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Christopher Bennett-5/18/2015
4 lease rc,urn this copy to: City Clerk & Finance Dept. 715 Mulberry St. Waterloo, IA 50703 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 Agreement for The Commission of Public Artwork This is an AGREEMENT, made as of the I 6 day of \\-= �� \ in the year 'R(' s 5 by and between the City of Waterloo, Iowa, identified as the Owner, City of Waterloo 715 Mulberry St. Waterloo, IA 50703 and the Artist, Christopher Bennett 26983 Route J40 Keosauqua, IA 52565-8348 for the following Project: The Owner has decided to improve Lou Henry Hoover Memorial Sculpture Garden Project in accordance with the current Statewide Transportation Improvement Program. It has been determined that the Owner shall proceed with the development of three triangular limestone columns with nine etched aluminum panels each with cast bronze relief attachments and a figurative bronze piece depicting Lou Henry Hoover toward the end of her life, subject to the concurrence and approval of the Iowa Department of Transportation (Iowa DOT) and the Federal Highway Administration (FHWA) (when applicable). The Owner desires to employ the Artist to design, execute, fabricate, transport and install the artwork. The Artist is willing to create, produce and build artwork in accordance with the terms hereinafter provided and warrants that it is in compliance with Iowa statutes. Page 1 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 TABLE OF CONTENTS - Article Number and Description 1 Initial Information 1.1 Project Parameters 1.2 Financial Parameters 1.3 Project Team 1.4 Time Parameters 2 Scope of Services and Other Special Terms and Conditions 2.1 Enumeration of Parts of the Agreement 2.2 Design 2.3 Fabrication Stage 2.4 Installation 2.5 Approval and Acceptance 3 Form of Compensation 3.1 Method of Reimbursement 4 Terms and Conditions 4.1 Ownership of Documents and Artwork 4.2 Subcontractors 4.3 Design/Revision of Artwork 4.4 Extra Work 4.5 Progress Meetings 4.6 Additional Plans 4.7 Termination of Agreement 4.8 Death or Incapacity 4.9 Notices 4.10 Audit 4.11 Extension of Time 4.12 Dispute Resolution 4.13 Responsibility for Claims and Liability 4.14 Non -Raiding Clause 4.15 General Compliance with Laws 4.16 Subletting, Assignment or Transfer 4.17 Forbidding Use of Outside Agents 4.18 Artist's Endorsement on Plans 4.19 Compliance with Title 49, Code of Federal Regulations 4.20 Iowa DOT and Federal Highway Administration Participation 4.21 Severability 4.22 Risk of Loss 4.23 Artist's Representations and Warranties 4.24 Insurance and Indemnification 4.25 Ownership and Intellectual Property Rights 4.26 Artist's Rights 4.27 Permanent Record 4.28 Artist as an Independent Contractor 4.29 Assignment of Artwork Attachment A - Attachment B - Attachment C Attachment D Attachment E - Attachment F - Attachment G Scope of Work, Budget and Schedule of Completion Fees and Payments - Lump Sum and Payment Schedule - Certification Regarding Debarment, Suspension, and Other Responsibility Matters Primary Covered Transactions - Certification of Artist Certification of Owner Lump Sum Invoice Form - Insurance Requirements Page 2 of 27 ARTICLE 1 INITIAL INFORMATION 1.1 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 This Agreement is based on the following information and assumptions. Project Parameters The objective or use is that the Artist was selected by the Owner through an open call for entries and a competitive review process adopted by the Owner to design, execute, fabricate and install the Artwork, as described in the Scope of Work in Attachment A, in a public space located in a newly developed park space located across from the Grout Museum along Washington Street between West Park Avenue and West 4th Street (identified as the "Site"). 1.2 Financial Parameters 1.2.1 The financial parameters are: Amount of the Owner's budget for the Artist's compensation is $90,000.00. See Attachment A. 1.3 Project Team 1.3.1 The Owner's Designated Representative identified as the Contract Administrator is: Jeff Bales, City of Waterloo Engineering Department The Contract Administrator is the authorized representative, acting as liaison officer for the Owner for purpose of coordinating and administering the work under the Agreement. The work under this Agreement shall at all times be subject to the general supervision and direction of the Contract Administrator and shall be subject to the Contract Administrator's approval. 1.3.2 The Artist's Designated Representative is: Chris Bennett 1.4 Time Parameters 1.4.1 Date to Proceed: Artist is to begin work under this Agreement upon receipt of first designated payment and written notice to proceed from the Owner. 1.4.2 Artwork shall be completed and accepted on or before May 30, 2016 or 315 calendar days after receiving the notice to proceed (whichever is greater). 1.4.3 The Artist shall not begin activities until after the Owner has been notified by the Iowa DOT that FHWA Environmental Concurrence has been obtained. Upon receipt of such notice, the Owner will provide the Artist notice to proceed. ARTICLE 2 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 2.1 Enumeration of Parts of the Agreement. This Agreement, including its attachments, represents the entire and integrated agreement between the Owner and the Artist and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the Owner, Artist, Iowa DOT, and the FHWA (if applicable). This Agreement includes the documents listed in Paragraph 2.1.2 below. 2.1.1 The work to be performed by the Artist under this Agreement shall encompass and include all detail work, services, materials, equipment and supplies necessary to prepare and deliver the scope of services provided in Attachment A. 2.1.2 Other documents as follows: .1 Attachment A — Scope of Work, Budget and Schedule of Completion .2 Attachment B — Fees and Payments - Lump Sum .3 Attachment C — Certification Regarding Debarment, Suspension, and Other Responsibility Matters .4 Attachment D — Certification of Artist .5 Attachment E — Certification of Owner Page 3 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 .6 Attachment F — Sample Invoice Form .7 Attachment G — Insurance Requirements 2.2 Design 2.2.1 Concept/Schematic The Artist submitted a design concept/schematic with an accompanying budget, pursuant to a competition organized for the procurement of an artist to design and fabricate an Artwork suitable for the current project, which was selected and approved by the Owner. The Design (defined below) and budget shall be as set forth in Attachment A. 2.2.2 Final Design/Construction Documents 2.2.2.1 The Artist shall prepare structural drawings detailing every physical feature of the construction of the Artwork and its integration with the Site. These drawings shall indicate any risks involved in the construction, integration and maintenance of the Artwork, as well as any third party subcontractors needed to work on the project. 2.2.2.2 Where appropriate, the Artist shall present such drawings to a qualified engineer, licensed by the state and paid by the Artist, for certification that the Artwork will be of adequate structural integrity and the Artist shall provide the Owner with such certification. 2.2.2.3 Where appropriate, the Artist shall present the Design to a qualified conservator, who will make recommendations on the maintenance of the Artwork, and the Artist shall provide a written copy of the conservator's recommendations to the Owner. 2.2.2.4 The Artist shall submit to the Owner the final design concept (the "Design") in the form of detailed color drawings, models, and/or other documents as are required to present a meaningful representation of the Artwork. 2.2.2.5 The Design will include a description of the method by which the Artwork is to be fabricated and installed; a description of any operational, maintenance and conservation requirements for the Artwork; a description of the placement of the Artwork at the Site; and any site preparations that may be required by the Owner including, but not limited to, any changes or modifications to any utility system or structure of the Site as necessary. 2.2.2.6 The Design must provide sufficient detail to permit the Owner to assure compliance with applicable local, state or federal laws, ordinances and/or regulations. 2.2.3 Approval 2.2.3.1 Within 30 days after the Artist submits the Design, the Owner shall notify the Artist whether it approves or disapproves of the Design. The Owner shall have discretion in approving outright or with conditions, or rejecting the Design. The Owner shall notify the Artist of any revisions to the Design as are necessary for the Artwork to comply with any applicable laws, ordinances and/or regulations and other reasons including, but not limited to, ensuring the physical integrity of the Artwork or its installation at the Site. If agreed upon by both parties, such revisions will become a part of the accepted Design. 2.2.3.2 If the Owner disapproves of the Design, the Owner will submit to the Artist in writing the reasons for such disapproval. In such event, the Artist will submit a Revised Design within 30 days after the Owner has notified the Artist of its disapproval. The Artist will not be paid an additional fee for the Revise Design. Page 4 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 2.2.4 Redesign 2.2.4.1 The Revised Design will reflect changes made to address the Owner's stated reasons for disapproval, as well as any adjustments in the budget or schedule that may be necessary. The Owner shall notify the Artist in writing whether it approves or disapproves of the revised Design within 30 days after the Artist submits the revised design. 2.2.4.2 If the Artist refuses to revise the Design to meet the requirements of Paragraph 2.2.2, or if the Artist fails to adequately revise the Design in the judgment of the Owner, this Agreement shall terminate and the parties shall be under no further obligation to each other as of the date of such termination. The effective date of termination shall be the date the Owner submits its written disapproval of the Revised Design to the Artist. The Owner shall submit to the Artist a written termination notice with the disapproval. The termination notice shall advise the Artist that this Agreement has been terminated pursuant to this Article. The Artist is entitled to retain the compensation paid prior to the termination date. After the termination date, the parties shall have no further obligation to each other, and the Artist shall have no further claim for compensation. 2.2.4.3 The Artist must provide a detailed description of any significant changes that he desires to make in the artistic expression, design, dimensions and materials of the Artwork that is not permitted by nor in substantial conformity with the already approved Design. Such notice will also include a detailed description of any additional costs that may be incurred or changes in the budget. A significant change is any change which materially affects installation, scheduling, site preparation or maintenance of the Artwork or the concept of the Artwork as presented in the Design. If the Owner approves the changes, the Contract Administrator shall promptly notify the Artist in writing. The Contract Administrator will also make the required presentations to the Waterloo Public Art Committee and City of Waterloo staff. If the Owner disapproves of the changes, the Contract Administrator shall promptly notify the Artist in writing, and the Artist shall continue to fabricate the Artwork in substantial conformity with the Design. The Artist's fee shall be equitably adjusted for any increase or decrease in the Artist's cost of, or time required for, performance of any services under this Agreement as a result of revisions made to the Design under Paragraph 2.2.2.1. Any claim of the Artist for adjustment under this paragraph must be asserted in writing within 30 days after the date of the revision by the Artist. 2.3 Fabrication Stage 2.3.1 The Artist shall fabricate and install the Artwork in substantial conformity with the Design. The Artist may not deviate from the approved Design without written approval of the Owner. 2.3.2 The Artist shall take reasonable measures to protect or preserve the integrity of the Artwork, such as the application of protective or anti -graffiti coatings, if applicable, unless the Owner disapproves. If the Artwork is being constructed on-site, the Artist shall avoid creating nuisance conditions arising out of the Artist's operations. Prior to requesting authorization to transport and install the Artwork, the Artist shall be required to provide the Owner with a list of all workers or subcontractors and equipment to be used along with the hours of operation and the scope of work to be performed on site. All additional workers or subcontractors must provide proof of insurance prior to entering the site. 2.3.3 The Owner shall have the right to review the Artwork at reasonable times during the fabrication thereof upon reasonable notice. 2.3.4 If the Owner, upon review of the Artwork, determines that the Artwork does not conform to the Design or Revised Design, the Owner reserves the right to notify the Artist in writing of the deficiencies and that the Owner intends to withhold the next budget installment. 2.3.5 The Artist will promptly cure, at the Artist's sole expense, the Owner's objections and will notify the Owner in writing of completion of the cure. The Owner shall promptly review the Artwork, and upon approval shall release the next budget installment. If the Artist disputes the Owner's determination that the Artwork does not conform, the Artist shall promptly submit reasons in writing to the Owner within 15 days of the Owner's prior notification to the contrary. The Owner shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether the Artist has complied with the terms of this Agreement shall remain with the Owner. Page 5 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 2.3.6 The Artist shall notify the Owner in writing when fabrication of the Artwork has been completed, and that the Artwork is ready for delivery and installation at the Site if the Artwork was fabricated off-site. 2.3.7 The Owner shall inspect the Artwork within 15 days after receiving notification pursuant to paragraph (f), prior to installation, to determine that the Artwork conforms with the Design and to give final approval of the Artwork. The Owner shall not unreasonably withhold final approval of the fabricated Artwork. In the event that the Owner does withhold final approval, the Owner shall submit the reasons for such disapproval in writing within 30 days of examining the fabricated Artwork. The Artist shall then have 60 days from the date of the Owner's notice of the disapproval to make the necessary adjustments to the fabricated Artwork in accordance with such writing. The Artist shall not be penalized for any delay in the delivery and installation of the Artwork to the Site unless the Artist has willfully and substantially deviated from the Design without the prior approval of the Owner. The Artist shall then be held responsible for any expenses incurred in correcting such deviation. 2.3.8 The Owner shall promptly notify the Artist of any delays impacting installation of the Artwork. Any additional storage fees incurred as a result of such delays are the responsibility of the Owner. The Artist shall be required to inspect the Site prior to the transportation and installation of the Artwork and shall notify the Owner of any adverse Site conditions that will impact the installation of the Artwork which are in need of correction. 2.4 Installation 2.4.1 Upon the Owner's final approval of the fabricated Artwork, as being in conformity with the Design, the Artist shall deliver and install the completed Artwork to the Site in accordance with the schedule provided for in Attachment A. Transportation fees shall be paid by the Artist. 2.4.2 The Artist will coordinate closely with the Owner to ascertain that the Site is prepared to receive the Artwork. Artist must notify Owner of any adverse conditions at the Site that would affect or impede the installation of the Artwork. The Artist is responsible for timely installation of the Artwork. The Artist will confer and coordinate with the Owner to ensure timely coordination with the Owner's construction team. Artist may not install the Artwork until authorized to do so by the Owner. 2.4.3 The Artist shall be present to supervise the installation of the Artwork. 2.4.4 Upon written acceptance of the installation, the Artwork shall be deemed to be in the custody of the Owner for purposes of paragraph 4.22 and Attachment G - Insurance of this Agreement. 2.4.5 Within 30 days after installation of the Artwork, the Artist shall furnish the Owner with the following photographs of the Artwork as installed: A set of three digital, 300 dpi, JPG or TIFF files, of the Artwork, provided to the Owner on a CD ROM. Photographs must be labeled with the name of the Artwork, the date upon which the photograph was taken, and the viewpoint from which the photograph was taken. The Artist shall also furnish the Owner with a full written narrative description of the Artwork. 2.4.6 Upon installation of the Artwork, the Artist shall provide the Owner with written instructions for the appropriate maintenance and preservation of the Artwork along with product data sheets for any material or finish used. The Artwork must be durable, taking into consideration that the Site is an unsecured public space that may be exposed to elements such as weather, temperature variation, and considerable movement of people and equipment. Artist must ensure that all maintenance requirements will be reasonable in terms of time and expense. The Owner is responsible for the proper care and maintenance of the Artwork after completed installation. 2.5 Approval and Acceptance 2.5.1 The Artist shall notify the Owner in writing when all services as required of both parties by this Agreement prior to this paragraph have been completed in substantial conformity with the Design. 2.5.2 The Owner shall promptly notify the Artist of its final acceptance of the Artwork within 30 days after the Artist has submitted written notice pursuant to paragraph (a) above. The effective date of final Page 6 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 acceptance shall be the date the Owner submits written notice to the Artist of its final acceptance of the Artwork. The final acceptance shall be understood to mean that the Owner acknowledges completion of the Artwork in substantial conformity with the Design, and that the Owner confirms that all services as required of both parties by this Agreement prior to paragraph (c) of this Paragraph 2.5 have been completed. Title to the Artwork passes to the Owner upon final acceptance and final payment. 2.5.3 If the Owner disputes that all the services have been performed, the Owner shall notify the Artist in writing of those services the Artist has failed to perform within 30 days after the Artist submitted written notice pursuant to paragraph (a) above. The Artist shall promptly perform those services indicated by the Owner. 2.5.4 If the Artist disputes the Owner's determination that not all services have been performed, the Artist shall submit reasons in writing to the Owner within 30 days of the Owner's prior notification to the contrary. The Owner shall make reasonable efforts to resolve the dispute with the Artist in good faith. However, final determination as to whether all services have been performed shall remain with the Owner. 2.5.5 Upon the resolution of any disputes that arise under paragraphs (c) and (d) of this Paragraph 2.5, the Owner shall notify the Artist of its final acceptance of the Artwork pursuant to paragraph (b). 2.5.6 After final acceptance of the Artwork, the Artist shall be available at such time(s) as may be mutually agreed upon by the Owner and the Artist to attend any public meetings and community outreach functions, as well as any inauguration or presentation ceremonies relating to the dedication of the Artwork. During such public presentations by the Artist, the Artist shall acknowledge the Owner's role in funding the Artwork. The Owner shall be solely responsible for coordinating public information materials and activities related to public presentations. ARTICLE 3 FORM OF COMPENSATION 3.1 Method of Reimbursement 3.1.1 For the Artist's services as described under Article 2, compensation shall be computed in accordance with the Lump Sum compensation method, as defined in Attachment B. 3.1.2 For purposes of the payment schedule set forth in Attachment B, services performed beyond those for which the Artist has been compensated to date are services the Artist has performed after receiving a payment installment for services previously performed, but performed prior to the forthcoming installment. The Artist should keep track of the number of hours the Artist has expended in performance of this Agreement in addition to expenses incurred in the performance of this Agreement in the event that a dispute arises as to the amount of compensation that is equitable for the services performed beyond those for which the Artist has been compensated to date and for additional expenses the Artist has incurred in performance of this Agreement, such as the purchase of additional materials authorized for purchase. ARTICLE 4 TERMS AND CONDITIONS 4.1 Ownership of Documents and Artwork 4.1.1 All design, concepts, schematics, and artwork prepared, created, and built under this Agreement shall become the property of the Owner and shall be delivered to the Contract Administrator upon completion of artwork or termination of the services of the Artist. There shall be no restriction or limitation on their future use by the Owner, except any use on extensions of the project or on any other project without written verification or adaptation by the Artist for the specific purpose intended will be the Owner's sole risk and without liability or legal exposure to the Artist. 4.1.2 The Owner acknowledges the Artist's design, concepts, schematics, including all documents, and electronic media as instruments of professional service. Nevertheless, the plans and specifications Page 7 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 prepared under this Agreement shall become the property of the Owner upon completion of the services and payment in full of all moneys due to the Artist. 4.1.3 The Owner and the Artist agree that any electronic files prepared by either party shall conform to the specifications listed in Attachment A. All electronic files will be submitted to the Owner by the Artist on CD or other mutually agreed upon medium. Any change to these specifications by either the Owner or the Artist is subject to review and acceptance by the other party. 4.1.4 The Owner may reuse or make modifications to the plans and specifications, or electronic files while agreeing to take responsibility for any claims arising from any modification or unauthorized reuse of the plans and specifications. 4.2 Subcontractors 4.2.1 All provisions of this Agreement between the Owner and Artist shall also apply to all subcontractors hired by the Artist to perform work pursuant to this Agreement. It is the Artist's responsibility to ensure all contracts between the Artist and its subcontractors contain all provisions required of the Artist in this Agreement. 4.2.2 The Artist may not restrict communications between the Owner and any of the subcontractors. The Artist will encourage open communication amount the Owner, the Artist and the subcontractors. 4.3 Design/Revision of Artwork. See above Paragraphs 2.2 to 2.5, inclusive. 4.4 Extra Work. If the Artist is of the opinion that any artwork it has been directed to perform is beyond the scope of this Agreement, and constitutes "Extra Work", it shall promptly notify the Contract Administrator in writing to that effect. In the event that the Contract Administrator determines that such work does constitute "Extra Work", the Owner will provide extra compensation to the Artist upon the basis of actual costs plus a fixed fee amount, or at a negotiated lump sum. Unless written approval for "Extra Work" has been secured in advance from the Contract Administrator, and the Iowa DOT and the FHWA (when applicable) concurs, no claims will be allowed. However, the Owner shall have benefit of the service rendered. 4.5 Progress Meetings. From time to time as the work progresses, conferences, including phone conference calls, will be held at mutually convenient locations at the request of the Contract Administrator to discuss details of the design and progress of the work. The Artist shall prepare and present such information and studies as may be pertinent and necessary or as may be requested by the Contract Administrator, to enable the Contract Administrator to pass judgment on the features and progress of the work. 4.6 Additional Plans. At the request of the Contract Administrator, the Artist shall furnish sufficient prints of plans, design sketches, schematics, or other data in such detail as may be required, for the purposes of review of details and for graphic -in -hand and field check of artwork. 4.7 Termination of Agreement 4.7.1 In the event of the death of the Artist, this agreement shall be handled per paragraph 4.7.4 below. 4.7.2 The right is reserved by the Owner to terminate this Agreement at any time upon not less than thirty (30) days' written notice to the Artist. 4.7.3 In the event the Agreement is terminated by the Owner without fault on the part of the Artist, the Artist shall be paid for the reasonable artwork produced and delivered up to the effective date or time of termination. The value of the artwork performed and services rendered and delivered, and the amount to be paid shall be mutually satisfactory to the Contract Administrator and to the Artist. The Artist shall be paid a portion of the fixed fee, plus actual costs. The portion of the fixed fee shall be based on the ratio of the actual costs incurred to -the estimated actual costs contained in Attachment B. Actual costs to be reimbursed shall be determined by audit of such costs to the date established by the Contract Administrator in the termination notice, except that actual costs to be reimbursed shall not exceed the estimated actual costs, plus any authorized contingency. Page 8 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.7.4 In the event the Agreement is terminated by the Owner for fault on the part of the Artist, the Artist shall be paid only for artwork delivered to the Contract Administrator up to the date established by the termination notice. After audit of the Artist's actual costs to the date established by the Contract Administrator in the termination notice and after determination by the Contract Administrator of the amount of work satisfactorily performed, the Contract Administrator shall determine the amount to be paid to the Artist. 4.7.5 The right is reserved by the Owner to suspend this Agreement at any time. The Contract Administrator may effect such suspension by giving the Artist written notice, and it will be effective as of the date established in the suspension notice. Payment for the Artist's artwork will be made by the Owner to the date of such suspension, in accordance with Paragraph 4.7.3 above. 4.7.6 Should the Owner wish to reinstate the work after notice of suspension, such reinstatement may be accomplished by thirty (30) days' written notice within a period of one year after such suspension, unless this period is extended by written consent of the Artist. 4.7.7 This Agreement will be considered completed when all the completed artwork has been delivered and properly installed at the project site, or if the Artist is released prior to such time by written notice from the Contract Administrator. 4.8 Death or Incapacity 4.8.1 If the Artist becomes unable to complete this Agreement due to death or incapacitation, such death or incapacity will not be deemed a breach of this Agreement or a default on the part of the Artist, but nothing in this Article shall obligate the Owner to accept the Artwork. 4.8.2 In the event of incapacity, the Artist shall assign the Artist's obligations and services under this Agreement to another artist (Douglas 0. Freeman of Minneapolis, MN) provided that the Owner, in the Owner's sole discretion, approves of the new artist. Alternatively, the Owner may elect to terminate this Agreement. The Artist shall retain all rights under Paragraph 4.25 and Paragraph 4.26. The Artwork and any reproductions thereof shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright Chris Bennett 2015. 4.8.3 In the event of death, this Agreement shall terminate effective the date of death. The Artist's heirs shall retain all rights under Paragraph 4.25 and Paragraph 4.26. The Artist's executor shall deliver to the Owner the Artwork in whatever form or degree of completion it may be at the time. Title to the Artwork shall then transfer to the Owner. However, the Artwork shall not be represented to be the completed Artwork of the Artist unless the Owner is otherwise directed by the Artist's estate. 4.9 Notices. Notices required under this Agreement shall be delivered personally or by U.S. certified mail, postage prepaid, to the addresses stated below, or to any other address as may be noticed by a party: For the Owner City of Waterloo Engineering Dep't Attn: Jeff Bales 715 Mulberry Street Waterloo, IA 50703 For the Artist Chris Bennett 26983 Route J40 Keosauqua, IA 52565-8348 Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after the postmarked date. 4.10 Audit. The Artist shall maintain records of all documents, notices, checks, and other records required or produced under this Agreement or related thereto that relate to expenditures, payments and other matters of a financial nature. The Artist agrees to the maintenance of such records for archival purposes. Such records shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Auditor, Iowa Department of Transportation and the Federal Highway Administration or a designated representative of these officers. Copies of such documents shall be provided to the Owner for inspection when it is practical to do so. Access to such records and documents shall also be granted to any party authorized by the Artist, the Page 9 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 Artist's representatives, or the Artist's successors -in -interest. The Owner will comply with any open records law applicable to these records. The provisions of this paragraph shall apply during the term of this Agreement and for a period of three years from the date of final payment. 4.11 Extension of Time. The time for completion of each phase of this Agreement shall not be extended because of any delay attributed to the Artist, but may be extended by the Contract Administrator in the event of a delay attributed to the Owner or the Contract Administrator, or because of unavoidable delays caused by an act of God, war, government actions, or similar causes beyond the reasonable control of the Artist. 4.12 Dispute Resolution 4.12.1 Mediation. In an effort to resolve any conflicts that arise during the design or production of the Artwork or following the completion of the project, the Owner and the Artist agree that all disputes between them arising out of or relating to this Agreement shall be submitted to non-binding mediation in Black Hawk County, Iowa unless the parties mutually agree otherwise. The Owner and the Artist further agree to include a similar mediation provision in all agreements with independent contractors and Artists retained for the project and to require all independent contractors also to include a similar mediation provision in all agreements with subcontractors, suppliers or fabricators so retained, thereby providing for mediation as the primary method for dispute resolution between the parties to those agreements. 4.12.2 Arbitration. In the event the parties to this Agreement are unable to reach a settlement of any dispute arising out of the services under this Agreement in accordance with Paragraph 4.12.1, then such disputes shall be settled by binding arbitration by an arbitrator to be mutually agreed upon by the parties, and pursuant to the arbitration procedures set out in Iowa Code Chapter 679A. Any arbitration pursuant to this paragraph shall occur in Black Hawk County, Iowa. 4.12.3 Governing Law; Venue. The laws of the State of Iowa shall govern and determine all matters arising out of or in connection with this Agreement without regard to the conflict of law provisions of Iowa law. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Agreement, the exclusive jurisdiction for the proceeding shall be brought in the Iowa District Court for Black Hawk County. This provision shall not be construed as waiving any immunity to suit or liability, including without limitation sovereign immunity in State or Federal court, which may be available to the Owner. 4.13 Responsibility for Claims and Liability. See Paragraph 4.23.2 below. 4.14 Non -Raiding Clause. The Artist shall not engage the services of any person or persons, then in the employment of the Owner, for work covered by this Agreement without the written consent of the employer of such person. 4.15 General Compliance with Laws. The Artist shall comply with all Federal, State and Local laws and ordinances applicable to the work. 4.16 Subletting, Assignment or Transfer. Subletting, assignment, or transfer of all or part of the interest of the Artist in this Agreement is prohibited unless written consent is obtained from the Contract Administrator and the Iowa DOT and the FHWA (when applicable) concurs. 4.17 Forbidding Use of Outside Agents. The Artist warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Artist, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than bona fide employees working solely for the Artist, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Owner shall have the right to annul the Agreement without liability, or in its discretion to deduct from the Agreement price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, or counterpart fee. 4.18 Artist's Endorsement on Plans. The Artist shall endorse the completed plans for the Artwork prepared under this Agreement. Page 10 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.19 Compliance with Title 49, Code Of Federal Regulations. During the performance of this Agreement, the Artist and its assignees and successors in interest agree as follows: 4.19.1 Compliance with Regulations. The Artist will comply with the regulations of the U.S. Department of Transportation, relative to nondiscrimination in federally assisted programs of the U.S. Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this Agreement. 4.19.2 Nondiscrimination. The Artist, with regard to the work performed by it, will not discriminate on the grounds of race, religion, age, physical disability, color, sex or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Artist will not participate, either directly or indirectly, in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in the Regulations. 4.19.3 Solicitation for subcontractors and Suppliers, Including Procurement of Materials and Equipment. In all solicitations, either by competitive bidding or negotiation made by the Artist for work to be performed under a subcontract, including procurement of materials or equipment, each potential subcontractors or supplier shall be notified by the Artist of the Artist's obligation under this contract and the regulations relative to nondiscrimination on the grounds of race, religion, age, physical disability, sex, or national origin. 4.19.4 Disadvantaged Business Enterprises. The Artist or its subcontractors agree(s) to ensure that disadvantaged business enterprises (DBEs) as defined in 49 CFR Part 26 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard the Artist and all of its subcontractors shall take all necessary and reasonable steps in compliance with the Iowa DOT DBE Program to ensure disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts. The Artist and its subcontractors shall not discriminate on the basis of race, religion, age, physical disability, color, sex or national origin in the award and performance of U.S. DOT assisted contracts. If, as a condition of assistance, the Iowa DOT has submitted to the U.S. DOT, or the Artist has submitted to the Iowa DOT, and the U.S. DOT or Department has approved a disadvantaged business enterprise affirmative action program which the Iowa DOT and/or Artist agrees(s) to carry out, this program(s) is incorporated into this Agreement by reference. This program shall be treated as a legal obligation and failure to carry out its terms shall be treated as a violation of this financial assistance agreement. Upon notification to the Artist of its failure to carry out the approved program, the Owner, the Iowa DOT, and/or the U.S. DOT shall impose sanctions, which may include termination of the Agreement or other measures that may affect the ability of the Artist to obtain future U.S. DOT financial assistance. The Artist or any of its subcontractors are hereby advised that failure to fully comply with the Iowa Department of Transportation's DBE Program shall constitute a breach of contract and may result in termination of this Agreement or agreement(s) by the Owner or such remedy as the Owner deems appropriate. Refer to Paragraph 4.7 of this Agreement. 4.19.5 Information and Reports. The Artist will provide all information and reports required by the regulations, orders and instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Owner, the Iowa DOT, or the FHWA, to be pertinent to ascertain compliance with regulations, orders and instructions. Where any information required of the Artist is in the exclusive possession of another who fails or refuses to furnish this information, the Artist shall so certify to the Owner, the Iowa DOT, or the FHWA, as appropriate, and shall set forth what efforts it has made to obtain information. 4.19.6 Sanctions for Noncompliance. In the event of the Artist's noncompliance with the nondiscrimination provisions of this Agreement, the Owner shall impose such contract sanctions as it, the Iowa DOT, or the FHWA, may determine to be appropriate, including, but not limited to: 4.19.6.1 Withholding of payments to the Artist under the Agreement until the Artist complies, and/or Page 11 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.19.6.2 Cancellation, termination or suspension of the Agreement, in whole or in part. 4.19.7 Incorporation of Provisions. The Artist will include the provisions of Paragraphs 4.19.1 through 4.19.6 of this Agreement in every subagreement, including procurements of materials and lease of equipment, unless exempt by the regulations, orders or instructions issued pursuant thereto. The Artist will take such action with respect to any subagreement or procurement as the Owner, Iowa DOT, or FHWA may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event a Artist becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Artist may request the Owner, the Iowa DOT, or the United States to enter into such litigation to protect the interests of the Owner, the Iowa DOT, and the United States, respectively. 4.20 Iowa DOT and Federal Highway Administration Participation. The work under this Agreement shall be contingent upon and subject to the approval of the Iowa DOT and the Federal Highway Administration (if applicable). The Iowa DOT and the Federal Highway Administration shall have the right to participate in the conferences between the Artist and the Owner and to participate in the review or examination of the work in progress. 4.21 Severability. If any section, provision or part of this Agreement shall be adjudged invalid or unconstitutional, such adjudication shall not affect the validity of the Agreement as a whole or any section, provision, or part thereof not adjudged invalid or unconstitutional. 4.22 Risk of Loss. The Artist shall bear the risk of loss or damage to the Artwork until the Owner's final acceptance of the Artwork under Paragraph 2.5.2. The Artist shall take such measures as are reasonably necessary to protect the Artwork from Toss or damage. The Owner shall bear the risk of loss or damage to the Artwork prior to final acceptance only if, during such time, the partially or wholly completed Artwork is in the custody, control or supervision of the Owner or its agent(s) for the purposes of transporting, storing, installing or performing other services to the Artwork. 4.23 Artist's Representations and Warranties 4.23.1 Warranties of Title. The Artist represents and warrants that: 4.23.1.1 The Artwork is solely the result of the artistic effort of the Artist; 4.23.1.2 Except as otherwise disclosed in writing to the Owner, the Artwork is unique and original and does not Infringe upon any copyright or the rights of any person; 4.23.1.3 The Artwork (or duplicate thereof) has not been accepted for sale elsewhere; 4.23.1.4 The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; 4.23.1.5 The Artwork is free and clear of any liens from any source whatsoever. 4.23.1.6 All Artwork created or performed by the Artist under this Agreement, whether created by the Artist alone or in collaboration with others, shall be wholly original with the Artist and shall not infringe upon or violate the rights of any third party. 4.23.1.7 The Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. 4.23.1.8 All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc. and with all necessary care, skill, and diligence. 4.23.1.9 These representations and warranties shall survive the termination or other extinction of this Agreement. Page 12 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.23.2 Warranties of Quality and Condition 4.23.2.1 The Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Artwork) for two years after the date of final acceptance by the Owner under Paragraph 2.5.2. 4.23.2.2 The Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. 4.23.2.3 The Artist represents and warrants that reasonable maintenance of the Artwork will not require procedures substantially in excess of those described in the maintenance and preservation recommendations submitted by the Artist pursuant to Paragraph 2.4.6. 4.23.2.4 If within two (2) years the Owner observes any breach of warranty described in this Paragraph 4.23.2 that is curable by the Artist, the Artist shall, at the request of the Owner, cure the breach promptly, satisfactorily and consistent with professional conservation standards, at no expense to the Owner. The Owner shall give notice to the Artist of such breach with reasonable promptness. 4.23.2.5 If after two (2) years the Owner observes any breach of warranty described in this Paragraph 4.23.2 that is curable by the Artist, the Owner shall contact the Artist to make or supervise repairs or restorations at a reasonable fee during the Artist's lifetime. The Artist shall have the right of first refusal to make or supervise repairs or restorations. Should the Artist be unavailable or unwilling to accept reasonable compensation under the industry standard, the Owner may seek the services of a qualified restorative conservator and maintenance expert. 4.23.2.6 If within two (2) years the Owner observes a breach of warranty described in this Paragraph 4.23.2 that is not curable by the Artist, the Artist is responsible for reimbursing the Owner for damages, expenses and loss incurred by the Owner as a result of the breach. However, if the Artist disclosed the risk of this breach in the Proposal and the Owner accepted that it may occur, it shall not be deemed a breach for purposes of this Paragraph 4.23.2. 4.23.3 Acceptable Standard of Display. Artist represents and warrants that: 4.23.3.1 General routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard of public display. 4.23.3.2 Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor repairable damages and will not cause the Artwork to fall below an acceptable standard of public display. 4.23.3.3 With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable conditions that do not fall within an acceptable standard of public display, including mold, rust, fracturing, staining, chipping, tearing, abrading and peeling. 4.23.4 Manufacturer's Warranties. To the extent the Artwork incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to the Owner. The foregoing warranties are conditional, and shall be voided by the failure of the Owner to maintain the Artwork in accordance with the Artist's specifications and the applicable conservation standards. If the Owner fails to maintain the Artwork in good condition, the Artist, in addition to other rights or remedies the Artist may have in equity or at law, shall have the right to disown the Artwork as the Artist's creation and request that all credits be removed from the Artwork and reproductions thereof until the Artwork's condition is satisfactorily repaired. 4.24 Insurance and Indemnification 4.24.1 The Artist shall satisfy the insurance requirements set forth on Attachment G. Page 13 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.24.2 The Artist acknowledges that until final acceptance of the Artwork by the Owner under Attachment A, any injury to property or persons caused by the Artwork or any damage to, theft of, vandalism to, or acts of God affecting the Artwork are the sole responsibility of the Artist, including, but not limited to, any Toss occurring during the creation, storage, transportation or delivery of the Artwork, regardless of where such loss occurs. 4.24.3 Indemnity 4.24.3.1 The Artist shall indemnify the Owner, its respective officers, agents, and employees, from any claims brought arising out of the breach of this Agreement or any negligent act or omission or willful misconduct which occurs pursuant to the performance of this Agreement by the Artist, its subcontractors, agents or employees. 4.24.3.2 To the extent permitted by applicable law, the Owner shall indemnify the Artist, Artist's subcontractors, agents or employees, from any claims brought arising out of the breach of this Agreement or any negligent occurrence which occurs pursuant to the performance of this Agreement by the Owner, its officers, agents, and employees. 4.24.3.3 Each party shall immediately notify the other of any written claim regarding any matter resulting from or relating to the party's indemnity obligations under this Agreement. Each party shall cooperate, assist, and consult with the other in the defense or investigation of any such claim arising out of or relating to the performance of this Agreement. 4.24.3.4 The indemnification shall include reasonable attorneys' fees and costs. 4.24.3.5 Artist shall indemnify, protect, defend and hold harmless the Owner and its subdivisions, officials, employees and agents (each a "Covered Person") from and against all liabilities, obligations, losses, damages, judgments, costs or expenses (including legal fees and costs of investigation) (collectively "Losses") arising from, in connection with or caused by: (a) any personal injury or property damage caused, directly or indirectly, by any act or omission of Artist or (b) any infringement of patent, copyright, trademark, trade secret or other proprietary right caused by Artist. Notwithstanding the foregoing, Artist shall have no obligation under this paragraph with respect to any Loss that is caused solely by the active negligence or willful misconduct of the Covered Party and is not contributed to by any act or omission (including any failure to perform any duty imposed by law) by Artist. Artist acknowledges and agrees that its obligation to defend in this paragraph: (i) is an immediate obligation, independent of its other obligations hereunder; (ii) applies to any Loss which actually or potentially falls within the scope of this paragraph, regardless of whether the applicable allegations are or may be groundless, false or fraudulent; and (iii) arises at and continues after the time the Loss is tendered to Artist. 4.25 Ownership and Intellectual Property Rights 4.25.1 Title. Title to the Artwork shall pass to the Owner upon the Owner's written final acceptance and final payment for the Artwork pursuant to Attachment A, and Artist shall provide Owner with a Transfer of Title. 4.25.2 Ownership of Documents. One set of presentation materials prepared and submitted under this Agreement shall be retained by the Owner for possible exhibition and to hold for permanent safekeeping. 4.25.3 Copyright Ownership. The Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., as the sole author of the Artwork for the duration of the copyright. 4.25.4 Reproduction Rights 4.25.4.1 In view of the intention that the final Artwork shall be unique, the Artist shall not make any additional exact duplicate three-dimensional reproductions of the final Artwork, nor shall the Artist grant permission to others to do so except with the written permission of the Owner. However, nothing shall prevent the Artist from creating future Artworks in the Artist's manner and style of artistic expression. Page 14 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.25.4.2 The Artist grants to the Owner and its assigns an irrevocable license to make two-dimensional reproductions of the Artwork for non-commercial purposes, including, but not limited to, reproductions used in brochures, media publicity, and exhibition catalogues or other similar publications provided that these rights are exercised in a tasteful and professional manner. 4.25.4.3 All reproductions by the Owner shall contain a credit to the Artist and a copyright notice in substantially the following form: Copyright © Christopher Bennett 2015. 4.25.4.4 The Artist shall use the Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to the Owner in substantially the following form: "an original Artwork commissioned by and in the public art collection of the Waterloo Center for the Arts." 4.25.4.5 The Artist shall, at the Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Artwork in the Artist's name. 4.25.4.6 If the Owner wishes to make reproductions of the Artwork for commercial purposes, including, but not limited to, tee shirts, post cards and posters, the parties shall execute a separate agreement to address the terms of the license granted by the Artist and the royalty the Artist shall receive. 4.25.4.7 Third Party Infringement. The Owner is not responsible for any third party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. 4.26 Artist's Rights 4.26.1 General 4.26.1.1 The Artist retains all rights under state and federal laws including § 106A of the Copyright Act of 1976. 4.26.1.2 The Owner agrees that it will not intentionally alter, modify, change, destroy or damage the Artwork without first obtaining permission from the Artist. 4.26.1.3 If any alteration or damage to the Artwork occurs, the Artist shall have the right to disclaim authorship of the Artwork in addition to any remedies the Artist may have in law or equity under this contract. Upon written request, the Owner shall remove the identification plaque and all attributive references to the Artist at its own expense within 30 days of receipt of the notice. No provision of this Agreement shall obligate the Owner to alter or remove any such attributive reference printed or published prior to the Owner's receipt of such notice. The Artist may take such other action as the Artist may choose in order to disavow the Artwork. 4.26.2 Alterations of Site or Removal of Artwork 4.26.2.1 The Owner shall notify the Artist of any proposed significant alteration of the Site that would affect the intended character and appearance of the Artwork. The Owner shall make a good faith effort to consult with the Artist in the planning and execution of any such alteration. The Owner shall make a reasonable effort to maintain the integrity of the Artwork. 4.26.2.2 The Owner agrees not to arbitrarily remove or relocate the Artwork without first making a good faith effort to contact the Artist. The Artist shall not unreasonably withhold approval of removal or relocation of the Artwork. Should the Artist agree to such removal or relocation, the Artist shall provide the Owner with written handling instructions. 4.26.2.3 In the event of changes in building codes or zoning laws or regulations that cause the Artwork to be in conflict with such codes, laws or regulations, the Owner may authorize the removal or relocation of the Artwork without the Artist's prior permission. In the alternative, the Owner may commission the Artist by a separate agreement to make any necessary changes to the Artwork to render it in conformity with such codes, laws or regulations. 4.26.2.4 If the Owner reasonably determines that the Artwork presents imminent harm or hazard to the public, other than as a result of the Owner's failure to maintain the Artwork as required under this Agreement, the Owner may authorize the removal of the Artwork without the prior approval of the Artist. Page 15 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 4.26.2.5 This clause is intended to replace and substitute for the rights of the Artist under the Visual Artists' Rights Act to the extent that any portion of this Agreement is in direct conflict with those rights. The parties acknowledge that this Agreement supersedes that law to the extent that this Agreement is in direct conflict therewith. 4.27 Permanent Record. The Owner shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. 4.28 Artist as an Independent Contractor. The Artist agrees to perform all Artwork under this Agreement as an independent contractor and not as an agent or employee of the Owner. The Artist acknowledges and agrees that the Artist shall not hold himself out as an authorized agent of the Owner with the power to bind in any manner. The Artist shall provide the Owner with the Artist's Tax Identification Number and any proof of such number as requested by the Owner. 4.29 Assignment of Artwork. The Artwork and services required of the Artist are personal and shall not be assigned, sublet or transferred. Any attempt by the Artist to assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect unless prior written consent is given by the Owner. The Owner shall have the right to assign or transfer any and all of the Owner's rights and obligations under this Agreement, subject to the Artist's consent, if Ownership of the Site is transferred; if the Artist refuses to give consent, this Agreement shall terminate. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their proper officials thereunto duly authorized as of the dates below indicated. Christopher Bennett City . ` aterloo, Iowa Ap,i,t,kboate 9 15 , ayor Emest G. Clark Iowa Department of Transportation Accepted for FHWA Authorization* Date: By: Date: Cr ' Ma ley D cto O� f Systems Planning 6,22 ,.®f/5 * The Iowa DOT is not a party to this agreement. However, by signing this agreement, the Iowa DOT is indicating the work proposed under this Agreement is acceptable for FHWA authorization of Federal funds. Page 16 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT A SCOPE OF WORK, BUDGET, AND SCHEDULE OF COMPLETION A.1.1 SCOPE OF WORK The Artist will create a cast bronze, over life-size portrait figure of Lou Henry Hoover. She will be depicted seated in an appropriate era comfortable cushioned armchair. Dressed in a period, loosely fitting mid -length dress, long stockings, and high shoes, she will have one leg crossed over the other. Her left arm and hand will rest on the chair. Her right hand will be draped gently over a world globe, which is balanced in its upright stand next to her. Hrs. Hoover's head will be turned slightly, as she gazes toward the mid -distance. This piece will be similar to sketches created and submitted with the Artist's initial design proposal. The Artist will also create 9 aluminum etched pictorial collages, each focusing on a key facet of Hoover's life endeavors. On the surface of each of these etched low relief panels will be a superimposed, modeled relief bronze image or icon (i.e. a campfire to represent Hoover's affiliation with the Girl Scouts). Simple descriptive text will be added at the bottom of each impression. Panels, each measuring 14" x 20" in dimension, will be mounted on the 9 faces of three triangular limestone columns which the artist will provide and erect within the walkway along the central axis of the park. A tentative list of subjects follows (with a final list to be submitted to the Agency for final approval prior to production): Girl Scouts, Athlete, Outdoorswoman, Activist, Wife/Mother, Designer, Scholar/World Traveler, Philanthropist, First Lady. Work will be completed as follows: • The full scale clay prototype of the figure composition will be produced in the Artist's studio. • Bronze casting and finishing of the figure, chair, and globe design will be conducted by Century Bronze, of Golden, CO. • Design arrangements of the collages for the plaques will be done in the Artist's studio. • The plaques will be etched by Pella Engraving, of Pella IA. • The feature image for the plaques will be modeled in the Artist's studio. • Bronze casting and finishing of the feature element of the plaques will be conducted by Century Bronze, of Golden, CO. • The stone columns will be cut and delivered by Weber Stone Quarry, of Anamosa, IA. • Approvals of each development stage will be expected by the client via photograph or a personal visit to Bennett Studio, or if needed a visit to the foundry. • All bronze elements of the composition will be delivered by the Artist. • Two of the stone features will be installed from the streets with the aid of Weber Stone equipment upon delivery. Traffic barricades and authority for use will be provided by Owner. • The third center stone will be installed by a forklift provided by Owner. • The bronze element will be installed by a forklift provided by Owner. A.1.1.1. The Artist shall perform all services and furnish all supplies, material and/or equipment as necessary for the design and fabrication of the Artwork at the Site in accordance with the specified schedule. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. A.1.1.2. The Artist shall determine the artistic expression, design, dimensions and materials of the Artwork, subject to review and acceptance by the Owner as set forth in this Agreement. To ensure that the Artwork as installed shall not interfere with the intended use of the Site, pedestrian and other traffic flow, parking, and safety devices and procedures at the Site, the Artist's proposal shall be reviewed and approved by the Owner or, other Page 17 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 applicable city departments such as Public Works or Traffic and Sign, the Waterloo Center for the Arts and, where appropriate, the project architect to ensure compliance with these objectives. A.1.1.3. The Artist shall prepare the design concept and the corresponding budget of this Agreement. The design concept shall include a description of all materials and products utilized in the Artwork and the required routine care and upkeep involved. A.1.1.4. Artist shall coordinate with Owner, general contractor, architect and other parties, as appropriate, to communicate about the Artwork and to ensure appropriate integration and/or installation of the Artwork. A.1.1.5. The Artist shall complete the fabrication of the Artwork by the scheduled installation date as provided in Attachment A of this Agreement. A.1.1.6. The Artist shall arrange the transportation and installation of the Artwork in consultation with the Owner. If the Artist does not install the Artwork himself or herself, Artist shall supervise and approve the installation. A.1.1.7. Artist shall provide required insurance in amounts and limits specified in Attachment G. A.1.1.8. Artist shall provide a list of all subcontractors along with a copy of the agreement between the Artist and each subcontractor. A.1.1.9. Artist shall provide a maintenance manual with a description of all materials and products utilized in the Artwork and the required care and upkeep involved. A.1.1.10. Artist shall provide photographic documentation of the Artwork. A.2 Budget, Payment Schedule, Construction Schedule and Progress Reports A.2.1. Budget A.2.1.1. The budget, which includes all goods, services and materials, is $90,000.00. A.2.1.2. The Artist shall keep a log of the Artist's project hours and shall retain all original receipts pertaining directly to the project. A.2.1.3. If the Artist incurs costs in excess of the amount listed in the budget, the Artist shall pay such excess from the Artist's own funds unless the Artist previously obtained approval for such costs from the Owner. A.2.2. Schedule A.2.2.1. The Artist shall notify the Owner of the tentative schedule for the fabrication and installation of the Artwork, including a schedule for the submission of progress reports and inspections, in accordance with this Attachment A. The Schedule may be amended by written agreement. A.2.2.2. A schedule for the payment of budget installments is included in Attachment B. Page 18 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 A.3.1 Progress Reports A.3.1.1 The Artist shall provide a bi-weekly written progress report to the Contract Administrator and shall otherwise promptly respond to reasonable inquiries from the Contract Administrator regarding progress of the work. WORK SCHEDULE Weeks 1- 2 Acquisition of materials & props, preparation of modeling equipment Weeks 3-18 Development of, and finishing of Targe scale figure prototype Weeks 19-20 Approval of figure prototype Week 21 Crating and shipping of figure prototype to foundry Week 22 Foundry work on figure commencement Weeks 19-20 Research and design of photo collages Weeks 21 Approval of design of photo collages Weeks 21-22 Plaque featured images modeled Week 23 Approval of plaque featured image Week 24 Crating and shipping of plaque featured image to foundry Weeks 21-25 Plaque photo metal etching Weeks 25-30 Fabrication of stone columns Weeks 25 Foundry process on plaque feature image to commence Week 30 Foundry process on plaque feature image completion Week 31 Shipping of plaque feature image to studio Weeks 32-34 Plaque feature image assembled to plaque collage Weeks 35 Approval of plaque assembly Week 38 Foundry work on figure completion Week 39-40 Approval of cast bronze figure Week 41 Crating and shipping of figure to site or studio Week 42 Delivery, site prep, & installation of all elements Page 19 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT B (referenced from 3.1) Fees and Payments - Lump Sum and Payment Schedule B.1.1 FEES AND PAYMENTS B.1.1.1 Fees. For full and complete compensation for all work, materials, and services furnished under the terms of this Agreement, the Artist shall be paid fees on a lump sum basis and payment of this amount shall be considered as full and complete compensation for all work, materials and services furnished under the terms of this Agreement. The lump sum amount shall be $ 90.000.00. The estimated Artist hours and fees are shown in this attachment. The lump sum amount will not be changed unless there is a substantial change in the magnitude, scope, character, or complexity of the services from those covered in this Agreement. Any change in the lump sum amount will be by Supplemental Agreement. 8.1.1.2 Reimbursable Costs. Reimbursement of costs is limited to those that are allowable under the provisions of Title 48, Subchapter E, Section 31.105 and Subpart 31.2 of the current Federal Acquisition Regulation. B.1.1.3 Premium Overtime Pay. Not applicable. B.1.1.4 Payments. Payments for work completed shall be based on work completed as outlined in the Work Schedule and substantiated by progress reports. The Contract Administrator will check such progress reports and payment will be made for the prescribed amount of the installment payment. Upon completion, delivery, and acceptance of all work contemplated under this Agreement, the Artist shall submit one complete invoice statement for the balance of the lump sum fee. Payment of 100% of the total cost claimed will be made upon receipt and review of such claim. The Artist agrees to reimburse the Owner for possible overpayment determined by final audit. B.2 Payment Schedule The Owner shall pay the Artista fixed fee of $90,000, which shall constitute full and complete compensation for all the services performed and materials furnished by the Artist under this Agreement. Payment shall be made in accordance with the following scheduled installments, each installment representing full and final payment for all services and materials provided prior to payment thereof: B.2.1 $21,265.00 upon the execution of this Agreement, recognizing that the Artist will invest time and expense in preparing the Design as set forth under Attachment A; B.2.2 $36,415.00 upon submission of satisfactory documentation of progress to point of completion associated with week 18 of the production schedule; B.2.3 $12,075.00 upon submission of satisfactory documentation of progress to point of completion associated with week 21 of the production schedule; B.2.4 $5,245.00 upon submission of satisfactory documentation of progress to point of completion associated with week 25 of the production schedule; B.2.5 $15,000.00 upon delivery and installation of work and final acceptance of the Artwork by the Owner as set forth under Paragraph 2.5. Page 20 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT C Certification Regarding Debarment, Suspension, and other Responsibility Matters — Primary Covered Transactions C.1 Instructions for Certification By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. C.1.1 The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction. C.1.2 The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause of default. C.1.3 The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if at any time the prospective primary participant leams that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. C.1.4 The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person" "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the definitions and coverage sections of the rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations. C.1.5 The prospective primary participant agrees by submitting this proposal that should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. C.1.6 The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification in all lower tier covered transactions and in all solicitations for lower tier covered transactions. C.1.7 A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List. C.1.8 Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Page 21 of 27 lowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 C.1.9 Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Page 22 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 Certification Regarding Debarment, Suspension, and other Responsibility Matters — Primary Covered Transactions C.1.10 The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: C.1.10.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; C.1.10.2 Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State Antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; C.1.10.3 Are not presently indicted for or otherwise criminally or civilly charged by a govemmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and C.1.10.4 Have not within a three-year period preceding this application /proposal had one or more public transactions (Federal, State or local) terminated for cause or default. C.1.11 Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. State of Iowa Black Hawk County I, Christopher Bennett, Artist, being duly sworn (or under penalty of perjury under the laws of the United States and the State of Iowa) do hereby certify that the above statements are true and correct. 62L.(sgnature) Subscribed and sworn to this Page 23 of 27 0.1 D.1.1 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT D Certification of Artist I hereby certify that I, Christopher Bennett, am the Artist and duly authorized representative of myself, and my address is Christopher Bennett, 26983 Route J40, Keosauqua, IA 52565-8348, and that neither I nor the above firm here represented has: Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above Artist) to solicit or secure this contract, D.1.2 Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the contract, or D.1.3 Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above Artist) any fee, contribution, donation or consideration of any kind for, or in connection with, procuring or carrying out the contract; except as here expressly stated (if any). I acknowledge that this certificate is to be fumished to the Iowa Department of Transportation and the Federal Highway Administration, U.S. Department of Transportation, in connection with this contract involving participation of Federal -aid highway funds, and is subject to applicable, State and Federal laws, both criminal and civil. /1,//7-'6 (signature) Made this Page 24 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT E Certification of Owner E.1 I hereby certify that I, Ernest G. Clark, am the Mayor of the City of Waterloo and the duly authorized representative of the Owner, and that the above Artist has not been required, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this contract to: E.1.1 Employ or retain, or agree to employ or retain, any firm or person, or E.1.2 Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or consideration of any kind; except as here expressly stated (if any). I acknowledge that this certificate is to be furnished the Iowa DOT and the Federal Highway Administration, U.S. Department of Transportation, in connection with this contract involving participation of Federal -aid highway funds, and is subject to applicable State and Federal laws, both criminal and civil. (signature) Made this o2 V day of Page 25 of 27 F.1 Christopher Bennett 26983 Route J40 Keosauqua, IA 52565-8348 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT F Lump Sum Invoice Form Lump Sum Invoice Date Invoice No. STP -E -8155(723)-8V-07 Invoice Period Covered Black Hawk County Artist Job No. Lou Henry Hoover Sculpture Garden Owner Project No. 803 Total Lump Sum Amount Percentage Completed Total Less Amount Previously Billed Total Current Bill Suppliers Name Name Name Total Current Labor Hours Total Labor Hours Incurred To Date Total Estimated Labor Hours Note: When submitting a final invoice on a lump sum project, the final cumulative job cost report should be submitted with the final invoice. Page 26 of 27 Iowa DOT Project No. STP -E -8155(723)-8V-07 Owner Project No. 803 ATTACHMENT G INSURANCE REQUIREMENTS The Artist shall obtain and keep in force insurance coverage for professional liability (errors and omissions), general liability, and auto liability, with minimum limits of $1,000,000 per claim and in the aggregate, and all such other insurance required by law. Professional liability and general liability insurance shall name the "City of Waterloo, Iowa, its successors and assigns," as additional insureds. Proof of Artist's insurance coverage and all such other insurance required by law will be provided to the Owner within three (3) business days after receiving notice to proceed from the Owner, and thereafter upon each insurance coverage renewal, except that proof of auto liability insurance may be deferred until one (1) week before the Artist first comes to City for Project work. Any subcontractor of Artist that will be traveling to or from the Site must meet the requirements for auto liability insurance state above, and any such subcontractor who will be working at the Site must also meet the above requirements for general liability insurance. Page 27 of 27