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HomeMy WebLinkAboutContract 47012 (2)ve- Rts. CI I SEC r COMMACTNix SE? 1 6 2015, 7 AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK CINOFr^""""'" BETWEEN THE CITY OF FORT WORTH AND KEN BERNSTEIN ART STUDIO, INC. 9 /7 7 ephu This Agreement is entered into this day of*?J7ICt7t&flO15, 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; WHEREAS, the Parties entered into a Final Design Agreement on or about January 17, 2012 (City Secretary Contract No. 42785), to develop a final design of a work of public art for the Site; WHEREAS, on August 6, 2012, the FWAC reviewed and approved Artist's Final Design and recommended that Artist be retained to fabricate, deliver and install said Work based on Artist's Final Design of four stainless steel sculptures; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be fabricated, delivered, and installed at the Site. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the Ciof Fort Worth and Ken Bernstein Art Studio, Inc. for Commission of Public Artwork for the Site. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Cop OFFICIAL RECORD CITY SECRETARY 918pe. WORTH, TXl ,H 34 ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Artwork Design was reviewed and approved by the FWAC on August 6, 2012, and is the basis for executing this Agreement with Artist. 2.2. Scone of Services. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The exact location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist and will resemble the picture depicted in Exhibit A. c. Artist, upon request of Contract Manager, shall provide information and/or attend meetings (limited to four (4) trips with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting d. Artist shall meet and coordinate with Project Consultant and others, as necessary, to ensure proper integration of the Work into the Site. e. 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. f. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. g. Artist shall install the work on dates and times mutually agreed upon by Artist and City. h. Once one sculpture has been fabricated, Artist, in collaboration with a lighting designer, shall conduct a lighting test using the lighting design approved as part of the Final Design. If specified lighting is deemed inadequate during the lighting test, Artist, in collaboration with a lighting designer, may recommend new lighting specifications to City, including cost and technical specifications. If necessary, City may increase compensation in an amount that covers the actual costs of the new lighting specifications through the use of contingency funds. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc Execution Copy 9/8/15 3 of 34 c. It is anticipated that the Work will be installed during the construction of the bridge, in which case the Project Consultant will have obtained all necessary permits and traffic barriers. If, however, the Work is installed after construction, Artist will be responsible for obtaining and paying all necessary permits and required traffic barriers appropriate for the installation of the Work. In the event that Artist must obtain permits and traffic barriers, City will compensate Artist for the additional costs, if necessary, through the use of contingency funds d. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City, Contract Manager, and Project Consultant or other person responsible for preparing the site. City will use its best efforts to coordinate with Project Consultant to provide Artist five (5) consecutive days for completion of installation In the event that Artist's installation crew is unable to complete installation in five (5) days due to delays outside of Artist's control, City will compensate Artist for the additional costs, if necessary, through the use of contingency funds. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. The Project Consultant shall be responsible for coordination of all installation activities performed by or on behalf of Artist with the City Contractor. e. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work, including, but not limited to, equipment rentals, transportation, and labor. Artist shall not be responsible for damage to the Artwork caused by the City or Project Consultant or their respective employees or others for whose acts they are responsible. Should Artist complete the Work in advance of the Schedule Artist shall store the Work for the City until such a time as the Site is completed and the Contract Manager notifies Artist that installation may commence. If completion of the Site is delayed beyond the schedule for delivery agreed to between the parties, the City can amend this Agreement to reimburse Artist for reasonable costs necessary for continued storage. Artist will be responsible for storage of Art during installation if the Art is able to be installed pursuant to the schedule for delivery. g. Artist and City may agree by amendment to this Agreement to a reasonable extension of time and compensation to the Artist in the event there is a delay on the part of the City in performing its obligations under this Agreement or if circumstances beyond the Artist's control render timely performance impossible or unexpectedly burdensome. h. Artist, individually and through its subcontractors, including its fabricator and/or installer, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If Artist or Artist's subcontractors damage the Site, then City may inform Artist, in writing, of the damage. Artist, at his/her own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 5 of 34 period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. Regardless of the fact that the Work will be considered in the exclusive custody, control, or supervision of the City, Artist will be responsible for completing the items identified by City under the notice in this section that were required pursuant to this Agreement, and any liability related to completing such items contained in the notice shall be the responsibility of Artist. 2.8. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to completion of installation, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Artist has provided notice of completion of installation pursuant to Article 2.7.(a). ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall be in an amount not to exceed ONE HUNDRED NINETY SEVEN THOUSAND, SIXTY-THREE DOLLARS AND NO CENTS ($197,063.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, fabrication, transportation, installation, Artist s fee, insurance incidental costs, all travel expenses, and any other costs associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment 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. SEVENTY THOUSAND, THREE HUNDRED SIXTY-FIVE DOLLARS AND NO CENTS ($70,365.00) upon execution of this Agreement. b. FIFTY-FIVE THOUSAND, FOUR HUNDRED SEVENTY-FOUR DOLLARS AND NO CENTS ($55,474.00) upon Contract Manager s verification of 50% fabrication. c. TWENTY-SEVEN THOUSAND, FIVE HUNDRED NINETY-TWO DOLLARS AND NO CENTS ($27,592.00) upon Contract Manager's verification that the Work is ready to install. d. SEVENTEEN THOUSAND, FIVE HUNDRED NINETY-ONE DOLLARS AND NO CENTS ($17,591.00) upon Contract Manager's verification that the Work has been installed. e. SEVEN THOUSAND, FIVE HUNDRED NINETY-ONE DOLLARS AND NO CENTS ($7,591.00) within thirty (30) days after Final Acceptance and receipt by City of such documentation it may require concerning payment of services and supplies rendered to Artist (see Article 2). Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 7 of 34 4.3. Early Completion of Artist Services. Subject to the provisions of 2.5.f., Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedule for delivery. 4.4. Time Extensions; Force Maieure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes or orders of local or federal government render timely 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 parry's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright. a. Artist represents and warrants that: i. Artwork Design and Work shall be the original product of Artist's sole creative efforts. ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person or entity; iii. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; iv. Subject to the provisions of 7.3., Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Designs or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; v. Artwork Designs and Work are free and clear of any liens from any source whatsoever; vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement and vii. all services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 9 of 34 iii. With general routine cleaning and repair and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display. g. Manufacturer's Warranties. To the extent the Work incorporate products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. h. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist s creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. The foregoing warranties are in lieu of all other warranties, expressed or implied, that may be applicable to the Work, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. ARTICLE 6 INSURANCE AND INDEMNITY 6.1. General. Artist shall carry insurance as set out in Exhibit "F," which is attached hereto and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. General Indemnity a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, 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 Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc Execution Copy 9/8/15 11 of 34 ALL SUCH SETTLEMENT, NEGOTIATIONS, OR LAWSUIT AS NECESSARY TO PROTECT THE CITY'S INTEREST, AND CITY AGREES TO COOPERATE WITH ARTIST IN DOING SO. IN THE EVENT CITY, FOR WHATEVER REASON, ASSUMES THE RESPONSIBILITY FOR PAYMENT OF COSTS AND EXPENSES FOR ANY CLAIM OR ACTION BROUGHT AGAINST THE CITY FOR INFRINGEMENT ARISING UNDER THIS AGREEMENT, THE CITY SHALL HAVE THE SOLE RIGHT TO CONDUCT THE DEFENSE OF ANY SUCH CLAIM OR ACTION AND ALL NEGOTIATIONS FOR ITS SETTLEMENT OR COMPROMISE AND TO SETTLE OR COMPROMISE ANY SUCH CLAIM; HOWEVER, ARTIST SHALL FULLY PARTICIPATE AND COOPERATE WITH THE CITY IN DEFENSE OF SUCH CLAIM OR ACTION. CITY AGREES TO GIVE ARTIST TIMELY WRITTEN NOTICE OF ANY SUCH CLAIM OR ACTION, WITH COPIES OF ALL PAPERS CITY MAY RECEIVE RELATING THERETO. NOTWITHSTANDING THE FOREGOING, THE CITY'S ASSUMPTION OF PAYMENT OF COSTS OR EXPENSES SHALL NOT ELIMINATE ARTIST'S DUTY TO INDEMNIFY THE CITY UNDER THIS AGREEMENT. 6.5. Liahtina Requirement Exception. Notwithstanding any provision contained in this Agreement to the contrary, to the extent allowed by law, Artist shall not be liable to the City for any act, error, omission or damage of any nature or kind, whether caused by negligence, breach of this contract or otherwise, which act, error, omission or damage is caused or contributed to by any person, firm or corporation who performs all or any portion of the services or work relating to any lighting requirement contained in the scope of work or services required by this Agreement. Lighting subcontractor will be required to carry appropriate insurance naming the City as a third -party insured, including Errors and Omissions insurance. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to all documents, models, and drawings that constitute or are components of the Artwork Design and/or Work shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and drawings will be retained for archival and exhibition purposes. Artist's Artwork Design and Work and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 13 of 34 ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwnublicarLorg) and facilitate the design, purchase and installation of a permanent plaque at the site. 8 2 Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 2.5 and Exhibit "C." 8.3. Repairs and Restoration a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist s lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site. a. In the event that the Work is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work would damage either the Work or the Site, City shall have the right Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc Execution Copy 9/8/15 15 of 34 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 9 ARTIST AS AN INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same and shall be solely responsible for the acts and omissions of his/her officers agents, employees, and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 11 TERMINATION 11.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Article 11.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 11.2. Death or 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 Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 17 of 34 b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) title to the Artwork Design, Work, and all other work product under this Agreement and any prior agreement for the Work, including, but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City s exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property) and 8 (Artist's Rights) of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, or any other work product under this Agreement and any prior agreement for the Work; and (5) Artist, pursuant to this Article 11.4, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement as a public artwork. Nothing in this Article 11.4 shall affect the survival of the Articles saved under Article 14.16 of this Agreement, which shall remain in full force and effect upon termination of this Agreement. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 19 of 34 ARTICLE 14 MISCELLANEOUS 14.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 14.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 14.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 14.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 14.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas 14.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and its respective successors and permitted assigns. 14.7. No Third-Partv Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.8. 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. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 21 of 34 14.16. Survival Provision. In addition to other survival provisions included elsewhere within this Agreement, the provisions contained in Articles 5 (Warranties), 6 (Indemnity Provisions), 7 (Ownership and Intellectual Property Rights), 9 (Artist as Independent Contractor), 11.2 (Death or Incapacity of Artist), and 14.14 (Right to Audit) shall survive the termination or expiration of this Agreement. 14.17. 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 of iginal signature. 14.18. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 14.19. Extra Work. City may request additional work or services other than that expressly provided for in this Agreement. This will be considered extra work, supplemental to this Agreement, and shall not proceed without a written amendment to this Agreement and additional payment for any incurred cost. ARTICLE 15 NOTICES All notices, requests demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 23 of 34 Exhibit A: Artwork Design Artist's narrative: 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 ex- pression 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 Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 25 of 34 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist. Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location & Description of Signature Markings (or copyright): Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 27 of 34 Casting Alloy, Wax Body, Glass or Fiber Type: • Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV, graffiti, etc. Please list vendors and contact information and provide all product information) : Pedestals, Foundations & Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics) : Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 29 of 34 AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Exhibit D: Affidavit Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by season of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Day of , 20. Notary Public, State of Texas Print Name Commission Expires Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc. Execution Copy 9/8/15 31 of 34 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/oi installation of the Work, then Artist shall also require his/hei subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury and contractual liability. Insurance shall be provided on an occurrence basis and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care custody, and control and shall mclude property "in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat.). Agreement for Commission of Public Artwork with Ken Bernstein Art Studio, Inc Execution Copy 9/8/15 33 of 34 M&C Review Page 1 of 2 OUNCIL COUNCIL ACTION: Approved on 7/21/2015 DATE' 7/21/2015 REFERENCE **C-27364 LOG NAME NO.: CODE' C TYPE: CONSENT PUBLIC HEARING: SUBJECT: Authorize Execution of an Artwork Commission Agreement with Ken Bernstein Art Studio, Inc. in an Amount Up to $213,800.00 for Fabrication, Delivery and Installation of a Set of Four Sculptures to be Installed on the East First Street Bridge Over the West Fork of the Trinity River, Just East of Gateway Park Road (COUNCIL DISTRICT 4) Official site of the City of Fort Worth, Texas FORT WORTH 20EAST FIRST STREET ART COMMISSION AGREEMENT - KEN BERNSTEIN NO RECOMMENDATION: It is recommended that the City Council authorize the execution of an Artwork Commission Agreement with Ken Bernstein Art Studio, Inc. in an amount up to $213,800.00 for fabrication, delivery, and installation of a set of four sculptures on the East First Street Bridge over the West Fork of the Trinity River, just east of Gateway Park Road. DISCUSSION: Under this Artwork Commission Agreement, artist Ken Bernstein (Ken Bernstein Art Studio, Inc.) will fabricate, deliver and install a set of four abstract stainless steel sculptures titled Trinity. The Agreement includes contingency funds for additional Texas Department of Transportation installation requirements or City inspector requirements due to unanticipated site conditions. The sculptures will be attached to the ends of the concrete railing on the East First Street Bridge LED lights that gradually shift from blue to green will provide added visual interest at night. On January 31, 2006, City Council approved a Design Team Contract in the amount of $21,000.00 (M& C C-21283). A Final Design Agreement in the amount of $22,762.00 was executed administratively. The artist completed a Design Team Agreement, followed by the Final Design Agreement. Subsequently, construction for the bridge was delayed by Texas Department of Transportation until March of 2015. Funding in the amount of $213,800 00 from the 2% set aside for public art in the 2004 Bond Program will address inflation costs of fabrication, delivery and installation costs since 2006 and provide funds for lighting the sculptures as requested by community stakeholders and approved by the Fort Worth Art Commission on August 6, 2012. Funding for this project was recommended in the Long -Range Public Art Plan for the 2004 Bond Program adopted by City Council on May 17, 2005 (M& C G 14801). This project was included in the Fort Worth Public Art Program's Fiscal Year 2015 Annual Work Plan and Budget, adopted by the City Council on October 14, 2014 (M& C C-27031) as part of the City's agreement with the Arts Council of Fort Worth & Tarrant County, Inc., for administration of the Fort Worth Public Art Program. Fort Worth Art Commission Action: On August 6, 2012, the Fort Worth Art Commission approved the Final Design including the addition of lighting as requested by community stakeholders. On February 16 2015, the Fort Worth Art Commission recommended a budget increase of $24,800.00 to address cost increases due to inflation since 2006 and for lighting. http://apps.cfwnet.org/council packet/mc review.asp?ID=21235&councildate=7/21/2015 9/18/2015 M&C Review Page 2 of 2 Project costs and funding sources are as follows: Contract Amount Design Team Agreement $ 21, 000.00 Final Design Agreement $ 22,762 00 Artwork Commission $ 213,800.00 Agreement TOTAL PROJECT COST $ 257,562.00 FUNDING SOURCES 2004 Capital Improvements Program (2% for Public Art) Total Council Action 2005 (M&G C-21283) Administrative This M&C AMOUNT $257,562.00 $257,562.00 M/WBE OFFICE' The City's overall MBE goal for the Fort Worth Public Art program is 25% of the total capital project dollars expended on public art annually. This project is located in COUNCIL DISTRICT 4. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds have been appropriated for the East 1st Street Bridge public art project from the 2% for art from the 2004 Capital Improvements Program. Fund 2004 Street Improvements Fund (2% for Public Art) Appropriations Encumbrances balance & Expenditures $257,562.00 $43,762.00 $213,800.00 TO Fund/Account/Centers Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS East 1st Street MC Attachment Mav2015.pdf FROM Fund/Account/Centers C200 541200 204980014580 $2131800.00 Fernando Costa (6122) Douglas W. Wiersig (7801) Martha Peters (298-3025) http://apps.cfwnet.org/council_packet/mc review.asp?ID=2123 5 &councildate 7/21/2015 9/18/2015