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HomeMy WebLinkAboutContract 44956 (2)CffYSECRETARYJLJgg cornw►cr No..Le ARTWORK ACQUISITION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CHRIS POWELL This Agreement is entered into this t day of (Vith r , 2013, byand between the City of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Chris Powell, an individual, residing at 3338 W 5th Street, Fort Worth, Texas 76107. The 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, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City desires to acquire an artwork titled here she stood from artist Chris Powell, which is an artwork comprised of three limestone elements, created and sited in 2000 at Capps Park as part of a long-term loan to City; WHEREAS, public art funds for the project have been allocated from the Specially Funded Capital Projects Fund, and the project was included in the Fiscal Year 2013 Annual Work Plan and Budget approved by the Fort Worth City Council on October 14, 2012 (M&C C-25920); and WHEREAS, City and Artist wish to set out the terms and conditions under which said acquisition shall be completed. NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1. Agreement — Means and includes this Agreement between the City of Fort Worth and Chris Powell for Acquisition of public art. 1.2. Artist — Means and includes Chris Powell. 1.3. Artwork — Means the artwork titled here she stood (formerly titled to be with me), which is comprised of three limestone elements more particularly described and depicted in Exhibit "A," attached hereto and incorporated herein by reference for all purposes. Artwork Acquisition Agreement with Chris Powell idECORr CTYflWORTh,dk OCT egg72013 1 of 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc , and/or its officers, directors, employees, agents, subsidiary organizations, parent organization, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. City — Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants, and employees. 1 6 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. 1.7. Parties — Means and includes City and Artist. 1.8. Site — Means and includes Capps Park located at 907 West Berry Street, Fort Worth, Texas 76110, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. ARTICLE 2 ACOUISITION OF THE ARTWORK 2.1. Acquisition of the Artwork City shall pay Artist FORTY THOUSAND DOLLARS AND NO CENTS ($40.000.001 as full consideration for all rights, title, and interest to the Artwork, except as those rights are limited by this Agreement. City shall pay this amount to Artist within thirty days (30) after the Effective Date. The sales price is based upon an appraisal of the Artwork dated January 30, 2010, a copy of which is attached hereto as Exhibit "C ' and incorporated herein for all purposes, which the Parties agree constitutes fair market value for the Artwork. Terms and conditions pertaining to warranties, indemnity, ownership and intellectual property rights, and Artist's rights are contained in Articles 3, 4, 5, and 6, respectively. ARTICLE 3 WARRANTIES 3.1. Warranties of Title and Copyright. a. Artist represents and warrants that: (1) the Artwork is the original product of Artist's sole creative efforts; (2) the Artwork is unique and original and does not infringe upon any copyright or the rights of any person; (3) Artist has not sold, assigned, transferred licensed granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; (4) the Artwork is free and clear of any claims, judgments, and/or liens from any source whatsoever; (5) the Artwork (or duplicate thereof) has not been accepted for sale elsewhere, Artwork Acquisition Agreement with Chris Powell 2 of 14 (6) Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. b. If Artist violates any of the warranties set forth in Article 3.1, then the Artist shall, upon written demand by the City, reimburse the City for all payments made to the Artist under this Agreement and remove the Artwork from the Site, at his sole cost and expense, within sixty (60) days after receiving written notice from the City. (1) If the Artist fails to remove the Artwork within the time prescribed, then* (i) Artist automatically sells, assigns, and transfers to the City all right, title, and interest in and to the copyright for the Artwork; (ii) Artist hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act " and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act hereby waives such rights with respect to any and all uses of the Artwork under this Agreement. (iii) City shall have the right to remove and dispose of the Artwork by any means including, but not limited to its destruction, and the Artist shall reimburse the City for all reasonable expenses associated therewith. (iv) Nothing in this Article 3.1(b) shall affect the survival of Article 4 (Indemnity). 3.2 Warranties of Quality and Condition a. Artist represents and warrants the condition of the Artwork as set forth in the initial condition report, which is attached hereto as Exhibit C. b. Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. c. Acceptable Standard of Display. Artist represents and warrants that: (1) General routine cleaning and repair of the Artwork and any associated working parts and/or equipment will maintain the Artwork within an acceptable standard of public display. (2) Foreseeable exposure to the elements and general wear and tear will cause the Artwork to experience only minor repairable damages and will not cause the Artwork to fall below an acceptable standard of public display. (3) With general routine cleaning and repair, and within the context of foreseeable exposure to the elements and general wear and tear, the Artwork will not experience irreparable Artwork Acquisition Agreement with Chris Powell 3 of 14 conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. d. The foregoing warranties in Article 3 2 are conditional and shall be voided by the failure of City to maintain the Artwork in accordance with Artist's specifications and the applicable conservation standards If City fails to maintain the Artwork in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Artwork as Artist's creation and request that all credits be removed from the Artwork and reproductions thereof until the Artwork's condition is satisfactorily repaired. 3.3 Survival of Representations and Warranties The representations and warranties in this Article 3 shall survive the termination or other extinction of this Agreement. ARTICLE 4 INDEMNITY Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third -party copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Artist without the appropnate licenses or permission being secured by Artist in advance. IT IS FURTHER AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE ARTWORK BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. This indemnification provision shall survive this Agreement. ARTICLE 5 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS. 5.1. Title to the Artwork All rights, title, and interest to the Artwork, except for any rights of copyright, shall immediately transfer to City upon payment to Artist for purchase of the Artwork, as set forth in Article 2, and shall be free and clear of any claims, judgments, and/or liens of whatsoever nature. The Artwork shall become property of City, without restriction on future use, except as provided for in this Agreement. Artwork Acquisition Agreement with Chris Powell 4 of 14 5.2 Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 5.3 Reproduction Rights. a. In view of the intention that the Artwork be unique, Artist shall not make any further additional exact duplicate reproductions of the Artwork, nor shall Artist grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of artistic expression. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, irrevocable, and royalty free license to graphically depict and publicly display the Artwork for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork 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. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Artwork to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer in whole or in part, the Artwork when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form. "O date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense cause to be registered with the United States Register of Copyrights, a copyright of the Artwork in Artist's name. f. City is not responsible for any third -party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist. ARTICLE 6 ARTIST'S RIGHTS 6.1. Identification. The Contract Manager may include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and a permanent plaque at the site. Artwork Acquisition Agreement with Chris Powell 5 of 14 6.2. Maintenance. City recognizes that maintenance of the Artwork on a regular basis is essential to the integrity of the Artwork. City shall reasonably assure that the Artwork is properly maintained and protected through its Public Art program. 6.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Artwork will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Artwork Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, the standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations d. When emergency repairs are necessary to prevent the loss of or further damage to the Artwork or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. 6.4. Alteration of the Artwork or of the Site. a. In the event that the Artwork is incorporated into a building, structure or realty, the installation of the Artwork may subject it to destruction, distortion, mutilation or other modification by reason of its removal If removal of the Artwork would damage either the Artwork or the Site, City shall have the right to remove the Artwork by any means including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. City may give Artist written notice of its intent to take such action under this paragraph Artwork Acquisition Agreement with Chris Powell 6 of 14 b. In the event that the Artwork is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Artwork or the building or structure, Artist may be given written notice and ninety (90) days to remove the Artwork at his or her sole expense. Upon Artist's failure to remove the Artwork, City shall have the right to remove and dispose of the Artwork by any means, including its destruction c. City agrees that it will not willfully destroy, damage, or modify the Artwork, except as provided in this Agreement. d. In the event the Artwork is substantially damaged or altered, City shall no longer represent the Artwork as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. e. City shall, at all times, have the right to move the Artwork, or remove it from public display. City shall also have the right to sell or trade the Artwork. 6.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. 6.6. Artist's Address. Artist shall notify City of changes in the address set forth in Article 8. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions of Article 6 that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. 6.7. Additional Rights and Remedies. Nothing contained in this Article 6 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. ARTICLE 7 MISCELLANEOUS 7.1. 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. 7.2. 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. 7.3. Waiver. Artwork Acquisition Agreement with Chris Powell 7 of 14 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. 7.4. 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 m 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. 7.5. Successors and Assigns. Neither party hereto shall assign or transfer its interest herein without prior written consent of the other party, and any attempted assignment 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 Artist and its respective successors and permitted assigns. 7.6. No Third -Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity 7.7. 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. 7.8. 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. 7.9. 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 City to fulfill 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 Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 7.10. Captions. Artwork Acquisition Agreement with Chris Powell 8 of 14 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 7.11. Surviving Covenants. The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity of Artist. 7.12. Survival Provision The provisions contained in Articles 3 (Warranties) and 4 (Indemnity provision) shall survive this Agreement. 7.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Conceptual Design (collectively "Records") at any time during 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, Artist shall make all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties following reasonable advance notice by City and shall otherwise cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this Article shall survive expiration or earlier termination of this Agreement. 7.14. Counterparts and Electronic Signatures This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. ARTICLE 8 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor Artwork Acquisition Agreement with Chris Powell 9 of 14 2. ARTIST Date. Fort Worth, Texas 76102 Martha Peters, Vice President, Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Chris Powell 3338 W 5th Street Fort Worth, Texas 76107-2117 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective CITY OF FORT WORTH By: &770*Iemft•La... Fernando Costa Assistant City Manager Date: /il•SAJ APPROVED AS TO FORM AND LEGALITY: Tyler . allach Assistant City Attorney ATTESTED BY: Mary J. Kayek City Secretary Contract Authorization: M&C C-26402 Date: August 20, 2013 ARTIST • C is Powell Date: sill 7/LUf� ©FFICIj4L rECOHdD CITY SLCREYA Filo ecTN, Artwork Acquisition Agreement with Chris Powell 10 of 14 Exhibit A: The Artwork Description: Three smooth limestone abstract elements comprise the Artwork, which consist of the following dimensions: (1) 93" x 45" x 27", (2) 59" x 33" x 33", and (3) 36" x 47" x 34". Two vertical elements are placed beside one another, one being taller than the other while the third element is placed at a distance from the other two; the tallest elements suggests a figure within the larger landscape, while the second is a tall dome -like shape; the third element is placed upon its side and suggests and egg form. Artwork Acquisition Agreement with Chris Powell 11 of 14 UV antey S1 .vden St omm a Bowie St R;1lr ■ Fl.ea It SI • s o 1^1 Bow± St wick St Woodland Ave ^: Cantey St 0 c 0 0 Exhibit B: The Site W Carney St 'A1 Cantey St to L._ to s 0 td 7 sin er 3 L \ T 9 -o :n R S tel 1.1 U1 = Y `v 6 W Lowden SI W Bovric SI (fJ r J O l3 6t n B r = N m 92 W Berry St W Berry St ttlgtt SI W Devitt SI Lowe St W Shaw St Orange Ave ie UcsJapuaH S Capps Park vi W Bewick St 0 m (o W Lowden St W Bowie St 'P1 Bowi to 3 T3 3 W Devitt St vl I a ='lav, tit. Yn of VI C at11 F,ee,ta vi W SIMI/ It 1 r W Berry St .spninits Ave it N d�} Avalon :i'tt?tle ■ Pr;�r;,�rts F WSthaw oa r 0 c W Bewick Artwork Acquisition Agreement with Chris Powell 12 of 14 #4 Location: Artist: Title: Date: Medium: Dimensions: Signature: Condition: Description: Retail Replacement Value: Exhibit C: The Appraisal Capps Park, 907 W. Berry Chris Powell American; b. 1957 Untitled 1999 Limestone on concrete plinths Three elements: 93" x 45" x 27" 59" x 33" x 33" 36"x47"x34" None found; understood to be unsigned Minor soiling and surface accretions; several chips and scratches on the egg shaped element; darkening of surface at top portion of tallest element due to acceptable weathering; evidence of previous `tagging' spray paint which was incorrectly cleaned, according to the artist, causing more damage. Three smooth limestone abstract elements comprise the complete work; two vertical elements are placed beside one another, one being taller than the other, while the third element is placed at a distance from the other two; the tallest element suggests a figure within the larger landscape, while the second is a tall dome -like shape; the third element is placed upon its side and suggests an egg form. $40,000.00 Fort Worth Public Art; Retail Replacement Value for insurance coverage; Effective date of appraisal 1/30/10; Date of Report 1/30/I ll Appraiser: Pam Campbell; ASA-ASA; ISA-CAPP; 4935 Byers Ave.; Fort Worth, TX 76107; 817/737-9566; wcca@flash.net 17of28 Artwork Acquisition Agreement with Chris Powell 13 of 14 View 1 View 2 Fort Worth Public Art; Retail Replacement Value for insurance coverage; Effective date of appraisal 1/30/10; Date of Report 1/30/IO---: 1• Appraiser: Pam Campbell; ASA-ASA; ISA-CAPP; 4935 Byers Ave.; Fort Worth, TX 76107; 817/737-9566; wcca rr flasb.net 18of28 Artwork Acquisition Agreement with Chris Powell 14of 14