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HomeMy WebLinkAboutContract 62010CSC No. 62010 PROFESSIONAL SERVICES AGREEMENT BETWEEN MONTAGE 48/61 AND THE CITY OF FORT WORTH This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home -rule municipal corporation situated in Texas, acting by and through Mark McDaniel, its duly authorized Deputy City Manager, and MONTAGE 48/61 (the "Contractor"), a Texas limited partnership located at 5626 Willis Avenue, Dallas, Texas 75206, acting by and through Larry Enge, its duly authorized managing partner, 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 public artwork titled, Urban Quilt ("Artwork"), a series of 29 polychrome banners illustrating community history through images, color, and texture on period -designed poles installed at the intersection of Berry Street and South Riverside Drive, 76119, which were commissioned by the City in 2012 and installed in 2013 as part of the Berry Riverside Urban Village Project; WHEREAS, through the City's Transportation and Public Works Department ("TPW"), the City is pursuing roadway construction and modifications to the pedestrian crossings and requires that the public artwork be temporarily deinstalled, moved to storage, and reinstalled after construction is completed; WHEREAS, in 2012 as part of the original Berry Riverside Urban Village Project and with Urban Village Project funds the City also engaged the Contractor to provide designs for stamped concrete at the southwest and northeast crosswalks and the City now wishes Contractor to modify the design for reapplication; WHEREAS, in accordance with section 7.3(a) of the Artwork Commission Agreement (City Secretary Contract No. 35838), the Contractor was approached by City to conduct and oversee the necessary upgrades and security device installation. Contractor has provided a quote for costs related to the upgrades and installation ("Work"), which is attached hereto as Exhibit "A," and incorporated herein for all purposes incident to this Agreement; WHEREAS, on or about December 1, 2022, a single pole was damaged by a vehicle and the Contractor provided a cost proposal to replace the pole and its associated banners; WHEREAS, the Contract Manager has agreed to manage the deinstallation and reinstallation of the artwork and the concrete design project in coordination with TPW and using TPW project funds in addition to the pole replacement which will be filed as an insurance claim after the reinstallation is complete; OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 1 of 20 WHEREAS, City and Contractor now wish to set out the terms and conditions for the Work pursuant to the Artwork Commission Agreement. NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the Parties agree as follows: AGREEMENT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — The Artwork 3. Exhibit B — Contractor's Proposal (Replacement) 4. Exhibit C — Contractor's Proposal (Design/Consultation) 5. Exhibit D — Texas Sales and Use Tax Exemption Certificate 6. Exhibit E — Compensation and Payment Schedule 7. Exhibit F — Affidavit of Bills Paid All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. The term "Contractor" shall include the Contractor acting as Contractor and consultant as required, and its officers, agents, employees, representatives, servants, contractors, or 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 the reinstallation of the Artwork. 1. SCOPE OF SERVICES. 1.1. Contractor hereby agrees to provide the City with professional design and consultation services related to the Artwork as described in Exhibit "A" (Artwork), and as outlined in this section and Exhibit `B" (Contractor's Replacement Proposal) and Exhibit "C" (Contractor's Design/Consultation Proposal). The Contractor is the originating fabricator of the Artwork which is owned by the City and sited at the Berry / Riverside Urban Village located at 1595 East Berry Street, Fort Worth, Texas 76119 ("Site"). 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 Contractor with the certificate for use by Contractor in the fulfillment of this Agreement in substantially the same form as Exhibit "D" (Texas Sales and Use Tax Exemption Certificate), which is attached and incorporated herein for all purposes incident to this Agreement. 1.3. Additional services, supplies, rentals, or deliverables must be approved in writing in advance of performance. Contractor will only be compensated for any such additional services or reimbursed as agreed to by the parties. Page 2 of 20 1.4. Contractor shall be responsible only for the payments incurred that pertain to services being performed under this Agreement, including but not limited to Contractor's design and consultation services, and including costs to replace the damaged pole and banners and costs of all local travel for Contractor and any other subcontractors, and any additional costs for the Contractor's agents, consultants, subcontractors, or employees necessary for the proper performance of the services required under this Agreement. Contractor shall not be responsible for costs related to removing any components of the artwork from the site or for any other costs related to deinstallation, transit of the Artwork other than the replacement pole, storage, reinstallation of the poles and banners, or the application of the sidewalk design. 1.5. Contractor shall make timely payments to all persons and entities supplying labor, materials, services, or equipment for the performance of this Agreement. THE CONTRACTOR SHALL DEFEND AND INDEMNIFY THE CITY AND THE CONTRACT MANAGER FROM ANY CLAIMS OR LIABILITY ARISING OUT OF THE CONTRACTOR'S FAILURE TO MAKE THESE PAYMENTS. Contractor shall furnish the City an affidavit certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid, attached hereto as "F" (Affidavit of Bill Paid). 2. TERM. This Agreement shall commence upon the date it is executed by the City ("Effective Date") and end once City makes payment to Contractor for all services provided under this Agreement, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. The City shall pay Contractor an amount not to exceed NINETEEN THOUSAND, EIGHT HUNDRED SIXTY DOLLARS AND ZERO CENTS ($19,860.00) which shall constitute full compensation for any and all services to be performed and materials to be furnished by Contractor under this agreement in accordance with Exhibits "B" and "C" (Contractor's Proposals), and Exhibit "E" (Compensation Schedule), including, but not limited to, Contractor's design and consultation fees, materials required for materials replacement, and any other costs to complete the Work. Payment from the City to Contractor shall be made on an invoice basis following receipt of a signed invoice with adequate documentation, all in a form acceptable to the City. Contractor 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 and Exhibits "B," "C," or "E," the terms of this Agreement shall control followed by Exhibit "E," followed by Exhibits `B" and "C." 4. TERMINATION. 4.1. Convenience. The City or Contractor may terminate this Agreement at any time and for any reason by providing the other party with at least 30 days' written notice of termination. 4.2. Non-annronriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Contractor of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3. Breach. Subject to Section 27 herein, either party may terminate this Agreement for breach of duty, obligation, or warranty upon exhaustion of all remedies set forth in Section 27. Page 3 of 20 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 Contractor for services actually rendered up to the effective date of termination and Contractor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as a requirement to perform services hereunder, Contractor shall return all City provided data to the City in a format deemed acceptable to the City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1. Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after this Agreement takes effect, Contractor hereby agrees to immediately make full disclosure to the City in writing. 5.2. Confidential Information. Contractor, for itself and its officers, agents, and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third -party without the prior written approval of the City. 5.3. Unauthorized Access. Contractor shall store and maintain City information in a secure manner and shall not allow unauthorized users to access, modify, delete, or otherwise corrupt City information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Contractor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of the Contractor involving transactions relating to this Contract at no additional cost to the City. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give subcontractor reasonable notice of intended audits. Page 4 of 20 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights and privileges and work performed under this agreement and not as an agent, representative, or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Contractor shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, and subcontractors. Contractor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants, and employees, and Contractor, its officers, agents, employees, servants, contractors, and subcontractors. Contractor further agrees that nothing herein shall be construed as to create a partnership or joint enterprise between City and Contractor. It is further understood that the City shall in no way be considered a co -employer or a joint employer of Contractor or any officers, agents, servants, employees, or subcontractors of Contractor. Neither Contractor, nor any officers, agents, servants, employees, or subcontractors of Contractor shall be entitled to any employment benefits from the City. Contractor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees, or subcontractors. 8. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE, AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.2. INDEMNIFICATION. CONTRACTOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS AND ANY RESULTING LOST PROFITS), AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS, MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.3. COPYRIGHT INFRINGEMENT. Contractor agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any patent, copyright, trade secret, or similar property right arising from City's use of any system and/or equipment in accordance with this Agreement. Contractor 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, and City agrees to cooperate with it in doing so. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. If the system and/or equipment or any part thereof is held to infringe and the use thereof is enjoined or restrained or if as a result of a settlement or compromise such use is materially adversely restricted, Contractor shall, at its own expense: (a) procure for City the right to continue to use the system and/or equipment; or (b) modify the system and/or equipment to make it non -infringing, provided that such modification does not materially adversely affect City; or (c) replace the system and/or equipment with equally suitable, compatible, and functionally equivalent non -infringing system and/or equipment at no additional charge to City; or (d) if none of the foregoing alternatives Page 5 of 20 is reasonably available to Contractor, terminate this Agreement and refund to City the payments actually made to Contractor under this Agreement. 9. ASSIGNMENT AND SUBCONTRACTING. Contractor shall not assign or subcontract any of its duties, obligations, or rights under this Agreement without the prior written consent of the City; however, City expressly grants Contractor the right to subcontract engineering services. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and assignee shall be jointly liable for all obligations of the Contractor under this Agreement. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. The Contractor shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. Contractor shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1. Coverage and Limits for Contractor. (a) Commercial General Liability: $1,000,000 Each Occurrence $1,000,000 Aggregate 10.2. Coverage and Limits for Contractor's Subcontracted Engineer. (a) Commercial General Liability: $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Professional Liability: $2,000,000 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. Page 6 of 20 (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 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 I\insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS. ORDINANCES. RULES. AND REGULATIONS. Contractor agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state, and local laws, ordinances, rules, and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state, and local laws, ordinances, rules, and regulations. If the City notifies Contractor of any violation of such laws, ordinances, rules, or regulations, Contractor shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Contractor, for itself, its personal representatives, assigns, subcontractors, and successors in interest, as part of the consideration herein, agrees that in the performance of Contractor's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Contractor, its personal representatives, assigns, subcontractors, or successors in interest, Contractor agrees to assume such liability and 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 Montage 48/61 Attn: Mark McDaniel, Deputy City Manager Larry Enge 100 Fort Worth Trail (formerly Energy Way 5626 Willis Avenue Fort Worth, Texas 76102 Dallas, Texas 75206 Facsimile: (817) 392-8654 Facsimile: None With copy to Fort Worth City Attorney's Office at same address Page 7 of 20 14. SOLICITATION OF EMPLOYEES. Neither the City nor Contractor shall, during the term of this Agreement and additionally for a period of one (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the other party. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation or advertisement of employment by either party. 15. GOVERNMENTAL POWERS / IMMUNITIES. It is understood and agreed that by execution of this Agreement the City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of the City or Contractor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Contractor shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any 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 parry, and if it so chooses its counsel, have reviewed and revised this Agreement and that the normal rules of contract construction to the effect that any ambiguities are to Page 8 of 20 be resolved against the drafting party shall not be employed in the interpretation of this Agreement or the exhibits hereto. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Contractor, their assigns, and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURES. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 25. WARRANTY OF SERVICES. 25.1 Contractor warrants that his services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty section within thirty (30) days from the date that the breach was actually known to City. Upon notice to Contractor, at Contractor's option, Contractor shall either: (a) use commercially reasonable efforts to re -perform the services in a manner that conforms with this warranty, or (b) refund all fees paid by the City to Contractor under this Agreement. This warranty section shall survive any expiration or termination of this Agreement. 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 Contractor, Contractor 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 Contractor, City shall give written notice to Contractor to make or supervise repairs or restorations at a reasonable fee. Contractor shall notify City, in writing, within thirty (30) days after receipt of the notice as to whether Contractor will make or supervise the repairs or restorations. Should Contractor 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. City actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Contractor shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Page 9 of 20 Contractor shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Contractor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Contractor shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Contractor. 27. INFORMAL DISPUTE RESOLUTION. If either City or Contractor has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, through email, mail, phone conference, in person meetings, or other reasonable means, to resolve any claim, dispute, breach, or other matter in question that may arise out of or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 28. ISRAEL. If Contractor is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Contractor 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 Contractor certifies that Contractor's signature provides written verification to the City that Contractor: (1) does not boycott Israel, and (2) will not boycott Israel during the term of the Agreement. 29. ENERGY COMPANIES. If Contractor is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Contractor 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 Page 10 of 20 contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement Contractor certifies that Contractor's signature provides written verification to the City that Contractor. (1) does not boycott energy companies, and (2) will not boycott energy companies during the term of this Agreement. 30. FIREARMS AND AMMUNITIONS INDUSTRIES. If Contractor is a company with ten (10) or more full-time employees and this Agreement is for $100,000 or more, Contractor 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 Contractor certifies that Contractor's signature provides written verification to the City that Contractor. (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 Page 11 of 20 ACCEPTED AND AGREED: CITY OF FORT WORTH: `�'`gl�� By: CONTRACT COMPLIANCE MANAGER: Name: Mark McDaniel By signing I acknowledge that I am the person Title: Deputy City Manager responsible for the monitoring and administration of this contract, including ensuring all Date: Jul 16, 2024 performance and repo ing requirements. By: �f APPROVAL RECOMMENDED: N e: enn Conn T tle: Publ Art Collection Manager By: `F°'`�`" Arts Fort Worth Name: Eric Fladager Title: Assistant Director, FWLab APPROVED AS TO FORM AND LEGALITY: a E ..... e oe �,�, ATTEST: 0 8 A 0,o T`ey �Jrgal,Gr By: $ue amd a a �$ �aa4 an� os Name: Trey Qualls By: Title: Assistant City Attorney Name: Jannette Goodall Title: City Secretary CONTRACT AUTHORIZATION: M&C: N/A CONTRACTOR: Montage 48/61 ATTEST: By: _SEE NEXT PAGE Name: Larry Enge By: Title: Managing Partner Name: Title: Date: Form 1295• _n/a Contract Authorization: M&C: _n/a Date: _n/a OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 12 of 20 ACCEPTED AND AGREED: CITY OF FORT WORTH: By: CONTRACT COMPLIANCE MANAGER: Name: Mark McDaniel By signing 1 acknowledge that I am the person Title: Deputy City Manager responsible for the monitoring and administration of this contract, including ensuring all Date: performance and reporting requirements. By: APPROVAL RECOMMENDED: Name: Jennifer Conn Title: Public Art Collection Manager By: Arts Fort Worth Name: Eric Fladager Title: Assistant Director, FWLab APPROVED AS TO FORM AND LEGALITY: ATTEST: By: Name: Trey Qualls By: Title: Assistant City Attorney Name: Jannette Goodall Title: City Secretary CONTRACT AUTHORIZATION: M&C: NIA CONTRACTOR: Montage 48/61 By: ATTEST: am Enge By: Title: anaging Partner Name: Date: Title: Form 1295: _nla Contract Authorization: M&C: nIa Date: n/a Page 12 of 19 Page 13 of 20 EXHIBIT A THE ARTWORK An installation of seven poles with engineered resin panels of various colors, textures, and several with images. Page 14 of 20 EXHIBIT B CONTRACTOR'S PROPOSAL (REPLACEMENT) ANAKTSTCPARTNEKSHIPI MONTAGE48/6 March 13, 2024 Subject: Artwork Replacement Cost Estimate: Urban Quilt (201 3) Submitted to: City of Fort Worth / Fort Worth Public Art 1300 Gendy Street Fort Worth, Texas 76107 Artwork Location: 1 595 E. Berry Street, Fort Worth, TX 76119 This cost estimate is submitted at the request of FWPA Collection Manager, Jennifer Conn. Repairs include: Replacement of structural light pole and art banners including materials, supplies, rentals, transportation, labor and fees. Larry Enge Managing Partner HOURS RATE Art Banner Materials Pole Delivery Desiqn 8 $150.00 Pole Inspection 6 $75.00 Project Management 5 $150.00 TOTAL TOTAL $4,400.00 $4,200.00 $1 ,200.00 $450.00 $750.00 $1 1 ,000.00 Page 15 of 20 EXHIBIT C CONTRACTOR'S PROPOSAL (DESIGN/CONSULTATION) AN ARTISTIC PARTNERSHIP I MONTAGE :. March 13, 2024 Subject: Pavement Redesign Cost Estimate: Urban Quilt (201 3) Submitted to: City of Fort Worth / Fort Worth Public Art 1300 Gendy Street Fort Worth, Texas 76107 Artwork Location: 1 595 E. Berry Street, Fort Worth, TX 76119 This cost estimate is submitted at the request of FWPA Collection Manager, Jennifer Conn. Scope of Work includes: Flatwork redesign, materials specifications and all fees associated with replacing the banners after street construction is completed. City Responsible for design implementation and reinstallation of banners following street construction. HOURS RATE TOTAL Flatwork Desiqn/Specifications 10 $150.00 $1,500.00I Banner Inspection (Off -site Pre -installation) 7 $75.00 $525.00I Protect Management/Installation 22 $1 50.00 $3,300.00 Virtual Meetinqs x 2 3 $75.00 $225.00 Larry Enge Managing Partner TOTAL $5,550.00 Page 16 of 20 M�F:�.11:3Y117 01-339 (Back) (R-.7-10/7) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of purchaser, firm or agency City of Fort Worth, Texas Address (Street & number, P.O. Box or Route number) Phone (Area code and number) 100 Fort Worth Trail 817-392-8500 Fort Worth, Texas 76102 I, the purchaser named above, claim an exemption from payment of sales and use taxes (for the purchase of taxable items described below or on the attached order or invoice) from: Seller: All Vendors Street address: City, State, ZIP cod - Description of items to be purchased or on the attached order or invoice: Purchaser claims this exemption for the following reason: I understand that I will be liable for payment of all state and local sales or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. I understand that it is a criminal offense to give an exemption certificate to the seller for taxable items that I know, at the time of purchase, will be used in a manner other than that expressed in this certificate, and depending on the amount of tax evaded, the offense may range from a Class C misdemeanor to a felony of the second degree. Purchaser Title Date sign here'eeeraid Zeno (Man3,aoznio:z3con Chief Financial Officer 03/13/2024 NOTE: This certificate cannot be issued for the purchase, lease, or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax "Exemption Numbers" or "Tax Exempt' Numbers do not exist. This certificate should be furnished to the supplier. Do not send the completed certificate to the Comptroller of Public Accounts. Page 17 of 20 EXHIBIT E COMPENSATION AND PAYMENT SCHEDULE Compensation. a. The City shall pay Contractor an amount not to exceed NINETEEN THOUSAND, EIGHT HUNDRED SIXTY DOLLARS AND ZERO CENTS ($19,860.00) for all services performed, including but not limited to, design and consultation fees, materials required for materials replacement, and any other costs to complete the Work in accordance with the provisions of this Agreement. Contractor 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 Exhibits B and C. c. Compensation for all of Contractor'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. Contractor will not bill City for tax pursuant to Contractor's use of Exhibit D as outlined in section 1.2 of this Agreement. e. Any additional expenses not outlined in this Agreement or attached exhibits that are incurred by Contractor must be approved in writing by Contract Manager before being added to the invoice submitted to the City. 2. Pavment Schedule. City agrees to pay Contractor 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. SIX THOUSAND FOUR HUNDRED FORTY-ONE DOLLARS AND ZERO CENTS ($6,441.00) within thirty calendar days of this Agreement taking effect and after City issuance of a purchase order. b. THREE THOUSAND SIX HUNDRED SIXTY-SIX DOLLARS AND ZERO CENTS ($3,666.00) within thirty calendar days of Contract Manager's verification that replacement panels and pole have been purchased and are ready to install or move to storage. c. THREE THOUSAND DOLLARS AND ZERO CENTS ($3,000.00) within thirty calendar days of Contract Manager's verification that stamped concrete design has been approved by the City; d. THREE THOUSAND FOUR HUNDRED FORTY-THREE DOLLARS AND ZERO CENTS ($3,443.00) within thirty calendar days of Contract Manager's verification that the street construction is complete and the full installation is ready for installation. e. The total compensation listed in section 1(a) of this Exhibit E includes payment for unforeseen changes in the approved repairs from a City -held contingency fund in an amount up to THREE THOUSAND THREE HUNDRED TEN DOLLARS AND ZERO CENTS ($3,310.00) for costs that are incurred by the Contractor upon (i) receipt of supporting documentation by the Page 18 of 20 Contract Manager from the Contractor, and (ii) approval by the Contract Manager of the additional costs. f. Contractor shall submit a signed final 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. g. City shall compensate Contractor in full within thirty (30) days after receipt of Contractor's final invoice and all deliverables. Page 19 of 20 EXHIBIT F AFFIDAVIT OF BILLS PAID Date: Affiant (Contractor): Property (Artwork Site): Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the design, engineering, purchase, and installation of the artwork at the Site pursuant to the contract executed between Affiant and the City of Fort Worth (City Secretary Contract Number ). Affiant is not indebted to any person, firm, or corporation by reason of any work performed pursuant to CSC No. There are no claims pending for personal injury and/or property damages. Affiant (as listed in contract): SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of 2024. Notary Public, State of Texas Print Name Commission Expires Page 20 of 20 FORT WORTH CSC No. 62010 Routing and Transmittal Slip Planning & Data Analytics Department Fort Worth Public Art DOCUMENT TITLE: Professional Services Agreement between the City of Fort Worth and Montage 48/62 for design and repair work to a public artwork titled Urban Quilt installed in the Berry Riverside Urban Village. DATE: TO: 1. Trey Qualls, Assistant City Attorney 2. Eric Fladager, Assistant Director, FW Lab 3. Mark McDaniel, Deputy City Manager JI�ITIALS DATE OUT - J u 116, 2024 FC-P Jut 16,2024 AM 0/0Jul 16, 2024 4. Jannette Goodall, City Secretary �7 J u L 17, 2024 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 ❑ No NEXT DAY: ❑ Yes ❑ X 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, Public Art Collection Manager, Arts Fort Worth at icon n(a)artsfortworth.orq. Thank you!