWWBE ordinance. 9.18 Survival Provision The provisions contained in Articles 5, 6, and 7 shall survive the termination or expiration of this Agreement. 9.19 Public Information Act The Artist understands and acknowledges that the City is a public entity under the laws of the State of Texas and as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. The Artist shall clearly indicate to the City what information it deems proprietary If the City is required to disclose any documents that may reveal any Artist Proprietary Information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will notify the Artist prior to disclosure of such documents, and give the Artist the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to the Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect the Artist's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by the Artist will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. ARTICLE 10 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 15of24 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: CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager s Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Arts Council of Foit Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 Mike Mandel 124 Maplewood Street Watertown, MA, 02472 [SIGNATURES APPEAR ON THE FOLLOWING PAGE ] 16of24 IN WITNESS HEREOF, the parties hereto have executed this Contract on the Effective Date. CITY OF FORT WORTH APPROVED AS TO FORM: Tyler F. Wallach Assistant City Attorney Contract Authorization: No M&C Required Fernando Costa Assistant City Manager ARTIST Mike Mandel, Individual ATTESTED BY: Marty Hendrix City Secretary 17 of 24 OFFICIAL RECORD CITY SECRETARY fro WORTH, TX Exhibit A: 1'he Site East Multi Purpose Center NEW MULTIPURPOSE HUILDINO C�N FLOOR PLAN EAST EXTERIOR ELEVATION g-® NORTH EXTERIOR ELEVATION EXISTING PARKING GARAGE 18of24 SOUTHEAST VIEW Haofer St_ n.Fortl 19of24 Exhibit B: Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs (no lump sums) for all rtzms deskgnated with an aetetakri. Cast Increases must also have a written estimate attached. ARTIST'S FEE I20 ) TRAVEL (For artists who live MC(4 than SO miles Iran Fca1 Worth) Airfare Car Rental Per Diem Expenses at L_ per clay Mileage at $ par mile INSURANCE Atfl&Hlred Vehicle Liability General Liability for Artist f _ut ccntractors Worker's Comp. r Employer's Liability Cther, as applicable ADMINISTRATIVE EXPENSES PhoreiFas Delivery Shipping (forcctrespondetrr_, samples, models,drsuin_ts etc) Reprocraphic Service Supi:lles PROFESSIONAL CONSULTANT FEES (If applicable, chewing must be signed and sealed by a professicnal registered to practice in the State of Texas) Architect' St' trcnual Engineer• Electrical Engineer' Conservatcrc` Photographer or dxuni nation al vonrplete•dwork) alien' MATERIALS (Please attach a complete list of materials. Itemize all antic; aspects al components with per unit oast estimates) Materials` Total Cost Inreases?: Projected Inxease in Cost Materials 12 Mcnths In Future FABRICATION COSTS {Include and itemize all portbns cf subcontracted work and work to be o_.mpleted Ly artist.) Artist's Labor I; hours at 3_ per hour Total Sutorantracted Labor (Total) Facility/Equipment Rental rued exclusively for this project) related to fabrication Cost Increases?: Pro)' ted Increase in Cosi Fat:4bation 12 Iacirths In Future SITE PREPARATION (Co not it Lrde costs cc+vered try FWPA, City of Fort W oath or c abets) Test DOIina` Rernvva 1' Lanckcaping; In i_iai i_.n' Electrical Modifications" 20of24 Water Worktvtechanical Devices irlat` Cast Increases?: Propolecl In&e in CI -st Site Preparation 12 hlcnths In Future TRANSPORTATION Materiels to Fab bation Site' Fn'tshed W elk 16lrntallation Site' Other Cost Incases?: Ptojected Increase in Cost TranE[ _atation 12 Months In Future BASEMOUNTING Ease Mounting Devices and Contr .nents Foundation: Fcciing Glher Cost Increases?: Projected I unease in Cost IvbuntingiFccting 12 Gtcnths in Future INSTALLATION COSTS (Ccsts must include allcuran.e for after hours installatba , if arylbahle. Please attach a omplete list of ec6ripment and individual estimateswith this form) ate:. d Lateis Scaftcldlnn' Equj:intent Rental related to installatbn* Cff-duty PJIiceeSectnity' Traffic Barriers" Storage Facility Rental' City Permits Display Devices Fireptooli n' Site Restorerbit Other Ccet Irn1ea4: Projected Inineas. In C_st Installation 12 ldcnths In Future LIGHTING Designers' Fixtures' Bulbs' Sire PreFarati_,n' Installatbn' Cost hraeesas Projected In:rease in Cost Lighting 12 hlcnths In Future GRAND TOTAL; Including projected cost Increase, It any} Please make any necessary notes nere: Prepaiecl By: 21 of 24 Exhibit C: Sales Tax Exemption "I E S (CE;IMFWAVE Of EXEMPT IO i I claim .u: exemption Ilceti ilayriTnerit of sues El hclaw of on the atttiehcxl order or invoice, use taxes trot the- purchase at taxable items ciescrib d Description of Items (nr an ar ached eider or lnxnice) Ic' Be Pure [Ned: claexemption tier the following rearm: Name of Exempt Organization_ CITY OF FORT W''ORTII. TEXAS XAS TEXAS SALES AND USE TA`{ PERMIT NUMBER h15-6000528-6 Project for which match&s,till plies tire. purchn cd: I understand that I will be liable for payment of sales teas. which may become dire t:ir failure to comply with the provisuins of the state, city, anilor metropolitan transit authority sales and use tax lows and comptroller rules regarding exempt purchases. Liability fear the hex will he determined by the price paid tier the taxable hens purchased or the fan market rental value thr the period of time a :cd_ I understand that it is a misdemeanor to give an exemption certificate to the seller fail taxable items which i know. al the time of the purchase, will he used in a manner othst than that expensed in this certificate and, upon conviction. may he tined up to S500 per offense. t x Exempt Status Due to 13cinpp ;t e{uvrmin:ma! Lntity Purchaser: CITY OF FORT WORTH. TEXAS Street Address: 1000'THROCK MORTON STREET (*kit State. Zip Code: FORT WORTH TEXAS 76102 Sign Herr xlatuwcni t Dade: June I?,'flan Phone. 8I7-3014.l7 Dins ccrtetirdeehit-.not require anusnbcrtohexvalid. Sale ti tnduse ax"exemption numbers' or"tax exempt- numbers do not Cxia, I his certificate iTherah1 be furnished to the sill Comptroller of Public,Atecoutit3. lit r [hi nin €r d he _rimpleic•d 22 of 24 Exhibit D: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS The Artist shall meet all the following insurance requirements for this Project, naming the City as an additional insured on each policy of insurance, except Workeis Compensation. If the Artist subcontracts fabrication, transportation, and/or installation of the Work, then the Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. The Artist shall require the subcontractor(s) to name the Artist and the City as additional insureds. Commercial General Liability (CGL) $1,000,000 $2,000,000 Each occurrence 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 cui rent Insuiance Services Office (ISO) policy. The policy shall name the City as an additional insured. 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 the Artist and/or the 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 Woikers' 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 Thirty (30) days notice of cancellation or non -renewal. 23 of 24 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. 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." (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. 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 party 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 party or the underwriter on any such policies 24 of 24