HomeMy WebLinkAboutContract 44062 C SECRVARY
CONTRACT CVOs
AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK
BETWEEN THE CITY OF FORT WORTH
AND JACK MACKIE
This Agreement is entered into this day of 0 kt G V , 2013 7� y
b and between the
City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through
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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, earmarked in the Long Range Public Art Plan for the 2004 CIP (Proposition
1), adopted by City Council in May of 2005, are funds for public art for the Sargent Street Project,
which stretches from Hawlet Street to East Lancaster Avenue;
WHEREAS, Artist developed a public art master plan for East Lancaster Avenue 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 ("FWAC"") identified Sargent Street and East
Lancaster Avenue as an appropriate site for artwork and recommended that Artist be retained to
develop a preliminary design concept, which was approved by the FWAC on April 12, 2011;
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of Public Pa
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between the City of Fort Worth and Jack le.
WHEREAS, the Work shall be installed at the Fort Worth Transportation (the
Authorit y's
"T") transfer station, 4100 East Lancaster Avenue, at the south east corner of the intersection of
Sargent Street and East Lancaster Avenue, in Council District #S, contingent upon the execution of
an easement agreement between the City and the T;
WHEREAS, the Project, entitled the Trout Lily Clock, 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; was included in the Fiscal Year 2013 Annual work Plan and Budget, adopted by the Fort
Worth City Council on October 16, 2012 as (M&C C-25920) as part of the City's agreement with
the Contract Manager for administration of the public art program;
WHEREAS, the FWAC recommended that Artist be retained to develop a Final Design
based upon the Preliminary Design for public artwork to be incorporated into the Site (Contract #
42793), and Artist's Final Design for the Site was approved by the FWAC on September 10, 2012,
and;
WHEREAS, City and Artist wish to set out the terms and conditions under which said
Work shall be fabricated, delivered, and installed at the Site.
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:
I.I. Agreement -- Means and includes this Agreement between the City of Fort Worth
and Jack Mackie for fabrication, delivery, and installation of the Work 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.
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between the City of Fort Worth and Jack Mackie.
1.3. Artwork Design -- Means the final, City-approved design of the Work for the Site
created in connection with the Final Design Contract and includes, but is not limited to, all final
City-approved maquettes, drawings, sketches, prototypes, models and the like that were created by
Artist in connection with the Final Design Contract, a detailed description of which is attached
hereto as Exhibit A and incorporated herein for all purposes.
1.4. 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.
1.5. City — Means and includes the City of Fort Worth, Texas and its officers,
representatives, agents, servants, and employees.
1.6. Effective Date — Means and includes the date represented in the first paragraph of
this Agreement, which shall be the official date of execution of this Agreement.
1.7. Final Acceptance - Means City's written acknowledgement to Artist that all services
for fabrication, delivery, and installation of the Work have been completed in accordance with the
terms of this Agreement.
1.8. Final Design Contract — Means and includes Fort worth City Secretary Contract
Number#42793 (Agreement for Final Design of Public Art for Sargent Street).
1.9. Parties—Means and includes City and Artist.
1.10. Project — Means and includes the capital improvement or public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
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between the City of Fort worth and Jack Mackie.
1.11. Schedule - Means and includes a written plan of procedure for completion of
fabrication, delivery, and installation of the Work, including, but not limited to, the submission of
progress reports.
1.12. Site — Means and includes land that is part of the Fort Worth Transportation
Authority (the "T") transfer station, in Fort Worth, Texas, 4100 at East Lancaster Avenue, at the
south east corner of the intersection of Sargent Street and East Lancaster Avenue, in Council
District #8, which is more particularly described in Exhibit "B," attached hereto and incorporated
herein by reference for all purposes.
1.13. Work — Means and includes the finished object(s) of art, design, and/or
enhancements, including, but not limited to, the sculpture with working clock face, 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 Artwork Design was reviewed and approved by -the
FWAC on September 10, 2012, and is the basis for executing this Agreement with Artist.
2.2. Scope of Services.
a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as
necessary for fabricating, delivering, and installing the Work at the Site. 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
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between the City of Fort Worth and Jack Mackie.
location at the Site where the Work shall be installed shall be mutually agreed upon by City,
the T, and Artist.
C. Artist shall provide the City with a land survey of the Site that is prepared by a surveyor
acceptable to both the City and the T. The land survey shall be subject to the City's and the
T's approval prior to any payment for such services. The survey will be incorporated into
the City's easement agreement with the T for placement of the Work at the Site.
d. Artist is responsible for installing all elements of the Work. Artist shall deliver and install
the Work at the Site, on dates and times mutually agreed upon by City, the T, and Artist.
e. Artist, upon request of Contract Manager, shall provide information and/or attend meetings
with appropriate City and T staff for purposes of risk assessment, safety review, sighting of
the Work, and permitting.
f. Artist shall meet and coordinate with the City's designated personnel, the T's designated
personnel, and others, as necessary, to ensure proper integration of the Work into the Site.
g. Upon 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 participate in one public education event in Fort Worth at a mutually agreed
upon date and time.
2.3. Citv 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.
2.4. Execution of Work
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a. Artist shall furnish the Schedule to the Contract Manager within fifteen (15) business days
after the Effective Date. After written approval of the Schedule by City, Artist shall
fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes
may be accomplished by written agreement between Artist and City.
b. City and/or Contract Manager, 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 City and/or 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 City and/or
Contract Manager pursuant to this Article 2.4 within thirty (30) days after receipt of the
written request.
d. Artist shall complete the fabrication of the Work in accordance with the Artwork 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 Artwork Design. If the Contract Manager, in its sole discretion,
determines that the changes are significant and do not conform with the Artwork Design,
then the Contract Manager shall, in light of the Artwork Design, determine whether a
significant change requires City approval. Any such change(s) may be presented to the
FWAC for review and approval at a regularly scheduled or special meeting of the FWAC. If
any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in
accordance with the dispute resolution process set forth in Article 12 of this Agreement.
2.5 Delivery and Installation.
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between the City of Fort Worth and Jack Mackie.
a. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the
Work is completed and is ready for its delivery and installation at the Site.
b. Artist shall not commence any delivery or installation operations unless and until the City
secures an easement from the T for the Site.
c. Artist shall abide by all terms and conditions of said easement between the City and T
pertaining to delivery and installation of the Work at the Site.
d. Artist acknowledges and understands that the Site is located at a public transit center and
that public transportation vehicles, such as buses, routinely enter and exit, along with
members of the general public. Artist shall, in no event, park a vehicle, place equipment on,
or in any manner use or block the bus driveways and bus staging areas.
e. Artist shall be solely responsible for initiating, maintaining, and supervising all safety precautions in
connection with construction of the Work.
f. 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 the responsibility of Artist,
and shall be done in accordance with the specifications jointly agreed to by Artist, the T, and
City.
g. Artist is responsible for installing all elements of the Work, including the footing for the
Work. Artist shall coordinate the installation of the Work with the T, City, and Contract
Manager. Delivery and installation activities may not commence until written permission is
delivered to Artist by the City and the T.
h. Artist shall be responsible for all costs associated with the materials, fabrication, delivery,
and installation of the Work, including, but not limited to, equipment rentals, transportation,
and labor.
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i. Artist shall be responsible for obtaining and paying for all necessary permits and any
required traffic barriers appropriate for the installation.
j. 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 to the satisfaction of City. If Artist fails to
repair the damages to the satisfaction of City within thirty (30) days 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, which shall be in addition to any and all other rights and remedies available to
City at law or in equity.
k. Upon City's request, prior to.installation of the Work, Artist shall consult with a qualified art
conservator and provide to Contract Manager written instructions for appropriate
maintenance and preservation of the Work on the form attached hereto as Exhibit "C"
(Technical and Maintenance Record). The appropriate maintenance and preservation
instructions shall not be substantially different from the maintenance and preservation
anticipated and conveyed to City for the Work in the final design phase for the Work.
[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].
2.6 Post-installation.
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between the City of Fort Worth and Jack Mackie.
a. Within thirty (30) days after the installation of the Work, Artist shall furnish Contract
Manager with a set of at least six (6) high-resolution digital images (.tiff format) and six (6)
low-resolution digital images (.jpeg format) showing the Work from at least two vantage
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points, including detail shots, as selected by Contract Manager, to document the Work after
the Work is installed. Additional images of completed Work with people shown interacting
with the Work are requested.
b. Artist shall make his best effort to be available at such time(s) 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 detennined between City and Artist
as soon as practicable following installation.
C. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work,
such efforts and/or press releases must be approved, in advance, by City.
2.7 Final Acceptance.
a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication,
delivery, and installation of the Work have been completed in accordance with the terms of
this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as
Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the
performance of this Agreement have been paid.
b. City shall notify Artist in writing of its Final Acceptance of the Work.
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 this Section 2.7, unless City, upon receipt of such notice and prior to
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between the City of Fort Worth and Jack Mackie.
the expiration of the 35-day period, gives Artist written notice specifying and describing
anything that has not been completed pursuant to this Agreement.
2.8 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 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 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall be in an amount up to SIXTY ONE
THOUSAND ONE HUNDRED SEVENTY-EIGHT DOLLARS AND NO CENTS ($61,178.00),
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, land surveying costs,
fabrication, transportation, installation, Artist's fee, insurance, incidental costs, all travel expenses,
and any other costs associated with the Work. The Parties may amend this Agreement to allow for
additional payment if additional services are required.
3.2. Payment S chedul e
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:
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a. FIFTEEN THOUSAND EIGHT HUNDRED DOLLARS AND NO CENTS ($15,800) upon
execution of this Agreement so that Artist may purchase materials and proceed with
fabrication.
b. SIX THOUSAND EIGHT HUNDRED EIGHTY-FIVE DOLLARS AND NO CENTS
($6,885.00) upon Contract Manager's verification that the footing and foundation are
complete.
C. TWENTY THOUSAND FIVE HUNDRED TWO DOLLARS $20 502.00 upon Contract
Manager's verification of 100% fabrication and that the sculpture is ready to install.
d. TEN THOUSAND NINE HUNDRED THIRTY-THREE DOLLARS ($10,933.00) upon
Contract Manager's verification that the sculpture is installed.
e. THREE THOUSAND FOUR HUNDRED AND FIFTY-EIGHT DOLLARS_($3,458.00)
within thirty-five (35) days after Final Acceptance and receipt by City of such
documentation it may require concerning payment of services and supplies rendered to
Artist(see Article 2); provided, however, that final delivery shall not be tendered prior to the
expiration of thirty(30) days after Final Acceptance.
f. City may pay Artist up to THREE THOUSAND SIX HUNDRED DOLLARS AND NO
CENTS ($3,600.00) for surveying fees and an administrative fee of 20% 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 Work. City shall supply Artist with the "Texas Certificate of Exemption," in
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between the City of Fort Worth and Jack Mackie.
substantially the same form as that attached hereto as Exhibit "E" 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 TIME OF PERFORMANCE
4.1. Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to
such provisions in this Agreement, shall extend until final payment to Artist by City.
4.2. Duration.
The services to be required of Artist set forth in Article 2 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.
4.3. Early Completion of Artist Services.
Artist shall bear any transportation and storage charges incurred from the completion of his services
prior to the time provided in the schedule for delivery.
4.4. Time Extensions Force Maj eure.
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 perfonnance of the parties' services impossible
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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.
ARTICLE 5
WARRANTIES
5.1. Warranties of Title and Copyright.
Artist represents and warrants that:
a. Artwork Design and/or Work shall be the original product of Artist's sole creative efforts.
b. 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 or entity;
C. Artwork 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
Artwork 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. Artwork 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; and
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.
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between the City of Fort Worth and Jack Mackie.
5.2 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 Article 5.2 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 standards (in accordance with
the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice)
and/or construction standards, including, but not limited to, any standards set forth by City,
within thirty(30) days 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 Article 5.2 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 Article 5.2.
e. If, after one year from Final Acceptance, City observes any breach of warranty described in
this Article 5.2 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
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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.
111. 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.
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
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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.
5.3 Survival of Representations and Warranties
The representations and warranties in this Article 5 shall survive the termination or other extinction
of this Agreement.
ARTICLE 6
INSURANCE AND INDEMNITY
6.1 General.
Artist shall carry insurance as set out in Exhibit "F," 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. However, if any part of the fabrication process will be conducted
on City property and/or at the Site, 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 2.8
hereof, the risk of damage to or loss of the Work shall, during fabrication and installation but prior
to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer
be the responsibility of Artist upon Final Acceptance.
6.2. Performance Bonds.
Artist shall not be required by City to post any performance bonds or similar undertakings.
6.3. Indemnity
a. General Indemnit
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
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ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
DAMAGE) AND/OR PERSONAL INJURY (INCLUDING., BUT NOT LIMITED
TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH
RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR
RESULTING FROM ANY ACTS OR OMMISSIONS OF ARTIST AND/OR
ARTIST'S SUBARTIST 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 or caused 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
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payment or collection of any such fees or financial obligations. City specifically does not
authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without
the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER
AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD
HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION,
INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY
BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS
BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER
LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no
obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of Artist.
c. Survival
All indemnification provisions of this Agreement shall survive the termination or
expiration of this Agreement.
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1. Title.
Title to -the Work, including, but not limited to, all documents, models, and/or drawings that
constitute or are components of the Artwork Design and/or Work 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 Artwork Design and/or Work and all other work
products under this Agreement shall become the property of City, without restriction on future use,
except as provided below.
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7.2 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.
7.3 Reproduction Rights.
a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not
make any additional exact duplicate reproductions of the Artwork Design or the Work, nor
shall Artist grant permission to others to do so except with the express written permission of
City. However, nothing herein shall prevent Artist from creating future artworks in Artist's
manner and style of artistic expression.
b. By execution of this Agreement, Artist grants to City an exclusive, 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 Designs 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 rights incidental to City's
full ownership of the Work to alter, change, modify, destroy, remove, move, replace,
operate, maintain, transport, sell or transfer, in whole or in part, the Work when City deems
it necessary within its discretion, in order to otherwise exercise City's powers and
responsibility in regard to public works and improvements, in furtherance of City's
operations or for any other reason.
C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially
in the following form: "C) date, Artist's name."
Agreement for Commission of Public Artwork Page 19 of 47
between the City of Fort Worth and Jack Mackie.
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 8
ARTIST'S RIGHTS
8.1. Identification.
Contract Manager shall include credit to Artist on the Fort Worth Public Art website
(www.fwpublicart. and a permanent plaque at the site.
8.2. 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 2.5 and Exhibit
«c.»
8.3. 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 repair or restoration, City shall have the
Agreement for Commission of Public Artwork Page 20 of 47
between the City of Fort Worth and Jack Mackie.
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 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 conservation
standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics
and Guidelines for Practice) and/or construction standards, including, but not limited to, any
standards set forth by City.
C. City may require Artist to submit professional documents supporting Artist's proposal for
repairs and restorations prior to commencement of repairs or restorations.
d. 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.
8.4. 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
perfonning maintenance, repair, renovation, or reconstruction of the building, structure or in
Agreement for Commission of Public Artwork Page 21 of 47
between the City of Fort Worth and Jack Mackie.
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.
8.5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition
of the Work.
8.6. Artist's Address.
Artist shall notify City of changes in the address set forth in Article 15. 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 8 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.
Agreement for Commission of Public Artwork Page 22 of 47
between the City of Fort Worth and Jack Mackie.
8.7. Additional Rights and Remedies.
Nothing contained in this Article 8 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 9
ARTIST AS AN INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor, and not as an
officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive
right to control the details of the work performed hereunder, and all persons performing same, and
shall be solely responsible for the acts and omissions of his/her officers, agents, employees, and
subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between
City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat
superior has no application as between City and Artist.
ARTICLE 10
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 applicable terms of this
Agreement, including, but not limited to, all indemnification and release provisions. Artist shall
provide information regarding all subcontractors, including its fabricator, along with a copy of the
subcontract between Artist and each subcontractor to the Contract Manager.
ARTICLE 11
TERMINATION
11.1. Gratuities.
Agreement for Commission of Public Artwork Page 23 of 47
between the City of Fort Worth and Jack Mackie.
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. In the event this Agreement is canceled by the City, pursuant to this Article 11.1, 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.
11.2. Easement.
This Agreement is contingent upon the City obtaining an easement from the T for placement of-the
Work at the Site. If City fails to obtain such easement, then the City may terminate this Agreement
or its convenience.
11.3. 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
work product produced by Artist, including, but not limited to, finished and unfinished drawings,
sketches, photographs, models, and designs, up to the effective date of termination shall become
property of City.
b. In the event of termination under this Article 11.3, City shall have the right to complete the
Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and
acknowledgement shall be given to Artist. This provision shall survive the termination or expiration
of this Agreement.
11.4 Termination for Convenience.
Agreement for Commission of Public Artwork Page 24 of 47
between the City of Fort Worth and Jack Mackie.
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, City shall pay Artist for services actually
rendered up to the effective date of termination, and Artist shall continue to provide the City with
services requested by City and in accordance With this Agreement up to the effective date of
termination. Upon payment in full of all monies due for services provided up to the effective date
of termination, City shall have the right, in its sole discretion, to possession and transfer of all work
product produced by Artist under this Agreement, including, but not limited to, finished and
unfinished drawings, sketches, photographs, models, designs and the Work up to the effective date
of termination.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion,
to pay Artist for services actually rendered up to the effective date of termination or require the
Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this
Agreement prior to the effective date of termination. If City chooses to pay Artist for services
actually rendered, then all work product produced by Artist under this Agreement, including, but
not limited to, finished and unfinished drawings, sketches, photographs, models, designs, -the Work
up to the effective date of termination shall become property of City.
11.5. Termination for Cause.
a. 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 11.5 in accordance with the dispute resolution process set
Agreement for Commission of Public Artwork Page 25 of 47
between the City of Fort Worth and Jack Mackie.
forth in Article 12 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 Article 11.5 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.
b. If City terminates this Agreement pursuant to this Article 11.5, then City shall have the right
to complete the Work in accordance with the Artwork Design, which shall be in addition to
any and all other rights and remedies available to City at law or in equity. If City exercises
its right to complete the Work, then:
(1) title to the Artwork Design, Work, and/or all other work product under this
Agreement and/or any prior agreement for the Work, including, but not limited to, all
documents, models, and/or drawings that constitute or are components of the
Artwork Design and/or Work, shall pass to City and become the property of City,
without restriction on future use, immediately upon the City's exercise of its right to
complete the Work;
(2) Artist shall forfeit any and all rights to the Artwork Design, Work, and/or all
other work product under this Agreement and/or any prior agreement for the Work,
including, but not limited to, those stated under Articles 7 (Ownership and
Intellectual Property) and 8 (Artist's Rights) of this Agreement;
(3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and
interest in and to the Artwork Design, Work, and/or all other work product under this
Agreement or any prior agreement for the Work that the Artist has under the
Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges
Agreement for Commission of Public Artwork Page 26 of 47
between the City of Fort Worth and Jack Mackie.
appertaining thereto, including, without limitation, the exclusive right to reproduce,
prepare derivative works based upon, distribute copies to the public as well as
display said Artwork Design and/or Work, the same to be held and employed by City
for City's own benefit and use and for the benefit and use of City's successors,
assigns, and legal representatives forever;
(4) Artist shall have no copyright or other property interest in the Artwork Design,
Work, and/or any other work product under this Agreement and/or any prior
agreement for the Work; and
(5) Artist, pursuant to this Article 11.5, hereby acknowledges the rights of attribution
and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended
or as it may be amended in the future) Titled "Visual Artists Rights Act," and any
other right of the same nature granted by U.S. federal, state, or foreign laws, and of
his/her own free act hereby waives such rights with respect to any and all uses of the
Artwork Design, Work, and/or all other work product under this Agreement and/or
any prior agreement as a public artwork. Nothing in this Article 11.5 shall affect the
survival of Articles 5 (Warranties), 6 (Insurance and Indemnity), and 9 (Artist as an
Independent Contractor) of this Agreement, which shall remain in full force and
effect upon termination of this Agreement.
ARTICLE 12
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 within ten (10) business days after discovering the claim, dispute, or breach.
Agreement for Commission of Public Artwork Page 27 of 47
between the City of Fort Worth and Jack Mackie.
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(5th) calendar day after notice was sent.
If the Parties fail to resolve the dispute within sixty (b0) 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 Goven-iment 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 11.5)
ARTICLE 13
EQUAL OPPORTUNITY
Agreement for Commission of Public Artwork Page 28 of 47
between the City of Fort Worth and Jack Mackie.
a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national
origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or
any other prohibited criteria in any employment decisions relating to this Agreement, and
Artist represents and warrants that to the extent required by applicable laws, it is an equal
opportunity employer and shall comply with all applicable laws and regulations in any
employment decisions.
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement,
this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist
may be debarred from further agreements with City.
ARTICLE 14
MISCELLANEOUS
14.1. Compliance.
Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable
to the performance of Artist services under this Agreement.
14.2. 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.
14.3. 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.
14.4. Waiver.
Agreement for Commission of Public Artwork Page 29 of 47
between the City of Fort Worth and Jack Mackie.
No waiver of performance by either party shall be construed as or operate as a waiver of any
subsequent default of any terms, covenants, and conditions of this Agreement. The payment or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
14.5. 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.
14.6. 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.
14.7. 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.
14.8 Severabilit .
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.
Agreement for Commission of Public Artwork Page 30 of 47
between the City of Fort Worth and Jack Mackie.
14.9. 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.
14.10. Fiscal Fundinp,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 the Fort Worth City Council for the purposes set forth in this Agreement.
14.11. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
14.12. Artist's Address.
Artist shall notify the Contract Manager of changes in address.
14.13. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or legal
incapacity of Artist.
14.14. Ri t 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.
Agreement for Commission of Public Artwork Page 31 of 47
between the City of Fort Worth and Jack Mackie.
Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all
Records available to City on 1 000 Throckmorton Street, Fort `]North, 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
Article 14.14 shall survive expiration or earlier termination of this Agreement.
14.15. Certified MBE/WBE.
If applicable, Artist is encouraged to make its best effort to become a certified Minority Business
Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose
certification is accepted by the City under the City's Business Diversity Enterprise Ordinance.
14.16 Survival Provision
The provisions contained in Articles 5 (Warranties), 6 (Indemnity Provisions), and 9 (Artist as
Independent Contractor) shall survive the termination or expiration of this Agreement.
14.17 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 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 un-
Agreement for Commission of Public Artwork Page 32 of 47
between the City of Fort Worth and Jack Mackie.
authorized disclosure or transfer of information. City will use its best efforts to secure and p rotect
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.
14.18 Counterparts and Electronic Si natures
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.
14.19. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 15
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, Texas 76102
Agreement for Commission of Public Artwork Page 33 of 47
between the City of Fort Worth and Jack Mackie.
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, Washington 98107-4507
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Agreement for Commission of Public Artwork Page 34 of 47
between the City of Fort Worth and Jack Mackie.
IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT WORTH ARTIST
by:
Fernando Costa Jack Mackie
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler F allach
Assistant City Attorney
ATTESTED BY:
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Contract Authorization:
M&C: C-26046
Date: January 8, 2013
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Agreement for Commission of Public Artwork Page 35 of 47
between the City of Fort Worth and Jack Mackie.
s
IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date.
CITY of FORT WORTH ARTIST
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by-
Fernando Costa Jack Mackie
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler F. Wallach
Assistant City Attorney
ATTESTED BY:
Mary J. Kayser
City Secretary
Contract Authorization:
M&C: C-26046
Dante: January 8,2013
Agreement for Commission of Public Artwork Page 35 of 47
between the City of Fort Worth and Jack Mackie.
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Agreement for Commission of Public Artwork Page 37 of 47
between the City of Fort Worth and Jack Mackie.
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Agreement for Commission of Public Artwork Page 38 of 47
between the City of Fort worth and Jack Mackie.
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Exhibit C: 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):
Agreement for Commission of Public Artwork Page 40 of 47
between the City of Fort Worth and Jack Mackie.
Edition Information if applicable:
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:
Agreement for Commission of Public Artwork Page 4.1 of 47
between the City of Fort Worth and Jack Mackie.
Casting Alloy, Wax Body, Glass or Fiber Type:
Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative,
UV, graffiti, etc. Please list vendors and contact information and provide all product information):
Pedestals, Foundations & Footings, Mounting and Attachment Applications
(List all materials used to install artwork on site. Include vendor information, parts numbers,
warranties and agreements.)
Integrated Components
(List all components included in design and fabrication contracts that function as a part of the final
installation including but not limited to: lighting, media, landscaping, etc. Include all vendor
information, parts numbers, warranties and agreements and any/all design schematics):
Installation
Installation Date:
Installation Method: (describe installation method, provide photo documentation if available. List
name and contact information of installation crew. Attach any diagrams or disassembly
instructions.)
Agreement for Commission of Public Artwork Page 42 of 47
between the City of Fort Worth and Jack Mackie.
Recommended Routine Maintenance
Artist recommendation based on experience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
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.)
Agreement for Commission of Public Artwork Page 43 of 47
between the City of Fort Worth and Jack Mackie.
Exhibit D: Affidavit
AFFIDAVIT of BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and
materials provided to Affiant for the construction of any and all improvements on the property.
Affiant is not indebted to any person, firm, or corporation by reason of any such construction.
There are no claims pending for personal injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the
Day of 120 .
Notary Public, State of Texas
Print Name
Commission Expires
Agreement for Commission of Public Artwork Page 44 of 47
between the City of Fort Worth and Jack Mackie.
Exhibit E: Sales Tax Exemption
TEXAS(TR'n F1 CAT OF EXENIVIFION
611aizi1 W1 CXCn)Pt1'1.M.1 frin'll payllaull of"'llic's alld lu's�'laxei 601 11'1v.puTclvv�c oftavibielle:w-;descrINM
h'low of on 111e salt ac lw(t or i tivoice
.......... .........
Descrijition,A itcus(ow an attzt-k hed order or Involkv)To Bc Purchase&
I
011.1 1T)thiS CWAII)II44-11 folho-wing,reason,
Nattic of'Fxonpt organizattion: CITY OF roe W O RTH,TEXAS
TEXASSALES AND USETAX PERMIT NUMBER 1-75-6000528-6
Project for�vllhlt:1~matm,a]15;and�i Lipj)]tes am purchas(A,
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I undeiNstund that i will bc Jjab]e If'orpayment of"sales tax.Which 111av 11cconir k'hic fisr faflure,to
with the ptovi-siowi orthc state,city,an&"Or tywiroD.oltan tratisft au h0ritV Sallies aml Lv�c.%,ix 1"�W s.€end
'ub'hiv for Price pald
comptroller ru'Ls iregarding munIx purtha-.es. [A i i- or tVc tax mal I be deteniiin,�x]by th
for the t-axable.items PurAa,,,wx1 or the fair nmrkel.rental valuc f(v the pe:'kxi t)],111,11C usckj
I Lfl,&M�UIMII fllit It is a misdetiie,:'mor to w%1T 31)<'Nemptlon oertifica-te to the scller for ta,\ahlc ltej-ns uAild
I knou at the time w,"the pure-tease,will be used in 41 11101AICT other thall fliat CxPCnSed Iti[111is C-CAlficatc
and.upcm consaiction,may I)c tuned up to$50()Jim
)I'Status Due to BeIng a Gq
Tax Exm-V-21' Eqtit�-
Purchaser CITY OF FORT WORTH,TE XAS
Street Address. 1000 THROCKMORTON STREET
("ry,State..Zip Ci-de-.FOR-1 N-VOKUH,TEX.A�S'76102
Si in Hrrv- D-ic: hine 1 1,-200() Phont: 8,,7 2,S,'5 I
I do"not i-eqiijue;j 11LI1111"CT o w,--alki. Sale,�ajid use laxcxemptit'sn number-s"v,r"t.-LN
cxempt"numbers do nor ioxr�t
Tlus ccrt:fivLitc-du till be furnishcd to 111,c s(ippitu.Do uka send tl'l;:�-OITIPIOCA WllfiLJh:'U,11%'
Cojitptrkjlh�-off-1-01w AcCLIMIVS.
Agreement for Commission of Public Artwork Page 45 of 47
between the City of Fort Worth and Jack Mackie.
Exhibit F: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts
fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her
subcontractor(s) to abide by all of the following insurance requirements.
Commercial General Liability (CGL)
$1,000,000 Each occurrence
$2900000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent
contractors, products/completed operations, personal injury, and contractual liability. Insurance
shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services
Office (ISO)policy. The policy shall name City as an additional insured.
Bailee's/Property (if applicable)
The inland marine policy shall provide per occurrence coverage at replacement cost value based on
the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in
the Artist's care, custody, and control and shall include property "in transit."
Automobile Liability
$1,000,000 Each accident
or
$2505000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$1001000 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
$1005000 Disease - per each employee
$5001000 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.).
Agreement for Commission of Public Artwork Page 46 of 47
between the City of Fort Worth and Jack Mackie.
GENERAL POLICY REQUIREMENTS
The certificate of insurance shall include an endorsement naming the City of Fort Worth, its'
Officers, Employees and Volunteers as an "Additional Insured" on all liability policies.
Exception... the additional insured requirement does not apply to Workers' Compensation or
Automobile policies.
Artist is responsible for providing the City a thirty day(30) notice of cancellation or non-renewal of
any insurance policy and may not change the terms and conditions of any policy that would limit
the scope or coverage, or otherwise alter or disallow coverage as required herein.
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."
The deductible or self-insured retention (SIR) affecting required insurance coverage shall be
acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset
value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained
through insurance pools or risk retention groups, must also approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the insurance requirements and to make
reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent
by City based upon changes in statutory law, court decision or the claims history of the industry as
well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice
of ninety days.
City shall be entitled, upon request and without expense, to receive copies of policies and
endorsements thereto and may make any reasonable requests for deletion or revision or
modifications of particular policy terms, conditions, limitations, or exclusions except where policy
provisions are established by law or regulations binding upon either of party or the underwriter on
any such policies.
Agreement for Commission of Public Artwork Page 47 of 47
between the City of Fort Worth and Jack Mackie.
Ivi&C Review Page 1 of 2
offidai site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA �FO RT Wb RT.
COUNCIL ACTION: Approved on 1/8/2013
DATE: 1/8/2013 REFERENCE NO.:**C-26046 LOG NAME: 20SARGENT STREET
TROUT LILY CLOCK
PUBLIC NO
CONSENT
CODE: C TYPE: HEARING:
SUBJECT: Authorize Execution of an Artwork Commission Contract with Jack Mackie in the Amount
Up to $61,178.00 for Fabrication, Delivery and Installation of a Sculpture with Functioning
Street Clock to be Installed at 4100/4104 East Lancaster Avenue at the Intersection of
Sargent Street (COUNCIL DISTRICT 8)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of an Artwork Commission Contract
with Jack Mackie in the amount up to $61,178.00 for fabrication, delivery and installation of a
sculpture with functioning street clock to be installed at 4100/4104 East Lancaster Avenue at the
intersection of Sargent Street.
DISCUSSION:
The Artwork Commission Contract will enable artist Jack Mackie to proceed with fabrication, delivery
and installation of the Trout Lily Clock. The Trout Lily Clock is a metal sculpture based on an
abstraction of the indigenous Trout Lily flower that signals the arrival of spring in the adjacent Tandy
Hills Natural Area. The sculpture will be physically located at the Fort Worth Transportation
Authority's (the T) East Fort Worth Transfer Center pursuant to an easement Agreement between the
City and -the T. Serving transit passengers, pedestrians and motorists alike, the sculpture will
function as a street clock and as a way-finding device for this busy community hub on East Lancaster
Avenue. The location will afford the sculpture sufficient space and allow the sculpture to be set back
safely from the roadway. The City will retain full ownership and maintenance responsibilities of the
artwork.
The Artwork Commission Contract shall be in an amount up to $61,178.00 and funded from the Long
Range Public Art Plan for the 2004 CIP, Proposition 1. The project was included in the Fort Worth
Public Art Fiscal Year 2013 Annual Work Plan and Budget, approved by the City Council on October
69 2012 (M&C C-25920) as part of the City's Agreement with the Arts Council of Fort Worth and
Tarrant County, Inc.
BACKGROUND:
Artist Jack Mackie was selected by the City through a selection process conducted by the Contract
Manager with oversight of the Fort Worth Art Commission (the FWAC) to develop a master plan for
public art and design enhancement recorn mend ations for East Lancaster Avenue. In 2009, Jack
Mackie entered into a Design Team Agreement(City Secretary Contract No. 39455)to develop the
East Lancaster Avenue Public Art Master Plan as a guide for implementation of public art projects
along the corridor from 1-35 East to Loop 820, which included a preliminary design concept for an
artwork with functioning street clock at Sargent Street and East Lancaster Avenue. The East
Lancaster Avenue Public Art Master Plan was reviewed and approved by the Fort Worth Art
Commission on April 12, 2011. The artist met with stakeholders a number of times over the course of
his work on the Trout Lily Clock design and there is strong community support for the work.
On January 20, 2012, Jack Mackie entered into a Final Design Contract for the artwork(City
http://www.fortworthgov.org/council_packet/mc—review.asp?ID=17775&councildate=l/8/2... 1/9/2013
M&C Review Page 2 of 2
Secretary Contract No. 42793)to develop a final design based on his preliminary design for the Trout
Lily Clock. The final design was presented to the Fort Worth Art Commission on Monday, September
10, 2012, where it was approved.
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 8.
FISCAL INFORMATIONICERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current capital
budget, as appropriated, of the Street Improvements Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
1) C200 485209 201989990100 $61,178.00 1) C200 541200 208980185980 $61,178.00
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Douglas W. Wiersig (7801)
Additional Information Contact: Martha Peters (298-3025)
ATTACHMENTS
Sam ent Street Trout Lily Clock Ma . df
http://www.fortworthgov.org/council—Packet/mc_review.asp?ID=17775&councildate=l/8/2... 1/9/2013