HomeMy WebLinkAboutContract 31887 CITY SECRETARY' r-y
CONTRACT NO . ,
AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
LORNA JORDAN FOR PUBLIC ART AND DESIGN
ENHANCEMENT RECOMMENDATIONS FOR SH-121
(SOUTHWEST PARKWAY) CORRIDOR MASTER PLAN
This Agreement, entered into this I(<4 day of _nuc 2005,
by and between the CITY OF FORT WORTH, a municipal corporation, located in
Tarrant, Denton& Wise County, Texas, (the "City") acting by and through Libby
Watson, its duly authorized Assistant City Manager and Lorna Jordan (the "Artist"),
residing at 4233 Meridian Avenue N., Seattle, Washington 98103.
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 SH-121 (Southwest
Parkway) Corridor; 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 by the Art Committee of the SH 121 Citizen's Advisory Group ("CAG"),
participate with the City's project consultants: Prime Strategies, Inc., Kittelson&
Associates, Inc., and HOK Architects (the "Design Team") to develop public art and
design enhancement recommendations (the "Work") for the SH 121 Corridor Master
Plan (the "Project") for the Southwest Parkway(SH 121) (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.
a. Artist shall actively participate and cooperate with the Design Team, project
partners [North Texas Tollway Authority (NTTA) and Texas Department of
Transportation (TxDOT)], the CAG, the Fort Worth Art Commission, and
City and Arts Council staff in creating the Work.
b. Artist may use consultant support, as determined by Artist, at no additional
expense to the City.
c. The Work shall include the Artist's recommended overall design
enhancements along the City Facility to further develop the concepts included
in the SH121 Nature & Character Plan located at http://www.sh-121t.or and
incorporated by reference herein.
d. Artist shall identify specific public art opportunities at various locations along
the City Facility, including but not limited to:
i. Landscape/earthwork (including use of excavated limestone)
ii. Drainage/water filtration
iii. Key portals (e.g., University Blvd. Underpass)
iv. Pedestrian interfaces (such as trailheads, underpasses, and
bridges)
v. Neighborhood interfaces (such as soundwalls, gateways,
arterial crossings, and retaining walls
vi. Lighting
vii. Bridges
viii. Wildlife crossings
e. Artist shall attend and participate in Fort Worth meetings as required.
Required meetings include: (1) a one-day orientation session/site tour and a
three-day SH121 Master Plan Charette #2 scheduled for April 25 — 28, 2005;
(2) a two-day SH121 master Plan Charette #3 scheduled for June 7 — 8, 2004;
and, (3) a one-day presentation to SH 121 Citizens' Advisory Group and the
Fort Worth Art Commission at a mutually agreed upon date after July 14,
2005.
f. Artist may obtain and present photographs representing selected
recommended projects and supporting examples. A photograph will not be
incorporated into the Work as a Deliverable if incorporation would constitute
a copyright or other proprietary infringement violation.
1.2 Deliverables and Public Art Director 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 Project
document to be published by North Texas Tollway Authority:
i. Master Plan Graphic (bubble diagrams on existing aerial
photographs, maps, and/or drawings indicating locations of
public art opportunities)
ii. Draft narrative describing recommended public art locations,
approaches, concepts, and media.
iii. Final written narrative describing recommended public art
locations, approaches, concepts, media, as well as potential
artists (where applicable), and potential budget allocations for
recommended public art locations, as well as a written proposal
for Artist's involvement in future concept implementation.
b. The Contract Manager's Public Art Director, and one other designated
design team member shall constitute the Artist's primary and
secondary contact person respectively. Upon completion of the draft
and final master plans, the Public Art Director shall provide
consolidated comments and clear direction to the Artist within one
week of receipt of Artist's deliverables to enable the Artist to meet the
Project schedule.
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
2.1. Fixed Fee.
The City shall pay the Artist a fixed fee in the amount of FIFTY THOUSAND
DOLLARS AND NO CENTS ($50,000), 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. Thirty-five percent (35%) within thirty (30) days of the execution of this
Agreement, recognizing that the Artist has already invested time and expense
in preliminary design team coordination with the City and its consultants.
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b. Thirty--five percent (35%) within thirty (30) days after the Artist participates
in the April Charette and submits draft "Deliverables" as required in Sections
L 1.e and 1.2.a i. And 1.2.a.ii of this Agreement.
c. Twenty percent (20%) within thirty (30) days after the Artist participates in
the June Charette and submits final "Deliverables", as required in Sections
1.I.e. and 1.2.a of this Agreement.
d. Ten percent (10%) within thirty (30) days after the Artist makes the
presentation to the SH121 Citizens' Advisory Group and the Fort Worth Art
Commission as required in Section 1.Le. of this Agreement.
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
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
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public works and improvements, in furtherance of the City's operations or for any other
reason. The City agrees to credit Artist as the creator when it graphically depicts or
displays the Work.
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
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 6
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; except that the
indemnity provided for in this paragraph shall not apply to any liability resulting from the
sole negligence of the City or its officers, agents, employees or separate contractors, and
in the event of joint and concurrent negligence of both the Artist and the City,
responsibility, if any, shall be apportioned comparatively in accordance with the laws of
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the state of Texas, 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 race, color, religion, sex, sexual orientation, or national origin.
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. 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 in all solicitation or advertisements for employment
placed on or on behalf of the Artist, state 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 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 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.
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Il i ti'
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.
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
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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.
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 Right to Complete.
After the City has paid all sums due under this Agreement, the City shall have the right to
commission, fabricate, and/or install the design enhancements produced under this
Agreement at its discretion.
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 one (1) year thereafter in order to determine
compliance with this Agreement. Throughout the Term of this Agreement and for one
(1) year 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
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cooperate fully with the City during any audit. Notwithstanding anything to the contrary
herein, this Section 7.16 shall survive expiration or earlier termination of this Agreement.
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
2. ARTIST Lorna Jordan
4233 Meridian Avenue N.
Seattle, WA 98103
IN WITNESS HEREOF, the parties hereto have executed this Agreement on this
day and year first written above.
A
ORT WORTH
on
Assistant City Manager
ARTIST
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Lorna Jordan
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APP ED AS TO FO ATTESTED BY:
Amy J. se Marty Hendrix
Assista City Attorney City Secretary
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Contract Authorization
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Date
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/10/2005
DATE: Tuesday, May 10, 2005
LOG NAME: 03121ARTJORDAN REFERENCE NO.: C-20723
SUBJECT:
Authorization to Enter into a Design Team Contract with Lorna Jordan to Develop Public Art and
Design Enhancement Recommendations for Inclusion in the SH-121 (Southwest Parkway) Corridor
Master Plan
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a Design Team Contract
with Lorna Jordan to develop public art and design enhancement recommendations for inclusion in the SH-
121 (Southwest Parkway) Corridor Master Plan, in an amount not to exceed $50,000 from Public Art
Program funds in the 2004 Capital Improvement Program (CIP).
DISCUSSION:
The SH-121 Nature & Character Plan (pg. 44) recommends that the City engage a consulting artist to work
with the Design Team, the Citizens' Advisory Group (CAG) and the Fort Worth Art Commission (FWAC) to
identify specific public art/design enhancement opportunities on which the 2% for public art/design
enhancements allocated for SH-121 (Southwest Parkway) may be expended.
BACKGROUND:
On December 13, 2004, the Fort Worth Art Commission (FWAC) recommended an artist selection process
for the SH-121 Corridor Master Plan in which the CAG or its designated committee would select an artist
from the Fort Worth Public Art Pre-Qualified List of Established Public Artists. Subsequently, on February
21, 2005, the FWAC approved that Pre-Qualified List of Established Public Artists, which includes 74 artists
selected by a panel (appointed by the FWAC) that included community and FWAC representatives, local
visual art professionals and City staff advisors from Planning, Transportation and Public Works and the
Department of Engineering. On March 3, 2005, the SH 121 CAG Art Committee met to review artists from
the Pre-Qualified List and selected artist Norie Sato as artist/planner for the SH 121 Corridor Master Plan,
and artist Lorna Jordan was an alternate.
On March 21, 2005, the FWAC endorsed the CAG Art Committee's recommendation. Subsequent to that
endorsement, the Public Art staff learned that Norie Sato was not available due to her current project
workload. Therefore, the alternate artist, Lorna Jordan, is being recommended. Ms. Jordan is available to
participate in this project.
This project is located in various Council Districts.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
SH121T Southwest Parkway Fund.
Logname: 03121ARTJORDAN Page 1 of 2
TO Fund/Account/Centers FROM Fund/Account/Centers
C221 531200 303980000510 $50,000.00
Submitted for City Manager's Office by Libby Watson (6183)
Originating Department Head: Bridgette Garrett (8518)
Additional Information Contact: Sandy Oliver (7371)
Logname: 03121ARTJORDAN Page 2 of 2