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HomeMy WebLinkAboutContract 42793MY SECRETARY 4 2�� 3 CONTRACT No. AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JACK MACKIE FOR FINAL DESIGN OF PUBLIC ART FOR SARGENT STREET This Agreement is entered into this IS� day of v 0_n�,,G,rAl , 2012, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Jack Mackie, an individual, of 700 NW 42nd Street #217 Seattle, Washington 98107 -4507. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2 -56 through 2 -61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, artist Jack Mackie, working under Fort Worth City Secretary Contract No 39455, developed the East Lancaster Avenue Public Art Master Plan as a guide for implementation of public art projects along the corridor from I -35 east to Loop 820; WHEREAS, the Fort Worth Art Commission (the "FWAC ") recommended the Site and funding in the Long Range Public Art Plan for the 2004 CIP, Proposition 1, adopted by City Council on May 17, 2005 (M &C G- 14801), to design and implement public art/design enhancements for the Site; WHEREAS, the Fort Worth Art Commission (the "FWAC ") has recommended the Project in its FY2012 Annual Work Plan and Budget (approved by City Council on December 6, 2011 as M &C C- 25337): OFFICIAL RECORD Agreement Between the City of Fort Worth and CITY SECRETARY F��dR4�, TX Jack Mackie for Final Design ofPul�lic Art for Sargent Street WHEREAS, City and Artist acknowledge that Artist's preliminary design concept for an artwork at Sargent Street and East Lancaster Avenue, titled the Sargent Street Street Clock, which is a metal sculpture based on an abstraction of the local Trout Lily flower that will function as a street clock and as a way - finding device; WHEREAS, the FWAC has recommended that Artist be retained to develop a Final Design based upon the Preliminary Design for public artwork to be incorporated into the Site; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed, fabricated, delivered, and installed to promote the integrity of Artist's ideas and statements as represented by the Work. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Jack Mackie for Final Design of public art for the Site. 1.2. Artist — Means and includes Jack Mackie and /or his heirs, executors, administrators, legal representatives, successors, agents, subartists, contractors, and assigns. 1.3. Artwork Design — Means and includes both the Preliminary Design and Final Design of the Work, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and /or any prior agreement between Artist and City for the Work. including. but not limited to. the design Agreement Between the City of Fort Worth and Page 2 of 32 Jack Mackie for Final Design of Public Art for Sargent Street concepts created pursuant to City Secretary Contract No. 39455, attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.3.b. Final Design — Means the Artist's final, proposed design of the Work for the Site, which is based upon the City- approved Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for fabrication and installation of the Work. 1.4. Final Design Deliverables — Means and includes those items set forth in Article 2.5 of this Agreement that are required for City's review and approval. 1.5. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and /or its officers, directors, employees, agents, subsidiary organizations, parent organization, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.6. City — Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1.7. Community Group - Means and includes representatives of the East Meadowbrook Neighborhood Association and other stakeholders who reside near the Site. 1.8. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.9 Master Plan — Means and includes the East Lancaster Master Plan created by Artist under Fort Worth City Secretary Contract No 39455 which includes the Preliminary Design Agreement Between the City of Fort Worth and Page 3 of 32 Jack Mackie for Final Design of Public Art for Sargent Street Concept for an artwork at Sargent Street and which was approved by the Fort Worth Art Commission on April 12, 2010. 1. 10. Parties — Means and includes City and Artist. 1.11. Site — Means and includes the intersection of Sargent Street and East Lancaster Avenue, specifically the south east corner, adjacent to the Fort Worth Transportation Authority (the "T ") transfer station, in Fort Worth, Texas, which is more particularly described on Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.12. Work — Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Design, which was included in the Master Plan, was reviewed and approved by the FWAC on April 12, 2011, and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Final Design of the Work and for providing the Final Design Deliverables (see Article 2.5). 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 input from the Community Group and approval by City as set forth in this Agreement. Agreement Between the City of Fort Worth and Page 4 of 32 Jack Mackie for Final Design of Public Art for Sargent Street C. The location at the Site where the work shall be installed shall be mutually agreed upon by City and Artist. d. If the exact location at the Site (in which the Work shall be installed) must be on the "T's" property for safety reasons, then City will need to secure an easement. e. Artist, upon request of Contract Manager, shall attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. f. ' Artist shall meet and coordinate with City, the "T ", the Texas Department of Transportation, and others as necessary to ensure proper integration of the Work into the Site. g. Upon written request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. h. Artist shall present the Final Design to the appropriate City committee, City staff, Community Group, and other City boards or commissions, as appropriate, for input and to the FWAC for review and approval at dates and times mutually agreed upon. i. Artist shall make a maximum of two (2) trips to Fort Worth, Texas for meetings and presentations as indicated above. Additional trips, if required per this Section, may be negotiated and agreed upon in writing by City and Artist. 2.3. Implementation Budget Total Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the current budgeted amount for implementation of the Final Design is THIRTY -SEVEN THOUSAND FIVE HUNDRED DOLLARS ($37,500.00) which includes all costs for engineering, materials, labor, fabrication, delivery, installation, insurance, transportation, travel, remaining Artist's fee, and all other associated costs for the Work, including. Agreement Between the City of Fort Worth and Page 5 of 32 Jack Mackie for Final Design of Public Art for Sargent Street but not limited to, lighting. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for implementation of the Work through a possible artwork commission contract with City, which contract is subject to the approval of the Fort Worth City Council. If to ensure durability and appropriate scale, the project requires additional funds to implement, then artist may propose a higher budget for consideration, provided a detailed budget is given for justification. 2.4. 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. 2.5. Final Design Deliverables Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.5 to City for approval. Final Design Deliverables shall consist of the following: a. 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 format, such as JPEG or TIF files, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site. b. A final written narrative of the Work, 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) Agreement Between the City of Fort Worth and Page 6 of 32 Jack Mackie for Final Design of Public Art for Sargent Street proposed public education program or activity to be conducted by Artist during the duration of this Agreement. C. 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 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. d. 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 any remaining Artist's fee, in an amount of THIRTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($37,500.00) and /or a higher budget (see Article 2.3). 2.6. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall meet with the designated steering committee, City staff, Community Group, and other City boards or 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. Agreement Between the City of Fort Worth and Page 7 of 32 Jack Mackie for Final Design of Public Art for Sargent Street 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) business 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 Article 2.6, upon approval by City, shall become part of the Final Design. f. If the Final Design or any required revisions to the Final Design is disapproved by City, Artist shall have thirty (30) calendar days to resubmit the Final Design in conformance with City's requirements. g. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Final Design presentation materials to Contract Manager to become part of City's Public Art archive. h. If Artist is not in agreement with the revisions requested by City, the Public Art Director will mediate discussions to arrive at a consensus among all parties. In the event that a consensus cannot be reached, the Parties shall follow the dispute resolution procedures set forth in Article 5 of the Agreement. i. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is accepted by City and funding is approved by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence and shall become part of the deliverables under any potential subsequent artwork commission contract. Agreement Between the City of Fort Worth and Page 8 of 32 Jack Mackie for Final Design of Public Art for Sargent Street j. Upon approval of the Final Design by City, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and /or drawings will be retained for archival and exhibition purposes. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in the amount of SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($7,500.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to, engineering and consulting fees, all travel expenses and services performed and material furnished by Artist under the Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non - refundable payment for all services and materials provided prior to the due date thereof: a. ONE THOUSAND THREE HUNDRED FIFTY DOLLARS AND NO CENTS ($1,350.00) upon execution of this Agreement. b. ONE THOUSAND EIGHT HUNDRED DOLLARS AND NO CENTS ($1,800.00) within thirty (30) calendar days after Artist submits all of the Final Design Deliverables required under Article 2.5 of this Agreement and makes a presentation(s) of the Final Design to the FWAC. Agreement Between the City of Fort Worth and Page 9 of 32 Jack Mackie for Final Design of Public Art for Sargent Street C. ONE THOUSAND THREE HUNDRED FIFTY DOLLARS AND NO CENTS ($1,350.00) within thirty (30) calendar days after City's approval of the Final Design. City may pay Artist up to THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00)-for engineering and consulting fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for such services attached thereto. 3.3. Sales Taxes. City is a tax - exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit "D" for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing /shipping charges and insurance on submissions to City and /or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TERMINATION 4.1. Term This Agreement shall be in effect from the Effective Date and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. Agreement Between the City of Fort Worth and Page 10 of 32 Jack Mackie for Final Design of Public Art for Sargent Street 4.2. Gratuities City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 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 terms of this Agreement. 4.4. Termination for Convenience a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If the termination is for the convenience of City, Artist shall have the right to fees for work performed, 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 Agreement Between the City of Fort Worth and Page I I of 32 Jack Mackie for Final Design of Public Art for Sargent Street 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. C. If termination is for the convenience of Artist, Artist shall remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 4.5. Incapacity of Artist a In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All relevant finished and unfinished drawings, sketches, photographs, models and work shall become property of City. b. Should Artist's Final Design have been substantially completed or approved, in the event of termination under this Article 4.5, and it is feasible for the Work to be fully completed without undue delay, City may elect to proceed under the terms of this Agreement with the written consent of Artist's estate. In the event that City elects to proceed with the completion of the Final Design and /or a commission of the Work, all remaining work to be completed will be delegated to Artist's studio. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. ARTICLE 5 DISPUTE RESOLUTION If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notity Agreement Between the City of Fort Worth and Page 12 of 32 Jack Mackie for Final Design of Public Art for Sargent Street the other party in writing within ten (10) business days 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. Notice shall be delivered by United States Postal Service and shall be deemed as received on the fifth (5h) calendar day after notice was sent. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non - binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty -five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) Agreement Between the City of Fort Worth and Page 13 of 32 Jack Mackie for Final Design of Public Art for Sargent Street ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General a. Upon payment in full to Artist, the Artwork Design, Work, and all other work product agreed to by City and Artist as relevant to Artist's final product under this Agreement shall become property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and /or Work. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Artwork Design and Work for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design or Work intended to promote or benefit City, its public services, or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non - commercial purpose. b. City shall take title to all documents and /or drawings that constitute or are components of the Artwork Design and /or Work upon final approval of the Final Design per Section 6. La above. These documents and /or drawings will be retained for archival and exhibition purposes. C. Artist reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and /or the Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two - dimensional reproductions of the Artwork Design, Work, and accompanying materials for any municipal purpose. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name. Agreement Between the City of Fort Worth and Page 14 of 32 Jack Mackie for Final Design of Public Art for Sargent Street d. Nothing in this Agreement shall prevent Artist from using images of the Artwork Design or Work for marketing and promotional purposes in connection with Artist's business, provided, however, that Artist shall make its best effort to credit City for commissioning the Work whenever possible substantially in the following form: "an original artwork commissioned by and in the collection of the City of Fort Worth, Texas." e. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 6.2 Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. The Artwork Design and /or Work shall be the original product of the Artist's sole creative efforts. b. The Artwork Design and /or Work is and will be unique and original, and does not infringe upon any copyright or the rights of any person; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and /or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; Agreement Between the City of Fort Worth and Page 15 of32 Jack Mackie for Final Design of Public Art for Sargent Street d. The Artwork Design and /or Work (or duplicate thereof) have not been accepted for sale elsewhere; e. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his /her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity i. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND /OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO. WORKERS' Agreement Between the City of Fort Worth and Page 16 of 32 Jack Mackie for Final Design of Public Art for Sargent Street COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND /OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND /OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained by Artist in connection with or incidental to performance under this Agreement. 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. 9.2. Intellectual Property Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS. LOSSES. DAMAGES. ACTIONS. OR EXPENSES OF Agreement Between the City of Fort Worth and Page 17 of32 Jack Mackie for Final Design of Public Art for Sargent Street EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 10 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 Agreement Between the City of Fort Worth and Page 18 of 32 Jack Mackie for Final Design of Public Art for Sargent Street 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 in writing by the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of 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 11 MISCELLANEOUS 11.1. Compliance Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 11.4. Waiver No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or Agreement Between the City of Fort Worth and Page 19 of 32 Jack Mackie for Final Design of Public Art for Sargent Street acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governing Law and Venue If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and 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 their respective successors and permitted assigns. 11.7. No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of 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. 11.8 Severability If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force Majeure It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather. governmental restrictions. regulations. or interferences; tires: strikes: lockouts. national Agreement Between the City of Fort Worth and Page 20 of 32 Jack Mackie for Final Design of Public Art for Sargent Street disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 11.11. Fiscal Funding Out If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by City Council for the purposes set forth in this Agreement. In the event of such termination, City will make payment to Artist per Section 3.2. 11.12. Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 Right to Audit Agreement Between the City of Fort Worth and Page 21 of 32 Jack Mackie for Final Design of Public Art for Sargent Street Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records ") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice in writing by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 11.13 shall survive expiration or earlier termination of this Agreement. 11.14 Certified MWBE If applicable, Artist shall make its best effort to become a certified Minority /Women Business Enterprise (M /WBE) firm with a certifying agency whose certification is accepted by the City under the City's M /WBE ordinance. 11.15 Survival Provision The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the termination or expiration of this Agreement. 11.16 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 process, law, rule, or judicial order by a court of competent jurisdiction. City will notify Artist prior to disclosure of such Agreement Between the City of Fort Worth and Page 22 of 32 Jack Mackie for Final Design of Public Art for Sargent Street 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 un- authorized 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. 11.17 Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.18. Time Extensions The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail. return receipt requested. postage prepaid. as follows: Agreement Between the City of Fort Worth and Page 23 of 32 Jack Mackie for Final Design of Public Art for Sargent Street 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, Texas 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST Jack Mackie 700 NW 42nd Street #217 Seattle WA 98101 -4507 [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Agreement Between the City of Fort Worth and Page 24 of 32 Jack Mackie for Final Design of Public Art for Sargent Street CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F. Wallach Assistant City Attorney Contract Authorization: M &C — No M &C Required Agreement Between the City of Fort Worth and Jack Mackie for Final Design of Public Art for Sargent Street ARTIST l� Li c�k rr Jack Mackie ATTESTED BY: City Secretary OFFICIAL REGuRw CITY SECRETARY FT. WORTH, TX 32 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 AND LEGALITY: Tyler F. Walkcch Assistant City Attorney Contract Authorization: M &C — No M &C Required ARTIST Jack Mackie , ley 0000 o� a a y1.o ATTESTED BY: iX nom: Xkcity Secretary -y- OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX � i Agreement Between the City of Fort Worth and Page 25 of 32 Jack Mackie for Final Design of Public Art for Sargent Street Exhibit A: The Preliminary Design Sargent Street Clock Example of actual Trout Lily that naturally occurs in Tandy Hills Nature Preserve Sargent Street Clock, based on Trout Lily Flower, as envisioned at the site Agreement Between the City of Fort Worth and Page 26 of 32 Jack Mackie for Final Design of Public Art for Sargent Street solar panels - total number TBD " 24" diameter clock two side face back -lit " Sargent Street Clock South Elevation scale as shown PRELIMINARY Artist's preliminary rendering of Sargent Street Clock Agreement Between the City of Fort Worth and Page 27 of 32 Jack Mackie for Final Design of Public Art for Sargent Street �xhibit B: The Site Sargent Street Clock Location (In yellow circle below) Agreement Between the City of Fort Worth and Jack Mackie for Final Design of Public Art for Sargent Street iT Page 28 of 32 m Exhibit C: Budget Form /ARTISTS FEE t20%) TRAVEL (For artists w1ho five mare than 50 miles from Fat Wrath) AiAare Car Rental Per Diem Expenses at 3_.., W day Mileage at 8_ per mule INSURANCE Atrt� Vehicle Ltab ft GeWal Uabiity kx At ft t Subcontractm Workers Comp t Employ's LiahW r as appkc ADMINISTRATIVE EXPENSES Phare?Fax Delli-y vpf4 dor cwespadence,. samples, models, dramngs etc) R+eptograplvc Service Supplies PROFESSIONAL CONSULTANT FEES (If appticWe, dry must t* sjWva and seated by a pn*$3i" reosteed to pmcoca in the State of Texas) Struch" Engineer Eiectrtcal Engineer Cols aw Ptiograptw (ttortltoarientalbw of completed workr Other MATERIALS (Please attach a complete list of Mate"*$ its all auicipated aspects and components with per unit cM estimates) tctaterrals' Total FABRICATION COSTS (Include and t vAze all patrons of %bcontracted vwoot and m* to be completed by add.) Arpars LaW (_ hotn of S_ per hw) Tc U SWXWUacted Labor' (TOW) FdciltYJEVulprrlent Rental (too exclusmety V this Mlecti related to faiwabon SITE PREPARATION (Do not Include costs covered by FWPA, CAy of Fat Worth or others) Test DnUV- Remwat' LandscamWmgabon' Hectncal Mtoallkattons• Water vvorktMechanKa+ Downs Other• (Reviaed U4 20f t) Agreernent Between the City of Fort Worth and Page 30 of 32 Jack Mackie for Final Design of Public Art for Sargent Street GRAND TOTAL Please mate any necessary notes here: Prepared 8y: Date: {RerYsed May 20111 Agreement Between the City of Fort Worth and Page 31 of 32 Jack Mackie for Final Design of Public Art for Sargent Street Exhibit D: Sales Tax Exemption 1EXASUR'I'IFICATE OF fXLNjPTjO"N I dainjan "emption fi-om p),11jettl (-jf,,�dc - la,%C, , -% 3M UW (fW fi), the, ptmh,,,, tatahlc i knis described De tit ;'4sort OfItertl*f4a an ttac ittct air lrszt,it rt tt, a pUfVha clilj- thi3 exaripm-m tiw the "k wing rca-, , m: Name off Xempt organ zaimn- CITY OF FORT WORTH, TEXAS TEE SALES AND USE TAX rVRMIT NUMSER 1-75-WX1,5284 ftlied fi)r which matmaj* xxi %uWie*,vv purchned, undastatul that I Vk ill be hable kw Pay 4, lf'sales tax, which [nay become due 14 failwe to comply with the pro, k'�f the A&M city, andw MOmpolitatt trarrAit au&mly salts Vid use fax low,* and ' Uahtf , fiv the tax will bedrtemmod by tlteprict Paid fi)r the taxahk- item pwch3srd " the fair market renal value fi4 the, paicA c 11wx used I uxlderstand that it is a in WlaneuKv its 1plT an "CillfgiOn ceetificAle 10 the wllcr for taxable items which I ku()w, At thr time Of the Purdii4t. will be used in is mmncr mhcr than the r, sod n " cett ficak and, rapt on mav be tjnM "Pen i this i I tt CITV OF FORT WORTH, TEAS 1000 THROCKNI[ORTONSTREFT City, SIAW kP Olfik FORT WORTH. TEXAS 76101 Sip H=,-, Date: Juncli,2009 phcwW, J, IUA ftv"Irc a rumbo, it) he kalid ":alc* Md t1w tix earns ° nurubm Lh, fult "w Thj% cenificatc %hould ht furnt% � hej U, the "Upplis"I 11. full *cal the omill'Mot tolitivaic to the (01110-0- Of Puhltc Avcowl-% Agreement Between the CitNr of Fort Worth and Page 32 of 32 Jack Mackie for Final Design of Public Art for Sargent Street