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HomeMy WebLinkAboutContract 33936 (2) T�RYL5AI DESIGN TEAM AGREEMENT BETWEEN THE CITY OF FORT WORTH AND LETITIA HUERTA FOR PUBLIC ART / DESIGN ENHANCEMENTS THE LEBOW CHANNEL WATERSHED PROJECT This Agreement by and between the CITY OF FORT WORTH, a municipal corporation, located in Tarrant County, Texas, (the "City") acting by and through Libby Watson, its duly authorized Assistant City Manager and Leticia Huerta (the "Artist"). The "Contract Manager" shall be The Arts Council of Fort Worth&Tarrant County. WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements and to promote tourism and economic vitality in the City through the artistic design of public spaces; and, WHEREAS, allocated in the 2004 Capital Improvement Program ("CIP"), are funds for artist fees and costs related to the production of artwork for the Lebow Channel Watershed Project; and, WHEREAS, the Fort Worth Art Commission has recommended that the Artist, selected from the Fort Worth Public Art Program's Pre-Qualified List of Established Artists, participate with the City's project consultants, Teague Nall and Perkins (the "Design Team"), to develop public art and design enhancement recommendations (the "Work") for the Lebow Channel Watershed Project(the"City Facility"); and, WHEREAS, the City and the Artist wish to set out the terms and conditions for the Artist's participation in the Project; NOW, THEREFORE, the City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged,agree as follows: ARTICLE 1 SCOPE OF SERVICES AND DELIVERABLES 1.1 Scope of Services. cul01 D'01 CITY M(11�_11214E.-- 1 -, a. Artist shall actively participate and cooperate with the Design Team, City staff and the Contract Manager in creating the Work. b. Artist may use consultant support, as determined by Artist, at no additional expense to the City. c. Artist shall identify specific public art opportunities within the Lebow Channel Watershed Project site, including but not limited to: i. New water crossings in the linear park and other sites along the watershed, including detention ponds; and ii. Incorporation of designs into pedestrian bridges at Trail Drivers Park or along the watershed. d. Artist shall involve at least one artist from the Fort Worth Public Art Program's Pre-Qualified List of Emerging Public Artists in the planning process and shall also suggest a range of opportunities for local artist involvement in the project. e. Artist shall attend and participate in Fort Worth meetings as required. Required meetings include: (1) an orientation session/site tour; (2) meeting with neighborhood constituents and (3) a presentation to and the project stakeholders and Fort Worth Art Commission at a mutually agreed upon date. 1.2 Deliverables and Public Art Proiect Manager Responsibility. a. Artist shall perform the services and furnish all supplies, materials, and equipment necessary in a timely manner to complete the Work and provide the following deliverables for City approval and inclusion in the document to be published by Teague Nall and Perkins : i. Graphics on presentation boards (may include diagrams on existing photographs, maps, and/or drawings indicating locations of public art opportunities); ii. Preliminary narrative and renderings describing recommended public art locations, approaches, concepts, along with cost estimates to not exceed the allocated budget of$302,681; and iii. Final written narrative and renderings describing recommended public art locations, approaches, concepts, media, and potential budget allocations for recommended public art locations, as well as a written proposal for Artist's involvement in future concept implementation. '1'.i'v''d' JU T� IK" b. The Contract Manager's public art project manager, and one other designated design team member shall constitute the Artist's primary and secondary contact person respectively. Upon completion of the proposal for inclusion of artwork at the City Facility, the public art director shall provide consolidated comments and clear direction to the Artist within two weeks of receipt of Artist's final deliverables. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fixed Fee. The City shall pay the Artist a fixed fee in the amount of THIRTY SEVEN THOUSAND EIGHT HUNDRED THIRTY FIVE DOLLARS AND NO CENTS ($37,835), which shall constitute full compensation for all services and materials to be performed and furnished by the Artist under this Agreement, inclusive of all travel expenses. The fee shall be paid in the following installments, expressed as percentages (or portions) of such fixed fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. Twenty five percent (25%) upon execution of this Agreement, recognizing the Artist has already invested time and expense in preliminary design coordination with the City; b. Twenty-five percent (25%) within thirty (30) days after the Artist submits the preliminary report and designs described in Section 1.2.a.i and 1.2a.ii; C. Forty percent (401/o) within thirty(30) days after the Artist submits the final report and other deliverables described in Section 1.2.a.iii; and d. Ten percent(10%) within thirty(3 0)days after the City notifies the Artist of its approval of detailed designs and other items required under Section 1.2.a. 2.2. Sales Taxes. The City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. The City shall supply the Artist with the "Texas 3 n'��'1 Sales Tax and Local Sales Tax Exemption Certificate," for use by Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including but not limited to services, materials, mailing/shipping charges and insurance on submissions to the City, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. ARTICLE 3 OWNERSHIP OF DESIGN AND REPRODUCTION RIGHTS The Work and all other work product under this Agreement shall become property of the City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Work. By execution of this Agreement, Artist grants to the City a perpetual, irrevocable license to graphically depict or display the Work for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of the Work intended to promote or benefit the City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by the City, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit the City's absolute, unrestricted rights incidental to the City's full ownership of the final artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part,the final artwork when the City deems it necessary within its discretion, in order to otherwise exercise the City's powers and responsibility in regard to public works and improvements, in furtherance of the City's operations or for any other reason. ARTICLE 4 WARRANTY The Work shall be the original product of the Artist's own creative efforts. Artist warrants that the Work is and will be original and agrees to assume the defense of, and indemnify and hold harmless, the City, its officers, employees, agents, and contractors from and against all claims, losses, damages, actions or expenses of every type and description, including attorney's fees, to which they may be subjected arising out of the 4 City's use or possession of the Work by reason of an alleged or actual copyright violation or other lack of ownership, authorship, or originality. ARTICLE 5 ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. The Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between the City and the Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between the City and the Artist. ARTICLE b INDEMNIFICATION The Artist agrees to defend, indemnify and hold the City, its officers, agents, servants and employees, harmless against any and all claims, lawsuits, actions, costs and expenses of any kind, including but not limited to, those for property damage or loss (including alleged damage or loss to Artist's business and any resulting lost profits) and/or personal injury, including death, that may relate to, arise out of or be occasioned by (i) the Artist's breach of any of the terms or provisions of this Agreement or (ii) any negligent act or omission or intentional misconduct of the Artist, its officers, agents, associates, employees, contractors or subcontractors, related to this Agreement. Nothing herein shall be construed as a waiver of the City's governmental immunity as further provided by the laws of Texas. ARTICLE 7 EQUAL OPPORTUNITY a. The Artist shall not discriminate against any employee or applicant for employment because of age, disability, race, color, religion, sex, sexual orientation, national origin, or familial status. The Artist shall take affirmative action to ensure that employees are treated equally during employment, without regard to their race, color, religion, sex, sexual orientation and national origin. Such action shall include but not be limited to the following: Employment, upgrading, demotion, transfer, recruitment or pay or other forms of compensations, and selection for training, including apprenticeship. 5 The Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by the City setting forth the provision of this nondiscrimination clause. b. The Artist shall state in all solicitation or advertisements for employment placed by or on behalf of the Artist that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, or national origin. C. The Artist shall furnish all information and reports requested by the City of Fort Worth, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of the Artist's noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and the Artist may be debarred from further agreements with the City of Fort Worth. ARTICLE 8 MISCELLANEOUS 8.1. Compliance. The Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of the Artist's services under this Agreement. 8.2. Entire Agreement. This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 8.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 8.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 6 8.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas —Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 8.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the City and the Artists and their respective successors and permitted assigns. 8.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of the City and the Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 8.8 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 8.9. Force Majeure. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 7 8.10. Contract Construction. The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 8.11. Fiscal Funding Out. If for any reason at any time during any term of this Agreement the City Council fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by the City to the Artist of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 8.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 8.13. Artist's Address. Artist shall notify the Contract Manager of changes in address. 8.14. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of the Artist. 8.15 Artist's Right to Complete. It is understood that the Work provided under this Agreement will require the Artist's involvement in design development and implementation phases to insure the integrity of the Artist's design and copyright. In the event that the City elects not to pursue the Work at any time after the Work is completed under this contract, all rights to its production and/or construction reverts to the Artist and the City relinquishes any claim to develop further or to construct the Work. 8 iY H '�2 1'IF%i ✓'C1 i�. v L� L•a 8.16. Right to Audit. The Artist agrees that the City will have the right to audit the financial and business records of the Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Notwithstanding anything to the contrary herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement. 8.17 Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the City's M/WBE ordinance. ARTICLE 9 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Libby Watson, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: David Yett, City Attorney Law Department 1000 Throckmorton Street Fort Worth, TX 76102 Martha Peters, Public Art Director Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, TX 76107 9 2. ARTIST Leticia Huerta 1702 Wellington Court Arlington, TX 78023 IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the latest date below. CITY F FORT WORTH LA6y Watso Assistant City Manager Date: ARTI Leticia Huerta Date: � 4 ;APROVED AS TO FORM: ATT ED BY: Leann Guzman Marty Hendrix Assistant City Attorney City Secretary Date: Date: (I I I C-21531 Contract Authorization 20 June, 2006 Date OFFICJA1IIH r1,51) 10 CITY :;:i r ?-, Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 6/20/2006 DATE: Tuesday, June 20, 2006 LOG NAME: 03LEBOWART REFERENCE NO.: C-21531 SUBJECT: Authorization to Enter into a Design Team Contract and, Upon Approval, a Subsequent Artwork Commission Contract with Leticia Huerta for Public Art/Design Enhancements for the Lebow Channel Watershed Project RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to enter into a Design Team Contract with Leticia Huerta to plan and recommend public art/design enhancements and concepts for the Lebow Channel Watershed, in an amount not to exceed $37,835; and 2. Authorize the City Manager to enter into an Artwork Commission Contract with Leticia Huerta for final design, fabrication and installation and/or installation oversight of approved public art/design enhancements for the Lebow Channel Watershed, for an amount not to $340,516. DISCUSSION: The Design Team Contract for public art will enable Leticia Huerta to work collaboratively with the City of Fort Worth and its project consultant, Teague Nall and Perkins, with community input, to develop public art/design enhancements as part of the Lebow Channel Watershed project (encompassing a 2.5 square mile area stretching southward from the BNSF/DART Railroad/33rd Street to the Trinity River and bordering Trail Drivers Park and the Stockyards). Leticia Huerta will be responsible for developing various public art/design enhancement options that reflect the adjacent neighborhoods, ranging from concepts for the new water crossings, the linear park and other sites along the watershed, including the detention ponds. Concepts for a pedestrian bridge in Trail Drivers Park may also be considered. Some design enhancements may be artist fabricated and installed, while others may be included in the construction documents. It is anticipated that implementation of the public art / design enhancements will occur under an Artwork Commission Contract and/or the agreement with the City's general contractor and shall not exceed $340,516. As the Lebow Channel Watershed is a 2004 Capital Improvement Program (CIP) drainage project, the funds for this public art will come from 2004 CIP Public Art funds. BACKGROUND: On May 17, 2005, the City Council approved the Long-Range Public Art Plan for the 2004 CIP, in which the Lebow Channel Watershed project was identified for CIP Public Art funding. On December 16, 2005, the Arts Council of Fort Worth and Tarrant County, Inc. held an artist selection panel that considered 16 artists from the Fort Worth Public Art Pre-Qualified List of Established Artists, and unanimously recommended Leticia Huerta. The Artist Selection Panel consisted of: Selection Panel (Voting): City Council Member Sal Espino, Council District 2 http://www.cfwnet.org/council_packet/Reports/mc_print.asp 11/8/2006 Page 2 of 2 Regina Blair, Fort Worth Art Commission (FWAC) Representative Kelly Dillard, Lead Project Designer, Teague Nall & Perkins Frances Colpitt, Visiting Professor, TCU Eduardo Aguilar, Art Professor, Tarrant County College Cathy Hernandez, Executive Director, Latin Arts Association of Fort Worth Eliseo Garcia, Artist, FWAC appointee Ron Shearer, President, Diamond Hill Jarvis Neighborhood Advisory Committee Gary Brinkley, Stockyard Station Advisors (Non-Voting): Teresa Ayala, Community Services Advisory Board Adelaide Leavens, Streams &Valleys, Inc. Don McChesney, Transportation / Public Works Department Harold Pitchford, Parks and Community Services Department On January 16, 2005, the Fort Worth Art Commission approved the Artist Selection Panel's recommendation of Leticia Huerta as artist for the Lebow Channel Watershed project. The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project dollars expended on public art annually. This project is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the Street Improvements Fund. TO Fund/Account/Centers FROM Fund/Account/Centers 1) $37,835.00 C200 531200 032980008430 2) $37,835.00 C200 531200 032980008433 2) $302,681.00 C200 541200 032980008480 Submitted for City Manager's Office by: Libby Watson (6183) Originating Department Head: Bridgette Garrett (8518) Additional Information Contact: Sandy Oliver (7371) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 11/8/2006