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HomeMy WebLinkAboutContract 42001 (2)CITY SECRETARY AGREEMENT BETWEEN THE CITY OF FOR � 300 THa AND MIKE MANDEL FOR FINAL DESIGN AND COMMISSION OF PUBLIC ART FOR THE EAST MULTIPURPOSE FACILITY OF THE WILL ROGERS MEMORIAL CENTER This Agreement is entered into this 1 day of �, , 2011, (the "Effective Date") by and between the City of Fort Worth ("City"), a home- municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Mike Mandel ("Artist"), an individual, of 124 Maplewood Street, Watertown, MA, 02472. 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 its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City is constructing a new East Multipurpose Center at the Will Rogers Memorial Center ("WRMC") in the Cultural District in Fort Worth, Texas, as shown on Exhibit "A," attached hereto and incorporated herein, ("Site"); WHEREAS, City has appropriated funds from the 2010 Certificate of Obligation Bonds, for a public art project at this Site; WHEREAS, City desires to integrate seven large-scale mosaic tile murals and up to fifteen (15) porcelain plaques at the Site that reflect an equestrian theme ("Work"), to identify the building and enhance users' and visitors' experience of the facility, as well as to enhance users' and visitors' overall enjoyment of the WRMC campus; WHEREAS, this project was included in the 2011 Fort Worth Public Art Annual Work Plan, adopted by the Fort Worth City Council on October 19, 2010 (M&C C-24554); WHEREAS, on September 13, 2010, the Fort Worth Art Commission ("FWAC") voted to formally ee ©III Mandel for this project; 1 of 43 WHEREAS, Artist's revised preliminary design for the Work ("Preliminary Design"), which is attached hereto as Exhibit "B" and incorporated herein for all purposes, is comprised of a series of porcelain and glass photographic tile murals, which depict horse breeds (Quarter Horse, Appaloosa, Arabian and Paint) and equestrian disciplines (Reining and Cutting Horse events) as well as honoring two historically significant horses, `Wimpy", the 1941 grand champion of the Fort Worth Fat Stock Show and "Soapsuds" humorist -philosopher Will Rogers's favorite horse, and a series of accompanying porcelain plaques that provide historical context for the murals, location to be determined; WHEREAS, Artist's Preliminary Design was approved by the FWAC on April 11, 2011; WHEREAS, FWAC has recommended that Artist be retained to develop a final design ("Final Design") based upon the revised Preliminary Design for the Work and, upon approval by the FWAC, fabricate and install the Work at the Site; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed and implemented to promote the integrity of Artist's ideas and statements as represented by the Preliminary Designs, including coordination with City's project consultant, Hahnfeld, Hoffer Stanford ("Project Consultant"); 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 AND DELIVERABLES 1.1 Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design, fabrication, delivery, and installation of the Work at the Site and for providing the Final Design Deliverables (See Section 1.5) Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site in which the Work shall be installed shall be mutually agreed upon by City and Artist. 2 of 43 c. Artist, upon request of City, shall attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the work, and permitting. d. Artist shall coordinate with the Project Consultant to ensure proper integration of the Work into the Site and into the construction documents for the building. e. Artist shall present the Final Design to the designated Steering Committee for review and input, and to the FWAC for approval. f. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. g. Artist shall install the work on dates and times mutually agreed upon by Artist and City. 1.2. Preliminary Design. City and Artist acknowledge that Artist's Preliminary Design has been reviewed and approved by the FWAC as the basis for executing this Agreement with Artist. 1.3. Implementation Budget Total. Artist shall develop a Final Design that is financially feasible relative to the budget for final design and implementation. It is understood that the budget for final design and implementation of the Final Design is TWO HUNDRED FORTY-SIX THOUSAND THREE HUNDRED EIGHTY-TWO DOLLARS AND NO CENTS ($246,382.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, Artist's fee, and all other associated costs for the Work and/or Final Design. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for the Work. 1.4. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 1.5. Final Design Deliverables a. Within three (3) months after the execution of this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 1.5 a.i-iv. (collectively, ` Final Design Deliverables") to City for approval. Final Design Deliverables shall consist of the following: 3 of 43 Detailed design illustrations of the Work for the Site, which shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital foiluat, such as JPEG or TIF files. ii. Artist shall provide a final written narrative describing the following: (1) the Final Design concepts and timeline for completion; (2) proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any, for the Work; (3) maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) proposed public education program or activity to be conducted by Artist during the duration of this Agreement. iii. Artist shall provide a final budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including the remainder of Artist's fee, in an amount not to exceed $246,382.00 (see Section 1 3) iv. Artist shall provide comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas as required by City. Artist will obtain and furnish to City and/or Contract Manager certificates of professional liability insurance from each such licensed professional and will require City to be named as a "certificate holder" entitled to notice of cancellation/nonrenewal in accordance with standard practices. Artist shall not be liable for the use of the drawings submitted under Section 1.5.a.iv. for any use other than the Final Design. 1.6. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall meet with the designated Steering Committee, City staff, the City's Project Consultant, and other City boards or 4 of 43 commissions, as appropriate, to present the Final Design, at a date and time mutually agreed upon, for input. b. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. c. City may require Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion e. Within thirty (30) days of its receipt of Artist's submission of the Final Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Section 1 6, upon approval by City, shall become part of the Final Design. f. If the Final Design or any required revision is disapproved by City, Artist shall have thirty (30) days to resubmit the Final Design in conformance with City's requirement, unless agreed tootherwise in writing by the Parties. g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work perfoiiued per the payment schedule in Section 2.1 up through the date of termination. Artist shall provide the Final Design presentation materials to City to become part of City's Public Art archive. h If Artist's Final Design is approved by City, then Artist's Final Design shall be incorporated into this Agreement as an addendum, and shall become the basis for proceeding to the execution phase of this Agreement, which includes fabrication, delivery, and installation of the Work ("Execution Phase"). i. Upon approval of the Final Design by City, Artist shall provide the Final Design presentation materials to the City and/or Contract Manager to become part of the City of Fort Worth's Public Art archive. 1.7 Execution of the Work a If City approves Artist's Final Design and authorizes Artist to proceed to the Execution Phase of this project, then Artist shall furnish to the Contract Manager, within ten (10) 5 of 43 days after such authorization (or unless otherwise agreed, in writing, by the Parties) a written schedule, which includes, but is not limited to, a written plan of procedure for completion of fabrication and installation of the Work ("Schedule"). After written approval of the Schedule by Contract Manager, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and Contract Manager. b. City, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the 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 Work. Artist shall comply with any request made by the Contract Manager pursuant to this section 1.7 (b) within thirty (30) days after receipt of the written request, unless the Parties agree in writing otherwise. c. Artist shall complete the fabrication 'of the Work in accordance with the approved Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the approved Final Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the approved Final Design, then the Contract Manager shall, in light of the Final Design, determine whether a significant change requires City approval. 1.8. Delivery and Installation. a. Construction of the Site, including, but not limited to, the design, engineering, and labor associated with preparing the Site to receive the Work shall be performed by others, and shall be done in accordance with the specifications jointly agreed to by Artist, the Project Consultant, and City. Specifically, City shall construct the mural leave -outs such that they are ready to receive the tile murals, including installing the W-201 system and leaving a 3/8 ' spaces at edges of leave -outs as for future sealant application, which shall be supplied by Artist. The City's General Contractor will install the W-201 System and mortar bed in accordance with the manufacturer's recommendation Artist shall inspect the W-201 system and substrate prior to mural installation for suitability, and report any 6 of 43 deficiencies in writing to the Contract Manager. Artist is responsible for ensuring that these specifications are provided in accordance with the schedule provided by City so that City can incorporate them into the construction documents and construction contract. b. All lighting of the Work, including, but not limited to, aiming the lights (see section 1.8.b.i,) and the labor associated with installing the lighting, shall be performed by others, and shall be done in accordance with the specifications jointly agreed to by Artist and the Project Consultant. Artist is responsible for ensuring that these specifications are provided in accordance with the schedule provided by City so that City can incorporate them into the construction documents and construction contract. i. The City's general contractor and Artist shall coordinate with each other to aim lights on the Work. If Artist can be physically present during the light aiming process, then he will supervise that process. However, if Artist cannot be present during the light aiming process, then Artist shall prepare written directions for the City's general contractor. In no event shall City's general contractor be required to aim the lights more than once. If necessary, any subsequent re -aiming of the lights will be done by Artist and/or his designee. c. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is completed and ready for delivery and installation at the Site. d. Artist is responsible for installing all elements of the Work with the exception of Site preparation or other elements included in the construction documents for the Site. Artist shall coordinate the installation of the Work with City and Contract Manager to ensure proper installation with the Schedule. Delivery and installation activities may not commence until written pennnission is delivered to Artist by the Contract Manager. e. Should Artist complete the Work in advance of the completion of the Site, Artist shall store the Work at no expense to City until such a time as the Site is completed and the Contract Manager notifies Artist that installation may commence. f. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work, including, but not limited to, equipment rentals, transportation, and labor. 7 of 43 g. The Artist is responsible for obtaining all necessary permits and paying for all necessary permits. h 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 If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at his own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Site. This time limit can be extended by written agreement of the parties. If the Artist fails to repair the damages within thirty (30) after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement i. Artist shall repair any damage to the Site due to delivery, installation, or Artist's negligence or the negligence of Artist's subcontractors. j. Upon City's request, prior to installation of the Work, Artist shall consult 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 "D" (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. [NOTE: The written instructions provided during the final design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. 1.9. 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 at least twenty (20) high -resolution digital images (.tiff format) and twenty (20) low -resolution digital images (]peg format) showing each of the seven tile murals, including detail shots, as well as photos of the west and east sides of the Site with the murals installed, as selected by Contract Manager, to document the Work after the Work is installed. 8 of 43 b. Artist shall be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. 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 City and Artist as soon as practicable following installation. c. For the duration of the Agreement, if Artist intends to seek his/her own publicity for the Work, such efforts and/or press releases must be approved, in advance, by City. 1.10. Final Acceptance. a. Artist shall notify City, in writing, when all services required have been completed in conformity with the Final Design. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "E" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify 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 City's notification of Final Acceptance; or, (2) the 35th day after Artist has sent the written notice to City required under Section 1.10.a unless City, upon receipt of such notice and prior to the expiration of the 35-day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 1.11. Risk of Loss The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect 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 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 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. Compensation. 9of43 Total compensation to Artist under the Agreement shall be in the amount of TWO HUNDRED FORTY-SIX THOUSAND THREE HUNDRED EIGHTY-TWO DOLLARS AND NO CENTS ($246,382.00) which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, fabrication, transportation, installation, any remaining Artist's fees, insurance, incidental costs, all travel expenses, and any other costs associated with the Final Design and/or Work. 2.2. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. SIXTY-ONE THOUSAND FIVE HUNDRED NINETY-FIVE DOLLARS AND NO CENTS ($61,595.00) upon execution of this Agreement. b. SIXTY-ONE THOUSAND FIVE HUNDRED NINETY-FIVE DOLLARS AND NO CENTS ($61,595.00) within thirty (30) days after Artist submits Final Design Deliverables, as required in Section 1.5.a.i-iv. of this Agreement, and the Final Design is approved by the FWAC. c. SEVENTY-THREE THOUSAND NINE HUNDRED SIXTEEN DOLLARS AND NO CENTS ($73,916.00) upon the Contract Manager's verification that all seven of the tile murals are ready for installation at the Site. d. TWENTY-FOUR THOUSAND SIX HUNDRED THIRTY-EIGHT DOLLARS AND NO CENTS ($24,638.00) upon the Contract Manager's verification that all the required plaques are ready to install. e. TWENTY-FOUR THOUSAND SIX HUNDRED THIRTY-EIGHT DOLLARS AND NO CENTS ($24,638.00) 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 Artist [see Section 1 9.a.]. 2.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate," attached hereto and made apart hereof for all purposes as Exhibit "F" for use by Artist in the fulfillment of this Agreement 10 of 43 2.4. Artist's Expenses Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement ARTICLE 3 TERM AND TIME OF PERFORMANCE 3.1. Term. This Agreement shall be in effect from the Effective Date, and, unless teuninated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 3.2. Duration The services to be required of 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 Artist and City. 3.3. Early Completion of Artist Services. 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. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party'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. 11 of 43 ARTICLE', 4 WARRANTIES 4.1. Warranties of Title and Copyright. Artist represents and warrants that: a. the Final Design and/or Work shall be the original product of Artist's sole creative efforts; b. the Final Design and/or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; c. the Final Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere; d. Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Final Design and/or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; e. the Final Design and/or Work is free and clear of any liens from any source whatsoever; f. 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 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 after Final Acceptance, City observes any breach of warranty described in this Section 4 2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation and/or construction standards, including, but not limited to, any standards set forth by City, 12 of 43 within thirty (30) days (unless the parties agree otherwise in writing) after receipt of the written notice, at no expense to City. d. If, within one year after Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Section 4.2. e. If, after one year from Final Acceptance, City observes any breach of warranty described in this Section 4.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. 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. iii. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. 13 of 43 g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 4.3 Survival of Representations and Warranties The representations and warranties in this Article 4 shall survive the termination or other extinction of this Agreement. ARTICLE 5 INSURANCE AND INDEMNITY 5.1. General. Artist shall carry insurance as set forth in Exhibit "G," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Section 1.11 hereof, the risk of damage to or loss of the Work, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. The risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 5.2. Perfoitnance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 5.3. Indemnity a. General Indemnity i. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND CONTRACTORS, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL 14 of 43 INJURY, INCLUDING, BUT NOT LIMITED TO, 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 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 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 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. ii. ARTIST AGREES TO AND SHALL RELEASE CITY, ITS REPRESENTATIVES, AGENTS, EMPLOYEES, OFFICERS, LEGAL REPRESENTATIVES, AND CONTRACTORS FROM ANY AND ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS 15 of43 OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. iii. 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. b Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY, ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, INSOFAR AS THE SAME ARE BASED ON ANY CLAIM THAT THE WORK PROVIDED UNDER THIS AGREEMENT CONSTITUTES AN INFRINGEMENT OF ANY PATENT, TRADE SECRET, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. c. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. 16 of43 ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are components of the Work and/or 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, Work, 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, 17 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 Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Final Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Final Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Final Design and/or the Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph. shall affect or limit City's absolute, unrestricted nghts 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. 17 of 43 c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "O date, Artist's name " d. Unless notified otherwise by 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 may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and a permanent plaque at the site. 7.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. 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 1.8 and Exhibit D. 7.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended major repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during 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 City and Artist shall agree, in writing, prior to commencement of any significant 18 of 43 repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized principles of conservation and in accordance with professional conservation and/or construction standards, including, but not limited to, the standards set forth by City. c. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, 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, City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist may be given written notice and ninety (90) days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. c. City agrees that it will not 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, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 19 of 43 7.5. Permanent Record. 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. Artist shall notify City of changes in the address set forth in Article 14. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 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 Artist under the law, which may now or in the future be applicable. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent servant or employee of City Artist shall have exclusive control of and the exclusive right to control the details of the work perfouned 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 9 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense provided that said subcontracting shall not adversely affect the design, appearance or visual quality of the Work and shall be carried out under the personal supervision of Artist Any subcontract entered into under this Agreement shall be expressly subject to the 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. 20 of 43 ARTICLE 10 TERMINATION 10.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City 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 City, pursuant to this Section 10.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 10.2. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the parties shall first attempt to resolve any disputes arising from this section 10.2 in accordance with the dispute resolution process set forth in Article 11 of this Agreement. If the parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this 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 teinis 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 City, Artist shall have the right to an equitable adjustment in compensation (without allowance for anticipated profit on unperformed services), in which event 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 City by Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to City. 21 of 43 c. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to Artist for Artist's Fee pursuant to this Agreement prior to termination. 10.4. Death or Incapacity of Artist. a. In the event of Artist' s death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's design have been approved or if Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 10.4, 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 11 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) days following the date of request, except upon 22 of 43 Agreement of both parties. In the event City and Artist are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. ARTICLE 12 EQUAL OPPORTUNITY a. 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. 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. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Artist shall, in all solicitation or advertisements for employment placed on or on behalf of 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. 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. 23 of 43 d. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with the City of Fort Worth. ARTICLE 13 MISCELLANEOUS 13.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement 13.2. 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. 13.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 13.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terns, 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. 24 of 43 13.5. 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. 13.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and its respective successors and permitted assigns. 13.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 13.8 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. 13.9. 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. 13.10. 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 City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by City Council for the purposes set forth in this Agreement. 25 of 43 13.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 13.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 13.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 13.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Section 14.14 shall survive expiration or earlier termination of this Agreement 13.15. 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 City under City's M/WBE ordinance. 13.16 Survival Provision The provisions contained in Articles 4 (Warranties), 5 (Insurance and Indemnity), and 8 (Artist as Independent Contractor) shall survive the termination or expiration of this Agreement. 13.17 Public Information Act Artist understands and acknowledges that City is a public entity under the laws of the State of Texas and, as such, all documents held by City are subject to disclosure under Chapter 552 of the Texas Government Code. Artist shall clearly indicate to City what information it deems proprietary. If City is required to disclose any documents that may reveal any of Artist's Proprietary Information to third parties under the Texas Government Code, or by any other legal 26 of 43 process, law, rule, or judicial order by a court of competent jurisdiction, City will notify Artist prior to disclosure of such documents, and give Artist the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to Artist's information to those persons within its organization who have a need to know for purposes of management of this Agreement 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. City will use its best efforts to secure and protect Artist's information in the same manner and to the same degree it protects its own proprietary information; however, City does not guarantee that any information deemed proprietary by 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. 13.18 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. ARTICLE 14 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: 1. CITY OF FORT WORTH. Fernando Costa, Assistant City Manager City Manager s Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, TX 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 1000 Throckmorton Street, Third Floor Fort Worth, TX 76102 27 of 43 2. ARTIST Martha Peters, Vice President, Public Art 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 THE FOLLOWING PAGE.] 28 of 43 29 of 43 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS TO FORM: Tyle . lach Assistant City Attorney Contract Authorization: M&C # C-24917 Date: 5/24/2011 ARTIST by: Mike Mandel Individual ATTESTED BY: yre \ir)i Marty Hendrix City Secretary , ontai e'er ,;i4riti; ms Sat M31 (0 ft "y, 0 OFFICIAL !RECORD Crtil SECRETARY ;.. WORTH TX 30 of43 IN WITNESS HEREOF, the parties :hereto haveexecuted this Agreement as of the Effective Date. CITY OF FORT WORTH by: Fernando Costa :Assistant- City .Manager APPROVED AS- TO .FORM: • • Tyler Wallach Assistant City. Attorney Contract Authorization: M&C # C-249.17 Date: 5/24/2011 • • • ARTIST by: Mike Mandel Individual ATTESTED BY: Marty Hendrix City Secretary 1 O :FFH') it . t_, :..:r, �...:, ,'':i Pt; tt". 0. H tI Y1 ti <� ti /11 • • • Exhibit A: The Equestrian Facility Will Rogers Memorial Complex NEW_MULJIPl/RP.OS iBUILDING S14 FLOOR PLAN wmvnartv uarva 31 of 43 Exhibit B: The Proposal East Multipurpose Equestrian Facility Will Rogers Memorial Complex 32 of 43 The Large scale mosaics are designed to be viewed and wed withphotographic illusion from tong distances. The mosa- �annotprovide context and narrative information identi ring the names of the people pictured, the evens dates and historical back- ground. However, part of my proposal wilt be to provide pored enamel panels, installed in an appropriate location that will coma cacti' (size yet to be determined). There will also be addi- ues that wilt recognize the horse breeds and disciplines sig- Ft. Korth. The plaques will enable the viewer of the artwork to have another experience, view the original photographs that con - tributed to the design and read a statement that puts the image into historical context. The porcelain enamel panels are an archival medium that Will last for the tile of the artwork. This process has been employed for outdoor perl L. G ith great success. Tht photographs graphs are continuous tone and will accurately reproduce the photographic detail and tonality o f the original archival images. The images will be oior on a white ceramic ground that will be bonded to a steel backing. porcelain enamel is a mixture of mineral content glass and emperatures exceept 1,400 degrees. This extreme temperature creates a molecular bond between theglass and steel, forming a permentcoating. Royce enamel is not f fected by UV rays or extreme we es conditions, pervious to all forms of graffiti, cannot be harmed by chemicals and is a scratch resistant s 'norganic pigments fused to a steel substrate 33 of 43 Exhibit C: Budget Form TRAVEL (For artists wtto live more than 5(l miles from Fort Worth) Airfare Car Rental Per Diem Expenses at $_ per day Mileage at $_ per mile INSURANCE Auto/Hired Vehicle Liability General Liability for. Artist / Subcontractors Worker's Comp. / Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping (for correspondence, samples, models, drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (If applicable, drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engineer Electrical Engineer' Conservator Photographer (for documentation of completed work)' Other" MATERIALS (Please attach a complete list of materialss. Itemize all anticipated aspects and components with per unit cost estimates) FABRICATION COSTS (Include and itemize all portions of subcontracted work and v artist.) Materials' Total to be completed by Artists Labor (_ hours at $_ per hour) Total Subcontracted Labor° (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include costs covered by FWPA, City of Fort Worth or others) Test Drilling' Removal' Landscaping/Irrigation' Etectrical Modifications' Water Work/Mechanical Devices Other' (Revised May 2011) 34 of 43 TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site* Other` BASE/MOUNTING Base Mounting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance for after hours installation, if applicable. Please a complete list of equipment and individual estimates with this form) Subc Equip LIGHTING GRAND TOTAL Please snake any necessary notes here: iach a ntracted Labor Scaffolding` ent Rental related to installation* Off -duty Police/Security* Traffic Barriers* Storage Facility Rental* City Permits Display Devices Fireproofing* Site Restoration' Other Designers* Fixtures' Bulbs` Site Preparation* Installation" Prepared 8y: Date: (Revised May 201 ) 35 of 43 Exhibit D: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions* Height: Width: Depth: Location & Description of Signature Markings (or copyright): Edition Information if applicable: 36 of 43 Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all 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) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method: Casting Alloy, Wax Body, Glass or Fiber Type. 37 of 43 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) 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 infoumation of installation crew. Attach any diagrams or disassembly instructions.) 38 of 43 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 Tenn Maintenance Recommendations) 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. 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.) 39 of 43 Exhibit E: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 20 . Notary Public, State of Texas Print Name Commission Expires 40 of 43 Iclaim u below ot` of on do Exhibit F: Sales Tax Exemption TEXAS C. RTIFICATE OF ........... _........... Ply ern of sal itice aid u ac taxi c fir the tiUT terns (er an attached itnier r r Iic€ j Tn a Puteh. rn this a eruption tar the foBowirt reason: ON htus d: Ctus des•i Name of Exempt Organization. C'1`1'V OF FORT WORTH, TEAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-T 00528-6 Protect for cc'Inch materials and supplies tire: purchased: I undcintand that l w'illbe liable for paying of sales tag. which may hecome clue fbr ftatlure to comply with the preym;k of the state, city and.'or metropolitan transit authority sales and use tax I.awh and comptroller rules rc arding exempt purchases. Liability for the tax will be determined. by the pnee paid xable items purchasiA of the fail market rental value for the period of time used I understand that it us a misdemeanor to give wi etctttpt on c ctiii ate to the seller for taxable it enis which I know, at the time of the purchase, will be used in n manner other than that e;xpeniscd in this and, upon conviction, ritav 6c firmed to $5QQ poe offense: �lrt t Status Purchaser. Street Addrcss: Gt}'. State. Zip tr' Sip' here: This c exentpi 'rtutithers do not. 13 e 1TY O F'Oi 1000 TIIROCI FORT, w ORT r CJ tie- r This cerntic Comptroller e nu !mild be furnished to Public Ai:counts: rental Entity ORT11I. TEXAS rk".arm STREET , TEXAS 761.02 Jun 11, 2t1(19 Phone Sl rtobevalid , Stilesand useta: aul)p r, Do not send t gompleted ;mit fe3[e to the 41 of 43 Exhibit G: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project, naming City as an additional insured on each policy of insurance, except Workers Compensation. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Artist shall require the subcontractor(s) to name Artist and City as additional insureds Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS Thirty (30) days notice of cancellation or non -renewal. 42 of 43 Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written notice has been given to City of Fort Worth, except for ten (10) days notice for non- payment of premium. Waiver of rights of recovery (subrogation) in favor of 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 City shall evidence such insurance coverage.) The deductible or self -insured retention (SIR) affecting requited insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 43 of 43 M&C Review Page 1 of 2 CITY COUNCIL AGENDA DATE: COUNCIL ACTION: Approved on 5/24/2011 5/24/2011 REFERENCE NO.: CODE: C LOG NAME: PUBLIC HEARING: SUBJECT: Authorize a Final Design and Commission Contract with Artist Mike Mandel for Seven Large -Scale Tile Murals for the Will Rogers Multi -Purpose Equestrian Facility on W.R. Watt Drive, Fort Worth, Texas, in the Amount of $246,382.00 (COUNCIL DISTRICT 7) Official site of the City of Fort Worth, Texas FORT WORTH TYPE: **C-24917 CONSENT 20WILL ROGERS EQUESTRIAN FACILITY MURALS NO RECOMMENDATION: It is recommended that the City Council authorize the City Manager execute a Final Design and Commission Contract with artist Mike Mandel for final design, fabrication, delivery and installation of public artwork for the Will Rogers Multi Purpose Equestrian Facility in the amount of $246,382.00. DISCUSSION: This Final Design and Commission Contract will enable artist Mike Mandel to proceed with final design, fabrication, and installation of seven porcelain and glass photographic tile murals, which depict horse breeds (Appaloosa, Arabian and Paint) and equestrian disciplines (Quarter Horses in reining and cutting horse events) as well as honoring two historically significant horses: Wimpy, the 1941 grand champion of the Fort Worth Stock Show, bred on the famous King Ranch, and Soapsuds, humorist -philosopher Will Rogers' favorite horse and the horse on which he taught his children to ride. Designed to enhance the facility and celebrate the equestrian events that occur at Will Rogers Memorial Center, the tile murals will be experienced by pedestrians and vehicular traffic alike. The murals on the East side of the building, facing University Drive, will be composed of 1-inch porcelain and glass tiles and will depict an Appaloosa, a grouping of Paint horses and a cutting horse. The murals on the West side of the building, facing WR Watt Drive and the WR Watt Arena, will be composed of 12 millimeter glass tiles, and will depict a Quarter Horse in a reining event, an Arabian horse and portraits of Wimpy and Soapsuds. This project was included in the 2011 Annual Work Plan, adopted by City Council on October 19, 2010 (M&C C-24554). The public art budget is two percent of the construction budget from 2010 Certificate of Obligation Bonds. BACKGROUND: On September 13, 2010, the Fort Worth Art Commission voted to recommend artist Mike Mandel for this project. Mike Mandel is the artist who created the tile murals on the Western Heritage Parking Garage (WHPG) Like the WHPG, this project is also taking place on the Will Rogers Memorial Center campus and is fast -paced -continuity of the architecture and visual cohesiveness of the artwork are of high importance. On December 2, 2010, the Artist met with a steering committee of key individuals involved with the project, including representatives of the Stock Show, horse associations, city staff and other stakeholders, Chaired by Council Member Carter Burdette, for a visioning session that provided the artist with input on proposed locations and approaches for the artwork. mhtml:file://P:\CURRENT PROJECTS\WRMC East Multi Purpose Center\City Processes\... 7/19/2011 M&C Review Page 2 of 2 On March 7, 2011, the Artist presented his initial designs to the steering committee (expanded now to include museums and other cultural district colleagues) and received feedback. The Artist's revised preliminary design for the artwork was reviewed by the steering committee and reviewed and approved by the Fort Worth Art Commission on April 11, 2011. 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 in the Will Rogers Memorial Center campus and 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 Public Events Capital Projects Fund. TO Fund/Account/Centers FROM Fund/Account/Centers C234 541200 247980162780 $246,382.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Greg Simmons (7862) Additional Information Contact: Martha Peters (298-3025) ATTACHMENTS 20WILL ROGERS EQUESTRIAN MAP .pdf mhtml:file://P:\CURRENT PROJECTS\WRMC East Multi Purpose Center\City Processes\... 7/19/2011