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HomeMy WebLinkAboutContract 40656 CITY SECRETARY CONTRACT NO. Co 5 AGREEMENT CONCERNING PARTICIPATION IN THE PILOT MURAL PROJECT BETWEEN THE CITY OF FORT WORTH AND SAFE CITY COMMISSION, INC. This Agreement, entered into this -14 day of 2010 (the "Effective 0- Date"), by and between the CITY OF FORT WORTH a home-rule municipal corporation of the State of Texas (the "City"), 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 Shetter, its 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 Jenny Conn, its designated Public Art Project Manager. WHEREAS, the City is implementing the Fort worth Public Art Program pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort worth Code of Ordinances 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 pilot 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 "Pra'ect"); 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 Flan for the Water Fund, as adopted by the Fort worth City Council on May 9, 2005, and were included in the FY2010 Annual work Plan and Budget(approved by City Council M&C #G-16725 on September 6, 2009); WHEREAS, the Project artist was selected by the City through a selection process conducted by the Contract Manager with oversight of the Fort Worth Art Commission (the "FWAC") to, with participation of community youth selected by Safe City Commission, Inc. (the "Youth Participants"), collaboratively design, fabricate, and install a two-dimensional painted mural rF CIAL RECORD _- +i „ SECRETARY WORTH,Tx Page I of 15 on a rigid substrate (the "Work"), as detailed in the "Project Outline" represented and incorporated by reference herein as Exhibit"A"; 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 ("Safe City's Youth Participants"} for the Project; WHEREAS, Safe City's Youth Participants are volunteers and, as such, their services will be offered freely and without pressure or coercion, either direct or implied; WHEREAS, the Project is similar to the training that would be given in an educational environment; Safe City's Youth Participants will work under close supervision. of Safe City's staff and/or the Project artist; Safe City will derive no immediate advantage from the activities of Safe City's Youth Participants, rather, the experiences and opportunities provided through the participation with the Project will benefit Safe City's Youth Participants; Safe City's Youth Participants are not entitled to a job at the conclusion of the Project; and Safe City's Youth Participants are not entitled to wages for the time spent on the Project; and WHEREAS, the City and Safe City (collectively, the "Parties") wish to set out the terms and conditions under which Safe City and Safe City's 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: ARTICLE 1 SUPERVISION AND TRANSPORTATION a. Safe City shall ensure that adult supervision is provided for Safe City's Youth Participants at all times during the Project. Safe City shall ensure that any and all adult supervisors are twenty-one (2 1) 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 Safe City's Youth Participants. b. Safe City assumes full responsibility for providing and ensuring that the basic necessities of Safe City's Youth Participants are met, including, but not limited to, food and hydration, whether Safe City"s Youth Participants volunteer indoors or outdoors, If any of Safe Page 2 of 15 City's 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. C. Safe City's Youth Participants are prohibited from climbing on any ladders, scaffolding, or any other device that may cause serious harm or injury to Safe City's Youth Participants. Safe City shall take all reasonable measures necessary to prevent Safe City's Youth Participants from climbing on ladders, scaffolding, or any other device that may cause serious harm or injury to Safe City's Youth Participants. d. Safe City assumes full responsibility for transporting and/or arranging for transportation of Safe City's 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 Safe City's 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 Safe City's 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 Safe City's 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, and employees from any and all liability for injury, illness, and/or death or property damage or loss resulting from the Project. Wage 3 of 15 ARTICLE 2. COPYRIGHT AND PHOTOGRAPHIC RELEASE a. Safe City agrees to assign and transfer to the City any copyright derived from the Project, including, but not limited to, any work based on, derived from, or incorporatin g Project,the and waives any rights it has under the Visual Artists Rights Act(VARA). 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 Safe City's 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 Safe City's Youth Participants, and the doctrine of respondeat superior has no application as between the City and Safe City, its officers, agents, employees, or Safe City's Youth Participants. The Parties understand and agree that, as volunteers, Safe City's Youth Participants' services will be offered freely and without pressure or coercion, direct or implied. Safe City understands that Safe City's Youth Participants may receive guidance, advice, and/or direction from the Project artist contracted to perform this Project. Safe City understands that the Project artist is an independent contractor and is not an officer, agent, servant, or employee of the City. Page 4 of 15 ARTICLE 4 INSURANCE AND INDEMNITY 4.1 Insurance Rc uire�lents a. Safe City shall carry general liability insurance in the amount of $1,000,000 p er 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 p rior 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 Safe City's Youth Participants. Safe City and Safe City's 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 DR IMPLIED AGREEMENT BY THE CITY TO PROVIDE INSURANCE COVERAGE OF ANY KIND TO SAFE CITY OR SAFE CITY'S YOUTI I 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, AND EMPLOYEES 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 CIIARACTER, 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 SAFE CITY'S YOUTH PARTICIPANTS' NEGLIGENCE OR WILFUL MISCONDUCT; AND SAFE CITY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY Page 5 of 15 AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL ONAL 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 SAFE CITY'S 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, AND EMPLOYEES 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 SAFE CITY'S 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, SAFE CITY'S YOUTH PARTICIPANTS, OR PROGRAM PARTICIPANTS. b. Safe City agrees to and shall FOREVER RELEASE AND WAIVE the City, its representatives, officers, servants, agents, and employees, 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 Safe City's 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 Safe City's Youth Participants. This waiver and release is intended to release and forever discharge the City, its representatives, off cers, servants, agents, and employees from any and all claims, actions, causes of action, damages, losses or expenses, including, but not limited to, attorney's fees, whether real or Page 6 of 15 asserted, of every kind or character, sustained by Safe City or Safe City's Youth Part�ctpants ' in connection with or incidental to performance under this A g reement C. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 5 MISCELLANEOUS 5.1 Cow liance 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 A reement 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. 5.3 Amendments No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by 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 Governin 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 Assigns Page 7 of 1 5 Neither Party hereto shall assign, sublet, or transfer its interest hercin without rior written p e consent of the other Party, and any attempted assignment, sublease, or transfer of all or an a y part hereof without such prior written consent shall be void. This Agreement shall be bindin g upon on and shall inure to the benefit of the City and Safe City and their respective successors and ns.ermitted assigns. g 5.7 No Third-Part v 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 Maieure 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 15 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 Cit '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 NOTICES Page 9 of 15 delivery or receipt thereof, as the ease 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 North 1000 Throckmorton Street Fort Worth, TX 76102 Copies to: City Attorney 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 15 IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective on the Effective Date. CITY OF FORT WORTH SAFE CITY COMMISSION, INC. by: Fernando Costa., Assistant City Manager by: Ken S ett , xecutive Director APPROVER AS TO FORM: f Tyler Nall h Assistant City Attorney .ATTESTED BY: ,vim JgA 0 00 00 a 0 ot 00=� Marty Hendry, C Secretary a 0 0 �0 1 S wan Contract Authorization: No M&C required OVFICIAL RECORD CiV eCRETARY FT.WORTH,TX Page I I of 15 EXHIBIT A Pilot Mural Project Outline OBJECTIVE The objectives of the FWPA pilot mural project are to support the FWPA goals in creating an enhanced visual environment and integrating design work of professional artists into city infrastructure. By focusing attention on constructive mark-making and community engagement/ownership as an initiative to eradicate graffiti, the FWPA pilot project will contract with professional artists to design and lead fabrication of an approved mural but also engage community youth to assist in pre-design planning and fabrication. A program styled to bring talented youth into the design and implementation of the mural-making process is supported by the success of various national programs, including Philadelphia Mural Arts. INVITATIONAL ARTIST AND YOUTH SELECTION PROCESSES FWPA will invite three-to-four artists or artist teams to submit qualifications and letters of interest to act as lead artist for the FWPA Pilot Mural Project. Artists will have proven experience of working in a large-scale format, ability to manage a public art project, experience working with community and youth, and will express an openness to participate in the Artist Mural Training Workshop and with the advisory panel. An artist selection panel comprised of the following: • one Art Commissioner; • one Council District representative; and • one representative of the advisory panel will select the lead artist or artist team through a review and interview process. The selected artist or artist team will enter a professional services agreement with the City of Fort Worth. No III&C is required for this project. Student nominees middle and high school students who have participated in arts programs and are Northside residents or Safe City Art Contest participants selected by Safe City Commission, Inc. will take part in introductory artist meetings defining program goals and volunteer for a fabrication workshop. In collaboration with the lead artist(s), an overarching theme will be explored and developed. The lead artist will make the ultimate decision as to the final theme to be developed. Pre-design materials (drawings, narratives, etc) created by youth participants will be submitted to the lead artist(s) for preliminary design layout and approval. The lead artist will present the final design to -the F WAC for approval. Students are encouraged to participate in the fabrication workshop at the Fort Worth Community Art Center. Creation of the mural at the Art Center and on a substrate to be installed after completion elevates the collaboration experience, provides a controlled focused environment, and avoids liability issues of working on-site. In addition to the Pilot Mural Project, FWPA will provide an artist-training workshop to allow local artists to learn mural methods and techniques through a one-day artist training session. The training session will be administered by an experienced muralist or mural team, and the training workshop will be open to all artists interested in the pilot or future mural projects. This one-day session will include an overview of issues, including the following: • Guidelines, Procedures, and Processes; i Themes and Controversies; Project Management, Budget, and Planning; • Timeline development; • Location Strategies; Liability-, ■ Life Expectancy, Maintenance, Conservation, & Restoration; and o Artist's rights. PUBLIC ART BUDGET $ 25,000.00 from the Public Art Fund Mural $ 3,000.00 from the Administrative Budget Artist Training LOCATION Selected with help from the Safe City/Weed & Seed Boundary Map in District 2 on the City's Northside, the target area is bounded by Loop 820 on the north, Main Street on the east, Northside Drive on the south, and Jacksboro Hwy on the west (see attached) Recommended Site - Northside Community Center, 1801 Harrington, Fort North, Texas TIMELINE FWAC Review and Recommendation—Project Outline June 14, 2010 Invitation to Artists June 15, 2010 Page 13 of 15 Artist Selection July 6, 2010 Artist under Contract(no M&C required) July 7, 2010 Artist Training Workshop TBD FWAC Review and Recommendation —Preliminary Design Aug. 9, 2010 Mural Making Workshop Aug.16 --Aug. 20, 2010 Installation TBD ADVISORS • Host site representative • Jeff Bryan, Development Director, Safe City Commission, Inc. • David Lozano, Site Coordinator, Northside Fort `]North Weed and Seed • Melody Mitchell, City of Fort Worth Parrs and Community Services Department • Alison Letnes, PAC S Graffiti Abatement • Centro Cultural De Las Americas (Cultural Center of the Americas) --- Helen Sides, Executive Director. Programmatic support, student nominees • TBD, Philadelphia Mural Arts representative • FWPA BACKGROUND As early as November 2008, in an effort to support the City's efforts to curb graffiti, FWPA has been a part of ongoing discussions with the City and community stakeholders about creating murals in the City. Topics of interest included the following: • Enhancing the visual environment; • Developing visual reputation; • Building community in affected areas; and • Providing valuable social/educational experiences for community youth. From those discussions, strategies were recommended, including the following: • Develop a multi-tiered program with community stakeholders. ex: FWISD, FWPD, Safe City, Boys and Girls Club, FWPA; • Develop early prevention program through F W I S D art program; • Coordinate with artists and arts organizations; and • Develop city-wide guidelines (mural policy). On April 22 2009, FWPA hosted a public lecture at the Rose Marine Theater titled The Big Picture: Transforming Philadelphia into the "City of Murals" by Judie Gilmore Lomnes, Director of Strategic Initiatives and Planning for the City of Philadelphia Mural Arts Program. Ms. Lomnes highlighted examples from the Philadelphia mural collection and detailed the transition of the Mural Arts Program from an anti-graffiti initiative in to a comprehensive mural arks program. Page 14 of 15 A planning workshop with city staff and interested stakeholders occurred the following day. Council member Joel Burns and twenty representatives from four city departments (Parks and Community Services, Fort Worth Police, Code Compliance, and Planning and Development), one county representative (Tarrant County Juvenile Services), four arts organizations (Imagination Celebration, Amphibian Productions, Artes de la Rosas, and Cultural Center de las Americas), and three youth service organizations (Boys & girls Flub, All. Saints Youth Group, and Tarrant County Juvenile Services) attended the workshop. As a result of the planning workshop, the Fort Worth Art Commission approved funds for a FWPA pilot mural project in the FY201 o Fort Worth Public Art Work Plan. Page 15 of 15