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HomeMy WebLinkAboutContract 36146 (2) ':ITY SEC,9ETARY ©14TRiACT N . Ll�c :DESIGN TEAM AGREEMENT BETWEEN THE CITY OF FORT WORTH AND KEN BERNSTEIN ART STUDIO, INC. FOR DESIGN OF PUBLIC ART/DESIGN ENHANCEMENTS FOR THE EAST FIRST STREET PROJECT This Agreement, entered into this day of , 2007, by and between the CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (the "City"), acting by and through Libby Watson, its duly authorized Assistant City Manager and KEN BERNSTEIN ART STUDIO, INC. (the "Artist"). The City has designated the ARTS COUNCIL OF FORT WORTH &TARRANT COUNTY, Inc., (the "Contract Manager") to manage this AGREEMENT on its behalf. The Contract Manager shall act through Jennifer Lovvorn, its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order 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; and, WHEREAS, allocated in the 2004 Capital Improvement Program ("CIP"), are funds for artist fees and costs related to the production of artwork for the East First Street Project; and, WHEREAS, the Fort Worth Art Commission has recommended that an Artist participate with the City, Texas Department of Transportation(TxDOT) and their project Consultant (the "Design Team") to develop public art and design enhancement recommendations (the "Work") for the East First Street Project, on East First Street between Beach Street and Oakland Avenue, illustration attached hereto as Exhibit "A" (the "Site"); and, 1 L J�`:�fl➢ � S:o WHEREAS, the Artist was selected by the City through a selection process conducted by the Contract Manager with oversight of the Fort Worth Art Commission to design a work of public art for the Site based upon qualifications attached hereto as Exhibit`B" (the "Artist's Qualifications"); and, WHEREAS, the City and the Artist wish to set out the terms and conditions for the Artist's participation in the East First Street Project; NOW, THEREFORE, the City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 SCOPE OF SERVICES AND DELIVERABLES 1.1 Scope of Services. a. Artist shall perform all services and furnish all supplies, materials, and equipment as necessary to develop a final design ("Final Design") for the Site, subject to aesthetic and structural design review and approval by the City. b. Artist shall actively participate and cooperate with the Design Team, and City and Arts Council staff in creating the Work. The Contract Manager's Public Art Project Manager, and one other designated design team member shall constitute the.Artist's primary and secondary contact person respectively. c. Artist shall develop conceptual designs for each specific public art opportunity at the East First Street Project site, including but not limited to: i. First Street Bridge integral design enhancements over the Trinity River; ii. Roadway design treatments; and iii. Sculptural or design treatments at the entrance to Gateway Park. d. Artist shall meet with and seek input from the Project Stakeholder Committee. e. Artist shall present the Final Design to the Project Stakeholder Committee, City officials and the Fort Worth Art Commission for review and approval. 2 1.2 Deliverables. Within four (4) months after the execution of this Agreement, Artist shall provide all services, supplies, materials, and equipment necessary for the completion of the deliverables as set forth in this Section 1.2 a — c. (collectively, the "Final Design Deliverables"), to the City for approval. The Final Design Deliverables shall consist of the following: a. At least two final design presentation boards of at least 20" x 30" which may include diagrams on existing photographs, maps, and/or drawings for the proposed design enhancements and treatments. Presentation illustrations shall also be supplied in a high resolution digital format. Artist may also be required to supply material, fabrication samples and/or prototype models, for all elements of the Work that show its size and placement in relation to the Site, as appropriate. b. Preliminary written narrative describing: (1) recommended public art locations, approaches, concepts, and media; (2) potential budget allocations for recommended public art locations; and, (3) a written proposal for Artist's involvement in future concept implementation. C. Preliminary budget for each element of the Work with written estimates attached for supplies and services provided by others. 1.3. Implementation Budget Total. Artist shall develop a Final Design that is financially feasible relative to the budget for implementation. It is understood that the budget for implementation of the Final Design shall not exceed ONE HUNDRED EIGHTY-NINE THOUSAND DOLLARS AND NO CENTS ($189,000), reflecting total costs and inclusive of fabrication, delivery, installation, insurance, Artist's fees and travel expenses, and all associated costs for the Work, as well as educational programming and a 10% project contingency. Artist shall provide a detailed budget, on the budget form hereto as Exhibit"C", for implementation of the Work through an Artwork Commission Contract with the City 1.4. Design Review. a. The City may require the 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 Final Design Site for reasons of safety and security. 3 b. The City may also request revisions to the Final Design for other practical, non-aesthetic, reasons. C. Within thirty (30) days of its receipt of the Artist's submission of the Final Design, the City shall notify the Artist of its approval, or disapproval, of such submission and of each revision made in the design. Revisions made pursuant to this Section 1.3, upon approval by the City, shall become part of the Final Design. d. If the Final Design or any required revision is disapproved by the City, the Artist shall have a reasonable amount of time to resubmit the Final Design in conformance with the City's requirement. e. If resubmitted materials are not approved by the City this Agreement may be terminated at the City's option, with payment for work performed per the payment schedule in Section 2.1. f. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is accepted by the City, negotiations for fabrication, delivery and installation of the Work shall commence, which shall become part of the deliverables under the subsequent Artwork Commission Contract. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fixed Fee. The City shall pay the Artist an amount not to exceed TWENTY ONE THOUSAND DOLLARS AND NO CENTS ($21,000.00), which includes a fixed Artist's fee of NINETEEN THOUSAND THREE HUNDRED FIFTY DOLLARS AND NO CENTS ($19,350). (the "Artist's Fee") and a travel allowance of an amount not to exceed ONE THOUSAND SIX HUNDRED FIFTY DOLLARS AND NO CENTS ($1,650) to cover up to three trips to Fort Worth for meetings and/or site visits, which shall constitute full compensation for all services performed and materials furnished by the Artist under this Agreement. The fee shall be paid in the following installments, expressed as percentages (or portions) of such fixed fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: 4 a. Thirty-five percent (35%) upon execution of this Agreement, recognizing the Artist has already invested time and expense in preliminary design coordination with the City. b. Fifty percent (50%) within thirty (30) days after the Artist submits the Final Design Deliverables as outlined in Sections l.l.c.i, 1.1.c.ii and 1.1.c.iii and Section 1.2 a—c. C. Fifteen percent (15%) within thirty (30) days after the City notifies ttie Artist of its approval of detailed designs and other items required under Section 1.2.a—c. 2.2. Sales Taxes. The City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. The City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate," in substantially the same form as that attached hereto and incorporated herein as Exhibit "D," and will assist Artist in ensuring that appropriate measures are taken so that no sales taxes are charged on services and materials furnished by Artist's vendors. 2.3. 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 the City, cost of all travel, insurance and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 TERM 3.1. Term. This Agreement shall be in effect from the date stated in the first paragraph of this Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City, whichever is later. 5 3.2. Time Extensions; Force Majeure. The City or the Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 4 WARRANTIES 4.1 Warranties of Title. The Artist represents and warrants that: (a) the Work shall be the original product of the Artist's sole creative efforts. (b) the Work is and will be unique and original, and does not infringe upon any copyright.or the rights of any person; (c) the Work (or duplicate thereof)has not been accepted for sale elsewhere; (d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Work or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; (e) the Work is free and clear of any liens from any source whatsoever; (f) the Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; (g) all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence; (h) the Artist shall assume the defense of, and INDEMNIFY AND HOLD HARMLESS, THE CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, ACTIONS OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING REASONABLE ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF THE CIT'Y'S USE OR POSSESSION OF THE WORK BY REASON OF 6 AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP,AUTHORSHIP,OR ORIGINALITY. ARTICLE 5 INDEMNITY 5.1 Indemnity. (a) ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ARTIST'S EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN. ARTIST LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN. (b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM 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. d) This indemnification shall survive the termination or expiration of this Agreement. This indemnification and the indemnification in Section 4.1(h) are subject to the conditions that Artist is notified of the claim in a timely manner and provided with all reasonable assistance to defend against the claim 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. 7 ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. Title. Title to the Work, including all documents and/or drawings which constitute or are components of the preliminary proposal and the Final Design, shall pass to City upon Final Acceptance and payment for the Work. These documents 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, except as provided below. 6.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.3 Reproduction Rights. (a) In view of the intention that the final Work be unique, Artist shall not make any additional exact duplicate reproductions of the final Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent the Artist from creating future artworks in the Artist's manner and style of artistic expression. (b) By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Work for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of 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. 8 (c) All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." (d) 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 shall, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in the Artist's name. (f) City is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 7 ARTIST'S RIGHTS 7.1. Identification. The Contract Manager shall include credit to the Artist on the Fort Worth Public Art website (www.fwpublicart.org and a permanent plaque at the site. 7.2. 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, the City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. 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, the Artist may be given written notice and 90 days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, the City shall have the right to remove and dispose of the Work by any means, including its destruction. C. The City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. 9 d. In the event the Work is substantially damaged or altered, the City shall no longer represent the Work as that of the Artist if the Artist gives written notice to the City that it is the position of the Artist to deny authorship on the grounds stated in this paragraph. e. The City shall at all times have the right to move the Work, or remove it from public display. The City shall also have the right to sell or trade the Work. 7.3. Permanent Record. The City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 7.4. Artist's Address. The Artist shall notify the City of changes in the address set forth in Article 13. The failure to do so, if such failure prevents the City from locating the Artist, shall be deemed a waiver by the Artist of the right subsequently to enforce these provisions of Article 7 that require the express approval of the Artist. Notwithstanding this provision, the City shall make every reasonable effort to locate the Artist when matters arise relating to the Artist's rights. 7.5. Additional Rights and Remedies. Nothing contained in this Article 7 shall be construed as a limitation on such other rights and remedies available to the Artist under the law, which may now or in the future be applicable. ARTICLE 8 ARTIST AS AN INDEPENDENT CONTRACTOR Artist shall perfonn 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 10 between City and Artist. ARTICLE 9 SUBCONTRACTING The Artist may subcontract portions of the services to be provided hereunder at the 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 the Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor. ARTICLE 10 TERMINATION 10.1. Gratuities. The City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by the Artist or any agent or representative to any City official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Section 10.1, the City shall be entitled, in addition to any other rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred by the Artist in providing such gratuities. 10.2. Termination for Cause. If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and proper manner, or otherwise violate, any of the covenants, agreements or stipulations material to this Agreement, the other party shall thereupon have the right to terminate this Agreement by giving written notice to the defaulting party of the intent to terminate specifying the grounds for termination. The defaulting party shall have thirty (30) days after receipt of the notice to cure the default. If it is not cured, then this Agreement shall terminate. Termination of this Agreement under this provision shall not relieve the party 11 in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 10.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination. The notice shall specify whether the termination is for convenience or cause. b. If the termination is for the convenience of the City, the Artist shall have the right to an equitable adjustment in the fee (without allowance for anticipated profit on unperformed services), in which event the 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 the City by the Artist under this Agreement prior to the date of termination, provided that no right to fabricate or execute the Work shall pass to the City. C. If termination is for the convenience of the Artist, the Artist shall remit to the City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to termination. 10.4. Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, the City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All finished and unfinished drawings, sketches, photographs, models and work shall become property of the City. b. Should Artist's design have been approved or if the Artist's work has progressed to the point of fabrication of the Work, in the event of termination under this Section 10.4, the 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. 12 ARTICLE I I EQUAL OPPORTUNITY a. The Artist shall not discriminate against any employee or applicant for employment because of disability, familial status, race, color, religion, sex, sexual orientation, or national origin. The Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their disability, familial status, race, color, religion, sex, sexual orientation and national origin. 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 apprenticeship. b. The Artist shall state in all solicitation or advertisements for employment placed by or on behalf of the Artist that all qualified applicants shall receive consideration for employment without regard to disability, familial status, race, color, religion, sex, sexual orientation, or national origin. C. The 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 the Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and the Artist may be debarred from further agreements with the City of Fort Worth. ARTICLE 12 MISCELLANEOUS 12.1. Cow liance. Th Artist shall be required to comply with Federal, State and City statutes, ordinances and regulations application to the performance of the Artist services under this Agreement. 12.2 Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 13 12.3. 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. 12.4. 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. 12.5. Governing Taw and Venue. This Agreement, regardless of where executed or performed, shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any litigation arising from this Agreement shall be in Tarrant County, Texas. 12.6. Successors and Assig_ns_. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artist and their respective successors and assigns. 12.7. 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. 12.8. 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. 12.9. 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 12.10. Fiscal Funding Out. If for any reason at any time during any term of this Agreement the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by the City to the Artist of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 12.11. Ca tip ons. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 12.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 12.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of the Artist, except that this limitation shall not affect any payments due to Artist at the time of Artist's death or incapacity. 12.14. Right to Audit. The Artist agrees that the City will have the right to audit the financial and business records of the 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 on 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 cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement. 12.15. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. 15 ARTICLE 13 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: Libby Watson, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Arts Council of Fort Worth &Tarrant County 1300 Gendy Street Fort Worth, TX 76107 2. ARTIST Ken Bernstein Art Studio, Inc. 369 Arapahoe Avenue Boulder, CO 80302 [SIGNATURES APPEAR ON FOLLOWING PAGE.] 16 IN WITNESS HEREOF, the parties hereto have executed this Agreement on this y and year first written above. 7 j CITY/Of FORT WORTH Libby Watson Assistant City Manager Date: rl' / "- 'U� ARTIST KEN B ART TUDIO, INC. I Ken Bernstein, President Date: 1 I C -6-7 APPROVED AS TO FORM: ATTESTED BY: enn Guzman d Marty HendriAb Assistant ity Attorney City Secretary Date: 1 n Date: _ Contract Authorization: M&C #C-21283 Date:1-31-2006 17 ul G�, c _".................. . [. , . «5�wn � — •\ _ -��. --- — . \��` - �� Exhibit B: Artist"s Qualifications Ken Bernstein Art Studio, Inc. 369 Arapahoe Avenue Boulder,CO 80102 303-447-8606 www.kenbemsteinartstudio.com Resume Project: Colorful Colorado, Painted Mural Client: El Paso County, CO Location: Colorado Springs, CO Medium: Canvas, acrylic paint Size: 14'x 71' Cost: $72,500 Date: 2006 Design Team: El Paso County Justice Center Art Committee and Ken Bernstein Art Studio,Inc. Description: Pictorial history of Colorado represented on the clothing of five children of different cultures with a backdrop of the Rocky Mountains. Project: Vortex Street, Integrated Art and Design Client: City of Boulder Location: Boulder, CO Medium: Tile, Concrete, Steel , mosaics, paint Size: Two Bus Stop Plaza areas Cost: $204,000 Date: 2006 Design Team:The City Transportation Department,Carter-Burgess,and Ken Bernstein Art Studio,Inc. Description: Aesthetic design and art treatments for bus plaza's on 28t°St.Mosaics,steel sculpture, custom tile,railings,sidewalk impressions, and poetry identify the spaces. Project:Strata Variations Client: City of Boulder Location: Boulder, CO Medium: Concrete, Stone, and Colored Staining Size: Two Terraces (500' x 10'each) Cost: $400,000 Date: 2005 Design Team: The City Transportation Department,Carter-Burgess,Ken Bernstein Art Studio Inc., George Peters,and Melanie Walker Description: Two terraced walls with stone facing,landscaping and plantings designed by the artists. Project:Diversity Supports the World, Tile and Painted Murals Client: Boulder Public Library Location: Boulder, CO Medium: Ceramic Tile & Painted Concrete Date: 2004 Size: Tile Murals =20 columns (42'sgft each). Painted Murals =700' sgft Design Team: Elementary,middle,high school,and college students,and art teachers.This project funded in part by:Boulder Arts Commission,Boulder Library Foundation,The Science and Cultural Facilities District,CCA,and Boulder Youth Opportunities Services Description: Each column,which supports the library bridge,has a tile mural depicting an aspect of cultural and/or biodiversity.Each row of columns will have a different color.The painted mural is a procession of dancers from around the world dancing on world history. Cost: $64,000 19 Ken Bernstein Art Studio Resume Page 2 Project: Cafe Society, Mural Client: SullivanHayes Co., Denver, CO Location: Englewood, CO Medium: Acrylic airbrush on stucco Size: 8'x 30' Cost: $35,000 Date: 2003 Design Team: Ken Bernstein Art Studio Inc.,and President of SullivanHayes Companies Description: Outside wall mural. Scene of people sitting at tables on an outdoor restaurant patio with mountains and an Italian village in the background. Project: Colorado Wild, Mural Client: Philip S. Miller Library Location: Castle Rock, CO Medium: Acrylic airbrush on canvas Size: 9'x 18' Cost: $16,200 Date: 2001 Description: Colorado Wild depicts a variety of Colorado wildlife in natural setting. Painted in a children's illustration style one can see into animal burrows and underwater to see animals in their homes. Project: Colorado Industrial History Murals, and Main Lobby Finish Client: SullivanHayes Co. Denver, CO Location: 2401 E. 2nd, Denver, CO Medium: Murals: oil on canvas Size: 4 murals 5.5' x Teach Cost: $34,000 Date: 1999 Description: Four(5.5'x T)paintings depicting milestones in the industrial development of Colorado. Located in the main lobby. Project: Lineage, Discovery Plaza Centerpiece Client: Colorado State Parks Location: Chatfield State Park, CO Medium: Concrete, stone, and bronze Size: 10' diameter Cost: $23,000 Date: 1998 Design Team: The design team included Alison Promin,Paradigm Affiliates,the State Parks Director, Officials from Lockhead Martin,and the board of the South Suburban Parks Foundation(two of the funding organizations), and myself. Description: A 10'diameter floor mural using bas relief, color stained and impressed images in concrete and stone representing native Colorado flora and fauna as well as our human presence. A quote by Astronaut,Jim Irwin on planet earth is sandblasted around the perimeter. Project: Untitled, 18 Painted Murals and 16 Tile Mosaics Client: Westminster City Center Marketplace Location: Westminster, CO Medium: Acrylic on stucco/ceramic tile Date: 1997 Size:18 murals (7.5'x12' ea.), 16 the (7.5'x10' ea.) Cost: $176,000 Design Team: The Developer,the Architect, and Ken Bernstein An Studio,Inc. Description: Sixteen exterior tile niches,ten are fountains,plus eighteen painted mural niches create backdrops for seating areas and visual surprises while walking the perimeter of the Tuscan inspired architecture of this shopping center. Exhibit B: Artist's Qualifications continued 20 Ken Bernstein Art Studio Resume Page 3 Project: Untitled, St. Peter's Church Restoration Client: Catholic Archdiocese of Colorado Location: St. Peter's Church, Greeley, CO Medium: Acrylic Size: 9,000 sqft Cost: $36,000 Date:1995/1997 Design Team: Ken Bernstein Art Studio Inc.Keith Ames Architect and Father Greg Ames Description: Restoration of St.Peter's Church, a 1906 Victorian church,using paint treatments, stenciling, trompe l'oeil,restoration of original art,and a mural for the tabernacle. Project: Nautilus, Tile Mosaic Client: Design Studios West Location: Cherry Hills, CO Medium: Ceramic tile mosaic Size: 175 sgft Cost: $25,000 Date:1993 Design Team: Ken Bernstein Art Studio Inc,Paradigm Affiliates,and Koeble Development. Description: This 175sgft mosaic in the shape of a nautilus shell was made for the floor of the childrens' pool in the community recreation center of The Preserve. Project:Siberian Tiger and Meerkat Exhibits Client: Denver Zoological Gardens Location: Denver, CO Medium: Acrylic on gunite Size: 18'x 6' and 91'x 10' Costs: $28,000 Date:1990 Design Team: Ken Bernstein Art Studio Inc.,the Curator and the Director of the Zoo. Description: Living dioramas with rock landscaping and wall murals were created for the indoor Siberian Tiger and Meerrkat Exhibits.The murals are based on authentic native landscapes. Grants: •Boulder Arts Commission 1986, 1998, 1999, 2000,2001,2004 •Boulder Arts Commission Education Grant 2001, 2002,2003 • Boulder Library Foundation 1999,2001 •Colorado Council on the Arts 1995 & 1997 with Jack Collom, 2001 •Arts and Humanities Assembly of Boulder,Tessar Award 2001 with Jack Collom&Art Lande •Science and Cultural Facilities District 1998, 2001,2003 •Youth Opportunities Services of Boulder 2001 Education: Bachelor of Arts, University of Colorado at Boulder, 1975 Naropa University, 1985-86 (music study) Boulder Academy of Fine Art, 1998-99(study of human anatomy) Design Consultant: Member of the Artist Design Resource Team for the Art in Public Places Program,Loveland,CO Member of the Artist Design Resource Team for the Art in Public Places Program,Ft Collins,CO '01-03 Exhibit B: Artist's Qualifications continued 21 Exhibit C: Implementation Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt of estimate complete with per unit costs(no lump sums)for all items designated with an asterisk(*). TRAVEL(Non-local residents only) Airtare Car Rental Per Diem Expenses at$_per day Mileage at$_per mile STUDIO OVERHEAD Studio Rental,other expenses Phone and fax charges Supplies,detailed below INSURANCE Auto Liability General Liability for Artist/Subcontractors Worker's Comp./Employer's Liability Other,as applicable FABRICATION COSTS (Please attach a complete list of materials,cut-sheets and individual estimates including per unit costs with this form) Materials*(Total) Labor*(Total) TRANSPORTATION Materials to Fabrication Site* Finished Work to Installation Site* Other* SITE PREPARATION Landscaping/Irrigation* Removal* Electrical Modifications* Test Drilling* Water Work/Mechanical Devices Other* ARCHITECTS,ENGINEERS (If applicable,drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect* Structural Engineer* Electrical Engineer* Other* 22 LIGHTING Designers* Fi)dures* Bulbs* Site Preparation* Installation* INSTALLATION COSTS (Costs must include allowance for after hours installation,if applicable. Please attach a complete nst of equipment and individual estimates with this form) Labor Scaffolding* Equipment* Off-duty Police Traffic Barriers* Storage Facility Rental* City Permits Display Devices Fireproofing* Other` OTHER COSTS RELATED TO YOUR PROJECT* Photo/Video Documentation Other CONTINGENCY(50/6) ARTIST'S FEE(15%) GRAND TOTAL Please make any necessary notes here: Prepared By. _ _ -- — Date: 23 Exhibit D: Sales Tax Exemption TEXAS CERTIFICATE OF EXEMPTION I claim an exemption Eons paymem of sales and use taxes for the purchase of taxable items described below or on the attached order or invoice_ Descaiption of Items(or an attached order or invoice)To Be Purchased: All Items I claim this exemption for the following reason: Name of exempt organization: City o€Font Worth Tex&%Sales mad Use Tax Permit Nwmbet 1-75-60002&6 Project for which materials and supplies me purchased I understand that I will be liable for payment of sales tax,which may become due for failure to comply with the provisions of the state, city, and/or metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value for the period of time used I understand that it is a misdemeanor to give an exemption ccrtificate to the sellei for taxable items which I know,at the time of the purchase,will be used in a manner other than that cxpcnsed in this certificate and,upon conviction,may be fined up to S500 per offense Tax Exempt Status Due to Being a Goveramental Entity Purchaser. City of Fort Worth Street Address: 1020 ThrockmortonJ% t City,State,Zip Code: Fort Worth.Taxes 76102 Sign Here:Ate_ Date: Phone: r8171392-8325 M RASA stantPLnos This certificate does not require a mmrber to be valid. Sales and use tax"exemption numbers"or"tax exempt'numbers do not exist This certificatc should be furnished to the supplier Do not send the completed certificate to the Comptroller of Public Accounts. 24 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/31/2006 DATE: Tuesday, January 31, 2006 LOG NAME: 03BERNSTEINART REFERENCE NO.: C-21283 SUBJECT: Authorization to Enter into a Design Team Contract and, Upon Approval, a Subsequent Artwork Commission Contract with Ken Bernstein for Public Art/Design Enhancements for the East First Street Project RECOMMENDATION' It is recommended that the City Council: 1. Authorize the City Manager to enter into a Design Team Contract with Ken Bernstein to develop public art / design enhancements for the East First Street (between Beach Street and Oakland Avenue) 2004 Capital Improvement Program (CIP) arterial street project, along the northern border of Gateway Park, in an amount not to exceed $21,000, from Public Art Program funds in the 2004 CIP; 2. Authorize the City Manager to enter into an Artwork Commission Contract with Ken Bernstein for final design, fabrication and installation oversight of approved design enhancements for the East First Street project, for an amount not to exceed $189,000, from Public Art Program funds in the 2004 CIP; and 3. If necessary, authorize the City Manager to enter into an agreement with TxDOT and/or its general contractor to fabricate and install all or part of the artwork created through the Design Team Contract with Ken Bernstein, if expedient for the project; provided, however, that the Artwork Commission Contract and any agreement with TxDOT and/or its general contractor not exceed $189,000 from 2004 CIP Public Art Program funds. DISCUSSION: The Design Team Contract will enable Ken Bernstein to work collaboratively with the City of Fort Worth, the Texas Department of Transportation (TxDOT) and Civil Structures, Inc. (TxDOT's roadway design consultant) to develop public art / design enhancements as part of the East First Street project. Ken Bernstein will be responsible for developing various public art / design enhancement options, ranging from integral design enhancements for the bridge over the Trinity River, design treatments for the roadway and/or sculptural elements at the entrance to Gateway Park. Some design enhancements may be artist fabricated and installed, while others may be included in the construction documents. It is anticipated that implementation of the public art/ design enhancements will occur under an Artwork Commission Contract for$189,000, to be paid from 2004 CIP Public Art funds. BACKGROUND: On May 17, 2005, the City Council approved the Long-Range Public Art Plan for the 2004 Capital Improvement Program, in which the East First Street project was identified for 2004 CIP Public Art funding. On November 2, 2005, the Arts Council of Fort Worth and Tarrant County, Inc., which manages the City of Fort Worth Public Art Program under a contract for services, held an artist selection panel showing the work Logname: 03BERNSTEINART Page 1 of 2 of 16 artists from the Fort Worth Public Art Pre-Qualified List of Established Artists for review. The Artist Selection Panel consisted of: Selection Panel (Voting) City Council Member Becky Haskin, Council District 4 Becky Lawton, Amon Carter Museum, Fort Worth Art Commission (FWAC) Representative James Browne, Civil Structures Inc. (TxDOT Consultant) Tobi Jackson, Community Representative Caroline Rountree, Artist, FWAC appointee Advisors (Non-Voting) Tom Leuschen, Transportation/ Public Works Department Linda Young, Transportation / Public Works Department Adelaide Leavens, Streams & Valleys, Inc. Jim Johnson, Parks and Community Services Advisory Board Harold Pitchford, Parks and Community Services Department On November 14, 2005, the Fort Worth Art Commission approved the Artist Selection Panel's recommendation of Ken Bernstein as artist for the East First Street project. This project is located in COUNCIL DISTRICT 4. FISCAL INFORMATION/CERTIFICATION: The Finance 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 C200 531200 034980014530 $21,000.00 C200 541200 034980014580 $189,000,00 Submitted for City Manager's Office by: Libby Watson (6183) Originating Department Head: Bridgette Garrett (8518) Additional Information Contact: Sandy Oliver (7371) Logname: 03BERNSTEINART Page 2 of 2