Loading...
HomeMy WebLinkAboutContract 48609 ,5 4 5 6 7 ,9 CITY SECRETARY /�ti tom; 9jo, CONTRACT NO. 6Oq a c NEDILI j -0 LICENSE AGREEMENT BETWEEN la % -42017 THE CITY OF FORT WORTH �N ORT41 clrt of�oR�W AND BRENDAN KELLY �,�iY SECR�ARY 6 8. 9 hns Agreement is entered into this &kday of 2016 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 Brendan Kelly, an Individual, with an address of 10008 Channing Rd,Fort Worth,TX 76244. The 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 Programs 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 East Lancaster Public Art Plan recommended local artists be commissioned to create designs for the traffic signal control cabinets along East Lancaster Avenue and on July 13,2015,the Fort Worth Art Commission("FWAC") approved the East Lancaster Traffic Control Cabinets Public Art Project Outline, which recommends wrapping city-owned traffic signal control cabinets along East Lancaster Avenue with reproductions of original artworks by up to 14 local artists,using readily available adhesive vinyl film media technology with an anticipated life span of 3-5 years; WHEREAS,the Artwork Selection Panel has recommended that Brendan Kelly's Artwork Dancer be one of the artworks licensed for use on the project and on June 13, 2016, the FWAC approved the Artwork Selection Panel's recommendation; and WHEREAS, public art funds are available for the licensing, fabrication and installation of 14 original artworks for the 14 traffic control cabinets(from Pine Street to Sandy Lane)from the 2007 Critical Capital Needs and from the Specially Funded Capital Projects Fund in the Fiscal Year 2016 Annual Work Plan and Budget approved by City Council on October 27,2015 (M&C C-27515);and WHEREAS, City and Artist wish to set out the terms and conditions under which said Artwork License shall be completed to promote the integrity of Artist's ideas and statements as represented by the Artwork; 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: OFFICIAL RECORD Artwork License Agreement between the City of Fort Worth and Brendan Kelly, � � ♦ Execution Copy 10/25/16 Cl Pages o y ARY X ARTICLE 1 DEFINITIONS As used in this Agreement,the following terms shall have the meanings as set forth below: 1.1.Agreement—Means and includes this Agreement between the City of Fort Worth and Brendan Kelly for Artwork Licensing. 1.2.Artist—Means and includes Brendan Kelly. 1.3.Artwork—Means the high-resolution digital file of the original artwork titled Dancer fabricated as an adhesive vinyl image and installed on the traffic control cabinet, more particularly described on Exhibit"A,"attached hereto and incorporated herein by reference for all purposes. 1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County, Inc.,and its officers,directors, and employees. 1.5. City—Means and includes the City of Fort Worth,Texas. 1.6. Effective Date — Means and includes the date represented in the first paragraph of this Agreement,which shall be the official date of execution of this Agreement. 1.8.Parties—Means and includes City and Artist. 1.9. Site—Means and includes the City owned traffic signal control cabinets at the 14 signalized intersections along East Lancaster from and including Pine Street to Sandy Lane. ARTICLE 2 LICENSE OF THE ARTWORK 2.1. Payment for Artwork. City shall pay Artist FIVE HUNDRED DOLLARS AND NO CENTS ($500.00)as full consideration for the license to use and display,and all rights,title,and interest to a high-resolution digital file of the original Artwork,except for any rights of copyright.City shall pay this amount to Artist within thirty days(30)after full execution of this Agreement by both Parties. Artist shall be responsible for all travel costs related to dedication of the Artwork. 2.2. 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. TWO HUNDRED AND FIFTY DOLLARS AND NO CENTS ($250.00) upon execution of this Agreement. b. TWO HUNDRED AND FIFTY DOLLARS AND NO CENTS ($250.00) within thirty (30) days after delivery of the Artwork. 2.3. Delivery. Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 2 of 10 As part of the payment,Artist agrees to provide for delivery of the Artwork as a high-resolution digital file, (400 DPI at 11 inches H)to the Contract Manager,via CD,Drop Box or portable drive.Upon execution of this Agreement and City making the first payment outlined in section 2.2(a)to Artist,City and Artist shall schedule a mutually convenient date and time to deliver Artwork,but the date shall not be later than thirty (30) days after execution of this Agreement. 2.4. Project Execution. a. City shall be responsible for fabrication and installation of the Artwork. b. Artist grants City the right to reproduce the Artwork using a qualified fabricator and have it professionally installed at the Site. c. Artist grants the City the right to make adjustments to the Artwork as needed to ensure the optimal layout for the Artwork at the Site. d. Artist grants the City the right to have the Artwork remain in place for a period of approximately five(5)years,or so as long as the City deems the Artwork to be in good condition, and until such a time as the City chooses to remove the Artwork. This paragraph shall not be a commitment to display the Artwork for a certain amount of time, and the City shall have the right to remove the Artwork at any time. e. Should damage occur to the Artwork during the time it is installed at the Site such that the City needs to remove and replace it,City will perform the work at its own expense and will inform the Artist. £ At such time the Artwork is removed by the City, Artist understands that the City may choose a different artist and artwork should the City choose to install another traffic wrap. ARTICLE 3 WARRANTIES 3.1. Warranties of Title and Copyright. a. Artist represents and warrants that: i. the Artwork is the original product of Artist's sole creative efforts; ii. Artwork is original and does not infringe upon any copyright or the rights of any person; iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. the Artwork is free and clear of any claims, judgments, and/or liens from any source whatsoever; V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 3 of 10 vi. Artist retains the right to sell the original Artwork this license is based on, Dancer, to a buyer of their choosing; 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 4 INSURANCE AND INDEMNITY 4.1. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings. 4.2. Intellectual Property. Copyright. 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 ARTWORK 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. ARTICLE 5 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 5.1. Title to the Artwork. All rights, title, and interest to the high-resolution digital file of the Artwork, except for any rights of copyright,shall immediately transfer to City upon payment to Artist for purchase of the rights to reproduce and use the Artwork, as set forth in this Agreement, and shall be free and clear of any claims,judgments, and/or liens of whatsoever nature. The high-resolution digital file of the Artwork shall become property of City,without restriction on future use,except as provided for in this Agreement. Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 4 of 10 5.2. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Artwork for the duration of the copyright. 5.3. Reproduction Rights. a. By execution of this Agreement,Artist grants to City a perpetual,irrevocable license to graphically depict or display the Artwork for any non-commercial purpose whatsoever. For purposes of this limitation,any graphic depiction or display of the Artwork 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 Artwork to alter,change,modify,destroy,remove,move,replace,operate,maintain,transport,sell or transfer,in whole or in part,the 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. b. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "©date,Artist's name." C. 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 in the public art collection of the City of Fort Worth,Texas." d. Artist may,at Artist's expense,cause to be registered with the United States Register of Copyrights, a copyright of the Artwork in Artist's name. e. 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 6 ARTIST'S RIGHTS 6.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org). 6.2. Maintenance. Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 5 of 10 City recognizes that maintenance of the traffic wrap depicting the Artwork on a regular basis is essential to the integrity of the Artwork. City shall reasonably assure that the traffic wrap depicting the Artwork is properly maintained and protected. ARTICLE 7 MISCELLANEOUS 7.1. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto,and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 7.2. Amendments. No alteration,change,modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 7.3. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants,and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 7.4. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas —Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 7.5. Successors and Assigns. Artist shall not assign, sublet or transfer his interest herein, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. 7.6. 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. 7.7. Severability. If any provision of this Agreement shall be held to be invalid,illegal or unenforceable,the validity,legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 7.8. 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 Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 6 of 10 against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. 7.9. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 7.10. Artist's Address. Artist shall notify the Contract Manager of changes in address. 7.11. Surviving;Covenants. The provisions contained in Articles 3 (Warranties), 4 (Indemnification), 5 (Ownership and Intellectual Property Rights), 7.13 (Right to Audit), and 8 (Artist as an Independent Contractor) shall survive the termination or expiration of this Agreement. 7.12. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts,each of which will be deemed an original,but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 7.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to this Agreement(collectively"Records")at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, Artist shall make all Records available to City on 1000 Throckmorton Street,Fort Worth,Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. 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. ARTICLE 8 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. Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 7 of 10 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 /2c5,-) 'T.Q,/4 Sk" i hind Floor Fort Worth,Texas 76102 Copies to: Office of the City Attorney City of Fort Worth :7,00 jtlKe�-s 5�'� ,Third Floor Fort Worth,Texas 76102 Martha Peters,Vice President,Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTIST Brendan Kelly 10008 Channing Rd Fort Worth,TX 76244 IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH ARTIST --�J �� by: Fernando Costa Brendan Kelly Assistant City Manager APPROVE S TO FORM ; OFFICIAL RECORD AND LEG ITY: CITY SECRETARY FT.WORTH, TX .�C�.i1Ctt � li'I�S�CW1C(4 �45t•�i� ne Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 8 of 10 Date: 12 ,)6-c2of� 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. Name: /67zlir/�- Title: ATTEST: �pF FORr� B M4 K yser ` City Secretary �AS Form 1295: Not Applicable Contract Authorization: M&C: Not Applicable OFFICIAL RECORD CITY SECRETARY F woWORTH, TX Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 9 of 10 Exhibit A: The Artwork Dancer by Brendan Kelly v � Exhibit B: The Site u� Artwork License Agreement between the City of Fort Worth and Brendan Kelly, Execution Copy 10/25/16 Page 10 of 10