HomeMy WebLinkAboutContract 36320 AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND NED KAHN d/b/a NED KAHN STUDIOS
FOR CONCEPTUAL DESIGN OF PUBLIC ARTWORK
FOR THE CENTRAL CITY BRIDGE(S)
This Agreement, entered into this 4`11^ day of PQ u , 2007,
by and between the CITY OF FORT WORTH, a municipal corporation of the State of
Texas (the "City"), acting by and through Libby Watson, its duly authorized Assistant
City Manager and NED KAHN d/b/a Ned Kahn Studios (the "Artist"), 11650 Graton
Road, Sebastopol, CA, 95472. The City has designated the Arts Council of Fort Worth
and Tarrant County, Inc. (the "Contract Manager") to manage this Agreement on its
behalf. The Contract Manager shall act through Martha Peters, its Public Art Director.
WHEREAS, the City is implementing the Fort Worth Public Art Program
pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, (the "City Code"), in order to create an enhanced visual environment for Fort
Worth residents, to commemorate the City's rich cultural and ethnic diversity, to
integrate the design work of artists into the development of the City's capital
infrastructure improvements and to promote tourism and economic vitality in the City
through the artistic design of public spaces; and,
WHEREAS, allocated in the 2004 Capital Improvement Program ("CIP"), are
funds for artist fees and costs related to the production of artwork for a project supporting
the Trinity River Vision (listed as "Henderson Street"); and,
WHEREAS, the City of Fort Worth, in conjunction with the Tarrant Regional
Water District (TRWD), is participating in conceptual design and environmental analysis
for the construction of three (3) bridges over the Trinity River Bypass Channel in order to
connect Henderson Street, White Settlement Road, and North Main Street to Trinity
Uptown; and,
WHEREAS, the Artist was selected from the Fort Worth Public Art proaram's
Pre-Qualified List of Established Artists through a process conducted btavt %G
Manager and overseen b the Fort Worth Art Commission "FWAC"
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WHEREAS, the FWAC has recommended that the Artist, as recommended by the
appointed artist selection panel, be retained to develop a conceptual design for public
artwork to be incorporated into one, two or all three bridges in collaboration with Turner
Collie & Braden, Inc., in association with Bing Thom and ARUP (collectively, the
"Project Consultants"); and,
WHEREAS, the City and Artist wish to set out the terms and conditions for the
Artist's participation in the Project;
NOW, THEREFORE, the City and Artist for and in consideration of the
covenants and agreements hereinafter set forth, the sufficiency of which is hereby
acknowledged, agree as follows:
ARTICLE 1
SCOPE OF SERVICES AND DELIVERABLES
1.1 Scope of Services.
a. Artist shall develop an integral conceptual design for a work of public art
for one, two or all three of the Central City (Trinity Uptown) Bridges, as
hereinafter defined, in a timely manner in collaboration with the City's
designated project consultants that is feasible both in terms of budget and
construction methods (the "Work").
b. Artist shall attend and participate in design team meetings as required.
Required meetings include:
1. Two (2) separate trips to Vancouver, B.C., Canada, to engage in
design team meetings with the Project Consultants at the offices of
Bing Thom Architects at mutually agreed upon dates; and,
2. One (1) trip to Fort Worth, Texas, USA, to do site research,
participate in design team meetings with the Project Consultants
and make public presentations to the Trinity Uptown Bridges
Steering Committee and the Fort Worth Art Commission
tentatively scheduled for the early December 2007, but is subject
to change; and,
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3. If necessary, one (1) trip to Fort Worth, Texas, USA, to participate
in a final conceptual design team meeting with the Project
Consultants to be scheduled in the future.
1.2. Deliverables and Public Art Director Responsibility.
a. Artist shall perform the services and furnish all supplies, materials, and
equipment necessary in a timely manner to complete the Work and provide
the following deliverables ("Deliverables") to City at a mutually agreed upon
date prior to the public presentations outlined in l.l.b.2 (above) for City
approval:
i. Sketches, mockups, technical and budget information, or
any other information as may be reasonably requested by
the Project Consultants in order to incorporate Artist's
conceptual design into drawings, renderings, models, etc.,
being prepared the Project Consultants for public
presentation. These deliverables shall be forwarded to the
Project Consultants c% Bing Thom Architects in a timely
fashion.
ii. High resolution digital conceptual design renderings.
iii. Written narrative descriptions, including the concept,
dimensions, materials, proposed or potential methods of
construction and installation, and maintenance
requirements.
iv. Written budget estimates.
V. Copy of Artists' PowerPoint presentation, if any.
b. The Contract Manager's Public Art Director and one other designated Design
Team member shall constitute the Artist's primary and secondary contact person,
respectively. The Public Art Director shall facilitate timely delivery to Artist
copies of all available relevant documents and design materials.
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c. Deadline for submission of Artist's Deliverables may be extended by mutual
written agreement between the Artist, and Artist's primary and secondary contact
persons.
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
2.1. Fixed Fee.
The City shall pay the Artist a fixed fee in the amount of THIRTY THOUSAND
DOLLARS AND NO CENTS ($30,000) (the "Fee"), which shall constitute full
compensation for all services and materials to be performed and furnished by the Artist
under this Agreement, inclusive of all travel expenses. The Fee shall be paid in the
following installments, expressed as percentages (or portions) of such Fee, each
installment to represent full and final, non-refundable payment for all services and
materials provided prior to the due date thereof:
a. Thirty-five percent (35%) within thirty (30) days of the execution of this
Agreement, recognizing that the Artist has already invested time and
expense in preliminary design team coordination with the City and its
consultants.
b. Fifth percent (50%) within thirty (30) days after the Artist submits
Deliverables, as required in Section 1.2.a.i. — iv. of this Agreement and
makes the presentation to the Steering Committee and the Fort Worth Art
Commission as required in Section 1.I.b.2. of this Agreement
c. Fifteen percent (15%) within thirty (3 0) days after the Artist participates in
final design team meeting and provides any additional information
reasonably requested by City or its Project Consultants which may be
needed to complete the conceptual design phase for the Central City
(Trinity Uptown) Bridges project.
2.2. Sales Taxes.
The City is a tax-exempt organization and no state or local sales taxes or federal excise
taxes shall be due upon the Project. The City shall supply the Artist with the "Texas
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Sales Tax and Local Sales Tax Exemption Certificate" for use by Artist in the fulfillment
of this Agreement.
2.3. Artist's Ex ep nses.
Artist shall be responsible for the payments of all expenses incurred during the
performance of this Agreement, including but not limited to services, materials,
mailing/shipping charges and insurance on submissions to the City, cost of all travel, and
costs for Artist's agents, consultants, and/or employees necessary for the proper
performance of the services required under this Agreement.
ARTICLE 3
OWNERSHIP OF DESIGN AND REPRODUCTION RIGHTS
The Work and all other work product under this Agreement shall become property of the
City, without restriction on future use, except as provided below. Artist shall retain
copyright and other intellectual property rights in and to the Work. By execution of this
Agreement, Artist grants to the City a perpetual, irrevocable license to graphically depict
or display the Work for any non-commercial purpose whatsoever; for purposes of this
limitation, any graphic depiction or display of the Work intended to promote or benefit
the City, its public services or its public purposes, regardless of whether or not a fee is
charged to the public, or whether revenue is otherwise received by the City, shall be
deemed a non-commercial purpose. Notwithstanding the above limitation, Artist agrees
and understands that nothing in this paragraph shall affect or limit the City's absolute,
unrestricted rights incidental to the City's full ownership of the Work to alter, change,
modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in
whole or in part, the Work when the City deems it necessary within its discretion, in
order to otherwise exercise the City's powers and responsibility in regard to public works
and improvements, in furtherance of the City's operations or for any other reason. The
City agrees to credit Artist as the creator and copyright holder when it graphically depicts
or displays the Work.
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ARTICLE 4
WARRANTY
The Work shall be the original product of the Artist's own creative efforts. Artist
warrants that the Work is and will be original and agrees to assume the defense of, and
indemnify and hold harmless, the City, its officers, employees, agents, and contractors
from and against all claims, losses, damages, actions or expenses of every type and
description, including attorney's fees, to which they may be subjected arising out of the
City's use or possession of the Work by reason of an alleged or actual copyright violation
or other lack of ownership, authorship, or originality.
ARTICLE 5
ARTIST AS INDEPENDENT CONTRACTOR
The Artist shall perform all work and services hereunder as an independent contractor,
and not as an officer, agent, servant or employee of the City. The Artist shall have
exclusive control of, and the exclusive right to control the details of the work performed
hereunder, and all persons performing same, and shall be solely responsible for the acts
and omissions of his/her officers, agents, employees and subcontractors. Nothing herein
shall be construed as creating a partnership or joint venture between the City and the
Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondeat
superior has no application as between the City and the Artist.
ARTICLE 6
INDEMNIFICATION
a) ARTIST 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
ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY
AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND
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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. ARTIST 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) ARTIST 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.
ARTICLE 7
EQUAL OPPORTUNITY
a. The Artist shall not discriminate against any employee or applicant for
employment because of age, disability, race, color, religion, sex, sexual orientation,
national origin, or familial status. The Artist shall take affirmative action to ensure that
employees are treated equally during employment, without regard to their 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. The Artist agrees to post in conspicuous places,
available to employees and applications for employment, notices to be provided by the
City setting forth the provision of this nondiscrimination clause.
b. The Artist shall in all solicitation or advertisements for employment
placed on or on behalf of the Artist, state that all qualified applicants shall receive
consideration for employment without regard to age, disability, race, color, religion, sex,
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sexual orientation, national origin, or familial status.
C. The Artist shall furnish all information and reports requested by the 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 the Artist is in noncompliance with the nondiscrimination
clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in
whole or in part, and the Artist may be debarred from further agreements with the City.
ARTICLE 8
MISCELLANEOUS
8.1. Compliance.
The Artist shall comply with all Federal, State and City statutes, ordinances and
regulations applicable to the performance of the Artist services under this Agreement.
8.2. Entire Agreement.
This writing embodies the entire agreement and understanding between the parties hereto,
and there are no other agreements and understandings, oral or written, with reference to
the subject matter hereof that are not merged herein and superseded hereby.
8.3. Amendments.
No alteration, change, modification or amendment of the terms of this Agreement shall
be valid or effective unless made in writing and signed by both parties hereto and
approved by appropriate action of the City.
8.4. Waiver.
No waiver of performance by either party shall be construed as or operate as a waiver of
any subsequent default of any terms, covenants, and conditions of this Agreement. The
payment or acceptance of fees for any period after a default shall not be deemed a waiver
of any right or acceptance of defective performance.
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8.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of
Texas —Fort Worth Division. This Agreement shall be construed in accordance with the
laws of the State of Texas.
8.6. Successors and Assigns
Neither party hereto shall assign, sublet or transfer its interest herein without prior written
consent of the other party, and any attempted assignment, sublease or transfer of all or
any part hereof without such prior written consent shall be void. This Agreement shall be
binding upon and shall inure to the benefit of the City and the Artists and their respective
successors and permitted assigns.
8.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of the City and
the Artist, and any lawful successor or assign, and are not intended to create any rights,
contractual or otherwise, to any other person or entity.
8.8 Severability.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired.
8.9. Force Majeure.
It is expressly understood and agreed by the parties to this Agreement that if the
performance of any obligations hereunder is delayed by reason of war; civil commotion;
acts of God; inclement weather; governmental restrictions, regulations, or interferences;
fires; strikes; lockouts, national disasters; riots; material or labor restrictions;
transportation problems; or any other circumstances which are reasonably beyond the
control of the party obligated or permitted under the terms of this Agreement to do or
perform the same, regardless of whether any such circumstance is similar to any of those
enumerated or not, the party so obligated or permitted shall be excused from doing or
performing the same during such period of delay, so that the time period applicable to
such design or construction requirement shall be extended for a period of time equal to
the period such party was delayed.
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8.10. Contract Construction.
The parties acknowledge that each party and, if it so chooses, its counsel have reviewed
and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party must not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
8.11. Fiscal Funding Out.
If for any reason, at any time during any term of this Agreement, the City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of (i) thirty (30) days
following delivery by the City to the Artist of written notice of the City's intention to
terminate or(ii) the last date for which funding has been appropriated by the City Council
for the purposes set forth in this Agreement.
8.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
8.13. Artist's Address.
Artist shall notify the Contract Manager of changes in Artist's address.
8.14. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or
legal incapacity of the Artist.
8.15 Artist's Right to Complete.
It is understood that the Work provided under this Agreement will require the Artist's
involvement in design development and implementation phases to insure the integrity of
the Artists' design and copyright. In the event that the City elects not to pursue the Work
at any time after the Work is completed under this contract, all rights to its production
and/or construction reverts to the Artist and the City relinquishes any claim to develop
further or to construct the Work.
8.16. Right to Audit.
The Artist agrees that the City will have the right to audit the financial and business
records of the Artist that relate to the Work (collectively "Records") at any time during
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the Term of this Agreement and for three (3) years thereafter in order to determine
compliance with this Agreement. Throughout the Term of this Agreement and for three
(3) years thereafter, the Artist shall make all Records available to the City on 1000
Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to
both parties following reasonable advance notice by the City and shall otherwise
cooperate fully with the City during any audit. Notwithstanding anything to the contrary
herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement.
12.17. Certified MWBE.
If applicable, Artist shall make its best effort to become a certified Minority/Women
Business Enterprise (M/WBE) firm with a certifying agency whose certification is
accepted by the City under the City's M/WBE ordinance.
ARTICLE 9
NOTICES
All notices, requests, demands, and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be deemed to
have been duly given upon the delivery or receipt thereof, as the case may be, if delivered
personally or sent by registered or certified mail, return receipt requested, postage
prepaid, as follows:
1. CITY OF FORT WORTH: Libby Watson, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Copies to: David Yett, City Attorney
Law Department
1000 Throckmorton Street
Fort Worth, TX 76102
Martha Peters, Public Art Director
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, TX 76107
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2. ARTIST Ned Kahn d/b/a
Ned Kahn Studios
11650 Graton Road
Sebastopol, CA 95472
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS HEREOF, the parties hereto have executed this Agreement on this
day and year first written above.
CITybF FORT WORTH
Libby Watson
Assistant City Manager
ARTIST
Ne Kahn d/b/a Ned Kahn Studios
APPROVED AS TO FORM: ,ATTESTED BY:
j;eann Guzman Marty Hendrix
Assistant City Attorney City Secretary
t Q4
Contract Authorization
i � lrl
Date
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 9/4/2007
DATE: Tuesday, September 04, 2007
LOG NAME: 03TRVBRIDGESART REFERENCE NO.: C-22361
SUBJECT:
Authorization to Enter into a Design Agreement with Ned Kahn, d/b/a Ned Kahn Studios, for
Conceptual Design of Integral Public Art/Design Enhancements for the Central City (Trinity Uptown)
Bridges
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into a Design Agreement, in the
amount of$30,000, with Ned Kahn, d/b/a Ned Kahn Studios, for integral public art/design enhancements for
the Central City (Trinity Uptown) Bridges.
DISCUSSION:
Ned Kahn's public artworks seek to increase the public's awareness of natural phenomena, with his
masterful use of water, wind and light. Informed by science and architecture, Kahn creates contemplative
oases in busy urban environments, in which people may reconnect with the forces of nature. Under this
Design Agreement, Ned Kahn will work collaboratively with project consultants, Turner Collie and Braden, to
develop a conceptual design for a public art/design enhancement project that will be integral to one or more
of the three Central City Bridges over the new Trinity River Bypass Channel, connecting Henderson Street,
White Settlement Road and North Main Street to Trinity Uptown. It is anticipated that the fabrication and
installation of art components may be handled through a combination of an Artwork Commission Contract
between the City and Ned Kahn, d/b/a Ned Kahn Studios, and the general contractor for the bridges.
On July 11, 2006, (M&C C-21560) the City Council authorized an agreement with Turner Collie and Braden
for conceptual and schematic bridge design/engineering for the Fort Worth Central City Project, also known
as Trinity Uptown Bridges. This project supporting the Trinity River Vision was included in the 2004 Capital
Improvement Program (CIP). The Long-Range Public Art Plan for the 2004 Capital Improvement Program,
adopted by City Council on May 17, 2005, earmarked an estimated $253,917 from 2004 CIP Public Art
funds (Proposition One) for public art/design enhancements.
BACKGROUND:
Using the process and guidelines established in the Fort Worth Public Art Master Plan, which the City
Council adopted in September 2003, an artist selection panel, chaired by Councilmember Wendy Davis and
including representatives of the consultant team, the Fort Worth Art Commission (FWAC) and the
community, reviewed the qualifications of 20 local and national artists / artist teams from the Pre-Qualified
List of Established Public Artists on January 26, 2007, and selected three finalists. On May 16, 2007, the
artist selection panel interviewed the finalists, Elizabeth Connor, Dan Corson and Ned Kahn, and
recommended Ned Kahn for the project.
Selection Panelists (Voting):
Michael Bennett, Architect, Gideon Toal
Bill Campbell, Owner, William Campbell Contemporary Art
David Conn, Artist and Studio Art Professor, Texas Christian University
http://www.fortworthgov.org/council packet/Reports/mc print.asp 12/12/2007
• Page 2 of 2
Councilmember Wendy Davis, City Council District 9
Councilmember Salvador Espino, City Council District 2
Carlos Flores, Member, Northside Neighborhood Association
Rebecca Lawton, Curator, Amon Carter Museum and FWAC Representative
Helen Sides, Executive Director, Cultural Center of the Americas and FWAC Representative
Bing Thom, Project Consultant, Bing Thom Architects
Advisors (Non-voting);
Randle Harwood, Director, Trinity Uptown, City of Fort Worth
Cathy Hernandez, Executive Director, Latin Arts Association
Jack Kendrick, Board Member, Streams & Valleys
Ann Kovich, AICP, Turner, Collie & Braden
Tom Leuschen, P.E., Transportation Manager, T/PW, City of Fort Worth
Rosa Navajar, Executive Director, Hispanic Chamber of Commerce
Kristin Vinson, Member, Metropolitan Black Chamber of Commerce
On May 16, 2007, the Fort Worth Art Commission reviewed the artist selection panel's recommendation and
made a formal recommendation to the City Council to engage Ned Kahn for the Central City Bridges
projects.
The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project
dollars expended on public art annually.
This project is located in COUNCIL DISTRICTS 2 & 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Street Improvements Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
C200 531200 039980014430 $30,000.00
Libby Watson (6183)
Submitted_for City Manager's Office bv:
Karen Montgomery (6222)
Originating Department He-ad: Bridgette Garrett (8518)
Additional Information Contact: Sandy Oliver (7371)
http://www.fortworthgov.org/council packet/Reports/mc print.aso 12/12/2007