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HomeMy WebLinkAboutContract 60545CITY aECRE_TAR) c - . NO. PROFESSIONAL SERVICES AGREEMENT BETWEEN BROWN MOUNTAIN ART RESTORATION AND THE CITY OF FORT WORTH FOR PUBLIC ART MAINTENANCE AND CONSERVATION This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation acting by and through Fernando Costa, its duly authorized Assistant City Manager, and BROWN MOUNTAIN ART RESTORATION ("Conservator"), a sole proprietorship, located at 2809 N. Henderson Avenue, Dallas, Texas 75206, acting by and through Laura Pate, its owner, each individually referred to 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 ("Contract Manager") to manage this Agreement on its behalf. 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, the City has provided stewardship and funding for the maintenance and conservation of artworks included in the Fort Worth Public Art Collection ("Collection"); WHEREAS, on September 25, 2023, the Contract Manager conducted an informal request for qualifications seeking individuals or organizations to provide as -needed professional services to assist in maintaining the value, integrity, and authenticity of public artworks included in the Collection; WHEREAS, Conservator is an established full -service conservation firm specializing in historic and contemporary public art maintenance and conservation; WHEREAS, the Conservator submitted a response and was selected to provide non-exclusive professional maintenance, conservation, and consultation services; WHEREAS, City and Conservator desire to set out the terms and conditions under which said Work shall be provided; NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: The Agreement shall include the following: 1. This Agreement for Professional Services R t r-M.IAL RECORD 2. Exhibit A — The Request for Qualifications (RFQ) 'SECRETARY ...a .s 3. Exhibit B — Conservator's Rate and Fee Schedule s T 4. Exhibit C — Texas Sales and Use Tax Exemption Certificate k' WORTH, TX Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 1 of 23 CSO REC'D NOV 29 23 AH 10:00 5. Exhibit D — Verification of Signature Authority Form All Exhibits referenced above and 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 "Conservator" shall include the Conservator and his/her officers, agents, employees, representatives, servants, contractors, and subcontractors. 1. SCOPE OF SERVICES. 1.1 Conservator shall fully provide, or cause to be provided, with good faith and due diligence, general maintenance, conservation, and consultation services for the Collection in accordance with the terms of this Agreement ("Services"). Services shall be based on the Fort Worth Public Art Collection Management 5-Year Plan, and on an as -needed basis at the direction of the Contract Manager as part of Contract Manager's scope of work under its annual agreement with the City of Fort Worth as authorized by the Fort Worth City Council. All Services shall be carried out in accordance with fully executed addenda that set forth the specific Services to be provided, prescribed timelines, and any additional terms and conditions set forth in such addenda related to the Services. 1.2 Conservator shall provide all supplies, materials, and equipment necessary to provide deliverables required unless otherwise negotiated in advance. Conservator shall be responsible for obtaining and paying for all necessary permits and any required traffic barriers appropriate for the execution of Services. 1.3 Conservator shall coordinate scheduling of Services with the Contract Manager following the execution of any addendum. Conservator must provide Contract Manager at least three days' notice prior to the commencement of Services so that Contract Manager can notify City departments and staff to ensure that the site is accessible during the timeframe Conservator intends to work. Conservator shall not enter a site to conduct work until Contract Manager has given written notice to proceed. City shall not be liable for postponed or cancelled Services for unforeseen reasons. 1.4 Upon request by Conservator, City shall promptly furnish all site and artwork information, including fabrication and installation details, finishes and coatings, and artist recommendations as required by Conservator to the extent that such materials are available. Contract Manager shall notify City Departments and staff of pending work prior to services and secure access for Conservator. 1.5 Existing conditions related to artworks in the Collection hidden or concealed and not available for reasonable visual observation discovered during the performance of the Services will be reported promptly to the Contract Manager prior to commencing any further Services. The Contract Manager, in its discretion, shall either approve or disapprove of any recommended changes in scope. 1.6 Conservator, individually and through his/her subcontractors, shall take all necessary precautions to protect and preserve artworks in the Collection. If City determines, in its sole discretion, that Conservator or the Conservator's subcontractors have damaged artworks in the Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 2 of 23 Collection, then City shall inform Conservator, in writing, of the damage. Conservator, at his/her own expense, shall have up to thirty days from receipt of City's written notice to repair the damage to the Collection to the satisfaction of City. If Conservator fails to repair the damages to the satisfaction of City within thirty days after receipt of the notice, or within a deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining or future payment due to Conservator under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. 1.7 Conservator shall provide a written report detailing the execution of the work, including pre-existing conditions, repairs and treatments, and recommendations for future maintenance. Images of all stages shall be submitted by digital transfer or disk in concurrence with the delivery of the written report. Conservator shall comply with any request made by City pursuant to this Article 1.7 within thirty calendar days after receipt of the written request. 2. TERM. This Agreement shall take effect upon execution by the City ("Effective Date") and shall expire on September 30, 2024 ("Initial Term"). The City may, at its sole discretion, opt to renew and extend this Agreement for four additional one-year terms (October 1 through September 30 of the applicable years) (each a "Renewal Term"). Any Renewal Term shall be duly executed in writing by the parties. 3. COMPENSATION. City shall pay Conservator the hourly rates of Conservator's personnel who perform specific services under this Agreement in accordance with the provisions of this Agreement and Exhibit B (Conservator's Rate and Fee Schedule). Total payment made under this Agreement for the first year by City shall be in an annual amount not to exceed FIFTY THOUSAND DOLLARS (S50,000.00). Conservator shall not perform any additional services or bill for expenses incurred for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Conservator not specified by this Agreement unless Contract Manager first approves such expenses in writing. 3.1 Services outlined in this Agreement are based on hourly rates in accordance with Conservator's staff rate schedule, attached hereto as Exhibit B, plus reasonable expenses approved in advance by the City and supported with receipt of documentation at invoicing. 3.2 Additional services, supplies, rentals, or deliverables must be approved by Contract Manager in writing in advance of performance, and the Conservator will be compensated for any such additional services or reimbursables as agreed to by the parties. 3.3 Payment from City to Conservator shall be made based on an invoice for Services rendered following receipt by City from Conservator of a signed invoice. The invoice shall be submitted to Contract Manager no later than the 15th day following the end of the month during which services were performed. If Contract Manager and/or City requires additional documentation, it shall request the same promptly after receiving the above -described information, and the Conservator shall provide such additional documentation to the extent the same is available no later than the 15th day following the end of the month. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 3 of 23 3.4 The City is a tax-exempt organization, and no state or local sales taxes or federal excise taxes shall be due or collected. The City shall provide the Conservator a "Texas Certificate of Exemption" in substantially the same form as that attached and incorporated herein as Exhibit C for use by Conservator in the fulfillment of this Agreement. 3.5 Conservator shall be responsible for the payments of all expenses that are incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to the City, costs of all travel, and costs for the Conservator's agents, consultants, and/or employees necessary for the proper performance of the Services required under this Agreement. 3.6 In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion shall be paid. City shall exercise reasonableness in contesting any bill or portion thereof. No interest shall accrue on any contested portion of the billing until the contest has been resolved. 3.7 For contested billings, the City shall make payment in full to Conservator within sixty days of the date the contested matter is resolved. 3.8 Conservator shall make timely payments to all persons and entities supplying labor, materials, or equipment for the performance of this Agreement. CONSERVATOR SHALL DEFEND AND INDEMNIFY THE CITY FROM ANY CLAIMS OR LIABILITY ARISING OUT OF THE CONSERVATOR'S FAILURE TO MAKE THESE PAYMENTS. 4. TERMINATION. 4.1. Convenience. The City may terminate this Agreement at any time and for any reason by providing the other party with at least thirty 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 Conservator of such occurrence, and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to 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 below, 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 Oblivations of the Parties. In the event that this Agreement is terminated prior to the expiration of the stated term, the City shall pay Conservator for services actually rendered up to the effective date of termination, and Conservator 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, Conservator shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Conservator has received access to City information or data in association with the performance of services hereunder, Conservator shall return all City -provided data to the City in a format deemed acceptable to the City. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 4 of 23 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1. Disclosure of Conflicts. Conservator hereby warrants to the City that Conservator has made full disclosure in writing of any existing or potential conflicts of interest related to Conservator's services under this Agreement. In the event any conflicts of interest arise after the Effective Date of this Agreement, Conservator hereby agrees to immediately make full disclosure to the City in writing. 5.2. Confidential Information. Conservator, 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. Conservator 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. Conservator 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, Conservator 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. Conservator agrees that the City shall, until the expiration of three 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 Conservator involving transactions relating to this Contract at no additional cost to the City. Conservator agrees that the City shall have access during normal working hours to all necessary Conservator facilities and shall be provided adequate and appropriate workspace to conduct audits in compliance with the provisions of this section. The City shall give Conservator reasonable advance notice of intended audits. Conservator further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three 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 Conservator shall operate as an independent contractor as to all rights and privileges and work performed under this agreement, and not as an agent, representative, or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Conservator shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, and subcontractors. Conservator acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants, and employees, and Conservator, its officers, agents, employees, servants, and subcontractors. Conservator further agrees that nothing herein shall be Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 5 of 23 construed as the creation of a partnership or joint enterprise between City and Conservator. It is further understood that the City shall in no way be considered a co -employer or a joint employer of Conservator or any officers, agents, servants, employees, or subcontractors of Conservator. Neither Conservator, nor any officers, agents, servants, employees, or subcontractors of Conservator shall be entitled to any employment benefits from the City. Conservator 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. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY. CONSERVATOR 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 CONSERVATOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.2. INDEMNIFICATION. CONSERVATOR 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 CONSERVATOR'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 CONSERVATOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Conservator 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 Conservator 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 Conservator under which the assignee agrees to be bound by the duties and obligations of Conservator under this Agreement. The Conservator and Assignee shall be jointly liable for all obligations of the Conservator under this Agreement. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Conservator referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Conservator under this Agreement as such duties and obligations may apply. The Conservator shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Conservator 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: Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 6 of 23 10.1. Coverage and Limits for Conservator. (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate 10.2. Coverage and Limits for Conservator'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 days' notice of cancellation or reduction in limits of coverage shall be provided to the City. A minimum of ten 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 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 Manager 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 Conservator has obtained all required insurance shall be delivered to the City prior to Conservator proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES, AND REGULATIONS. Conservator 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 Conservator of any violation of such laws, ordinances, rules, or regulations, Conservator shall immediately desist from and correct the violation. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 7 of 23 12. NON-DISCRIMINATION COVENANT. Conservator, for itself, its personal representatives, assigns, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Conservator'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 Conservator, its personal representatives, assigns, subcontractors, or successors in interest, Conservator 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. Conservator: Laura Pate 2809 N. Henderson Avenue Dallas, Texas 75206 Neither the City nor Conservator shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent 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 Conservator to insist upon the performance of any term or provision of this Agreement or failure to exercise any right granted herein shall not constitute a waiver of the City's or Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 8 of 23 Conservator'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 the 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 Conservator shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any 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 had the opportunity to review and revise this Agreement and that the normal rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits attached hereto and incorporated herein. 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 Conservator, 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. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 9 of 23 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 shall be as legally binding for all purposes as an original signature. 25. WARRANTY OF SERVICES. 25.1 Conservator 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 days from the date that the breach was actually known to City. Upon notice to Conservator, at Conservator's option, Conservator 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 Conservator under this Agreement. This warranty section shall survive any expiration or termination of this Agreement. 25.2 if within one year after completion of any work performed by Conservator, City observes any breach of warranty described in this Article 25 that is not curable by Conservator, Conservator is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. 25.3 if after one year from completion of any work performed by Conservator, City observes any breach of warranty described in this Article 25 that is curable by Conservator, City shall give written notice to Conservator to make or supervise repairs or restorations at a reasonable fee during Conservator's lifetime. Conservator shall notify City, in writing, within thirty days after receipt of the notice as to whether Conservator will make or supervise the repairs or restorations. Should Conservator fail to respond within the thirty -day 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 AND NATIONALITY ACT. Conservator shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (1-9). Upon request by City, Conservator shall provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Conservator 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 Conservator employee who is not legally eligible to perform such services. CONSERVATOR SHALL INDEMNIFY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONSERVATOR, CONSERVATOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Conservator, shall have the right to immediately terminate this Agreement for violations of this provision by Conservator. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Conservator 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, Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 10 of 23 dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort 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 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 Conservator is a company with ten or more full-time employees and this Agreement is for $100,000 or more, Conservator acknowledges that in accordance with Chapter 2271 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. To the extent that Chapter 2271 of the Government Code is applicable to this Agreement, by signing this Agreement Conservator certifies that Conservator's signature provides written verification to the City that Conservator: (1) does not boycott Israel, and (2) will not boycott Israel during the term of the Agreement. 30. ENERGY COMPANIES. If Conservator is a company with ten or more full-time employees and this Agreement is for $100,000 or more, Conservator acknowledges that in accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services 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 Section 809.001 of the Texas Government Code. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement Conservator certifies that Conservator's signature provides written verification to the Citv that Conservator: (1) does not boycott energy companies, and (2) will not boycott energy companies during the term of this Agreement. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 11 of 23 31. FIREARMS AND AMMUNITIONS INDUSTRIES. If Conservator is a company with ten or more full-time employees and this Agreement is for $100,000 or more, Conservator acknowledges that in accordance with Chapter 2274 of the Texas Government Code, the City is prohibited from entering into a contract for goods or services 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. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement Conservator certifies that Conservator's signature provides written verification to the City that Conservator: (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. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 12 of 23 ACCEPTED AND AGREED: CITY OF FORT WORTH: By:�.s+..1e Fernando Costa Assistant Catty Manager Datc: ///2'7120.Z 3 APPROVED AS TO FORM AND LEGALITY: By: Trey Qualls Assistant City Attorney Form 1295: N/A CONTRACT COMPLIANCE MANAGER: g, 1 acknowledge that I am the person responsible for the monitoring and administration of this contract, KcJl ding ensuring all pvtformaricc and reporting requirements. c Art Collection Manager Worth �1 0. T( T: PA-0 c Jan#etto(Goodall, City Secretary V °a CONTRACT AUTHORIZATION: Ada* M&C: N/A �n Date: BROWN MOUNTAIN ART RESTORATION.: c� By: Lau Patc Owner Professional Service Agreement between City of Fort Worth and Brown Mountain An Restoration EXECUTION COPY Page 13 of 23 Scanned with C.amScanner OFFICIAL RECORD _ CITY SECRETARY FT. WORTH, TX ACCEPTED AND AGREED: CITY OF FORT WORTH: 0 Fernando Costa Assistant City Manager Date: APPROVED AS TO FORM AND LEGALITY: By: QGCe�.2 T y Qualls Assistant City Attorney Form 1295:N/A CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Jennifer Conn, Public Art Collection Manager Arts Council of Fort Worth ATTEST: By: Jannette Goodall, City Secretary CONTRACT AUTHORIZATION: M&C: N/A Date: BROWN MOUNTAIN ART RESTORATION.: By: OFFICIAL RECORD Laura Pate CITY SECRETARY Owner FT. WORTH, TX Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 13 of 23 EXHIBIT A REQUEST FOR QUALIFICATIONS (RFQ) PUBLIC ART CONSERVATION Deadline: Wednesday, October 18, 2023 at 5.00 PM CST Fort Worth Public Art, a City of Fort Worth program administered by Arts Fort Worth invites qualified art conservators to submit letters of interest and proof of qualifications to provide care and maintenance to the Fort Worth Public Art Collection. Interested applicants will demonstrate interest, knowledge, range, skills, and availability to assist the program in maintaining a growing collection of artworks and architectural enhancements in the collection. Qualifications will be reviewed by City and Arts Fort Worth staff and two representatives of the Fort Worth Art Commission. Successful candidates will be chosen based upon, but not limited to: ❑ Qualifications and Work Experience ❑ Media Specialty ❑ Reputation ❑ Availability ❑ Rate and Fee Schedule ❑ Ability to meet the requirements of the annual agreement with the City of Fort Worth (City) A pre -qualified list of conservators for current and future projects will be selected for the purpose of awarding annual contracts and work as needed. Selected conservators will enter into a written agreement with the City of Fort Worth to provide all services related to conservation and ongoing maintenance of specific artworks in the collection. Locals professionals are preferred; however, national teams may apply by demonstrating cost-effective strategies to meet the needs of the collection. The initial term of the Agreement will be for a period of one year, commencing on or after October 1, 2023, and may be terminated by the City at any time without penalty or cause. At the sole discretion of the City, a renewal option of four (4) one-year extensions after the initial term will be considered. SCOPE OF SERVICES Arts Fort Worth manages the Fort Worth Public Art program on behalf of the City as Contract Manager and provides for the care and maintenance of the Fort Worth Public Art Collection, which includes artworks in varying mediums including: 2-D artworks, sculpture, painted and tile murals, mosaics, mixed media installations, and architectural enhancements. Artworks are sited on and in City of Fort Worth properties in all Council Districts. The Fort Worth Public Art Collection includes contemporary commissioned works of art and the Legacy Collection, artworks acquired by the City prior to 2001 or through donations. An inventory is attached as Attachment A. Applicants are expected to exhibit expertise in various mediums and materials. Selected firms will be contracted for services for specific artworks at the Contract Manager's discretion. The Request for Qualifications is open to professional fine art and cultural artifact and properties conservators qualified to provide treatments in one or more of the following categories: ❑ Metal ❑ Organic Materials ❑ Stone and Tile ❑ Glass Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 14 of 23 ❑ Architectural ❑ Mixed Media Conservators may also be contracted to provide third -party reviews, condition assessments, treatment proposals, and cost estimates at the request of the Contract Manager. SUBMISSION REQUIREMENTS Submissions must provide all requested information. Bids marked "Public Art Conservation — Fort Worth Public Art' will be accepted until Wednesday, October 18, 2023 at 5:00 PM CST. Submissions must consist of the following items in the proper form and by the deadline in order to be considered: I) Letter of Interest 2) Demonstration of Qualifications and Experience, Principal and Team 3) Treatment Philosophy 4) Firm Information 5) Rate and Fee Schedule — please include schedule detailing costs for specific services, standard hourly rates, administrative time, and travel costs including per diem* as applicable, and 6) Proof of Insurance By signing its Qualifications, conservator acknowledges that it has read and understands the insurance requirements for the agreement. Conservator also understands that the evidence of required insurance must be submitted within fifteen days following the signing of a professional services agreement. Insurance requirements are attached as Attachment B. Applicants are requested to forward a notification of interest and written questions regarding this Request for Qualifications or the submittal requirements to Jennifer Conn via e-mail at iconn(a,artsfortworth.orz, copying TalkTo(a_),artsfortworth.orv_. No phone calls, please. Clarifications, additional information, corrections, or changes to the RFQ will be made in a timely manner to applicants who submit a notification of interest. Qualifications received after the deadline will not be considered. The City of Fort Worth and Fort Worth Public Art are not responsible for non -receipt of Qualifications sent by U.S. mail or courier. VIRTUAL PRE -BID ORIENTATION — Recommended, but not required. Held at the following date and time: DATE: Wednesday, October 4, 2023 TIME: 1:00 PM Virtual Link: httos://us02web.zoom.us/i/89969898978?i)wd=MORFU3A3em l OdHZRL2tW VkRi WmVkZz09 If a Pre -bid conference is held, the presentation and any questions and answers provided at the pre -bid conference will be issued as an Addendum to the call for bids. If a pre -bid conference is not being held, prospective bidders can e-mail questions or comments to the project manager(s) at the e-mail addresses listed below. Emailed questions will suffice as "questions in writing." If necessary, Addenda will be issued. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 15 of 23 CITY'S RIGHT TO ACCEPT OR REJECT APPLICANTS: City reserves the right to waive irregularities and to accept or reject any or all submissions. *GSA Rates apply AWARD: City anticipates awarding contracts to more than one qualified applicant based on their qualifications. Please deliver a digital submission of your Qualifications to: iconn(a,artsfortworth.orp- copying: TalkTo caartsfortworth.om. or hard copies to: Jennifer Conn, Collection Manager Arts Fort Worth Fort Worth Community Arts Center 1300 Gendy Street Fort Worth, Texas 76107 PLEASE NOTE: The Fort Worth Community Arts Center is open Monday — Saturday, 9: 00 a.m. — 5: 00 P. M. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 16 of 23 FORT WORTH PUBLIC ART INVENTORY BY MEDIA (29AUG23) rurus-rulrrtn dilrr Ise' VIEW r lO.r tE 1BN$�� WeT NfOBi ��II,I.�rwnMenrorul Gnbr-fawvun MM6vuuove vsllY. �' aawY�@RkraM x,ea.>.pre ds.mne � Bee.tvwNeM lY>.,�' �.. orr�ema. � .roh n.Brtrlvarttl var4xvenim I GIN '� Im fl�tlwmTx r.+B,C� OkAka Mru MC;O uuoB �awm Tx,a,m MA �w A zwz'wn �tl+� re+ IIOi(/4. �[.AW.w rm 'l.w wM,vow vmwmre, B, "" L �/rwvvelJiyxvsa - �MtvM 1'1e ��u� ol�m, EmlmS.�y Piiyyint�� Fartmm Cm9r o Mual Tie fJ'�..Mte..�w[.�B,.fl 1 Mea '».erne i7Cd. � �tlm ro,2 lY p.smOw,dwa new Mw u'r' Ab��'AL�7eIl, roe, Mb xHnAa.m am erm k.. •• e..m.rk. ,,,r:.-.., . zoos m,.o.�w .w ,.n n.errm Ba14A �e lit mpr Bn.e.x ,ewr s Br+ltle.rmr v.maa a..nee rw.l �.. wlkmn r..fl ^N6 am J I Mer iff B ms i� ��i.,...,mr�a.. �a r �N, ►��.�m�.m I IEYk-wr�st�mu,fa�er Al'x,m�Ekm.w M it IBG osed.J o-rrr nn �y+��• �c'..tir..aa IBG(FdAI�'.r s,mr, � ,!Or.7,i �s�9<d4'wnu..r.r I��B.wn. e i � E pppppgg n 1111. �66 prp ggryg� jgi, yJyf�csea �aF� . uma � 3 errree� e! eyeeeee er kyere ee_ z-- Rime, e4 e_e a a z a aka_ a s �$?a� ao..o ammo„„ a a°e°o $a,nVe „..„�„ � �.aaR..R�RRQ„ e R F 3 @Rvs $g � E R ».r a x' €�L a y EdC a� a d!�o 0W M e lam s3�€3• � �S ��v.�5 figE.f9�Y jilla,f� r��s@@� s,�,p IM, Ai bs _ p ` Fs b E7.7 e W bb� a y e 7 b b i 24 s e y j S f f'a�ffsf�'ko�"3 9e9°a' myse cfsfaa�fsb cif $r# iE 3� m8y8 €€P 4$6.�8< S - �` � H` 5z f mot°4p Ji 1 1 1 4ia F14% e�to 7— eye g"sa�oo 3 � ya LL€ `LL6LL~S °��%€�� �n�rZ� � f~€'x' map 3x33 �: „LL ° c c c��� 6� %� •�o� cti6d�3 31 °s��88'! $�iS�SB�nLL� s��ci rilE�;`sb�is�mef Rc°- 'JIJJ - 9y+r °s+yE y'b b3b b u ^'ySR �E Y�:F .�d3J+�gdb'!y° tdi f fei fs3sgawf;a s�. f�fff w_ -�L Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 18 of 23 INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS PUBLIC ART PROJECTS - INSLRANCE REQUIREMENTS Contractor shall meet all the following insurance requirements for this Project If Contractor subcontracts fabrication, transportation, and/or installation of the Work, then Contractor shall also require his/her subcontractors) to abide by all of the following insurance requirements. Commercial General Liability (CGL) S1,000,000 Each occurrence S2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors. products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Contractor and is considered to be in the Contractor's care, custody, and control and shall include property `in transit." Automobile Liability S1,000.000 Each accident or S250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence S100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto." defined as autos owned, hired and non -owned. For Contractor and%or Contractor's Subcontractors who have employees: Workers' Compensation Statutory limits Em plover's liability S100,000 Each accident/occurrence S100,000 Disease - per each employee S500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Page 1 of , Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 19 of 23 EXHIBIT B - CONSERVATOR'S RATE AND FEE SCHEDULE Brown Mountain Art In Antique Restoration 2809 N Henderson Ave Dallas, TX- 75206 214-824-3205 • Email: brownmountain@swbell.net 2023 Rate Sheet Rates: Senior Conservator - $125/hr Conservation Tech - $95/hr On -Site Conservation Services Include: Conditions Assessments Conservation Treatment On -Site Materials Testing Administrative Services/Off Site Conservation Services Include: Research Proposal and Report Writing Administration Off -site Materials Testing Travel and Per Diem Current GSA Rates for mileage, per diem and lodging; variable by year These rates are valid for one year from contract award. Rates do not include direct costs for materials, access, or equipment rental such as lifts, scaffolding, power, etc. When necessary additional consultants or subcontractors may be required and are not included in these rates. Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 20 of 23 EXHIBIT C - TEXAS SALES AND USE TAX EXEMPTION CERTIFICATE Texas Sales and Use Tax Exemption Certification firs certkole does not wme a nsrmbor to be valid, Mnr dprdwer, terror mW+q Cky of Fort Worth, Texas Adbwr MkWgowow p.© as cr a *rAw*w2 Plan. arwmo.«rrnn.e.n 200 Tax" Street 81T.'i 451T Cb. Sw& zpc*,dr Fort Worth, Texas 76102 I, the purchaser named above, Claim are vmrOW from papmerrt of salter and use hoses (far the perdue of tax" items desaibed bebw or on the ~and order or invoice) from f :' I :""-.—1 street sddrsss. Clhr, stele, LP oodr Deso *w of Nara to be pwd%md or on the ethchad ardor or irrvvbs: AM IMI Purchaser . - � . , i, „ that this CerU asM cwvx* be used for the owdn m bores or ret W d a mdK imbiot f'rrdwar dWirrta fft exampllon for ft bom'np meaawn. Munkrp wy. G, I I I I EnUtp I w4wstwW the! I vA be 6rbie for payment of d dais and bat adss or we Was vW id, reey haom d" Ibr Fehr to oorepr "M the prov lore of the Tex Code ender a1 appNade taw. flR9a4�alf�ww�aaV�+w1A � �r . i. n . . I of, I.l ffie t�V�fl�. a{Ml . it .. nibewedirinrerrwalNsrlhen/hefeorprerssedirfhboerOr IN anddepandspanowavanotaHareradeditew , Aorrr a Ck�sa C . ... �. , .. , rfo a Ibbrry d she record Tyree. put&~ iNn taw t;:% 1 . - F D 1"dar4 NOTE. TMs certiSgbe Carx,ct Do laswd for the purclreaa, Ireae. a rs tr d s molor vehicle. THIS CERTF ICA TE DOLLS NOT REGEIRE A NEWWR TO BE VALID. Sans and Lke TAX-Exampem Numbers' or -Tax F_a[e W Nunbera do not 061 ThisOMIft I shoWdbeMlnnlult.dfothsallpps i Do apt send the ootapid CerWW84s b thG CanlpMmisr of Pltbft A000t rA1L Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 21 of 23 EXHIBIT D VERIFICATION OF SIGNATURE AUTHORITY FORM Execution of this Signature Verification Form ("Form') hereby certifies that the following individuals and/or positions have the authority to legally bind Conservator and to execute any agreement, amendment, or change order on behalf of Conservator. Such binding authority has been granted by proper order, resolution, ordinance, or other authorization of Conservator. City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Conservator. Conservator will submit an updated Form within ten business days if there are any changes to the signatory authority. City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by Conservator. [7)pd � 1. Name:14ve� Posit -bud Ay Aalm_1&1�I �� Sign re ' 2. Name: Position: Signature 3. Name: Position: Signature N Signa re o President / CEO Title (if other than President / CEO): Date: / Professional Service Agreement between City of Fort Worth and Brown Mountain Art Restoration EXECUTION COPY Page 22 of 23 Scanned with CamScanner FORTWORTH Routing and Transmittal Slip FW Lab Department (Fort Worth Public Art) DOCUMENT TITLE: Professional Services Agreement Between the City of Fort Worth and Brown Mountain Art Restoration for Public Art Maintenance and Conservation M&C N/A CPN CSO # DOC DATE: TO: INITIALS DATE OUT 1. Trey Qualls, Assistant City Attorney TQ 11/27/2023 2. ACM Fernando Costa 3. Janette Goodall City Secretary 4 5 L 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 ❑ XNo SAME DAY: ❑ Yes ❑ X No NEXT DAY: ❑ Yes ❑ No ROUTING TO CSO: ❑X Yes ❑ No Action Required: ❑ As Requested ❑ For Your Information X❑ Signature/Routing and or Recording ❑ Comment ❑ File ❑ Attach Signature, Initial and Notary Tabs Return to: Please email a copy of the fully executed contract to: Jennifer Conn at jconn@artsfortworth.org. Thank you!