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HomeMy WebLinkAboutContract 42785CITY SECRETARY �2� S CONTRACT NO. AGREEMENT FOR FINAL DESIGN OF PUBLIC ART WORK FOR THE EAST FIRST STREET BRIDGE BETWEEN THE CITY OF FORT WORTH AND KEN BERNSTEIN ART STUDIO, INC. This Agreement is entered into this `q day of `iUAU Wil , 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 KEN BERNSTEIN ART STUDIO, INC., of 369 Arapahoe Avenue, Boulder, Colorado 80302, acting by and through Ken Bernstein, its duly authorized President. 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, allocated in the 2004 Capital Improvement Program, are funds for artist fees and costs related to the production of artwork for the East First Street Bridge; WHEREAS, the Fort Worth Art Commission ( "FWAC ") recommended that an Artist participate with the City, Texas Department of Transportation ( "TxDOT "), and the Project Consultant to develop public art and design enhancement recommendations for the East First Street Bridge, which is located on East First Street between Beach Street and Oakland Avenue; ngrcenxnt fix 1 inal I)esign of Public Art work for the East First Street Bridge 13ct%kccn the C'ith o f f ort worth and Ken Bernstein Art Studio. Inc. i OFFICIAL RECORD CITY 9MMURY FT. WORTH, TX WHEREAS, the Parties entered into a Design Team Agreement on or about November 19, 2007 (City Secretary Contract No. 36146), to develop a preliminary design of a work of public art for the Site; WHEREAS, on February 10, 2010, the FWAC reviewed and approved Artist's Preliminary Design concept and recommended that Artist be retained to develop a final design based on Artist's Preliminary Design 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. 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 City and Artist for Final Design of Public Art for the Site. 1.2. Artist — Means and includes Ken Bernstein Art Studio, Inc. and all other persons or entities for which it is legally responsible, including, but not limited to, its members, managing members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, subartists, contractors, and related companies. 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 Agreement liar Final Iksign of Puhlic Art work Page 2 of 30 for the Fast First Street Bridge Between the City of Fort worth and Ken Bernstein Art Studio. Inc. 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 concepts created pursuant to City Secretary Contract No. 36146, 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. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and all other persons or entities for which Contract Manager is legally responsible, including, but not limited to, 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 and its officers, representatives, agents, servants, and employees. 1.6 Community Group - Means and includes representatives of the Streams and Valleys and other community stakeholders, as appropriate. 1.7. 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. 1.8. 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. Agreement for Final Iksign of I'uhlic An work for the East First Street Bridge I3et% keen the ('its of Fort Worth Page ; of 30 and Ken Bernstein An Studio. Inc. 1.9. Parties — Means and includes City and Artist. 1.10. Project Consultant — Means and includes the design firm /professional(s) hired by City to design the Site. 1.11. Site — Means and includes the East First Street Bridge, which is located on East First Street between Beach Street and Oakland Avenue in Fort Worth, Texas, 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 was reviewed and approved by the FWAC on February 10, 2010, 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 and materials as necessary for developing the Final Design of the Work. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall travel to Fort Worth to meet with Project Consultant and officials of TxDOT, as well as other officials, as may be necessary, to complete the Final Design. C. 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. d. The specific location at the Site where the Work shall be installed shall be mutually agreed upon by the City. Community Group, and Artist. Agreement for Final I ksign of Puhlic Art \4 ork Page d of 30 for the East First Street Bridge Iketwcen the Uith of'[ ort Worth and Ken Ikernstein Art Studio. Inc. e. Artist shall coordinate with the Project Consultant to ensure proper integration of the Work into the Site and into the construction documents, as may be necessary. f. 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. g. Artist shall present the Final Design to the appropriate City committee, City staff, Project Consultant, 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. 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 budget for implementation of the Final Design is ONE HUNDRED FORTY -THREE THOUSAND FIVE HUNDRED FIFTY DOLLARS AND NO CENTS ($143,550.00), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, remaining Artist's fee, and all other associated costs for the Work. 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. Artist may propose additional budget for lighting and any anticipated and reasonable cost increases that may occur before construction. 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 correct scaled drawings of the Site, if available. Agreement tier Final Iksign of Public Art work for the East First Street Bridge Between the Otv of Fort Worth and ken Bernstein Art Studio_ Inc. City, upon request by Artist, shall also provide Page 5 of 30 2.5. Final Design Deliverables Within four (4) 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. Artist shall provide 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. Artist shall provide a final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2) Proposed materials, fabrication, and installation methods for all elements of the Work; (3) Maintenance requirements for all elements of the Work as dictated by Artist along with cost estimates for annual maintenance; and (4) Proposed public education program to be conducted by Artist at a time and date mutually agreed upon by City and Artist. C. Artist shall provide comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an engineer and /or architect licensed to work in the State of Texas as required by City, and Artist will obtain and furnish to the Contract Manager certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancellation /nonrenewal in accordance with standard practices. Agreement for I inal Uesign of Public Art work Page 6 of 3(1 for the East First Street Bridge 13etwecn the (iri of Fort Worth and Ken Bernstein Art Studio. Inc. d. Artist shall provide a final budget for the Work with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including any remainder of Artist's fee, in an amount not to exceed $143,550.00. Artist may propose additional budget for lighting and any anticipated and reasonable cost increases that may occur before construction. 2.6. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall meet with the Community Group, appropriate City staff, and other City boards or commissions, as appropriate, to present the Final Design at dates and times mutually agreed upon for input. b. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled meeting. C. City may require Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. d. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. e. Within thirty (30) calendar 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. Agreement for Final IX-sign of Public Art work Page ��� 311 for the Fast First Street Bridge Between the 01h of Fort Worth and Ken Bernstein Art Studio. Inc. 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. 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. i. 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. Artist's Final Design and all other work products under this Agreement shall become the property of City, without restriction on future use (see Article 6). ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall not exceed TWENTY -FOUR THOUSAND FOUR HUNDRED FIFTY DOLLARS AND NO CENTS ($24,450.00), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, engineering and consulting fees, all travel expenses and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. Agreement for Final Iksign of Public Art work Page R of 30 for the Fast First Street Bridge Between the City of Fort Worth and Ken Bernstein Art Studio, Inc. 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. FOUR THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($4,200.00) upon execution of this Agreement. b. FOUR THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($4,200.00) within thirty (30) days after Artist submits all of the Final Design Deliverables required under Article 2.5 of this Agreement and makes presentation(s) of the Final Design to the FWAC. C. THREE THOUSAND FIFTY DOLLARS AND NO CENTS ($3,050.00) within thirty (30) days after City's approval of the Final Design. City may pay Artist up to THIRTEEN THOUSAND DOLLARS AND NO CENTS ($13,000.00) for engineering and professional lighting consultant 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 for such services attached thereto. Any unused portion of this amount shall be added to the implementation budget. 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. Agreement for I inal Iksign of Public ,Nrt work Page 9 of 30 for the East First Street Bridge IktkNeen the Cih of Fort worth and Ken Bernstein Art Studio. Inc. 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, 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. 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 Agreement tier I inal Design ot' Puhlic Art work Page I U of 3U tier the I: Lst First Street Bridge Between the Cit,, of Fort worth and Ken Bernstein Art Studio_ Inc. 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) 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 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 that Artist becomes incapable, legally or otherwise, of performing its duties and /or obligations under 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 incapacity. All finished and unfinished drawings, sketches, photographs, models, and any other work shall automatically become property of City. b. Should Artist's Final Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. Agreement for Final Iksign ot'Puhlic art Work Page I I of 30 for the East First Street Bridge Ilctnkccn the ('itN of Fort Worth and Ken Bernstein Art Studio. Inc. 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 notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty (60) 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 Artist 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 Agreement for I inal I ksign of Public Art W ork Page 12 of 30 tur the L&st 1 irst Street Bridge Between the Cit_\ of Fort Worth Mid hen Bernstein Art Studio_ Inc. shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 4.3) 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 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. The City shall take title to all documents and /or drawings, which constitute or are components of the Artwork Design and /or Work upon final approval of the Final Design. 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 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 Agreement for Final Iksign oFPuhlic All work Page 13 ot'30 for the East First Street Bridge Bet),%een the 0tv of Fort worth and Ken Bernstein Art Studio. Inc. a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." 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, TX ". 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 the City from locating the 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 the Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT The 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; Agreement for Final Ihsign of Public Art work Page 14 of 30 for the Iasi First Street Bridge I3et"cen the City of Fort Worth and hen Bernstein Art Studio. Inc. 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; 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. Generallndemnity a. 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, Agreement for I inal Design of Public Art work Page 15 of 30 for the Fast First Street Bridge Between the City of Fun Worth and Ken Bernstein Ail Studio. Inc. LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE 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' 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. b. 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. C. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. Agreement fi)r Final I ksign of Public Art bl ork Page 16 of 3U fix the kLst First Street Bridge Iletween the ('itv of Fort Worth raid Ken Bernstein Art Studio. Inc. 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 EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, REASONABLE 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. The indemnification provisions are subject to the conditions that Artist is notified of the claim(s) in a timely manner and provided with all reasonable assistance to defend against the claim(s) at Artist's expense. Artist and City shall engage in a joint defense, and any settlement of an indemnified claim shall require the approval of both Artist and City. Agreement tier final Iksign of'I'uhlic An work Page 17 of 30 f'or the Fwst First Street Bridge Ikiween the City of' Fort worth and Ken Bernstein Art Studio. Inc. 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 regard to race, color, religion, sex, sexual orientation, national origin, familial status, transgender, gender identity, or gender expression. C. Artist shall furnish all information and reports requested by the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. 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. Agreement for Final Iksign of Puhlic Art work Page IR of 311 for the East First Street Bridge B 1xceen the Uith of Fort Worth and Ken Bernstein Art Studio. Inc. ARTICLE 1 I 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 the 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 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. Agreement tur Final I) sign of'Public Art Work Page 19 of'30 for the East First Street Bridge Between the Cite of Fort Worth and Ken Bernstein Art Studio. Inc. 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; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. Agreement for Final Iksign of Puhlic Art Work Page 20 of 30 for the Fast First Street Bridge Ikehaeen the OtN of Fort Worth and Ken Bernstein Art Studio. Inc. 1 1.10. 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 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 the 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. 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 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 by the City and shall otherwise Agreement for Final Iksign of Public Art work Page 21 of 30 for the Fast First Street Bridge B xwen the Cif\ of Fort Worth and Ken Bernstein An Studio. Inc. 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 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 Agreement for Final I csign of Puhlic Art Work Page 22 of 30 for the East First Street Bridge ll twecn the Uity of' Fort Worth and Ken Bernstein Art Studio. Inc. 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: 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 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Agreement Ibr Final I ksign of Public Art 'A ork Page 23 of 30 tix the I :i st First Street Bridge Betvkcen the ('ih of Dort worth wid Ken Bernstein Art Studio. Inc. Martha Peters, VP- Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. ARTIST: Ken Bernstein, President Ken Bernstein Art Studio, Inc. 369 Arapahoe Avenue Boulder, CO 80302 [SIGNATURES ON THE FOLLOWING PAGE] Agreement for Final I ksign of Public An Work Page 24 of 30 tier the Gast First Street Bridge Bet"cen the City of Fort Worth and Ken Bernstein Art Studio, Inc. IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F. Wallach Assistant City Attorney ATTESTED BY: City Secretary Contract Authorization: M &C # C -21283 Date: 1 -31 -2006 KEN BERSTEIN ART STUDIO, INC. Ken Bernstein, President Ken Bernstein Art Studio, Inc. Agreement for Find Design of Public An Work OFF10"AMRd for the East First Street Bridge Between the City of Fort Worth CITY SECRETARY and Ken Bernstein Art Studio, Inc. FT. WORTH, TX IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH by: C � Fernando Costa Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Tyler F allach Assistant City Attorney ATTESTED BY: KEN BERSTEIN ART STUDIO, INC. by: Ken Bernstein, President Ken Bernstein Art Studio, Inc. Contract Authorization: M &C # C -21283 Date: 1 -31 -2006 Agreement lur Final Design of Public Art Work l'or the Fist First Street Bridge 134-,twecn the City ot'Fort Worth and Ken Bernstein Art Studio. Inc. OFFICIAL RECORD CIT�' '§'��TARY FT. WORTH, TX Exhibit A Artist's Preliminary Design �wlrillllli I worked on several design approaches to this public art opportunity, and I kept coming back to images related to the river. I am fascinated by the wave form, which is an expression of motion in water and air, or in any liquid or gas, and for that matter we can see the artifacts of wave motion in many solid objects. So, I played with the wave form until I combined three waves into the sculpture that is represented here. It was only after I fell in love with this form that I started to think of a name for it. That only took a moment as it is obvious that the entry to the First Street Bridge should declare the name of the river over which it is passing. The Trinity wave sculpture describes visually both the river's flowing nature and its name. Agreement for Final Iksign of ublic Art Work Page 260130 tier the East First Street Bridge Between the Cih of Fort Worth wid Ken Bernstein Art Studio. Inc. Exhibit B Site — East First Street Project Agreement lbrl inal Iksign of Public .Ail \kork Page 27ol'30 for the I iLst First Street Bridge lk%keen the City of Fan Worlh and Ken Bernstein Art Studio. Inc. Exhibit C Budget ARTISTS FEE TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Dien Expenses at 3_ per day Mileage at $_ per mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist / Subcontractors Worker's Camp, I Employer's Liability Other, as applicable ADMINISTRATIVE EXPENSES Phone/Fax Defivery/Shipping (for correspondence, samples, models, drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (If applicable, drawing must be signed and sealed by a professional registered to practice in ft State of Texas) Architect' Structural Engineer` Electrical Engineer Conservator Photographer (for documentation of completed work)* Other* MATERIALS (Please attach a complete list of materials. Itemize all anticipated aspects and components with per unit cost estimates) Materials' Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist') Artist's Labor (_ hours at E_ per hour) Total Subcontracted Labor' (Total) Facility/Equipment Rental (used exclusively for this project) related to fabrication SITE PREPARATION (Do not include costs covered by FWPA. City of Fort Worth or others) Test Drilkng' Removal" LandscafxngA rogation• Electrical Modifications' Water Work/Mechanical Devices Other' (Revised May 2011) Agreement for Final Iksign of Public All Wurk Page 28 of 30 for the I-aast First Streit Bridge 13etv,een the C'it\ of Fort Worth and Ken I3emstcin Art Studio. Inc. TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site• Other' BASEMOUNTING Base Mounting Devices and Components FoundatKin!Footlng Other INSTALLATION COSTS (Costs must inducle allowance for after hours installation, if applicable Please attach a cwnplete list of equipment and individual estimates with this form) Subcontracted Labor' Scaffolding• Equipment Rental related to installation, Off -duty Paca+secunty, Traffic Barriers• Storage Facility Rental* City Permits Display Devices Fireproofing' Site Restoration* Other, LIGHTING Designers* Fixtures* BLdf)S* Site Preparation, Installation* GRAND TOTAL Please make any necessary notes here: Prepared BF. Date: fRewsec Ma} 201 f) Agreement for Final I k-sign of )LIblic Art work Page 29 ol'30 for the East First Street Bridge lktxkeen the OtN of Fort Worth and Ken Bernstein Art Studio. Inc. Exhibit D Sales Tax Exemption TE:AS CERTIFICATE OF F N)KNIPTION I Claim an exemption froln Payment of salve and use taxes fiat the purchase of taxable iton, described hcl-k or on the attached order or invoice, LX-scription of Items (oT an attJChW Order or Invoice) To He Putchased: I Claim this exemption for the following rca%in: Name of Exempt Orpnizatj*n- CITY OF FORT WORTMTEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-60005211-+11 Project for which matenals and Supplies are ptnehased: I understand that I will be liable for payment of sales withthepro sjonsofthestate.( , . tax, which may become due for failwe to Comply V1 oily, Md'or metroffPlitan transit authority sales arld use (&x jaws =d COMptrOlIcs, rules regarding eXeMpt lititchasti- Liability for the tax will 'be determined by the price paid for the taxable itents pumbased or the fail market rental value fim the period of time u-4- I understand that it is a misdemeanor to give an exemption Certificate to the seller for taxable itt-nts which I know, at (he, time ofthe purchase. will be us0d in a manner other than that exptmsed in this Certificate and, upon cotivitticin, may be firied up to $500 fe�n pet 4L f se, YN-P=L-S-ta-tus Dug to Heine .-- K nt21 � Fntit Pw-cba-,;cr CMV OF FORT WORTH, TEXAS Street Addrm-c 1000 THROCKMORTON STREET CiIY, State- Zip FORT., WORTH, TE)CAS 76102 Sign Here: Dale: June lf,2404 4 Sales and use tax ­eWnMion flumber-s- or "tax exempt" numbers do not exist. This cernficate ihotkld be fijrru.A�cd to the iul)PlitT DO n*R send the. omlijcuxt cc-jjjfW;jjc to the c4unpiroller of Public Accounts Agreement for Final lksign Ot'Public Art Work Page 30 ol'30 for the Fast First Street Bridge llctukeen the 0t\ of Fort Worth and Ken Bernstein Art Studio, Inc.