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HomeMy WebLinkAboutContract 59772CITY SECRETARY CONTRACT NO. PROFESSIONAL SERVICES AGREEMENT_ BETWEEN ESSENTIAL LIGHT DESIGN STUDIO, LLC 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 Essential Light Design Studio, LLC (the "Contractor"), a Limited Liability Company, located at 4104 Sperry Street, Dallas, TX 75214, acting by and through Jill Klores, its duly authorized agent, 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. DB/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 October 29, 2019, City entered into a Professional Services Agreement with Contractor to provide professional lighting assessment and design services and an implementation budget for upgrades to a public art installation titled Avenue ofLight ("Artwork"), a depiction of which is attached hereto as Exhibit "A" and incorporated herein for all purposes, located on West Lancaster between Lamar Street and Commerce Street in downtown Fort Worth, Texas 76102, which was executed under City Secretary Contract 453002; WHEREAS, on August 16, 2021, the Fort Worth Art Commission approved the Contractor's recommendations for lighting upgrades and the implementation project and the Avenue of Light Technology Upgrades project was approved in the Fort Worth Public Art Fiscal Year 2022 Annual Work Plan adopted by the Fort Worth City Council on November 3, 2021 (M&C 21-0830); WHEREAS, the Artwork is sited in the medians on the Lancaster Corridor Parkway and the City entered into an agreement for landscaping, irrigation, and site work with Cole Construction (City Secretary Contract 458778) on November 29, 2022, and landscaping work is expected to be completed in late summer of 2023; WHEREAS, as part of the implementation of technology upgrades to the Artwork, Contractor will provide professional consultation services detailed in her proposal attached hereto as Exhibit `B" and incorporated herein for all purposes; WHEREAS, the City and Contractor wish to set out the terms and conditions for these consultation services; NOW, THEREFORE, the City and Contractor, for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: PSA Essential Lighting Design Studio, LLC OFFICIAL RECORD Execution Copy CITY SECRETARY FT. WORTH, TX CONTRACT DOCUMENTS: The Agreement documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — The Artwork 3. Exhibit B — Proposal 4. Exhibit C —Sculpture Lighting Upgrades (September 25, 2021) (excerpted) 5. Exhibit D — Compensation and Payment Schedule 6. Exhibit E — Texas Sales and Use Tax Exemption Certificate 7. Exhibit F — Affidavit 8. Exhibit G — Insurance 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 "Contractor" shall include the Contractor, her officers, agents, employees, representatives, servants, contractors, and subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. SCOPE OF SERVICES. 1.1. Contractor hereby agrees to provide the City professional consultation services before, during, and after lighting and equipment upgrades are installed for a public artwork titled Avenue of Light by Cliff Garten Studio. The Artwork is owned by the City of Fort Worth and comprised of six independent, stainless -steel sculptures sited in medians on West Lancaster Avenue in downtown Fort Worth ("Site") as depicted in Exhibit A. The Artwork and Services are further described in Contractor's proposal as outlined in this Scope of Services and Exhibit "B" ("Proposal"). 1.2. Contractor agrees to be available to Contract Manager and City's Electrical Contractor by phone or in person before and during the implementation. City's Electrical Contractor will perform all work based on the Contractor's Sculpture Lighting Upgrades (September 25, 2021) attached and incorporated herein as Exhibit "C." 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 Contractor with the certificate for use by Contractor in the fulfillment of this Agreement in substantially the same form as Exhibit "D," Texas Sales and Use Tax Exemption Certificate, which is attached hereto and incorporated herein for all purposes. 1.4. Contractor shall provide Insurance in accordance with Section 10 of this Agreement. 1.5. Contractor shall coordinate with Contract Manager to schedule work at the Site. 1.6. Additional services, supplies, rentals, or deliverables must be approved in writing in advance of performance. Contractor will only be compensated for any such additional services or reimbursed as agreed to by the parties. 1.7 Contractor shall be responsible for the payments of all expenses incurred that pertain to PSA Essential Lighting Design Studio, LLC 2 Execution Copy services being performed under this Agreement. 1.8. Contractor shall make timely payments to all persons and entities supplying labor, materials, services, or equipment for the performance of this Agreement. Contractor shall furnish the City with 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 "F." 2. TERM. This Agreement shall commence upon the last date that both the City's and Contractor's authorized agents have executed this Agreement ("Effective Date") and end once City makes final payment to Contractor for all services provided under this Agreement, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Contractor an amount up to TEN THOUSAND DOLLARS AND ZERO CENTS ($10,000.00), in accordance with the provisions of this Agreement, Exhibit "B," and Exhibit "D." 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 Contractor. Payment from the City to the Contractor 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 the City. Contractor 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 Contractor not specified by this Agreement unless the City first approves such expenses in writing. If any conflict exists between Exhibit "B" and Exhibit "D," the terms of Exhibit "D" shall control, followed by Exhibit "B." 4. TERMINATION. 4.1. Convenience. The City or Contractor 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 Contractor 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 Contractor for services actually rendered up to the effective date of termination and Contractor 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, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as a requirement to perform services hereunder, Contractor shall return all City provided data to the City in a format deemed acceptable to the City. PSA Essential Lighting Design Studio, LLC Execution Copy 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1. Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to the City in writing. 5.2. Confidential Information. Contractor, 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. Contractor 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. Contractor 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, Contractor 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. Contractor agrees that the 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 of the Contractor involving transactions relating to this Contract at no cost to the City. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor 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 Contractor 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, Contractor 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, contractors, and subcontractors. Contractor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants, and employees, and Contractor, its officers, agents, employees, servants, contractors, and subcontractors. Contractor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Contractor. PSA Essential Lighting Design Studio, LLC Execution Copy It is further understood that the City shall in no way be considered a co -employer or a joint employer of Contractor or any officers, agents, servants, employees, or subcontractors of Contractor. Neither Contractor, nor any officers, agents, servants, employees, or subcontractors of Contractor shall be entitled to any employment benefits from the City. Contractor 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. CONTRACTOR 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, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.2. INDEMNIFICATION. CONTRACTOR 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 PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'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 OMISSIONS, MALFEASANCE, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.3. COPYRIGHT INFRINGEMENT. Contractor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any,patent, copyright, trade secret, or similar property right arising from City's use of the Work in accordance with this Agreement. So long as Contractor bears the cost and expense of payment for claims or actions against City pursuant to this section, Contractor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Contractor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement, City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Contractor shall fully participate and cooperate with City in defense of such claim or action. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses shall not eliminate Contractor's duty to indemnify City under this Agreement. If the Work or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Contractor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Work; or (b) modify the Work to make it non -infringing, provided that such modification does not materially adversely affect City; or (c) replace the Work with equally suitable, compatible, and functionally equivalent non -infringing Work at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Contractor, terminate this Agreement PSA Essential Lighting Design Studio, LLC Execution Copy and refund to City the payments actually made to Contractor under this Agreement. 9. ASSIGNMENT AND SUBCONTRACTING. Contractor 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 Contractor 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 Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and assignee shall be jointly liable for all obligations of the Contractor under this Agreement. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. The Contractor shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Contractor shall provide the City with a waiver of insurance, attached as Exhibit "G." 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES, AND REGULATIONS. Contractor 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 Contractor of any violation of such laws, ordinances, rules, or regulations, Contractor shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Contractor, for itself, its personal representatives, assigns, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Contractor'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 Contractor, its personal representatives, assigns, subcontractors, or successors in interest, Contractor agrees to assume such liability and 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 Street Fort Worth TX 76102-6311 Facsimile: (817) 392-8654 PSA Essential Lighting Design Studio, LLC Execution Copy Essential Lighting Design Studio, LLC Attn: Jill Klores, Partner 4104 Sperry Street Dallas, TX 75214 Facsimile: (__) 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. Neither the City nor Contractor 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 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 Contractor 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 Contractor'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 Contractor 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 PSA Essential Lighting Design Studio, LLC 7 Execution Copy 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 rule 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. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument 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 Contractor, 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. Contractor 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 Contractor, at Contractor's option, Contractor 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 Contractor under this Agreement. This warranty section shall survive any expiration or termination of this Agreement. 26. IMMIGRATION AND NATIONALITY ACT. Contractor 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, Contractor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor 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 Contractor employee who is not legally eligible to perform such services. PSA Essential Lighting Design Studio, LLC 8 Execution Copy CONTRACTOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONTRACTOR, CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Contractor, shall have the right to immediately terminate this Agreement for violations of this provision by Contractor. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Contractor 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. TIME EXTENSIONS. The Parties may mutually agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 29. ISRAEL. If Contractor is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Contractor 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 Contractor is considered a "company," by signing this Agreement, Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. PSA Essential Lighting Design Studio, LLC Execution Copy 30. ENERGY COMPANIES. If Contractor is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Contractor 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. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Contractor certifies that Contractor's signatureprovides written verification to the City that Contractor. (I) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 31. FIREARMS AND AMMUNITIONS INDUSTRIES. If Contractor is a company with ten (10) or more full-time employees and if this Agreement is for $100,000 or more, Contractor 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 $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity," and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Contractor certifies that Contractor's signature provides written verification to the City that Contractor. (I) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. PSA Essential Lighting Design Studio, LLC 10 Execution Copy IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this 184L day of •T , 2023 ACCEPTED AND AGREED: CITY OF FORT WORTH: By: Fernando Costa Assistant City Manager Date: `%l$�2©23 — 1 CONTRACT AUTHORIZATION: M&C: N/A APPROVED AS TO FORM AND LEGALITY: By: Q Trey Qualls, Assistant City Attorney Form 1295: N/A ESSENTIAL LIGHTING DESIGN STUDIO, LLC By: 1 71 Jill Mores Authorized Agent Date: 14 July 2023 CONTRACT COMPLIANCE AGER: By signing, I acknowledge t am the person responsible for the monitoring and admon of this contract, including ensuring all performance and rein requirements. Jennifer Conn, PublCollection Manager Arts Fort Worth ATTEST: 4By: ooda113Cinnej4-e City S retary No M&C Required PSA Essential Lighting Design Studio, LLC Execution Copy S OFFICIAL RECORD CITY SECRETARY FT WORTH, TX EXHIBIT A THE ARTWORK 4% V 4 9 4t 0 490 0 0& dik Avenue of Light Site Plan (Yellow marks sculpture locations) Cliff Garten Studio Essential Light Design Studio, LLC — Fee Proposal — Fort Worth Avenue of Light —CA Services— Page 2 EXHIBIT B PROPOSAL essential light V4jpw design studio Fee Proposal Essential Light Design Studio, LLC 3027 Clover Street Dallas, Texas 75226 Date — 17 January 2023 Project — Avenue of Light, Re -lighting Client — Arts Council of Fort Worth 1300 Gendy Street Fort Worth, TX 96107 Scope — Per RFP from Jenny Conn, to include construction administration services for the lighting design of this project. Design Phases Included - - GMP/Bid Phase - Construction Administration - Post Construction including Aim and Tune of Adjustable Fixtures and Lighting Controls Essential Light Design Studio, LLC — Fee Proposal — Fort Worth Avenue of Light — CA Services — Page 3 GMP/Bid Phase to include — Evaluation of electrical sub -contractor's bids against budget obtained at the end of Construction Documents. Assistance with pricing review and breakouts. Since ELDS will have budgeted the developed design, we will have bid expectations. If these are exceeded, we will sit down with the client and bidding contractor(s) to determine the discrepancies. Addenda and sketch clarifications as required for constructability of the design as drawn. GMP/Bid includes up to (2) meetings, inclusive of WebEx style meetings. Construction Administration to include — Attendance at one pre -construction meeting. Review of final lighting fixture submittals. This includes a review of light fixtures and any associated shop drawings. Responses to requests for information. Pay app review to include review and feedback to client regarding contractor's applications for payment that concern lighting materials/labor within ELDS scope. Up to three site visits for coordination, review, inspection, and/or punch list. Note: All dimming/control systems must be installed by professional, certified installers and must be operational prior to scene programming. Any time spent troubleshooting any component other than scene programming is considered an Additional Service. Aim and Tune to include — Final aiming for adjustable/aimable lighting equipment. A minimum of two weeks' notice is required to schedule this service and all construction must be complete with all components of the lighting and dimming system fully operational. A minimum of one full evening (up to 8 hours, after sunset) must be scheduled to complete this service. The electrical contractor must provide a minimum of two electricians familiar with the project to be on site with the lighting designers for the duration of this service. The electrical contractor is responsible for providing ladders and opening access panels in order to access every adjustable light fixture installed. This evening will cover aiming/adjusting as well lighting control programming and settings. Essential Light Design Studio, LLC — Fee Proposal —Fort Worth Avenue of Light —CA Services —Page 4 Additional Services — Additional Services will be performed only as requested by client. Prior to commencement, any additional service and associated fee will be listed in a work authorization request to be signed by client, per procedure as outlined in RFP. Such services may include: - Meetings and/or jobsite visits over and above those specifically listed above. - LEED/Green Building/Green Globes documentation/meetings. WELL Building documentation/meetings. - Lighting design services (Schematic Design, Design Development, or Construction Documents) - Updates after construction documents are complete due to conflicts with MEP equipment, AN equipment, security and/or landscape changes. - Specification, layout, and/or calculation for light pole luminaires normally supplied/and or controlled by the local electric utility. - Additional light fixtures submittal review over and above the one listed above. - Design and/or fixture selection changes due to contractor not ordering equipment in a timely manner. And/or additional time spent expediting lead times, and staying on top of reps/factories to ensure quick delivery due to late orders. - Photorealistic or marketing style renderings. - Lamp maintenance manuals or restocking recommendations. - Light fixture/controls materials management. - Any time due to lighting control system installation, coordination or troubleshooting. All lighting control (dimming/scene control) systems must be installed by professional, certified installers and must be operational prior to scene or button programming. Any time spent troubleshooting components other than scene/button programming is an Additional Service. Fees for services as listed above — TOTAL - $ 10,000 Reimbursables — Include plot reproductions, courier charges, travel (airfare, hotel, car rental, parking), and expense of additional coverage or limits, including professional liability insurance, requested by the Client in excess of that normally carried by Essential Light Design Studio, LLC. All reimbursables are charged per expense incurred, no markup. Hourly Rates CA and Aim & Tune billing and any Additional Services - Principal/Senior Designer: $210/hour, Junior Designer: $175/hour Essential Light Design Studio, LLC — Fee Proposal — Fort Worth Avenue of Light — CA Services — Page 5 Terms of this fee proposal/contract — This offer is good for 60 days from date of this proposal. The undersigned agrees to make payment in full to be received by Essential Light Design Studio, LLC on or before the due date. Invoices are issued monthly. Terms are NET 30. Past due invoices are subject to 1.5% interest per month on unpaid balance. This proposal does not offer or replace Architectural or Electrical Engineering Services. Any recommendations by lighting designer concerning these disciplines are for the review and use of the Client, Architect, Engineer, or Contractor to incorporate into their designs as they see fit. The Client and/or Architect is responsible for the overall design of the project including the oversight and coordination of all consultants' work. The Client shall provide full information regarding requirements for the project. The Client shall furnish information and required documents (architectural backgrounds, floor plans, ceiling plans, elevations, sections and details) as expeditiously as necessary for the orderly progress of lighting design services, and Essential Light Design Studio, LLC (ELDS) shall be entitled to rely on the accuracy and completeness of these. The Client shall render decisions in a timely manner pertaining to documents submitted by ELDS in order to avoid delay in the progress of lighting design documents and deadlines. This contract provides design services only. The project owner/developer is responsible for securing the services of installation contractors as required to install and warrant specified lighting and control systems. Selection of the installation contractor is the responsibility of the client or others. Owner of lighting design system is solely responsible for maintenance and upkeep of lighting and control systems. Signatures — The undersigned agrees to the terms of this agreement on behalf of the Client: Agreed to and accepted this day of Client Signature Name I Title , 2023. -- 14 July 2023 Jill Klores, Essential Light Design Studio, LLC, Member Date Essential Light Design Studio. LLC— Fee Proposal —Fort Worth Avenue of Light— CA Services —Page 2 EXHIBIT C SCULPTURE LIGHTING UPGRADES (SEPTEMBER 25, 2021) Excerpted to include Project Narrative and Budget Only Fort Worth Avenue of Light Sculpture Lighting Upgrades 25 September 2021 The current lighting and lighting controls for the Fort Worth Avenue of Light sculptures has passed its useful life and is in need of replacement. The recommendations include one -for -one replacement of light fixtures on the sculpture plinth and removal of the current small, angled bollards that flank each plinth and the addition of lighting near the base of each sculpture, just off the paving and in the landscape that borders it. The controls are to be replaced and the main gear housed in either of the two sculptures located at the intersection of West Lancaster Avenue and Throckmorton Street. The decision as to which one will be made in conjunction with the City or Fort Worth IT department. The intention is to connect to the City's IT infrastructure via a nearby building. If this does not come to fruition, and wireless router is included in the Bill of Materials. The lighting controls will be programmed to include a number of requested shows on an automated schedule, with the ability to select/override shows as desired by the City. See attached documentation for a thorough description. For questions or clarifications please contact Essential Light Design Studio, Jill Klores, iiIICcD.essentiallight.com, 972-415-8655. Essential Light Design Studio — Fort Worth Avenue of Light — Sculpture Lighting Upgrades — 25 September 2021 Essential Light Design Studio, LLC — Fee Proposal— Fort Worth Avenue of Light— CA Services — Page 3 4W essential light W%pP design studio Fort Worth Avenue of Light Updated Lighting Design 10 November 2020 Current Conditions: At some sculptures none of the lighting is currently working, at others a few fixtures are on, and at one all lights are working. However, the output of these fixtures is fairly weak, and it is expected that, if the fixtures used were rated at 50,000 hours, they are nearing that timeframe now. There are not cutsheets or other technical data available for the currently installed fixtures, for their generation at the time of installation, to give us information about the rated life, and if they were rated to L70 (70% of output remains after the stated operational hours) or L50 (50% of output remains) as both measures were commonly used about 10 years ago. It is also unknown as to what the maximum temperature rating of the existing fixtures are, as some are rated to 250C and some to 40°C, and more recently to 50°C. Temperatures in excess of that to which the fixture is rated can reduce the output more quickly over time. It is assumed that there is a 20A circuit at each sculpture. And that conduit currently runs form each sculpture base to the four corners of each plaza where ground lights were originally installed and also to bollard style fixtures installed after the original installation. Update to Lighting Design/Installation: Based on the outcome of the mock-up 30 July, 2020, the updated lighting design for the sculptures takes a three -tiered approach. A full luminaire replacement approach is suggested for light fixtures on the sculptural plinth, a removal of the lighting at the mini lighting plinths/bollards, and an addition at the ground plane. Please note all fixtures are rated at 60,000 to L70 at 500C and are RoHS compliant. Essential Light Design Studio — Fort Worth Avenue of Light — Lighting Mock -Up — 30 July 2020 The first tier will include (6) GVA FL50 fixtures with three (3) of these on the east side and three (3) on the west side of the sculpture. They are positioned just outside the concrete area that surrounds the sculpture plinth. The outer four corner fixtures are used to illuminate the sculpture. The center two fixtures illuminate each side of the sculpture plinth. Reference sketch below for typical layout. Note: a concealing/protective shroud was considered but not recommended by the Fort Worth Art Commission. 4 Tier 1 Lighting — Ground Mounted Types G1 & G2 Essential Light Design Studio — Fort Worth Avenue of Light — Lighting Mock -Up — 30 July 2020 This is mounted via the access panel and requires the removal of the steel bar to place this fixture. This fixture will be fitted with the shorter mounting yoke to allow for easy access and removal of this fixture for maintenance and to allow more clearance in the cabinet. Contractor will remove and replace an existing welded steel shelf in the plinth cabinet to all for a single GVA FL100 fixture with 7 degree beam spread to be securely mounted (see Elevation/Section.) Reference illustration below. ra Tier 2 Lighting — Center mounted Type Essential Light Design Studio — Fort Worth Avenue of Light — Lighting Mock -Up — 30 July 2020 The third tier of lighting will be four (4) GVA FL50 fixtures recessed into the existing concrete recesses located on the top of the plinth. These will be equipped with a 7-degree beamspread and will require a modified shorter mounting yolk to fit in the existing recesses. Because of the twisting movement of the sculpture, these fixtures will need to be powered up and located correctly on site before being permanently attached to the concrete plinth. See below illustration. Tier 3 Lighting — Plinth mounted Type P1 Essential Light Design Studio — Fort Worth Avenue of Light — Lighting Mock -Up — 30 July 2020 Current Lighting Controls Conditions: The current lighting control system is also not working properly. The exact reason is unknown. Forensics could be conducted, but regardless, based on the age of the system and the relative cost of electronics replacement gear, it is recommended that the system be replaced with a new wireless DMX lighting controls system. Update to Lighting Controls: It is recommended that an updated wireless DMX system with an ETC Mosaic processor be provided to individually control each of the individual fixtures at each of the sculptures, and to program and play back preprogrammed show content throughout the year. To do this, a DMX transmitter will be required at the location of the Mosaic processor. DMX receiver antennas will be required at each sculpture plinth and nearby light standards (street light poles.) It is recommended that the DMX main controls gear be located in the sculpture plinth nearest the middle of the installation so that the radio signal may branch to reach to each sculpture. The range of this device is 100 meters. Because the installation spans over 750 meters, multiple transmitters and receivers will be required. The electrical draw for the fixtures and controls per location is expected to be under 12A, well within the 20A available at each sculpture (per CoFW information.) Essential Light Design Studio — Fort Worth Avenue of Light — Lighting Mock -Up — 30 July 2020 Fort Worth Avenue of Light Sculpture Lighting Upgrades Final Updated Lighting Design & Construction Documents and Final Implementation Budget 23 August 2021 The below lighting design plan and budget was presented and approved by the Fort Worth Art Commission on 16 August 2021. The Cost Estimate is as follows: • $114,700 66 Ughtfixhxes • $ 77,750 ContrdsN*Sk sGeer/Commissionirq/Progromming • $ 36,200 Electrical Contractor • $ 41ZO 18% escalation contingency (on materials & labor) . $ 45,730 20% project contingency • TBD Permits and Fees — as required • $ 10,000 3.000 Lighting Consultant (Essential Light Design Studio) Wireless Setup Access Allowance • S . $328,590 and Total Cost Estimate Note: The Wreless Setup and Access Allowance could be EITHER a routerproViided with the controls (then a cellular account would need to be maintained for remote access), or a Cl* provided LANIMN. We are wodcing on the latter, but have included pricing for the former in the budget as it is likely the higher cost option with a ongoing cellular account cost. The number above estimates the cost for 3-years of service. Documents included for Construction (Bid and Install): • Lancaster Avenue Lighting and Landscaping Plan —for the indication of lighting at each sculpture, which sculpture will house the lighting controls, and which street4de poles will host the wireless n3ceiversAransmitters, we used the landscaping PDF we were provided (in absence of a CAD plan for the area.) • Lighting equipment schedule (with contractor instructions) • Cut streets Essential Light Design S ft —Fart Worth Avenue of Light — Lighting improvements — Final CDs —23 August 2020 PSA Essential Lighting Design Studio, LLC Execution Copy EXHIBIT D COMPENSATION 1. Compensation. a. Total compensation to Contractor under the Agreement shall be in an amount up to TEN THOUSAND DOLLARS AND ZERO CENTS ($10,000.00), which shall constitute full compensation for any and all costs associated with the Agreement, including, but not limited to consultation and final lighting design and all other services performed and materials furnished by Contractor under this Agreement. Contractor and City may amend this Agreement to allow for additional payment if additional services are required. b. Contractor will bill City for equipment, materials, any other supplies, and shipping and handling (collectively "Items") ordered by Contractor at the actual rate for the Items. Contractor will not bill City for tax pursuant to Contractor's use of Exhibit "E" as outlined in this Agreement. c. Any additional expenses not outlined in this Agreement or attached exhibits that are incurred by Contractor 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. d. Compensation for all of Contractor's services performed pursuant to this Agreement shall be made on an invoice basis. e. Contractor 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 Contractor in full in thirty (30) days or less after receipt of Contractor's final invoice and all deliverables. PSA Essential Lighting Design Studio, LLC Execution Copy EXHIBIT E TAX EXEMPTION CERTIFICATE *%faasre.ao plw*lsa Texas Sales and Use Tax Exemption Certification TMs cwftefe does rid + gLft a nwnbw4D by wWd. rwwns al pwe.rer. senar.eerx�r Cft of Fort Worth, Texts >veo... tse..ea�.+r e.a PAe�. �Rewe ew�y rMo�w f�ne.aftb awl T00 TeX" Sweat $17-M41SIT d—w' Mwwrw CM% Fart Werth, Taxes M02 1, the PUWWW rtawned ebwe, dOM en $314110tioq (MM payment of tales and use taxes (For On ptwrcl4*e d undue No ms dewAbed below or on the aMadied Qrdsr or Invoice) *w aser MV $aatt sadrasa CFr, Stth, apcAl-- DawfoWn d ilsrns 10 to Pordwerd a on Me alfsohed ceder or Invoice: AN On Pwr dmw jft_NddSs dart ft tale am—W be Wed for fbe rawbo e. fusee a venial afa molar teebin•Je. Purchaw deuce Nk exarrnprion for the f mft reason: 1 undwdwW OW 1 vA be hole for pays w dad store and bcaw e4s or uw Itwrtt alrkh stay hwnoerus Olwe br f/N1s� 1peatrr111i wMr the proMons of the Tex Code ardW A apphedis ttw. lv�olsrs�laarllhial'�ainlrafaAMraedoptrean�lofhs Ihaftls�ee:atAN�iwarofpladwll tdlbewadhamarrearaererBranMesfeupresaedhrorfscerldMl ar�rldeiaaneiraaaiY�araawfa/Earwmde4whaaderwateege from a goes C mbderneewar wb a Felony d Mice aeaard degree. a+rdwrer TOO aere ;�„ ►Fkwm olietaaMCFO rr(tr�lq NOTE: Ms oei froab Cannot bo issued For V* purdme, (ease, or r a of e moor vd*1e. /1MS CER nRCATE DOES NOT REOUNff A f11JNI W TO IFE VAlJ®. sales ao4 use Tax `EmmpOm Nwnb-e for Ism Exanpt' Na 6m do not awllet. This cer2ftats should be bAyA shed to Nre snppNer. Do 0o!Bred do eompke eardf r:ala to the CosmptroNer of PMW Accllnwfs. PSA Essential Lighting Design Studio, LLC Execution Copy Date: Affiant (Contractor): Purchaser (City): Property: EXHIBIT F AFFIDAVIT OF BILLS PAID 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: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 20_. Notary Public, State of Texas Print Name Commission Expires PSA Essential Lighting Design Studio, LLC Execution Copy EXHIBIT "G" INSURANCE hmrance Regtdtmnents PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Contractor shall meet all the following insurance roquirements for this Project If Contractor subcontracts saviees, then Contractor shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence S2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: practises, 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. Baile aftoperty (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost vahre based on the latest appraised value of the Artwo&, 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 ]njmy 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' Compansation Statutory limits Employer's liability $100,000 Each aecidacboccurrence $100,000 Disease - per each employee S500,000 Bodily Injury/Disuse - 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 mquirammt does not apply to Work=' Compensation or Automobile policies. PSA Essential Lighting Design Studio, LLC Execution Copy FORTWORTH Routing and Transmittal Slip FWLab Fort Worth Public Art DOCUMENT TITLE: Professional Services Agreement between the City of Fort Worth and Essential Light Design Studio M&C CPN CSO # DOC#, DATE: TO: 1. Trey Qualls, Assistant City Attorney INITIALS�� DATE OUT14,z�L 3 2. ACM Fernando Costa 7/I8/202,3 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 ❑ No X SAME DAY: ❑ Yes ❑ No NEXT DAY: ❑ Yes XEI No ROUTING TO CSO: ❑X Yes ❑ No Action Reauired: ❑ As Requested ❑ Attach Signature, Initial and Notary Tabs ❑ For Your Information X❑ Signature/Routing and or Recording ❑ Comment ❑ File Return to: Please email a copy of the fully executed contract to: Jennifer Conn, Public Art Collection Manager, Arts Fort Worth at iconn@artsfortworth.org Thank you!