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HomeMy WebLinkAboutContract 61568City Secretary �,514 � Contract No PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF FORT WORTH AND PHENOMENARTS, INC. FOR EOUIPMENT UPGRADES FOR A PUBLIC ARTWORK TITLED PARKING IN COLOR This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a Texas home rule municipal corporation, acting by and through Mark McDaniel, its duly authorized Deputy City Manager, and PhenomenArts, Inc., ("Artist"), a Subchapter S Corporation, and acting by and through Christopher Janney, its duly authorized President/Artistic Director, each individually referred to as a "party" and collectively referred to as the "parties." The City has designated the Arts Council of Fort Worth & Tarrant County, Inc. DB/A Arts Fort Worth ("Contract Manager") to manage this Agreement on the City's behalf. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of Artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the Artistic design of public spaces; WHEREAS, City provides oversight and funding for Collection Management to maintain and repair artworks in the Fort Worth Public Art Collection; WHEREAS, City owns a sound installation artwork by PhenomenArts, Inc. titled, Sound Environments of Fort Worth ("Artwork"), installed at the Houston Street Garage located at W. l 1 th St, Fort Worth, TX 76102, which was commissioned by the City in 2007 and installed in 2009; WHEREAS, components of the sound equipment and programming systems need to be replaced and the technology upgraded, and City requests security brackets for speakers installed at nine (9) of the elevator bays; WHEREAS, in accordance with section 7.3(a) of the Artwork Commission Agreement (City Secretary Contract No. 35838), the Artist was approached by City to conduct and oversee the necessary upgrades and security device installation. Artist has provided a quote for costs related to the upgrades and installation ("Work"), which is attached hereto as Exhibit "A," and incorporated for all purposes incident to this Agreement; WHEREAS, City and Artist now wish to set out the terms and conditions for upgrading the artworks pursuant to the Artwork Commission Agreement. NOW THEREFORE, in consideration of the mutual covenants herein expressed, the Parties agree as follows: AGREEMENT DOCUMENTS: The Agreement documents shall include the following: 1. This Professional Services Agreement; 2. Exhibit A — Quote for Services 3. Exhibit B — Texas Sales and Use Tax Exemption Certificate 4. Exhibit C — Technical and Maintenance Record - 5. Exhibit D — Compensation Schedule; OFFICIAL RECORD 6. Exhibit E — Affidavit of Bills Paid. CITY SECRETARY FT, WORTH, TX Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy 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 "Artist" shall include the Artist and his officers, agents, employees, representatives, servants, contractors, and subcontractors. The term "City" shall include its officers, employees, agents, and representatives. The term "Work" shall include acquisition, delivery, and installation of all components to complete upgrades of the Artwork's sound and programming system. SCOPE OF SERVICES. 1.1 Artist shall perform all services to acquire and replace/install new parts, software, hardware, supplies, security devices, and equipment required to update programming and sound equipment necessary to operate and secure the Artwork as detailed and attached herein in Exhibit "A," Quote for Services, which more specifically describes the equipment and services to be provided hereunder. 1.2 City is a tax-exempt organization, and no state or local sales taxes or federal excise taxes shall be due pursuant to this Agreement. City shall supply Artist with the certificate for use by Artist in the fulfillment of this Agreement in substantially the same form as Exhibit "B," Texas Sales and Use Tax Exemption Certificate, which is attached hereto and incorporated herein for all purposes. 1.3 Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. 1.4 Artist shall provide a brief written description of the proposed reinstallation of the equipment and security brackets. City shall approve installation of equipment and security brackets in advance of installation, and Artist will meet and coordinate with and through Contract Manager, City staff, and others as necessary. City may, at its sole discretion, require revisions to the installation, and Artist will submit further information as required. 1.5 Artist is responsible for installing all elements to complete the Work and shall coordinate the installation schedule with the City and Contract Manager. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. 1.6 Artist, individually and through its subcontractors, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at its own expense, shall have thirty days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damage to the satisfaction of City within thirty days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to Artist 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 Artist shall provide to Contract Manager written instructions for appropriate maintenance and preservation of the equipment using the Technical and Maintenance Record, attached Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy hereto as Exhibit "C." Artist will supply City with all specification sheets and warranty information. TERM. This Agreement shall be in effect upon execution by the City and unless terminated earlier pursuant to the provisions of this Agreement, shall extend until final payment to Artist by City of any amounts owed under this Agreement. COMPENSATION. Total compensation to Artist pursuant to this Agreement shall be an amount not to exceed FIFTEEN THOUSAND DOLLARS AND NO CENTS (515,000.00) which shall constitute full compensation for any and all services to be performed and materials to be furnished by Artist under this agreement and in accordance with Exhibit "A," Artist's Quote, and Exhibit "D," Compensation Schedule, including, but not limited to, new equipment, rentals, supplies, shipping/mailing, labor, insurance, travel expenses, incidental costs, and any other costs to complete the Work. Payment from the City to Artist shall be made on an invoice basis following receipt of a signed invoice with adequate documentation, all in a form acceptable to the City. Artist shall not perform any additional services for the City not specified by this Agreement unless City requests and approves in writing the additional costs for services. If any conflict exists between this Agreement, Exhibit "A," and Exhibit "D," the terms of this Agreement shall control followed by Exhibit "D," followed by Exhibit "A." TERMINATION. 4.1. Convenience. The City or Artist may terminate this Agreement at any time and for any reason by providing the other party with at least 30 days' written notice of termination. 4.2. Non-avnromiation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Artist of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3. Breach. Subject to Section 27 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 Obligations of the Parties. In the event that this Agreement is terminated prior to its stated expiration, the City shall pay Artist for services actually rendered up to the effective date of termination, and Artist shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Artist shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Artist has received access to City information or data as a requirement to perform services hereunder, Artist shall return all City -provided data to the City in a format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1. Disclosure of Conflicts. Artist hereby warrants to the City that Artist has made full disclosure in writing of any existing or potential conflicts of interest related to Artist's services under this Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy Agreement. In the event that any conflicts of interest arise after the this Agreement takes effect, Artist hereby agrees to immediately make full disclosure to the City in writing. 5.2. Confidential Information. Artist, for itself and its officers, agents, and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third -party without the prior written approval of the City. 5.3. Unauthorized Access. Artist shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete, or otherwise corrupt City Information in any way. Artist shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Artist shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Artist agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of the Artist involving transactions relating to this Contract at no additional cost to the City. Artist agrees that the City shall have access during normal working hours to all necessary Artist facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Artist reasonable advance notice of intended audits. Artist further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Artist shall operate as an independent contractor as to all rights and privileges and work performed under this agreement and not as agent, representative, or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Artist shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, and subcontractors. Artist acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants, and employees, and Artist, its officers, agents, employees, servants, contractors, and subcontractors. Artist further agrees that nothing herein shall be construed as to createa partnership or joint enterprise between City and Artist. It is further understood that the City shall in no way be considered a co -employer or a joint employer of Artist or any officers, agents, servants, employees, or subcontractors of Artist. Neither Artist, nor any officers, agents, servants, employees, or subcontractors of Artist shall be entitled to any employment benefits from the City. Artist shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees, or subcontractors. Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy 8. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY. ARTIST SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE, AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S) OR OMISSION(S), MALFEASANCE, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF ARTIST, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.2. INDEMNIFICATION. ARTIST HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WHETHER REAL ORASSERTED, FOR PROPERTYDAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO ARTIST'S BUSINESS AND ANY RESULTING LOST PROFITS), AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS, MALFEASANCE, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF ARTIST, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.3. INTELLECTUAL PROPERTY INDEMNIFICATION —Artist agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trademark, trade secret, or similar property right arising from City's use of the software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle, or pay shall not apply if City modifies or misuses the software and/or documentation. So long as Artist bears the cost and expense of payment for claims or actions against City pursuant to this section, Artist 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 Artist 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 Cityfor 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, Artist shall fully participate and cooperate with City in defense of such claim or action. City agrees to give Artist 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 ofpayment of costs or expenses shall not eliminate Artist's duty to indemnify City under this Agreement. If the software and/or documentation 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, Artist shall, at its own expense: (a) procure for City the right to continue to use the software and/or documentation; or (b) modify the software and/or documentation to make it non -infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non -infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives are reasonably available to Artist, terminate this Agreement and refund all amounts paid to Artist by City, subsequent to which City may seek any and all remedies available to City under law. Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy 9. ASSIGNMENT AND SUBCONTRACTING. Artist shall not assign or subcontract any of its duties, obligations, or rights under this Agreement without the prior written consent of the City; however, City expressly grants Artist the right to subcontract engineering services. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and Artist under which the assignee agrees to be bound by the duties and obligations of Artist under this Agreement. The Artist and Assignee shall be jointly liable for all obligations of the Artist under this Agreement. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Artist referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Artist under this Agreement as such duties and obligations may apply. The Artist shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Artist shall provide City with certificate(s) of insurance documenting policies of the following types and minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1. Coverage and Limits for Artist. (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate 10.2. Coverage and Limits for Artist's Subcontracted Enizineer. (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 Reauirements. (a) The commercial general liability and professional liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) A minimum of thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. At least ten (10) days' notice shall be acceptable in the event of cancellation due to 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 Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy Risk Management. if the rating is below that required, written approval of City's Risk Management is required. (d) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (e) Certificates of Insurance evidencing that the Artist has obtained all required insurance shall be delivered to the City prior to Artist proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES, RULES, AND REGULATIONS. Artist agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal, state, and local laws, ordinances, rules, and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state, and local laws, ordinances, rules, and regulations. if City notifies Artist of any violation of such laws, ordinances, rules, or regulations, Artist shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Artist, for itself, its personal representatives, assigns, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Artist's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Artist, its personal representatives, assigns, subcontractors, or successors in interest, Artist agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be determined to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants, or representatives, or (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To CITY: To ARTIST: City of Fort Worth PhenomenArts, Inc. Attn: Mark McDaniel, Deputy City Manager Christopher Janney, President/Artistic Director 200 Texas Street 1629 Champlain Terrace Fort Worth, TX 76102-6314 Los Angeles, CA 90026 Facsimile: (817) 392-8654 Facsimile: None With copy to Fort Worth City Attorney's Office at same address 14. SOLICITATION OF EMPLOYEES. Neither the City nor Artist shall, during the term of this Agreement and additionally for a period of one (1) year after its termination, solicit for employment or employ, whether as employee or independent 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 Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy 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, City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Artist to insist upon the performance of any term or provision of this Agreement, or failure to exercise any right granted herein, shall not constitute a waiver of the City's or Artist's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Artist shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any 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 if it so chooses its counsel, have had the opportunity to review and revise this Agreement and that the normal rule of contract 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 the exhibits attached hereto and incorporated herein. Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy 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 explicitly incorporated herein by reference, contains the entire understanding and agreement between the City and Artist, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 25. WARRANTY OF SERVICES. 25.1 Artist warrants that his services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty section within thirty (30) days from the date that the breach was actually known to City. Upon notice to Artist, at Artist's option, Artist shall either: (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with this warranty, or (b) refund all fees paid by the City to Artist under this Agreement. This warranty section shall survive any expiration or termination of this Agreement. 25.2 If, within one year after completion of repairs, City observes any breach of warranty described in this Article 25 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. 25.3 If, after one year from completion of repairs, City observes any breach of warranty described in this Article 25 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee. Artist shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty -day (30) deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. 26. IMMIGRATION AND NATIONALITY ACT. Artist shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Artist shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Artist shall adhere to all federal and state laws as well as establish appropriate procedures and controls so that no services will be performed by any Artist employee who is not legally eligible to perform such services. ARTIST SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ARTIST, ARTIST'S EMPLOYEES, Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Artist, shall have the right to immediately terminate this Agreement for violations of this provision by Artist. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Artist has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, 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 Artist is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Artist acknowledges that in accordance with Chapter 227I 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 Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 30. ENERGY COMPANIES. If Artist is a company with ten (I0) or more full-time employees and this Agreement is for $100,000 or more, Artist 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 Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2276 of the Texas Government Code. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not boycott energy companies, and (2) will not boycott energy companies during the term of this Agreement. 31. FIREARMS AND AMMUNITIONS INDUSTRIES. If Artist is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Artist 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 Artist certifies that Artist's signature provides written verification to the City that Artist: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. (signature page follows) Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy ACCEPTED AND AGREED: CITY OF FORT WORTH: By: A�Marktcl)aniel Nam Title: Deputy City Manager Date: APPROVAL CO NDED: By: Name: Eric Fladager Title: Assistant Director, FWLab ATTEST: IIn Jannette Goodall City Secretary ARTIST: PhenomenArts, Inc. By: Date: 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. BY: '� Name: Jennifer Conn Title: Public Art Collection anager Arts Fort Worth APPROVED AS TO FORM AND LEGALITY: C�GCe2�.d By: Name: 4rey Qualls Title: Assistant City Attorney Q0°opOOpo� Q NTRAC C: N/A 'S °•1 d � Ig=� �° o° d °o°00o° ATTEST: Name: Christopher Janney By: Title: President/Artistic Director Name: Title: AUTHORIZATION: Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy OFFICIAL RECORD CITY SECRETARY FT. WURTH, TX ACCEPTED AND AGREED: MY OF FORT UORTH: I Or I ww. hb& Mcumni Tait: Llr roy Cih► APP20%AL REiCtMOWNDED: H'X= � Fiie Trio: Amstum Dorecim F'WtAb ATTM W t CIMM" relic Cyr soorwy AM MT: _ I'I�ommrr�Arg. I� fly• - 1 e: Cam imsty Tide. Pnrid='Arb Mc D4v clar Dow 5.22.24 C+C NTRACT COMPCUI.NCE MANAGER by l adkoowiu* 16ar I am &c vn responobit § wr 11~e aaaai-ariaig and adk ins °aa oe of Ibis caerrar1.1 kKhmusa All pfff o and sma c: Jeawdw Cam Tdk-- Nblw An Ca kc-Aw hb"W Am FM Wad APPR %*KD AS TO FUR. ! A." L=&UTY 8y: Tide: Amami Cky Aamwy CONIVACT AVTHURM ATION: M&C: WA UTT13U11 ?6M. Terrell Lamb Title: VP. Phenormnk s, Inc. OFFICIAL RECORD CITY SECRETARY l4.fws�w.1 tea. A�waar 1�t+r�r CSAr.tlet a'4ri asi �Ara� �, EXHIBIT "A" .OUOTE FOR SERVICES PhenomenArts, Inc. Interactive Art/Music/Architecture Christopher Janney, Artistic Director FID#: 04-2999776 1629 Champlain Terrace Los Angele, CA 90026 Ph:781-541-0899 Web Site: www4anneusound.com Em: info@iannevsound.com Advisory Board: Sheila E., Martha Schwartz, FASLA; Sara Rudner, Peter Sellars; Lance J. Brown, FAIR; Sir George Martin Productions ESTIMATE #041124 FR: C. Janney TO: M. Peters, Director Ft. Worth Public Art Council DT: 4.11.24 RE: 5-year Upgrade NEW COMPUTER- (MacBook, Custom PC or similar) Modify Computer hardware, install new software, bench test Inspect/clean all relevant hardware SUBTOTAL------ $4500.00 MOTU's------ 2 MOTU 828 Hybrid AD/DA------ -------------�$1500.00 Labor- Studio modificatons/software costs---$250.00 SUBTOTAL $1750.00 WATCHDOG 2.0- Install hardware, link to software onsit`, TEST Subtotal -------------------------------------------------------------- $175 0.00 1 CROW`: 121OA Power Amp (plus shipping. O/H) S u btoa I--------------------------------------------------------------- $420.0 0 Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy SPEAKER BRACKETS- Prototypes 9- 1" x '/," thick aluminum, formed to fit Design, materials, fabrication, studio mgmt. and OH ----------- $1200. Installation estimate, I principal, 1 assistant @1 hrbracket--- $450. SUBTOTAL----------------------------------------------------------------------$1650.00 5 Pair JBL Confrol TRAVEL EXPENSES- Travel/hotel/car/per diem, 1 Princpal LAX/DFW/LAX----- $600.00 (Site Visit included) Day fee- Principal --------------------- $1,000 Day fee Assistant --------------------- $500. Studio OH/Mgmt-------------------- $250. SUBTOTAL------------------------------------------------------ $2350.00 TOTAL for UPGRADE--------------------------------------- $13,920.00 Next Upgrade due 2029 Please remit to: PhenomenArts, Inc. 75 Kendall Road Lexington, MA 02421 USA $1500.00 Payment Terms- net 30 days. After 30 days, account will be charged 1.5% per month until paid in full. We request all checks sent FedEx STANDARD shipping (or similar). Please email tracking number to our studio. Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy EXHIBIT "B" TEXAS SALES AND USE TAX EXEMPTION CERTIFICATE * o f•�am Texas Sales and Use Tax Exemption Certification This c r0cafe does nd mqukv a nrxnber to be vaW ►*Marwew«-r.ocr.e.q Cft1(of Fort Worth. Texas Adana Am~.RQ aaama,�eM.ae.q wr�r HN+aeMwOwaMrl.. 200 Texas fattest 617-=4517 oey.sw.,nroode Fort Worth, Texas 76102 I, the ptr chaser named aborts, claim an eve ;Iin firam prprw t ofasks and use taros (ia the pumtme oftt a bb Horns described babes or on the atdec had order or kwoical from S~ AN Vendoes Street addren- Cfar, S1Me. AP aade Aeeorlpk d urrs to bs pod»aad or on the stbdeed ardor ark, A11sterns. Purchaser : e that CNs C wKK** Kart be used for the pWomm. Iecse or rental of a ,rag or Purduser deems Oft amnpdon forgo fol oft reason: AWnic p aWy G . , 11FA fhr 11, 11 sherd sue f a• be esbb for payment dad steel and local aeim oruse taxes tMel nryr txeoaae due for bkft b=V* "a the proefalats of to Tax Code ad/a al appkMe New. fardarahndMettbacdnbreloldrruefopireenarenpllanoe+eMafilm blMs�Nhrlb►[a<abAe�rnalhfJMpw ehAe�edprotuar� rf/beoeadi►anrearerdhwNur►frisfaorprsaasdi►fhleosrAllcale�and... . ;,, Meamornrall rwadr4ftbod. , ham a Ctiea C mdadarrowxr to a felony ar pee seaad depee. TWO �oo: GeM lt�rr�r4 NOTE: This r 116"e1 carxrat be ismol for the puroMee, lsree. or rerrer of a ecft releicie. THIS CERTIRCA TE DOES NOT REQUIRE A NILMOM TO BE VAUD. Sales and We Tax "[xe re0on Nwrb@W or'rax f8rs . Mortars do not ardet This ssrltMaals skoMi be Itwalelesd is 1h a aaI Do la seed ties oanlpls6ed wrrlleals 10 1h* CowptisOsr o1 Pvhft Aaoowds. Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy EXHIBIT "C" TECHNICAL AND MAINTENANCE RECORD SOUND ENVIRONMENTS OF FORT WORTH 2024 UPGRADES Vendor Name Address Cell phone E-mail Description of Repairs Date of execution: Equipment list/Materials Used in Execution of Upgrades (Please provide a detailed list of all equipment, parts, and materials provided for upgrades and attach specification sheets and any identifying documentation. Material(s) Specifications. Please submit all available material specifiers Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to lighting, media, landscaping, etc. Include all vendor information, parts numbers, warranties and agreements and any/all design schematics): Installation Method: (describe installation method, provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Recommended Routine Maintenance Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy EXHIBIT "D" COMPENSATION SCHEDULE Compensation. a. The City shall pay Artist an amount not to exceed FIFTEEN THOUSAND DOLLARS AND ZERO CENTS ($15,000.00) for all services performed, including but not limited to, materials and supplies, equipment rentals, and labor, insurance, incidental costs, contingencies, transit, travel, and any costs required for upgrades to the Artwork in accordance with the provisions of this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. b. Services outlined in this Agreement are based on costs in accordance with Ex. A, Artist's Quote_ c. Compensation for all of Artist's services performed pursuant to this Agreement shall be made on an invoice basis supported with documentation at invoicing, with total fee, including, but not limited to, all reimbursable expenses. d. Artist will not bill City for tax pursuant to Artist's use of Exhibit B as outlined in section 1.2 of this Agreement. e. Any additional expenses not outlined in this Agreement or exhibits incurred by Artist must be approved in writing by Contract Manager before being added to the invoice submitted to the City. Payment Schedule. City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. EIGHT THOUSAND DOLLARS AND ZERO CENTS ($8,000.00) within thirty calendar days of this Agreement taking effect and after City issuance of a purchase order. b. Up to FIVE THOUSAND NINE HUNDRED AND TWENTY DOLLARS AND ZERO CENTS ($5,920.00) within thirty calendar days of Contract Manager's verification that upgrades are complete and operational and receipt by City of such documentation as it may require concerning payment of services, equipment, supplies, and incidentals rendered. c. The total compensation listed in section 1(a) of this Exhibit D includes payment for unforeseen changes in the approved repairs from a contingency fund in an amount up to ONE THOUSAND EIGHTY DOLLARS AND ZERO CENTS ($1,080.00) for costs associated with upgrades that are incurred by the Artist upon (i) receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. d. Artist shall submit a signed invoice to the City's Contract Manager for payment under this Agreement within fifteen (15) days of completing services under this Agreement and include any necessary receipts. e. City shall compensate Artist in full within thirty (30) days after receipt of Contractor's final invoice and all deliverables. Professional Services Agreement between City of Fort Worth and PhenomenArts, Inc. Execution Copy EXHIBIT "E" AFFADAVIT OF BILLS PAID D ate : Affiant (Contractor): Purchaser (City): Property: 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 , 2024. Notary Public, State of Texas Print Name Commission Expires Professional Services Agreement behveen City of Fort Worth and PhenomenArts, Inc. Execution Copy FORTWORTH Routing and Transmittal Slip Planning & Data Analytics Department Fort Worth Public Art DOCUMENT TITLE: Professional Services Agreement between the City of Fort Worth and PhenomenArts, Inc. for Equipment Upgrades for a Public Artwork Titled Parking in Color DATE: TO: INITIALS DATE OUT 1. Trey Qualls, Assistant City Attorney TQ 5/29/2024 2. Mark McDaniel, Deputy City Manager 3. Jannette Goodall, City Secretary H 5 6. DOCUMENTS FOR CITY MANAGER'S SIGNTURE: All documents received from any and all City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip, David will review and take the next steps. NEEDS TO BE NOTARIZED: ❑ Yes ❑X No RUSH: ❑ Yes ❑ Nox SAME DAY: ❑ Yes ❑ No NEXT DAY: ❑X Yes ❑ No ROUTING TO CSO: ❑X Yes ❑ No Action Reauired: ❑ 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, Public Art Collection Manager, Arts Fort Worth at icon naa.artsfortworth.orq Thank you!