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Item 4DItem 4D-1 CITY OF SOUTH LAKE MEMORANDUM May 1, 2022 To: Shana K. Yelverton, City Manager From: Chris Tribble, Director of Community Services Subject: Approve final concept and contract with artist Mark Weisbeck, DBA Weisbeck Design, in an amount not to exceed $90,000 for public art to be installed at the Liberty Gardens at Bicentennial Park. Action Requested: Approve final concept and contract with artist Mark Weisbeck, DBA Weisbeck Design, in an amount not to exceed $90,000 for public art to be installed at the Liberty Gardens in Bicentennial Park. Background Information: The Public Art Master Plan recommends commissioning and installing public art pieces for beautification and to celebrate the history of Southlake through the arts throughout the city. Currently there is a water fountain in the Liberty Gardens that needs several costly repairs. In lieu of repairing the fountain, the Community Services Department wishes to remove it and replace it with public art. The Southlake Arts Council extended an invite to different artists in February 2022 to submit concepts for a commissioned sculpture to be placed in the Liberty Gardens at Bicentennial Park. Staff presented the submissions for Arts Council's initial review in the March 22, 2022, Arts Council Meeting. Staff presented the finalist's submission for Arts Council's official review and recommendation at the April 26, 2022, Arts Council Meeting. Financial Considerations: Funding will be provided by the Capital Improvement Fund in the amount of $90,000 Strategic Link: Approval of the final concept and contract for public art is linked to the City's Strategy Map related to Quality Development and Performance Management and Service Delivery and meets the Item 4D-2 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 selection of public art complies with provisions of the Public Art Display and/or Performance Policy and the Southlake 2030 Public Art Master Plan. Southlake Arts Council reviewed proposed finalists' concept and selected Mark Weisbeck's concept March 22, 2022. Southlake Arts Council reviewed the final concept and recommended a contract with Mark Weisbeck (6-0) to City Council at the April 26, 2022, Arts Council Meeting. City Council consideration May 17, 2022. Legal Review: Not Applicable Alternatives: Approve with recommended edits Deny approval and explore other options Supporting Documents: • "Remembrance and Renewal" project concept and proposal • Mark Weisbeck Standard Arts Agreement Recommendation: Approve final concept and contract with artist Mark Weisbeck, DBA Weisbeck Design, in an amount not to exceed $90,000 for public art to be installed at the Liberty Gardens in Bicentennial Park. Item 4D-3 WEISBECK DESIGN "Remembrance and Renewal" 9-11 Memorial Sculpture Project Proposal Prepared for: Liberty Gardens Bicentennial Park Project/ Southlake, Texas Public Art Prepared by: Weisbeck Design, Diane and Mark Weisbeck April 8, 2022 Project Details Title: Remembrance and Renewal Medium: 304 Grade Stainless Steel square tube, 204 Brass strip, 304 Grade Stainless Steel strip. These materials do not rust, fade or deteriorate. Finish: Circular textured patterned stainless steel. Lightly textured brass with "Statue of Liberty" green patina. Clear coat. Scale: Two "towers," each, 15'H x 3' W x 3' D, with one foot separation between towers. Approx. T total width. Weight: Approx. 1600 lbs. Base: Two 38" x 38" x .50 inch thick 304 Stainless Steel plates. One base plate welded and integral to each tower. Threaded stainless steel studs and nuts to be set during the leveling, resurfacing of the raised concrete pad prior to Item 4D-4 installation. A subtle, marbleized pad would be an attractive, natural design element, similar in pattern to the base of the model sent to the Arts Council. Bolt patterns in base plates to be determined by structural engineer. Actual, full size templates for the bolt patterns will be provided by Weisbeck Design. Location: Liberty Gardens, Bicentennial Park, Southlake, TX Description We have recognized that "Remembrance and Renewal" 9-11 Memorial Sculpture will coexist in perfect harmony with all of the other sculptural works in Southlake. All share one unifying theme: they are all uplifting and positive, regardless of the style or theme and all exist within a joyful environment. Symbolic meaning of the sculpture: "Remembrance and Renewal," Iconic, stylized frames representing the two towers of the World Trade Center stand tall, elegant and proud against the sky. Within the texturized stainless steel frames, natural patina green and shining silver "leaves" gracefully twist and reach to the sky, signifying the continual beauty, growth and renewal we receive from Mother Nature. The circular texture pattern that will be applied to all of the stainless steel elements will reflect the sun and create an ever changing brilliant pattern based on the movement of the sun. We have sent an actual sample of the texturized stainless steel so you can directly witness how the sunlight reflects and shines on the surface. Nature as the ultimate healer is a principal theme for this sculpture, so we felt it was important that the sun, which gives life to this planet we all share, participate in the sculpture experience. We have also built and sent to you a scale model of the sculpture so you can hold up "Remembrance and Renewal" in Liberty Gardens and see how the sculpture will balance the space once installed onto the circular pad on site. The sculpture invites the viewer to celebrate with love and honor all those lost and affected by the events of 9-11, and pay tribute to those people and loved ones in a positive, hopeful and compassionate manner. The sculpture invites contemplation and healing within the beautiful gardens and would be a landmark signature sculpture for working toward harmony, goodwill and peace around the world. The sculpture stands as a testament to no matter what actions of terror are created, there will always be citizens who will stand against it and work toward friendship, understanding and peace to make the world a better place for all. "Remembrance and Renewal" would not only become a destination point for Southlake, but an important landmark legacy sculpture for the world. Diane Weisbeck in cherry picker cutting the ribbons during the unveiling ceremony of "Water Spirits," 33 ft., created for the NYSDOS as the signature sculpture for the city of Rochester, NY. The patina used is "Statue of Liberty" green. Item 4D-5 "Water Spirits" installed, Diane Weisbeck standing next to sculpture. The water vessel is gold dyed stainless steel imported from Japan. Weisbeck Design was commissioned by the NYSDOT to create 12 "Bridge Flowers" for three newly built bridges in Rochester, NY. The "Bridge Flowers" were both sculptural art elements as well as architectural lighting and placed atop the 12 pylons of all three bridges. The perforated brass "leaves" are patinaed. Item 4D-6 "Blast Off!" rocket, 14 ft. sculpture created for the entrance to the Cradle of Aviation Museum, Garden City, Long Island, NY. The stainless steel rocket "plumes" are texturized in an irregular pattern and catch the light. This is a different pattern than the circular pattern that will be used for "Remembrance and Renewal." Project Outline Proposal submission April, 2022 Confirm design details Sign artist contract Order materials upon receipt of first payment Begin fabrication May, 2022 Submit structural drawings, includes sculpture and base, May, 2022 Complete fabrication August -Sept., 2022 Site prep: Threaded stainless steel studs and nuts to be set during the leveling, resurfacing of the concrete pad. Construction of circular raised concrete slab completed by the Southlake Arts Council, Aug., 2022 Install piece August -Sept., 2022 - Installation date to be determined Lighting In keeping with the theme of nature, we recommend the possibility of installing solar lighting around the perimeter of the sculpture. We have located a local lighting company, Creative Nightscapes, 5755 Carlisle Court, Suite 300, North Richland Hills, Texas 76180. Phone: 817-581-6936. Another possibility would be to use the existing conduit. Item 4D-7 Budget Description Cost Materials All stainless steel and brass made in the USA 4" x 4" x 11 gauge 304 stainless steel sq. tubing, 20 ft. long, 10 units 13,800.00 3' x 8' x .063" 260 mill finish brass sheet, 2 units 3200.00 6" x 96" x 14 gauge 304 stainless steel, 8 pcs. 1770.00 4" x 96" x 11 gauge 304 stainless steel strip, 1 unit 1392.00 38" x 38" x .375" 304 stainless steel, 2 units 2335.00 Materials shipping 850.00 Statue of Liberty green patina, 2 gallons 225.00 Protective clear coat 200.00 Consumables/Production Welding consumables 800.00 Finish and abrasives 550.00 Insurance 1500.00 Structural engineer 2500.00 Labor Production labor, $65.00 per hr. x 750 hrs. 48,750.00 Transportation/Installation Transport/delivery of sculpture, NY -TX 5570.00 Crane rental and operator 1500.00 Travel 1000.00 Lodging 400.00 Total 86,342.00 Project Plan Weisbeck Design will fabricate and finish all elements of the sculpture within a 4000 sq. ft. fully equipped studio space which will easily accommodate the sculpture. The sculpture will be completed prior to the completion of the prepared site by the Southlake Arts Council. Site prep will include modifying, leveling, creation of a concrete slab in accordance with structural engineer's drawings. Once the fabrication is complete we will transport the assembled sculpture using a contracted carrier. The piece will be wrapped and protected during transportation. Installation will be completed in 1 day using a crane to set the sculpture on the footing. Base plate will be secured to the footing using threaded studs per engineering drawing specs. This design is the exclusive design of Mark Weisbeck, Weisbeck Design and will be unique to Southlake, Texas. There will be no duplications or reproductions of this sculpture. Footing Weisbeck Design will provide structural engineering drawings for the sculpture and the base and a full size template for stainless steel threaded studs for anchoring the sculpture to the pad. Item 4D-8 Footing drawings and details will be provided once the concrete slab base design is confirmed. At that time we will contract a structural engineer to provide spec drawings. The piece itself will be mounted on a 1/2" steel plate that will be anchored to the footing using epoxied threaded studs, based on engineer's instructions. Maintenance This stainless steel material and the patinaed brass will have an applied clear coat and are relatively maintenance free and can be occasionally cleaned with a light spray washing, similar to the process used to washing a vehicle. Weisbeck Design will be honored to fabricate this legacy sculpture, "Remembrance and Renewal' 9-11 Memorial Sculpture for the city of Southlake, Texas. Item 4D-9 AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND MARK WEISBECK (ARTIST) FOR THE CREATION OF A SCULPTURE FOR THE CITY OF SOUTHLAKE made as of the day of May in the Year 2022 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: Mark Weisbeck, DBA Weisbeck Design PO Box 265 Greenville, NY 12083 for the following Artwork: Creation of a sculpture titled, "Remembrance and Renewal," featuring two abstract 15' tall texturized stainless -steel stylized frames with Statue of Liberty green patina on brass representing the two towers of the World Trade Center to be installed in the Liberty Gardens in Bicentennial Park by Unity Way for an amount not to exceed $86,342. 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 Mark Weisbeck, 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, "Remembrance and Renewal," featuring two abstract 15' tall texturized stainless -steel stylized frames with Statue of Liberty green patina on brass representing the two towers of the World Trade Center to be installed in the Liberty Gardens in Bicentennial Park by Unity Way for an amount not to exceed $86,342. WHEREAS, the Artist desires to render such services for the City upon the terms and conditions provided herein. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: Item 4D-10 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 the crane and related equipment; labor, barricades and traffic control. The artist will act as a consultant for said installation but shall not receive an additional fee for Artist's time or travel. The artwork shall be permanently affixed to the Site in the manner to be determined by a structural engineer as described in Exhibit "A". 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. Item 4D-11 1.6 Artwork Installation Site — The Artwork shall be permanently affixed to the installation site, located in the Liberty Gardens in Bicentennial Park by Unity Way 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 eighty-six thousand dollars and no cents ($86,342) ("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 eight thousand six hundred dollars and no cents ($8,600) 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, surveys, drawings, maps, models, reports, photographs and/or any other items prepared by Item 4D-12 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 MARK WEISBECK. 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: Copyright Artist Name Item 4D-13 or © Artist Name 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 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 Item 4D-14 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 STORAGE 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 maintenance, including, without limitation, damage by acts of God, vandalism, conservation Item 4D-15 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; 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; Item 4D-16 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 Item 4D-17 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 performance of this Item 4D-18 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: Milenka Lopez City of Southlake 285 Shady Oaks Dr. Southlake, Texas 76092 817-748-8963 City agrees that all notices or communication to Artist permitted or required under this Agreement shall be delivered to Artist at the following address: Mark Weisbeck, DBA Weisbeck Design PO Box 265 Greenville, NY 12083 518-636-6505 Item 4D-19 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 any Item 4D-20 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 Sovereiqn 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, Item 4D-21 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" � 2 7 — --)- 0 --L- 0 CITY ARTIST The City of Southlake, Texas Mark Weisbeck By: By: Shana Yelverton Mark Weisbeck Title- City Manager 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, Mark Weistmck Artist Contra Page 13 of 25 Item 4D-22 GIVEN UNDER t,.,IY HAND AND SEAL. OF OFFICE TL-flS �_/ DAY OF 2022. NOTARY P LJC INAND FOR THE STATE OF TEXAS STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, A NOTARY PUBLIC IN AND FOR THIS STATE OF TEXAS, ON THIS DAY PERSONALLY APPEARED MARK WEI SBECK KNOWN TO ME TO BE THE PERSON 'WHOSE NAME IS SUBSCRIBED TO THE FOREGOING INSTRUNIENT AND ACKNOWLEDGED TO ME THAT HEJSHE EXECUTED THE SAME FOR THE PURPOSE AND CONSIDERATION EXPRESSED, AND IN THE CAPACITY THEREIN STATED. GIVEN UNDER- MY AND AND SEAL OF OFFICE THIS DAY OF 22 OTA IC IN ND 0 THE STATE OF NEW YORK KAREN E. JAYCOX NOTARY PUBLIC -STATE OF NEW 'YORK No.OIJA5038690 Qualified in Greene County My Commission Expires January 302a;2--5 Mark Weisbeck Artist Contract Page 14 of 25 Item 4D-23 EXHIBIT "A" SCOPE OF SERVICES AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND MARK WEISBECK (ARTIST) CREATION OF A SCULPTURE TITLED "REMEMBRANCE AND RENEWAL" APPROXIMATELY 15 FEET TALL FEATURING TWO ABSTRACT TEXTURIZED STAINLESS -STEEL STYLIZED FRAMES WITH STATUE OF LIBERTY GREEN PATINA ON BRASS REPRESNETING THE TWO TOWERS OF THE WORLD TRADE CENTER TO BE INSTALLED IN THE LIBERTY GARDENS IN BICENTENNIAL PARK FOR AN AMOUNT TO NOT EXCEED $86,342. Sculpture The services are to be provided by Mark Weisbeck, sculptor, in the creation of a sculpture per the design approved by the Southlake City Council (May XX, 2022), Mark Weisbeck 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. Mark Weisbeck 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: Item 4D-24 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, including the crane and related equipment; labor, barricades and traffic control. 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 underground services not marked. ARTIST PROPOSAL: Prepared for: Liberty Gardens Bicentennial Park Project/ Southlake, Texas Public Art Program Prepared by: Weisbeck Design, Diane and Mark Weisbeck Project Details: Title: Remembrance and Renewal Medium: 304 Grade Stainless Steel square tube, 204 Brass strip, 304 Grade Stainless Steel strip. These materials do not rust, fade or deteriorate. Finish: Circular textured patterned stainless steel. Lightly textured brass with "Statue of Liberty" green patina. Clear coat. Scale: Two "towers," each, 15'H x 3' W x 3' D, with one foot separation between towers. Approx. 7' total width. Weight: Approx. 1600 lbs. Base: Two 38" x 38" x .50 inch thick 304 Stainless Steel plates. One base plate welded and integral to each tower. Threaded stainless steel studs and nuts to be set during the leveling, resurfacing of the raised concrete pad prior to Item 4D-25 installation. A subtle, marbleized pad would be an attractive, natural design element, similar in pattern to the base of the model sent to the Arts Council. Bolt patterns in base plates to be determined by structural engineer. Actual, full size templates for the bolt patterns will be provided by Weisbeck Design. Location: Liberty Gardens, Bicentennial Park, Southlake, TX Description: We have recognized that "Remembrance and Renewal" 9-11 Memorial Sculpture will coexist in perfect harmony with all of the other sculptural works in Southlake. All share one unifying theme: they are all uplifting and positive, regardless of the style or theme and all exist within a joyful environment. Symbolic meaning of the sculpture: "Remembrance and Renewal," Iconic, stylized frames representing the two towers of the World Trade Center stand tall, elegant and proud against the sky. Within the texturized stainless -steel frames, natural patina green and shining silver "leaves" gracefully twist and reach to the sky, signifying the continual beauty, growth, and renewal we receive from Mother Nature. The circular texture pattern that will be applied to all of the stainless -steel elements will reflect the sun and create an ever -changing brilliant pattern based on the movement of the sun. We have sent an actual sample of the texturized stainless steel so you can directly witness how the sunlight reflects and shines on the surface. Nature as the ultimate healer is a principal theme for this sculpture, so we felt it was important that the sun, which gives life to this planet we all share, participate in the sculpture experience. The sculpture invites the viewer to celebrate with love and honor all those lost and affected by the events of 9-11 and pay tribute to those people and loved ones in a positive, hopeful and compassionate manner. The sculpture invites contemplation and healing within the beautiful gardens and would be a landmark signature sculpture for working toward harmony, goodwill and peace around the world. The sculpture stands as a testament to no matter what actions of terror are created, there will always be citizens who will stand against it and work toward friendship, understanding and peace to make the world a better place for all. "Remembrance and Renewal" would not only become a destination point for Southlake, but an important landmark legacy sculpture for the world. Item 4D-26 "Remembrance and Renewal" 9-11 Memorial Sculpture Item 4D-27 EXHIBIT "B" COMPLETION SCHEDULE/ARTWORK BILLING AND BUDGET AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS (CITY) AND MARK WEISBECK (ARTIST) CREATION OF SCULPTURES FOR THE CITY OF SOUTHLAKE Task Timeline City Artist Project proposal Month 1 Contract signed Provides final (May 2022) Check #1 in the conceptual design Conceptual design amount of $43,171 with structural due (50%) paid engineer stamps Submit structural upon approval of drawings concept design. Fabrication of Months 2 - 4 Completes art sculpture (June 2022 — Photos submitted of piece, incorporating completed. Photos September 2022) completed any feedback from of progress fabrication stage of City Council. submitted project. City reviews piece Check #2 in amount for approval of $34,536.80 (40%) paid upon Begins fabrication approval of final work, if approved by product. City. City approves final sculpture. Final acceptance by Month 4 Approve work. Sculpture delivered project manager; (September 2022) to City and installed submit maintenance Check #3 in amount at Site by City under worksheets; of $8,634.20 (10%) Artist's supervision. dedication. due upon completion of installation. Item 4D-28 EXHIBIT "C" MAP OF LIBERTY GARDENS IN BICENTENNIAL PARK n F ILL Item 4D-29 EXHIBIT "D" AFFIDAVIT THE STATE OF COUNTY OF 1.qAJ/ on oath state r,. LJO�Al;Zr-L�rtist, make this affidavit and hereby the following: 1, andlor a person or persons related to rne, 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); 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 entity. Funds received from the business entity exceed 1.0% 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. XNone 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 c>2- 7 _ day of 2022. Signature of Official[Tille Mark Weisbeck Artist Contract Page 21 of 25 Item 4D-30 BEFORE ME, the undersignedauthority, this day personally appeared /_,,,c- �r`� s QF��� and on oath stated that the facts hereinabave stated are true to the best of his'her knowledge or belief. Sworn to and subscribed before nee on this c day of Kotaqtaof lic in The My ' n ,ire : KAREN E. JAYCOX NOTARY PUBLIC -STATE OF NEW YORK N0.01JA5038690 Qualified in Greene County My Commission Expires January 30, 20Z2 Mark Woisbeck Artist Contract Page 22 of 25 Item 4D-31 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 4B 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 WASouthlakeWiseellaneouslCbapter 176.Attaclunent0Q.092608.doc Page 1 of Item 4D-32 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 Item 4D-33 CONFLICT OF INTEREST QUESTIONNAIRE FORM C1 For vendor or other person doing bdtsi ems with local go,eemmental entity Page 2 � name of local oove 9ment otticer sA+'ath whom titer has a fiWafiotl or b usffle s relattC6mtA p. lCornp[tte tM5 Section Only it E#"m answer to A, 8. of C is YES4 ',e sexikot, Mutt 5 ifFdWing S;Alpa-ft A, it,. C A D., ttIUM.. ale, (ontplt °ot3 for each officer w4h VAVW, t fl'tty Met two 3,1% t 'Y Cut if � t fff itr� :. Afteh addAOMI pageS to M6 RVITt ivy :`tom WCVS cry, rk is. k" d swft mem omcer nameo trt this wwo fecei'vin iivv� to receive taxwe (nomm T€oi'0 We i"�w-r Of tme 0 Yes .1;8 o C. it� ft nib' of f qw-kt wmnaie weervng or Its . ,W! te. -Cv Fe taxable 0.00M. Trom Or at trie.Offt.l'l at ?rte t ca govemmem diker t "*d n IftS WOon AND fit t bie income i5 cot ftom the kical gov&M nW efwy ElYes No . IS #w filer fA Ito W."Osboorwre with a cofpcsWr buStrleps OZOV thAt file Mat: tr of ent 1AW'serveS as an ek r'of lftc w, or hoW an siFat'neTV11vP o 'W ptrroem or tTi"e Dosobe each aril€at€ itsr butoess ratl z ti * Dewtbe awy cater att:ttatwn or businoss retat unship that, rmilg:ht: cause a conttitt of mtorost.. z�-2- 7 12-- r