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HomeMy WebLinkAboutContract 42670CITY SECRETARY A2\&Jt CONTRACT NO AGREEMENT CONCERNING PARTICIPATION IN THE 2011 FWPA MURAL PROJECT BETWEEN THE CITY OF FORT WORTH AND SAFE CITY COMMISSION, INC. This Agreement, entered into this 1lD day of D CW ex 2011 ( "Effective Date "), by and between the CITY OF FORT WORTH ( "City "), a home -rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Safe City Commission, Inc. ( "Safe City "), a Texas nonprofit corporation, located at 201 Main Street, Ste. 3200, Fort Worth, Texas 76102, acting by and through Ken Sheffer, its Executive Director. 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 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, the Fort Worth Public Art Program is implementing a mural initiative that seeks to engage community volunteers selected by Safe City Commission, Inc., in the process of mural making under the guidance of a professional artist to support the City's efforts to curb graffiti (the "Project "); WHEREAS, funds for design and commission of a mural have been allocated from the Public Art Fund per guidelines in the Long -Range Public Art Plan for the Water Fund, and were included in the FY2011 Annual Work Plan and Budget (approved by City Council M &C C -24554 on October 19, 2010); WHEREAS, Michael William Kirby, President of Murals of Baltimore, L.L.C., ( "Artist ") was selected by the City through a selection process conducted by the Contract Manager with oversight of the Fort Worth Art Commission ( "FWAC ") to design and implement a two - dimensional painted mural (the "Work "), with participation of community youth selected by Safe Cite Commission. Inc. ( "Youth Participants'); ; I OFFICIAL RECORD; j CITY SECRETARY 1 'FT. WORTH, TX � Page I of I I WHEREAS, Safe City is a community -based initiative whose mission is to focus and magnify community champions for crime prevention, life safety, education, and law enforcement; WHEREAS, Safe City, as part of its community -based initiative, has agreed to provide Youth Participants for the Project; WHEREAS, Youth Participants are volunteers and, as such, their services will be offered freely and without pressure or coercion, either direct or implied; WHEREAS, Project is similar to the training that would be given in an educational environment; Youth Participants will work under close supervision of Safe City's staff and /or Artist; Safe City will derive no immediate advantage from the activities of Youth Participants, rather, the experiences and opportunities provided through the participation with the Project will benefit Youth Participants; Youth Participants are not entitled to a job at the conclusion of the Project; and Youth Participants are not entitled to wages for the time spent on the Project; and WHEREAS, City and Safe City (collectively, the "Parties ") wish to set out the terms and conditions under which Safe City and Youth Participants will participate in the Project; NOW, THEREFORE, the City and Safe City for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: AuTTrr F t SUPERVISION AND TRANSPORTATION a. Safe City shall ensure that adult supervision is provided for Youth Participants at all times during the Project. Safe City shall ensure that any and all adult supervisors are twenty -one (21) years of age or older. The term "supervision" is meant in its broadest sense and includes, but is not limited to, overseeing the health, safety, and welfare of Youth Participants. b. Safe City assumes full responsibility for providing and ensuring that the basic necessities of Youth Participants are met, including, but not limited to, food and hydration, whether Youth Participants volunteer indoors or outdoors. If any Youth Participants participate in outdoor activities, Safe City shall take adequate precautions to prevent against any injuries and heat - related illnesses, including, but not limited to, providing sufficient hydration and food. C. Youth Participants are prohibited from climbing on any ladders, scaffolding, or any other device that may cause serious harm or injury to Youth Participants. Safe City shall take all Page 2 of 1 1 reasonable measures necessary to prevent Youth Participants from climbing on ladders, scaffolding, or any other device that may cause serious harm or injury to Youth Participants. d. Safe City assumes full responsibility for transporting and /or arranging for transportation of Youth Participants to and from any Project sites and any other destination or location as it relates to this Project, including, but not limited to, museums and /or art galleries. The City expressly disclaims any responsibility for transporting any of Youth Participants from or to any locations. e. Safe City assumes full responsibility for providing its employees and /or adult supervisors sufficient training for emergency situations, including, but not limited to, CPR. The City expressly disclaims any responsibility for training Safe City's employees and /or adult supervisors with regard to any emergency situations, that being the sole responsibility of Safe City. f. Safe City shall provide a copy of each of Youth Participants' emergency contact information to the City before the start of the Project. g. Safe City acknowledges that there are potential hazards involved in the Project. The term "Hazards" is intended to be used in its broadest sense and includes, but is not limited to, natural hazards (weather - related heat, land, etc.) and man -made hazards (paint, chemicals, concrete, etc.), as well as hazards typical for physical labor. Safe City understands and acknowledges that the Project may include Hazards that could harm Youth Participants, and that such hazards may or may not always be obvious. Safe City hereby expressly and specifically assumes the risk of injury or harm for all such Hazards and releases the City, its representative, officers, servants, agents, employees, and contractors from any and all liability for injury, illness, and /or death or property damage or loss resulting from the Project. ARTICLE 2 COPYRIGHT AND PHOTOGRAPHIC RELEASE a. Safe City hereby sells, assigns, and transfers to City, the entire right, title, and interest in and to any work based on, derived from, or incorporating any artwork or any work product created pursuant to this Project under this Agreement or any prior agreement for the artwork that Safe City has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto including, without limitation, the exclusive right to reproduce. prepare derivative works based upon. distribute copies to the public as well as display Page 3 of 1 1 said artwork the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever. Safe City shall have no copyright or other property interest in any work product produced pursuant to the Project or Agreement or any prior agreement. Safe City also hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of its own free act hereby waives such rights with respect to any and all uses of the artwork and any other work product produced pursuant to the Project and /or Agreement or any prior agreement as a public artwork. b. Safe City hereby grants and conveys unto the City all right, title, and interest in any and all photographic images and video or audio recordings made by the City, including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings. Safe City also grants to the City the right to use any image and name in all forms and media, including, but not limited to, composite or modified representations, for all non - commercial purposes, including, but not limited to, advertising, trade, or any purpose to promote the Fort Worth Public Art Program. Safe City expressly waives the right to inspect or approve versions of any image used for publication or the written copy that may be used in connection with the images. ARTICLE 3 VOLUNTEER STATUS Safe City agrees that Safe City, its officers, agents, employees, and /or Youth Participants will perform solely as individuals on a voluntary basis, and not as employees, contractors, servants, or agents of the City, its employees, or officials. Nothing herein shall be construed as creating a partnership or joint venture between the City and Safe City, its officers, agents, employees, or Youth Participants, and the doctrine of respondeat superior has no application as between the City and Safe City, its officers, agents, employees, or Youth Participants. The Parties understand and agree that, as volunteers, Youth Participants' services will be offered freely and without pressure or coercion, direct or implied. Safe City understands that Youth Participants may receive guidance, advice, and /or direction from the Project artist contracted to perform this Project. Safe City understands that the Artist is an independent contractor and is not an officer, agent, servant, or employee of the City. ARTICI F 4 Page 4 of 1 1 INSURANCE AND INDEMNITY 4.1 Insurance Requirements a. Safe City shall carry general liability insurance in the amount of $1,000,000 per occurrence with a $2,000,000 aggregate, naming the City as an additional insured. Safe City shall furnish certificates of insurance as evidence of the general liability insurance policy prior to commencement of the Project. b. Safe City shall carry auto liability insurance with a $1,000,000 per accident limit, naming the City as an additional insured. Safe City shall furnish certificates of insurance as evidence of the auto liability insurance policy prior to commencement of the Project. C. The City does not carry or maintain, and expressly disclaims responsibility for providing any health, medical, or disability insurance coverage for Safe City or Youth Participants. Safe City and Youth Participants are not to be deemed employees or agents of the City, and the City shall not be responsible for the purchase of worker's compensation insurance. SAFE CITY EXPRESSLY ACKNOWLEDGES THAT THERE HAS BEEN NO EXPRESS OR IMPLIED AGREEMENT BY THE CITY TO PROVIDE INSURANCE COVERAGE OF ANY KIND TO SAFE CITY OR YOUTH PARTICIPANTS. 4.2 Indemnity, Release, and Waiver a. SAFE CITY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND CONTRACTORS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND /OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT AND /OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY SAFE CITY'S AND /OR YOUTH PARTICIPANTS' NEGLIGENCE OR WILFUL MISCONDUCT; AND SAFE CITY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND Page 5 of 1 1 CONTRACTORS FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND /OR PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NON- PERFORMANCE OF THIS AGREEMENT AND /OR THE OPERATIONS, ACTIVITIES, AND SERVICES DESCRIBED HEREIN, PROVIDED THAT SAID CLAIMS OR SUITS ARE CAUSED BY SAFE CITY'S AND /OR YOUTH PARTICIPANTS' NEGLIGENCE OR WILFUL MISCONDUCT. SAFE CITY ALSO COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, THE CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND CONTRACTORS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR ANY AND ALL TAX LIABILITIES, WAGES, FINES, BENEFITS, AND PENSIONS RESULTING FROM SAFE CITY'S AND /OR YOUTH PARTICIPANTS' PARTICIPATION IN THE PROJECT. SAFE CITY LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS THE CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE, AND /OR DESTRUCTION OF PROPERTY OF THE CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF SAFE CITY, ITS REPRESENTATIVES, OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, YOUTH PARTICIPANTS, OR PROGRAM PARTICIPANTS. b. Safe City agrees to and shall FOREVER RELEASE AND WAIVE the City, its representatives, officers, servants, agents, employees, and contractors from any and all liability, claims, and /or demands, including, but not limited to, personal injuries, bodily injuries, illnesses, death, disability, property damage or loss, incidental or consequential damages, punitive damages, or special damages sustained by Safe City or Youth Participants in connection with or incidental to the Project or performance under this Agreement, whether caused by the alleged acts of commission, omission, negligence, intentional act or fault of (i) the City, its representatives, officers, servants, agents, or employees, or otherwise or (ii) Safe City or Youth Participants. This waiver and release is intended to release and forever discharge the City, its representatives, officers, servants, agents, and employees from any and all claims, actions, causes of action, damages, losses or expenses. including. but not limited to. attornev's fees. whether real or asserted. ofevery kind or Page 6 of 1 1 character, sustained by Safe City or Youth Participants in connection with or incidental to performance under this Agreement C. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 5 MISCELLANEOUS 5.1 Compliance Safe City shall comply with all Federal, State, and City statutes, ordinances, and regulations applicable to the performance of Safe City's services under this Agreement. 5.2 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. 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 the parties hereto and approved by appropriate action of the City. 5.4 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. 5.5 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. 5.6 Successors and Assiyns Page 7 of 1 I 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 the City and Safe City and their respective successors and permitted assigns. 5.7 No Third -Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and Safe City, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 5.8 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. 5.9 Force Majeure It is expressly understood and agreed by the parties to this Agreement that, if the performance of any obligations hereunder are delayed by reason of war; civil commotion; 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 that 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. 5.10 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. Page 8 of 11 5.11 Captions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 5.12 Safe City's Address Safe City shall notify the Contract Manager of changes in address(es). 5.13 Survival Provision The provisions contained in Article 4 shall survive the termination or expiration of this Agreement. 5.14 Public Information Act Safe City understands and acknowledges that the City is a public entity under the laws of the State of Texas and, as such, all documents held by the City are subject to disclosure under Chapter 552 of the Texas Government Code. Safe City shall clearly indicate to the City what information it deems proprietary. If the City is required to disclose any documents that may reveal any of Safe City's proprietary information to third parties under the Texas Government Code, or by any other legal process, law, rule, or judicial order by a court of competent jurisdiction, the City will notify Safe City prior to disclosure of such documents, and give Safe City the opportunity to submit reasons for objections to disclosure. The City agrees to restrict access to Safe City's information to those persons within its organization who have a need to know for purposes of management of this Agreement. The City agrees to inform its employees of the obligations under this paragraph and to enforce rules and procedures that will prevent any unauthorized disclosure or transfer of information. The City will use its best efforts to secure and protect Safe City's information in the same manner and to the same degree it protects its own proprietary information; however, the City does not guarantee that any information deemed proprietary by Safe City will be protected from public disclosure if release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a period of three (3) years after the expiration of this Agreement. ARTICLE 6 NC)TICFq Page 9 of I 1 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: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: Sarah Fullenwider City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Martha Peters, Vice President - Public Art Arts Council of Fort Worth & Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 2. SAFE CITY COMMISSION, INC. Ken Shetter, Executive Director Safe City Commission, Inc. 201 Main Street, Ste. 3200 Fort Worth, Texas 76102 [SIGNATURES APPEAR ON FOLLOWING PAGE] Page 10 of 11 IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective on the Effective Date. CITY OF FORT WORTH G;;;�11 by: Fernando Costa, Assistant City Manager APPROVED AS TO FORM: Tyler Wa a Assistant ity Attorney SAFE CITY COMMISSION, INC. by: Ken Shetter, Executive Director ATTESTED BY: ICY 00� 0° 00 d 0 0 -f Sf- City Secret y ° °° j( f aanj�xoA. �q��a ICY Contract Authorization: No M &C required Page I I of I I - -- - -- --- --1 OFFICIAL PECORD' i viTY SECRETARY FT'. WORTH, TX