HomeMy WebLinkAboutContract 62607City Secretary Contract No. 62607
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF FORT WORTH AND KIBOWORKS, INC. FOR TECHNICAL
CONSULTATION AND REPAIRS FOR PUBLIC ARTWORK
This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by
and between the City of Fort Worth ("City"), a home-rule municipal corporation of the State of Texas,
acting by and through its duly authorized Assistant City Manager, and KiboWorks, Inc. ("Contractor"), a
California corporation, located at 9580 Oak Valley Parkway, Suite 7-211, Folsom, CA, 95630, acting by
and through Kevin Furry, its duly authorized representative. The City has designated the Arts Council of
Fort Worth & Tarrant County, Inc. D/B/ 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 City Code, 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
Contractors 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, Contractor designed a custom LED lighting system for a lighted sculpture installation
by Dan Corson ("Artist") titled Flight ("Artwork"), installed on February 25, 2021, at the Hemphill-Lamar
Connector, a roadway that runs beneath the Union Pacific Railroad Bridge and Interstate 30, connecting
downtown Fort Worth and the Near Southside between West Lancaster and West Vickery Boulevard, a
depiction of which is attached hereto as Exhibit "A" and incorporated herein for all purposes;
WHEREAS, Artist retired from his public art career prior to the implementation of the Artwork,
and City previously commissioned Contractor as Implementation Artist to fabricate, deliver, and install the
Artwork, which was executed under City Secretary Contract ("CSC") No. 53968 on June 2, 2020;
WHEREAS, the artwork was vandalized on or about October 11, 2024, and requires major repair
of proprietary components of the Artwork;
WHEREAS, the Risk Management Division of the City of Fort Worth filed subrogation claim
1PC08007 on November 12, 2024; and
WHEREAS, in accordance with Section 5 .e. of the aforementioned Artwork Implementation
Agreement, Contractor has provided preliminary off-site assistance and a proposal for travel and day rates
for onsite technical support attached hereto as Exhibit "B" and incorporated for all purposes incident to this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the Parties
agree as follows:
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 1 of20
City Secretary Contract No.
AGREEMENT DOCUMENTS:
The Agreement documents shall include the following:
1. This Professional Services Agreement;
2. Exhibit A— Artwork Description
3. Exhibit B— Contractor's Proposal
4. Exhibit C— Texas Sales and Use Tax Exemption Certificate
5. Exhibit D— insurance Requirements
6. Exhibit E— Compensation Schedule
7. Exhibit F— Affidavit of Bills Paid.
Tbe term "Contractor" shall include the Contractor and his officers, agents, employees, representatives,
servants, contractors, and subcontractors.
The term "City" shall include its officers, employees, agents, and representatives.
The term "Services" shall include, but not be limited to, an on-site evaluation of Artwork for purposes of
identifying necessary technical repairs or improvements.
All exhibits referenced above and attached hereto are incorporated herein and made a part ofthis Agreement
for all purposes. in the event of any conflict between the documents, the terms and conditions of this
Agreement shall control.
1. SCOPE OF SERVICES.
1.l Contractor shall perform all services and will furnish all supplies, materials, and equipment
as necessary for developing an assessment and recommendations for repairs and
improvements. Services shall be performed in a professional manner and in strict
compliance with all terms and conditions in this Agreement.
1.2 At Contractor's request, all equipment provided by Contractor shall be returned to
Contractor, including all controllers, testers, dimmers, and spare parts, so that Contractor
may verify that each is functioning correctly. Contractor agrees to assess, repair, replace,
and return equipment as necessary to restore the Artwork at no cost to the City.
1.3 Contractor, individually and through its subcontractors, shall travel to Fort Worth and
conduct a thorough on-site assessment the Artwork as described in the Contractor's
Proposal, attached hereto as Exhibit `B."
1.4 Contractor, individually and through its subcontractors, shall take all necessary precautions
to protect and preserve the integrity of the Artwork and the Site. If City determines, in its
sole discretion, that Contractor or Contractor's subcontractors have damaged the Site, then
City shall inform Contractor, in writing, of the damage. Contractor, 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 Contractor 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
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 2 of 20
City Secretary Contract No.
payment due to Contractor under this Agreement, which shall be in addition to any and all
other rights and remedies available to City at law or in equity.
1.5 Contractor shall provide a brief written description of work completed following the
completion of services.
1.6 Contractor shall notify City and Contract Manager, in writing, when all services have been
completed in accordance with the terms of this Agreement. included in such notice from
Contractor shall be an affidavit, attached hereto as Exhibit "F" ("Affidavit"), certifying that
all bills relating to services or supplies used in the performance of this Agreement have
been paid.
1.7 Upon request by Contractor, City shall promptly furnish all information and materials
required by Contractor to the extent that such materials are available. City, upon request
by Contractor, shall also provide correct scaled drawings of the Site, if available.
1.8 Contract Manager shall be responsible for obtaining and paying for all necessary permits
and any required traffic barriers appropriate for this Project.
1.9 Contractor shall carry insurance as set out in Exhibit "D." Evidence of required insurance
shall be submitted to the Contract Manager prior to Services being performed. If any part
of the Services will be conducted on City property, then Artist shall submit evidence of
required insurance to the Contract Manager prior to performance of that work.
1.10 Contractor shall coordinate the schedule for services with City and Contract Manager.
Delivery and services may not commence until written permission is delivered to
Contractor by the City.
l.11 Contractor, individually and through its subcontractors, including its fabricator and/or
installer, shall take all necessary precautions to protect and preserve the integrity and finish
of the Site, including but not limited to interior finishes, painted structures, pathways, and
landscaping, while delivering and installing the services. If City determines, in its sole
discretion, that Contractor or Contractor's subcontractors have damaged the Site, then City
shall inform Contractor, in writing, of the damage. Contractor, at their 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 Contractor fails to repair the damages 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 equiry.
2. 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 Contractor by City of any amounts
owed under this Agreement.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 3 of 20
City Secretary Contract No.
3. COMPENSATION.
3.1 City shall pay Contractor an amount up to Five Thousand, Six Hundred Dollars and No
Cents ($5,600.00) which shall constitute full compensation for any and all services to be performed
and materials to be furnished by Contractor under this agreement and in accordance with Exhibit
"B" ("Contractor's Proposal"), and Exhibit "E" ("Compensation Schedule"), including, but not
limited to, supplies, shipping/mailing, labor, insurance, travel expenses, incidental costs, 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, Exhibit "B," or Exhibit "E," �he terms of this Agreement
shall control, followed by Exhibit "E," followed by Exhibit `B."
3.2 City is a tax-exempt organization, and no state or local sales taxes or federal excise taxes
sball 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 "C" ("Texas Sales
and Use Tax Exemption Certificate"), which is attached hereto and incorporated herein for all purposes.
4. TERMINATION.
4.1. Convenience. The City or Contractor may terminate this Agreement at any time and for
any reason by providing the other party with at least 30 days' written notice of termination.
4.2. NON-APPROPRIATION OF FUNDS.
In the event no funds or insufficient funds are appropriated by the Fort Worth City Council 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 26 herein, either party may terminate this Agreement for breach of duty,
obligation, or warranty upon exhaustion of all remedies set forth in Section 26.
4.4. DUTIES AND OBLIGATIONS OF THE PARTIES.
In the event that this Agreement is terminated prior to the expiration date, the City shall pay
Contractor for services actually rendered up to the effective date of termination and Contractor shall
continue to provide the City with services requested by the City and in accordance with this Agreement up
to the effective date of termination. Upon termination of this Agreement for any reason, Contractor shall
provide the City with copies of all completed or partially completed documents prepared under this
Agreement. in the event Contractor has received access to City information or data as a requirement to
perform services hereunder, Contractor shall return all City provided information or data to the City in a
format deemed acceptable to the City.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 4 of 20
City Secretary Contract No.
5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
5.1 Disclosure of Conflicts. Contractor hereby warrants to City that Contractor has made full
disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under
this Agreement. in the event that any conflicts of interest arise after the Effective Date of this Agreement,
Contractor hereby agrees immediately to make full disclosure to 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 City ("City information") as confidential and shall
not disclose any sucb information to a third-party without the prior written approval of City.
5.3 Public Tnformation Act. Contractor acknowledges that City is a government entity under
the laws of the State of Texas and that as such all documents held or maintained by City may be subject to
disclosure under the Texas Public information Act. Tn the event there is a request for information marked
by Contractor as "Confidential" or "Proprietary," City shall promptly notify Contractor. It will be the
responsibility of Contractor to submit to the Texas Attorney General's Office reasons objecting to
disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the
Office of the Attorney General of the State of Texas or by a court of competent jurisdiction.
5.4 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 sball notify 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 City in identifying what
information has been accessed by unauthorized means and shall fully cooperate with City to protect such
City 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 paragraph. City shall give subcontractor reasonable notice of intended audits.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 5 of 20
City Secretary Contract No.
7. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Contractor shall operate as an independent contractor as
to all rights and privileges and work performed under this agreement and not as agent, representative, or
employee of �he 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 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 PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, TO THE EXTENT CAiISED BY THE NEGLIGENT ACT(S) OR OMISSION(S),
MALFEASANCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS,
AGENTS, SERVANTS, OR EMPLOYEES.
8.2 GENERAL INDEMNIFICATION - CONTRACTOR HEREBY COVENANTS AND
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS,
SERVANTS, AND EMPLOYEES, FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS
OFANYKIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR PROPERTYDAMAGE
OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS AND
ANY RESULTING LOST PROFITS), AND 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 INTELLECTtIAL PROPERTY INDEMNIFICATION — Contractor 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 software and/or
documentation in accordance with this Agreernent, it being understood that this agreernent to defend,
settle, or pay shall not apply if City inodifies or misuses the software and/or documentation. So long as
Contractor bears the cost and expense of payment for claims or actions against City pursuant to this
section, Contractor shall have the right to conduct the defense of any such claim or action and all
negotiations for its settlement or compromise and to settle or compromise any such claim; however, City
shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as
necessary to protect City's interest, and City agrees to cooperate with Contractor in doing so. In the event
City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or
action brought against City for infringement arising under this Agreeinent, City shall have the sole right
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 6 of 20
City Secretary Contract No.
to conduct the defense of any such claim or action and all negotiations for its settlement or coinpromise
and to settle or compromise any such claiin; however, Contractor shall fully participate and cooperate
with City in defense of such claim or action. City agrees to give Contractor tiinely written notice of any
such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the
foregoing, City's assuinption of payment of costs or expenses shall not eliminate Contractor'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 comproinise
such use is materially adversely restricted, Contractor 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 docuinentation at no additional charge to City; or (d) if none of the foregoing alternatives are
reasonably available to Contractor, terminate this Agreement and refund all amounts paid to Contractor
by City, subsequent to which City may seek any and all remedies available to City urzder law.
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. Tf 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. COMPLIANCE WITH LAWS. ORDINANCES. RULES. AND REGULATIONS.
Contractor 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 Contractor of any violation of such laws, ordinances,
rules, or regulations, Contractor shall immediately desist from and correct the violation.
11. NON-DISCRIMINATION COVENANT.
Contractor, for itself, its personal representatives, assigns, subcontractors, and successors in
interest, as part of the consideration herein exchanged, 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.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 7 of 20
City Secretary Contract No.
12. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined to
have been delivered when: (1) hand-delivered to the other party, its agents, employees, servants, or
representatives; (2) delivered by facsimile with electronic confirmation of the transmission; or (3) received
by the other party by United States Mail, registered, return receipt requested, addressed as follows:
To CITY:
City of Fort Worth
Attn: Jesica McEachern, Assistant City Manager
100 Fort Worth Trail
Fort Worth, TX 76102-6314
Facsimile (817) 392-8654
To CONTRACTOR:
. :•.•:._.
Attn: Kevin Furry
9580 Oak Valley Parkway
Suite 7-211
Folsom, CA 95630
With copy to Fort Worth City Attorney's Office at
same address, and:
Director of Public Art
Arts Fort Worth
1300 Gendy Street
Fort Worth, Texas 76107
13. SOLICITATION OF EMPLOYEES.
Neither City nor Contractor shall, during the term of this Agreement and additionally for a period
of one year after its termination, solicit for employment or employ, whether as employee or independent
contractor, any person who is or has been employed by the other during the term of this Agreement, without
the prior written consent of the other party. Notwithstanding the foregoing, this provision shall not apply to
an employee of either party who responds to a general solicitation of advertisement of employment by
either party.
14. GOVERNMENTAL POWERS.
It is understood and agreed that City does not waive or surrender any of its governmental powers
or immunities by execution of this Agreement.
15. NO WAIVER.
The failure of the City or Contractor 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 Contractor's respective right to insist upon appropriate performance or to assert any such right on any
future occasion.
16. GOVERNING LAW / VENUE.
This Agreement shall be construed in accordance with the laws of the State of Texas. Tf any action,
whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 8 of 20
City Secretary Contract No.
shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern
District of Texas, Fort Wortb Division.
17. 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.
18. 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.
19. 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.
20. 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.
21. AMENDMENTS.
No amendment, modification, or extension of this Agreement shall be binding upon a party hereto
unless set forth in a written instrument executed by an authorized representative of each party.
22. 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
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.
23. 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.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 9 of 20
City Secretary Contract No.
24. WARRANTY OF SERVICES.
24.1 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.
24.2 If, within one year after completion of Services, City observes any breach
ofwarranty described in this Article 24 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.
24.3 If, after one year from completion of Services, City observes any breach
ofwarranty described in this Article 24 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.
25. IMMIGRATION AND NATIONALITY ACT.
Contractor shall verify the identity and employment eligibility of its employees who perform work
under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon
request by City, Contractor shall provide City with copies of all I-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. Contractor shall adhere to all
federal and state laws as well as establish appropriate procedures and controls so that no services will be
performed by any Contractor employee who is not legally eligible to perform such services.
CONTRACTOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY
PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY
CONTRACTOR OR CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR
LICENSEES. City, upon written notice to Contractor, shall have the right to immediately terminate this
Agreement for violations of this provision by Contractor.
26. INFORMAL DISPUTE RESOLUTION.
Except in the event of termination pursuant to Section 4.2, if either City or Contractor has a claim,
dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that arises
under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution
process. The disputing party shall notify the other party in writing as soon as practicable after discovering the
claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons
for such dispute. Within ten (10) business days of receipt of the notice, both parties shall commence the
resolution process and make a good faith effort, 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. Tf 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. The mediator shall
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page l 0 of 20
City Secretary Contract No.
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. Tf the parties cannot resolve the dispute through
mediation, then either party shall have the right to exercise any and all remedies available at law or in equity
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.
27. TIME EXTENSIONS.
The Parties may mutually agree, in writing, to extend or modify any of the time deadlines set forth
in this Agreement.
28. ISRAEL.
Tf 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 Tsrael; 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 Chapter 2271 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 Agreemenz
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
contract contains a written verification from the company that it: (l) 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 meanings 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 entiry or firearm trade association. The
terms "discriminate," "firearm entity," and "firearm trade association" have the meanings ascribed to those
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page l 1 of 20
City Secretary Contract No.
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.
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page l 2 of 20
City Secretary Contract No. ____ _
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples.
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
Bf:'m9':��----By:•-�4��AtlM.!1-��Jesica McEachern
Assistant City Manager
Date:Ja □ 10, 2025
LIBRARY DEPARTMENT APPROVAL:
APPROVED AS TO FORM AND LEGALITY:
B�_uJ,_�_· -----Trey Qualls, Assistant City Attorney
CONTRACT COMPLIANCE MANAGER:
Kevin rry
Authorized Representati
Date: 1/6/2025
By signing, I acknowledge that I am the person responsible for the
monitoring and administration of this contract, including ensuring
all performance and reporting requin:iments.
Jennifer Conn, Public Art Proj ollection Manager
Arts Fort Worth
ATTEST:
�1� By�---------Jannette Goodall
City Secretary
No M&C Required Form 1295: N/ A
Professional Services Agreement between the City of Fort Worth and KiboWorks, Inc.
Execution Copy Page 13 of20
EXHIBIT A: ARTWORK DESCRIPTION
Flight is a progra�nmed light installation and suspended sculpture installed in the Hemphill Lamar
Connector, a roadway underneath the railway bridge connecting Downtown and Near Southside.
Comprised of a series of polyethylene horn shapes with LED strips inserted into a top-side channel in each
horn, the artwork is programmed to articulate various colors from dusk to dawn. In November 2024,
contractors reported that vandals had cut the DMX cables located in a panel box under the railroad which
caused connection issues and damaged relay connectors and controllers. The DMX cable was replaced in
December 2024.
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 14 of 20
City Secretary Contract No.
EXHIBIT B: CONTRACTOR'S PROPOSAL
''•.
w
KiboWorks
Custom LED Technology
December 5, 2024
City of Fort Worth
100 Fort Worth Trail
Fort Worth, TX 76102
Cost Estimate for technical assessment for Flight
(based on observations and reports made by others.)
Kiboworks will provide an onsite RS485 tech for technical support
work only. Single day rate inclusive of all travel, lodging, per dicm,
and all labor.
Additional days billed at $1200 per day. Equipment rentals, lifts,
lane closures to be provided by others.
All the components sent to our offices for inspection and repair to
be shipped to site prior to arrival.
$3200.00
i��G%�7�
�
Kevin Furry, Kiboworks
9580 Oak Valley Parkway, Suite 7- 211
Folsom, CA, 95630
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 15 of 20
City Secretary Contract No.
EXHIBIT C: TEXAS SALES AND USE TAX EXEMPTION CERTIFICATE
. �, ,,; ���..,
r.�) :: �A...., .�,
Texas Sales and Use Tax Exemption Certification
7his ceRficate Aoec nat reqwm a numt�er t� he velid
M me d pNUqla, Mm t✓ aqrinCy
cicy or Fort wortn, rexeg
aoea,. rs». +a �..�xc v u ea� u m�
200 Texes Sheat
CM. Strb.7tPcaa
Fort Worth, Tazas 76102
1, the putihaser r,amed above, claim an ezempdon Gom paymenR of sales and use 2axes (fo► the purcfiase d b�wble
itemc descr.bed below or on the attached ader or mwice) irom:
Saaer:
Streel addhsa,
Siate. ZIP cade
Dcsuiplbn d fbms ro be pudiore0 a m Me aperl�s0 order or inwioe
All itema. Purchaser acknowladae� that this CeAificate cannot �e used Iw Lhe ourchasa. iease w rerRal pJ e rt�ob►
vehlde.
Purchaeer dama �Ms exemptlon far Ur toNor�g roaeon.
MunicipalAy, Gavemmer�tal Endly
I udeiatand Mal I wii ba liade for payment of eR statr arW iocal sales or use le�res whid� m�y Eeoome due hr taltre M corepy .,e�
�he pronslons W the Teu Code andlor eY eppRcatle �w.
1�mderstendN�etdlsac�hnw>ala�Mense fogwe enexenpG�on oerM4cateb MeaeAerfdtare6b�erristMNbaw. MMe frneol�
NiA'be used Nra mer�r�esdfierMan tl+afexp�aasedYrtlYsoe�Ulxaale. enddepen�ngon Meen�o�sYarLzersds4 C�eaiRsrtaen+syrarg�
lrom a('.less C mrsdemeaaor to e Jelony d the seoord deQree.
r,r�.�w rn _ _ _Cir.
hKo� � �� Finartoe Dheda/CFO �(1 iil�4
NOTE� This certificats cannol bo itsuad (or ihe purctiese, lease, or teMai d a mota vM�cM
THlS CERTfF�CATE DOES NOT REOUrRE A NW18ER TO BE VALIO.
5sles and Use Tax `[xemptlm� 4uri0ers' or 'Taz Ezempf NumDen eo not amt
This certHicate should be furnished to Ua wppl{x_
Do � aend tha complated certl8cata to tiK ComptroUer ot PuWie Aceounb_
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 16 of 20
EXHIBIT D: INSURANCE
Contractor 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
Covera�e and Limits
(a) Commercial General Liability:
$1,000,000 - Each Occurrence
$2,000,000 - Aggregate
(b) Automobile Liability:
$1,000,000 - Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by Contractor, its employees, agents, or
representatives in the course of providing services under this Agreement. "Any vehicle"
shall be any vehicle owned, hired, and non-owned.
(c) Workers' Compensation:
Statutory limits according to the Texas Workers' Compensation Act or any other state
workers' compensation laws where the work is being performed
Employers' liability
$100,000 -
$100,000 -
$500,000 -
Bodily Tnjury by accident; each accident/occurrence
Bodily injury by disease; each employee
Bodily Injury by disease; policy limit
10.2 General Requirements
(a) The commercial general liability and automobile liability policies shall name 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) The workers' compensation policy shall include a Waiver of Subrogation (Right
of Recovery) in favor of City.
(c) A minimum of thirty (30) days' notice of cancellation or reduction in limits of
coverage shall be provided to City. A minimum of ten (10) days' notice shall be
acceptable in the event of non-payment of premium. Notice shall be sent to the Risk
Manager, City of Fort Worth, 100 Fort Worth Trail, Fort Worth, Texas 76102, with copies
to the Fort Worth City Attorney at the same address.
(d) 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 Risk Management. If the rating is below that required, written approval
of Risk Management is required.
City Secretary Contract No.
(e) Any failure on the part of City to request required insurance documentation shall
not constitute a waiver of the insurance requirement.
(� Certificates of insurance evidencing that Contractor has obtained all required
insurance shall be delivered to the City prior to Contractor proceeding with any work
pursuant to this Agreement.
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 18 of 20
City Secretary Contract No.
EXHIBIT E: COMPENSATION SCHEDULE
1. Compensation.
a. The City shall pay Artist an amount not to exceed FIVE THOUSAND SIX HUNDRED
DOLLARS AND ZERO CENTS (5,600.00) for all services performed, including but not limited
to, materials and supplies, labor, insurance, incidental costs, transit, travel, contingencies, and any
costs required for technical support of the Artwork in accordance with the provisions of this
Agreement. Artist and City may amend th is Agreement to allow for additional payment if additional
services are required.
b. Services outlined in this Agreement are based on costs in accordance with Exhibit B— Contractor's
Proposal
c. Compensation for all of Contractor's services performed pursuant to tbis 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 C as outlined in section
3.2 of this Agreement.
e. Any additional expenses not outlined in this Agreement or exhibits incurred by Contractor must be
approved in writing by Contract Manager before being added to the invoice submitted to the City.
2. Payment 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. ONE THOUSAND DOLLARS AND ZERO CENTS ($1,000.00) within thirty calendar days of
this Agreement taking effect and after City issuance of a purchase order.
c. TWO THOUSAND TWO HUNDRED DOLLARS AND ZERO CENTS ($2,200.00) within
thirty calendar days of Contract Manager's verification that Work is complete and operational.
e. The total compensation listed in section 1(a) of this Exhibit E includes payment beyond the
Contractor's travel and day rate and provides for costs approval by the Contract Manager in
advance for additional time required to complete the Work from a contingency fund in an amount
up to TWO THOUSAND FOUR HUNDRED DOLLARS AND ZERO CENTS ($2,400.00).
£ 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.
g. City shall compensate Artist in full within thirty (30) days after receipt of Contractor's final
invoice and all deliverables.
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 19 of 20
City Secretary Contract No.
EXHIBIT F: AFFIDAVIT OF BILLS PAID
Date:
Affiant (Contractor):
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen, if any, in full for all labor
and materials provided to Affiant for any work performed pursuant to this Agreement. Affiant is not
indebted to any person, firm, or corporation by reason of any such work. 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
Notary Public, State of Texas
Print Name
Commission Expires
Professional Services Agreement between the City of Fort Worth and KiboWorks
Execution Copy Page 20 of 20