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Home My WebLink AboutContract 54747 CITY SECRETARY_ C0I'jTRACT NO. -� LICENSE AND INSTALLATION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE NATIONAL CUTTING HORSE ASSOCIATION CHARITIES FOUNDATION This License and Installation Agreement ("Agreement") is entered into t "ay of �= October, 2020 ("Effective Date") by and between the City of Fort Worth, Texas, a home-rule municipal corporation of the State of Texas ("City"), acting by and through Fernando Costa, its duly authorized Assistant City Manager, and the National Cutting Horse Association Charities Foundation,a 501(c)(3)non-profit organization located at 260 Bailey Ave. Fort Worth,TX 76107 ("Donor"), acting by and through Joey Milner, its duly authorized Chairman, each individually referred to as a"party"and collectively referred to as the"parties." City has designated the Arts Council ofFort Worth and Tarrant County,Inc.to manage this Agreement on its behalf("Contract Manager"). The Contract Manager shall act through its designated Public Art Collection Manager. WHEREAS,Donor generously offered to donate a bronze sculpture titled.Little Peppy& Buster Welch by Kelly Graham("Artwork")as depicted in Exhibit"A"for inclusion in the Fort Worth Public Art Community Legacy Collection and City Council accepted the donation on December 17, 2019(M&C 19-0396); WHEREAS,as part of the artwork donation,Donor has agreed to install the Artwork and make certain Site Enhancements as depicted in Exhibit"B"("Statue Base and Site Improvements") at Gate 42 at the Will Rogers Memorial Complex located at the corner of the intersection of Trail Drive and Rip Johnson Road,Fort Worth,Texas 76107("Site"); WHEREAS, the Donor has agreed to particular site work during the installation as required by the City's arborist and detailed in Exhibit"B"; WHEREAS, in order for the Donor to install the Artwork,the City has agreed to provide the Donor with a temporary license to enter the Site and,through Donor's contractor,conduct site enhancements and install the Artwork on the Site("Work");and WHEREAS, both parties agree to enter into this Agreement to grant the temporary license and to define and set forth each parties' respective duties and obligations with respect to the installation of the Artwork by this Agreement. NOW THEREFORE, in consideration of the mutual promises and performance set forth below, the Parties agree as follows: ,"i�C��El) OFFICIAL RECORD OCT 2 8 2020 CITY SECRETARY GvoproRrwORN ET. WORTH,TX GIiYSE'CRET�RY ,.-- - ARTICLE 1 TEMPORARY LICENSE TO CONDUCT WORK ON CITY PROPERTY 1.1 License Granted. In accordance with the terms and conditions of this Agreement, City hereby grants to the Donor a non-exclusive license to enter on to the Site to conduct the Site Enhancements and install the Artwork as more accurately depicted in in Exhibit B, which is attached hereto and incorporated herein for all purposes. This temporary license is granted for Donor to access the area specifically identified in Exhibit C to this Agreement ("Licensed Premises'). 1.2 The License granted herein shall be for the Term set forth in Article 4 of this Agreement. 1.3 Use of the Licensed Premises. Donor may use the Licensed Premises to conduct the Site Enhancements and install the Artwork as shown on the attached Exhibit A, which is attached hereto and incorporated herein for all purposes. The Licensed Premises shall be used for no other purposes. The Donor shall not washout equipment and or concrete, fill up equipment with gas or other oils and hydraulics as to createpotential spill hazards on the Licensed Premises orthe surrounding City property.A violation ofthis provision will allow the City to immediately terminate the Agreement. 1.4. Acceptance of Licensed Premises. Donor takes all portions of the Licensed Premises and all appurtenances in "'AS 18" condition without any express or implied warranty on the part of the City. Donor accepts the Licensed Premises in their present condition,finds them suitable for the purposes intended, and further acknowledges that Donor is thoroughly familiar with such condition by reason of personal inspection and does not rely on any representations by the City as to the cond ition of the Licensed Premises or their suitability for the purposes intended. Donor accepts the Licensed Premises subject to any and all previously recorded easements that may have been granted on,along,over,under,or across said property, and releases the City from any and all damages, claims for damages, loss, or liabilities that may be caused to invitees, licensees, contractors,or trespassers by reason of the exercise of such rights or privileges granted in said easements. Donor's taking possession of the Licensed Premises shall be conclusive evidence that:(a)the Licensed Premises are suitable for the purposes and uses for which same are licensed;and (b)the Donor waives any and all defects in and to the Licensed Premises and all the appurtenances thereto. 1.5. Use not Exclusive. This Agreement and all rights granted to Donor herein are strictly non-exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Licensed Premises to other persons and entities as the City deems appropriate in accordance with applicable law; provided, however, that in granting subsequent authorization for use,the City will not allow a use that will unreasonably interfere with the Donor's use of the Licensed Premises as provided herein. This Agreement does not establish any priority for the use of the Licensed Premises by Donor or by any present or future licensees or License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 2 of 21 other permit holders. In the event of any dispute as to the priority of use of the Licensed Premises, the first priority shall be to the public generally,the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers. 1.6. Public Safetv. a. Donor shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with Donor's use of the Licensed Premises. b. At the request of City, Donor shall: (i) install and maintain construction orange mesh fencing around the entire border of the Licensed Premises;and(ii) erect a controlled- access entry in the perimeter construction fencing in the form of chain link, as approved by the Contract Manager to ensure that'unauthorized personnel cannot enter the Licensed Premises.Following installation of the fencing and controlled-access entrance,Donor shall contact the Contract Manager to inspect for proper installation. The controlled-access entry fencing shall be kept secure when not in use. At no time shall any fenced area be left open unless staffed by security personnel. C. In addition,Donor shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Donor shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. Donor shall also take all necessary precautions and shall provide all necessary protection to prevent damage, injury, or loss to (a) all persons accessing portions of the Licensed Premises on which any construction is being performed by or on behalf of the Donor; (b)all work performed on or from the Licensed Premises and all materials and equipment to be incorporated therein that are under the care, custody, or control of the Donor, or the Donor's employees, agents, contractors, or subcontractors,regardless of whether such material and equipment is stored on or off the Licensed Premises;and (c)other property on or adjacent to the Licensed Premises. 1.7. Restoration of the Licensed Premises. Donor agrees that Donor will shall repair and restore:(1)the Licensed Premises;and(2)any City property Donor damages,to the same condition or better condition than the Licensed Premises or City property was in immediately prior to the execution of this Agreement as determined by the Director. If Donor fails to complete all repairs and restoration to the Licensed Premises and any other City property prior to the expiration of the Agreement, City may, in its discretion, perform all such repairs and restoration on behalf of the Donor. In this event,Donor will reimburse the City for the costs of such repairs and restoration, and such reimbursement will be due immediately upon written request of the City. 1.8. Minimizing Impact to Vegetation. a. Donor shall not cut or remove any trees on the Licensed Premises unless otherwise specifically permitted by the City. To minimize damage during construction, Donor shall install License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities foundation Page 3 of 21 chain link fencing on the outside drip line of trees and other vegetation specifically identified in Exhibit B. Donor shall notify the Contract Manager once the tree and vegetation protection measures have been installed and allow the Director an opportunity to inspect the work before construction begins.The City shall have at least two(2)business days following the date on which notice is received to conduct its inspection. The Donor may begin construction after the second (2nd) business day following the date on which it provided notice to the City unless the City contacts the Donor and identifies specific issues that render the tree and vegetation protection measures unacceptable. b. Donor shall ensure that tree protection fencing remains in place throughout the License Period or any extended License Period. If any tree within the Licensed Premises is damaged in connection with Doi-or's operations, Donor agrees to undertake remediation efforts, including paying of remediation costs. Any fencing shall remain in place until such time as the Licensed Premises are restored pursuant to the terms of this Agreement. 1.9 Minimizing Impact to Utilities. a. Prior to conducting any work on the Licensed Premise, Donor and its Contractors shall use their best efforts to locate and physically mark all utilities(including, but not limited to, electric lines, waterlines, sewer lines, storm drains and lanes, and gas lines) within the Licensed Premises,which best efforts shall include,but not be limited to, conducting a dig test. b. If Donor encounters any utility infrastructure(including, but not limited to,electric lines,waterlines, sewer lines,storm drains and lines,or gas lines) in the course of or in connection with Donor's use of the Licensed Premises,the Donor covenants and agrees to cease construction operations and install protective measures over or around such utilities in compliance with specifications approved by the City's Water Department or by the Director. Following installation of the protective measures,Donor shall contact the Director to arrange for inspection and approval by appropriate City personnel. 1.10. Protection of the Environment. a. Donor hereby represents and warrants that it shall not knowingly,nor permit any third party to, use, handle, or store any Hazardous Materials on, under, over, or about the Licensed Premises in violation of any applicable laws. Donor shall not handle or store any Hazardous Materials on the Licensed Premises, except that the Donor may, in compliance with applicable environmental laws and the terms of this paragraph, use and store Hazardous Materials in such amounts and types that are commonly used in connection with the uses permitted herein,provided, however, that Donor specifically agrees to remove any and all such Hazardous Materials on or before the final day of the License Period. Donor shall not introduce, use,generate, store,accept, or dispose of on,under,or about,transport across,or permit to exist on the Licensed Premises any "treatment, storage or disposal facility"or"underground storage tank,"as those terms are defined under applicable environmental laws. For purposes of this Permit, "Hazardous Materials" shall mean potentially dangerous hazardous wastes, toxic substances, or related materials, including, License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 4 of 21 but not limited to, pollutants;asbestos; polychlorinated biphenyl(PCB);petroleum or other fuels (including crude oil or any fraction or derivative thereof); underground storage tanks, and substances considered hazardous, toxic, or the equivalent pursuant to applicable laws. Any Hazardous Materials used by the Donor on the Licensed Premises shall be posted on site and a list shall be given to City. b. Donor shall take commercially reasonable steps to avoid creating or aggravating any condition on the Licensed Premises that could present a threat to human health or to the environment. ARTICLE 2 SCOPE OF SERVICES FOR SITE ENHANCEMENTS AND INSTALLATION 2.1 Donor, through its Contractor, shall perform all services and furnish all supplies, materials, and equipment as necessary to prepare the site and provide site enhancements as depicted in Exhibit `B"("Statue Base and Site Improvements") and install the sculpture. Donor has particularly agreed to provide hand excavation work at the site specified by the City's arborist to protect the tree located at the site. 2.2 Donor shall be responsible for all costs associated with the site improvements and the sculpture installation,including,but not limited to,equipment rentals,transportation,and labor. 2.3 All services at the site, including, but not limited to, the site improvements, sculpture installation, engineering, and labor associated with preparing the site for improvements shall be done in accordance with the specifications as identified in Exhibit B. All services at the site shall be performed in a professional manner and in strict compliance with all terms and conditions in the Agreement. 2.4 Donor, through its Contractor, is responsible for obtaining and paying for all necessary permits required for installation of the Artwork and Site Enhancements and for submitting a traffic control plan if required to the City for approval and paying for any traffic control methods. The Donor shall provide copies the permits and approved traffic control plan to Contract Manager prior to any installation activity at the Site. 2.5 Donor, and/or its Contractor, shall commence site improvements and install the sculpture on dates and time mutually agreed upon by Donor and the City. 2.6 Upon completion of the installation of the Artwork, Donor shall meet with the Contract Manager and City to review the installation at a date and time mutually agreed upon. License and Artwork installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 5 of 21 2.7 A final inspection shall be conducted by the City and any outstanding items requiring the Donor's attention shall be noted in a written punch list. The Donor shall have ten (10)calendar days to correct deficient or missing installation elements. 2.8 City shall notify Donor, in writing,of its Final Acceptance of the installation. 2.9 Risk of Loss. The risk of loss or damage to the Artwork shall be borne by Donor prior to Final Acceptance, and Donor shall take such measures as are necessary to protect the Artwork from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work. ARTICLE 3 CONSIDERATION Consideration. City and Donor expressly agree and stipulate that this Agreement is based on valuable consideration and an exchange of promises that will be independently beneficial to both parties. Both parties agree as a condition precedent to executing this Agreement that the consideration is valuable and sufficient and that neither party shall be able to assert otherwise in the event of litigation.Nothing herein shall constitute an obligation of City hinds. City shall not owe any amount of money for any reason whatsoever to the Donor for services rendered in connection with this Agreement. City shall not be liable nor owe any payment,fee,cost,penalty, or money for any other reason whatsoever to Donor. ARTICLE 4 TERM AND TIME OF PERFORMANCE 4.1. Term. The Term of this Agreement, shall be for a term of thirty (30) days commencing on the Effective Date (Term). This License may be renewed for an additional 30 days upon written request of the Licensee within ten (10) days of the expiration of the original Term(Renewal Term). 4.2. Duration. The services to be required of Donor set forth in Article 3 shall be completed in accordance with the Schedule;provided,however,such time limits may be extended or otherwise modified by written agreement between Donor and City. License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities foundation Page 6 of 21 4.3. Eorly Completion of Donor Services. Donor shall bear any transportation and storage charges incurred fiom the completion services in Section 2 of this Agreement prior to the time provided in the schedule for delivery. 4.4. Time Extensions; Force Majeure. City or Donor, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties'control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall no be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions. ARTICLE 5 INSURANCE AND INDEMNITY 5.1. General. Donor shall carry insurance as set out in Exhibit "D"which is attached hereto and incorporated herein for all purposds.Evidence of required insurance shall be submitted to the Contract Manager prior to installation of the Work on City property. However, if any part of the fabrication process will be conducted on City property, then Donor shall submit evidence of required insurance to the Contract Manager prior to performance of that Work. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Artwork. Except as provided in Section 2.8 hereof,the risk of damage to or loss ofthe Artwork shall,during fabrication and installation but prior to Final Acceptance, shall be solely that of Donor. This risk shall transfer to City and shall no longer be the responsibility of Donor upon Final Acceptance. 5.2. Performance Bonds. Donor shall not be required by City to post any performance bonds or similar undertakings. 5.3. General Indemnity. a. DONOR 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 License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 7 of 21 (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 ANY ACTS, ERRORS, OR OMISSIONS OF DONOR AND/OR DONOR'S SUBCONTRACTORS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT OR FROM THE USE AND OCCUPANCY OF THE LICENSED PREMISES. b. Donor 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 Donor in connection with or incidental to performance under this Agreement or from the use and occupancy of the Licensed Premises. C. Donor shall require all of its contractors and subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. ARTICLE 6 DONOR AS AN INDEPENDENT CONTRACTOR Donor shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Donor 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 Donor, his/her officers, agents, employees and subcontractors, and doctrine of respondeat superior has no application as between City and Donor. ARTICLE 7 SUBCONTRACTING Donor may subcontract portions of the services to be provided hereunder at Donor's expense, provided that said subcontracting shall not adversely affect the design, appearance, or visual quality of the Work and shall be carried out under the personal supervision of Donor. Any subcontract entered into under this Agreement shall be expressly subject to the applicable terms of this Agreement, including, but not limited to, all indemnification and release provisions. Donor License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 8 of 21 shall provide information regarding all subcontractors, including its fabricator,along with a copy of the subcontract between Donor and each subcontractor to the Contract Manager. ARTICLE 8 TERMINATION Termination for Convenience. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted five(5)calendar days before termination. ARTICLE 9 MISCELLANEOUS 9.1. Compliance. Donor shall comply with all Federal, State and City statutes, ordinances and regulations applicable to the performance of Donor services under this Agreement. 9.2. 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. 9.3. Amendments. No alteration, change, modification or amendment of the terms o this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 9.4. 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. 9.5. 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. 9.6. 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 binding upon and shall inure to the benefit of City and Donor and its respective successors and permitted assigns. License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 9 of 21 9.7. No Thud-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Donor, and any lawfiil successor or assign, and are not intended to create any rights,contractual or otherwise,to any other person or entity. 9.8. 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. 9.9. 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 role 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 liereto. 9.10. Fiscal Funding, Out. If, for any reason, at any time during any term of this Agreement,the Fort Worth City Council fails to appropriate fiends sufficient for City to fiilfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of(i)thirty(30) days following delivery by City to Donor 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. 9.11. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.12. Donor's Address. Donor shall notify the Contract Manager of changes in address. 9.13. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Donor. 9.14. Right to Audit. Donor agrees that City will have the right to audit the financial and business records of Donor that relate to the Conceptual Design (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,Donor shall make all Records available to City on 200 Texas Street,Fort Worth,Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate filly with City during any audit, Donor shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as above. License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 10 of 21 9.15. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as Iegally binding for all purposes as an original signature. ARTICLE 10 NOTICES All notices, requests, demands, and other communications which-are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested,postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa,Assistant City Manager City Manager's Office City of Fort Worth 200 Texas Street,Thud Floor Fort Worth,Texas 76102 Copies to: Sara 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 2. DONOR Joey Milner, Chairman National Cutting Horse Association Charities Foundation 260 Bailey Avenue Fort Worth,TX 76107 License and Art%vork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 11 of 21 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH DONOR dO Fernando Costa Joey M' r,7:5�— Chairman Assistant City Manager Nati nal Cutting Horse Association Charities Foundation Date:- 1(2/23/2020 Date' /n .1:Z 2D 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. Jennifer Conn,Public Art Collection Manager Arts Council of Fort Worth APPROVED AS TO FORM AND LEGALITY: Thomas R.Hansen Assistant City Attorney pRT ATTE ED BY: A� o; :y v a J.Kayser *'•. ' Ci Secretary Contract Authorization: Form 1295: N/A(501(3)(c) M&C# 19-0396 DATE: 12/17/2019 License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 12 of 21 EXHIBIT A ARTWORK y �j4.. r� h 1.. • Yap i t �, r ! yea "`h.r f„ 7 �{ �� 1 _. .:rx •: Little Peppy&Buster Welch(2019) Kelly Graham License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 13 of 21 EXHIBFr B STATUE BASE AND SITE IMPROVEMENTS SVXU'RIVO)A 1VGJ at#live mumu IVIVOWIN SIROON 11UA filljai 'OOSSV 3SUOH 01111103 IVNOILVN illi I I i I SINMAGMAY11 3113 QVV MID MVIS 1!5 i j; .......... ........... .......•........ --------------- .......................... 'A If fig It i,,� lop, 10? ................... .. ....... 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Ll ..........................-.�..•w�"V ii License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation i Page 18 of 21 I t i I EXHIBIT C LICENSES PREMISES '' ;''[':' `! -%� ,i•1 uantiehemkesoepluedM� '�� - ., ,.....•........ GATE 42 DUNAWAY u'I.�ITI♦MtM•/+nw.ral(.Y IMI�!r1�1��Mla w:i"�x tF4!K W![wn[r Licenses Premises to complete Work includes the general area at Rip Johnson Road at Trail Drive, Fort Worth,Texas 76107 (32.7423385,-97.3644036) License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 19 of 21 EXHIBIT D INSURANCE INSURANCE REQUIRE\TENTS PUBLIC ART PROJECTS-INSURANCE REQUIREMENTS Contractor shall meet all the following insurance requirements for this Project. If Contractor subcontracts fabrication, transportation, and/or installation of the Work, then Contractor shall also require his/her subcontraclor(s)to abide by all of the following insurance requirements. Commercial General Liability(CGL) S1,000,000 Each occurrence S2,000,000 Aggregate lint Coverage shall include,but not be limited to,the following:premises,operations,independent contractors, products/completed operations,personal injury,and contractual liability. Insurance shall be provided on an occurrence basis,and be as comprehensive as the current Insurance Services Office(ISO)policy.The policy shall name City as an additional insured. Bailee's/Property(if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork,which is entrusted to the Contractor and is considered to be in the Contractor's care,custody,and control and shall include properly"in transit" Automobile Liability $1,000,000 Each accident or $250,000 Bodily injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on"Any Auto,"defined as autos owned,hired and non-owned. For Contractor and/or Contractor's Subcontractors who have employees:Workers'Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease-policy limit Workers'Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers'Compensation Act(Art.8309-1.01 et seq. Tex.Rev.Civ.Slat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an"Additional Insured'on all liability policies. Exception:the additional insured requirement does not apply to Workers'Compensation or Automobile politics. Page I of 2 License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 20 of 21 EXHIBIT E VERIFICATION OF SIGNATURE AUTHORITY DONOR hereby agrees to provide City with independent audit basic financial statements, but also the fair presentation of the financial statements of individual finds. Execution of this Signature Verification Form ("Form")hereby certifies that the following individuals and/or positions have the authority to legally bind DONOR and to execute any agreement,amendment or change order on behalf of DONOR. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of DONOR.City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with DONOR.DONOR will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. City is entitled to rely on any current executed Form until it receives a revised Form that has been properly execute by DONOR. 1. Joey Milner �} nan, ation ulting HorsgAsso ' io Charities Foundation Signatur 2. Name: Position: Signature 3. Name: Position: Signature Name: Signature of President/CEO Other Title: Date: License and Artwork Installation Agreement EXECUTION COPY 10/23/2020 National Cutting Horse Association Charities Foundation Page 21 of 21 City of Fort Worth,Texas Mayor and Council Communication DATE: 12/17/19 M&C FILE NUMBER: M&C 19-0396 LOG NAME: 25ARTWORK DONATION NCHA SCULPTURE SUBJECT Authorize Acceptance of an Artwork Donation from the National Cutting Horse Association Foundation of a Bronze Sculpture by Artist Kelly Graham Depicting Cutting Icon Buster Welch on King Ranch's"Little Peppy"Cutting a Santa Gertrudis Cow and Site Enhancements,Collectively Valued at$250,000.00,through a Deed of Gift for Accession into the Fort Worth Public Art Community Legacy Collection and Placement at Gate 42 at the Will Rogers Memorial Center,3401 West Lancaster Avenue,76107(Council District 7) RECOMMENDATION: It is recommended the City Council authorize the acceptance of an artwork donation from the National Cutting Horse Association Foundation of a bronze sculpture by artist Kelly Graham depicting cutting icon Buster Welch on King Ranch's"Little Peppy"cutting a Santa Gertrudis cow and site enhancements,collectively valued at$250,000.00,through a deed of gift for accession into the Fort Worth Public Art Community Legacy Collection and placement at Gate 42 at the Will Rogers Memorial Center,3401 West Lancaster Avenue,76107. The NCHA Foundation will retain ownership of the bronze statute until final installation is complete. Installation schedule will be based on date availability and will be contingent on receiving all the City of Fort Worth required documents and permits. DISCUSSION: Approval of this Mayor and Council Communication will accept the donation of an artwork and site enhancements and accession of the bronze sculpture depicting cutting icon Buster Welch and King Ranch's"Little Peppy"into the Fort Worth Public Art Community Legacy Collection. A Deed of Gift transferring ownership from the donors to the City will be executed specifying that title to the artwork will convey to the City after the sculpture is installed and all site enhancements are completed in accordance with City requirements. The means by which the donor intends to cover the cost for annual maintenance and periodic conservation of the sculpture will be detailed in the Deed of Gift. Cutting icon Buster Welch(May 23, 1928)is a cutting horse trainer and inductee into the NCHA Members Hall of Fame,American Quarter Horse Hall of Fame, National Cutting Horse Association Riders Hall of Fame,and Texas Cowboy Hall of Fame. Buster was chosen as the recipient of the 2012 National Golden Spur Award for his"outstanding contributions to the ranching and livestock industry." Buster won the NCHA World Championship four times,and the NCHA World Championship Futurity five times. He trained Mr.San Peppy and won the NCHA World Championship in 1974 and 1976. Premier sire, Peppy San Badger("Little Peppy")is the son of World Champion Mr.San Peppy of the King Ranch and winner of the 1977 NCHA Futurity, 1978 NCHA Derby,the 1980 NCHA Reserve World Champion,and the 1981 NCHA Open Finals. The sculpture is an appropriate addition to the historic Will Rogers Memorial Center as it embodies the historic themes found throughout the complex and compliments existing artworks on the grounds. This sculpture will serve not only as a fitting tribute to Mr.Welch and King Ranch's "Little Peppy"but also as a reminder of the century-old relationship between the sport of cutting and the City of Fort Worth. The NCHA Foundation will retain ownership of the bronze statute until final installation is complete. Installation schedule will be based on date availability and will be contingent on receiving all the City of Fort Worth required documents and permits. ART COMMISSION ACTION: On December 9,2019,the Art Commission approved a recommendation of the Fort Worth Public Art Gifts and Loans Review Panel to accept the sculpture for the Fort Worth Public Art Community Legacy Collection,to be sited at the Will Rogers Memorial Center. This is a Citywide donation located in COUNCIL DISTRICT 7. A Form 1295 is not required because:This M&C does not request approval of a contract with a business entity. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that approval of this recommendation will have no material effect on City funds. Submitted for City Manager's Office by; Jesus Chapa 5804 Originating Business Unit Head: Richard Zavala 2501 Additional Information Contact: Kevin Kemp 5982