Loading...
HomeMy WebLinkAboutContract 39501TAF N NO, 36rb AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BRAD GOLDBERG FOR ADVISORY CONSULTATION OF PUBLIC ART/DESIGN ENHANCEMENTS FOR THE CLEARFORK MAIN STREET BRIDGE This Agreement is entered into this 1I* day of \,A rlf` 2009, by and between the CITY OF FORT WORTH, a municipal corporation of the State of Texas (the "City") acting by and through Fernando Costa, its duly authorized Assistant City Manager and Brad J Goldberg, Inc. , a Texas corporation, (the "Consultant") acting through Brad Goldberg, its duly authorized President, 5706 Goliad Avenue, Dallas, TX 75206. City has designated the Arts Council of Fort Worth and Tarrant County, Inc. (the "Contract Manager") to manage this Agreement on its behalf. Contract Manager shall act through its Public Art Project Manager. 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 City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of City's capital infrastructure improvements and to promote tourism and economic vitality in City through the artistic design of public spaces; and, WHEREAS, City is designing and constructing a new four -lane vehicular bridge across the Trinity River, more particularly described as extending Stonegate Boulevard from the intersection at Hulen Street and connect to the planned Edwards Ranch development to the west in Fort Worth, TX, as shown on the map attached herein as Exhibit "A" (the "Site"); and, WHEREAS, City desires to include integral public art /design enhancements that would improve this bridge and allow for a more unified pedestrian -friendly crossing; and, WHEREAS, the Fort Worth Art Commission has recommended funds from the 2007 Critical Capital Needs Fund to design and implement public art /design enhancements for the Clearfork Main Street Bridge (the "Artwork"); and, WHEREAS, Consultant was selected from the Fort Worth Public Art program's Pre - Qualified List of Established Artist and approved by the Fort Worth Art Commission ("FWAC") and participated in a design charrette on July 23 -24, 2009; and, OFFICIAL RECORDI CITY SECRETARY FT. 1 WORTH, TX WHEREAS, FWAC has recommended that Consultant be retained to provide advisory consultation related to the development of integral conceptual designs for public artworks to be incorporated into the east and west abutment walls of the Clearfork Main Street bridge ("Conceptual Designs") by artists Devon Nowlin and Tommy Fitzpatrick ("Design Artists"); and, WHEREAS, City and Consultant wish to set out the terms and conditions for Consultant's participation in the Clearfork Main Street bridge project, including coordination with City's project consultant (the "Project Consultant"); NOW, THEREFORE, City and Consultant, 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 1.1 Scope of Services. a. Consultant shall assist the Public Art Project Manager by ensuring the Conceptual Design is consistent with the level of integrity of the concepts developed during the public art charette relating to the Site held on July 23-24, 2009, including location, scope, design, color, size, material, and texture of the Artwork. b. Consultant shall meet and coordinate with the Design Artists to research the feasibility of the design and to ensure proper integration of the Artwork into the Site and into the construction documents, as may be necessary. c. Consultant shall assist Public Art Project Manager by ensuring Design Artists identify experienced and qualified potential fabricators) to execute the Artwork. d. Consultant shall provide Public Art Project Manager with a written report detailing the advisory work with each of the Design Artists, including his recommendations. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. Cit shall pay Consultant a fee in an amount not to exceed FIVE THOUSAND DOLLARS AND NO CENTS ($5,000), ("Consultation Fee"), which shall constitute full compensation for all services rendered by Consultant under this Agreement, including travel expenses. Consultant shall invoice City for services monthly rendered based upon the following hourly rates for Consultant: $200 per hour for a maximum of 25 hours ($5,000). 2.2. Consultant's Expenses. Consultant shall be responsible for the payments of all expenses incurred during the performance A this Agreement, including but not limited to services, materials, mailing/shipping charges and insurance on submissions to City, cost of all travel, and costs for Consultant'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 In consideration of the Consultation Fee, Consultant hereby irrevocably assigns to City any copyright it may obtain, retain, or claim as a result of the performance of this Agreement in and to the Conceptual Designs or the Artwork. ARTICLE 4 CONSULTANT AS 1NDEPENDENT CONTRACTOR Consultant shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Consultant 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 City and Consultant, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Consultant. ARTICLE 5 INDEMNIFICATION (a) CONSULTANT COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN; AND CONSULTANT HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES DESCRIBED HEREIN. CONSULTANT LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. (b) CONSULTANT AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY ARTIST IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. (C) THIS ARTICLE 5 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE 6 DUAL OPPORTUNITY a. Consultant 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. Consultant shall take affirmative action to ensure that employees are treated equally during employment, without regard to their age, disability, race, color, religion, sex, sexual orientation, national origin, or familial status. 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. Consultant agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Consultant shall in all solicitation or advertisements for employment placed on or on behalf of Consultant, state that all qualified applicants shall receive consideration for employment without regard to race, color, religion, sex, sexual orientation, or national origin. c. Consultant shall furnish all information and reports requested by City, 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 Consultant noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Consultant may be debarred from further agreements with City. ARTICLE 7 MISCELLANEOUS 7.1. Compliance. Consultant shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Consultant services under this Agreement. 5 7.2. 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. 7.3. 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 City. 7.4. 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. 7.5. 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. 7.6. 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 City and Consultant and their respective successors and permitted assigns. 7.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Consultant, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 7.8 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. 7.9. Force Majeurea 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. 7.10. 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. 7.11. Fiscal Funding Out. If for any reason, at any time during any term of this Agreement, City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Consultant of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by City Council for the purposes set forth in this Agreement. 7.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Consultant's Address. Consultant shall notify the Contract Manager of changes in address. 7 7.14. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Consultant. 7.15. Right to Audit. Consultant agrees that City will have the right to audit the financial and business records of Consultant 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, Consultant shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Section 7.16 shall survive expiration or earlier termination of this Agreement. 7.16. Certified MWBE. If applicable, Consultant 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 City under City's M/WBE ordinance. ARTICLE 8 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: Fernando Costa, 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 it Worth, TX 76107 2. ARTIST Brad Goldberg Brad J Goldberg, Inc. 5706 Goliad Avenue Dallas, TX 75206 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] 0 IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year first written above. APPROVED AS TO FORM: A�f D. Guzm n Assistant City Attorney CITY OF FORT WORTH Fernando Costa Assistant City Manager ATTESTED BY: Marty Hendrix City Secretary NO AM&C REQUIRED ARTIST Brad J. Goldberg, Inc. Brad Goldberg OFFICIAL RECORD CITY SECRETARY T. WORTH TX Exhibit A: The Site Clearfork Main Street Bridge FORT WORTH 2008 r� _�� Stonegate Bridge 3D Visualization