HomeMy WebLinkAboutContract 53203 CITY SECREMRY
CONTRACT NO .
4
AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
DENNIS NANCE FOR CURATORIAL CONSULTING
FOR THE SUMMER CREEK AND ALTA MESA
PUBLIC ART PROJECTS
This Agreement is entered into this t ' day of , 2019, by and
between the City of Fort Worth, a home-rule municipal corporation of the State of Texas,
acting by and through Dana Burghdoff,its duly authorized Interim Assistant City Manager,
and Dennis Nance, an individual, located at 7614 Cayton Street Houston, TX 77061. City
has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this
Agreement on its behalf The Contract Manager shall act through its designated Public Art
Project Manager.
WHEREAS, the City is implementing the Fort Worth Public Art Program pursuant
to the Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances in order
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;
WHEREAS, City has designed and constructed a roundabout and other
improvements at the intersection of Summer Creek Boulevard and McPherson Boulevard
("Site");
WHEREAS, City has designed and constructed improvements to Alta Mesa
Boulevard at the intersection of Alta Mesa Boulevard, Summer Creek Boulevard and the
Chisholm Trail Parkway("Site");
WHEREAS, the City has set aside public art funds for the Sites from the 2008
Bond Program, the Public Art Plan for the 2004 Bond Program and the Critical Capital
Needs Program;
WHEREAS,the Summer Creek Roundabout and Alta Mesa Projects were included
in the Fort Worth Public Art Fiscal Year 2019 Annual Work Plan (adopted by City Council
on November 6, 2018 as M&C G-19412);
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Curatorial Consulting Agreement Between the City of Fort Worth and CITV SFCRETFAWa
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects Ft WORTH,TX
WHEREAS, while a Preliminary Design for an artwork was commissioned for the
Summer Creek roundabout,the City elected not to implement the Preliminary Design and;
WHEREAS, the City desires that one (1) artwork for Summer Creek Drive, and
one to two(I —2)artworks for Alta Mesa Boulevard,be selected from among a small group
of appropriate, available, large outdoor sculptures by Texas Artists to allow for the timely
and impactful completion of these two projects;
WHEREAS, the City desires that a Curatorial Consultant be retained to research
and make a recommendation of a selection of available, one-of a-kind or limited edition
sculptures of an appropriate style, scale and materials for the Sites by Texas Artists;
WHEREAS, the City and the Curatorial Consultant wish to set out the terms and
conditions for the Curatorial Consultant's work to assist the City with selection of
sculptures for the Summer Creek Drive and Alta Mesa Boulevard Public Art Projects;
NOW, THEREFORE, the City and Curatorial Consultant 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 and Curatorial
Consultant for the Summer Creek Drive and Alta Mesa Boulevard Public Art
Projects.
1.2. City—Means and includes the City of Fort Worth, Texas.
1.3. Contract Manager — Means and includes the Arts Council of Fort Worth and
Tarrant County, Inc., and/or its officers, directors, employees.
1.4. Curatorial Consultant - Means and includes Dennis Nance.
1.5. Curatorial Proposal - Means and includes the document that the Curatorial
Consultant will produce under this agreement for the Summer Creek Drive and Alta
Mesa Boulevard Public Art Projects, describing and depicting the recommended,
available sculptures by Texas Artists along with a budget for procuring and
delivering the sculptures to the Sites, along with an estimated timeframe for such.
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Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Surmner Creek and Alta Mesa Public Art Projects
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. Parties -Means and includes City and Curatorial Consultant.
1.9. Project Means and includes the Summer Creek Drive and Alta Mesa Boulevard
Public Art Projects.
1.10. Project Core Team — Means and includes those individuals representing
community at-large appointed by Council Member Jungus Jordan to participate in
the project from planning through completion.
1.12. Project Stakeholders - Means and includes the City Council Member and the
appointed Project Core Team, City staff and others, as appropriate.
1.13. Proposal Deliverables - Means and includes those items set forth in Article 2.2.
of this Agreement that are required for City's review and approval.
1.14. Sites - Means and includes the roundabout at the intersection of Summer Creek
Drive and McPherson Boulevard and the City Right-Of-Way adjacent to the
roundabout, as well as Summer Creek Drive northbound from McPherson
Boulevard;and Alta Mesa Boulevard at the intersections with Summer Creek Drive
and the Chisholm Trail Parkway, all depicted in the attached Exhibit`B"
1.15. Work - Means and includes Curatorial Proposal with recommended sculptures for
the project, and any PowerPoint presentations that are the subject of this
Agreement, or any intermediary stage of completion of such works.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES FOR
CURATORIAL RESEARCH AND ARTWORK SELECTION PROCESS
2.1. Scope of Services.
a. Under this agreement, Curatorial Consultant shall provide the following services:
i. Prior to beginning research, Curatorial Consultant shall travel to Fort Worth to
visit the Sites and meet with the Project Core Team, at a date, time and
location mutually agreed upon, to gather input about the Core Team's desired
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Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
approach for the Summer Creek Drive and Alta Mesa Boulevard public art
projects.
ii. Curatorial Consultant shall plan and conduct artwork research, including
travel across Texas to meet with Artists, galleries, art dealers, collectors and
consultants, as appropriate.
iii. Curatorial Consultant shall prepare a Curatorial Proposal that includes a
PowerPoint presentation with descriptions and images of 6-8 recommended,
available, appropriate outdoor sculptures that are within the available the
project budget(including purchase, transportation and contingency) of
approximately$26I,744.00 for Summer Creek Drive and approximately
$306,329.00 for Alta Mesa Boulevard.
iv. Curatorial Consultant shall submit Curatorial Proposal to the Contract Manager
two (2) weeks in advance of the FWAC meeting for review and comment so
that Curatorial Consultant may make any needed adjustments prior to the
presentation to the FWAC and Project Core Team.
V. Upon development of a Curatorial Proposal, Curatorial Consultant shall present
the Curatorial Proposal to the FWAC for discussion. The Project Core Team
shall be invited to this meeting.
vi. The day following the presentation to the FWAC, Curatorial Consultant shall
present the Curatorial Proposal to the Project Core Team., so they may select
specific sculptures to recommend to the FWAC for the two Sites.
vii. FWPA staff shall subsequently present the Project Core Team's
recommendations of sculptures to the FWAC for approval, at a regularly
scheduled meeting, to which the Project Core Team shall be invited.
2.2. Curatorial Proposal Deliverables.
a. In addition to completing the services outlined in Section 2.1 above,
Curatorial Consultant shall perform the services and furnish all supplies,
materials,and equipment necessary to complete the Curatorial Proposal and
provide certain deliverables as set forth in this Section 2.2.a. for City
acceptance within four(4) months of execution of this Agreement;
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Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
1. Curatorial Proposal, including the following for each
recommended sculpture:
i. Artists' qualifications, including resume, and images of
the proposed sculpture as well as 2-3 examples of other
artworks.
ii. Detailed budget, including purchase price of sculpture
and costs to transport the sculpture to the Site. [NOTE:
It is understood that preparation of a budget for
construction of footing and for installation, including
costs to prepare the Site to receive the Work, shall be the
responsibility of Contract Manager,and shall be based in
part on information supplied by Curator and/or Artist].
iii. PowerPoint presentation that includes items 2.2.a.Li. ii.
above, for presentation to the Project Core Team and
FWAC.
2.3. Additional Services.
a. City shall reimburse Curatorial Consultant for two (2) trips to Fort Worth and
for other appropriate travel within Texas necessary for fulfillment of this
agreement, with a maximum budget of$8,000.00 and provided that Curatorial
Consultant submits invoices in a timely manner with receipts attached for
airfare (main cabin only), or mileage, ground transportation, and reasonable
lodging (refer to GSA Standard Lodging Rates for each destination as a
guideline www.gsa.gov) and per diem rates for Fort Worth, Texas .
b. City may request that Curatorial Consultant provide services in addition to the
services set forth in Sections 2.1 and 2.2 above. City shall make such requests
in writing. Such additional services shall only be performed after execution of
a written amendment to this Agreement which includes, at a minimum, a
description of the additional services and scope of work, compensation and
payment schedule, and schedule for the delivery and completion of services.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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c. City and Curatorial Consultant will mutually agree to compensation, payment
schedule, schedule for the delivery and completion of any additional services.
d. Curatorial Consultant reserves the right to decline to provide the additional
services.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Fee.
The City shall pay the Curatorial Consultant a fee in the amount of up to TWENTY THREE
THOUSAND DOLLARS AND NO CENTS ($23,000.00), which shall constitute full
compensation for all services and materials to be performed and furnished by the Curatorial
Consultant under this Agreement, inclusive of a Curatorial Consultant Fee of $10,000.00,
with an additional contingency of$5,000.00, and inclusive of an allowance of up to EIGHT
THOUSAND DOLLARS AND NO CENTS ($8,000.00) for (1) Travel expenses for a
minimum of two trips to Fort Worth for Site Visits, Project Core Team Meetings and a
FWAC Meeting; Travel expenses for trips within Texas to research and identify available
outdoor sculptures by Texas Artists; and/or, (2) Changes in Curatorial Consultant's Scope
of Work. The fee shall be paid in the following installments, each installment to represent
full and final, non-refundable payment for all services and materials provided prior to the
due date thereof:
a. One Thousand Dollars and No Cents ($1,000.00) within thirty (30) days
after execution of this Agreement, recognizing that Curatorial Consultant
has already invested time and expense in preliminary research on the project
and in coordination with the City,
b. Two Thousand Dollars and No Cents ($2,000.00) within thirty (30) days
after Curatorial Consultant makes site visits and meets with the Project Core
Team to gather input.
c. Two Thousand Dollars and No Cents ($2,000.00) within thirty (30) days
after Curatorial Consultant submits an initial curatorial proposal with list of
recommended, available sculptures to the Contract Manager for internal
review.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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d. Three Thousand Dollars and No Cents ($3 000.00) within thirty (30) days
after Curatorial Consultant submits a final curatorial proposal and makes a
presentation to the FWAC and Project Core Team.
e. Two Thousand Dollars and No Cents ($2,000.00) within thirty (30) days
after the City's approval of Curatorial Consultant's recommendations of
available sculptures for the Summer Creek Drive and Alta Mesa Boulevard
Public Art Projects.
f. An allowance of up to EIGHT THOUSAND DOLLARS AND NO CENTS
( 000.00) is available for the following: (1) reimbursement for travel to
Fort Worth to meet with the Project Core Team, conduct site visits and
present to the FWAC; and, travel within Texas to research and identify
available outdoor sculptures by Texas Artists; and/or (2) costs that are
incurred by Curatorial Consultant due to changes in scope of work. Such
payments will be made upon(i)receipt of supporting documentation by the
Contract Manager from the Consultant(see Section 2.3.a.),and(ii)approval
by the Contract Manager of the additional costs.
g. The total compensation includes payment for Curatorial Consultant's
services at an estimated 100 hours per project site at $50.00 per hour for a
total of$10,000.00 and is understood to be incorporated into the payment
schedule. City shall pay to the Curatorial Consultant contingency funds in
an amount up to FIVE THOUSAND DOLLARS AND NO CENTS
($5,000.00) for costs associated with the Work that are incurred by the
Curatorial Consultant over and above the estimate of 100 hours per project
site at $50.00 per hour. Such payment will be made upon (i) receipt of
supporting documentation by the Contract Manager from. the Curatorial
Consultant and (ii) approval by the Contract Manager of the additional
costs. Any unused contingency funds shall remain with the City.
3.2. Sales Taxes.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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The City is a tax-exempt organization and no state or local sales taxes or federal excise
taxes shall be due upon the Project. The City shall supply the Consultants with the "Texas
Sales Tax and Local Sales Tax Exemption Certificate," attached hereto as Exhibit "D" for
use by Consultant in the fulfillment of this Agreement.
3.3. Curatorial Consultant's Expenses.
Curatorial Consultant 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 the City, cost of all travel, and
costs for Curatorial Consultant's agents, subconsultants, 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
Curatorial Consultant 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 Curatorial Consultant 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 of this Agreement. If the Parties cannot resolve the dispute(s), then the
disputing party shall thereupon have the right to terminate this Agreement upon the
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Curatorial Consulting Agreement Between the City of Fort Worth and
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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 Curatorial
Consultant for services actually rendered up to the effective date of termination,
and Curatorial Consultant 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 Curatorial Consultant's receipt of payment in full of all monies
due for services provided up to the effective date of termination, City shall have the
right at its discretion to possession and transfer of title to the sketches, designs, and
models already prepared and submitted or presented for submission to City by
Consultants under this Agreement prior 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 Curatorial Consultant, Curatorial
Consultant shall remit to City a sum equal to all payments (if any) made to the
Curatorial Consultant pursuant to this Agreement prior to termination.
4.5. Incapacity of Curatorial Consultant.
a. In the event that Curatorial Consultant becomes incapable, legally or otherwise, of
performing its duties and/or obligations under this Agreement, City shall have the
right to terminate this Agreement on payment to Curatorial Consultant or Curatorial
Consultant's successors for all work and services performed prior to incapacity. All
finished and unfinished deliverable (see Section 2.2.a.), and any other work shall
automatically become property of City.
ARTICLE 5
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Curatorial Consulting Agreement Between the City of Fort Worth and
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DISPUTE RESOLUTION
a. If either Curatorial Consultant 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 colincetion 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 may submit the matter to non-
binding mediation upon written consent of the authorized representatives of both
parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code
and Chapter 2009 of the Texas Government Code, then in effect. Request for
mediation shall be in writing, and shall request that the mediation cominence 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 Curatorial
Consultant 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)
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Curatorial Consulting Agreement Between the City of Fort Worth and
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ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. General.
a. Upon payment in full to Curatorial Consultant or pursuant to the applicable
termination provision of this Agreement, the Proposals, and all other work product
under this Agreement shall become the property of City, without restriction on
future use, except as provided below. Curatorial Consultant shall retain copyright
and other intellectual property rights in and to the Work. By execution of this
Agreement,Curatorial Consultant grants to the City an exclusive,perpetual,royalty
free, and irrevocable license to graphically depict and publicly display the Work
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 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.
b.
In view of the intention that the Work be unique, Curatorial Consultant shall not
make any additional exact duplicate reproductions of the Work,nor shall Curatorial
Consultant grant permission to others to do so except with the express written
permission of City.
C. Curatorial Consultant reserves every right available under the Federal Copyright
Act to control the making and dissemination of copies or reproductions of the
Work, except as those rights are limited by this Agreement. City may make and
disseminate photographs, drawings, and other two-dimensional reproductions of
the Work and accompanying materials for any municipal purpose. All
reproductions by the City shall contain a credit to the Curatorial Consultant and a
copyright notice substantially in the following form: V date, Curatorial
Consultant's name."
d. Nothing in this Agreement shall prevent the Curatorial Consultant from using
images of the Work for marketing and promotional purposes in connection with the
Curatorial Consultant's business.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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e. City is not responsible for any third-party infringement of Curatorial Consultant's
copyright and not responsible for protecting the intellectual property rights of
Curatorial Consultant.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
a. Consultant represents and warrants that:
i. Work shall be the original product of the Curatorial Consultant's sole
creative efforts.
ii. Work is and will be unique and original, and do not infringe upon any
copyright or the rights of any person;
iii. Curatorial Consultant has not sold, assigned, transferred, Iicensed, granted,
encumbered, or utilized the Work or any copyright related thereto that may
affect or impair the rights granted pursuant to this Agreement;
iv. Work (or duplicate thereof) have not been accepted for sale elsewhere;
V. Curatorial Consultant has the full power to enter into and perform this
Agreement and to snake the grant of rights contained in this Agreement; and
vi. AlI services performed hereunder shall be performed in accordance with all
applicable laws, regulations, ordinances, etc., and with all necessary care,
skill and diligence.
ARTICLE 8
CURATORIAL CONSULTANT AS INDEPENDENT CONTRACTOR
Curatorial Consultant shall perform all work and services hereunder as independent
contractor, and not as an officer, agent, servant or employee of City. Curatorial Consultant
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
Curatorial Consultant, their officers, agents, employees, subcontractors, and doctrine of
respondent superior has no application as between City and Curatorial Consultant.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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ARTICLE 9
INDEMNIFICATION AND INSURANCE
9.1. General Indemnity.
a. CURATORIAL CONSULTANT 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 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 CURATORIAL CONSULTANT AND/OR CURATORIAL
CONSULTANT'S SUBCONSULTANTS 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. Curatorial Consultant 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
Curatorial Consultant in connection with or incidental to performance under this
Agreement.
C. Curatorial Consultant 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.
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Curatorial Consulting Agreement Between the City of Fort Worth and
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9.2. Intellectual Property,
Curatorial Consultant agrees to assume fiill 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 Curatorial Consultant. 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 Curatorial Consultant without the
appropriate licenses or permission being secured by Curatorial Consultant in advance. IT
IS FURTHER AGREED THAT CURATORIAL CONSULTANT 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 Curatorial Consultant.
ARTICLE 10
EQUAL OPPORTUNITY
a. Curatorial Consultant 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 Curatorial Consultant
represents and warrants that to the extent required by applicable laws, it is an equal
opportunity employer and shall comply with all applicable laws and regulations in
any employment decisions.
b. In the event of Curatorial Consultant noncompliance with the nondiscrimination
clauses of this Agreement, this Agreement may be canceled, terminated, or
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Curatorial Consulting Agreement Between the City of Fort Worth and
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suspended in whole or in part, Curatorial Consultant may be debarred from further
agreements with City.
ARTICLE 11
MISCELLANEOUS
11.1. Compliance.
Curatorial Consultant shall comply with all Federal, state, and local statutes, ordinances,
and regulations applicable to the performance of Curatorial Consultant's services under
this Agreement.
11.2. 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.
11.3. 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.
11.4. 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.
11.5. 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.
11.6. Successors and Assigns.
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written
consent of the other party, and any attempted assignment, sublease,or transfer of all or any
part hereof without such prior written consent shall be void. This Agreement shall be
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Curatorial Consulting Agreement Between the City of Fort Worth and
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binding upon and shall inure to the benefit of City and Curatorial Consultant and their
respective successors and permitted assigns.
11.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and
Curatorial Consultant, and any lawful successor or assign, and are not intended to create
any rights, contractual, or otherwise, to any other person or entity.
11.8. 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.
11.9. 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 conunotion;
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.
11.10. 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.
11.11. 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 tenliinate this Agreement to be effective on the later of(i) thirty
Page 116 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
(30) days following delivery by City to Curatorial Consultant 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.
11.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
11.13. Right to Audit.
Curatorial Consultant agree that City will have the right to audit the financial and business
records of Curatorial Consultant 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 Term of this Agreement and
for three (3) years thereafter, the Curatorial Consultant 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 patties following reasonable advance notice by the City and shall otherwise
cooperate fully with the City during any audit. Curatorial Consultant 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 11.13.
11.14. Certified MBE/WBE.
If applicable, Curatorial Consultant 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.
11.15. Survival Provision.
The provisions contained in Articles 4.5 (Incapacity of Curatorial Consultant), 6
(Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), S
(Curatorial Consultant as an Independent Contractor), 9 (Indemnification), and 11.13
(Right to Audit) shall survive the termination or expiration of this Agreement.
11.16. 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
Page 117 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creels and Alta Mesa Public Art Projects
received via facsimile or electronically via email shall be as legally binding for all purposes
as an original signature.
11.17. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth
in this Agreement.
11.18. Israel.
If Curatorial Consultant is a company with ten(10) or more full-time employees and if
this Agreement is for$100,000 or more, Curatorial Consultant acknowledges that in
accordance with Chapter 2270 of the Texas Government Code, the City is prohibited
from entering into a contract with a company for goods or services unless the contract
contains a written verification from the company that it: (1) does not boycott Israel; and
(2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and
"company" shall have the meanings ascribed to those terms in Section 808.001 of the
Texas Government Code. If applicable under this Agreement and Curatorial Consultant
is considered a "company,"by signing this Agreement, Curatorial Consultant certifies
that Curatorial Consultant's signature provides written verification to the City that
Curatorial Consultant. (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:
Page 118 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
1. CITY OF FORT WORTH: Dana Burghdoff, Interim Assistant City Manager
City Manager's Office
City of Fort Worth
200 Texas Street
Fort Worth, TX 76102
Copies to: Sarah Fullenwider, City Attorney
City Attorney's Office
200 Texas Street
Fort Worth, TX 76102
Martha Peters, Director of Public Art
Arts Council of Fort Worth
1300 Gendy Street
Fort Worth, TX 76107
2. CONSULTANT Dennis Nance
7614 Cayton Street
Houston, TX 77061
IN WITNESS HEREOF, the parties hereto have executed this Agreement on this day and
year first written above.
[Signature page follows]
Page119 of28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
CITY OF FORT WORTH CURATORIAL CONSULTANT
Dana Burghdoff Dennis Nance
Interim Assistant dty.Manager
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
r'
Name: Anne Allen
Title: Public Art Project Manager
APPROVED AS TO FORM AND LEGALITY:
Matthew Murray
Assistant City Attorney `,a. ` ,
ATTESTED BY:
aryJ. Ka sex
City Secreta
Fonn 1295: Not Applicable
Contract Authorization:
M&C: Not Applicable
Page 120 of 28 OFFICIAL RECORD
Curatorial Consulting Agreement Between the City of Fort Worth and CITY SECRETARY
Dennis Nance for the Summer Creep and Alta Mesa Public Art Projects FT WORTH,TX
Exhibit A: Curatorial Consultant's Qualifications
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Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
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Page 24 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
FORT WORTH PUBLIC ART
EXHIBIT "C": Approved Project Outline Sculpture Selection Process
Summer Creek Drive and Alta Mesa Boulevard Public Art Projects
Sculpture Selection Process
for Sites in Council District 6
PROJECT APPROACH
In an effort to expedite projects in the Fiscal Year 2019 Annual Work Plan with public art funds
from the 2004 Bond, 2007 Critical Capital Needs and the 2008 Bond Programs, a two-part
process is being recommended:
1. A Curator Selection Process will select a Texas-based Curator who will research and
identify appropriate and available large-scale sculptures by Texas artists for potential
acquisition[See "Curator Selection Process"for details and timeline.]
2. A Sculpture Selection Process will allow a Project Core Team to review and select
individual sculpture(s)from those presented by the Curator,for eligible sites for Summer
Creek and Alta Mesa in Council District 6.
SCULPTURE SELECTION PROCESS FOR PROJECTS IN COUNCIL DISTRICT 6:
Once under contract, the Curator will visit the project sites and meet with the Project Core Team
to discuss specific locations and approaches for the artworks for Summer Creek and Alta Mesa
prior to beginning research.
The Curator will then research and assemble a selection of 6-8 appropriate sculptures and share
them with the FWPA Staff for input. Then the Project Core Team will convene and staff will
present the selection of sculptures to the Project Core Team, who will select from it for the two
projects. Two-three artworks will be selected: one for Summer Creek and one-two for Alta Mesa.
Staff will then report on the selected artworks at a regularly scheduled FWAC meeting.
PROJECT CORE TEAM
1. Council Member Jungus Jordan, Council District 6
2. Art Teacher, North Crowley High School
3. Neighborhood Association (Alta Mesa and/or Summer Creek)
4. Neighborhood Association (Alta Mesa and/or Summer Creek)
5. Neighborhood Association (Alta Mesa and/or Summer Creek)
ADVISORS
1. FWPA Staff
2. PARD Staff
3. T/PW Staff
ARTWORK IMPLEMENTATION
FWPA Staff will prepare a Purchase Agreement for each artwork and an M&C for each project.
Upon City Council approval, Staff will facilitate engineering of footings, site work and installation,
working with appropriate contractors and in coordination with appropriate City Departments.
TIMELINE (SUbiect to change)
a After FWAC Approves Curator Selection Process, Staff Briefs Council
Member Jordan; Discusses Potential Project Core Team Members April 2019
Page 25 of28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
• Curator meets with Project Core Team July/August,
2019
• Curator Presents Potential Sculptures to FWAC for ReviewlComment November 11,
2019
• Project Core Team Meets to Select Sculptures November 2019
• FWAC Considers Approval of Selected Sculptures Dec. 9, 2019
• M&C to City Council for Authorization of Purchase Agreements;
Purchase Agreements for Sculptures Executed February 2020
• Sites Prepared for Sculptures Spring 2020
• Sculptures Installed Summer 2020
POTENTIAL SCULPTURE SITES AND BUDGETS: SUMMER CREEK AND ALTAMESA
[See Appendix A for a map of the project locations]
1)The Summer Creek project is included in the Fort Worth Public Art Fiscal Year 2019 Annual
Work Plan. Public art funds for one artwork are available from two sources that are associated
with specific streets that intersect the roundabout at McPherson and Summer Creek Boulevards.
Due to vehicular traffic's tendency to drive onto the roundabout, it is recommended that the
artwork be located in a qualifying median or City Right Of Way near the roundabout.(Note: The
budget of$299,244.00 shown is inclusive of project management costs and contingencies.]
$152,902.00 Funds from 2008 BOND
$ 91,003.00 Funds from 2004 BOND (P-1, CD 6)
$ 103,582.00 REALLOCATED FUNDS FROM 2008 BOND
$(48,243,00) LESS EXPENDED ON FIRST ARTIST
$299,244.00 BALANCE AVAILABLE Summer Creek
2)The Alta Mesa project is included in the Fort Worth Public Art Fiscal Year 2019 Annual Work
Plan. Public art funds are available from the 2007 CCN for one or two artworks. Alta Mesa
passes under the Chisholm Trail Parkway(Alta Mesa west of the Parkway was formerly named
Dirks Road).Artworks could be sited on Alta Mesa on either side of the Parkway. In addition,
Summer Creek Boulevard intersects Alta Mesa from the south, and artworks could be sited at
along Alta Mesa and Summer Creek, visually and conceptually linking these two projects.(Note:
The budget of$359,830.00 is inclusive of project management costs and contingencies.]
$359,830.00 AVAILABLE Alta Mesa Funds from 2007 Critical Capital Needs (CCN)
Page 126 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
APPENDIX A: MAP OF PROJECT LOCATIONS
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Page 127 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects
DIRKS AND ALTA MESA(DETAIL)
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Page 28 of 28
Curatorial Consulting Agreement Between the City of Fort Worth and
Dennis Nance for the Summer Creek and Alta Mesa Public Art Projects