Loading...
HomeMy WebLinkAboutContract 54522 �i CITY SECRETARY _ F?CCEIVED 2020 AGREEMENT BETWEEN THE CITY OF FORT WORTH AND C S NSECRtTARY� QUAYOLA LTD FOR COMMISSION OF PUBLIC ART FOR PIONEER TOWER This Agreement is entered into this 0—day ofS , 2020, 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 Quayola Ltd, a foreign limited company. 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,the Fort Worth Public Art Master Plan Update, adopted by City Council on October 17, 2017 (M&C G-19140), recommended the commission of a light-based Iconic Art Project for the historic Pioneer Tower, Will Rogers Memorial Center, located at 3401 West Lancaster Avenue, 76107 (Council District 7)(the"Site"described in Exhibit"A"); WHEREAS, City has retained JTK Studios and SP Studio as Project Planning Consultants to assist with a projection mapping project for the historic Pioneer Tower, including specifying art infrastructure to support projection on all four(4)sides of the tower, leading visioning sessions and a curator selection process, and collaborating with the curator and selection artist(s) on technical and budget requirements to achieve a successful presentation of their work: WHEREAS, City has completed the rehabilitated the historic Pioneer Tower, including the installation of electrical and data runs to locations on all four(4)sides of the Pioneer Tower; WHEREAS, through a process approved by the Fort Worth Art Commission, new media curator DooEun Choi was selected and who, in turn, has recommended Quayola Ltd as an artist to be commissioned to create a projection mapping video for premier event of the Pioneer Tower Iconic Public Art Projects; WHEREAS,the Fort Worth Art Commission made their recommended to City Council to commission Quayola Ltd to create a projection mapping video based on their proposal(attached as Exhibit`B"); WHEREAS,funding for this proj ect was included in the Public Art Plan for the 2014 Bond Program, Proposition 1, adopted by the Fort Worth City Council on October 21, 2014 (M&C G-18339); and from the Specially Funded Projects Fund previously appropriated by City Council and identified in the Fort Worth Public Art Fiscal Year 2020 Annual Work Plan, adopted by the Fort Worth City Court ' �;2 ®-=.P (M&C 20-0204); C-)FV�'CC01P,L k5C0RD Corr1T FCr;FTnR?V Agreement for Commission of Public Artwork with FY �NURVEJ,7/n1 Quayola Ltd for the Pioneer Tower Iconic Public Artwork 1 of26 WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be produced and delivered to the City and in which Artist shall provide consultation for presentation of the Work 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 DEFMTIONS 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 Artist for Commission of Public Artwork for the Site. 1.2. Artist—Means and includes Quayola Ltd and its officers,directors or employees. 1.3. Artwork Proposal — Means the final, City-approved proposal for the Work for the Site developed in connection with the Curatorial Consultant Contract between the City of Fort Worth and DooEun Choi and includes, but is not limited to, the City-approved proposal presentation as made to the Fort Worth Art Commission on May 11, 2020. The proposal and description are attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.5. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc. 1.6. City—Means and includes the City of Fort Worth, Texas. 1.7. Effective Date — Means and includes the date represented in the first paragraph of this Agreement. 1.8. Final Acceptance - Means City's written acknowledgement to Artist that all services for research,production, delivery of the Work and consulting up to and during the premier presentation have been completed in accordance with the terms of this Agreement. 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 Core Team — Means and includes the group of community members and representatives of Cultural District institutions, who are invited by the City Council Member to provide input on the project for its duration, in accordance with the Fort Worth Public Art Master Plan Update. 1.12. Project Curator—Means and includes DooEun Choi. 1.13. Project Planning Consultants—Means and includes JTK Studios and SP Studio Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 2 of26 1.14. Project Stakeholders — Means and includes the appropriate City Council Member(s), the Project Core Team,the Curatorial Committee,the FWAC's appointed representative(s), City staff,and others as may be appropriate. 1.14. Schedule - Means and includes a written plan of procedure for completion of research, production, delivery, and consulting up to and during the premier presentation of the Work, including, but not limited to,the submission of progress reports. 1.15. Site — Means the four (4) exterior facades of Pioneer Tower, located in the Will Rogers Memorial Center 3401 West Lancaster Avenue, 76107, attached hereto as"Exhibit A." 1.16. Work—Means and includes two(2)copies of the finished projection mapping video edition, consisting of Chapters 1 and 3, specially formatted and inclusive of all necessary files for presentation at the Site, each on a separate external hard drive or other appropriate media,that are the subject of this Agreement, or any intermediary stage of completion of such work, which specifically includes the Artwork Proposal. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Proposal was reviewed on May 11,2020 and approved by the FWAC on June 8, 2020,and is the basis for executing this Agreement with Artist. 2.2. Scope of Services. a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for research,production, delivery, and consultation up to and including the Premier of the Work at the Site. Services shall be performed 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, in coordination with the Project Curator and Project Planning Consultants, subject to review and acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be presented shall be mutually agreed upon by City and Artist,in coordination with the Project Curator and Project Planning Consultants. C. Artist is responsible for procuring/gathering all source data for the Work;however,Artist may request assistance of the Contract Manager. Such assistance shall be mutually agreed upon by Artist and Contract Manager. d. Artist shall coordinate with Contract Manager, City staff, its contractors, the Project Curator and Project Planning Consultants, and others, as necessary,to ensure successful presentation of the Work at the Site. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 3 of26 C. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time,to be completed prior to or during the premier presentation of the Work. f. Artist shall complete and deliver the Work on dates and times mutually agreed upon by Artist and City. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish a copy of the 3D scan of Pioneer Tower, 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 research, produce, and deliver the Work and provide consulting up to and including the premier of the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. City and/or Contract Manager, upon written request,shall have the right to review the Work during its research and production and/or request visual documentation of the research and production. 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 production of the Work in accordance with the Artwork Proposal.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 discretion, shall determine whether the changes are significant and whether the changes conform to the Artwork Proposal. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the Artwork Proposal,then the Contract Manager shall,in light of the Artwork Proposal, 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. d. In the event that additional funds become available in a timely manner, it is the intent of the City to amend this Agreement to commission an additional chapter of the Work included in the Proposal as Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 4 of26 "Chapter 2"that was not included in this Agreement. However, the City shall have the sole discretion to determine whether to commission the additional chapter. 2.5. Delivery and Presentation Consultation a. Artist shall notify City, through its Contract Manager, in writing when production of the Work is completed and is ready for its delivery to Contract Manager for presentation at the Site. b. It is understood that Artist is not responsible for presenting the Work; however, Artist shall provide consultation on the presentation of the Work and coordinate the presentation of the Work with City, City's Curatorial Consultant and Planning Consultants, and Contract Manager. Artist shall make their best effort to ensure that the Work is accurately and successfully presented in accordance with Artist's intended results. C. Artist shall be responsible for all costs associated with the materials, production, and delivery of the Work, including, but not limited to, equipment rentals,transportation, and labor. 2.6. Post-installation. a. Artist shall provide original screenshots of videos and short video clips showing four-sided images and details of each chapter of the Work, both in-progress and completed, for the City's archives and for promoting the Pioneer Tower Iconic Public Art Project and the premier and subsequent presentations of the Work. b. Artist shall consult onsite with photographers and/or videographers hired by the City or Contract Manager to officially document the premier presentation of the Work. At Artist's request, City or Contract Manager shall provide Artist with copies of such documentation and a license for Artist's non-commercial use of the documentation. C. Artist shall make their best effort to be available at such time(s)as may be set by the City to attend the premier presentation of the Work and 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 prior to and following the premier presentation. d. For the duration of the Agreement, if Artist intends to seek his own publicity for the Work, including Artist's website, social media, press releases, etc., such efforts must be approved, in advance, by Contract Manager. 2.7. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for production, delivery, and consultation on the presentation 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 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 5 of26 "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 the delivery of the completed Work and Artist shall take such measures as are necessary to protect the Work from loss or damage until this time, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City upon delivery of the Work. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall be in the amount of ONE HUNDRED FOURTEEN THOUSAND DOLLARS AND NO CENTS ($114,000.00) (including a travel allowance as described in Section 3.2.e), 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 research, production, transportation, Artist's fee, 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. 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: a. FIFTY THOUSAND DOLLARS AND NO CENTS ($50,000.00) upon execution of this Agreement. b. THIRTY THOUSAND DOLLARS AND NO CENTS ($30,000.00) upon Contract Manager's verification that local shooting of the photographic and video data necessary for the Work is complete. C. FIFTEEN THOUSAND DOLLARS AND NO CENTS ($15,000.00) upon Contract Manager's receipt of the final Work. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 6 of26 d. FIVE THOUSAND AND NO CENTS ($5,000.00) within thirty-five (35) days after the premier presentation of the Work and 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. e. City may pay Artist up to FOURTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($14,000.00)for costs associated with required travel. If, however,Artist is unable to travel to Fort Worth due to travel restrictions associated with the COVID-19 pandemic, Artist may use this allowance to hire a local production team to gather the photographic and video data necessary for the Work in Fort Worth, Texas,for Artist. f. All payments hereunder shall be made by check in U.S. dollars. 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 substantially the same form as that attached hereto as Exhibit"E"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, 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. Term. 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 4.4. Time Extensions, Force Majeure. 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, pandemic, 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 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 7 of 26 (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. ARTICLE 5 WARRANTIES 5.1. Warranties of Title and Copyright. a. Artist represents and warrants that: i. Artwork Proposal and Work shall be the original product of Artist's sole creative efforts. ii. Artwork Proposal 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 Proposal 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 Proposal 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 Proposal and Work are free and clear of any liens from any source whatsoever; vi. Artist has the full power to enter into and perform this Agreement and to make the grant of rights 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. ARTICLE 6 INSURANCE AND INDEMNITY 6.1. General. Except as provided in Section 2.8 hereof, the risk of damage to or loss of the Work shall, during fabrication and delivery 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. General Indemnity. a. 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 DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 8 of26 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 OMISSIONS 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. b. 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. C. 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 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. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 9 of26 ARTICLE 7 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 7.1. Title. Title to the edition of the Work that constitutes or that are components of the Artwork Proposal and/or Work shall pass to City upon Final Acceptance and payment for the Work. The City shall have the unrestricted right to conduct future presentations of the Work for ten(10) years from the date of the premier presentation(the "Term"). The Proposal and Work will be retained by City indefinitely for archival purposes. After the expiration of the Term, Artist and City may negotiate a licensing agreement, including a reasonable fee to Artist, for future presentations of the Work. Artist's Artwork Proposal and Work and all other work products under this Agreement shall become the property of City, except as provided below. 7.2. CoR�right 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 Ri hg_ts. a. In view of the intention that the Artwork Proposal and the Work be unique,Artist shall not make any additional exact duplicate reproductions of the Artwork Proposal 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 or from using original source material captured and utilized to create the Work for future artworks. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and irrevocable license to video, graphically depict and publicly display the Artwork Proposal, Work and other documentation of the Work for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Proposal or the Work 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 Work to sell or transfer 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: "©date,Artist's name." Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 10 of 26 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. £ 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 on temporary plaques during the premier presentation and any subsequent presentations of the Work. 8.3. Restoration and Technical Updates. At such time as the software,file format,external hard drive or other media must be updated in order to preserve and allow presentation of the Work, City shall request that Artist make such updates for a reasonable fee. If Artist declines to make such updates, Artist agrees to allow City to contract with another third-party entity to make the updates. 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. 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 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork I 1 of 26 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 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 Work 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. 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. 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 lieu of termination under this Article 11.2,City may elect to have the work completed by the Artist's studio, if feasible. If the Artist's studio is unable to complete the Work,the City shall have the right, but not the obligation, to complete the Work. In the event that City completes the Work, 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. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 12 of 26 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 the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination in accordance with the payment schedule in Section 3.2 of this Agreement as determined in City's sole discretion, 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 for services actually rendered up to the effective date of termination in accordance with Section 3.2 of this Agreement 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, as determined in City's sole discretion. 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. d. If termination is by mutual agreement of the Parties as set forth in Section 11.4.a,then City shall pay Artist per the payment schedule in Section 3.2 as determined in City's sole discretion up through the date of termination. City shall have the right 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, and designs,up to the effective date of termination. 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 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 13 of 26 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 Proposal, 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 Proposal 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 Proposal, Work, and all other work product under this Agreement and/or any prior agreement 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 Proposal, Work, and all other work product under this Agreement or any prior agreement for the Work 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, distribute copies to the public as well as display said Artwork Proposal and 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 Proposal, 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 Proposal,Work,and all other work product under this Agreement and/or any prior agreement as a public artwork.Nothing in this Article 11.4 shall affect the survival of the Articles outlined in Article 14.16 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 Agreement for Commission ofPublic Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 14 of 26 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 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. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 15 of 26 Artist shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Artist services under this Agreement. 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 Assi ns. 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. Severabilily. 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. 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 Agreement for Commission ofPublic Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 16 of 26 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. 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 200 Texas 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. 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. 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), 7 (Ownership and Intellectual Property Rights), 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. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 17 of 26 14.17. Counterparts and EIectronic 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. 14.19. Israel. If Artist is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more, Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it:(1)does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms "boycott Israel"and"company"shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. If applicable under this Agreement and Artist is considered a"company,"by signing this Agreement,Artist certifies that Artist's signature provides written verification to the City thatArtist:(1)does not boycott Israel;and(2) will not boycott Israel during the term of the 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 200 Texas Street, Third Floor Fort Worth,Texas 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street, Third Floor Fort Worth,Texas 76102 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 18 of 26 Martha Peters,Director of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST Quayola Ltd Attn:Davide Quagliola, Sole Proprietor/Director 15 Prince Edward Road Studio 20,East Wing Oslo House London, UK E9 5EU [signature page follows] Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 19 of 26 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH QUAYOLA LTD by: CwL -- By: Fernando Costa Davide Quagliola Assistant City Manager Sole Proprietor/Director CONTRACT COMPLIANCE MANAGER By signing,I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. Martha /V TWI-t Name: Martha M.Peters Title: Director of Public Art APPROVED AS TO FORM AND LEGALITY: Na&,U'��� Matthew Murray Assistant City Attorney I ((Fby Y ........ ATTE E BY: / ° � ti.. �y � •�if' ary .Kayser City Secretary •i' ''� ` Contract Authorization: Form 1295: 2020-626298 M&C#:20-0438 Date: 06/23/20 OFFMAL RECORD C�� -FcrrAFTT\R FT WORTH],, FIX Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 20 of 26 Exhibit A: Artwork Proposal QUAYOLA'S PROPOSAL SUMMARY ;s Chapter 1-Trees Chapter 2 -Landscapes Chapter 3-Animals The new video artwork produced for the Fort Worth Pioneer Tower commission will be a continuation of Quayola's ongoing research on the tradition of landscape painting and more broadly a reflection on man's tradition of representing nature. The observation of nature is at the basis of the primitive bond of man with his surroundings. In his work, Quayola reclaims an idea of knowledge from the past, in which the artistic practice allowed scientists to decipher nature. In Leonardo Da Vinci's studies, for instance, the pictorial practice served the task of understanding the natural world. Similarly,Quayola's artistic research is allowing us a new, different glimpse at the natural world, which can be achieved through the cooperation between him and the technological apparatus. This new artwork will be divided into three main chapters,each looking at capturing a different perspective on Fort Worth's natural settings, using for each a different technological process: Trees Laser Scanning (Chapter 1) Quayola will employ high-precision 3D laser scanning systems to capture geometric data of various trees in Fort Worth. Each tree will be translated into hundreds of millions of 3D coordinates,which will then be visualized digitally as complex clusters of geometries. The resulting animation will explore both the intricacies of natural forms as well as the aesthetics of digital reproduction. Computational Landscape Paintings(Chapter 2) In this video, Quayola will employ computer-vision systems and custom generative algorithms to create digital pictorial representations of Texas (Fort Worth) landscapes. A series of photographs will gradually blend into computational abstractions, revealing a new way of observing the natural world—one that is both driven by our heritage visual culture, as well as new and different machinic point of view. Computational Animal Paintings (Chapter 3) In this video, Quayola will focus on the observation and ultimately new representation of one of Fort Worth's most iconic symbols: Horses. Employing the latest digital tracking systems, Quayola will digitize a series of horses' movements and translate them into abstract animations. The rhythmic movements of the horse become a dataset to drive pictorial simulations. The result of this process will be a series of computational paintings, on one side completely abstract, but on the other fully driven by the animal's motion. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 21 of 26 Exhibit B: The Site s ki R. i• tK � '(I s I � � f r Pioneer Tower, Will Rogers Memorial Center 3401 West Lancaster Avenue, Fort Worth, Texas 76107 Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 22 of 26 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): Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: 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): Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 23 of 26 Recommended Routine Maintenance Artist recommendation based on experience and consultation with conservation expert 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 Quayola Ltd for the Pioneer Tower Iconic Public Artwork 24 of 26 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: 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, (LOCATION) Print Name Commission Expires Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 25 of 26 Exhibit E: Sales Tax Exemption Texas Sales and Use Tax Exemption Certification cation Tra's aprf.Ytcarp MOS,qt f relpAre fr rkt�rtL-J lb taa vatLf. rr u .pFiidw str u*P%:y - City fltl Fps Worttf 'rfOWB A-, 4sit itss�..7`:P.0 A:,.ork-'ri.isyc" 1"vs,a FAvwcrew wdM"bv'l - Fort Worth,Tatta3 761112 I,Nr pd irrhasrr na-ned ahcrrza•ty m an exemption(van psyrrerd c ea aid use tees efor the purchase al Taxable iterr,desaitlad b--kfx w rn t=�e sto-tied order or irre5>91 from: salver. All yendocs slreal afdfg:PA: �_- - Cty,Seals,ZIP<3[xJo;. IWr+s la bi+pu-&,or-d cr crn;~&atiarhed order or dn.voir,: All"°i, t. Ptdrd�9scf acknrvl{adeLes chat ihis Cerilfis in caannrt bq 1:s6d1 ear tt a Ot.f hdFi_);?@s ra'TePt•31 W►_$grow, Mirk! PJf&ds-:;CIMMS tht&&Xamrriun rW IN rakrffkQ r100.1OW! ►,ir.r lyiplMly,4a�reinrndantal Entity I ,ndni5lnfi 1 Ulai i+rii be IQbie ki PU5+-ienl of all ew.y aw la)l 4a1;ai ui*le.>!>e>i WH-ti,„"t'ect,irre c"u Pr ir:t,.,w P k-�(Hpfj'"it, ifle p+ovielnm of iha Tay Coda arKV,,r a'i opailcabre krw h,n*aran:JMaI4ka tc%A� a"AWt-^pYito Wtvimft,b Ill 04 vWkw 1,4z rYromtVW'ftew,40.MasIti 14,0rA=,Yas6, %tits"beach-fse,7anng•C'nsrol5nftialevpnmQK-d0fhacrrft,57 j.iv dt"w;d jvWl#ofwWof6ii swOW,# offl—wy r Nm a 053:5 C rrvO*rr WW to a A%WF-YA9 o-arcuoi d.%nw. boo Fin,7rrta5 Ia+reNarFr_.Fa F�fiE- fNs c+ertifeabc calrxt be ie�xd fcr the p+iraF�a+a.�N!�t er rarrteP�a�lor�ahielo. THIS CERTTHC'A TE DOES.MDT REQME-A NUMBER T*sd VALID, Selo arhi 9.#nt 7ttx'F.arn freer FJfr�bpr�'cr Tax�'cn+pt'ri�rnhets do hat a�ist Tads cartif alm ahoralyd be Wfiilshod to 11m s uppliar. Die;,aW wind 1ha uompttotif d rerit11rate Ifs the Comptroller of Publit Accotarits. Agreement for Commission of Public Artwork with Quayola Ltd for the Pioneer Tower Iconic Public Artwork 26 of 26