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HomeMy WebLinkAboutContract 45809 (2)CITY SECRETARY, NO. �Si,1 AGREEMENT FOR COMMISSION OF PUBLIC ARTWORK BETWEEN THE CITY OF FORT WORTH AND NED KAHN d/b/a NED KAHN STUDIOS FOR HENDERSON STREET ROUNDABOUT OF THE TRINITY RIVER VISION BRIDGES PROJECT This Agreement is entered into this 1 day of OM , 2014, by and between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Ned Kahn d/b/a Ned Kahn Studios, located at 1899 Mariner Drive, Sebastopol, California, 95472. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are 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; WHEREAS, City has designed and Texas Department of Transportation ("TxDOT") is building a new Henderson Street Bridge and a new White Settlement Street Bridge over a future bypass channel to connect to Trinity Uptown and the project includes a modern roundabout at the intersection of the two streets; WHEREAS, funding for the public art project was recommended in the Public Art Plan for the 2004 Capital Improvement Program approved by City Council on May 17, 2005 (M&C G- 14801) and in the Public Art Plan for the 2008 Capital Improvement Program approved by City Council on October 26, 2010 (M&C G-17094); WHEREAS, the Project is included in the Fort Worth Public Art Fiscal Year 2014 Annual Work Plan, approved by City Council on November 12, 2013 (M&C C-26557) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, pursuant to City Secretary Contract No. 44304, Artist created a Final Design for a large scale contemporary sculpture titled "Wind Roundabout," described as a 24-foot diameter columnar veil of anodized aluminum hinged components which when activated by the wind will Agreement for Coinmission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 AUG ©FIRM ! 0 3 RDL MIT c;in raromr F E, Villnaligl9 L.f W (< create dynamic visual patterns revealing its ever -change direction and force, and internally supported by a 30-foot tall by 30-foot diameter structure of curved stainless steel tubes, to be installed in the Henderson Street Roundabout; WHEREAS, the Final Design was reviewed and approved by the FWAC on March 17, 2014; WHEREAS, on June 10, 2014, the Fort Worth City Council approved M&C C-26831, which authorized execution of this agreement for the fabrication, delivery, and installation of the Work; and WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be fabricated, delivered, and installed at the Site. NOW, THEREFORE, 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 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Ned Kahn d/b/a Ned Kahn Studios, for Commission of Public Artwork for the Site. 1.2. Artist - Means and includes Ned Kahn d/b/a Ned Kahn Studios. 1.3. Artwork Design — Means the final, City -approved design of the Work for the Site created in connection with the Final Design Contract and includes, but is not limited to, all final City -approved maquettes, drawings, sketches, prototypes, models and the like that were created by Artist in connection with the Final Design Contract. The design is for a large scale contemporary sculpture titled "Wind Roundabout," described as a 24-foot diameter columnar veil of anodized aluminum hinged components which when activated by the wind will create dynamic visual patterns revealing its ever -change direction and force, and internally supported by a 30-foot tall by 30-foot diameter structure of curved stainless steel tubes. The design and description are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers directors, employees. 1.5. City — Means and includes the City of Fort Worth, Texas. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 2of39 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement, which shall be the official date of execution of this Agreement. 1.7. Final Acceptance - Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. 1.8. Final Design Contract — Means and includes Fort Worth City Secretary Contract Number 44304, an Agreement between the City of Fort Worth and Ned Kahn d/b/a Ned Kahn Studios for Final Designs of Public Artwork. 1.9. Parties — Means and includes City and Artist. 1.10. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.11. Project Manager — Means and includes the City employee designed to act as the City's project manager and liaison with the Project Partner. 1.12. Project Partner — Means and includes the Texas Department of Transportation ("TxDOT"), who is responsible for construction of the Site. 1.13. Schedule - Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports. 1.14. Site — Means and includes the new modern roundabout to be constructed at the new intersection of Henderson Street and White Settlement Road east of the future bypass channel which serves as a western border of Trinity Uptown, more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.15. Work — Means and includes the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works, which specifically includes the Artwork Design.. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Artwork Design was reviewed and approved by the FWAC on March 17, 2014, and is the basis for executing this Agreement with Artist. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 3 of 39 2.2. Scope of Services. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. Services shall be perfoitned in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. c. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. d. Artist shall meet and coordinate with Project Manager, Project Partner and others, as necessary, to ensure proper integration of the Work into the Site. e. Upon request of City, Artist shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. f. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. g. Artist shall install the Work on dates and times mutually agreed upon by Artist, City and TxDOT. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Execution of Work a. Artist shall furnish the Schedule to the Contract Manager within fifteen (15) business days after the Effective Date. After written approval of the Schedule by City, Artist shall fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 4 of 39 b. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.4 within thirty (30) calendar days after receipt of the written request. c. Artist shall complete the fabrication of the Work in accordance with the Artwork Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager in its sole discretion, shall determine whether the changes are significant and whether the changes conform to the Artwork Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Design, then the Contract Manager shall, in light of the Artwork Design, determine whether a significant change requires City approval. If the Contract Manager determines that the significant change requires City approval then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in accordance with the dispute resolution process set forth in Article 12 of this Agreement. 2.5 Delivery and Installation. a. Artist shall notify City, through its Contract Manager, in writing when fabrication of the Work is completed and is ready for its delivery and installation at the Site. b. Construction of the footing for the sculpture, including, but not limited to labor associated with preparing the Site to receive the Work shall be performed by TxDOT, and shall be done in accordance with the specifications jointly agreed to by Artist, TxDOT, and City. c. Artist shall install all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager. Delivery and instillation activities may not commence until written permission is delivered to Artist by the City. In no event shall the installation of the Work (including any components of the Work) commence prior to the full completion of the entire Site. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 5 of 39 d. Artist shall abide by all terms and conditions of any agreement between the City and TxDOT concerning the Work at the Site. e. Artist shall be responsible for all costs associated with the materials, fabrication, delivery and installation of the Work, including, but not limited to, equipment rentals, transportation, and labor. f. Should Artist complete the Work in advance of the completion of the Site Artist shall store the Work at no expense to City until such a time as the Site is completed and the Contract Manager notifies Artist that installation may commence. g. Artist, individually and through its subcontractors, including its fabricator and/or installer, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage Artist, at his/her own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty (30) days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. h. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. 2.6. Post -installation. a. Within thirty (30) days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least seven (7) high -resolution digital images (.tiff format) and seven (7) low -resolution digital images (jpeg format) fully documenting all the individual components of the Work from at least 4 different vantage points, including detail shots and Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 6of39 overall views, with at least three (3) showing components of the Work installed, as selected by Contract Manager, to document the Work after the Work is installed. b. Artist shall make his/her best effort to be available at such time(s) as may be set by the City and Project Partner to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. c. For the duration of the Agreement, if Artist intends to seek its own publicity for the Work, such efforts and/or press releases must be approved, in advance, by City. 2.7. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached hereto as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. b. City shall notify Artist in writing of its Final Acceptance of the Work. c. Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification of Final Acceptance; or (2) the 35th day after Artist has sent the written notice to City required under this Section 2.7, unless City, upon receipt of such notice and prior to the expiration of the 35-day period gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.8. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 7of39 ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in an amount not to exceed SEVEN HUNDRED SEVENTY-SEVEN THOUSAND AND I-4IGHTY-SIX DOLLARS AND NO CENTS ($777,086.00), which shall constitute full compensation for all services to be performed and materials to be furnished by Artist under this Agreement, including, but not limited to, fabrication, transportation, installation, Artist's fee, insurance, incidental costs, all travel expenses, and any other costs associated with the Work. The Parties may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. a. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: i. THREE HUNDRED THOUSAND DOLLARS AND NO CENTS ($300,000.00) upon execution of this Agreement. ii. TWO HUNDRED THOUSAND DOLLARS AND NO CENTS ($200,000.00) upon Contract Manager's verification of 50% fabrication of the Work. iii. ONE HUNDRED THOUSAND DOLLARS AND NO CENTS ($100,000.00) upon Contract Manager s verification that the Work is ready to install. iv. ONE HUNDRED THOUSAND DOLLARS AND NO CENTS ($100,000.00) upon Contract Manager s verification that the installation of the Work is complete. v. SIX THOUSAND FOUR HUNDRED FOURTY-TWO DOLLARS AND NO CENTS ($6,442.00) within thirty-five (35) days after Final Acceptance and receipt by City of such documentation it may require concerning payment of services and supplies rendered to Artist (see Article 2); provided, however, that final delivery shall not be tendered prior to the expiration of thirty (30) days after Final Acceptance. vi. City may pay Artist contingency funds in an amount up to SEVENTY THOUSAND SIX HUNDRED FORTY-FOUR DOLLARS AND NO CENTS ($70,644.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes in fabrication or installation costs. Such payment will be made upon (i) receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Work. City shall supply Artist with the "Texas Certificate of Exemption," in Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 8 of 39 substantially the same form as that attached hereto as Exhibit "h" for use by Artist in the fulfillment of this Agreement. 3.4. 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 City and/or Contract Manager, 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 4 TERM AND TIME OF PERFORMANCE 4.1. Twin. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Duration. The services to be required of Artist set forth in Article 2 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 4.3. Early Completion of Artist Services. Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedule for delivery. 4.4. Time Extensions; Force Mai cure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the Parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 9 of 39 ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright. a. Artist represents and warrants that. i. Artwork Design and Work shall be the original product of Artist's sole creative efforts; ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person or entity; iii. Artwork Design and Work (or duplicate thereof) have not been accepted for sale elsewhere; iv. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design or Work or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; v. Artwork Designs and Work are free and clear of any liens from any source whatsoever; vi. Artist has the full legal power and authority to enter into and perform this Agreement and to make the grant of all rights, including, but not limited to, all rights pertaining to copyright, contained in this Agreement; and vii. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill, and diligence. 5.2. Warranties of Quality and Condition. a. 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 Work) for one year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. c. If, within one year after Final Acceptance City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 10 of 39 satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City, within thirty (30) days after receipt of the written notice, at no expense to City. d. If, within one year after Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 5.2. e. If, after one year from Final Acceptance, City observes any breach of warranty described in this Article 5.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading and/or peeling. iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 11 of 39 g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired. 5.3. Survival of Representations and Warranties. The representations and warranties in this Article 5 shall survive the termination or other extinction of this Agreement. ARTICLE 6 INSURANCE, INDEMNITY, AND RELEASE 6.1. General. Artist shall carry insurance as set out in Exhibit "F," which is attached hereto and incorporated herein for all purposes Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Artist shall submit evidence of required insurance to the Contract Manager prior to performance of that work Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided in Section 2.8 hereof, the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 6.2. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 6.3. Indemnity. a. General Indemnity. i. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 12 of 39 DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S SUBARTIST AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. ii. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. iii. Artist shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 6.4. Intellectual Property. Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY Agreement for Commission of Public Artwork with Ned Kalm d/b/a Ned Kahn Studios Execution Copy 7/28/14 13 of 39 BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 6.5. Survival. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the Work, including, but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and Work shall pass to City upon Final Acceptance and payment for the Work. These documents, models, and drawings will be retained for archival and exhibition purposes. Artist's Artwork Design and Work and all other work products under this Agreement shall become the property of City, without restriction on future use, except as provided below. 7.2. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 7.3. Reproduction Rights. a. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written permission of City. However nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual royalty free and irrevocable license to graphically depict and publicly display the Artwork Design and Work, and any individual components of the Artwork Design or Work, for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design or the Work intended to promote or benefit City, its public Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 14of39 services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by 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 City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy remove, move, replace, operate maintain, transport, sell or transfer, in whole or in part, the Work when City deems it necessary within its discretion in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "O date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights a copyright in the Work in Artist's name. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 8 ARTIST'S RIGHTS 8.1. Identification. Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and facilitate the design, purchase and installation of a permanent plaque at the site. 8.2. Maintenance. City recognizes that maintenance of the Work, and each component piece on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work, and each component piece, is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Section 2.5 and Exhibit "C." Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 15 of 39 8.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work, and each component piece, will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work or any component piece. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, any standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work, and/or each component piece, or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 8.4. Alteration of the Work or of the Site. a. In the event that the Work, or a component piece is incorporated into a building, structure or realty, the installation of the Work may subject it to destruction, distortion, mutilation or other modification by reason of its removal. If removal of the Work, or a component piece, would damage either the Work or the Site, City shall have the right to remove the Work, or a component piece, by any means, including destruction, in performing maintenance, repair, Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 16 of 39 renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph b. In the event that the Work, or a component piece, is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work, or such component piece, or the building or structure, Artist may be given written notice and ninety (90) days to remove the Work, or such component piece, at his or her sole expense. Upon Artist's failure to remove the Work, or a component piece, City shall have the right to remove and dispose of the Work, or such component piece, by any means, including its destruction c. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a and b. above. d. In the event the Work, or a component piece, is substantially damaged or altered, City shall no longer represent the Work or such component piece, as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the Work, or any component piece, or remove it from public display. City shall also have the right to sell or trade the Work. 8.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 8.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 15. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 8 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 8.7. Additional Rights and Remedies. Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 17 of 39 ARTICLE 9 ARTIST AS AN INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City 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 City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Artist. ARTICLE 10 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Works and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions and the right to audit provision. Artist shall provide information regarding all subcontractors, including its fabricator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager. ARTICLE 11 TERMINATION 11.1. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. In the event this Agreement is canceled by the City, pursuant to this Article 11.1, City shall be entitled, in addition to any other rights and remedies, to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 18 of 39 11.2. Death or Incapacity of Artist. a. In the event of Artist's death or Artist becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to death or incapacity. All work product produced by Artist, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. In the event of termination under this Article 11.2, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. This provision shall survive the termination or expiration of this Agreement. 11.3. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination. b. If termination is for the convenience of City, City shall pay Artist pursuant to the payment provisions in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs and the Work up to the effective date of termination. c. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provisions in Article 3 or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, designs, the Work up to the effective date of termination shall become property of City. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 19 of 39 11.4. Termination for Cause. a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 11.4 in accordance with the dispute resolution process set forth in Article 12 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this Article 11.4 shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) Title to the Artwork Design, Work and all other work product under this Agreement and any prior agreement for the Work, including, but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City's exercise of its right to complete the Work; (2) Artist shall forfeit any and all rights to the Artwork Design, Work, and all other work product under this Agreement and any prior agreement (including the Final Design Contract) for the Work, including, but not limited to, those stated under Articles 7 (Ownership and Intellectual Property) and 8 (Artist's Rights) of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and all other work product under this Agreement or any prior agreement for the Work (including the Final Design Contract) that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without limitation, the exclusive right to reproduce, prepare derivative works based upon, Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 20 of 39 distribute copies to the public as well as display said Artwork Design and/or Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, or any other work product under this Agreement and any prior agreement for the Work; and (5) Artist, pursuant to this Article 11.4, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act," and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and all other work product under this Agreement and any prior agreement as a public artwork. Nothing in this Article 11.4 shall affect the survival of Articles 5 (Warranties), 6 (Insurance and Indemnity), and 9 (Artist as an Independent Contractor) of this Agreement, which shall remain in full force and effect upon termination of this Agreement. ARTICLE 12 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 21 of 39 request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation, then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. (See Article 11.4) ARTICLE 13 EQUAL OPPORTUNITY a. Artist shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 14 MISCELLANEOUS 14.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 22 of 39 14.2. 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. 14.3. 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. 14.4. 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. 14.5. 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. 14.6. 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 Artist and its respective successors and permitted assigns. 14.7. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 14.8. 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. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 23 of 39 14.9. 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. 14.10. Fiscal Funding Out. If, for any reason, at any time during any term of this Agreement, the Fort Worth 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 Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 14.11 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14.12. Artist's Address. Artist shall notify the Contract Manager of changes in address. 14.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist except for as outlined in Article 11.2. 14.14. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (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, Artist 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 Article 14.14 shall survive expiration or earlier termination of this Agreement. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 24 of 39 14.15. Certified MBE/WBE. If applicable, Artist is encouraged to make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 14.16. Survival Provision. The provisions contained in Articles 5 (Warranties), 6 (Indemnity Provisions) 9 (Artist as Independent Contractor), 11.2 (Death or Incapacity of Artist), and 14.14 Right to Audit shall survive the termination or expiration of this Agreement. 14.17. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 14.18. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 15 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, Third Floor Fort Worth, Texas 76102 Copies to: City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 25 of 39 ARTIST Martha Peters, Vice President -• Public Art Arts Council of Fort Worth & Tarrant County 1300 Gently Street Fort Worth, Texas 76 107 Ned Kahn Ned Kahn Studios 1899 Mariner Drive Sebastopol, Calilbrnia, 95472 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH by: Fernando Costa Assistant City Manager APPROVED AS T() FORM AND LEGALITY: Jessica S s'ang Assistant 'City Attorney ATTESTED IW. Mary J. K City Secr Contract Authorization: M&C # C-26831 DATE: June 10, 2014 Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/ 14 NED KAHN d/b/a NED KAHN STUDIOS by: Ned Kahn LI 1 wQCIAL 11\Jlt©(� R CITY SECI', ti '.1f OR «=� 9 b E\ 26 o139 Exhibit A: Artwork Design Rendering of "Wind Roundabout" in the modern roundabout at the intersection of Henderson Street and White Settlement Road. Myr City at Fort Muth Henderson Street Roundabout Illustrative 5e<tton Rendering of "Wind Roundabout" in cross-section. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 aa<—y-n=�, ta2A4t04 Far F7 WCAS 27 of 39 IP Or mil ninrnannnninnion &Idol link in in non. Detail of the "veil " of anodized aluminum hinged components that move in the wind. Photo of wind activating the "veil" on a building facade by Ned Kahn. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 28 of 39 Proposal for Roundabout, Fort Worth, TX Ned Kahn, February 14, 2014 Wind Roundabout For the last 20 years, I have been making large-scale public artworks that increase people's awareness of natural phenomena. Using materials such as water, wind, fog and light, I have worked to create contemplative oases in urban environments, places where people can reconnect with the larger forces of nature. I strive to blur the boundaries between art, science, architecture and nature. In recent years, I have completed a series of artworks that reveal invisible forces in their sites by converting natural flow patterns, such as wind, into the pixelated motion of many small metal parts. I have been calling these artworks ` detectors' , for they are analogous to the detectors on telescopes and other scientific instruments that reveal the effects of the invisible. The normally unseen patterns of the wind are complex and entrancing. The psychological effect is similar to watching a fire, waves on a lake or tall grasses swaying in the wind. Most of my previous installations have involved addressing the flat facades of buildings. For the roundabout in Fort Worth, I am inspired by the idea of a wind -animated artwork that would wiap around a cylindrical `volume" of wind instead of a plane. My proposal is to create a 24' diameter veil of anodized aluminum vanes that will constantly reveal the ever - changing direction and force of the wind. This veil would be supported by a 30' tall by 30' diameter structure fabricated out of curved stainless steel tubes. Based on wind studies of the area, we anticipate that the air currents around this artwork will be quite interesting and variable. One of the paradoxical properties of some of my recent wind sculptures is that they appear to become more detailed as you view them from a greater distance because the individual `pixels" merge into a seamless rendering of the hidden patterns of the wind Even from a great distance, the proposed roundabout sculptur e will function as a dynamic beacon. The proposed wind sculpture will be virtually maintenance -free. I have developed the technology for creating wind sculptures that continue to operate for many decades without maintenance. The moving panels will be cleaned naturally by the rain and wind. The moving parts require no lubrication and will be mounted above the reach of people. If any of the components ever get damaged due to an act of vandalism, they are easy to remove and replace. I can procure spares if ever needed. My previous artworks have survived ice storms and extreme winds with no damage. The proposed artwork will be a kinetic artwork that is entirely powered by free, non -carbon producing, renewable energy: the wind The wind -animated surface of the veil will capture light from the sky and the surrounding buildings and the lights of cars at night. The appearance of the kinetic surface will change constantly in response to the passing weather and light conditions. In essence, the artwork will become an extension of the sky. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 29 of 39 My intent is to create an artwork that will change from moment to moment, day to day, and season to season, an artwork that will be intrinsically linked to the atmosphere, the invisible substance that sustains all life. The pixelated appearance of the wind -animated surface will be evocative of high-tech computer animations, yet the actual technology is quite simple, really just a collection of hinges. My hope is that the proposed artwork will function as a dynamic register for the ever - changing wind, an artwork that would define a visual oasis where people can reconnect with the mysteries of the physical world. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 30 of 39 Exhibit B: Site Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 31 of 39 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location & Description of Signature Markings (or copyright): Agieement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 32 of 39 Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: Fabricator (if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians Involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method: Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 33 of 39 Casting Alloy, Wax Body, Glass or Fiber Type: Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV, graffiti, etc. Please list vendors and contact information and provide all product information): Pedestals, Foundations & Footings Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information, parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method, provide photo documentation if available List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 34 of 39 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 35 of 39 AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Exhibit D: Affidavit Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Day of , 20 . Notary Public, State of Texas Print Name Commission Expires Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 36 of 39 Exhibit E: Sales Tax Exemption yt l M 01.339 (Back) witty a (nev.4•1370) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid Name of purchaser, firm or agency City of Fort Worth Address (Shyer & number, P.O. Box or Route number) 1000 Throckmorton street City, State, ZIP code Fort Worth, Texas 76102 Phony (Area code are number) 817-392-8325 I, the purchaser named above, claim an exemption from payment of sales and use taxes (for the purchase of taxable Items described below or on the attached order or Invoice) from: Seller: All Vendors Street address: City, State, ZIP coda• Description of items to be purchased or on the attached order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality I understand that I will be liable for payment of all state and local sates or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law, I understand that it is a criminal offense to give an exemption certificate to the seller for taxable items that I know, at the time of purchase, will be used in a manner other than that expressed in this certificate, and depending on the amount of tax evaded, Me offense may range from a Class C misdemeanor to a felony of the second degree. Purchaser here' Title Assistant Finance Director Dale NOTE: This certificate cannot be issued for the purchase, lease, or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax "Exemption Numbers" or "Tax Exempt" Numbers do not exist. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 2/26/2014 37 of 39 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability Insurance shall be provided on an occurrence basis and be as comprehensive as the culTent Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwoik, which is entrusted to the Artist and is considered to be in the Artist's care custody, and control and shall include property "in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non -owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Bodily Injury/Disease - policy limit Woikers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq Tex. Rev. Civ. Stat ). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an ' Additional Insured" on all liability policies Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 38 of 39 Artist is responsible for providing the City a thirty day (30) notice of cancellation or non -renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an intenational entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confnnung that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity In lieu of traditional insurance, alternative coverage maintained through insurance pools or 1 isk retention groups, must also approved by City s Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Agreement for Commission of Public Artwork with Ned Kahn d/b/a Ned Kahn Studios Execution Copy 7/28/14 39 of 39 COUNCIL ACTION: Approved on 6/10/2014 DATE: 6/10/2014 REFERENCE NO.: CODE: C TYPE: C-26831 LOG NAME: NON- PUBLIC CONSENT HEARING: 20ART STRUCTURE AT HENDERSON STREET AND WHITE SETTLEMENT ROAD NO SUBJECT: Authorize Execution of an Artwork Commission Agreement with Ned Kahn d/b/a Ned Kahn Studios in the Amount of $777,086.00 for Fabrication, Delivery and Installation of a Sculpture in the Roundabout at the Intersection of Henderson Street and White Settlement Road Being Constructed as Part of the Trinity River Vision Bridges Project and Provide for Unanticipated Site Conditions, Texas Department of Transportation Installation Requirements, City Inspections and Contingencies for a Total Amount Up to $847,730.00 (COUNCIL DISTRICTS 2 and 9) RECOMMENDATION: It is recommended that the City Council authorize the execution of an Artwork Commission Agreement with Ned Kahn d/b/a Ned Kahn Studios in the amount $777,086.00, for fabrication, delivery and installation of a sculpture in the roundabout at the intersection of Henderson Street and White Settlement Road being constructed as part of the Trinity River Vision Bridges Project. DISCUSSION: Under this Artwork Commission Contract, artist Ned Kahn d/b/a Ned Kahn Studios (Artist) will fabricate, deliver and install a large scale contemporary sculpture titled Wind Roundabout described as a 24-foot diameter columnar veil of anodized aluminum hinged components internally supported by a 30-foot tall by 30-foot diameter structure of curved stainless steel tubes. Fort Worth's wind will activate the hinged components creating dynamic visual patterns of the wind and revealing its ever -changing direction and force. Wind Roundabout will capture natural light and reflect the sky and at night will reflect ambient light from its surroundings. It will be completely wind -powered. Wind Roundabout will be a focal point for this important new intersection in Trinity Uptown that will support economic development efforts in the area. In addition, the vertical sculpture will provide a visual cue that will serve to slow traffic approaching the roundabout. The center of the roundabout will be contoured such that the bottom edge of the wind -activated veil will be approximately 17 feet above the roadway. Funding for this project was recommended in the Public Art Plan for the 2004 Capital Improvement Program adopted by City Council on May 17, 2005 (M&C G-14801) and the Public Art Plan for the 2008 CIP, adopted by City Council on October 26, 2010 (M&C G-17094). This project was included in the Fiscal Year 2014 Annual Work Plan and Budget approved by City Council on November 12 2013 as part of the City's Agreement with the Arts Council of Fort Worth and Tarrant County, Inc., for administration of the public art program (M&C C-26557) The public art expenditure is consistent with the $26.6 million cap on the City of Fort Worth's expenditures to the Trinity River Vision (TRV) project. In addition to the contract amount the Transportation and Public Works Department has set aside funding in an amount up to $70,644.00 for unanticipated site conditions, Texas Department of Transportation installation requirements, City inspections and contingencies. Any money unspent will be returned to the appropriate funding account source. BACKGROUND: Pursuant to a Final Design Agreement between the City of Fort Worth and the Artist (City Secretary Contract No. 44306) the Artist has completed the final design, including structural engineering and installation planning. On March 17 2014, Ned Kahn presented a mockup of a prototype of the anodized aluminum hinged components so that project stakeholders from the Trinity River Vision Bridges Advisory Committee, the Trinity River Authority Board, and others could see how they respond to wind. On the evening of March 17, 2014 Ned Kahn presented his final design to the Fort Worth Art Commission which was approved. A brief presentation of the final design and prototype was made at the Pre -Council Meeting of April 1, 2014. The City's overall MBE 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 DISTRICTS 2 and 9. Council Member Espino and Council Member Burns concur with the Fort Worth Art Commission's recommendation to commission this artwork. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services 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 C204 541200 209980014480 $444,000.00 C200 541200 209980014480 $403,730.00 Submitted for City Manaaer's Office bv: Fernando Costa (6122) Oriainatina Department Head: Douglas W. Wiersig (7801) Additional Information Contact: Martha Peters (298-3025) ATTACHMENTS MC Attachment for Commission.Ddf