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HomeMy WebLinkAboutContract 59764CI`IY SECRETW '1 %MZACT NO. 5q?(V q-00MM , PROFESSIONAL SERVICES AGREEMENT BETWEEN JACK MACKIE AND THE CITY OF FORT WORTH This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and studioMackie, LLC, acting by and through Jack Mackie (the "Artist"), its Owner, located at 8510 Main Street A202, Edmonds, Washington, 98026, each individually referred to herein as a "party" and collectively referred to as the "parties." City has designated the Arts Council of Fort Worth and Tarrant County, Inc. d/b/a Arts Fort Worth to manage this Agreement on its behalf ("Contract Manager"). The Contract Manager shall act through its designated Public Art Collection 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, City provides oversight, and annual funding for Collection Management to maintain and repair artworks in the Fort Worth Public Art Collection; WHEREAS, on January 15, 2013, the City commissioned Artist to design, fabricate, and install a metal sculpture with an integrated clock titled Trout Lily Street Clock (Artwork), a depiction attached hereto as Exhibit "A" and incorporated for all purposes incident to this Agreement, at the East Transfer Station, owned by Trinity Metro and located at 4100 East Lancaster Avenue, Fort Worth, Texas 76103, which was executed under City Secretary Contract (CSC) #44062 (Artwork Commission Agreement); WHEREAS, the artwork was vandalized on or about March 16, 2023, and requires major repair and restoration; WHEREAS, the Risk Management Division of the City of Fort Worth filed subrogation claim #1PC06090 on March 21, 2023; WHEREAS, in accordance with Section 8.3(a) of the aforementioned Artwork Commission Agreement, Contract Manager provided the Artist with the opportunity to be involved with the restoration of the Artwork. Artist responded affirmatively and has provided a preliminary Proposal for Restoration Consulting Services attached hereto as Exhibit "B" and incorporated for all purposes incident to this Agreement; WHEREAS, the City and Artist wish to set out the terms and conditions for these consultation services; NOW, THEREFORE, the City and Artist, for and inconsideration 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: 1. This Agreement for Professional Services 2. Exhibit A — The Artwork Professional Service Agreement between City of Fort Worth and studioMackie, LLC OFFICIAL RECORD Execution Copy CITY SECRETARY Page I of 17 FT. WORTH, TX 3. Exhibit B — Proposal for Restoration Consulting Services 4. Exhibit C — Compensation and Payment Schedule 5. Exhibit D — Texas Sales and Use Tax Exemption Certificate 6. Exhibit E — Affidavit All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Agreement shall control. The term "Artist" shall include the Artist, and his officers, agents, employees, representatives, servants, Artists, or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. SCOPE OF SERVICES. 1.1. Artist hereby agrees to provide the City with professional services to assess the damage to the Artwork and develop a plan, in consultation with subconsultants, to repair and/or restore the Artwork as outlined in this Scope of Services and Exhibit `B" (Proposal for Restoration Consulting Services). The Artwork is owned by the City of Fort Worth. As additional work to that set out in Section 1.2 below, and additionally compensated under the same rates set out in Exhibit B, Artist, if requested by City, will also assist with a subsequent review of the repairs and corrections, if necessary. 1.2. Artist shall assess existing conditions and finalize a repair plan based on the methods and materials proposed in the Artist's Proposal for Restoration Consulting Services. If Artist identifies any significant changes to the Proposal for Restoration Consulting Services necessary to restore the Artwork, Artist shall submit a Final Repair Proposal to the Contract Manager for review and approval in advance of repairs. 1.3. 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 Artist with the certificate for use by Artist in the fulfillment of this Agreement in substantially the same form as Exhibit "D," Texas Sales and Use Tax Exemption Certificate. 1.4. Additional services, supplies, rentals, or deliverables must be approved by the City in writing in advance of performance. Artist will only be compensated for any such additional services or reimbursed as agreed to by the parties. 2. TERM. This Agreement shall commence upon the date that both the City and Artist have executed this Agreement ("Effective Date") and end once City makes final payment to Artist for all services provided under this Agreement, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Artist an amount not to exceed FIFTEEN THOUSAND DOLLARS AND ZERO CENTS ($15,000.00) in accordance with the provisions of this Agreement, Exhibit B, and Exhibit C. If any conflict exists between Exhibit B and Exhibit C, the terms of Exhibit C shall control followed by Exhibit B. Payment from the City to the Artist shall be made on an invoice basis following receipt of a signed invoice with adequate documentation provided at submission of invoice, all in a form acceptable to Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 2 of 17 the City. Artist shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Artist not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Convenience. The City or Artist may terminate this Agreement at any time and for any reason by providing the other party with at least 30 days' written notice of termination. 4.2. Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Artist 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 the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3. Breach. Subject to Section 27 herein, either party may terminate this Agreement for breach of duty, obligation, or warranty upon exhaustion of all remedies set forth in Section 27. 4.4. Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the expiration date, the City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Artist shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Artist has received access to City information or data as a requirement to perform services hereunder, Artist shall return all City -provided data to the City in a format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1. Disclosure of Conflicts. Artist hereby warrants to the City that Artist has made full disclosure in writing of any existing or potential conflicts of interest related to Artist's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Artist hereby agrees immediately to make full disclosure to the City in writing. 5.2. Confidential Information. Artist, for itself and its officers, agents, and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3. Unauthorized Access. Artist 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. Artist shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Artist shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Artist agrees that the City shall, until the expiration of three (3) years after final payment under Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 3 of 17 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 of the Artist involving transactions relating to this Contract at no cost to the City. Artist agrees that the City shall have access during normal working hours to all necessary Artist facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Artist reasonable advance notice of intended audits. Artist further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, 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 of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Artist 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 the City. Subject to and in accordance with the conditions and provisions of this Agreement, Artist 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, Artists, and subcontractors. Artist acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants, and employees, and Artist, its officers, agents, employees, servants, Artists, and subcontractors. Artist further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Artist. It is further understood that the City shall in no way be considered a co -employer or a joint employer of Artist or any officers, agents, servants, employees, or subcontractors of Artist. Neither Artist, nor any officers, agents, servants, employees, or subcontractors of Artist shall be entitled to any employment benefits from the City. Artist 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 subcontractors. 8. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY. ARTIST SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE, AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF ARTIST, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.2. INDEMNIFICATION. ARTIST HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO ARTIST'S BUSINESS AND ANY RESULTING LOST PROFITS), AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 4 of 17 OMISSIONS OR MALFEASANCE OF ARTIST, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Artist shall not assign or subcontract any of its duties, obligations, or rights under this Agreement without the prior written consent of the City; however, City expressly grants Artist the right to subcontract engineering services. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Artist under which the assignee agrees to be bound by the duties and obligations of Artist under this Agreement. The Artist and assignee shall be jointly liable for all obligations of the Artist under this Agreement. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Artist referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Artist under this Agreement as such duties and obligations may apply. The Artist shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Artist shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1. Coverage and Limits for Artist. (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate 10.2. Coverage and Limits for Artist's Subcontracted Engineer. (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Professional Liability $1,000,000 Each Occurrence $1,000,000 Aggregate 10.3. General Requirements. (a) The commercial general liability and professional liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) A minimum of thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (c) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 5of17 Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of City's Risk Management. If the rating is below that required, written approval of City's Risk Management is required. (d) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (e) Certificates of Insurance evidencing that the Artist has obtained all required insurance shall be delivered to the City prior to Artist proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES, AND REGULATIONS. Artist agrees that in the performance of its obligations hereunder, it will 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 the City notifies Artist of any violation of such laws, ordinances, rules, or regulations, Artist shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Artist, for itself, its personal representatives, assigns, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Artist'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 Artist, its personal representatives, assigns, subcontractors, or successors in interest, Artist agrees to assume such liability and to indemnify and defend the City and hold the 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: City of Fort Worth Attn: Fernando Costa, Assistant City Manager 200 Texas St. Fort Worth TX 76102-6311 With Copy to the City Attorney at same address, and Martha Peters, Director of Public Art Arts Fort Worth 1300 Gendy Street Fort Worth TX 76107 14. SOLICITATION OF EMPLOYEES. studioMackie, LLC Attn: Jack Mackie, Owner 8510 Main Street A202 Edmonds, Washington 98026 Neither the City nor Artist shall, during the term of this Agreement and additionally for a period of one (1) year after its termination, solicit for employment or employ, whether as employee or independent Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 6 of 17 contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the other party. 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 / IMMUNITIES. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Artist 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 the City's or Artist'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, Fort 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. The City and Artist 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. 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 exhibits hereto. Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 7 of 17 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Artist, 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 AND ELECTRONIC SIGNATURES. 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. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 25. WARRANTY OF SERVICES. 25.1 Artist warrants that his services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty section within thirty (30) days from the date that the breach was actually known to City. Upon notice to Artist, at Artist's option, Artist shall either (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with this warranty, or (b) refund all fees paid by the City to Artist under this Agreement. This warranty section shall survive any expiration or termination of this Agreement. 25.2 If, within one year after completion of repairs, City observes any breach of warranty described in this Article 25 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 25. 25.3 If, after one year from completion of repairs, City observes any breach of warranty described in this Article 25 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) days after receipt of the notice, as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. 26. IMMIGRATION NATIONALITY ACT. Artist 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, Artist shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Artist 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 Artist employee who is not legally eligible to perform such services. ARTIST SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 8 of 17 VIOLATIONS OF THIS PARAGRAPH BY ARTIST, ARTIST'S EMPLOYEES, SUBARTISTS, AGENTS, OR LICENSEES. City, upon written notice to Artist, shall have the right to immediately terminate this Agreement for violations of this provision by Artist. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Artist has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means, to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with, this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 28. ISRAEL. If Artist has fewer than 10 employees or the Agreement is for less than $100,000, this section does not apply. Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code, 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. By signing this Agreement, Artist certifies that, if applicable, Artist's signature provides written verification to City that Artist: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 29. ENERGY COMPANIES. If Artist is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Artist 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 full-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. Therefore, to the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Artist certifies that Artist's Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 9 of 17 signature provides written verification to the City that Artist: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 30. FIRARMS AND AMMUNITIONS INDUSTRIES. If Artist is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Artist 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 full-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. Therefore, to the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Artist certifies that Artist's signature provides written verification to the City that Artist: (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. 31. TIME EXTENSIONS. The Parties may mutually agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 10 of 17 IN WrrNM WHEREOF, the parties hereto here executed this Agreement m muhVia this /A day of 2023. ACCEPTED AND AGREED: CITY OF FORT WORTH B3 aL== Fernando Costs Assistant City Manager Date: 'f� /== CONTRACT AUTHORIZATION: M&C: N/A APPROVED AS TO FORM AND LEGALITY: Form 1295: N/A ARTIST studioMackde, U.0 �--- lack Mackie, Owner CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person rrdtpoes We for the monitoring and administration of this contract, including enstnriag all performance and reporting g"ae� Cren Jd6ifer Coax, Public Art Collection Manager Arta Council of Fort Worth �4.d4�nnnn� ATTEST: GOff r ,o oiO°� 0000-A � ryT�o ° 0 a e Good.4 City I�.ftw p -c 0.-40 OFFICIAL RECORD Profeaaional ServiceAft between City of F LLC IXeeatiOD CAPY FT. WORTH, TX EXHIBIT A THE ARTWORK Trout Lily Street C I K k - BEFORE Trout Lily Street Clock — AFTER 4104 E. Lancaster Avenue, 76103 Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 12 of 17 EXHIBIT B ARTWORK RESTORATION COST ESTIMATE PROPOSAL FOR RESTORATION CONSULTING SERVICES DATE: APRIL 25, 2023 TO: FORT WORTH PUBLIC ART 1300 Gendy Street Fort Worth, TX 76107 FR: Jack Mackie, Artist studioMackie llc 8510 Main Street A202 Edmonds, WA. 98026 FWPA Proiect — Repair & Restoration of "Trout Lily Clock" - Trout Lily Clock is a sculptural street clock located at the Dunkins Transit Transfer Center, East Lancaster & Sargent Street, Ft Worth. - Damage possibly occurred during attempted theft. Resulting defacement requires restoration of the clock to working order. 1. Scope of Services Artist will assist FWPA in determining how best to efficiently and cost effectively restore the artwork. My preliminary services will be provided remotely and are meant to provide the scope and costs for restoration. - Develop steel pipe mending system with RL Woods Structural Engineers - Coordinate shipping of salvaged clock housing & parts to East Bay Clock - Conduct damage assessment with East Bay Clock Co & Displays, LLC and determine if use of salvaged clock parts is feasible; If not feasible coordinate fabrication & delivery of new clock; - Develop restoration plan and budget with local providers 2. Budget for Services: - RL Woods Engineering Fee $3,000.00 - Investigation, recovery, packing, shipping $6,000.00 - Consultation Services @$80.00 per hour $3,000.00 Total Budget for Services $12,000.00 Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 13 of 17 EXHIBIT C COMPENSATION AND PAYMENT SCHEDULE Compensation. a. The City shall pay Artist a total amount not to exceed FIFTEEN THOUSAND DOLLARS AND ZERO CENTS ($15,000.00) for all services performed, including but not limited to, consultation and engineering fees, labor, storage, packing, transit, and any costs required to assess the damage to the artwork, and to determine a restoration plan in accordance with the provisions of this Agreement. This amount is inclusive of a contingency allowance of up to $3,000.00. Artist and City may amend this Agreement to allow for additional payment if additional services are required. b. Services outlined in this Agreement are based on rates in accordance with the Artist's Proposal for Restoration Consulting Services. c. Compensation for all of Artist's services performed pursuant to this Agreement shall be made on an invoice basis supported with documentation at invoicing, with total fee, including, but not limited to, all reimbursable expenses. d. Artist will not bill City for tax pursuant to Artist's use of Exhibit D as outlined in section 1.2 of this Agreement. e. Any additional expenses not outlined in this Agreement or the attached exhibits which are incurred by Artist must be approved in writing by Contract Manager before being added to the invoice submitted to the City upon completion of services under this Agreement. 2. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof. a. TWO THOUSAND FIVE HUNDRED DOLLARS and ZERO CENTS ($2,500.00) to cover expenses related to engineering upon execution of Agreement. b. An amount not to exceed SIX THOUSAND DOLLARS AND ZERO CENTS ($6,000.00) within thirty-five (35) days after engineering documents have been approved by the Contract Manager and receipt by City of such documentation it may require concerning payment of services and materials rendered for transit of the clock to East Bay Clock Company located at 2166 Pepper Drive, Navarre, Florida 32566. c. An amount not to exceed THREE THOUSAND FIVE HUNDRED DOLLARS AND ZERO CENTS ($3,500.00) to cover Artist's consultation fees and related expenses. d. The total compensation in section l (a) of this Exhibit C includes payment for any unforeseen changes in the approved repairs from a contingency fund in an amount not to exceed THREE THOUSAND DOLLARS AND ZERO CENTS ($3,000.00) for costs associated with services that are incurred by the Artist upon (i) receipt of supporting documentation by the Contract Manager from the Artist, and (ii) approval by the Contract Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 14 of 17 Manager of the additional costs. e. Artist shall submit a signed invoice to the City's Contract Manager for payment under this Agreement within fifteen (15) days of completing services under this Agreement and include any necessary receipts. f. City shall compensate Artist in full within thirty (30) days after receipt of Artist's final invoice and all deliverables. Professional Service Agreement between City of Fort Worth and studioMackie, LLC Execution Copy Page 15 of 17 EXHIBIT D rOf-M ntiuo 0-A-lam Texas Sales and Use Tax Exemption Certification fits QerdYic t dbas naf requirs s nwnbarto be valid. dpNdMW.fimorreenq of Fort Worth, Tana ,wefts fateeraM~.. ACL &MOrRourem mw MOM we.ma.&WftMW 200 Texas Sbmet MT,�92i51T orb. stow2 roods Fort Worth, Texas 76102 I, the prtdow named Above, claim an 9>oempt w tram payment of sales and use taxes (for the waste of t Probe ilsms described below or on the altad ted order or invoice) tram: S AM ifer30ors Strati addMV Cb. Slate, ZIP Desalplbn d items to be purchased or on the attached order or inwioe: AN items. Ptrrheser M&Mj%§M that this Carlfte is cannot be used for the catches lease or remW of a nx*or Pundtssar claims eels anoWdon for the foNv &V reason: 1 utdaratand So I will be liable for payment daft stove and lord sa" or use texas -Arid- may iMsaornne dtte for bb m bgN with the provfWans of go Tax Cade arrdlbr all applic" law. funds-&WxM O iffa c rknA Wo ffw me I a pW a n aremp fttaw Wicslebdhe a aft fa 6 m ah h Ilneth6iorslattlieAh+aolPns esR a�lybe ueaddeemsrswsrad'neritre-rlhaf eupreasedfntfaieosrffeaslet anddisPandiopmMearnrMitaltexe�asd+41hsa0emasa+ap�ar�s Rom a Gags C nvadernano- to a Many of ft second d�. Tft ��rur�irr {�� t9re J Or* Finance DiradodCFD NOTE: This onntificate cannot be issued for the purchase, lease, o• rmrstel of s motor vehiie. TWS CERYPICA7E OAFS MOT REt?UM A NWgER TU DE VALO Sales and Use Tex'Exempllon Numtwe or 'Tax E.xdnpC Numbers do root lidat. TM itbum in furim" to Ow sttp frdM. DoIOS*Wdwoorttgo - eertl ceisbdMcorapbVilorofPtMafkAOMM111r. Professional Service Agreement between City of Fort Worth and studioMackie, LLC. Execution Copy Date: Affiant (Artist): Purchaser (City): Property: EXHIBIT E AFFIDAVIT OF BILLS PAID Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's Artists, 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: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 2023. Notary Public, State of Texas Print Name Commission Expire Professional Service Agreement between City of Fort Worth and studioMackie, LLC. Execution Copy FORTWORTH�`�} 4 2 n Routing and Transmittal Slip Planning & Data Analytics Department Fort Worth Public Art DOCUMENT TITLE: Vendor Services Agreement between the City of Fort Worth and Greenscape Pump Services M&C CPN CSO # DOC# DATE: TO: 1. Trey Qualls, Assistant City Attorney INITIALS DATE OUT �! j 2. ACM Fernando Costa 7 3. Jannette Goodall, City Secretary 4. 5. 6. 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 ROUTING TO CSO: ❑X Yes ❑ No Action Required: ❑ As Requested ❑ For Your Information X❑ Signature/Routing and or Recording ❑ Comment ❑ File NEXT DAY: ❑ Yes ❑ X No ❑ Attach Signature, Initial and Notary Tabs Return to: Please email a copy of the fully executed contract to: Jennifer Conn, Public Art Collection Manager, Arts Fort Worth at jconn(a�artsfortworth.org Thank you!