HomeMy WebLinkAboutContract 51510 C1 TY SECRETARY
CONTRACT NO. 51510
�C0�„ AGREEMENT BETWEEN THE CITY OF FORT WORTH
HRIS POWELL FOR REVISED FINAL SITE DESIGN OF PUBLIC ART AT
F` o �G�� LOWER HERITAGE PARK
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This Agreement is entered into this Tday of N bVeM be lr' , 2018,by and between
the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and
through Jesus J. Chapa, its duly authorized Assistant City Manager,and Chris Powell,an individual,
residing at 338 W. 5' Street, Fort Worth, TX 76107. 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 collection 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,allocated from the Specially Funded Capital Projects Fund(Public Art Fund)
are funds for the site design and partial re-installation of artwork at, or in, Lower Heritage Park;
WHEREAS, City owns and maintains a public Artwork titled along the river by Artist,
which is sited in lower Heritage Park located at Franklin Street and 445 N. Taylor Street, Fort
Worth, TX 76109 (Council District 9);
WHEREAS, the Artwork is comprised of eight independent pieces: one (1) vertical
sculpture measuring 92"x 34"x 23" and seven (7) granite block Elements measuring 12"x 24"x
24"•
WHEREAS, in December 2006, the Artwork was partially deinstalled to accommodate
construction of the new Tarrant County College building, with seven block Elements moved to
storage/display on the grounds of the Fort Worth Community Arts Center located at 1300 Gendy
Street, Fort Worth, TX 76107;
WHEREAS, on October 9, 2017, the Fort Worth Art Commission (the "FWAC")
conditionally approved Artist's Final Site Design to reinstall the Elements at Lower Heritage Park;
WHEREAS,plans for a future expanded service road require Artist to revise his Final Site
Design to accommodate necessary easements, siting all Elements to the north of the proposed
roadway in proximity to the existing sculpture at the Site;
WHEREAS, Artist must make certain renovations to the attachment method to the
Elements for installation;
WHEREAS, this Project was included in the Fiscal Year 2018 Annual Work Plan and
Budget, adopted by the Fort Worth City Council on October 17, 2017, (M&C G-19139); and
WHEREAS, City and Artist wish to set out the terms and conditions under which said
Work shall be revised to promote the integrity of Artist's ideas and statements as represented by
the Work;
OFFICIAL RECORD
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design an Ir '91CgETARY
Execution Copy 7/6/18 FT. WORTH, TX
NOW, THEREFORE, City and Artist for and in consideration of the covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below:
1.1. Agreement—Means and includes this Agreement between the City of Fort Worth
and Chris Powell for Revised Final Design for installation of public art for the Site.
1.2. Artist- Means and includes Chris Powell.
1.3 Artwork — Means and includes the full installation titled along the river, which
includes the Elements and Sculpture.
1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and
Tarrant County, Inc., and/or its officers, directors, and employees.
1.5. City—Means and includes the City of Fort Worth, Texas.
1.6. Elements—Means and includes seven(7) 12"x 24"x 24" granite blocks and their
attachments.
1.7. 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. Final Site Design - Means and includes the conditionally approved Final Site
Design more particularly described in Exhibit "A," attached hereto and incorporated herein by
reference for all purposes.
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 Stakeholders — Means and includes the appropriate City Council
Member(s), and their appointed community representatives and the Fort Worth Art Commission's
appointed representative and others as may be appropriate.
1.12. Revised Final Site Design—Means the Artist's Revised Final Site Design of the
Elements for the Site, which is based upon Artist's Final Site Design with necessary revisions and
includes, but is not limited to, all final drawings, sketches, prototypes, maquettes,models, and the
like that may be created by Artist in connection with this Agreement, or the like that are related,
directly or indirectly,to the Elements and shall include Artist's specifications for new attachments
and installation of the Elements.
1.13. Revised Final Site Design Deliverables—Means and includes those items set forth
in Article 2.4 of this Agreement, including the Revised Final Site Design that Artist is required to
submit to City for its review and approval.
1.14. Sculpture—Means and includes vertical sculpture measuring 92"x 34"x 23".
1.15. Site—Means and includes Lower Heritage Park located at near the intersection of
Franklin Street and 445 N. Taylor Street, Fort Worth,TX 76102,more specifically, the area north
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of the existing road, which is more particularly described in Exhibit "B," attached hereto and
incorporated herein by reference for all purposes.
1.16. Work—Means and includes the Final Site Design, the Revised Final Site Design,
and the finished installation of the Elements that are the subject of this Agreement, or any
intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Artist Selection.
City and Artist acknowledge that Artist's Final Site Design was reviewed and conditionally
approved by the FWAC on October 9, 2017; however, revisions to the Final Site Design are
necessary, which is the basis for executing this Agreement with Artist.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as
necessary for developing a Revised Final Site Design, including an installation plan for the
Elements, and for providing the Revised Final Site Design Deliverables. 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 siting of the Elements, subject to review and input from Project
Stakeholders and approval by City as set forth in this Agreement.
C. Artist shall present the Revised Final Site Design to the appropriate City committee, City
staff, Project Stakeholders and other City boards or commissions, as appropriate, for input
and to the FWAC for review and approval at dates and times mutually agreed upon.
d. Artist shall meet and coordinate with City staff and others, as necessary, to ensure proper
integration of the Elements into the Site.
e. The location at the Site where the Elements shall be installed shall be mutually agreed upon
by City and Artist.
f. Artist,upon request of Contract Manager,shall provide information and/or attend meetings
with appropriate City staff for purposes of risk assessment, safety review, sighting of the
Work, and permitting.
g. Upon request of City, Artist shall consult with a qualified art conservator and shall provide
written maintenance recommendations for the Work from said conservator to the Contract
Manager.
2.3. City Assistance.
Upon request by Artist,City shall promptly furnish all information and materials required by Artist
to the extent that such materials are available. City, upon request by Artist, shall also provide
correct scaled drawings of the Site, if available.
2.4. Revised Final Site Design Deliverables.
Within three (3) months after the Effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4
to City for approval. Revised Final Site Design Deliverables shall consist of the following:
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a. Detailed,design illustrations of the Work for the Site from two vantage points, including a
plan view,which shall be 20"x 30"and mounted on foam core and/or in a high resolution
digital format, such as JPEG or TIF files;
b. A written narrative of the Revised Final Site Design, describing the following: (1) the
Revised Final Site Design concepts and timeline for completion; and (2) proposed
attachment and installation methods for the Elements, including information regarding
Artist's subcontractor(s), if any, for the Work;
C. Comprehensive working drawings, detailing the means of installing the Elements at the
Site, including engineering drawings, together with other such graphic material to permit
City to carry out structural design review. Professional Liability Insurance is required in
all circumstances for on-site artwork requiring engineering and/or architectural services.
City will conduct a review of engineering drawings and other related graphic material prior
to installation of the Artwork. Upon City's request, drawings must be signed and stamped
by an engineer and/or architect licensed to work in the State of Texas. Artist will provide
the Contract Manager a certificate of insurance for each licensed professional and provide
City with a 30-day notice of cancellation of any policy required hereunder.
d. A detailed budget, on the budget form attached hereto as Exhibit "C," for installation of
the Elements which includes all costs for materials, labor, attachment renovation,delivery,
installation, insurance, transportation, remaining Artist's administrative fee, and all other
associated costs for the installation of the Elements. The detailed budget will be for
installation of the Elements through a possible renovation of attachment method, transit
and installation contract with City, of which the contract is subject to the approval of the
Fort Worth City Council.
2.5. Revised Final Site Design Review.
a. Artist shall meet with the designated Project Stakeholders,City staff,and other City boards
or commissions,as appropriate,to present the Revised Final Site Design,at a date and time
mutually agreed upon,for input.
b. Artist shall then present the Revised Final Site Design to the FWAC for approval at a
regularly scheduled FWAC meeting.
C. City shall notify Artist of its approval, or disapproval, of the Revised Final Site Design
within thirty (30)business days of Artist's presentation to the FWAC.
d. If City disapproves of the Revised Final Site Design, either in whole or in part, then City
shall inform Artist of each revision. City may require Artist to make such revisions to the
Revised Final Site Design as City deems necessary in its sole discretion and/or for the
Work to comply with applicable statutes, ordinances, or regulations of any governmental
regulatory agency having jurisdiction over the Site for reasons of safety and security.
e. Artist shall have thirty (30) calendar days from the date City informed Artist of the
revision(s) to present the Revised Final Site Design in conformance with City's
requirements.
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f. If City disapproves of the resubmitted Revised Final Site Design, any further Final Site
Design resubmissions will be by mutual agreement of the Parties and subject to the
procedures and terms in this Article. If the Parties desire not to continue with the
resubmission process, then this Agreement will automatically terminate, with payment to
the Artist per the payment schedule in Article 3 up through the date of termination. (See
Article 4.4.d)
g. Upon City approval of the Revised Final Site Design, any revisions made to a City-
approved Revised Final Site Design shall become part of the Final Site Design. Artist shall
incorporate any City-approved revisions into the Final Design in conformance with City's
requirements. Artist shall provide the Revised Final Design presentation materials to the
Contract Manager to become part of the City's Public Art archive owned by City. These
documents, models, and/or drawings will be retained for archival and exhibition purposes.
h. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Revised
Final Design is accepted by City and funding is appropriated by the Fort Worth City
Council, negotiations for delivery and installation of the Work shall commence, which
shall become part of the deliverable under any anticipated artwork installation contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed EIGHT THOUSAND TWO
HUNDRED NINETY EIGHT DOLLARS AND NO CENTS ($8,298.00), which shall constitute
full compensation for any and all costs associated with this Agreement, including, but not limited
to, travel expenses, engineering and consulting fees, and services performed and materials
furnished by Artist under this Agreement. Artist and City 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. SIX HUNDRED AND FORTY NINE DOLLARS AND NO CENTS ($649.00) upon
execution of this Agreement.
b. SIX HUNDRED AND FORTY NINE DOLLARS AND NO CENTS ($649.00) within
thirty(30)calendar days after City's approval of the Revised Final Site Design.
d. City may pay Artist up to SEVEN THOUSAND AND NO DOLLARS ($7,000.00) for
engineering and consulting fees in order to fulfill the terms of this Agreement. Such
payment shall be made upon receipt of an invoice from Artist with the original invoice (a
retainer fee of up to 50% is allowed)for such services attached thereto.
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 Project. City shall supply Artist with the "Texas Certificate of Exemption," in
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substantially the same form as that attached hereto as Exhibit"D " for use by Artist in the
fulfillment of this Agreement.
3.4. Artist's Expenses.
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and
insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's
agents, consultants, engineers, and/or employees necessary for the proper performance of the
services required under this Agreement.
ARTICLE 4
TERM AND TERMINATION
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. 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.
4.3. Termination for Cause.
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 4.3 in accordance with the dispute resolution process set forth in Article 5. 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 provision 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.
4.4. 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, specifying
the grounds for termination.
b. If the termination is for the convenience of City, City shall pay Artist pursuant to the
payment provision in Article 3, and Artist shall continue to provide the City with services
requested by City and in accordance with this Agreement up to the effective date of
termination. Upon payment in full of all monies due for services provided up to the
effective date of termination, City shall have the right, in its sole discretion,to possession
and transfer of all work product produced by Artist under this Agreement, including, but
not limited to, finished and unfinished drawings, sketches, photographs, models, and
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designs, up to the effective date of termination, provided that no right to fabricate or
execute the Work shall pass to City.
C. If termination is for the convenience of Artist, City shall have the right, in its sole
discretion,to pay Artist pursuant to the payment provision in Article 3 or require the Artist
to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this
Agreement prior to the effective date of termination. If City chooses to pay Artist,then all
work product produced by Artist under this Agreement, including, but not limited to,
finished and unfinished drawings, sketches, photographs, models, and designs, 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 Article 2.5, then City
shall pay Artist per the payment schedule in Article 3 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.
4.5. 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. Should Artist's Revised Final Site Design have been approved, in the event of termination
under this Article 4.5,City shall have the right to complete the installation of the Elements,
if feasible. Due regard shall be made for Artist's intended results and proper credit and
acknowledgement shall be given to Artist.
ARTICLE 5
DISPUTE RESOLUTION
a. if either Artist or City has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the Parties
shall first attempt to resolve these issues through this dispute resolution process. The
disputing party shall notify the other party in writing as soon as practicable after discovering
the claim,dispute,or breach. The notice shall state the nature of the dispute and list the party's
specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both
parties shall make a good faith effort,either through email,mail,phone conference, in person
meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in
question that may arise out of or in connection with this Agreement.
b. If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt
of the notice of the dispute,then the Parties shall submit the matter to mediation in accordance
with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the
Texas Government Code,then in effect. Request for mediation shall be in writing, and shall
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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 4.3)
ARTICLE 6
ARTIST'S ADDRESS
Artist shall notify City of changes in Artist's address as set forth in Article 12. 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 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.
ARTICLE 7
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 8
INDEMNIFICATION
9.1. Generallndemnity.
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, 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
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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 THE ACTS, ERRORS, OR OMMISSIONS OF ARTIST
AND/OR ARTIST'S SUBCONTRACTORS 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.
9.2. 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.
ARTICLE 9
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.
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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 10
WARRANTIES
Warranties of Title and Copyright.
a. Artist represents and warrants that:
i. Work shall be the original product of Artist's sole creative efforts.
ii. Work is and will be unique and original, and does not infringe upon any copyright
or the rights of any person or entity;
iii. Work has not been accepted for sale elsewhere;
iv. Artist has not sold,assigned,transferred,licensed,granted,encumbered,or utilized
the Work or any element thereof or any copyright related thereto that may affect or
impair the rights granted pursuant to this Agreement;
V. Artist has the full power to enter into and perform this Agreement and to make the
grant of rights contained in this Agreement; and
vi. 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 11
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
I L L Title.
Title to the Work,including,but not limited to,all documents,models,and drawings that constitute
or are components of the Work shall pass to City upon approval of the Revised Final Site Design
and payment for the Work. These documents,models, and drawings will be retained for archival
and exhibition purposes. Artist's Work and all other work products under this Agreement shall
become the property of City,without restriction on future use, except as provided below.
11.2. Copyright Ownership.
Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole
author of the Work for the duration of the copyright.
11.3. Reproduction Rim.
a. In view of the intention that the Work be unique,Artist shall not make any additional exact
duplicate reproductions of the Work, nor shall Artist grant permission to others to do so
except with the express written permission of City. However,nothing herein shall prevent
Artist from creating future artworks in Artist's manner and style of artistic expression.
b. By execution of this Agreement,Artist grants to City an exclusive,perpetual,royalty free,
and irrevocable license to graphically depict and publicly display the Work in accordance
with the Revised Final Site Design as incorporated into the Final Site Design for any non-
commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or
display of the Work intended to promote or benefit City, its public services or its public
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purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding
the above limitation, Artist agrees and understands that nothing in this paragraph shall
affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the
Work to alter, change, modify, destroy, remove, move, replace, operate, maintain,
transport, sell or transfer, in whole or in part, the 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.
C. 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.
d. 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 12
MISCELLANEOUS
12.1. Compliance.
Artist shall comply with all Federal,state,and local statutes,ordinances,and regulations applicable
to the performance of Artist's services under this Agreement.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. 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.
12.6. 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
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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 their respective successors and permitted assigns.
12.7. 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.
12.8. 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.
12.9. Force Majeure.
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of
any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement
weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national
disasters; riots; material or labor restrictions; transportation problems; or any other circumstances
which are reasonably beyond the control of the party obligated or permitted under the terms of this
Agreement to do or perform the same, regardless of whether any such circumstance is similar to
any of those enumerated or not,the party so obligated or permitted shall be excused from doing or
performing the same during such period of delay, so that the time period applicable to such design
or construction requirement shall be extended for a period of time equal to the period such party
was delayed.
12.10. 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.
12.11. 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 the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of(i) thirty (30) days following
delivery by 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.
12.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
12.13. Right to Audit.
Artist agrees that City will have the right to audit the financial and business records of Artist that
relate to the Work(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
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 12 of 20
Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records
available to the City at 200 Texas Street, Fort Worth, Texas or at another location in the City
acceptable to both parties following reasonable advance notice by the City and shall otherwise
cooperate fully with the City during any audit. 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
described in this Article 12.13.
12.14. 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.
12.15. Survival Provision.
The provisions contained in Articles 4.5 (Incapacity of Artist), 7 (Artist as an Independent
Contractor), 8 (Indemnification), 10 (Warranties of Title and Copyright), 11 (Ownership and
Intellectual Property Rights),and 12.13 (Right to Audit)shall survive the termination or expiration
of this Agreement.
12.16. 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.
12.17. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
12.18. Israel.
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. By signing this Agreement,Artist certifies that Artist's signature provides
written verification to the City that Artist: (1) does not boycott Israel, and(2) will not boycott
Israel during the term of the Agreement.
ARTICLE 12
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: Assistant City Manager
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 13 of 20
City Manager's Office
City of Fort Worth
200 Texas Street, Third Floor
Fort Worth, Texas 76102
Copies to: City Attorney
Office of the City Attorney
City of Fort Worth
200 Texas Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President of Public Art
Arts Council of Fort Worth& Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
2. ARTIST Chris Powell
338 W. 5`h Street
Fort Worth, TX 76107
IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective
Date.
CITY OF FORT WORTH
by: by: `l12 we
Jesus J. Chapa Chris Powell
Assistant City Manager Artist
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensurin all performance and reporting
re ements.
5
Jenn'fer Co
Pub c Art Collection Manager
A Council of Fort Worth
OFFICIAL RECUR®
CITY�tEGRETARY
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Desig an nsta anon
Execution Copy 7/6/18 FT. WORTRUI(K
APPROVED AS TO FORM
AND LEG)
Jessica Sangsva g
Senior Assista City Attorney
Form 1295:NA
ATTESTED BY: FORT `
ary J. K7a&
City Secretary
�XAS
Contract Authorization:
M&C—N/A
}fib lag 5: NA
OFFICIAL RECORD
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design at d 1G INaNCRETARY
Execution Copy 7/6/18 FT U dkfkOTX
Exhibit A: Conditionally Approved Final Site Design
r ,
Final Site Design shows general location of Sculpture and Elements at Lower Heritage
Park
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 16 of 20
T �
Exhibit B: The Site
a
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Lower Heritage Park located at Franklin Street and 445 N.Taylor Street, Fort Worth, TX 76109
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 17 of 20
Exhibit C: Budget Form
FORT WORTH PUBLIC ART PROJECT BUDGET
Please complete this form and attach a signed receipt or estimate complete with per unit
costs(no lump sums)for all items designated with an asterisk(').Cost increases must
also have a written estimate attached.
ARTIST'S FEE
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Car Rei itel
Per Diem Expenses at _ _per day
Mileage at'. _per mile
INSURANCE
Auto/Hired Vehicle Liability
General Liability for Artist I Subcontractors
Worker's Comp. -Employer's Liability
Other,as applicable
ADMINISTRATIVE EXPENSES
Phone/Fax
Delivei y,'nipping r'for--orrespondence,samples,models,drawings etc)
Reprographic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(If applicable,drawing must be signed and sealed by a professional registered to practice
in the State of Texas)
Architect•
Structural Engineer*
Electrical Engineer*
Conservator*
Photographer(for documentation of completed work)*
Other*
MATERIALS
(Please attach a complete list of materials.Itemize all anticipated aspects and
components with per unit cost estimates)
Materials'Total
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and work to be completed by
artist.)
Artist's Labor(_hours at S_per hour)Total
Subcontracted Labor*(Total)
Facility/Equipment Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA,City of Fort Worth or others)
Test Drilling*
Removal•
LandscapingArrigation'
Electrical Modifications*
Water WorkiMechanical Devices
Otlrer'
(Revised May 2011)
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 18 of 20
TRANSPORTATION
Materials to Fabrication Site"
Finished Work to Installation Site`
Other*
BASE/MOUNTING
Base
Mounting Devices and Components
Foundation/Footing
Other
INSTALLATION COSTS
(Costs must include allowance for alter hours installation,if applicable.Please attach a
complete list of equipment and individual estimates with this form)
Subcontracted Labor*
Scaffolding*
Equipment Rental related to installation'
04-duty Police/Security'
Traffic Barriers'
Storage Facility Rental"
City Permits
Display Devices
Fireproofing'
Site Restoration`
Other"
LIGHTING
Designers'
Fixtures'
Bulbs`
Site Preparation`
Installation"
GRAND TOTAL
Please make any necessary notes here:.
Prepared By:
Date:
(Revised May 2011)
_._.._...__..._._--
Execution Copy 7/6/18 19 of 20
Exhibit D: Sales Tax Exemption
INarah>m
Texas Sales and Use Tax Exemption Certification
This cerfificate does not require a number to be valid.
Name of purchaser.Gam or apmay
City of Fort worth
AdAess(Sheaf d manbar.P.O.Box or Route nuviW_ - Phone(Area eo*and numbwl
1000 Throckmorton street 817.392.8325
City.Stare.ZIP code
Fort Worth,Texas 78102
I,the purvhaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable
items described below or on the attached order or Invoice)from:
Seller: AN Vendors
Street address: __ ——__ _ _City,State,ZIP code: _
Description of items to be purchased or on the attached order or invoice:
All Items
Purchaser claims this exemption for the following reason:
Governmental Municipality
I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with
tihe provisions of the Tax Code andlor all applicable low.
1 understand ithef k is a criminal offense to give an exemption cerfirwale to the seller fortaxable Items that 1 know,at the lime of purchese,
will be usedin a manner other than that expressedin this ceriftefe,and depending on the amount oftax ev&do4 the offense prey range
from a Class C misdemeanor to a felony of the second degree.
Purchaser ( Title Date !�
hese Finance Director FinanDirector 2/21312014
NOTE. This certificate cannot be Issued for the purchase,lease,or rental of a motor vehicle.
THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID.
Sales and Use Tax"Exemption Numbers'or'Tax Exempt"Numbers do not exist.
This certificate should be furnished to the supplier.
Do pp=send the completed certificate to the Comptroller of Public Accounts.
Agreement Between the City of Fort Worth and Chris Powell for Revised Final Site Design and Installation
Execution Copy 7/6/18 20 of 20