HomeMy WebLinkAboutContract 53187 C.
CITY SECRETARY
CONTRACT NO. 531$1
,t V via2� N °�, p AGREEMENT FOR SERVICES
THIS AGREEMENT FOR SERVICES ("Agreement") is made and entered into by and between
THE CITY OF FORT WORTH, a home rule municipal corporations of the State of Texas
(hereinafter referred to as "City"), acting by and through its duly authorized Assistant City
Manager, and ARTS COUNCIL OF FORT WORTH AND TARRANT COUNTY, INC., a Texas
non-profit corporations (hereinafter referred to as "Contractor"), acting by and through its duly
authorized President.
RECITALS
WHEREAS, Contractor administers the City's Competitive Grants Program for the Arts and the
Fort Worth Public Art Program, to serve to enrich or community through the arts;
WHEREAS, such Services serve a public purpose in promoting artistic and cultural activities
benefiting the Fort Worth community as a whole;
WHEREAS, Contractor administers the Competitive Grants Program for the Arts, which includes
the General Operating Support Grants, to provide finding and leadership to stimulate and ensure
the advancement of the Arts throughout the entire community;
WHEREAS, through the Competitive Grants Program for the Arts, Contractor serves to benefit
the Fort Worth community by supporting the various artistic and cultural organizations including
Artes de la Rosa and the Community Arts Center;
WHEREAS, City implemented the Fort Worth Public Art Program pursuant to Chapter 2,
Sections 2-56 through 2-61 of the Fort Worth City Code, to create an enhanced visual environment
for Fort Worth residents, to commemorate City's rich cultural and ethnic diversity, to integrate the
design work of Artists into the development of City's capital infrastructure improvements, and to
promote tourism and economic vitality in City through the artistic design of public spaces;
WHEREAS, the Fort Worth City Council has selected Contractor to provide the day-to-day
administration of the Fort Worth Public Art Program pursuant to Chapter 2, Section 2-60 of the
Fort Worth City Code-, and
WHEREAS, City and Contractor wish to set out the terms and conditions under which said
Services will be provided;
NOW, THEREFORE, City and Contractor for and in consideration of the mutual covenants and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
OFFOCUAL IRECORD
CM, SECRETARY
FT WORTH, `X
AGREEMENT
1. SCOPE OF SERVICES.
Contractor covenants and agrees to fully perform, or cause to be perfonned, with good faith
and due diligence,all oversight and administrative services for the City of Fort Worth Competitive
Grants Program for the Arts and the City of Fort Worth Public Art Program, as described in
Exhibits "A" and Exhibit "B," respectively, which are attached and incorporated herein for all
purposes incident to this Agreement ("Services").
2. COMPENSATION.
(a) In consideration of the Services to be performed hereunder by Contractor, City promises and
agrees to pay Contractor in one installment the sum of One Million, Nine Hundred Twenty
Thousand, Eight Hundred Twenty Eight Dollars ($1,920,828.00) ("Funds") for and in support
of the arts programming within the City as detailed in Exhibits A and B. For Fiscal Year 2020
(October 1, 2019, through September 20, 2020), Contractor shall expend and distribute these
funds as follows:
ITEM AMOUNT
Management and distribution of fields
for Competitive Grants Program $1,127,500.00
Management of City Public Art Program $543,328.00
Management of Rose Marine Theatre & Arts Center $250,000.00
TOTAL $1,920,828.00
(b) Contractor shall receive direct payment in the amount of $1,127,500.00, to run the
comprehensive Grants Program for the Arts, which no more than ten percent (10%)
($112,750.00) shall be used for administrative costs associated with the management of the
program. The remaining amount ($906,021.00) shall be used for the distribution of funds via
grants to artists and arts organizations that are to be selected.by Contractor in accordance with
the terms of this Agreement and in the exercise of Contractor's reasonable discretion.
(c) The organizations selected by Contractor and those listed in the chart above (Rose Marine
Theatre & the Community Arts Center) shall be referred to herein as "Recipients." Recipients
of grants shall be selected through a competitive grant process as outlined in Exhibit A.
(d) Contractor shall receive direct payment in the amount of $542,328.00, for the public art
program professional management Services, which are outlined in more detail in Exhibit B,
with the expectation that Contractor will submit to City pt the end of the fiscal year a
comprehensive listing of all Project Management hours associated with specific projects that
have funds budgeted for Project Management hours. Contractor will work with City to allow
City to reimburse the general fiend through transfers from capital project funds related to
specific projects. Reimbursable hours to City from Capital Project fiends will also include
development staff hours for Iconic Art works located in the Cultural District and downtown
Fort Worth, when allowable under the capital funding source.
(e) The City shall disburse to Contractor a total of$250,000.00 for management of the City-owned
facilities known as the Community Arts Center and the Rose Marine Theater. Of this amount,
Contractor shall retain $200,000.00 for its management of the Community Arts Center.
Contractor shall distribute the remaining $50,000.00 to Artes de la Rosa for its management
of the Rose Marine Theater. Contractor shall make the distribution to Artes de la Rosa as soon
as funds are made available from the City.
(f) The City may reduce the Funds provided to Contractor under this Agreement at any time by
up to two percent (2%) of the Funds amount ($27,550.00).
3. REPORTING OF EXPENDITURES AND SERVICES.
a. For the Competitive Grant Program, Contractor shall deliver to the City a quarterly
statement of the receipts and expenditures of Funds ("Quarterly Report") detailing
how the Funds were expended by Contractor itself and by each Grant Recipient to
accomplish perfonnance of the Services. The quarterly statement shall include budget
and expenditure update, program activity reports and an overall status of programs.
b. For the Fort Worth Public Art program, Contractor shall deliver to the City a Quarterly
Report including an operating budget and expenditure update and program activity
reports.
c. Each Quarterly Report must be prepared and signed by a representative of the
Contractor who has responsibility for oversight of Contractor's financial accounts and
records. If the Contractor deviates from this reporting requirement, the Contractor will
be considered in non-compliance with this Agreement.
d. Each Quarterly Report must be submitted to the City not later than the 15`h day of the
first month after the end of each quarter. Therefore, each respective Quarterly Report
must be submitted not later than January 15, 2020; April 15, 2020; July 15, 2020; and
October 15, 2020.
e. Any non-compliance by Contractor under Section 3 of this Agreement may jeopardize
the Contractor's ability to receive future finding from the City. In addition, failure to
comply with Section 3 or any other tern of this Agreement, including, but not limited
to, requirements regarding location of arts programming, may result in forfeiture of
grant monies not yet disbursed and/or required reimbursement of all monies awarded.
4. REPORTING DEADLINES
Not later than the 15`h day of the first month after the end of each quarter, Contractor shall submit
to the City a report of Services for its Competitive Grant Program and each Grant Recipient, and,
separately, for the Fort Worth Public Art program. Therefore, each respective Quarterly Services
Report must be submitted not later than January 15, 2020; April 15, 2020; July 15, 2020; and
October 15, 2020.
5. TERM AND TERMINATION.
This Agreement shall be for a Tern beginning October 1, 2019, and ending September 30, 2020.
a. Either party may cancel this Agreement upon thirty (30) days' notice in writing to the other
party of such intent to terminate.
b. The City may terminate this Agreement immediately for any violation by Contractor of Section
3, "Reporting of Expenditures" or Section 4, "Reporting Deadlines," above.
c. In the event no funds or insufficient fiends are appropriated by the City in any fiscal period for
any payments hereunder, City will notify the Contractor of such occurrence, and this Agreement
shall terminate on the last day of the fiscal period for which appropriations were received without
penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein
agreed upon for which funds shall have been appropriated.
e. The City may cancel this Agreement if it is found that gratuities in the form of entertainment,
gifts, or otherwise were offered or given by Contractor or any agent or representative to any City
official or employee with a view toward securing favorable treatment with respect to the awarding,
amending,or making of any determinations with respect to performance under this Agreement. In
the event this Agreement is canceled by City, City shall be entitled, in addition to any other rights
and remedies,to recover from Contractor a sum equal in amount to the cost incurred by Contractor
in providing such gratuities.
e. In the event of any termination under this Section 5,Contractor shall reimburse to City all Funds
that Contractor has received under this Agreement for purpose$ of discretionary distribution but
that it not otherwise committed or encumbered by contract. Contractor shall include in its funding
contract with each Recipient, that in the event of any termination of this Agreement or a Recipient
contract, Recipient shall reimburse to the City all Funds that Recipient has received but that it has
not otherwise committed or encumbered by contract.
f. Further,upon termination of this Agreement for any reason,within a reasonable time,Contractor
shall provide City with copies of all completed or partially completed documents prepared under
this Agreement, including, but not limited to, all documents pertaining to the Fort Worth Public
Art Program.
6. RIGHT TO MONITOR SERVICES.
Contractor covenants and agrees to hilly cooperate with City in jilonitoring the effectiveness of
the Services to be performed under this Agreement, and City shall have access at all reasonable
hours to offices and records of Contractor for the purpose of such monitoring. Contractor further
agrees to include in its agreement with each Recipient, that the Recipient agrees to fully
cooperate with the City in monitoring the effectiveness of the Services to be performed under
this Agreement, and City shall have access at all reasonable hours to offices and records of the
Recipient for the purpose of such monitoring.
7. INDEPENDENT CONTRACTOR.
Contractor shall operate hereunder as an independent contractor and not as an officer,
agent, servant, or employee of City. Contractor shall have exclusive control of and the exclusive
right to control the details of the Services performed hereunder and all persons perfonming same
and shall be solely responsible for the acts and omissions of its officers, agents, servants,
employees, subcontractors, and program participants. The doctrine of respondent superior shall
not apply as between the City and Contractor, its officers, agents, servants, employees,
subcontractors, or program participants. Nothing herein sh 11 be construed as creating a
partnership or joint enterprise between City and Contractor. It is�expressly understood and agreed
that no officer, agent, employee, or subcontractor of Contractor is in the paid service of City.
8. LIABILITY, INDEMNIFICATION, AND RELEASE.
a. CITY SHALL IN NO WAY OR UNDER ANY CIRCUMSTANCES BE
RESPONSIBLE FOR ANY PROPERTY BELONGING TO CONTRACTOR,
ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, PROGRAM
PARTICIPANTS, OR RECIPIENTS THAT MAY BE LOST, STOLEN,
DESTROYED, OR IN ANY WAY DAMAGED. CONTRACTOR HEREBY
AGREES TO INDEMNIFY AND HOLD HARMLESS THE CITY, ITS
OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND
ALL CLAIMS OR SUITS CONCERNING SUCH PROPERTY.
CONTRACTOR COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS
OFFICERS,AGENTS,SERVANTS,AND EMPLOYEES FROM AND AGAINST
ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE
AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL
OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE
EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS,
ACTIVITIES, AND SERVICES DESCRIBED HEREIN, WHETHER OR NOT
CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, OR
SUBCONTRACTORS OF CITY; AND CONTRACTOR HEREBY ASSUMES
ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS,
AGENTS, SERVANTS,AND EMPLOYEES FOR ANY AND ALL CLAIMS OR
SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER
KINDS OR CHARACTER,WHETHER REAL OR ASSERTED,ARISING OUT
OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE,
ATTEMPTED PERFORMANCE, OR NON-PERFORMANCE OF THIS
AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES, AND SERVICES
DESCRIBED HEREIN, WHETHER OR NOT CAUSED IN WHOLE OR INPART,
BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS OF CITY.
CONTRACTOR LIKEWISE COVENANTS AND AGREES TO AND DOES
HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST
ANY AND ALL INJURY, DAMAGE, OR DESTRUCTION OF PROPERTY OF
CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR
OMISSIONS OF CONTRACTOR, ITS OFFICERS, MEMBERS, AGENTS,
EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, PROGRAM
PARTICIPANTS,OR RECIPIENTS, WHETHER OR NOT CA USED,IN WHOLE
OR IN PART, BY ALLEGED NEGLIGENCE OF OFF ICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS OF
CITY. CONTRACTOR AGREES TO AND SHALL RELEASE CITY, ITS
AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES
FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO
PERSONS OR PROPERTY SUSTAINED Iiy CONNECTION WITH OR
INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF
THE INJURY, DEATH, DAMAGE, OR LOSS IS CA USED BY CITY'S SOLE OR
CONCURRENT NEGLIGENCE.
b. Contractor shall require all of its subcontractors and Recipients to include in their
subcontracts a release and indemnity in favor of City in substantially the same
form as above.
c. Release: Contractor agrees to and shall release City, its representatives, agents,
employees, officers, and legal representatives from any and all liability for injury,
death, damage, or loss to persons or property sustained by Contractor, its
representatives, agents, employees, officers, and legal representatives in
connection with or incidental to Contractor's performance of Services under this
Agreement.
d. This Section shall survive the expiration or termination of this Agreement.
9. MISAPPRORIATION OF FUNDS.
In the event it is determined that Contractor or any Grant Recipient has misused,
misapplied, or misappropriated all or any part of the funds provided hereunder, Contractor agrees
to indemnify, hold harmless and defend the City of Fort Worth, its officers, agents, servants, and
employees, from and against any and all claims or suits resulting from such misuse, misapplication,
or misappropriation.
10. CHARITABLE IMMUNITY.
If Contractor, as a charitable or nonprofit organization, has or claims an immunity or
exemption (statutory or otherwise) from and against liability for aniage or injury, including death,
to persons or property, Contractor hereby expressly waives its rights to plead defensively such
immunity or exemption as against the City.
11. ASSIGNMENT AND SUBCONTRACTING.
Contractor shall not assign or subcontract all or any part of its rights, privileges, or duties
under this Agreement without the prior written consent of City, and any attempted assignment or
subcontract of same without such prior written approval shall be void and constitute a breach of
this Agreement.
12. COMPLIANCE WITH LAWS, ORDINANCES, RULES;AND REGULATIONS.
Contractor, its officers, agents, employees, and subcontractors shall abide by and comply
with all federal, state, and local laws, including all ordinances, roles, and regulations of City. It is
agreed and understood that, if City calls to the attention of Contractor any such violation on the
part of Contractor or any of its officers, agents, employees, or subcontractors,then Contractor shall
immediately desist from and correct such violation.
6. NON-DISCRIMATION COVENANT.
Contractor, for itself, its personal representatives, assigns, subcontractors and successors
in interest, as part of the consideration herein, agrees that in the perfonnance of Contractor's duties
and obligations hereunder, it shall not discriminate in the treatment or employment of any
individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES
FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT
BY CONTRACTOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS,
SUBCONTRACTORS OR SUCCESSORS IN INTEREST, CONTRACTOR AGREES TO
ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD
CITY HARMLESS FROM SUCH CLAIM.
13. INSURANCE.
(a) Contractor shall not commence work under this Agreement until it has obtained all
insurance required under this Agreement, and City has approved such insurance, nor shall
Contractor allow any subcontractor who is performing physical work on City property to
commence work on its subcontract until all similar insurance of the subcontractor has been so
obtained and approval given by City. Subcontractor insurance requirements shall not pertain to
contract employees, selection panelists, artists under proposal or design team agreements,
lecturers, workshop leaders, art appraisers, computer/website consultants, design consultants,
printers, etc.
(b) Workers' Compensation Insurance: Contractor shall take out and maintain during
the life of this Agreement statutory Workers' Compensation Insurance for all of its employees
performing any of the services hereunder, and, in case any work is sublet, Contractor shall require
the subcontractor similarly to provide Workers' Compensation insurance for all of the latter's
employees unless such employees are covered by the protection afforded by Contractor's
insurance. In case any class of employee who engages in hazardous work under this Agreement
is not protected under the Workers' Compensation statute, Contractor shall provide and shall
cause subcontractor to provide adequate and suitable insurance for the protection of employees
not otherwise protected.
(c) Commercial General Liability Insurance: Contractor shall procure and maintain
during the life of this and any renewal Agreement a commercial general tiability ("CGL")
insurance policy in an amount not less than One Million Dollars($1,000,000.00)per occurrence
with a Two Million Dollar($2,000,000.00) aggregate. The CGL policy shall protect Contractor,
City, and any subcontractor performing work covered by this Agreement from and/or against
any and all claims, suits, and/or causes of action for any and all types of damage, including, but
not limited to, personal injury (including, but not limited to, death and/or bodily injury) and
property damage or losses that may arise from the operations, services, and activities of the
programs described under this Agreement, whether such operations, services, and activities be
by Contractor, City, or by any subcontractor or by anyone directly or indirectly employed by
any of them. The City shall be designated as an additional insured on the general liability policy,
and the general liability policy shall be primary with respect to any insurance or self-insurance
programs maintained by City.
(d) Non-Profit Organization Liability or Directors & Officers Liability: Contractor shall procure and
maintain $1,000,000.00 per occurrence, with a $1,000,000.00 annual aggregate limit, in a form
that is acceptable to the City's Risk Manager.
(e) Automobile Liability Insurance: Contractor shall procure and maintain automobile liability
insurance with the following limits: a One Million Dollar($1,000,000) combined single limit, or
split limits of(1) Two Hundred Fifty Thousand Dollars ($250,000.00) bodily injury per person,
(2) Five Hundred Thousand Dollar ($500,000.00) bodily injury per accident, and (3) One
Hundred Thousand Dollar ($100,000.00) property damage. City shall be designated as an
additional insured on the automobile liability insurance policy.
(f) Errors & Omissions (Professional Liability): Contractor shall procure and
maintain an Errors and Omissions (Professional Liability) policy of insurance with minimum
coverage of not less than One Million Dollars ($1,000,000.00) per claim and aggregate. If
coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior
to the date of the contractual agreement. The certificate of insurance shall state that the coverage
is claims-made and include the retroactive date. The insurance shall be maintained for the
duration of the Agreement and any renewal term and for five (5) years following completion of
the Service provided under the Agreement and any renewal term. An annual certificate of
insurance submitted to the City shall evidence coverage.
(g) Proof of Insurance Coverage: Contractor shall furnish City with a certificate of
insurance as proof that it has obtained for the duration of this Agreement, and any renewal term,
the insurance amounts required herein. Contractor's insurance policies shall provide that the
insurer shall give City thirty (30) days' prior written notice before altering, modifying, or
terminating the insurance coverage.
(h) Contractor's insurer(s) must be authorized to do business in the State of Texas for the lines of
insurance coverage provided and be currently rated in terms ofinancial strength and solvency to
the satisfaction of the City's Risk Manager.
(1) Each insurance policy required herein shall be endorsed with a waiver of subrogation in favor of
the City. Each insurance policy required by this Agreement (except for policies of workers'
compensation or accident/medical insurance, if required) shall list the City as an additional
insured. City shall have the right to revise insurance coverage requirements under this
Agreement.
13. RIGHT TO AUDIT RECORDS.
Contractor agrees that the City shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine, whether in hard copy
or electronic format, any directly pertinent books, documents, papers, and records of the
Contractor involving transactions relating to this Agreement. Contractor agrees that the City
shall have access during normal working hours to all necessary Contractor facilities and shall
be provided adequate and appropriate workspace in order to conduct audits in compliance with
the provisions of this section. The City shall give Contractor reasonable advance notice of
intended audits.
Contractor further agrees to include in all of its subcontractor and Recipient agreements
hereunder a provision to the effect that the subcontractor and/or the Recipient agrees that the
City shall, until the expiration of three (3) years after final payment under the subcontract or
this Agreement, have access to and the right to examine, whether in hard copy or electronic
format, any directly pertinent books, documents, papers, and records of such subcontractor or
Recipient involving transactions relating to the subcontract or this Agreement, and further that
City shall have access during normal working hours to all subcontractor or Recipient facilities
and shall be provided adequate and appropriate workspace in order to conduct audits in
compliance with the provisions of this paragraph. City shall give subcontractor or Recipient
reasonable advance notice of intended audits.
This Section shall survive the expiration or termination of this Agreement.
14. GOVERNING LAW AND VENUE.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Texas. Should any action, whether real or asserted, at law or in equity, arise out of the
execution, performance, or attempted performance of this Agreement, venue for said action shall
lie in Tarrant County, Texas.
15. NOTICES.
Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-
delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party
shown below:
Planning and Development Karen Wiley, President
City of Fort Worth Arts Council of Fort Worth & Tarrant
County, Inc.
200 Texas St. 1300 Gendy Street
Fort Worth, Texas 76102 Fort Worth, Texas 76107
(817) 392-8500 (817) 298-3022
16. NO WAIVER.
The failure of City or Contractor to insist upon the performance of any term or provision
of this Agreement or to exercise any right conferred herein shall not be construed as a waiver or
relinquishment to any extent of City's or Contractor's right to assert or rely upon any such tenn or
right on any future occasion.
17. DISCLOSURE OF CONFLICTS AND CONFIDEN>Q'IAL INFORMATION.
Contractor hereby warrants to the City that Contractor ha made full disclosure in writing
of any existing or potential conflicts of interest related to Contractor's Services under this
Agreement. In the event that any conflicts of interest arise during the time in which this
Agreement is in effect, Contractor hereby agrees immediately to make frill disclosure to the City
in writing.
Contractor, for itself, its officers, agents, and employees, further agrees that it shall treat
all information provided to it by the City ("City Information") as confidential and shall not
disclose any such information to a third party without the prior written approval of the City.
Contractor shall store and maintain City Information in a secure manner and shall not allow
unauthorized users to access, modify, delete, or otherwise corrupt City Information in any way.
Contractor shall notify the City immediately if the security or integrity of any City Information
has been compromised or is believed to have been compromised.
18. SEVERABILITY.
If any provision of this Agreement is 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.
19. FORCE MAJEURE.
The City and Contractor shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Agreement. If either party is unable, either in whole or part, to
fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial
disturbances; acts of public enemies; wars; blockades; insurrections, riots; epidemics; public
health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department,
commission, or agency of the United States or of any state; declaration of a state of disaster or of
emergency by the federal, state, county, or City government in accordance with applicable law;
issuance of a Level Orange or Level Red Alert by the United States Department of Homeland
Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond
the party's reasonable control (each a"Force Majeure Event"), the obligations so affected by such
Force Majeure Event will be suspended only during the continuance of such event.
20. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
21. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have had the opportunity to review
and revise this Agreement and that the normal rules of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any exhibit hereto.
22. ENTIRETY OF AGREEMENT.
This written instrument (together with all exhibits and schedules attached hereto and
incorporated herein) constitutes the entire understanding of the parties hereto concerning the
subject matter and transaction addressed herein. Any prior or contemporaneous, oral or written
agreement that purports to vary from the terms hereof shall be void.
23. IMMIGRATION NATIONALITY ACT. Contractor shall verify the identity and
employment eligibility of its employees who perform work under this Agreement, including
completing the Employment Eligibility Verification Form (I-9). Upon request by City, Contractor
shall provide City with copies of all I-9 forms and supporting eligibility documentation for each
employee who performs work under this Agreement. Contractor shall adhere to all Federal and
State laws as well as establish appropriate procedures and controls so that no services will be
performed by any Contractor employee who is not legally eligible to perform such services.
CONTRACTOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM
ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS
PARAGRAPH BY CONTRACTOR, CONTRACTOR'S EMPLOYEES,
SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Contractor,
shall have the right to immediately terminate this Agreement for violations of this provision by
Contractor.
24. NO BOYCOTT OF ISRAEL. If Contractor has fewer than 10 employees or this
Agreement is for less than $100,000, this section does not apply. Contractor 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, Contractor certifies that Contractor's signature provides written verification to
the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during
the term of the Agreement.
25. Public Information Act.
Contractor understands and acknowledges that City is a public entity under the laws of
the State of Texas and as such,all documents held by City are subject to disclosure under Chapter
552 of the Texas Government Code. Contractor shall clearly indicate to City what information
it deems proprietary. If City is required to disclose any documents that may reveal any of
Contractor's Proprietary Information to third parties under thO Texas Government Code, or by
any other legal process, law,rile, or judicial order by a court of competent jurisdiction, Citywill
notify Contractor prior to disclosure of such documents, and give Contractor the opportunity to
submit reasons for objections to disclosure. City agrees to restrict access to Contractor's
information to those persons within its organization who have a need to know for purposes of
management of this Agreement. City agrees to inform its employees of the obligations under
this paragraph and to enforce riles and procedures that will prevent any unauthorized
disclosure or transfer of information. City will use its best efforts to secure and protect
Contractor's information in the same manner and to the same degree it protects its own
proprietary information; however, City does not guarantee that any information deemed
proprietary by Contractor will be protected from public disclosure if release is required by law.
The foregoing obligation regarding confidentiality shall remain,in effect for aperiod of three (3)
years after the expiration of this Agreement.
26. NO THIRD-PARTY BENEFICIARIES.This Agreemlent shall inure only to the benefit
of the parties hereto and third persons not privy hereto shall not, in any form or manner, be
considered a third party beneficiary of this Agreement. Each party hereto shall be solely
responsible for the fulfillment of its own contracts or commitments.
27. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
28. MISAPPROPRIATION OF FUNDS.
IN THE EVENT IT IS DETERMINED THAT CONTRACTOR HAS
MISUSED, MISAPPLIED, OR MISAPPROPRIATED ALL OR ANY PART OF THE
FUNDS PROVIDED HEREUNDER, CONTRACTOR AGREES TO INDEMNIFY,
HOLD HARMLESS, AND DEFEND CITY, ITS REPRESENTATIVES, OFFICERS,
AGENTS, SERVANTS,AND EMPLOYEES, FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS RESULTING FROM SUCH MISUSE,MISAPPLICATION, OR
MISAPPROPRIATION.
29. SiLmature Authority
The person signing this Agreement hereby warrants that he/she has the legal authority to
execute this Agreement on behalf of the respective party, and that such binding authority has
been granted by proper order,resolution, ordinance or other authorization of the entity. Each
party is fully entitled to rely on these warranties and representations in entering into this
Agreement or any amendment hereto.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples in Fort
Worth, Tarrant County, Texas, to be effective October 1, 2019.
CITY OF FORT WORTH ARTS COUNCIL OF FORT WORTH
AND TARI�)ANT COUNTY, INC.
Dana Burghdoff Karen. Wiley z
Interim Assistant City Manger President
Date: Date:
AT E A E
0. C?
Mary Kayse _ 2 Nam
City Secretary ' Title5 ���
Date: " �:� " Date: .0// v? tl �g
APPROVED AS TO FORM AND LEGALITY:
of'✓- --
µstc nn•�V .
TVJ
��+ .ranrr Care [�sslstant City Attorney
CONTRACT AUTHORIZATION:
M&C: la_ 310 j�Igrjq
Form 1295: o� q-5q g1o01
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Karen Wiley, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was the act of the
Arts Council of Fort Worth and Tarrant County, Inc. and that she executed the same as the
act of said Arts Council of Fort Worth and Tarrant County, Inc. for the purpose and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day
A.D. 2019.
SPaY Pie VAfmica M.tprrgOna Salinas
Notary Publio•Stete of Texas
* * Notary ID#440598-6
Comffdulon Exp.DEC.27,2022
Notary Public in and for the State of
Texas _
OFRUAL RECQW':
CITY 5FETW
F1'.W ORTHI T
d
STATE OF TEXAS §
COUNTY-OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,
on this day personally appeared Dana Burghdoff,known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that the same was the act of the
City of Fort Worth for the purpose and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
A.D. 2019.
iviy Notary!D#2256490
�'�,F••�; " Expires December 19,2021
Notary Public in and for the State of
Texas
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
EXHIBIT A
Fiscal Year 2020
COMPETITIVE GRANTS PROGRAM FOR THE ARTS SERVICE ACTIVITIES
Through Contractor's administration and monitorin14 of contracts
Funds shall be expended solely for and in support of arts programming (exhibitions,
installations, performances, concerts, etc.) within the City as detailed in this Agreement.
Manage and Coordinate the Grants Program for the Arts and contracts for cultural services,
including:
1. Provide for an open, unbiased, and competitive grants process.
2. Ensure proposed grant activities involve arts programming within the City.
3. Ensure diversity on grants panels.
4. Require from Recipients, and provide to the City, quarterly monitoring of
Recipients' grant goals.
5. Ensure use of sound fiscal practices and encourage best practices throughout
Recipient organizations.
6. Ensure that Recipients maintain their base of operations in the City in order to
promote a cultural economy.
Cost Allocation—$1 12,750.00 of the total funding identified in the Agreement as being for the
Grants Program for the Arts shall be retained by Contractor for its costs in administering the
program Funds for the Grants Program for the Arts, and the remaining Funds shall be granted
to recipients.
- All operating grants greater than $10,000.00 will be distributed in quarterly installments, while
operating grants of$10,000.00 or less will be payable in one lump sum upon execution of the
grant contract. Outreach Program Grants will be payable in two payments, regardless of the
amount of the grant,with the first payment equaling fifty percent(50%) of the grant award and
being payable on execution of the grant contract and the second payment equaling fifty percent
(50%) of the grant award and being payable following completion of the project and
submission of a final report. Smaller grants i.e. capacitive building,program grant, will be paid
in full upon execution the contract.
- All Operating and Outreach Grants awarded require a 1:1 cash match.
- Distribute Annual Grant Funding to Fort Worth Community Arts Center and Rose Marine
Theater.
Provide pass-through fiinding to Recipients as directed by the City of Fort
Worth pursuant to Section 2 of this Agreement.
- Any unused or returned grant fiends shall be used for future grant awards and be included in
the quarterly reports.
- Education workshops for Arts Organizations within the City; During the Tenn of the
Agreement, produce one or more workshops that support best practices in the industry. Topics
may include but not limited to governance, board development, finance and human resources,
grant application and compliance, ethics, marketing, and social media, inclusion and diversity.
Annual Audit— Annual audit performed by an independent Audit firm
Report submitted to City upon completion
Promote and credit the City of Fort Worth as a critical partner in funding for the arts.
• Ensure the City of Fort Worth is credited in printed materials
• Promote the City of Fort Worth as a cultural destination to visitors
GRANTS PROGRAM FOR THE ARTS DESCRIPTION
Nonprofit arts organizations that apply to the Arts Council of Fort Worth Grant Program must:
- Be a nonprofit arts orvanization whose primary mission is the presentation or production
of artistic programming. (No academic institutions or their affiliated arts groups will be
eligible for funds.)
- Such organizations must be recognized by the IRS as a 501(c)(3) nonprofit organization;
- Have a business office address and maintain a base of operations in the City of Fort Worth
accessible to the public; (PO Boxes are unacceptable);
- Demonstrate active operations and history of at least two years of consecutive related
programming within the City of Fort Worth:
- Have a salaried full or part-time administrator that is responsible for and authorized to
address the contractual obligations of the Arts Council Cultural Contract and the business
management of the organization.
- Be in good standing and compliant with the Arts Couricll Grant Program
Artists that apply to the Arts Council of Fort Worth Project Grant Program must:
Be 18 years or older. (No students recelving academic cr�dit or affiliated with arts groups
within an educational setting will be eligible for fluids),
Artist(s) must be a resident of the City of Fort Worth;
Be a practicing artist With a portfolio of recent artworks;
Demonstrate the ability to work on community-based projects that enrich and enhance Fort
Worth", diverse cultural communities.
I
QUARTERLY REPORT INFORMATION: Audiences Serv$d
Goal: Through contracts.for cultural services with area arts organizations, make available a
vai-iety of arts 1prograinininlg (el'ents, I)ertorniances, exhibits, and the like) to residents of
and visitors to the 00,of Fort Worth.-
General Operations:
Number served annually: 950,000
Youth served annually: 250,000
Admitted free of charge annually: 45%
Outreach Program(s):
Number served annually 90,000
Youth served annually: 75,000
Number of presentation days: 300
Number of council districts from which attendees are drawn: 8
Requirement: Collect attendance data from all Arts Council--funded organizations
- Documentation: quarterly summary attendance reports for both General
Operations and outreach - fiinded programs.
Exhibit A (cont.)
Goal.- Provide low-cost arts and education opportunities for•artists and arts administrators in
the City.
Educational workshops presented annually 20
Community Arts Center Gallery and Theater Rental annually 300 days
Community Arts Center attendance annually 70,000
Requirement: Collect usage data for all Arts Center-based events
- Documentation: Collect a minimum of two Visitor Surveys per year from
visitors attending events at the Community Arts Center
- Documentation: Quarterly Arts Center traffic statistics
- Maximum allowable awards for Operating Grant Support are based on a percentage of
the grant applicant's annual operating budget, as listed below. Due to funding limits and
the increasing number of eligible applicants, awards rarely approach maximum eligible
amounts.
Applicant's Annual Operating Budget Maximum Award - Operating
Support
$1 million or more 5% of Operating Budget
$450,000 -$999,999 10% of Operating Budget
$50,000 -$449,999 15% of Operating Budget
$49,999 or less 20% of Operating Budget
Exhibit B
FORT WORTH PUBLIC ART PROGRAM SERVICE AC' IVITIES
Administration and monitoring of contracts:
- Manage and Coordinate the selection process to contract] with artists for the purpose to
integrate their artworks into the development of City's capiit4l infrastructure for the purpose to
enrich the cultural and ethnic diversity of Fort Worth.
- Serve as liaison between City Council offices, City Departn ents, community leaders, project
team including contractors, citizens of Fort Worth and the a�ist(s).
- Ensure all legal agreements and contracts are followed.
- Monitor each contract's artist to ensure a favorable outcome,
- Provide staff support services to the Fort Worth Art Commission.
- NOTE: Below are the general items we listed in the FY 2019 Annual Work Plata:
- Staff the Fort Worth Art Commission;
- Plan, facilitate artist selection, and manage contract for Public Art Capital projects;
- Fiscal Management of Public Art Capital Budgets in coordination with City staff;
- Continue implementing Fort Worth Public Art[Master Plata Update recommendations;
- Implement the Pioneer Tower and Downtown Iconic Public Art projects;
- Provide community engagement programs related to the FW11PA Collection; and
- Oversee maintenance and conservation projects on artworks�in the FWPA Collection.
Cost Allocation - Contractor shall receive direct payment in one annual installment at the
beginning of the year the amount of ,542,328.00, for the public art program professional
management services.
- Specific public art projects that have finds budgeted for Project Management will be recorded
on an ongoing basis and reported to the City at the end of the fiscal year. This report will
consist of hours recorded for each project along with the project's account number for the City
to then reimbursement the general fund.
- Projected hours to be charged to specific public art project budgets during Fiscal Year 2019/20
are estimated to generate $150,000.00 that the City may be charged back to capital project
accounts.
- Note: As Projects that do not have Project Management dollars budgeted are completed, and
new projects that have Project Management funds budgeted are initiated, it is anticipated that
the total reimbursable hours to be charged back to capital project accounts will increase in
future Fiscal Years.
- Project management costs will also include hours dedicated to the process of securing
additional funding for two Iconic Artwork locations: the Pioneer Tower Iconic Public
Art Project and the Downtown Iconic Public Art Project,
QUARTERLY REPORT INFORMATION: Project Activity
Quarterly Report will be submitted to the City not later than the 151" day of the first month after
the end of each quarter.
Information included:
Public Art Project Management:
Total Projects Initiated
Total Project Artists Selected
Total Contracts Executed
Total Artworks Completed
Collection Management:
Total Artwork Treatments
Total Completed Special Projects
Community Engagement:
Total Project-specific Core Team/Community Meetings
Total Artwork Dedications
Total Artist Training Workshops
Total Community Engagement events
FY2020 Fort Worth Public Art Annual Work Plan attached here:
CITY OF FORT WORTH PUBLIC ART PROGRAM
FY 2020 PROGRAM SERVICES SUMMARY
On August 12, 2019, the Fort Worth Art Commission formally recommended the FY 2020 Fort
Worth Public Art Annual Work Plan to City Council for adoption, subject to City timeline changes
for capital project for which public art is a component. The detailed work plan is attached.
PROGRAM ADMINISTRATION
Under the proposed Fiscal Year 2020 Professional Services Agreement, the Arts Council of Fort
Worth and Tarrant County, Inc., will continue to administer the Fort Worth Public Art Program
(FWPA), including management of some 45 ongoing and new public art projects from various
funding sources, including the 2004 Bond Program, 2007 Critical Capital Needs Program, 2008
Bond Program, 2014 Bond Program, 2018 Bond Program, the Public Art Fund, and other funding
sources, with combined budgets totaling over $12.8 million in accordance with the Fiscal Year
2020 Fort H orth Public Art Annual Work Plan, as adopted by City Council.
In addition, the Arts Council will also:
• Staff the Fort Worth Art Commission;
• Plan, facilitate artist selection, and manage contract for Public Art Capital projects;
• Manage the Pioneer Tower and Downtown Iconic Public Art Projects projects;
• Fiscal Management of Public Art Capital Budgets in coordination with City staff;
• Continue implementing Fort Worth Public Art Master Plata Update recommendations;
• Provide community engagement programs related to th�FWPA Collection; and
• Oversee maintenance and conservation projects on artwprks in the FWPA Collection.
The Administrative Budget for Fiscal Year 2020 ($543,328.00) includes personnel and general
administrative costs, as well as funds to support artist selection processes for new projects, certain
collection management operating expenses, and community engagement programs.
4
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City of Fort Worth, Texas
Mayor and Council Communication
DATE: 11/19/19 M&C FILE NUMBER: M&C 19-0310
LOG NAME: 06ARTS COUNCIL 2020 FUNDING
SUBJECT
Authorize Execution of a Contract with the Arts Council of Fort Worth and Tarrant County, Inc.in the Amount of$1,920,828.00 for Renewal of the
Public Art Contract,to Support the Competitive Arts Grant Program,for Operation of the Community Arts Center and for Management Funding for
the Rose Marine Theater for Fiscal Year 2020(ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a contract with the Arts Council of Fort Worth and Tarrant County, Inc.in the
amount of$1,920,828.00 to support the Public Art Program Contract,Competitive Arts Grant program,operation of the Fort Worth Community
Arts Center,and management funding for the Rose Marine Theater for Fiscal Year 2020.
DISCUSSION:
During the Fiscal Year 2020 budget process,the City Council approved financial support for the Arts Council of Fort Worth and Tarrant County, Inc.
(Arts Council)in the amount of$1,920,828.00.The information below captures the allocation on how these funds are to be distributed for Fiscal
Year2020:
[Art Grants Program Funding AMOUNT
Administrative Costs $112,750.00
[Competitive Grants Program 1L$
1,014,750.00
[Total Funding Grants Program for the Arts $1,127,500.00
Art Facility Funding
Management of Community Arts Centers $200,000.00
Management of Rose Marine Theater(Arles de la Rosa) $50,000.00
Total Art Facility Funding $250,000.00
Funding for Public Art Program and Staffing $543,328.00
Total Funding in this Contract with the Arts Council $1,920,828.00
While considered to be a supporting organization to the Arts Council,the Fort Worth Community Arts Center is a separate Texas non-profit
corporation. In addition to absorbing utility costs for operation of the Fort Worth Community Arts Center,the City provides an annual subsidy of
$200,000.00 used wholly for the management of the facility.The Arts Council has managed this facility since 2002(M&C L-13424).
In order to streamline the allocation of funds to various organizations,the City partners with the Arts Council to distribute funds;thus,the City will
make a single payment in the amount of$1,920,828.00 to the Arts Council for all of the programming that the Arts Council undertakes on behalf of
the City.
This is the City's 11th year to partner with the Arts Council.The Arts Council will also use the funds in support of the Neighborhood Arts Program
and for grants that support general operating costs of art agencies.These funds allow the Arts Council to continue to provide funding and
leadership to stimulate and ensure the advancement of arts via assistance to non-profit organizations in the City.The contract includes a
requirement stating that these funds must be used for arts programming(exhibitions, installations,performances,concerts,etc.)within the City. In
turn,these projects enhance the cultural and artistic life of the community.The Arts Council will retain the amount shown above for its costs in
administering the competitive grants program and will disburse the rest to grantees and other entities as shown.
This Mayor and Council communication also authorizes the fourth renewal of a Professional Management Services Agreement with the Arts
Council of Fort Worth and Tarrant County, Inc.,in the amount of$543,328.00 for Fiscal Year 2020 management of the Public Art Program.
Under the proposed Fiscal Year 2020 renewal authorized in a Professional Services Agreement,City Secretary Contract No.47245,(M&C C-
27515)October 27,2015,the Arts Council of Fort Worth and Tarrant County, Inc.ill continue to administer the Fort Worth Public Art Program
(FWPA),including management of ongoing and new public art projects from various funding sources, including the 2004 Bond Program,2007
Critical Capital Needs Program,2008 Bond Program,2014 Bond Program,2018 Bond Program,the Public Art Fund,and other funds,with
combined budgets totaling over$10 million, in accordance with the Fiscal Year 2020 Fort Worth Public Art Annual Work Plan,as adopted by City
Council.This year the total cost of$543.328.00 is proposed to be offset by approximately$150,000.00 charged to appropriate capital
improvement accounts for allowable project management costs.The project management costs attributed to Public Art capital projects will be
reimbursed to the general fund from capital accounts allocated to the projects.
ADMINISTRATIVE SCOPE OF WORK for the Public Art Contract renewal:
1.Staff the Fort Worth Art Commission
2.Plan,facilitate artist selection,and manage contracts for Public Art Capital projects
3. Fiscal management of Public Art Capital Budgets in coordination with City staff
4.Continue implementing Fort Worth Public Art Master Plan Update recommendations
5.Continue implementing the Pioneer Tower project and planning other Iconic Artwork projects
6.Provide community engagement programs related to the FWPA Collection
7.Oversee maintenance and conservation projects on artworks in the FWPA Collection
FORT WORTH ART COMMISSION ACTION:
The Fort Worth Art Commission(FWAC)formally recommended the Fiscal Year 2020 Annual Work Plan on October 7,2019,after holding public
hearings in August and September.This action followed a public comment period,after the Art Commission endorsed the Draft Fiscal Year
2020 Annual Work Plan. Residents of Fort Worth were notified of the opportunity to comment via media releases,flyers,the City website,the Fort
Worth Public Art website(www.fwpublicart.org)and social media.The FWAC makes recommendations to the City Council for action on each
individual project in the work plan prior to commission of artwork and award of contract.
A Form 1295 has been completed for this contract.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating budget,as appropriated,of the General Fund.Prior to an
expenditure being incurred,the participating department has the responsibility to validate the availability of funds.
Submitted for City Manager's Office by. Dana Burghdoff 8018
Originating Business Unit Head: Randle Harwood 6101
Additional Information Contact: Randle Harwood 6101