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HomeMy WebLinkAboutContract 46663 CJTY SEMATARY CONTRACT NO. ARTWORK ACQUISITION AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JAMES WOODSON This Agreement is entered into this ieday of , 2015, by and 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 James Woodson, an individual, of 2345 Harrison Avenue, Fort Worth, Texas, 76110. 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, artist James Woodson, a Texas Christian University art professor emeritus, received the distinguished designation of Texas Commission on the Arts 2013 Texas State Visual Artist; WHEREAS, in recognition of Mr. Woodson's long career and many achievements, the Fort Worth Art Commission (FWAC) recommended that City acquire an oil on canvas painting titled Resolved Coalescing Continuum for the Fort Worth Public Art Community Legacy Collection; WHEREAS, the FWAC recommended public art funds for the acquisition from the Specially Funded Capital Projects Fund and included the acquisition in the Fiscal Year 2015 Annual Work Plan and Budget approved by City Council on October 14,2014 (M&C C-27031); and WHEREAS, City and Artist wish to set out the terms and conditions under which said acquisition shall be completed to promote the integrity of Artist's ideas and statements as represented by the Artwork; NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements M hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: r) M ARTICLE 1 C m DEFINITIONS v 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 James N Woodson for Artwork Acquisition. 0 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Artwork Acquisition Agreement between the hy of tona s Woodson Execution Copy 5/4/15 Page 1 of 1 I 1.2. Artist—Means and includes James Woodson and/or his heirs, executors, administrators, legal representatives, successors,agents, subartists,contractors, and assigns. 1.3. Artwork — Means the oil on canvas painting titled Resolved Coalescing Continuum (2014) with dimensions of 120" x 76", more particularly described on Exhibit "A," attached hereto and incorporated herein by reference for all purposes. 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, 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 any location, whether temporary or permanent City selects for public display of Artwork and/or storage of Artwork. ARTICLE 2 ACQUISITION OF THE ARTWORK 2.1. Payment for Artwork. City shall pay Artist TWENTY-FIVE THOUSAND DOLLARS AND NO CENTS ($25,000.00) as full consideration for all rights, title, and interest to Artwork, except for any rights of copyright. City shall pay this amount to Artist within thirty days (30) after full execution of this Agreement by both Parties. Terms and conditions pertaining to warranties, and indemnity, ownership and intellectual property rights, and Artist's rights are contained in Articles 3,4, 5, and 6, respectively. 2.2. Framing and Delivery In addition to the payment in Section 2.1 above, City shall pay Artist for the actual costs incurred at an amount up to SIX HUNDRED AND SIXTY DOLLARS AND NO CENTS ($660.00) as full reimbursement for framing costs upon completion of framing as verified by Contract Manager and receipt of invoice from Artist with framer's invoice attached 2.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due under this Agreement. City shall supply Artist with the"Texas Certificate of Exemption,"attached hereto and made apart hereof for all purposes as Exhibit `B" for use by Artist in the fulfillment of this Agreement. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 2 of 11 2.4.Transportation and Installation. Upon execution of this Agreement and payment to Artist, Contract Manager shall schedule a mutually convenient date and time to pick up Artwork and shall be responsible for all transportation, installation and storage of Artwork. 2.5. Public Display and Storage. City may seek suitable Sites for temporary and permanent public display of Artwork and storage, as necessary. City may seek guidance from Artist at no charge on the manner of public display and/or storage, but the final decisions shall be the City's. ARTICLE 3 WARRANTIES 3.1. Warranties of Title and Copyright. Artist represents and warrants that: a. the Artwork is the original product of Artist's sole creative efforts; b. Artwork is unique and original and does not infringe upon any copyright or the rights of any person; C. 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; d. the Artwork is free and clear of any claims, judgments, and/or liens from any source whatsoever; e. the Artwork(or duplicate thereof) has not been accepted for sale elsewhere; f. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement;and g. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances,etc.,and with all necessary care, skill and diligence. 3.2. Warranties of Quality and Condition. a. Artist represents and warrants that the Artwork and the materials used are not currently known to be harmful to public health and safety. b. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Artwork will maintain the Artwork within an acceptable standard of public display. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 3 of I 1 N C. The foregoing warranties 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 4.1. Intellectual Proper!:. a. Copyright. 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 appropriate 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. b. Survival All indemnification provisions of this Agreement shall survive the termination or extinction of this Agreement. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 4 of 11 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. 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. Rowever, 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 a perpetual, irrevocable license to graphically depict or display the Installation Design and/or the Artwork for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Installation Designs and/or 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: "©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. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 514115 Page 5 of 1 I 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. 5.4. Survival. The rights under this Article 5 shall survive the termination or extinction of this Agreement. ARTICLE 6 ARTIST'S RIGHTS 6.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fw,publicart.orb)and a plaque. 6.2. 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. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 6 of I 1 6.3. Alteration of the Artwork. a. 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. b. 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. 6.4. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Artwork. 6.5. 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. 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. 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 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. Artwork Acquisition Agreement between the City of Fort Worth and lames Woodson Execution Copy 5/4/15 Page 7 of 11 7.5. Successors and Assigns. Artist shall not assign, sublet or transfer his interest herein, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. 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. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 7.10. Artist's Address. Artist shall notify the Contract Manager of changes in address. 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. 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: Artwork Acquisition Agreement between the City of Port Worth and James Woodson Execution Copy 5/4/15 Page 8 of 11 I. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth,Texas 76102 Copies to: Office of the City Attorney City of Fort Worth 1000 Throckmorton Street, Third Floor 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. ARTIST James Woodson 2345 Harrison Avenue Fort Worth,Texas 76110 IN WITNESS HEREOF, the Parties hereto have executed this Agreement as of the Effective Date. CITY OF FORT WORTH ART T by: Fernando Costa ames Woodson Assistant City Manager APPROVED TO FORM AND LEGA IT Jessica Sangsa Assistant Cityorney Q�FO � ATT"D BY: 5..� moo°°� 000 aryJ. Kayser, City Secretary No M&C Required RECORD CITY SECRETARY FT. WORTH, TX Artwork Acquisition Agreement between the City of Fort Worth and James Woo son Execution Copy 5/4/15 Page 9 of l l r Exhibit A: The Artwork F`� ••,�j�_�,fit ,�. Resolved Coalescing Continuum(2014)Jame§ Woodson Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 10 of 11 Exhibit B: Sales Tax Exemption Certificate O`ois�ate.al Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name d purchaser,&m w agency City of Fort Worth Address(Sfrow d number,P.O.Box or Rouse nvmberp Phono(Me6 COdo and nvmbw) 1000 Throckmorton street 817.392-8325 city,stars.ZIP nude -- Fort Worth,Texas 76102 I,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable Items described below or on the attached order or Invoice)from: Seller: All Vendors Stroot address: __.__ _ _City,State,ZIP code: Description of items to be purchased or on tho arachod order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality I understand that I will be liable for payment of all slate and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. I understand that it is a criminal offense to give an exemption eertifreale to the seilerfortaxable items that t know,at the time of purchase, will be used In a mannerolherthan that exprossed in lhls corllflcale,and depending on the amount of lax evaded,ilia offense mayrange from a Class C misdemeanor to a felony of the second degree. hDale ---- ere r/ here u Jfti Assistant Finance Director 2/26/2014 NOTE: This certificate cannot be issued for the purchase,lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Soles and Use Tax'Exemption Numbars'or"Tex Exempt'Numbers do not exist. This certificate should be furnished to the supplier, Do=send the completed certificate to the Comptroller of Public Accounts. Artwork Acquisition Agreement between the City of Fort Worth and James Woodson Execution Copy 5/4/15 Page 1 l of 11