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HomeMy WebLinkAboutContract 58378 �C"D CSC No. 58378 VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH AND CUMMINGS ELECTRICAL LP FOR REPAIRS AND ASSESSMENT FOR A PUBLIC ARTWORK TITLED FLIGHT IN THE HEMPHILL CONNECTOR This Agreement is entered into this day of by and between the City of Fort Worth ("City"),a Texas home rule municipal corporation,acting by and through its duly authorized Assistant City Manager, Fernando Costa, and Cummings Electrical LP., ("Vendor"), a for profit Limited Partnership, located at 14900 Grand River Rd.,Suite 124,Fort Worth,Texas 76155,acting by and through Bobby Cook, its duly authorized Contract Manager. City has designated the Arts Council of Fort Worth and Tarrant County,Inc.D/B/A Arts Fort Worth("Contract Manager"),to manage this Agreement on its behalf. 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 City of Fort Worth owns an artwork titled Flight by artist Dan Corson("Artist"), and implemented by KiboWorks, Inc. ("Implementation Artist"), located at the Hemphill Connector at approximately 1291 Lamar Street,Fort Worth,TX 76102(the"Artwork"); WHEREAS,the Artwork is comprised of sixty-three sculptural"longhorn/birds"each 12 feet in width and fabricated of frosted white polyethylene with twenty-eight (28) mounted on five (5) free-standing supports located in the median on the north (Downtown) side of the Connector and thirty-five (35) "longhorn/birds"mounted under the I-30 bridge; WHEREAS, the Implementation Artist, in his final submittals dated August 24, 2021, outlined the City's responsibilities in properly operating and maintaining the Artwork in accordance to instructions, including when the Artwork is subject to extreme weather conditions; WHEREAS, due to the recent and extended record high temperatures, components of the installation are in need of assessment and repair; WHEREAS, the Vendor is an established local firm which provided professional electrical services for the installation of the Artwork, has institutional knowledge of the Artwork and its working components,and City approved Vendor's Proposal in an Emergency Memo was approved on September 6, 2022; WHEREAS, City and Vendor wish to enter into an agreement to have such electrical services provided for the Artwork. NOW,THEREFORE,City and Vendor for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows: The Agreement documents shall include the following: OFFICIAL RECORD Agreement between the City of Fort Worth CITY SECRETARY 1 And Cummings Electric,LP Vendor Services Agreement FT. WORTH, TX 1. This Vendor Services Agreement; 2. Exhibit A—The Artwork(detail); 3. Exhibit B—Electrical Plans 4. Exhibit C—Emergency Memo and Vendor's Proposal; 5. Exhibit D—Texas Sales Tax and Local Sales Tax Exemption Certificate; and 6. Exhibit E—Affidavit of Bills Paid 7. Exhibit F—Verification of Signature Authority All exhibits are attached hereto and incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of any exhibit and the terms and conditions set forth in the body of this Agreement,the terms and conditions of this Agreement shall control. The term"Vendor"shall include the Vendor,and his officers,agents,employees,representatives,servants, or subcontractors. The term"City"shall include its officers,employees, agents, and representatives. 1. SCOPE OF SERVICES. 1.1. Vendor shall review the as-built electrical plans more specifically described and included herein as Exhibit"B"("Electrical Plans")and fully provide,or cause to be provided,with good faith and due diligence,electrical assessment and repair services for the Artwork in accordance with the terms of this Agreement more specifically described and included herein as Vendor's Proposal Exhibit"C," ("Emergency Memo and Vendor's Proposal"). 1.2. Vendor shall provide all supplies, materials, and equipment necessary to provide deliverables and the Services required unless otherwise agreed to by the parties, in writing, in advance of the Services. 1.3. Vendor shall be responsible for pulling any necessary permits, including for traffic control,as applicable. 1.4. Existing conditions hidden or concealed and not available for reasonable visual observation discovered during the performance of the Services will be reported promptly to the Contract Manager prior to commencing any further Services. 1.5. Upon request by the Vendor, the City may furnish all information, materials and assistance required by the Vendor to perform the Services to the extent that such materials and assistance are necessary and available. 1.6. Vendor, individually and through its approved subcontractors, shall take all necessary precautions to protect and preserve the Artwork. If City determines, in its sole discretion,that Vendor or the Vendor's subcontractors have damaged the FWPA Collection, then City shall inform Vendor, in writing, of the damage. Vendor, at its own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the Artwork to the satisfaction of City and at no charge to City. If Vendor fails to repair the damage to the satisfaction of City within thirty(30)days after receipt of the notice,or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining or future payment due to Vendor under this Agreement,which shall be in addition to any and all other rights and remedies available to City at law or in equity. 1.7. Vendor, if requested by City, will assist with any further repairs to the Artwork to make the Artwork perform more efficiently and cost effectively. Vendor, if requested by City,will also assist with any repairs or parts replacement to the mechanical and operating components of the Artwork on an as-needs basis. If such work is requested and agreed to in writing by City,the Vendor will provide a cost estimate to City for approval prior to performing any additional work. Agreement between the City of Fort Worth 2 And Cummings Electric,LP Vendor Services Agreement 1.8. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due pursuant to this Agreement. City shall supply Vendor with the certificate for use by Vendor in the fulfillment of this Agreement in substantially the same form as Exhibit "D," Texas Sales and Use Tax Exemption Certificate. 1.9. Additional services, supplies, rentals, or deliverables must be approved in writing in advance of performance. Vendor will only be compensated for any such additional services or reimbursed as agreed to by the parties. 1.10. Vendor shall be responsible for the payments of all expenses incurred that pertain to services being performed under this Agreement,including but not limited to Vendor's services,cost of equipment to provide treatments for the Artworks including materials, mailing/shipping charges, insurance costs, costs of all travel for Vendor and any other subcontractors, and any additional costs for the Vendor's agents, consultants, subcontractors or employees necessary for the proper performance of the services required under this Agreement. 1.11. Vendor shall make timely payments to all persons and entities supplying labor, materials, services, or equipment for the performance of this Agreement. THE VENDOR SHALL DEFEND AND INDEMNIFY THE CITY AND THE CONTRACT MANAGER FROM ANY CLAIMS OR LIABILITY ARISING OUT OF THE VENDOR'S FAILURE TO MAKE THESE PAYMENTS. Vendor shall furnish the City an affidavit certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid, attached hereto as Exhibit"B,"Affidavit of Bills Paid. 2. TERM This Agreement shall begin upon execution("Effective Date") and end after City makes payment to Vendor for all services provided under this Agreement,unless terminated earlier in accordance with the provisions of the Agreement. 3. COMPENSATION 3.1 City shall pay Vendor in accordance with the provisions of this Agreement and the Vendor's Rate Schedule more specifically described and included herein as Exhibit "C," — Vendor's Proposal and Rate and Fee Schedule. 3.2 Total payment made under this Agreement by City shall be an amount of up to NINE THOUSAND DOLLARS AND NO CENTS ($9,000.00). The amount under this section shall not obligate City to pay the full amount and shall not be construed as a guaranteed amount payable to Vendor. Payment from City to Vendor shall be made on an invoice basis following receipt of a signed invoice with adequate deliverables provided at submission of invoice,all in a form acceptable to City. 3.3 Vendor shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. 3.4 Vendor will bill City for additional services, equipment, materials, any other supplies, and shipping and handling (collectively "Item") ordered by Vendor at a rate not to exceed 15% above cost for the Items approved by City in advance of purchase.Vendor will not bill City for tax pursuant to Vendor's use of Exhibit"D"as outlined in section 1.7 of this Agreement. 4. TERMINATION. 4.1. Written Notice. City or Vendor may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. Agreement between the City of Fort Worth 3 And Cummings Electric,LP Vendor Services Agreement 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Vendor 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 have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason,Vendor shall provide City with copies of all completed or partially completed documents prepared under this Agreement.In the event Vendor has received access to City Information or data as a requirement to perform services hereunder, Vendor shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Vendor hereby warrants to City that Vendor has made full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to City in writing. 5.2 Confidential Information. Vendor,for itself and its officers,agents and employees,agrees that it shall treat all information provided to it by City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of City. 5.3 Unauthorized Access.Vendor shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way.Vendor shall notify City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised,in which event,Vendor shall,in good faith,use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and shall fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Vendor agrees that City shall,until the expiration of three(3)years after final payment under this contract,or the final conclusion of any audit commenced during the said three years,have access to and the right to examine at reasonable times any directly pertinent books,documents,papers and records,including, but not limited to,all electronic records, of Vendor involving transactions relating to this Agreement at no additional cost to City. Vendor agrees that City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Vendor shall operate as an independent Contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Agreement between the City of Fort Worth 4 And Cummings Electric,LP Vendor Services Agreement Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, consultants and subcontractors. Vendor acknowledges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, contractor and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers, agents, servants, employees or s subcontractor of Vendor. Neither Vendor,nor any officers,agents, servants,employees or subcontractors of Vendor shall be entitled to any employment benefits from City. Vendor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers,agents, servants, employees or s subcontractor. 8. LIABILITY AND INDEMNIFICATION. 8.1 Vendor covenants and agrees to indemnify, hold harmless and defend, at its own expense,City,its officers and employees,from and against any and all claims arising out of,or alleged to arise out of, the work and services to be performed by Vendor, its officers, agents, employees, subcontractors, licenses or invitees under this Agreement. This indemnification provision is specifically intended to operate and be effective even if it is alleged or proven that some of the damages being sought were caused, in whole or in part, by any act, omission or negligence of City. This indemnity provision is intended to include,without limitation,indemnity for costs,expenses and legal fees incurred by City in defending against such claims and causes of actions. 8.2 Vendor covenants and agrees to indemnify and hold harmless,at its own expense, City, its officers and employees, from and against any and all loss, damage or destruction of property of City, arising out of, or alleged to arise out of,the work and services to be performed by the Vendor, its officers, agents, employees, subcontractors, licensees or invitees under this Agreement. This indemnification provision is specifically intended to operate and be effective even if it is alleged or proven that some of the damages being sought were caused,in whole or in part,by any act,omission or negligence of City. 9. ASSIGNMENT AND SUBCONTRACTING. 9.1 Assignment. Vendor shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment,the assignee shall execute a written agreement with City and Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement.Vendor and Assignee shall be jointly liable for all obligations of Vendor under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. If City grants consent to a subcontract, subcontractor shall execute a written agreement with Vendor referencing this Agreement under which subcontractor shall agree to be bound by the duties and obligations of Vendor under this Agreement as such duties and obligations may apply. Vendor shall provide City with a fully executed copy of any such subcontract. 10. INSURANCE. Contractor shall meet all the following insurance requirements for this Project. If Contractor subcontracts fabrication,transportation, and/or installation of the Work,then Contractor shall also require his/her subcontractor(s)to abide by all of the following insurance requirements. Agreement between the City of Fort Worth 5 And Cummings Electric,LP Vendor Services Agreement Commercial General Liability(CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include,but not be limited to,the following: premises,operations,independent contractors, products/completed operations,personal injury,and contractual liability. Insurance shall be provided on an occurrence basis and be as comprehensive as the current Insurance Services Office(ISO)policy.The policy shall name City as an additional insured. Bailee's/Property(if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Contractor and is considered to be in the Contractor's care, custody, and control and shall include property"in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non-owned. For Contractor and/or Contractor's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Bodily Injury/Disease-policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq. Tex.Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Contractor is responsible for providing the City a thirty-day (30)notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation(Right of Recovery)in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of Agreement between the City of Fort Worth 6 And Cummings Electric,LP Vendor Services Agreement A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits,an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated,all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention(SIR)affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups,must also approved by City's Risk Manager. City, at its sole discretion,reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law,court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled,upon request and without expense,to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Vendor agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal,state and local laws, ordinances,rules and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If City notifies Vendor of any violation of such laws, ordinances, rules or regulations,Vendor shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Vendor, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder,it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY VENDOR, ITS PERSONAL REPRESENTATIVES ASSIGNS SUBVENDORSS OR SUCCESSORS IN INTEREST VENDOR AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives,(2)delivered by facsimile with electronic confirmation of the transmission,or(3)received by the other party by United States Mail,registered,return receipt requested,addressed as follows: To CITY: To VENDOR: Agreement between the City of Fort Worth 7 And Cummings Electric,LP Vendor Services Agreement Cummings Electrical LP City of Fort Worth Bobby Cook,Contracts Manager Attn: Fernando Costa,Assistant City Manager 14900 Grand River Rd.,Suite 124 200 Texas Street Fort Worth,Texas 76155 Fort Worth,TX 76102-6314 Facsimile: (817)392-8654 Contract for Notices: Zachary Cunningham With copy to Fort Worth City Attorney's Office at zcunninghamgcummingselec.com same address (817)355-5300 14. SOLICITATION OF EMPLOYEES. Neither City nor Vendor shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Vendor, any person who is or has been employed by the other during the term of this Agreement,without the prior written consent of the person's employer.Notwithstanding the foregoing,this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas.If any action, whether real or asserted, at law or in equity, is brought pursuant to 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, Foil Worth Division. 18. 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. 19. FORCE MAJEURE. City and Vendor 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 the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. Agreement between the City of Fort Worth 8 And Cummings Electric,LP Vendor Services Agreement 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement,and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or Exhibit C. 22. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No amendment,modification, or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument,which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including Exhibit C. contains the entire understanding and agreement between City and Vendor,their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 25. WARRANTY OF SERVICES. Vendor warrants that its services will be of a high quality and conform to generally prevailing industry standards.City must give written notice of any breach of this warranty within thirty(30)days from the date that the services are completed. In such event, at Vendor's option, Vendor shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty,or (b)refund the fees paid by City to Vendor for the nonconforming services. 26. IMMIGRATION NATIONALITY ACT. Vendor shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, SUBCONTRACTORS,AGENTS, OR LICENSEES. City, upon written Agreement between the City of Fort Worth 9 And Cummings Electric,LP Vendor Services Agreement notice to Vendor, shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. 27. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement(collectively,"Work Product"). Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a"work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Vendor hereby expressly assigns to City all exclusive right, title and interest in and to the Work Product, and all copies thereof,and in and to the copyright,patent,trademark,trade secret, and all other proprietary rights therein, that City may have or obtain, without further consideration, free from any claim, lien for balance due, or rights of retention thereto on the part of City. 28. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party,and that such binding authority has been granted by proper order,resolution,ordinance or other authorization of the entity.This Agreement and any amendment hereto, may be executed by any authorized representative of Vendor whose name,title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "F". Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 29. CHANGE IN COMPANY NAME OR OWNERSHIP Vendor shall notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records.The president of Vendor or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change, copy of the board of director's resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 30. ISRAEL If Vendor is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Vendor acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. If applicable under this Agreement and Vendor is considered a"company,"by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor:(1)does not boycott Israel, and(2) will not boycott Israel during the term of the Agreement. Agreement between the City of Fort Worth 10 And Cummings Electric,LP Vendor Services Agreement 31. ENERGY COMPANIES If Vendor is a company with ten(10)or more fill-time employees and if this Agreement is for$100,000 or more,Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 13, §2,the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more frill-time employees unless the contract contains a written verification from the company that it:(1)does not boycott energy companies;and(2)will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,as added by Acts 2021,87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1)does not boycott energy companies; and(2)will 'not boycott energy companies during the term of this Agreement. 32. FIREARMS AND AMMUNITIONS INDUSTRIES If Vendor is a company with ten(10)or more full-time employees and if this Agreement is for$100,000 or more,Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 19, § 1,the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more frill-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and(2)will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this day of , 2022. (signature page folloivs) Agreement between the City of Font Worth 11 And Cummings Electric, LP Vendor Services Agreement ACCEPTED AND AGREED: CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: By: 4�a_ By signing I acknowledge that I am the Name: Fernando Costa person responsible for the monitoring and Title: Assistant City Manager administration of this contract, including Date: /O1Z7Z.Z1Z1 ensuring all performance and reporting requirements. APPROVAL RECOMMENDED: By: Name: Jennifer Conn By: Title: Publi'c Art'Collection Manager Name: Richard Zavala Arts Fort Worth Title: Interim Director of Planning&Analytics APPROVED AS TO FORM AND LEGALITY: d44�p� i paa FORr��a ` 1 o�° } ' ATTEST: ��o °°.0 By: r i s aO°aA� c-o 1.40 Name: JesSfka Williams By: JdnnMkS.GDDddll(NW1,10]31551CUT �Vg o2A Name: Jannette Goodall dd�*o° o*° Title: Assistant City Attorney Title: City Secretary �000000 ape CONTRACT AUTHORIZATION: M&C: N/A VENDOR: Cummings Electrical, LP ATTEST: By: / By: Name: Bobby 600k Name: Ash- Adkins Title: Contract Manager Title: Accounting Manager Date: 10-25-2022 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Agreement between the City of Fort Worth 12 And Cummings Electric, LP Vendor Services Agreement EXHIBIT A ARTWORK (Detail of work on north side of the Connector) i I i I i Agreement between the City of Fort Worth 13 And Cummings Electric,LP Vendor Services Agreement u m tl3MDdlW allryy rr 110L�3kkdJ UYNYI IICIJYI)11 o go � 9 t Ir US E a ! E E n t aw.,,vu a a s f � a � 9 ttl'»•tIVU 4 N �Z Cn'p•Ci Yi9 N re���rAA ° „AA a� asl, ti d}dtaa �� 8 I t y !t r g A a•nvu 5 i W �7 ;osc pry„ kgreement between the City of Fort Worth 18 14 knd Cummings Electric,LP Vendor Services Agreement .WIhYOmYOmluenllY�Y M 3N11J3YlkYJW/fIl tl 'T%W011dLIITd4 0 •k R n : a � $6 rI IN y LL < d kg tl pill r y � atltl'sy ARE s bp � y ° . . ° ° ^ d a e ^ ® tX a � ggga $ p yy aa�W4 �c 4 a sib p� & g a4 �& }4} gSeS °�€g@ ` ge e� tgq pig p E3 y3 [eg 4 g€atg �B 8 2 pLk EE # E � ��9gapgi * G 1.�, RFF��Fjjff �faJsa A � 3iF` 5E9 V�� p 11 h 11 H 114 a 1 ill k11 24_ }tf� ? €� � s F.g'; e § say ; , � Ike"I ' � � 4 & gk 1 asap $ till ? 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Richard Zavala,Planning&Data Analytics, q//s/LZ Interim Director 2. Jessika Williams Assistant City Attorney JJW 9/6/22 3. Anthony Rousseau,Assistant Finance Director DOCUMENTS FOR CITY MANAGER'S SIGNTURE: All documents received from any and all City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE APPROPRIATE ACM for approval first.Once the ACM has signed the routing slip,David will review and take the next steps. NEEDS TO BE NOTARIZED: ❑ Yes❑X No RUSH: ❑ Yes ❑ NoX SAME DAY: ❑ Yes ❑ No NEXT DAY: El Yes ❑ No ROUTING TO CSO: ❑ Yes ❑X No Action Required: ❑As Requested (i Attach Signature,Initial and Notary Tabs ❑For Your Information X❑Signature/Routing and or Recording ❑Comment o File Return to:Please email a copy of the fully executed contract to:Jennifer Conn,Public Art Collection Manager,Arts Fort Worth at iconn(a)artsfortworth.org Thank youl i Jennifer Conn,Public Art Collection Manager,Arts Fort Worth Agreement between the City of Fort Worth 20 And Cummings Electric, LP Vendor Services Agreement FORT WORTH UMURGUNCY PURCHASE(UP TO$10,000.00)MEMORANDUM Date: September 6,2022 To: Anthony Rousseau,Assistant Finance Director,Financial Management Services Jessika Williams,Assistant City Attorney II From: Jennifer Conn,Public Art Collection Manager,Arts Fort Worth Subject: Hemphill/Lamar Connector Public Art Heat-Related Electrical Assessment and Repairs Supplier: Cummings Electric,LLC. A public artwork titled Flight by artist Dan Corson("Artist'),owned by the City of Fort Worth and prominently installed in the Hemphill/Lamar Connector at approximately 1291 Lamar Street in downtown Fort Worth,requires assessment and repair due to unforeseen extreme weather-related circumstances. On June 16,2022,Arts Fort Worth staff observed that various sections of the installation were not working properly and reported the outages to the implementation artist,KiboWorks,Inc.Following a review of the circumstances,KiboWorks isolated issues excluded from the artist's warranty.Due to the recent and extended record high temperatures,with more than 47 consecutive days of temperatures over 100 degrees,components of the installation have failed and need assessment and repair. KiboWorks,Inc.has scheduled Cummings Electric,LLC.to make warrantied repairs soon.Since lane closures are required,it is essential to combine both the warrantied and work excluded from the warranty and approved in this Emergency Memo to reduce the amount of time that lanes will be closed and the public inconvenienced. Installed in 2021,the artwork is a complex design of sixty-three lighted sculptural"longhorn/birds"each 12 feet in width and fabricated of frosted white polyethylene with twenty-eight(28)mounted on five(5) free-standing supports located in the median on the north(Downtown)side of the Connector and thirty- five(35)"longhorn/birds"mounted under the 1-30 bridge. Cummings Electric,LLC,a local sub-contractor of the implementation artist,KiboWorks,Inc.,installed the electrical components of the artwork and has detailed knowledge about the artwork.It is anticipated that this work will identify and repair all issues. Under this emergency memorandum,the City,through the Fort Worth Public Art program,managed by Arts Fort Worth,intends to do the following. Agreement between the City of Fort Worth 21 And Cummings Electric,LP Vendor Services Agreement 1. Enter into an agreement with Cummings Electric, LLC. to assess and repair components of the artwork based on artists recommendation and the contractor's proposal (attached). 2. Coordinate with the Contractor and City of Fort Worth permitting to make sure that all work is approved and completed in a timely fashion. 3. Once repairs are complete,work with the artist and the contractor to recommend preemptive methods to protect the artwork during extreme weather. Chapter 2,Article I, Section 2-9 at(9) of the City's Code of Ordinances and Section 252.022 of the Local Government Code exempts from normal bidding requirements expenditures that are necessary due to unforeseen damage to public machinery, equipment or other property. This memo is submitted to request authorization for an emergency procurement and to immediately resolve the issues outlined above at a cost of up to$10,000. APPROVED FOR EMERGENCY PROCUREMENT: Recommended: L4� Rich rd Zavala, Planning & Data Analytics, Interim Department Head Approved As To Form and Legality: 1 Jesslka Williams,Assistant City Attorney II Approved: Anthony Rousseau, Assistant Finance Director Cummings Electrical August 11,2022 ARTS FORT WORTH 15(it)(iiri„ly Sin„i, roll Woath,7nr.a /6I07 Atn:Jenny Conn ju nn,lrrvrnfumrnrth.om Iteference; Repairs to I+light at the I lentphill/l;unar underpass We are plxtsed to present this proposal for electrical wort:associated with the above referenced project. Budget Price:$6,991.95+$576.84 tax(if applicable)=$7,568.79 Total The following nimcrials and/or smicea are included in Ibis quotation. 1, burnish(3)service electricians for two day and(1)bucket Truck. 2. Provide Al accessary street closure sign and barricades. 3. Troubleshoot and replace control boxes as ncaded. 4. Verily all selling$are correct in lighting Control Cabinet 5. Work to be performed during nornrd business hours,Monday through Friday 7:001m-3r30pna. 17e following arterials;rod/or services are excluded in this quotation. I. Upgrade,repair or replacement of electrical sy:atcros and equipment other than Ile ite ns included in this quotation 2. Permits and pennit fees 3. Overtime 4. &i1es'lltx Tennis and conditions 1. Pricing is furor for 7 days front date of proposal. 2. Proposal is conditioned upon the parties entering into a mutually agrecathbe contract. 3. Proposal is conditioned upon receipt of a mutually agret-able project schctlube. 4. Payment shall be nude for materials stored o1i'site and/or pre-fabricated at Cummings Electricals'warehouse 5. We request written notification of acceptance of this proposal prior to any contractual performance by Cummings Mectricd 6. This proposal is based on the prices of nerol building products(such as conduit,fittings,wire, etc)quoted to us as of the date of this proposal.Duc to the rapidly rising metal prices,this Proposal is subjwtt to ineratse if any meal building materials increase prior to the execution of 14900 Gruel Auer Aws.Stella 124 1 forl Nlxth,TX 76155 1 o.817.355.5300 I wrw.cammttpseiee cmi I TECL 17336 Agreement between the City of Fort Worth 23 And Cummings Electric,LP Vendor Services Agreement 7. it written agreement,by the amount of increases quoted by our intended supplicts and/or subcommetors.(We will provide you with proof of any increase.) g. Shomiges of materials could possibly delay delivery of building products necessary for the perfomautcc of the work;therefore,Cummings I1ecttial,I.P.Shall be cntilled to sot extension of tittle for delays caused by delivery delay or material shorlages which may occur through to 9. lilult or negligence of Cuna»ings Iticearicad,LP.,who shall provide prompt written notice of any shortages or delays in delivery. to.lAunnlings Electrical will nut indenttily.defend,or hold haumless the owner,galoral contractor,ur other parries for the consequences of their own$ole or partial negligence. 11.This proposal excludes lte assumption of risk of nonpayment to the gencntl contractor,if applicable. 12.Customer will supply Cummings E+Iccuic l with updated electronic files at no charge to Cummings. 13.Per Texas Business and l:cunntcrce Code Section 56.115-1,Cummings Lives iall hereby requests proof of adequale funding root reserves the right to rescind this bid if such is not provided. Additionally,Cummings cannot subordinate its rights. I.I.This proposal excludes liability for consequential or undefined damages, 15.'Citis proposal does not include costs assoeiatetl with it Project Ubor Agreement,and Cummings riecttical resctvcs the right to modit'y or rescind this proposal if PLAs are required 16.'Phis proposal dos nut include builder's tick insunutce arcetagc. If lte owner or the gencnl amoaclor arc not carrying builder's risk,phrase conutcl our office for additional pricing. 17.I f subcontractors or suppliers t:ur;specified or required by owner or general contractor. Cummings may require special conmtcl terms and/or terms nullching those demauled by, such subs and suppliers. 18.Unless they are clearly stated in lite provided bid documents.Cuntnlings,price does not include any consideration for liquidated damages. Price may be subject to modilioition if Cummings is inl'ornted of liquidated dtunnges after bid submission. 19.Credit earl payments arc subject to processing Pecs Ale appreciate this opportunity to be of service to you. Sincerely, 1 L.'e f, 26tf- " Baal G.Beaver Sr.E+stintater-Strttcgic Account Cununings Klectricl Accepted: Cumttetps Eleclrkal I It.811-355-5308 I w*wcwturwpsWc.wm 1 IECL 11336 2 Agreement between the City of Fort Worth 24 And Cummings Electric,LP Vendor Services Agreement EXHIBIT D TEXAS SALES TAX AND LOCAL SALES TAX EXEMPTION CERTIFICATE Texas Sales and Use Tax Exemption Certification This cortrtirate does mot require a numbar to be vntkf, Name ar Fvrclm,el,irm v agency City of Fort Worth,Texas At4Na7et�fieorbrwmbor,F.CJ.aotorrrauxenumbs) PxW mUsescodaendnwnW 200 Texas Street t 817.392.8517 4;Ixr,:;1d*,Z1P"da -- --- 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: Sek-r: All Vendors Strrol 11dd?M: City,State,ZIP code: CW scr;ption of items to be purchased or on[tic attached order or Invoice: All Items.Purchaser acknowledges that this Certificate cannot be used for the purchase lease or rental of a mote r vehicle. Purchaser claims this exemption for the following reason: Municipality,Governmental Entity 1 understand that t will be liable for payment of all state and local sales or use taxes which may become due for failure to campy rrith the provisions of the Tax Code andtor all applicable law. lundarstandthatiflsecrfrr��raloHonse toglvo anexemption certiftstoto the segerlortaxabfeitemsthatlktow;atthe hvneotpurohase, j vifto usad Inanxeruxeralherfhanfhatexprassadkxthiscertificate,anddependingon the amountoltaxevaded,the otlensemaynrnge from a Class C misdemoanor to a fotony of the second degree. r411(fiGhl ,� Take (?aln hs0re Finance Director/CFO NOTE: This uedificahx cannol be issued for the pumbaso,lease,or rental of a motorvehida. THIS CERTIRCATE DOES NOT REQUIRE A NUMBER TO BE VALID, Sales and use Tax`-xemptlon Numbere or"Tax Exempt"Numbers do not exist, This certificate should be furnished to the supplier. Do aj send the completed certificate to the Comptroller of Public Accounts. Agreement between the City of Fort Worth 25 And Cummings Electric,LP Vendor Services Agreement EXHIBIT E AFFIDAVIT OF BILLS PAID AFFIDAVIT OF BILLS PAID Date: Affiant(Artist): Purchaser(City of Fort Worth): Property(Artwork Site): Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers,and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person,firm,or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant(as listed in contract): SUBSCRIBED AND SWORN TO before me,the undersigned authority,on this the day of 20_ Notary Public,State of Texas Print Name Commission Expires Agreement between the City of Fort Worth 26 And Cummings Electric,LP Vendor Services Agreement EXHIBIT F VERIFICATION OF SIGNATURE AUTHORITY Consultant hereby agrees to provide City with independent audit basic financial statements, but also the fair presentation of the financial statements of individual funds. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind Consultant and to execute any agreement, amendment or change order on behalf of Consultant. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Consultant. City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Consultant.Consultant will submit an updated Form within ten(10) business days if there are any changes to the signatory authority. City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Consultant. 1. Name: Position: Signature 2. Name: Position: Signature 3. Name: Position: Signature Name: Signature of President/ CEO Other Title: Date: Agreement between the City of Fort Worth 27 And Cummings Electric,LP Vendor Services Agreement