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HomeMy WebLinkAboutContract 52588-A1City Secretary Contract No. 562'5 ?r8 -Ji\ FIRST AMENDMENT TO CITY SECRET ARY CONTRACT NO. 52588 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ETTY !SH-HOROWITZ AND KEVIN SLOAN STUDIO LLC FOR FINAL DESIGN OF PUBLIC ART AND LANDSCAPING FOR STATE HIGHWAY 121 This FIRST AMENDMENT TO CITY SECRET ARY CONTRACT NO. 52588 ("First Amendment") is entered by and between the City of Fort Worth ("City"), a home-rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly a uthorized Assistant City Manager; and Etty !sh-Horowitz ("Artist"), an individual, of 4318 Gilbert A venue, Dallas, Texas 75219; and Kevin Sloan Studio LLC ("Artist"), a limited liability company, acting by and through Diane Sloan, it s owner. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., D/B /A Arts Fort Worth ("Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art Project Manager. WHEREAS , on July 22 , 2019, the City entered into an Agreement with Etty !sh-Horowitz and Kevin Sloan , both as individuals , for Final Design of the Work for the Site (Fort Worth City Secretary Contract No. 52588); WHEREAS, following Kevin Sloan's death on October 27, 2021 , Diane Sloan, his widow, assigned hi s interest in the Agreement to Kevin Sloan Studio, LLC ; WHEREAS, additional fundin g for the project was approved and appropriated by City Council on June 27, 2023 (M&C 23-0521); WHEREAS, the Texas Department of Public Safety ("TxDOT") is requiring additional documents , necessitating an additional allowance for engineering and consulting services under the original Agreement; WHEREAS , upon TxDOT's approval of 100% of Artists' construction documents , the project will be let by the City of Fort Worth Transportation and Public Works Department and, after receiving contract authorization from City Council, awarded to a TxDOT-approved general contractor, rendering Artists ' work under the original Agreement complete and some portions of the original Agreement inapplicable; WHEREAS , at that point it is no longer anticipated that Artists will be required to make further revisions to the Final Design; and WHEREAS , after the City awards the construction contract to a TxDOT-approved general contractor and payment to Artists for work performed hereunder is made , this Agreement will terminate; 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: First Amendment to City Secretary Contract No . 52588 ---:· .-. .,.-.,: .-"':- --J -v· .:i,..-.:._I.-••- OFFICIAL RECORD COTY SECRETARY FT. WORTH, TX I 1 of 10 I. Sections 2.1., 2.2., 2.4. 2.5., and 2.6. of Article 2, "Scope of Services and Deliverables ," are hereby deleted in their entirety and replaced with the following: 2.1 . Artists' Selection. City and Artists acknowledge that Artists' Revised Preliminary Design was reviewed and approved by the Fort Worth Art Commission ("FW AC ") on January 14 , 2019 , and is the basis for executing this Agreement with Artists. 2 .2. Scope of Services. a. Artists shall perform or subcontract for the performance of all services and will furnish all supplies , materials , and equipment that are specified in this Agreement as necessary in order to provide the Final Design, including Construction Documents , for the Project in accordance with TxDOT specifications and for developing a Final Design of the Work, which together shall constitute the Final Design Deliverables . Artists ' services shall be performed in a professional manner consistent with the professional skill and care provided by the same kind and type of professional practicing in the same or similar locality under the same or similar circumstances and in strict compliance with all terms and conditions in this Agreement. Artists shall not have control over, charge of, or responsibility for the construction means , methods , techniques , sequences or procedures, or for safety precautions and programs in connection with the Project, nor shall the engineer be responsible for a contractor's failure to perform any work in accordance with the requirements of the Construction Documents. Artists shall not have control over or charge of, and shall not be responsible for, acts or omissions of contractors or of any other persons or entities performing portions of the work for the Project who have not contracted with Artists. b. Artists shall determine the artistic expression , scope , design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and written approval by City and TxDOT, as set forth in this Agreement, provided that design is substantially the same as in the approved Revised Preliminary Design . c. The location at the Site where the Work shall be installed has been mutually agreed upon by City, TxDOT, and Artists. d. Acme Brick Company has agreed to donate brick material needed to create an element of the landscape design. e. Artists shall present the Construction Documents to TxDOT, the Contract Manager, and the City's Project Manager for review at 60%, 90%, and 100% completion. First Amendment to City Secretary Contract No. 52588 2 of 10 f. Etty !sh-Horowitz shall subcontract with Baird Hampton & Brown and Kimley-Horn for the engineering and preparation of Special Specifications and Construction Documents for the Project. g. The landscape arch it ecture portion of the Construction Documents shall be prepared by Kevin Sloan Studio, LLC, for a fixed fee of $5,000 .00 . It is understood and agreed by the parties that this fee to Kevin Sloan Studio, LLC is in addition to what would have been Kevin Sloan's portion of the Artist Fee under the original Agreement, said Artist Fee under the original Agreement to be paid to Etty Ish - Horowitz as outlined in Article 3.1 below. h. Changes in any of the above subcontractors must be approved by Contract Manager in writing. i. Artists, upon written request of Contract Manager, shall provide information and/or attend meetings with appropriate City and TxDOT staff for purposes of risk assessment, safety review, siting of the Work, and permitting. j. 2.3. a. Upon written request of City, Artists shall provide written maintenance recommendations for the Work to the Contract Manager. Final Design Deliverables (Construction Documents). The Construction Documents shall include comprehensive working drawings detailing the means of installing all elements of the Artwork on the Site, together with other such graph ic material to permit City and TxDOT to carry out a design review and approval and so City may let the Project for bidding to TxDOT certified contractors; however, the City acknowledges that , in order to construct the Work, the contractor(s) will provide additional information, including shop drawings, product data, samples, and other similar submittals. Artists and their subcontractors should refer to the TxDOT Project Specifications & Engineering (PS&E) Manuals, the TxDOT Roadway Design Manual, and the TxDOT Local Government Projects Toolkit, all of which are available on the TxDOT website ( http://onlinemanuals.txdot.gov/txdotmanuals/pse /pse.pdf; http:// on) ineman uals. txdot.gov /txdotman uals/rdw/rdw . pdfj ; and https ://www.txdot.gov/government/processes-procedures/lgp-toolkit.html ) as they prepare the Construction Documents . b. The Construction Documents for the Work shall be stamped by a licensed engineer registered with the State of Texas. c. The Construction Documents for the sculpture portion of the Artwork shall meet TxDOT requirements and may include: First Amendment to City Secretary Contract No . 52588 3 of 10 d. i. A survey of the Site showing existing topography and location of proposed improvements, which will also serve as an attachment to the City's Landscape Management and Municipal Maintenance Agreements with TxDOT; ii. An Artwork layout and dimensioned plan ; 111. Detailed drawings of the steel letters that will spell "FORT WORTH," including their method of fabrication and attachment ; 1v . Detailed drawings of the spread beam footings that will support the steel letters , including the V. vi. VII. VIII. I. method of attachment of the letters ; A lighting and electrical plan, including footings for the light fixtures; A grading plan ; A geotechnical report ; and A general notes section , describing details of what is covered in the plans. The Construction Documents for the landscape and hardscape portions of the Artwork shall include: A planting plan, to include seed and planting details , bed preparation and soil composition, and planting instructions , including specific locations by type of plant or seed mixture, along with hand watering instructions for the specified establishment period ; 11. An Opinion of Probable Cost for the cost of installing the Acme Brick pavers; 111. A mow strip plan to include the Acme Brick element of the landscape; iv. A drainage plan provided by a civil engineer; and v. A general notes section, describing details of what is covered in the plans. e. The Construction Documents for the Artwork shall include a cover sheet and /or a link to a website with information on the requirements that submitted bids must meet , including any construction time limits, the Project budget, and a description of how bidders propose accessing the Site and constructing the Project. f. The Construction Documents for the Artwork shall list the Acme Brick component as a separate line item and shall require contractors to address it as a separate cost item in their submitted bids. g. Professional Liability Insurance is required in all circumstances for Artwork requiring engineering and/or architectural services. Artists will provide the Contract Manager a certificate of insurance for each of Artists' engineering or architectural consultants and must provide City with at least a 30 -day notice of cancellation of any policy required hereunder. h. A detailed Opinion of Probable Cost for the entire Project should be provided to the Contract Manager with the 60% drawing submittal to TxDOT. First Amendment to City Secretary Contract No . 52588 4 of 10 i. The schedule for submittals of Construction Documents are as follows: 2.4. 1. Within twelve weeks after the Effective Date, Artists shall submit 60% Construction Documents to Contract Manager, City 's Project Manager, and Tx.DOT for review and approval. ii. Within twelve weeks after receiving comments from TxDOT on 60% Construction Documents , Artists shall submit 90% Construction Documents to Contract Manager, City's Project Manager, and Tx.DOT for review and approval. iii. Within six weeks after receiving comments from Tx.DOT on 90% Construction Documents, Artists shall submit 100 % Construction Documents to Contract Manager, City's Project Manager, and Tx.DOT for review and approval. 1v. Requests for extensions must be made in writing to Contract Manager and approved by City and Tx.DOT . Final Design Deliverables (General). Within one month after Tx.DOT has approved 100% construction documents , Artists shall provide certain deliverables, as set forth in Article 2.5 to City for approval. Final Design Deliverables shall consist of the following: a. A final written narrative of the Work, describing the following: (1) the Final Design concepts, and (2) maintenance requirements for all elements of the Work as dictated by Artists, along with cost estimates for annual maintenance; b. Artists shal I propose an hourly fee to be paid to Artists under a separate Artists' consultation agreement for consultant services to be provided during the construction phase of the Project to be paid by the City. 2.5. a. Final Project Report . After Artists have submitted the 90% Construction Documents , Contract Manager shall make a report on the progress of the project to the FW AC at a regularly scheduled FW AC meeting. First Amendment to City Secretary Contract No. 52588 5 of 10 II. Section 3.1 of Article 3, "Compensation and Payment Schedule ," ts hereby deleted and replaced in its entirety with the following : 3.1. Fixed Fee . Total compensation to Artists under the Agreement shall be an amount up to ONE HUNDRED TWO THOUSAND, SIX HUNDRED SIXTEEN DOLLARS AND EIGHTY-FOUR CENTS ($102 ,616.84), which includes an Artists ' Fee of up to TWENTY-THREE THOUSAND, SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($23,750.00), inclusive of incidental costs and all travel expenses; also inclusive of an amount up to SIXTY-FIVE THOUSAND DOLLARS AND NO CENTS ($65,000.00) for structural and civil engineering services, materials testing, geotechnical report, consulting fees, and con struction document preparation ; and also inclusive ofa contingency of THIRTEEN THOUSAND, EIGHT HUNDRED SIXTY- SIX DOLLARS AND EIGHTY-FOUR CENTS ($13,866.84), which shall constitute full compensation for all services and materials to be performed and furnished by the Artists under this Agreement. Artists and City may amend this Agreement to allow for additional payment if additional services are required . All parties agree that payments under this Agreement shall be made to Etty !sh-Horow itz, who shall be responsible for remitting to Kevin Sloan Studio LLC its percentage of the Artist Fee (50% of$23 ,750.00) and forall payments to Artists ' subcontractors. City shall not be liable to Kevin Sloan Studio LLC, or Artists ' consultants , for any payments under thjs Agreement. The Artist Fee shall be paid to Etty !sh-Horowitz in the following installments , expressed as portions of the Artist Fee, each installment to represent full and final , non-refundable payment for all services and materials provided prior to the due date thereof: a. FIVE THOUSAND DOLLARS AND ZE RO CENTS ($5 ,000.00) upon execution of the Agreement. b. TEN THOUSAND DOLLARS AND ZERO CENTS ($10,000.00) within thirty days after Artists submit 60% Construction Documents to TxDOT for review. c. THREE THOUSAND DOLLARS AND ZERO CENTS ($3 ,000.00) within thirty day s after Artists submit 90% Construction Documents to TxDOT for review. d . FIVE THOUSAND, SEVEN HUNDRED FIFTY DOLLARS AND ZERO CENTS ($5 ,750.00) within thirty days after TxDOT has approved the 100% Construction Documents. An allowance for engineering, consulting, and construction document fees in an amount up to SIXTY-FIVE THOUSAND DOLLARS AND ZERO CENTS ($65,000.00) shall be paid to Artists for engineering and First Amendment to City Secretary Contract No . 52588 6 of 10 consulting fees , construction document fees, and a conservator 's consultation in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artists with the original invoice (a retainer fee of up to 50% is allowed) for each subcontractor for such services attached. Artists ' consultants shall also be paid by Artists from this allowance. City may pay Artists contingency funds in an amount up to THIRTEEN THOUSAND, EIGHT HUNDRED SIXTY-SIX DOLLARS AND EIGHTY-FOUR CENTS ($13,866.84) for costs associated with the Work that are incurred by the Artists due to unforeseen s ite conditions or changes in consulting, engineering, or construction document costs. Such payment will be made upon both (i) receipt of supporting documentation by the Contract Manager from the Artist, and (ii) approval by the Contract Manager of the additional costs. Because Artists took a reduced fee during earlier design phase s of the project, unused contingency funds up to an amount of $13 ,866.84 shall be paid to the Artists upon completion of the project and upon submittal of an invoice for same to Contract Manager. III . Funds previously paid to Artists prior to this First Amendment shall app ly toward the total compensation paid to the Artist under the Agreement. IV. Article 11 , "Miscellaneous," is hereby amended by adding the following two sections to the end of that Article following Section 1.19 ., "Israel ," and immediately preceding Article 12, "Notices": 11.20. Energy Companies . If either Artist is a company with ten or more full -tim e employees and this Agreement is for $100 ,000 or more , Artists acknowledge that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Section 809.001 of the Texas Government Code. Therefore, to the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Artists certify that Artists' signatures provide written verification to the City that Artists: (1) do not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 11 .21. Firearms and Ammunitions Industries. First Amendment to City Secretary Contract No . 52588 7 of 10 If either Artist is a company with ten or more full-time employees and thi s Agreement is for $100 ,000 or more , Artists acknowledge that in accordance with Chapter 2274 of the Texas Government Code , the City is prohibited from entering into a contract for goods or services unless the contract contains a written verification from the company that it: (1) doe s not have a practice, policy, guidance , or directive that discriminate s against a firearm entity or firearm trade association; and (2) will not di scriminate during the term of the contract against a firearm entity or firearm trade a ssociation. The terms "discriminate," "firearm entity," and "firearm trade a ss ociation" have the meanings ascribed to those terms by Chapter 2274 of the Texas Government Code. Therefore , to the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Artists certify that Artists' signatures provide written verification to the City that Artists: (1) do not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. V. All terms and conditions of the Agreement that are not expressly amended pursuant to this First Amendment shall remain in full force and effect. First Amendment to City Secretary Contract No . 52588 8 of 10 IN wnNESS HERF.OF, the Parties IIM:srelo have~ this Fm: Amemdmem to be efiective .as of the daledtis ~ is executed by the Ciffy. CITYOllJlORT WORTH ARTISTS Horowilz Fernando, Costa Assiffmt City M3111agW 01 /23 /2.024 ~ _µ1 ~ a~- CONTRACTCOMPUANCE MANAGER Dime Sloan, Owner Kevin Slam Smdio, LLC By sigomg, I adkoowiedgn tlbm I am tlbe per.son responsnbk for the muni1mug and admuru.1:ratioi of1his oomiract, mclwiing emmiog-aWI pe:rfonliwroemtd rqqting~ Name: Anne AHm TIiie: Public Art PrQject Managa- APPROVFD AS TO FORM AND LEGAUIY: TreyQBalls Assisbnt City Attorney A TIES1E> BY: FilstAnmmtlell to CK) Secaaat Con1sm: NII. 52588 Of FYCBAl RECORD CITV SE C Em RY FT. WO RTH, TX Contract Authorization: Form 1295s: 2019 453448 ; 2019 453939; and 2024-1109153 M&C: C-29074 Date : March 19, 2019 First Amendment to City Secretary Contract No . 52588 10 of 10 FORT WORTH Routing and Transmittal Slip ___ FWLab -FWPA ______ Department TITLE: FIRST AMENDMENT, ETTY !SH-HOROWITZ AND KEVIN SLOAN STUDIO LLC., FINAL DESIGN CONTRACT #52588 CPN CSO# DOC# DATE: TO: INITIALS DATE OUT 1. Trey Qualls TQ 2/20/2024 2 . Fernando Costa <-j=c: 2/2.0/2.ou 3 . Janette Goodall 4 . 5. 6 . DOCUMENTS FOR CITY MANAGER'S SIGNTURE: All documents rece ived from any and all City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip , David will review and take the next steps. NEEDS TO BE NOTARIZED: □ Yes X No RUSH: D Yes X No ROUTING TO CSO: Action Required: SAME DAY: D Yes X Na Yes D No NEXT DAY: 0 Yes O No □ As Requested □ Attach Signature, Initial and Notary Tabs □ For Your Information X Signature/Routing and or Recording □ Comment □ File Return to: Please call Anne Allen at 817-298-3028 or at 817-637-7388 (aallen@artsfortworth.org) for notification when executed . Thank you.