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HomeMy WebLinkAboutContract 39320 CITY SECRETARY vC�JTRAC:T NO AGREEMENT BETWEEN THE CITY OF FORT WORTH AND TOMMY FITZPATRICK FOR CONCEPTUAL DESIGN OF PUBLIC ART/DESIGN ENHANCEMENTS FOR THE CLEARFORK MAIN STREET BRIDGE This Agreement is entered into this day of 2009, by and between the CITY OF FORT WORTH, a municipal corporation, of the State of Texas, (the "City") acting by and through Fernando Costa, its duly authorized Assistant City Manager and TOMMY FITZPATRICK (the "Artist") of 816 Pin Oak Lane, Arlington, TX 76012. 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 its Public Art Project Manager. WHEREAS, City is implementing the Fort Worth Public Art Program pursuant to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, (the "City Code"), in order to create an enhanced visual environment for Fort Worth residents, to commemorate City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of City's capital infrastructure improvements and to promote tourism and economic vitality in City through the artistic design of public spaces; and, WHEREAS, City is designing and constructing a new four-lane vehicular bridge across the Trinity River, more particularly described as extending Stonegate Boulevard from the intersection at Hulen Street and connect to the planned Edwards Ranch development to the west in Fort Worth, TX, and more specifically, the east abutment wall as shown on Exhibit "A", attached hereto and made apart hereof for all purposes (the"Site"); and, WHEREAS, City desires to include integral public art/design enhancements that would improve this bridge and allow for a more unified pedestrian-friendly crossing; and, WHEREAS, the Fort Worth Art Commission has recommended funds from the 2007 Critical Capital Needs Fund to design and implement public art / design enhancements for the Clearfork Main Street Bridge (the "Artwork"); and, WHEREAS, Artist was selected from the Fort Worth Public Art program's Pre-Qualified List of Emerging Artists and approved by the Fort Worth Art Commission ("FWAC") and participated in a design charrette on July 23 -24, 2009; and, 1 WHEREAS, the FWAC has recommended that Artist be retained to develop a conceptual design for public artwork to be incorporated into the Clearfork Main Street bridge in coordination with artist Devon Nowlin (the "Other Artist"), who is addressing the opposite wall, and in association with artist advisor Brad Goldberg (the"Advisory Artist"); and, WHEREAS, City and Artist wish to set out the terms and conditions for Artist's participation in the Clearfork Main Street bridge project, including coordination with City's project consultant(the "Project Consultant"). 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 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 the east abutment wall of the Clearfork Main Street Bridge (the "Conceptual Design") in a timely manner in collaboration with City's designated project consultants that is feasible both in terms of budget and construction methods. b. Artist, in coordination with the Other Artist, the Advisory Artist and Project Consultant, shall determine the artistic expression, scope, design, color, size, material, and texture of the Conceptual Design, subject to review and acceptance by City as set forth in this Agreement. c. Artist shall meet and coordinate with the Project Consultant to research the feasibility of the design and to ensure proper integration of the Conceptual Design into the Site and into the construction documents, as may be necessary. d. Artist shall present a preliminary design to the designated community stakeholders group, City Council Member and City officials for input. 2 1.2. Conceptual Design Deliverables a. Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 1.2.a.i.—iv. (collectively, the "Conceptual Design Deliverables")to City for approval. Conceptual Design Deliverables shall consist of the following: i. Sketches, mockups, technical and budget information, or any other information including proposed or potential methods of construction and installation 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 baseline bid documents. These deliverables shall be forwarded to the Project Consultants in a timely manner. ii. Detailed design illustrations of the Conceptual Design for the Site; these illustrations shall be at least 20" x 30" mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files. iii. Written narrative descriptions, including the concept, dimensions, materials, proposed or potential methods of construction and installation, and maintenance requirements. iv. Identify potential experienced and qualified fabricator(s) to execute the Artwork by obtaining material samples/examples of comparable work by selected fabricator(s)and obtaining written estimate(s). V. Conceptual budget, with written estimates using the form in Exhibit "B", attached hereto and made apart hereof for all purposes, in an amount not to exceed $51,875. b. Deadline for submission of Conceptual Design Deliverables may be extended by mutual written agreement between Artist and the City. c. Upon approval, Artist shall provide the Conceptual Design presentation materials to the Contract Manager to become part of City's Public Art archive. 3 d. Upon request by Artist, City, the Project Consultant and/or project manager shall furnish all information, materials, and assistance required by Artist to the extent such materials are available and accessible. City, upon request, shall also provide correct scaled drawings of the Site,if available. 1.3. Implementation Budget Total. Artist shall develop a Conceptual Design that is financially feasible relative to the budget for implementation. It is understood that the budget for implementation of the Artwork is estimated at FIFTY-ONE THOUSAND EIGHT HUNDRED SEVENTY-FIVE DOLLARS AND NO CENTS ($51,875), including any required engineering, materials, labor, fabrication, delivery, installation, insurance, transportation, travel, contingency and all associated costs for the Conceptual Design. ARTICLE 2 COMPENSATION AND PAYMENT SCHEDULE 2.1. Fee. City shall pay Artist a fee in the amount of FIVE THOUSAND DOLLARS AND NO CENTS ($5,000), which shall constitute full compensation for all services and materials to be performed and furnished by Artist under this Agreement. The fee shall be paid in the following installments, each installment to represent full and final payment for all services and materials provided prior to the due date thereof. a. Two Thousand Five Hundred Dollars and No Cents ($2,500) upon execution of this Agreement, recognizing that Artist will invest time and expense in preliminary design team coordination with the Advisory Artist, Project Consultant and City. b. Two Thousand Five Hundred Dollars and No Cents ($2,500) within thirty (30) days after Artist submits "Conceptual Design Deliverables", as required in Section 1.2.a.i.-iv. of this Agreement and makes a presentation of the Conceptual Design to stakeholders,City representatives and the Fort Worth Art Commission. 2.2. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the Project. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax 4 Exemption Certificate," attached hereto and made apart hereof for all purposes as Exhibit "C" for use by Artist in the fulfillment of this Agreement. 2.3. Artist's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including but not limited to services, materials, mailing/shipping charges and insurance on submissions to 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 Conceptual Design and all other work product under this Agreement shall become property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Conceptual Design. By execution of this Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Conceptual Design for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction or display of the Conceptual Design intended to promote or benefit 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 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 final artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the final artwork when 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. City agrees to credit Artist as the creator and copyright holder when it graphically depicts or displays the Conceptual Design. ARTICLE 4 WARRANTY The Conceptual Design shall be the original product of Artist's own creative efforts. Artist warrants that the Conceptual Design is and will be original and agrees to assume the defense of, and INDEMNIFY AND HOLD HARMLESS, CITY, ITS OFFICERS, EMPLOYEES, AGENTS, AND CONTRACTORS FROM AND AGAINST ALL CLAIMS, LOSSES, 5 DAMAGES, ACTIONS OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE CONCEPTUAL DESIGN BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP,AUTHORSHIP, OR ORIGINALITY. ARTICLE 5 ARTIST AS 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 respondent superior has no application as between City and 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 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- 6 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. (C) THIS ARTICLE 6 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE 7 EQUAL OPPORTUNITY a. 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. 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. Artist agrees to post in conspicuous places, available to employees and applications for employment, notices to be provided by City setting forth the provision of this nondiscrimination clause. b. Artist shall in all solicitation or advertisements for employment placed on or on behalf of Artist, state that all qualified applicants shall receive consideration for employment without regard to race, color,religion, sex, sexual orientation, or national origin. 7 C. Artist shall furnish all information and reports requested by City, and shall permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with such rules and regulations. d. In the event of 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 8 MISCELLANEOUS 8.1. Compliance. Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 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 City. 8.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 8.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 9 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 City and Artist and its respective successors and permitted assigns. 8.7. 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. 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 Maieure. 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. 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. 9 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 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 City Council for the purposes set forth in this Agreement. 8.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 8.13. Artist's Address. Artist shall notify the Contract Manager of changes in address. 8.14. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 8.15 City's Ri t to Com 1p ete. In the event of the death or legal incapacity of Artist, City shall have the right to complete the Conceptual Design and shall give credit to Artist,as appropriate. 8.16. Right to Audit. The Artist agrees that City will have the right to audit the financial and business records of the 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, the 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 Section 8.16 shall survive expiration or earlier termination of this Agreement. 10 8.17. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority/Women Business Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by City under 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: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth,TX 76102 Copies to: David Yett,City Attorney Law Department 1000 Throckmorton Street Fort Worth,TX 76102 Martha Peters, Public Art Director Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,TX 76107 2. ARTIST Tommy Fitzpatrick 816 Pin Oak Lane Arlington,TX 76012 [SIGNATURES APPEAR ON THE FOLLOWING PAGE.] II IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and year first written above. CITY OF FORT WORTH Fernando Costa Assistant City Manager ARTIST Tommy Fitzpatrick APPROVED AS TO FORM: ATTESTED BY: Lei=D.Guzman Marty Hendrix Assistant City Attorney City Secretary NO M&C RE UIRED 12 Exhibit A: The Site Clearfork Main Street Bridge u s. h � { ,_ it.� 49 g 0 t-- ................................. ..... - FORT WWII 2008 Stonegate Bridge 3D Visualization 13 Exhibit B: Budget Form FORT WORTH PUBLIC ART PROJECT BWOET Plea"compMtet d"form and attach a*Wwd receipt at eaftata ooraploo with per unk ooata(no krrnp soma)for all hem deeignatad with an ast6fMC).Coat inaaesaa atuat also haw a vnitten sethnata attached. ARTIST'S FEE(209.) TRAVEL (For artists who live mere than 50 miles tram Fort Worth) Airfare Car Rental Per Diem Expenses at$per day Mileage st$per mile INSURANCE AutoeHired Vehicle Liability General Liability for Artist r Subcwtiactors Worker's Comp.r Employer's Liability Other,as applicable Cost Increases?:Projected Increase in Cost Insurance 12 Months In Future ADMINISTRATIVE EXPENSES PhcneeFax Delivery.•ShipOng(tor correspondence,samples,nwd?is,drervdngs etc) Peproaraphic Service Supp1 ies Cost Increases?:Projected Increase In Cost Admin 12 P."hs In Future PROFESSIONAL CONSULTANT FEES (If applicable,dravAng must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engineer' Electrizal Engineer' Conservator' Photographer(for documentation of oomplevdwork)' Other' Cost Increase$?:Projected In cease in Cost Consultants Fee$12 Months In Future MATERIALS (Please attach a complete list of materials.Itemize all anWpated aspects and components with per unit cost estimates) Materials'Total Cost Increases?:Pro*ted Irr_reaee in Cost Wlawisls 12 Months In Future FABRICATION COSTS (Irr_lude and itemize all portions of subccntractedwork and work to be completed by artist.) Artist'$Labor(__hours of$_per how)Total Subcontracted Labor'(Total) FaciliyrEcuipment Rental(.used exckrsivey for this project)related to fabrication Cost Increases?:Projected Increase in Cost Fabrication 12 Months In Future SITE PREPARATION (Do not in_lyde costs covered by FW PA,City of Fort Worth or others) Test Drilling' 14 Remcvar Landacapingg Inigatkn' Electrical Modifications Water WorlvMechanical Devices Other' Cost Increasee?:Projected Increase in Cost Site Preparation 12 Months In Future TRANSPORTATION Materiels to Fabrication Site' Finished Work to Installation Site' Otror' Cost Increases?:Projected Increase in Cost Transporte►ion 12 Mcnihs In Future BASEWOUNTING Base Mounting Devices and Components FoundstiorvFooting odw Cost Increases?:Projected Increase in Cost 16463untr4lcooting 12 Months In Fugue INSTALLATION COSTS (Costs must include allowance for after hours installation.d appikable.Please attach a oomplete Pat of equipment and individual estimatesvrilhthis form) Wxcnaacted Labor' Scaffoldirg' Equipment Rental related to brstaflation' Cffduly Pnliw5ecuiiy' Traffic Barriers' Storage Facility Pentar City Permits Display Devices Fireproof kW Site Restorsiiw error Cost Increases?:Projected lrrrease in Cost Installation 12 Months In Future LIGHTING Designers' Futures' Bulbs' Site Preparation' Installation• Cost Increases?:Projected Increase in Cost Lighting 12 Mouths In Future GRAND TOTAL(InClUding PI0WWd COST Increase,H ally) Please male►any necessary notes hero: Prepared By: _ Date: 15 Exhibit C: Sales Tax Exemption TEXAS CERTIFICATE,OF EXEMPTION I 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 Description of Items(or an attached order or invoice)To Be Purchased: All Items —_-- -� I claim this exemption for the following reason: Name of exempt or City of Fort Worth Texas Sales and Use Tax Permit Number 1-75-600052 8-6 Project for which materials and supplies are purchased: I understand that I will be liable for payment of sales tax,which may become due for failure to comply with the provisions of the state, city, and/or metropolitan transit authority sales and use tax laws and comptroller rules regarding exempt purchases Liability for the tax will be determined by the price paid for the taxable items purchased or the fair market rental value for the period of time used I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which I know,at the time of the purchase,will be used in a manner other than that expensed in this certificate and,upon conviction,may be fined up to$500 per offense Tax Exempt Status Due to Being a Governmental Entity Purchaser: City of Fort Worth Street Address: 1000 Throckmorton Street City,State,Zip Code: Fort Worth,Texas 76102 Sign Here: M Date: 02/07/2007 Phone: f817)392-8325 eGny-Rosa, tent Finavte irectar This certificate does not require a number to be valid Sales and use tax"exemption number s"or"tax exempt"numbers do not exist This certificate should be finnished to the supplier Do not send the completed certificate to the Comptroller of Public Accounts 16