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HomeMy WebLinkAboutContract 54418 CSC No. 54418 LICENSE FOR PUBLIC ART LOCATION SITE This LICENSE FOR PUBLIC ART LOCATION SITE (the "Agreement") is made and entered into to be effective the 3rd day of September, 2020 (the "Effective Date"), by and between TARRANT REGIONAL WATER DISTRICT, a Water Control and Improvement District (the "District"), acting by and through its Real Property Director, R. Steve Christian, and the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas ("City"), acting by and through Fernando Costa, its duly authorized Assistant City Manager (the District and City are hereinafter collectively referred to as the "Parties" or individually as a "Party"). WHEREAS, District owns a tract of real property located along the banks of West Fork, Trinity River near the intersection of Franklin Street and N. Taylor Street, Fort Worth, TX 76102 (the "District Property") WHEREAS, City has identified an approximately 300 square feet portion of the District Property as being suitable for the re-installation and completion of a public art display, such portion of the District Property being more specifically depicted on Exhibit "A" attached hereto and incorporated herein by reference (the "Site"); WHEREAS, City desires continued use of the Site for the public exhibition of a sculpture created by Chris Powell titled along the river which includes a vertical stone element and seven carved granite block elements, such sculpture and elements being more particularly depicted on Exhibit "B" attached hereto and incorporated by reference herein (collectively, the "Artwork"); WHEREAS, District agrees to permit City to use the Site for long-term placement and exhibition of the Artwork upon the terms and conditions set forth herein; WHEREAS, City acknowledges that a roadway may be constructed near the Site and that District may wish to terminate this Agreement to accommodate the construction and use of such future roadway or for other uses necessary or convenient to the District; WHEREAS, the Parties desire to define and set forth their respective duties and obligations with respect to the Artwork by this Agreement. NOW THEREFORE, in consideration of the mutual promises and performances set forth below,the Parties agree as follows: I. .Grant of License. In consideration of certain conditions as provided herein, the District grants to City a non-exclusive license to use the Site for the installation, maintenance, inspection, alteration, replacement, repair, removal, relocation within the Site, and public exhibition of the Artwork. In addition to the use of the Site set forth above, the District hereby grants City a non- exclusive license in and along the District property as is reasonably necessary to provide ingress and egress from the public right-of-way to the Site. Notwithstanding the foregoing, the license to use the District Property for access is subject and subordinate to the District's use of such property for the District's public purposes. OFFICIAL RECORD LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE CITY SECRETARY PAGE FT.WORTH, TX 2. District's Use of the Site. All rights granted to City hereunder are subject and subordinate to the prior and continuing right and obligation of the District to operate and maintain the Fort Worth Floodway in which all or part of the Site and District Property are located. The District may maintain and operate the Fort Worth Floodway without any liability whatsoever to City or artist or to any other party for compensation or damage. City specifically understands and agrees that it could be necessary, in the future, to alter the Site or the access thereto in connection with the operation and maintenance of the Fort Worth Floodway or in connection with the District's public purposes. In the event that the United States Army Corps of Engineers,which has jurisdiction over the Fort Worth Floodway, or the District, deems it necessary that the Artwork should be removed or relocated in connection with any such alteration of the Site or District Property, City agrees to perform such removal or relocation promptly and agrees to be solely responsible for all costs and expenses associated therewith. City expressly agrees that all risk of loss caused by any such alteration of the Site or the District Property and/or required removal or relocation is assumed by City. In addition to the foregoing, the District, as owner of the Site and District Property, shall retain the right to use and enjoy same for any and all other purposes, so long as its use does not materially and adversely interfere with the City's use of the Site. The District, and the District's agents, servants, employees and representatives shall have the right to enter the Site and District Property at all times for the purpose of inspection or any other purpose deemed necessary or advisable to protect the District's interest in the Site or District Property or to ensure City's compliance with the covenants and provisions of this Agreement. 3. Environmental Matters. A. For purposes of this Agreement, "Hazardous Materials" means and includes those substances deemed hazardous, toxic or dangerous under any Hazardous Material Law (defined below), including, without limitation, asbestos or any substance containing asbestos, the group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive materials,chemicals known to cause cancer or reproductive toxicity,pollutants,effluents,petroleum and fuels derived therefrom, contaminants, emissions or related materials, and any items included in the definition of hazardous or toxic waste, materials, chemical compounds or substances under any Hazardous Material Law. "Hazardous Material Laws" collectively means and includes any present or future local, state or federal law or treaty, and any amendments thereto, including any common law doctrine of liability, relating to the environment, environmental protection or environmental conditions,including,without limitation,(i)the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. ("ESA"), as amended from time to time; (ii) the Solid Waste Disposal Act, 42 U.S.C. §§ 6901 et seq., as amended from time to time,including,without limitation,as amended by the Resource Conservation and Recovery Act of 1976 ("RCRA") and the Hazardous and Solid Waste Amendment of 1984; (iii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq., as amended from time to time, including, without limitation, as amended by the Superfund Amendments and Reauthorization Act of 1986("SARA"); (iv)the Federal Water Pollution Prevention and Control Act,33 U.S.C. §§ 1251 et seq., as amended from time to time; (v) the Air Pollution Prevention and Control Act, 42 U.S.C. §§ 7401 et seq., as amended from time to time; (vi) the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., as amended from time to time; (vii) the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j, as amended from time to time; (viii)the Texas Hazard Communication Act,Tex.Health & Safety Code §§ 502.001 et seq., as amended from time to time; (ix) the Texas Solid Waste LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 2 Disposal Act, Tex. Health & Safety Code §§ 361.001, et seq., as amended from time to time; (x) Chapter 26 of the Texas Water Code, as amended from time to time; (xi) the Texas Clean Air Act, Tex. Health & Safety Code §§ 382.001, et seq., as amended from time to time; and (xii) all rules, regulations, orders and decrees now or hereafter promulgated under any Hazardous Material Law. B. City shall not allow or permit the Site to be used for the handling, transportation, storage, treatment or other use of any Hazardous Material, except those de minimus amounts customarily found in equipment and materials used for City Wide Mowing and Park Maintenance operations or used in the operation, maintenance or repair of equipment, and improvements on the Property and for cleaning. Specifically, the materials and substances disclosed in Exhibit "C" may be used and transported on the Site by City or City's agents, employees, invitees, or contractors in reasonable quantities and in conformance with all applicable laws,provided that all required permits and authorizations have been obtained from the state, federal, and local government authorities. C. City shall comply with all Hazardous Material Laws throughout the term of this Agreement. In the event City should fail to perform such responsibility,the District may do so and all costs and expenses incurred by the District shall be reimbursed to the District by City. D. District believes the Site is devoid of Hazardous Materials, however, the City may, at its sole expense, conduct an Environmental Assessment of the Site prior to occupancy. Upon conducting an Environmental Assessment, the City may choose to not use the Site and this Agreement shall be null and void and of no further effect. If the City chooses to accept the Site, any Hazardous Materials created or introduced on the surface of the Leased Premises by the City or a third-party acting on the City's behalf during City's occupancy of the Site will be the responsibility of City for clean-up. The Site meets residential standards as currently defined by the Texas Commission on Environmental Quality (TCEQ). Upon termination of this Lease, including any periods of hold-over, the Site must meet the TCEQ residential use standards in effect on the commencement date of this Agreement. The District hereby releases City from any liability for any subsurface Hazardous Materials or contaminates originating from off site of the Site. 4. Ownership. District and its successors acknowledge that the copyright and title to the Artwork, and any trademarks relating thereto, remain with the City and/or the artist of the Artwork. Neither District nor its successors shall have right, title, or interest in the Artwork except as expressly set forth in this Agreement. The District's license of the Site does not place the Artwork in the care, custody, or control of District. 5. Copyright. The copyright of the Artwork belongs to the artist under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Artwork for the duration of the copyright. 6. Term. The Agreement shall have an initial term of fifteen (15) years, beginning upon the Effective Date of this Agreement. Upon the expiration of the initial term, the Agreement shall automatically renew for another fifteen (15)years, until terminated as provided herein. 7. Maintenance of the District Property. The District shall continue to maintain the District Property, excluding the Site, to the standard and degree determined by the District in its sole and absolute discretion. LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 3 8. Maintenance of the Site and Artwork . a) Any damage caused to the Site in connection with the use by City or the public of the Site shall be repaired by City within a reasonable time after City has received written notice from District describing the damage and such repair shall be at City's sole cost and expense. b) City shall keep and maintain the Site and the Artwork in a safe, neat, and clean condition and in good order, condition and repair, and shall maintain and operate the Site in full compliance with applicable laws, rules, regulations, ordinances, and codes, including, but not limited to, applicable building codes, fire codes, and handicap accessibility requirements. c) City shall be responsible for all costs associated with installation, maintenance, repair, removal and/or relocation of the Artwork for the term of this Agreement, including any renewal period. d) City shall be responsible for mowing,trimming and other maintenance of the vegetation within the Site in accordance with City standards. 9. Termination. Either Party may terminate this Agreement at any time at its sole discretion upon thirty (30) days written notice to other Party. This Agreement, and all rights and privileges granted herein,will automatically terminate if and when City no longer uses the Site for the purposes set out herein. 10. Removal of the Artwork. Upon the termination of this Agreement for any reason, City agrees to remove,at its sole cost and expense,the Artwork. Upon such removal, City, at its sole cost and expense, shall restore the surface of the Site and any improvements thereon to substantially their original condition as existed on the date prior to the installation of the Artwork to the reasonable satisfaction of the District. If such Artwork, or any portion thereof, has not been removed by City within ninety (90) days following the termination of this Agreement, then the District may remove such Artwork, restore the surface of the Site and any improvements located thereon, to substantially their original condition, and City shall reimburse the District for all expenses of removal and restoration. 11. Release. City hereby releases, relinquishes, and discharges, to the fullest extent permitted by law, the District, and the District's officers, directors, agents, servants, employees, representatives, attorneys, successors and assigns, from and against any and all claims, demands, liabilities, suits, causes of action, obligations, damages, injuries, losses, penalties, costs, charges, and expenses (including, without limitation, attorneys' fees, court costs, consultant fees, expert fees, and other litigation related expenses)of whatsoever kind or character,directly or indirectly resulting from,arising out of or in connection with,or relating to(i)any use or occupation of the District Property or the Site by City or any of its officers, directors, agents, servants, employees, contractors or subcontractors; (ii) any condition of the District Property or Site or any condition of the structures, equipment,facilities,or other improvements situated thereon;(iii)the design,construction,installation, reconstruction, reinstallation, operation, maintenance, inspection, alteration, repair, replacement, relocation within the District Property or Site, removal or ownership of the Artwork; (iv) any damage LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 4 to the Artwork; (v) any alteration of the District Property or Site in connection with the operation and maintenance of the Fort Worth Floodway or the District's exercise of its public functions as a water control and improvement district, including any damage, cost, or expense occasioned by any required removal or relocation of the Artwork;and(vi)any breach or default in the performance of any covenant or agreement contained herein(beyond the expiration of all applicable notice and cure periods)on the part of City, or any of its officers, directors, agents, servants, employees, contractors, subcontractors, or any other person acting on behalf of City. This release extends to and includes any and all claims for bodily injury, death, sickness, disease,property damage or destruction, consequential damage, or economic loss caused to or suffered by any person or property, including City, and City's agents, servants, employees, contractors, and subcontractors. This release is not limited to damages, compensation, or benefits payable under insurance policies,workers' compensation, disability benefit acts,or other employee benefit acts.THE PROVISIONS OF THIS RELEASE SHALL REMAIN AND BE IN FULL FORCE AND EFFECT EVEN IF ANY CLAIM, DEMAND, LOSS, LIABILITY, DAMAGE, OR EXPENSE, OR CLAIM THEREFOR, BY ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY RESULTS FROM,ARISES OUT OF,OR RELATES TO,OR IS ASSERTED TO HAVE RESULTED FROM,ARISEN OUT OF,OR BE RELATED TO, IN WHOLE OR IN PART, STRICT LIABILITY OR ONE OR MORE NEGLIGENT ACTS OR OMISSIONS OF THE DISTRICT, OR ANY OF THE DISTRICT'S OFFICERS, DIRECTORS, AGENTS, SERVANTS, EMPLOYEES, OR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF THE DISTRICT, THE PARTIES INTENDING HEREBY TO SATISFY THE EXPRESS NEGLIGENCE DOCTRINE. This release shall survive termination or expiration of this License Agreement. 12. Miscellaneous. a) No Conveyance. This Agreement is for the sole purpose of granting to City a personal license for the installation and exhibition of the Artwork and is not a conveyance of any right,title,or interest in the subject property. b) Assiggment. This Agreement does not constitute either party as the agent or legal representative of the other for any purpose whatsoever. The Parties are not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of the other or to bind the other in any manner whatsoever. The Parties shall not assign this Agreement without the prior written consent of the other. The City has designated the Arts Council of Fort Worth & Tarrant County, Inc., (the "Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art collection manager. c) Authority. Each party covenants with the other that it has full power and authority to enter into and perform its obligations under this Agreement and the persons executing this Agreement on their behalf are duly authorized to do so by all requisite action. d) Binding. This Agreement shall be binding upon the Parties hereto, their respective successors, and assigns. LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 5 e) Amendments. The Parties expressly reserve the right to modify this Agreement, from time-to-time, by mutual agreement. No modification or amendment of the provisions of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties. f) Invalidity of Particular Provisions. Should any term,provision,condition,or other portion of this Agreement or the application thereof be held to be inoperative, invalid, or unenforceable, the remainder of this Agreement or the application of the term or provision to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect. g) No Waiver. No waiver of full performance by any party shall be construed, or operate, as a waiver of any subsequent default or breach of any of the terms, covenants, or conditions of this Agreement. h) Entire Agreement. This written instrument constitutes the entire agreement by the Parties hereto concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement, which purports to vary from the terms hereof shall be void. i) Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution,performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. j) Acceptance of License Agreement. By signing this Agreement,City expressly agrees to and accepts the terms,conditions,benefits,and obligations contained herein. City expressly understands and agrees that the District has agreed to grant the license as described herein in reliance upon City's representation that City agrees to and accepts the terms, conditions, benefits, and obligations contained herein. k) 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. 13. Notices. All notices,requests,demands,and other communications that 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: CITY OF FORT WORTH: Fernando Costa,Assistant City Manager City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 6 (817) 392-8518 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney City of Fort Worth 200 Texas Street, Third Floor Fort Worth, Texas 76102 Martha Peters,Director of Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 (817)298-3025 DISTRICT: Tarrant Regional Water District Attn: Real Property Director 800 E. Northside Drive Fort Worth, TX 76102 With a copy to: Jeremy L. Harmon Pope,Hardwicke, Christie, Schell, Kelly&Taplett, L.L.P. 500 W. 7 h Street, Suite 600 Fort Worth, Texas 76102 [SIGNATURES ON FOLLOWING PAGE] LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 7 IN WITNESS HEREOF, the Parties have executed the Agreement on the Effective Date TARRANT REGIONAL WATER DISTRICT CITY OF FORT WORTH By: / Bypernando Costa(Sep 3,202015:49CDT) R. Ste a Christian i7 Fernando Costa Real Property Director Assistant City Manager Date: V 2 Date: Sep 3,2020 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. Tehhifer Cony Jennifer Conn(Sep 3,2020 08:12 CDT) Jennifer Conn Public Art Collection Manager APPROVED AS TO FORM AND LEGALITY: Malt Murry Matt Murray(Sep 3,202015:42 CDT) Matthew A. Murray Assistant City Attorney a FOR), Coo F T LOTad ti 7�Y a o'p d ATTESTED BY: o o=c r�C�-i� 0 °°°>L dEXASoAo Mary J.Kayser City Secretary Form 1295: N/A No M&C required. Ordinance No. 24161-04-2020 P:ITRWDICITYFW\Public Art\License for Public Art -Final.DOCX OFFICIAL RECORD LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE CITY SECRETARY PAGE 8 FT.WORTH, TX Exhibit "A" SITE j? f .s � - 1• ti l t, Tarrant Regional g nal r Water District k A. D21623O162 � rI r s �Wy.US ly Copyright 2020. City of Fort Worth. Unauthorized reproduction is a violation of applicable laws. This product is for informational purposes and may not have been W E prepared for or be suitable for legal, engineering,or surveying purposes. It does not Site / represent an on-the-ground survey and represents only the approbmate relative location o1 property boundaries.The City of Fort Worth assumes no responsibility for the Property c LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 9 EXHIBIT B ARTWORK r� along the river, E s' Y •, fs ,�'fit.-j• Se ^ itl�� � �r- G .�E�x •fig i 4�� a` � � ly i wi� � `� \ - 7 f1. �.f`7i�'I�' �{fEVty,: •f 4, 7}• ,����- _`-may. � , � .... 1 ` k�, r=1`�" ���,i�.'ti$Ft by Powell installationan • • • of standinga single • granite • six granite block elements LICENSE AGREEMENT FOR PUBLIC ART LOCATION10 block M a sliown ;�. Sculpture here x.r... Reinstallation Plan for Block Elements LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 11 Exhibit "C" Authorized Chemicals List Type of Product: Gas Propane Fertilizers Salt Chlorine tablets Chlorine shock Calcium Hardness Cyanuric Acid Ice Melt Pesticides For the road base: Crushed limestone or crushed concrete LICENSE AGREEMENT FOR PUBLIC ART LOCATION SITE PAGE 12