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HomeMy WebLinkAboutContract 47012 k. T" AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK BETWEEN THE CITY OF FORT WORTH AND KEN BERNSTEIN ART STUDIO, INC. This Agreement is entered into this day of� X`x2015, 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 City,of Fort Worth and Ken Bernstein Art Studio,Inc. for Commission of Public Artwork for the Site. Qr,) l^MAL („iE C� Q(fl), 'um woprr'r� e�Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Cop MAP, t' 1 o rt 34 1.2. Artist—Means and includes Ken Bernstein Art Studio,Inc.. 1.3. Artwork Design—Means the final, City-approved design of the Work for the Site created in connection with the Final Design Contract on or about January 17, 2012(City Secretary Contract No. 42785) and includes, but is not limited to, all final City-approved maquettes, drawings, sketches, prototypes, models and the like that were created by Artist in connection with the Final Design Contract. The design and description are attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County,Inc., and/or its officers, directors, or employees. 1.5. City—Means and includes the City of Fort Worth,Texas. 1.7. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.9. Final Design Contract—Means and includes Fort Worth City Secretary Contract Number 42785 (Agreement for Final Design of Public Art Work for the East First Street Bridge Between the City of Fort Worth and Ken Bernstein Art Studio,Inc.). 1.10. Parties—Means and includes City and Artist. 1.11. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.12. Project Consultant — Means and includes the design firm/professional(s) hired by City to design the Site. 1.13. Project - Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.14. Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including,but not limited to,the submission of progress reports. 1.15. Site—Means and includes the East First Street Bridge, which is located on East First Street between Beach Street and Oakland Avenue in Fort Worth, Texas, which is more particularly described in Exhibit`B," attached hereto and incorporated herein by reference for all purposes. 1.16. Work— Means and includes the finished object(s) of art and design that are the subject of this Agreement, or any intermediary stage of completion of such work. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 2 of 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. Scope of Services. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The 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 2.4. Execution of Work. a. Artist shall furnish the Schedule to the Contract Manager within fifteen (15) business days after receipt of the final construction schedule, which will be provided to Artist by Contract Manager. After written approval of the Schedule by City, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager,provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4 within thirty (30)calendar days after receipt of the written request. C. Artist shall complete the fabrication of the Work in accordance with the Artwork Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Design, then the Contract Manager shall, in light of the Artwork Design, determine whether a significant change requires City approval. If the Contract Manager determines that the significant change requires City approval, then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 2.5. Delivery and Installation. a. Artist shall notify City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. b. Construction of the Site, including, but not limited to, the design, engineering, and labor associated with preparing the Site to receive the Work shall be performed by others, and shall be done in accordance with the specifications jointly agreed to by Artist, the Project Consultant, and City. Artist is responsible for ensuring that these specifications relating to the installation of the Artwork are provided in accordance with the schedule provided by City so that City can incorporate them into the construction documents and construction contract. Artist will be provided at a minimum with a staging area for delivery of the Work in preparation of and during installation. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 4 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. f. 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 fails to repair the damages to the satisfaction of City within thirty (30) days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. i. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. 2.6. Post-installation. a. Within thirty (30) days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least seven (7) high-resolution digital images (.tiff format) and seven (7) low-resolution digital images (.jpeg format) showing the Work fi•om at least two vantage points, including detail shots, with at least three (3) of these images showing the Work installed, as selected by Contract Manager,to document the Work after the Work is installed. b. Artist shall make his/her best effort to be available at such time(s) as may be set by the City to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. C. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work, such efforts and/or press releases must be approved, in advance, by City. 2.7. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. Once Artist has notified the City pursuant to this section, Work will be considered in the exclusive custody, control,or supervision of the City. b. City shall notify Artist in writing of its Final Acceptance of the Work. C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of Final Acceptance; or (2) the 35th day after Artist has sent the written notice to City required under this Section 2.7, unless City, upon receipt of such notice and prior to the expiration of the 35-day Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 6 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 ($70,3 65.00)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 f. City may pay Artist up to ELEVEN THOUSAND, SIX HUNDRED FIFTY DOLLARS AND NO CENTS ($11,650.00) for engineering and professional lighting consultant fees in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice for such services attached thereto. g. City may pay Artist up to SIX THOUSAND, EIGHT HUNDRED DOLLARS AND NO CENTS ($6,800.00) for lighting baffles if such baffles are deemed necessary during lighting test. Such payment shall be made upon receipt of an invoice from Artist with the original invoice for such materials and fabrication services attached thereto. h. Notwithstanding the foregoing, the total compensation does not include payment for any unforeseen changes in fabrication or installation costs. City shall pay to the Artist contingency funds in an amount up to FIFTEEN THOUSAND, SEVEN HUNDRED THIRTY-SIX DOLLARS AND NO CENTS ($15,736.00) for costs associated with the Work that are incurred by the Artist upon (i) receipt of supporting documentation by the Contract Manager from the Artist and(ii)approval by the Contract Manager of the additional costs. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"E"for use by Artist in the fulfillment of this Agreement. 3.4. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 4 TERM AND TIME OF PERFORMANCE 4.1. Term. This Agreement shall be in effect from the Effective Date, and,unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Duration. The services to be required of Artist set forth in Article 2 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 8 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 Majeure. 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 party's reasonable control shall not be considered a breach of this Agreement; provided, however,that such obligations shall be suspended only for the duration of such conditions. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright. 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 5.2. Warranties of Quality and Condition. a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of"inherent vice," or qualities that cause or accelerate deterioration of the Work) for one(1)year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. C. If, within one (1)year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) days after receipt of the written notice, at no expense to City. d. If, within one(1)year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for expenses incurred by City as a result of the breach. However, if Artist disclosed the risk of a potential defect in quality or condition based on the design of the Artwork in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 5.2. e. If, after one (1) year from Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty-day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will be sufficient to maintain the Work within an acceptable standard of public display; ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display; and Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 10 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. i. 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 PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO,DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF NEGLIGENT ACTS, RESULTING IN PROPERTY DAMAGE OR BODLIY INJURY, OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. 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. Artist shall also require subcontracted engineers to carry appropriate errors or omissions insurance for the benefit of the City when appropriate. 6.4. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third-party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. SO LONG AS ARTIST BEARS THE COST AND EXPENSE OF PAYMENT FOR CLAIMS OR ACTIONS AGAINST THE CITY PURSUANT TO THIS SECTION 6.4, ARTIST SHALL HAVE THE 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, CITY SHALL HAVE THE RIGHT TO FULLY PARTICIPATE IN ANY AND Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 12 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. Lighting 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 7.2. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City a non-exclusive, perpetual, royalty free, and irrevocable license to graphically depict and publicly display the Artwork Design and Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Designs or the Work intended to promote or benefit City, its public services or its public purposes, such as education, public relations, advertising, brochures, and similar materials or activities, regardless of whether or not a fee is charged or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Work when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. C. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "©date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 14 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.flvpublicart.org) 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 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. City may give Artist written notice of its intent to take such action under this paragraph. b. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist may be given written notice and ninety (90) days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. C. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. d. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times,have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. If the City decides to sell or trade the Work, Artist will retain a right of first refusal to purchase the Work for five (5) years from the date of Final Acceptance and must exercise this right within thirty (30) days' written notice of City's intention to sell or trade the Work. The City's notice may include the terms of any bona fide offers, if applicable, received by the City for the sale of the Work. If no bona fide offers were received, Artist will have the right to purchase the Work at fair market value. The right to purchase the Work is nontransferable and is not intended to be to the benefit of Artist's heirs. This right to purchase the Work shall survive the termination of this Agreement for the intended period of five (5) years from the date of Final Acceptance and shall expire upon Artist's death or incapacitation. If City breaches this Article of the Agreement, Artist waives any claims against the City for any potential damages associated with such a breach. 8.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 16 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 to Artist or Artist's successors for all work and services performed prior to incapacity. All work product produced by Artist, including,but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. In the event of termination under this Article 11.2, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. 11.3. 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) calendar days before termination. b. If the termination is for the convenience of City, City shall pay Artist pursuant to the payment provisions in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs,models,designs and the Work up to the effective date of termination. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provision in Article 3 or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs,the Work up to the effective date of termination shall become property of City. 11.4. Termination for Cause. a. If either party to this Agreement shall fail to fulfill their material obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 11.4 in accordance with the dispute resolution process set forth in Article 12 of this Agreement. If the Parties cannot resolve the dispute(s),then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this Article 11.4 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 18 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 12 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach,or other matter in question that may arise out of,or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing,and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 11.4) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 20 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 Assi ng_s. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and its respective successors and permitted assigns. 14.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist,and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise,to any other person or entity. 14.8. 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 14.9. Contract Construction. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 14.10. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or(ii)the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14.11. 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. 14.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 14.13. Surviving;Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 14.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 14.14. 14.15. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 22 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 original 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 Martha Peters, Vice President,Public Art Arts Council of Foil Worth &Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST' Ken Bemstcill,President Ken Bernstein Art Studio,Inc. 369 Arapahoe Avenue Boulder,CO 80302 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH BEN BERNSTEYN ART STUDIO,INC. Y Feffiat-Ldo Costa Ken Bernstein Assistant City Manager President Date: d. f .. Date: //0 2(--)I� APPROVE,JDAS TO FORM AND LEG I ITY: Jessica San 1�rtg Assistant CtAttorney ()RT ATTESTED �7 % L City Se Nfar y'J. rE- C�72r,Y Contract Authorization: M&C ft C-27364 ()IFFICIAL, i"i'ECOME) DATE: July 21,2015 WMDRTIM, IM Agreement for Commissiort of Public Arhvork with Ken Bernstein Art 841(lio,III(% lixecution Copy 9/8115 24 ot'34 Exhibit A: Artwork Design f Ali, G J �s s a v J . I 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 B: The Site Site—East First Street Project s, v jt i :5 M w Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 26 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 Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: Fabricator(if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material &Application Method: Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 28 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 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 30 of 34 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Afflant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me,the undersigned authority, on this the Day of , 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 E: Sales Tax Exemption r�.1;b.OtJ39(BaCkj Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of putebaser,firmer agency City of Fort Worth _ ....._..__...--- Address(Strvol d number,P.O.Sox or Route number) Phone(Aron cadre dad dualbor) 1000 Throckmorton street 817.392.8325 City,slato,ZIP code Fort Worth,Texas 76102 I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable Items described below or on the attached order or invoice)from: Seller: All Vendors Shoot address: _ _City,State,ZIP code: Description of items to be purchased or on the attached order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. I understand that it is a criminal otfense to give an exemption certificate to the seller for taxable items that f know,of the time ofpurchose, will bo usad in a manner other than that exprossod in this certificato,and depending on the arnount of tax evaded,life offense may rangy from a Class C misdemeanor to a felony of the second degree. Purchaser TWO Date —— --- here Ir 1 Assistant Finance Director 2/26/2014 NOTE: This certificate cannot be issued for the purchase,lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID, Sales and Use Tax"Exemption Numbers"or"Tax Exempt'Numbers do not exist. This certificate should be furnished to the supplier. Do=send the completed certificate to the Comptroller of Public Accounts. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 32 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/or installation of the Work, then Artist shall also require his/her subcontractor(s)to abide by all of the following insurance requirements. Commercial General Liability(CGL) $1,000,000 Each occurrence $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 include 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 GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. "Unless otherwise stated, all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups,must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Agreement for Commission of Public Artwork with Ken Bernstein Art Studio,Inc. Execution Copy 9/8/15 34 of 34 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas ITY OUNIL Fc��T�4�oRfiN COUNCIL ACTION: Approved on 7121/2015 REFERENCE ** 20EAST FIRST STREET ART DATE: 7/21/2015 NO.: C-27364 LOG NAME: COMMISSION AGREEMENT- KEN BERNSTEIN CODE: C TYPE: CONSENT PUBLIC NO 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) 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 Council Action Design Team Agreement $ 21,000.00 2005 (M&C C-21283) Final Design Agreement $ 22,762.00 Administrative Artwork Commission $ 213,800.00 This M&C Agreement TOTAL PROJECT COST 1 $ 257,562.00 1 - FUNDING SOURCES AMOUNT 2004 Capital Improvements Program (2% for Public $257,562.00 Art Total $257,562.00 MIWBE 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 Appropriations[Encumbrances Balance & Expenditures 2004 Street Improvements $2571562.00 $43,762.00 $213,800.00 Fund (2% for Public Art) TO Fund/Account/Centers FROM Fund/Account/Centers C200 541200 204980014580 $213.800.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Douglas W. Wiersig (7801) Additional Information Contact: Martha Peters (298-3025) ATTACHMENTS East 1 st Street MC Attachment May20l5.pdf http://apps.cfwnet.org/council_packet/mc review.asp?ID=21235&councildate=7/21/2015 9/18/2015