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HomeMy WebLinkAboutContract 38576 `"ITY SECRETAF-v, 'DONTRACT NO S� AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF FORT WORTH AND MICHAEL VAN ENTER, SCULPTURE CONSERVATOR THIS AGREEMENT ("Agreement") is made and entered into between THE CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas ("City"), acting by and through Fernando Costa, its duly authorized Assistant City Manager, and MICHAEL VAN ENTER, an individual ("Conservator"). 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 Collection Manager("Manager"). WHEREAS, the City is in need of professional conservation services to assist in maintaining the value, integrity and authenticity of artwork included in the Fort Worth Public Art Collection, and; WHEREAS,the City owns an artwork titled Birth of Love by Michael Pavlovsky which is located in the Fort Worth Botanic Garden at 3220 Botanic Garden Way, and more particularly described in Exhibit"A"hereto (the "Artwork"); and, WHEREAS, Conservator provides professional conservation services; and WHEREAS, City and Conservator desire to enter into a contract to have such services provided which benefit City. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: RD U FiCiAL REC01 � =' TV CRETARY . ,fl RTH,TX r ARTICLE 1 SERVICES 1.1 Conservator covenants and agrees to fully perform, or cause to be performed, with good faith and due diligence, all objectives described in Exhibit "B", attached and incorporated herein for all purposes incident to this Agreement ("Services"). Services are to be performed in compliance with the American Institute of Conservators (AIC) code of Ethics. 1.2 Existing conditions hidden or concealed and not available for reasonable visual observation discovered during Services will be reported promptly to Manager prior to commencing further Services. 1.3 Conservator shall promptly repair, to a condition reasonably acceptable to the Manager and the City, any damage caused to property by Conservator or its employees, agents or subcontractors. ARTICLE 2 TERM& TERMINATION 2.1 Term. Services shall be provided by Conservator for a term beginning May 1, 2009 and ending when City determines the Services are complete, or May 30, 2009, whichever occurs first. 2.2 Termination. Either party may cancel this Agreement at any time and for any reason by providing the other party with thirty days written notice of termination. In the event this Agreement is terminated prior to expiration of the Term, City shall pay Conservator only for Service actually rendered as of the effective date of termination. 2 1� ARTICLE 3 FEE In consideration of the Services to be performed hereunder by Conservator, City promises and agrees to pay Conservator an amount not to exceed SIX THOUSAND DOLLARS ($6,000.00) The Fee shall be compensation for all Services. Payment from City to Conservator shall be made on an invoice basis for services rendered following receipt by City from Conservator of a signed invoice. The invoice shall be submitted to City no later than the 15th day following the end of the month. ARTICLE 4 INDEPENDENT CONTRACTOR Conservator shall operate hereunder as an independent contractor and not as an officer, agent, servant, or employee of City. Conservator shall have exclusive control of and the exclusive right to control the details of the Services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, subcontractors and program participants. The doctrine of respondeat superior shall not apply as between the City and Conservator, its officers, agents, servants, employees, subcontractors, or program participants, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Conservator. It is expressly understood and agreed that no officer, agent, employee, or subcontractors of Conservator is in the paid service of City. ARTICLE 5 INDEMNIFICATION (a) CONSERVATOR COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY. 3 INCLUDING 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; AND CONSERVATOR HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING 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. CONSERVATOR LIKEWISE COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF CONSERVATOR, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS. (b) CONSERVATOR AGREES TO AND SHALL RELEASE CITY, ITS AGENTS, EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY SUSTAINED BY CONSERVATOR IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT. (c) Conservator shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of the Arts Council and the City in substantially the same form as above. (d) This Section 5 shall survive the expiration or termination of this Agreement. 4 ARTICLE 6 INSURANCE During the term of this Agreement, Conservator shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section 7 as well as any and all other public risks related to Conservator's performance of its obligations under this Agreement. Conservator shall specifically obtain the following types of insurance at the following limits: • Commercial General Liability: $1,000,000 per occurrence; providing blanket contractual liability insurance products and completed operations; independent contractor's liability; and coverage for property damage to City facilities; and • Automobile Liability: $1,000,000 per occurrence or accident; including, but not limited to, all vehicles, whether owned or hired, in use by Conservator, its employees, agents or subcontractor; and • Worker's Compensation/Employer's Liability: Worker's compensation coverage as required by applicable law; and Employer's Liability at $100,000 per accident. Conservator shall promptly provide the City with certificates of insurance that verify Conservator's compliance with the insurance requirements of this Agreement. The City's Risk Manager shall have the right to review and evaluate Conservator's insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Conservator shall comply which such requests or revisions as a condition precedent to the effectiveness of this Agreement. 5 ARTICLE 7 MISCELLANEOUS 7.1 Assignment. Conservator shall not assign or subcontract all or any part of its rights, privileges or duties under this Agreement without the prior written consent of City, and any attempted assignment of subcontract of same without such prior written approval shall be void and constitute a breach of this agreement. 7.2 Compliance with Law. Conservator, its officers, agents, employees and subcontractors, shall abide by and comply with all laws, federal, state and local, including all ordinances, rules and regulations of City. It is agreed and understood that, if City calls to the attention of Conservator any such violation on the part of Conservator or any of its officers, agents, employees or subcontractors, then Conservator shall immediately desist from and correct such violation. 7.3 Non-Discrimination. Conservator, in the execution, performance or attempted performance of this contract and Agreement, will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color or national origin, nor will Conservator permit its officers, agents, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Conservator hereby covenants and agrees that Conservator, its agents, employees and subcontractors have fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against by either Conservator, its agents, employees or subcontractors. 7.4. Right to Audit. Conservator agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement. have access to and the right to examine any 6 directly pertinent books, documents, papers and records of the Conservator involving transactions relating to this Agreement. Conservator agrees that the City shall have access during normal working hours to all necessary Conservator facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Conservator reasonable advance notice of intended audits. Conservator further agrees to include in all of its subcontractors agreements hereunder a provision to the effect that the subcontractors agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractors involving transactions to the subcontract, and further that City shall have access during normal working hours to all subcontractors facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractors reasonable advance notice of intended audits. This Section 8.4 shall survive the expiration or termination of this Agreement. 7.5 Fiscal Fundiniz. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments hereunder, City will notify Conservator of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 7.6 Entire Agreement. This written instrument constitutes the entire agreement by the parties hereto concerning the work and services to be performed hereunder, and any prior or contemporaneous, oral or written agreement, which purports to vary from the terms hereof shall be void. 7.7 Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance, attempted performance of this Agreement, venue for said action shall lie in Tarrant County. "Texas. 7 7.8 Notices. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: Fernando Costa,Assistant City Manager Michael Van Enter, Conservator City of Fort Worth 1415 Fairview Ave. 1000 Throckmorton St. Dallas, TX 75223 Fort Worth, Texas 76102 (817) 392-8518 (214) 515.9948 7.9 Non-Waiver. The failure of City or Conservator to insist upon the performance of any term or provision of this Agreement or to exercise any right herein conferred shall not be construed as a waiver or relinquishment to any extent of City's or District's right to assert or rely upon any such term or right on any future occasion. 7.10 Disclosure of Conflicts. Conservator hereby warrants to the City that Conservator has made full disclosure in writing of any existing or potential conflicts of interest related to Conservator's services and proposed services with respect to the Services. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Conservator hereby agrees immediately to make full disclosure to the City in writing. The City acknowledges that Conservator may use products, materials or methodologies proprietary to Conservator. The City agrees that Conservator's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products, materials or methodologies unless the parties have executed a separate written agreement with respect thereto. Notwithstanding the foregoing, Conservator understands and agrees that the City is subject to various public information laws and regulations, including, but not limited to, the Texas Open Records Act. Conservator, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to any third party without the prior written approval of the City. 8 7.11 Severability. If any provision of this Agreement is 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. 7.12 Force Majeure. The City and Conservator shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 7.13 Headings not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE.] 9 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples in Fort Worth, Tarrant County, Texas, to be effective as of ` O ATTEST: CITY OF FORT WORTH 1� By: Marty Hendri Fernando Costa City Secretary Assistant City Manager APPROVED AS TO FORM AND ALITY: contrac 1 t �uthnri zat%oa Assistant City tto Date: Cate ATTEST: Michael Van Enter By: Micha Enter UFR'l .1 RECORD j Y SECRETAR€ to STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Michael van Enter, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the Michael van Enter and that he executed the same as the act of said Michael van Enter for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , A.D. 2009. ::2�`"0.y`Ue`�:: KAREN M HOLCOMB NOTARY PUBLIC Notary Public in and for State of Texas 's'gTFo. 'P Comm. Exp. 09-15-2010 the State of Texas STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Fernando Costa, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the City of Fort Worth for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of A.D. 2009. T .Aar,t " 4 Notary Public in and for the State of Texas � y. 1 R! S � - 1 (. PF r � �� ti ,► � jj-``•yam,; .'�'�' -a� {" �J s ` r i Farr Eli ter Stu dio L-D, t` 1415 Fairview A%T.Dallas IX 75223 van Enar Studio for Fine Art and CanservaW& 214 515-9948 February 12 2009 Jennifer Conn Fort Worth Public Art Collection Manager Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort worth,Texas 76107 ' . direct 817.2983023 . phone 817.732.2360 x 223 4 fax 817.298.3063 A wwwfwvublicartor� w� •rLiMi{•Y y,c„ 4 ptW wl"ryl Subject-The birth of lose. I h Cleaning and removal of was and surface treatments. Remoti-al of excess oxidized material on service and preparation of surface using wet sprayed inert media and,or biodegradable cob or walnut shell. Reapplication of hot patina- Apply cold wax_ $5400-00 65/0412009 09:12 9723067330 HARMONY INS PAGE 01/01 DATE(MMODIYYYY) CERTIFICATE OF LIABILITY INSURANCE 5 o 9 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION' FitdONY $T3RANCL ACNCy ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICA'T'E HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 1060 W Frmotford Rd #200-8 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, Carrollton, TX 75007 (972)395-7300 INSURERS AFFORDING COVERAGE NAIL# INSURED yAWFXTr4R, MICHAEL INSURER A: RLI INSEMNICE STUDIO Mi VP14ENTER INSURER 8: 1415 FAIRVIEW INSURER C: DALLAS, TX 75223 INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTVATHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL 711E TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY HUMBER I IRATI N LIMITS L7R DATE M GEN>:RAL LIABILITY EACH OCCURRENCE 6 1 QQQ OOD X COMMERCIAL GENERAL LIABILITY PREMISES Esa=mnce $ 100,000 CLAIMSMADE; HE OCCUR MED FXP(Any ono person) 6 I 0 0 Q A BOP0036263 07/07/08 07/07/09 PERSONAL&ADViNJURY $ 1,000)J 000 GENERAL AGGREGATE 1 11000,000 GEN'L AGGREGATE LIMITAPPLIESPER; PRODUCTS•COMPIOPAGG $ 1,000,000 X POLICY PRO- LOO AUTOMOBILE LIABILITY COMBINEDSINGLEUMIT 9 ANYAUTO (EanadEnrrt) ALL OWNED AUTOS BOOILYINJURY 6 SCHEDULED AUTOS (Parparaon) HIRED AUTOS BODILYINJURY & NON-OWNEDAUTO3 (PA►�ei�nt) PROPERTY DAMAGE $ (Parseetaenq GARAGE LIABILITY AUTO ONLY-EAACCIDENT $ ANYAUTO OTHERTHAN EA ACC $ AUTOONLY: AW $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE 6 OCCUR CLAIMS MADE AGGREGATF $ 6 DEDUCTIBLE S RETENTION 6 $ I' - WORKERSCOMPENSATIONAND TO r ER EMPLOYERS'LIABILITY E.L.EACH ACCIDENT 6 ANY PR0RR1FT0RMARTNERfWR0tmVE OPFICER(MEMBER EXCLUDW? 2,L,DISEASE-EA EMPLOYF1$ Nyycc++s deeaibsunder BPECV�L PROVISIONS below E,L,DISEASE•POLICY uMIT $ OTHER DESCRIPTION OF OPERATIONS!LOCAT10N3 i VEHICLES!EXCLUSIONS ADbw BY ENDORSEMENT i SPECIAL PROVISIONS I CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION CITY OF FORT WORTH DATE THEREOF,TH>r ISSUING INSURER WILL ENDEAVOR TO WAX DAYS%AMITTEN PARKS COUNCIL OF FORT WORTH NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO 80 SHALT. 1000 THROCKNORTON IMPOSE NO OBLIGATION-CE UIBILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR FORT WORTH, TX 76102 REPRESENTATIVE* _ A R ACOR025(2001108) CAC C RPORATION 1988