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Item 4HCITY OF SOUTHLAKE MEMORANDUM February 12, 2019 To: Shana Yelverton, City Manager From: Chris Tribble, Director of Community Services 4H -1 Subject: Approve art concept and contract with artist Boris Kramer to commission the art sculpture "Be the Bridge" to be installed in the White Chapel Boulevard and Highland Street roundabout for an amount not to exceed $96,500 Action Requested: City Council approve art concept and contract with artist Boris Kramer to commission the art sculpture "Be the Bridge" to be installed in the White Chapel Boulevard and Highland Street roundabout for an amount not to exceed $96,500 Background Information: The Public Art Master Plan recommends commissioning and installing public art pieces in the roundabouts throughout the City for beautification and to build a network of art markers that help with way finding and place making throughout the city. At the June 19, 2018 City Council meeting, City Council approved Seth Vandable's sculpture, "Prairie Winds" for installation in the roundabout at White Chapel Boulevard and Highland Street. Upon further consideration of the sculpture's historical context, a more suitable location for the sculpture is proposed in Bicentennial Park, near the log cabin. Relocation to the Log House would emphasize the area's connection with Southlake early settlers and wagon trains that were part of the westward migration and settlement of the West. During the December 10, 2018 joint City Council and Arts Council meeting, feedback was provided to seek a proposal for an art piece that would highlight unity and culture for placement in the White Chapel and Highland Street roundabout. The Southlake Arts Council partnered with artist Boris Kramer to develop the proposed piece, "Be the Bridge." Financial Considerations: Funding in the amount of $96,500 for the design and installation of artwork is provided in the Public Art CIP Budget. Additionally, a $1500 stipend was provided to the finalist to provide a complete City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork Shana Yelverton, City Manager Meeting Date — February 19, 2019 Page 2 of 2 4H -2 proposal for Arts Council recommendation and City Council consideration. Strategic Link: Approval of this item is linked to the City's Strategy Map related to Quality Development and Performance Management and Service Delivery and meets the corporate objectives of Collaborate with Select Partners to Implement Service Solutions and Invest to Provide and Maintain High Quality Public Assets. It also is connected to Critical Business Outcome 05, to Improve quality of life through progressive implementation of Southlake's Comprehensive Plan recommendations. Citizen Input/ Board Review: The commission of a public art piece complies with provisions of the Public Art Display and/or Performance Policy and the Southlake 2035 Public Arts Master Plan. Southlake Arts Council recommended approval (7-0) to the City Council February 5, 2019. City Council consideration February 19, 2019 Legal Review: Not Applicable Alternatives: Approve as presented Table the item and recommend edits to the artist Deny approval and explore other options Supporting Documents: Artist Boris Kramer contract Recommendation: Approve art concept and contract with artist Boris Kramer to commission the art sculpture "Be the Bridge" to be installed in the White Chapel Boulevard and Highland Street roundabout for an amount not to exceed $96,500 City of Southlake Values: Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork 4H -3 THIS CONTRACT FOR COMMISSION BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND ARTIST BORIS KRAMER (HEREINAFTER COLLECTIVELY CALLED ARTIST) FOR THE CREATION OF A SCULPTURE FOR THE CITY OF SOUTHLAKE is made as of the day of February in the Year 2019 BETWEEN the City: The City of Southlake, Texas 1400 Main Street, Ste 440 Southlake, Texas 76092 Telephone 817-748-8384 Facsimile 817-748-8250 and the Artist: Boris Kramer Kramer Sculptures Inc. 307 Cherrington Dr. Harrisburg, PA 17110 for the following Artwork: Creation of a sculpture titled, "Be The Bridge," featuring five (5) figures crafted from non-ferrous metals approximately 7'6" tall affixed to an approximately 7' tall brass bridge to be installed in the City of Southlake roundabout located at N White Chapel Blvd. and Highland St. for an amount not to exceed $96,500. The City and the Artist agree as set forth below. THIS AGREEMENT is made and entered by and between the City of Southlake, Texas, a home -rule municipal corporation located in Tarrant and Denton County Texas, hereinafter referred to as "City", and Boris Kramer, hereinafter collectively referred to as "Artist", to be effective from and after the date as provided herein, hereinafter referred to as the "Agreement", WHEREAS, the City desires to engage the services of the Artist to create a sculpture titled, "Be The Bridge," featuring five (5) figures crafted from non- ferrous metals approximately 7'6" tall affixed to an approximately 7' tall brass bridge to be installed in the City of Southlake roundabout located at N White Chapel Blvd. and Highland St. for an amount not to exceed $96,500. WHEREAS, the Artist desires to render such services for the City upon the terms and conditions provided herein. Boris Kramer Artist Contract Page 1 of 28 4H -4 NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained, the parties agree as follows: ARTICLE 1 ARTIST'S SERVICES 1.1 Employment of the Artist - The City hereby agrees to retain the Artist to perform the services set forth herein in connection with the Art. Artist agrees to perform such services in accordance with the terms and conditions of this Agreement. 1.2 Design and Installation - The parties agree that Artist shall perform the services set forth and described in Exhibit "A", which is attached and incorporated herein by reference. The Artist shall furnish all materials, labor, tools, equipment, apparatus, facilities and anything else necessary to complete the Artwork in a workmanlike manner. The parties understand and agree that deviations or modifications to the scope of services described in Exhibit "A", in the form of written change orders, may be authorized from time to time by the City. The Artwork shall be delivered and installed by the Artist. Installation will be scheduled according to the timeline set forth in Exhibit "B." Any changes to the installation date must occur with at least a forty-five (45) day notice and be agreed upon in writing by both the City and the Artist. The City will be responsible for the installation at its location, including barricades and traffic control. Boris Kramer will act as a consultant for said installation but shall not receive an additional fee for Artist's time or travel. Design and installation of the Artwork shall comply with applicable building codes and seismic safety regulations. 1.3 Size of Artwork - The completed Artwork shall be true to the estimated measurements and constructed out of the materials described in Exhibit "A". 1.4 Permits, Licenses, and Taxes - The Contractor for the project shall obtain and maintain during the term of this Agreement, all permits (including a City building permit), licenses, and certificates and pay all taxes that may be required in connection with the performance of services under this Agreement. Notwithstanding any other provision of this Agreement, Artist shall not be charged a fee for issuance of a City building permit or any City license. 1.5 Schedule of Work - The Artist agrees to commence work immediately upon execution of this Agreement and receipt of first payment, and to proceed diligently with said work to completion as described in the Completion Schedule/Artwork Billing and Budget attached as Exhibit "B" and incorporated herein by reference. Boris Kramer Artist Contract Page 2 of 28 4H -5 1.6 Artwork Installation Site — The Artwork shall be permanently affixed to the installation site, located in the roundabout at N White Chapel Blvd. and Highland St. unless the City exercises its option to relocate as set forth in Section 8.2. The Artist shall design the sculpture and its base so that the art installation will be structurally safe and sound and comply with current municipal building codes and seismic standards in accordance with the Uniform Building Code. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 Artwork Data - The City shall furnish required information that it currently has in its possession, as expeditiously as necessary for the orderly progress of the work, and the Artist shall be entitled to rely upon the accuracy and completeness of such information. 2.2 City Project Manager - The City shall designate, when necessary, a representative authorized to act on the City's behalf with respect to the Artwork (the "Project Manager"). The City, by and through this authorized representative, shall examine the documents submitted by the Artist and render any required decisions pertaining thereto as soon as practical so as to avoid unreasonable delay in the progress of the Artist's services. 2.3 Reimbursement for Travel — The Artist shall pay for all travel as it applies to this agreement. ARTICLE 3 ARTIST'S COMPENSATION 3.1 Compensation for Artist's Services - As described in "Article 1, Artist's Services", compensation for this Artwork shall be ninety six thousand five hundred dollars and no cents ($96,500) ("Artist's Fee") and will cover all services to be rendered and materials to be provided in accordance with this Agreement. The Artist's Fee shall be paid in accordance with Article 3 and the Completion Schedule/Artwork Billing and Budget as set forth in Exhibit "B". The final ten percent (10%) of the Artist's Fee, or nine thousand, six hundred and fifty dollars and no cents ($9,650) shall not be paid until the Artist has completed all of the Artwork services and tasks described in Exhibits "A" and "B". The Artist will also be required to fill out the proper paperwork to become an approved vendor of the City before payments commence. 3.2 Artwork Suspension - If the Artwork is suspended or abandoned by the City in whole or in part for more than three (3) months, Artist shall be entitled to compensation for any and all work completed to the satisfaction of City in accordance with the provisions of this Agreement prior to suspension or abandonment. In the event of such suspension or abandonment by the City, Artist shall deliver to City all finished or unfinished documents, data, studies, Boris Kramer Artist Contract Page 3 of 28 4H -6 surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Artist in connection with this Agreement prior to Artist receiving final payment. If the Artwork is resumed after being suspended for more than three (3) months, the Artist's compensation shall be equitably adjusted as approved by the City. Any additional amounts paid to the Artist after the Artwork is resumed shall be agreed upon in writing by both parties before the services are performed. ARTICLE 4 OWNERSHIP AND COPYRIGHT 4.1 Ownership of Work - The Artwork is the property of the City; The Artist retains Copyright in and to the Artwork under the Copyright Act of 1976, 17 U.S.C., Section 101, et seq. The Artist reserves the right to produce the Artwork at any size. Each edition will be clearly marked as a limited edition. If the City should desire to place the Artwork in a location that is not shown on Exhibit B, the City shall first notify the Artist consistent with Section D herein as to the new location. The City shall be entitled to copies of the plans that are prepared by the Artist in connection with the development and fabrication of the Artwork under this Agreement. The ownership of the sculpture is transferred to the City upon full payment of Artwork described in Exhibits "A" and "B". 4.2 Ownership of Copyright - Artist shall retain the copyright to the Artwork. Artist shall take all steps, at his own expense, to protect the copyright of the Artwork. 4.3 License to City - The Artist irrevocably licenses the City, its employees, representatives, officers and agents, the right to make photographs, two dimensional reproductions, and adaptations of the work for educational, public relations, arts promotional and other non-commercial purposes. For the purposes of this Agreement, the following, among others, are deemed to be reproductions and/or adaptations for non-commercial purposes: reproduction in exhibition catalogues, websites, books, slides, photographs, postcards, posters, and calendars; in magazines, books, art and news sections of newspapers; in general books and magazines not primarily devoted to art but of an educational, historical or critical nature; slides, videos and film strips not intended for a mass audience, and television from stations operated for educational purposes or on programs for educational and news purposes from all stations. All aforementioned work product created by the Artist will include the words: SCULPTURED BY BORIS KRAMER 4.4 Copyright Notice — The City undertakes to use its reasonable efforts to include in any reproductions which it makes of the Artwork a copyright notice in the following form: Boris Kramer Artist Contract Page 4 of 28 4H -7 Copyright Boris Kramer or © Boris Kramer 4.5 Representations and Warranties Regarding Copyright — The Artist represents and warrants that the Artwork is an original creation of Artist's and will not infringe the copyright, trademark, or other intangible rights of any third party. 4.6 Warranty of Title — The Artist represents and warrants that the Artwork is free and clear of all liens from any source whatsoever. ARTICLE 5 FABRICATION 5.1 Specifications — Artist will create the Artwork, or cause it to be fabricated, in substantial conformity with the specifications set forth in Exhibit "A". 5.2 Changes — Any significant changes to the Artwork by either Artist or as requested by City will be approved in writing by the other party. For purposes of this Agreement, a "significant change" will mean any change, including but not limited to, a change in the scope, design, color, size, or material of the Artwork, which affects cost, installation, site preparation, maintenance and concept as described in Exhibit "A". If Artist wishes to make a significant change to the Artwork, he must request written approval of the change in writing at the address provided in Article 14. The City will provide a written response within thirty (30) calendar days of receipt of the request. 5.3 Review of the Artwork — The City will be given access to the Artwork during reasonable business hours at Artist's or fabricator's studio in order to review the Artwork and Artist's or fabricator's progress with fabrication of the Artwork. Alternatively, the City requests and shall be given photographic documentation of Artist's progress to verify each stage that triggers payment pursuant to Section 3.1 above. 5.4 Notification of Fabrication Completion — Artist will notify the City in writing in the manner provided in Article 14 below when the Artwork is completed and ready for delivery. Designated representatives of the City will have the opportunity to inspect the Artwork for conformity with the design and structural requirements of this Agreement prior to delivery and to give written approval or disapproval of the Artwork within thirty (30) business days following notice from the Artist. As an alternative to the studio inspection, photographic documentation may be submitted to the City upon completion of the Artwork. 5.5 Preparation of Site — Regarding installation of the Artwork, cooperation from the City's designated staff and contractor is required. City will provide Artist with the specifications and drawings for the specific area at the site where the Artwork is to be installed. Artist is responsible for obtaining and forwarding to City design drawings Boris Kramer Artist Contract Page 5 of 28 and calculations for the installation of the Artwork. The drawings will illustrate the Artwork's support system, including without limitation, connection to the base. The designated city staff member will utilize these drawings and if, during installation, the Artwork is found to differ from the specifications noted in the drawings, it will be the Artist's responsibility to remedy the discrepancy and bring the Artwork into conformance with the drawings. 5.6 Warranty of Craftsmanship — The Artist warrants that the Artwork will be free of defects in workmanship and materials. In the event that any defects become apparent in the workmanship or materials within two (2) years of the completion of the Artwork by the Artist and acceptance of the Artwork by the City, Artist will remedy any defects at Artist's sole cost and expense during this period. ARTICLE 6 STO RAG E 6.1 Storage - Storage of the Artwork is the responsibility of the Artist. ARTICLE 7 FINAL APPROVAL OF ARTWORK 7.1 Final Acceptance - City will inspect the Artwork prior to taking delivery to determine whether it conforms with all of the requirements of this Agreement. The Artist shall furnish City with a full written narrative description of the Artwork. If the City finds that any aspect of the Artwork is not in conformance with this Agreement, the City will notify Artist in writing and Artist will have a reasonable time and opportunity to address and cure any defects, requests or concerns of the City. Final acceptance shall be determined by the City in its sole and absolute discretion. The City shall notify the Artist in writing of its final acceptance of the Artwork. In no event shall the final acceptance occur more than thirty (30) days from the date of installation. 7.2 Title and Final Acceptance - Title of ownership of the Artwork shall pass to the City upon final acceptance. ARTICLE 8 INTEGRITY OF THE WORK 8.1 Routine Maintenance — The Artist shall provide to City written instructions for appropriate routine maintenance and preservation of the Artwork, including moving and installation of the Artwork. 8.2 Repairs - The City undertakes to exercise reasonable care to protect, repair, and maintain the work. Artist agrees to cooperate with and advise the City without charging the City in connection with any such non -routine Boris Kramer Artist Contract Page 6 of 28 4H -9 maintenance, including, without limitation, damage by acts of God, vandalism, conservation and/or replacement of any portion of the Artwork to the extent that the Artist is able to do so. During Artist's lifetime, the City will not undertake any non -routine maintenance on the Artwork without attempting to consult with the Artist or the Artist's authorized representative unless required by an emergency. 8.3 Relocation of the Work — To the extent that the Artwork is capable of being relocated, the City shall have the right to do so. If feasible, the City shall attempt to consult with the Artist concerning the relocation of the Artwork prior to any such relocation; however, the Artist's approval is not required for the relocation, if any. If the Artist is not pleased with such relocation, he or she shall have the right to renounce credit for the Artwork. If Artist renounces credit for his Artwork, this would include, among other things, assignment to the City of the copyrights described herein. 8.4 Credit — The City agrees, at its own expense, to prepare and install at or near the Artwork a public notice, the form and exact location of which shall be solely determined by City, giving Artist credit for the creation of the Artwork. ARTICLE 9 RISK OF LOSS/INSURANCE COVERAGE 9.1 Risk of Loss — The risk of loss or damage to the Artwork shall be borne by the Artist until final acceptance, and the Artist shall take such measures as are reasonable to protect the Artwork and the materials relating hereto from loss or damage until final acceptance. 9.2 Insurance — The Artist, consistent with the Artist's status as an independent contractor, shall carry, and shall require any of its subcontractors to carry, at least the following insurance in such form, with such companies, and in such amounts (unless otherwise specified) as City may require: Worker's Compensation and Employer's Liability insurance, including All States Endorsement, to the extent required by federal law and complying with the laws of the State of Texas; ii. Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal Injury, Completed Operations/Products Liability, Premises Liability, Medical Payments, Interest of Employees as additional insured's, and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage on an occurrence basis; Boris Kramer Artist Contract Page 7 of 28 4H - 10 iii. Comprehensive Automobile Liability insurance covering all owned, non -owned or hired automobiles to be used by the Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage. 9.3 Insurance Requirements - The Artist shall: Name the City, its officers, agents, representatives, and employees as additional insured's as to all applicable coverage with the exception of workers' compensation insurance; ii. Provide for at least thirty (30) days prior written notice to the City for cancellation, non -renewal, or material change of the insurance; and iii. Provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. 9.4 Insurance Company Qualification — All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A" by AM Best or other equivalent rating service. 9.5 Certificate of Insurance — A certificate of insurance evidencing the required insurance shall be submitted no later than the date of the execution of this Agreement. If this Agreement is renewed or extended by the City, a certificate of insurance shall also be provided to the City prior to the date the Agreement is renewed or extended. ARTICLE 10 AUDITS AND RECORDS/PROHIBITED INTEREST/VENDOR DISCLOSURE The Artist agrees that at any time during normal business hours and as often as City may deem necessary, Artist shall make available to representatives of the City for examination all of the Artist's records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of four (4) years from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. The Artist agrees that the Artist is aware of the prohibited interest requirement of the City Charter, which is repeated on the Affidavit attached hereto as Exhibit "D" and incorporated herein by reference for all purposes, and will abide by the same. Further, a lawful representative of Artist shall execute the Affidavit. Artist Boris Kramer Artist Contract Page 8 of 28 4H - 11 understands and agrees that the existence of a prohibited interest during the term of this Agreement will render the Agreement voidable. The Artist agrees that the Artist is further aware of the vendor disclosure requirements set forth in Chapter 176, Local Government Code, as amended, and will abide by the same. In this connection, a lawful representative of the Artist shall execute the Conflict of Interest Questionnaire, Form CIQ, attached hereto as Exhibit "E" and incorporated herein for all purposes. ARTICLE 11 TERMINATION OF AGREEMENT/REMEDIES 11.1 Artist Default — Failure or refusal of the Artist to perform any act herein required, unless mutually agreed to in writing by the City and the Artist, shall constitute a default. Artist shall be given a reasonable time within which to cure said default after receiving said notice in writing. In the event of a default, in addition to any other remedy available to the City, this Agreement may be terminated by the City upon ten (10) days written notice. Such notice does not waive any other legal remedies available to the City. 11.2 Conditions for Termination of Agreement Other than Artist's Default — If the City deems, in its sole discretion, the Artwork design is inappropriate or unworkable for the site, or if the deadlines specified herein are not met due, in whole or in part, to the Artist's actions and/or omissions, or if cost estimates indicate that the Artwork cannot be completed within the budget, the City retains the right to terminate this Agreement and is released from the obligation to enter into fabrication and installation of the Artist's design concept for the Artwork. In the event of any termination, Artist shall deliver to City all work, entirely or partially completed that Artist has been compensated for. The Artist shall receive full payment for services satisfactorily performed (as outlined in Exhibit "B"), and as solely determined by the City. The City shall make this final payment within thirty (30) days of notifying the Artist. 11.3 Remedies Cumulative - The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. ARTICLE 12 DISPUTE RESOLUTION/MEDIATION In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or dispute arising out of or relating to the interpretation or Boris Kramer Artist Contract Page 9 of 28 4H - 12 performance of this Agreement, or breach thereof, by voluntary mediation to be conducted by a mutually acceptable mediator. The cost of the mediation shall be divided equally between the Artist and the City. ARTICLE 13 INDEMNITY Indemnification - Artist agrees to defend, indemnify and hold harmless the City, all of its officers, Council members, agents and employees from and against all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of, connected with, or resulting from any acts or omissions of Artist or any agent, employee, subcontractor, or supplier of Artist in the execution or performance of this contract without regard to whether such persons are under the direction of City agents or employees. The Artist agrees to protect and indemnify the City, all of its officers, Council members, agents and employees, from all claims, actions, suits, demands, proceedings, costs, damages and liabilities, including reasonable attorneys' fees, court costs and related expenses, arising out of any alleged infringement of patents or copyrights arising from the Artist's performance under the Artist's Bid or this Agreement, including attorneys' fees and court costs. The provisions of this Article shall survive the termination or expiration of this Agreement. ARTICLE 14 NOTICES Artist agrees that all notices or communications to City permitted or required under this Agreement shall be delivered to City at the following addresses: Project Manager: Cassie Tucker City of Southlake 1400 Main Street, Ste 440 Southlake, Texas 76092 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Boris Kramer The National Sculptors' Guild 2683 North Taft Avenue Loveland, CO 80538 Boris Kramer Artist Contract Page 10 of 28 4H - 13 Any notice provided for under the terms of this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. All notices or communication required to be given in writing by one party or the other shall be considered as having been given to the addressee on the date such notice or communication is postmarked by the sending party. Each party may change the address to which notice may be sent to that party by giving written notice of such change to the other party in accordance with the provisions of this Agreement. ARTICLE 15 MISCELLANEOUS 15.1 Complete Agreement - This Agreement, including the exhibits hereto labeled "A" through "E", all of which are incorporated herein for all purposes, constitute the entire agreement by and between the parties regarding the subject matter hereof and supersedes all prior and/or contemporaneous written and/or oral understandings. This Agreement may not be amended, supplemented, and/or modified except by written agreement duly executed by both parties. To the extent that any provision of this Agreement should conflict with the provisions of an exhibit, the provisions of this Agreement shall prevail. 15.2 Assignment and Subletting - The Artist agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Artist further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Artist of its full obligations to the City as provided by this Agreement. All such approved work performed by assignment or subletting shall be billed through Artist, and there shall be no third party billing. 15.3 Successors and Assigns - City and Artist, and their partners, assigns, successors, subcontractors, executors, officers, agents, employees, representatives, and administrators are hereby bound to the terms and conditions of this Agreement. 15.4 Severability - In the event a term, condition, or provision of this Agreement is determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect as if such invalid, illegal, void, unenforceable or unlawful provision had never been contained herein. 15.5 Venue - This entire Agreement is performable in Tarrant County, Texas and the venue for any action related directly or indirectly, to this Agreement or in Boris Kramer Artist Contract Page 11 of 28 4H - 14 any manner connected therewith shall be Tarrant County, Texas, and this Agreement shall be construed under the laws of the State of Texas. 15.6 Execution/Consideration - This Agreement is executed by the parties hereto without coercion or duress for a substantial consideration, the receipt and sufficiency of which is forever confessed. 15.7 Authority - The individuals executing this Agreement on behalf of the respective parties below represent to each other that all appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Agreement in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date thereof. 15.8 Waiver - Waiver by either party of any breach of this Agreement, or the failure of either party to enforce any of the provisions of this Agreement, at any time, shall not in any way affect, limit or waive such party's right thereafter to enforce and compel strict compliance. 15.9 Headings - The headings of the various sections of this Agreement are included solely for convenience of reference and are not to be full or accurate descriptions of the content thereof. 15.10 Multiple Counterparts - This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. A facsimile signature will also be deemed to constitute an original if properly executed. 15.11 Sovereign Immunity — The parties agree that the City has not waived its sovereign immunity or any other legal defense by entering into and performing its obligations under this Agreement. 15.12 Representations — Each signatory represents that this Agreement has been read by the party for which this Agreement is executed and that such party has had the opportunity to confer with its counsel. 15.13 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally by all parties hereto. The language of all parts of this Agreement shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. 15.14 No Third Party Beneficiaries — Nothing in this Agreement shall be construed to create any right in any third party not a signatory to this Agreement, Boris Kramer Artist Contract Page 12 of 28 4H - 15 and the parties do not intend to create any third party beneficiaries by entering into this Agreement 15.15 Relationship of Parties — The provisions of this Agreement shall not be construed to create a partnership or joint venture between the parties. Artist is performing Artists' services as an independent contractor and the doctrine of respondeat superior shall not apply between the City and the Artist. IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement to be effective on the latest day as reflected by the signatures below. Effective Date: CITY The City of Southlake, Texas ARTIST National Sculptors' Guild Shana Yelverton Boris Kramer City Manager Artist Approved as to Form: By: Taylor, Olson, Adkins, Sralla, and Elam L.L.P City Attorneys STATE OF TEXAS: COUNTY OF TARRANT: BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED SHANA YELVERTON, KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF , 2019. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Boris Kramer Artist Contract Page 13 of 28 4H - 16 STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED BORIS KRAMER KNOWN TO ME TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF ., 2019. NOTARY PUBLIC IN AND FOR THE STATE OF PENNSYLVANIA Boris Kramer Artist Contract Page 14 of 28 4H - 17 EXHIBIT "A" SCOPE OF SERVICES CREATION OF A SCULPTURE TITLED, "BE THE BRIDGE," FEATURING FIVE (5) FIGURES CRAFTED FROM NON-FERROUS METALS APPROXIMATELY 7'6" TALL AFFIXED TO AN APPROXIMATELY 7' TALL BRASS BRIDGE TO BE INSTALLED IN THE CITY OF SOUTHLAKE ROUNDABOUT LOCATED AT N WHITE CHAPEL BLVD. AND HIGHLAND ST. FOR AN AMOUNT NOT TO EXCEED $96,500. Sculpture The services are to be provided by Boris Kramer, sculptor, in the creation of a sculpture per the design and proposal approved by the Southlake City Council (February 19th, 2019), Boris Kramer will furnish all design, labor and material in the fabrication of the sculptures as described in the following areas and amounts: I. Design, fabricate, ship and install the sculpture and base: A. Provide the material for the sculpture and base in its entirety. B. Boris Kramer will sculpt the above described sculpture in accordance with the approved moquette. C. Provide appropriate packing and ship the sculpture to the site. D. Consult with the city on installation of the sculpture. E. Provide engineer -stamped drawings of the sculptures and base. The Artist shall create and oversee the installation of the Artwork in substantial conformity with the approved design. Any significant changes in the concept, as defined in Article 5.2, must be approved by the City. It is the responsibility of the Artist to coordinate with the City, and Contractor to ensure that the site is prepared to receive the Artwork. All Artwork installation and site preparation shall be performed during normal business hours. Installation These services are to be provided by the City of Southlake in the installation of the sculpture: A. City of Southlake is responsible to provide any and all landscape lighting. B. The City will be responsible for the installation at its location barricades and traffic control. Boris Kramer Artist Contract Page 15 of 28 4H - 18 Upon completion of the permanent installation of the Artwork, the City project manager will inspect the work and give notice of acceptance, as provided in this Agreement. Clarifications Delays due to others and beyond the implementation date shall constitute additional schedule extensions and appropriate general condition costs. All artwork installation shall be performed during normal working hours. Exclusions: Any and all dust, waste, and sanitary requirements. Any and all landscaping and/or landscaping repairs. Any and all licenses, fees and permits. Any and all bonds. Any and all testing and inspection costs. Any and all damage to under ground services not marked. Artist Proposal: Boris Kramer Kramer Sculptures Inc. 307 Cherrington Dr. Harrisburg, PA 17110 248 915 8256 bmk402342@gmail.com Sculpture Proposal for White Chapel and Highland St. Roundabout Title of the sculpture: Be the Bridge Concepts behind the piece: 1. Materials: Each figure would be made from one of 4 different non-ferrous metals. The first figure on the left would be made from stainless steel with a brushed 24 grit (sanding) finish. The second would be made from bronze, the forth would be from brass and the farthest to the right figure would be made from copper. All figures except the central figure would be finished with a 24 grit sanding technique and then clear coated with museum quality clear coat that will not peel or discolor with the elements. The central figure would be made from brass but finished with a patina having 5 colors. The color at the bottom of the figure would be patinaed with ferric nitrate providing a black finish. The next color would be brown which would Boris Kramer Artist Contract Page 16 of 28 4H - 19 come to the central part of the figure using the traditional liver of sulfur patina technique. The next part of the figure would be red and then yellow using cupric nitrate and the final color would be white using aluminum oxide. All five figures would be standing on a brass bridge form on top of arched legs to provide height to the sculpture. The bridge would be patinaed from a brownish red at the bottom through the colors of purple, blue, turquois, and green at the top of the bridge. There will be a modeling technique used in the patina process that will create the effect that the metal will almost look like marble. Please see image 1 of the two figures seated on a sculpted pedestal. Please also see image 2 for the basis concept of the figures from the potential model (still being designed). 2. Three-dimensional aspect to the sculpture Although the drawing appears as if the sculpture is flat, there will be a curve in space for each part of the bridge such that one leg will be moving towards the viewer and the other component of the bridge will be moving away from the viewer. It will create depth throughout the piece. Figure 2 in the composition would be farther back in space from figures 1,3,4, and 5. Figure 4 would be closer to the viewer than the other 4 figures. If the viewer were looking down on the sculpture, the design would be similar to an "S". The figures also are not simply flat but appear as if they are moving and are dancing. The structural forms of the legs for the bridge also move forward and backwards in space. A model is in the process of being completed with the basic design components represented in images 3, 4, and 5. 3. Dimensions of the Sculpture The height of each figure would be approximately 88" (7'6"). The height to the top of the supporting structure for the bridge would be approximately 84" (7'). The height to the top of the bridge on both sections would be approximately 114" (9' 6"). The total height of the sculpture would be 198" (16' 6"). The width of the sculpture would be approximately the same and the depth would be approximately 144" (12'). 4. Meaning behind the Sculpture Everyone has felt left out sometime in his/her life. One of the greatest moments of hurt can arise simply because of the color of one's skin or ethnic background which he/she cannot change. "Be the Bridge" is about acceptance and tolerance through the experiences of play and dance. Each metal represents a different ethnic/social background. They are all unique and yet when they play and dance together, they make a beautiful whole. The bridge is intentionally left with a gap in the middle to represent the challenges that exist in our society due to our differences. The bridges in our lives do not always connect. The children dancing on the bridge are able to "jump over" the challenges by working together, holding hands, and simply playing together. Boris Kramer Artist Contract Page 17 of 28 4H - 20 The central figure will have 5 predominant colors: black, brown, yellow, red, and white. He/she represents all of us, from whatever background, in the middle of the group making the connection, making the effort to jump across the divide. The central figure could also be interpreted as the person who does not fit into simply one ethnic background or social group. He/she is person who is blended into a number of different groups but can still be a catalyst for equality. 5. Cost of the Sculpture including install and shipping $96,500.00 6. Time of completion End of September, 2019. Boris Kramer Artist Contract Page 18 of 28 4H - 21 M Boris Kramer Artist Contract Page 19 of 28 4H - 22 Boris Kramer Artist Contract Page 20 of 28 I 4H - 23 Boris Kramer Artist Contract Page 21 of 28 4H - 24 EXHIBIT "B" COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND BORIS KRAMER (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Conceptual design Month 1 Contract signed Provides final and moquette. (February 2019) Check #1 in the moquette. amount of $48,250 due (50%) paid upon approval of concept design and moquette. Approve final Months 2 - 6 Completes clay figures and send to (March 2019 — Approves final clay figures, foundry for casting; August 2019) figures and final incorporating any approve sculpture figures on return feedback from City on return from from foundry Council. Foundry Check #2 in amount City reviews clay of $38,600 (40%) figures for approval paid upon approval of final clay figures. Begins foundry work, if approved by City. Supervises casting process at foundry. City approves final sculpture. Final acceptance by Month 7 Approve work. Sculpture delivered project manager; (September 2019) to City and installed submit maintenance Check #3 in amount at Site by City under worksheets; of $9,650 (10%) Artist's supervision. dedication. due upon completion of installation. Boris Kramer Artist Contract Page 22 of 28 4H - 25 EXHIBIT "C" MAP OF INSTALLATION SITE AVW Pr4Di7ar ty RQ. - . - • y`"^ - _t�0' Stc�.rd a Len t!•a - r `r ra a -- G1csscr, TW +Crosscsr. TW Glosses. TW Boris Kramer Artist Contract Page 23 of 28 EXHIBIT "D" AFFIDAVIT THE STATE OF COUNTY OF 4H - 26 I, , Artist, make this affidavit and hereby on oath state the following: I, and/or a person or persons related to me, have the following interest in a business entity that would be peculiarly affected by the work or decision on the project (check all that apply); entity. Ownership of 10% or more of the voting shares of the business entity. Ownership of $2,500 or more of the fair market value of the business Funds received from the business entity exceed 10% of my income for the previous year. Real property is involved and I have an equitable or legal ownership with a fair market value of at least $2,500. None of the above. A relative of mine has substantial interest in the business entity or property that would be affected by my decision of the public body of which I am a member. Other: Upon the filing of this affidavit with the City of Southlake, Texas, I affirm that no relative of mine, in the first degree by consanguinity or affinity as defined in Chapter 573 of the Texas Government Code, is a member of the public body which took action on the agreement. Signed this day of , 2019. Boris Kramer Artist Contract Page 24 of 28 4H - 27 Signature of Official/Title BEFORE ME, the undersigned authority, this day personally appeared and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this day of , 2019. Notary Public in and for The State of My commission expires: Boris Kramer Artist Contract Page 25 of 28 4H - 28 EXHIBIT "E" INFORMATIONREGARDING VENDOR CONFLICT OFINTEREST QUESTIONNAIRE WHO: A person must file a conflict of interest questionnaire with the City if the person has a employment or business relationship with an officer of the City that results in taxable income exceeding $2,500 during the preceding twelve month period, or an officer or a member of the officer's family has accepted gifts with an aggregate value of more than $250 during the previous twelve month period and the person engages in any of the following actions: 1. contracts or seeks to contract for the sale or purchase of property, goods, or services with the City, including any of the following: a. written and implied contracts, utility purchases, purchase orders, credit card purchases and any purchase of goods and services by the City; b. contracts for the purchase or sale of real property, personal property including an auction of property; C. tax abatement and economic development agreements; 2. submits a bid to sell goods or services, or responds to a request for proposal for services; 3. enters into negotiations with the City for a contract; or 4. applies for a tax abatement and/or economic development incentive that will result in a contract with the City. THE FOLLOWING ARE CONSIDERED OFFICERS OF THE CITY: 1. Mayor and City Council Members; 2. City Manager; 3. Board and Commission members appointed by the Mayor or City Council members; 4. Directors of 4A and 413 development corporations; 5. the executive directors or managers of 4A and 4B development corporations; and 6. Directors of the City of Southlake who have authority to sign contracts on behalf of the City. EXCLUSIONS: A questionnaire statement need not be filed if the money paid to a local government officer was a political contribution, a gift to a member of the officer's family from a family member; a contract or purchase of less than $2,500 or a transaction at a price and subject W:\Soutl,luke\liscellaneouslChapter 176.AttaclunentCIQ.09260&.dec Page 1 of Boris Kramer Artist Contract Page 26 of 28 4H - 29 to terms available to the public; a payment for food, lodging, transportation or entertainment; or a transaction subject to rate or fee regulation by a governmental entity or agency. WHAT: A person or business that contracts with the City or who seeks to contract with the City must file a "conflict of interest questionnaire" (FORM CIQ) which is available online at www.ethics.state.tx.us and a copy of which is attached to this Guideline. The form contains mandatory disclosures regarding "employment or business relationships" with a municipal officer. Officials maybe asked to clarify or interpret various portions of the questionnaire. WHEN: The person or business must file: 1. the questionnaire no later than seven days after the date the person or business begins contract discussions or negotiations with the municipality, or submits an application, responds to a request for proposals or bids, correspondence, or other writing related to a potential contract or agreement with the City; and 2. an updated questionnaire within seven days after the date of an event that would make a filed questionnaire incomplete or inaccurate. It does not matter if the submittal of a bid or proposal results in a contract. The statute requires a vendor to file a FORM CIQ at the time a proposal is submitted or negotiations commence. WHERE: The vendor or potential vendor must mail or deliver a completed questionnaire to the Finance Department. The Finance Department is required by law to post the statements on the City's internet website. ENFORCEMENT: Failure to file a questionnaire is a class c misdemeanor punishable by a fine not to exceed $500. It is an exception to prosecution that the person files a FORM CIQ not later than seven business days after the person received notice of a violation. NOTE: The City does not have a duty to ensure that a person files a conflict of interest questionnaire. W:\Southlake\Miscella"eous\Chapter 176.Attachmeut C1Q.092608.doc Page 2 of 3 Boris Kramer Artist Contract Page 27 of 28 4H - 30 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity Page 2 Name of local government officer with whom filer has affIlitation or business relationship. (Complete this section only if the answer to A, B, or C is YES..) This section, item 5 including subparts A, B, C & D, must be completed for each officer with whom the filer has afflliation or business relationship. Attach additional pages to this Form CIO as necessary. µ. Is the loci I government officer named in this section receiving or likely to receive taxable income from the filer of the :.iestionnaire? F]Yes E—] No B. Is the fifer of the questionnaire receiving or Iikely to receive taxable income from oral the direction of the local government officer named in this section AND tate taxable income is not from the local governmental entity? El Yes El No C. Is the filer of this questionnaire affiliated with a corporation or other business entity that the local government officer serves as an officer or director, or holds an ownership of 10 percent OF more? Yes F--] No C?. Describe each affiliation or business relationship. Describe any other affiliation or business relationship that might cause a conflict of interest. Signature of person doing business with the govemmental entity Date A. -d" Boris Kramer Artist Contract Page 28 of 28