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HomeMy WebLinkAboutContract 63313CSC No. 63313 SOLE SOURCE PROFESSIONAL SERVICES AGREEMENT BETWEEN TEXAS CUSTOM WORKS INC D/B/A/JADE PATINAS AND THE CITY OF FORT WORTH This SOLE SOURCE 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 Dana Burghdoff, its duly authorized Assistant City Manager, and Texas Custom Works Inc. d/b/a Jade Patinas ("Contractor") a Texas corporation located at 231 Castle Ridge, Red Oak, Texas 75154 and acting by and through J.D. Flynn, its duly authorized owner, each individually referred to as a "party" and collectively referred to as the "parties." City has designated the Arts Council of Fort Worth and Tarrant County, Inc. d/b/a Arts Fort Worth ("Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art Collection Manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of 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, City owns a sculpture titled Birth of Love ("Artwork") by Michael Pavlovsky ("Artist"), a depiction of which is attached hereto as Exhibit "A" and incorporated for all purposes incident to this Agreement, at the Fort Worth Botanic Garden, located at 3200 Botanic Garden Boulevard, 76107; WHEREAS, Contractor is a skilled bronze worker and created and applied a proprietary patination to the Artwork in 2001 in collaboration with the Artist, and at the recommendation of the Artist and approval by the City, Contractor restored the Artwork following damage from the Artwork being hit by a car in 2023; WHEREAS, on March 25, 2025, City approved a sole -source agreement with Contractor to maintain the sculpture, particularly the patina, during regular cleanings scheduled by the Contract Manager; and WHEREAS, the City and Contractor wish to set out the terms and conditions for maintaining the Artwork; NOW, THEREFORE, the City and Contractor, for and inconsideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: The Agreement documents shall include the following: 1. This Sole Source Agreement for Professional Services 2. Exhibit A — The Artwork 3. Exhibit B — Estimate 4. Exhibit C — Compensation and Payment Schedule 5. Exhibit D — Texas Sales and Use Tax Exemption Certificate 6. Exhibit E — Affidavit Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX -1- All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Agreement shall control. The term "Contractor" shall include the Contractor and its officers, agents, employees, representatives, servants, and subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. SCOPE OF SERVICES. 1.1 Contractor shall perform all services and will furnish all supplies, materials, and equipment as necessary to clean the Artwork outlined in this section and Exhibit "B" ("Estimate"). Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. 1.2 Contractor shall review existing conditions and clean the Artwork as necessary to maintain the quality of the patina. Existing conditions hidden or concealed and not available for reasonable visual observation discovered during the performance of the Services will be reported promptly to the Contract Manager prior to commencing further Services. 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. 1.4 All annual services shall be carried out in accordance with fully executed renewals and all Services will be coordinated and scheduled through the Contract Manager. 1.5 Contractor, individually and through its approved subcontractors, shall take all necessary precautions to protect and preserve the Artwork and its site surroundings. If City determines, in its sole discretion, that Contractor or Contractor's subcontractors have damaged the Artwork or its site surroundings, then City shall inform Contractor, in writing, of the damage. Contractor, at its own expense, shall have thirty (30) days from receipt of City's written notice to repair the damage to the satisfaction of City within thirty (30) days after receipt of the notice and at no charge to City. If Contractor fails to repair the damage to the satisfaction of City within thirty (30) 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 or future 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. 1.6 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. 2. TERM. This Agreement shall take effect upon execution by the City ("Effective Date") and shall expire on September 30, 2025 ("Initial Term"). The City may, at its sole discretion, opt to renew and extend this Agreement for up to four additional one-year terms (October 1 through September 30 of the applicable years) (each a "Renewal Term"). Any Renewal Term shall be executed in writing by the parties. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -2- 3. COMPENSATION. 3.1 The City shall pay Contractor an amount not to exceed ONE THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($1,200.00) in accordance with the provisions of this Agreement, Exhibit B, and Exhibit C. If any conflict exists between Exhibit B and Exhibit C, the terms of Exhibit C shall control followed by Exhibit B. Payment from the City to the Contractor shall be made on an invoice basis following receipt of a signed invoice with adequate documentation provided at submission of invoice, all in form acceptable to the City. Contractor shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Contractor not specified by this Agreement unless the City first approves such expenses in writing. Additional services, supplies, rentals, or deliverables must be approved by Contract Manager in writing in advance of performance, and the Contractor will be compensated for any such additional services or reimbursables as agreed to by the parties. 3.2 Payment from City to Contractor shall be made based on an invoice for Services rendered following receipt by City from Contractor of a signed invoice. The invoice shall be submitted to Contract Manager no later than the 151h day following the end of the month during which services were performed. If Contract Manager and/or City requires additional documentation, it shall request the same promptly after receiving the above -described information, and the Contractor shall provide such additional documentation to the extent the same is available no later than the 151h day following the end of the month. 3.3 The City is a tax-exempt organization, and no state or local sales taxes or federal excise taxes shall be due or collected. The City shall provide the Contractor a "Texas Certificate of Exemption" in substantially the same form as that attached and incorporated herein as Exhibit D for use by Contractor in the fulfillment of this Agreement. 3.4 Contractor shall be responsible for the payments of all expenses that are incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to the City, costs of all travel, and costs for the Contractor's agents, consultants, and employees necessary for the proper performance of the Services required under this Agreement. 3.5 In the event of a disputed or contested billing, only the portion being contested will be withheld from payment, and the undisputed portion shall be paid. City shall exercise reasonableness in contesting any bill or portion thereof. No interest shall accrue on any contested portion of the billing until the contest has been resolved. 3.6 For contested billings, the City shall make payment in full to Contractor within sixty days of the date the contested matter is resolved. 3.7 Contractor shall make timely payments to all persons and entities supplying labor, materials, or equipment for the performance of this Agreement. CONTRACTOR SHALL DEFEND, HOLD HARMLESS, AND INDEMNIFY THE CITY FROM ANY CLAIMS OR LIABILITY ARISING OUT OF THE CONTRACTOR'S FAILURE TO MAKE THESE PAYMENTS. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -3- ►1119u I ler.,%Y 1130 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 27 herein, either parry may terminate this Agreement for breach of duty, obligation, or warranty upon exhaustion of all remedies set forth in Section 27. 4.4. Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the expiration date, the City shall pay Contractor for services actually rendered up to the effective date of termination and Contractor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as a requirement to perform services hereunder, Contractor shall return all City - provided information or data to the City in a format deemed acceptable to the City. 141111111111117f.Yy1C133":91MK41130010to] lk elM4113-M1711eu110alei011]70715N11130 5.1. Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to the City in writing. 5.2. Confidential Information. Contractor, for itself and its officers, agents, and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third -party without the prior written approval of the City. 5.3. Unauthorized Access. Contractor shall store and maintain City information in a secure manner and shall not allow unauthorized users to access, modify, delete, or otherwise corrupt City information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event Contractor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this contract or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of the Contractor involving transactions relating to this Contract at no 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 Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -4- compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers, and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights, 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 and 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 PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S) OR OMISSION(S), MALFEASANCE, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. 8.Z INDEMNIFICATION. CONTRACTOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES, FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS OFANYKIND OR CHARACTER, WHETHER REAL 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 ACTS OR OMISSIONS, MALFEASANCE, NEGLIGENCE, OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS, OR EMPLOYEES. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -5- 8.3. INTELLECTUAL 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 Agreement, it being understood that this agreement to defend, settle, or pay shall not apply if City modifies or misuses the software and/or documentation. So long as Contractor bears the cost and expense of payment for claims or actions against City pursuant to this section, Contractor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Contractor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement, City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Contractor shall fully participate and cooperate with City in defense of such claim or action. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses shall not eliminate Contractor's duty to indemnify City under this Agreement. If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained, or if as a result of a settlement or compromise such use is materially adversely restricted, Contractor shall, at its own expense: (a) procure for City the right to continue to use the software and/or documentation; (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; (c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non -infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives are reasonably available to 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 under 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. 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. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -6- 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. Coveraize 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 $1,000,000 Each Occurrence $1,000,000 Aggregate 10.3. General Requirements. (a) The commercial general liability and professional liability policies shall name the City as an additional insured thereon, as its interests may appear. The term "City" shall include its employees, officers, officials, agents, and volunteers with 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. 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 City Attorney at the same address. (c) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of City's Risk Management. If the rating is below that required, written approval of City's Risk Management is required. (d) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (e) Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to the City prior to Contractor proceeding with any work pursuant to this Agreement. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -7- 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 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. 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: City of Fort Worth Attn: Dana Burghdoff, Assistant City Manager 100 Fort Worth Trail Fort Worth TX 76102 With Copy to the City Attorney at same address, and: Anne Allen, Public Art Program Manager Arts Fort Worth 1300 Gendy Street Fort Worth TX 76107 14. SOLICITATION OF EMPLOYEES. Texas Custom Works Inc d/b/a/Jade Patinas Attn: J.D. Flynn 231 Castle Ridge Red Oak, Texas 75154 Neither the City nor Contractor shall, during the term of this Agreement and additionally for a period of one (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the other party. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS/IMMUNITIES. It is understood and agreed that the City does not waive or surrender any of its governmental powers or immunities by execution of this Agreement. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -8- rl�\to] iA%1 W 04 ►M The failure of the City or Contractor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Contractor shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance, or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems, and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party, and if it so chooses its counsel, have had the opportunity to review and revise this Agreement and that the normal rule of contract construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or the exhibits attached hereto and incorporated herein. 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 Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -9- 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 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 Services 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 Services 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. 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 and 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. 27. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, if either City or Contractor has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered, or any warranty that Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas - 10- 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 parry shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 28. TIME EXTENSIONS. The Parties may mutually agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. 29. ISRAEL. If Contractor is a company with ten (10) or more full-time employees and 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 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 Agreement. 30. 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: (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 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. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas [c3l4111111111WIRW.113UKIEW"1UluMel YY11IM11lei DIM111Y131x.M 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 meanings 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. (signature page follows) Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -12- GTca01W1Y0117MD7:TI4SD1D)03 CITY OF FORT WORTH: By: Dana Burghdoff (Ma Q, 2025�2�:45 CDT) Dana Burghdoff Assistant City Manager Date: 05/20/2025 RECOMMENDED FOR APPROVAL rX�L By: Midori Clark (May 20, 2025 16:35 CDT) Midori Clark Library Director APPROVED AS TO FORM AND LEGALITY: TYeti QaaUs By:Trey Qualls (May 20, 2025 16:20 CDT) Trey Qualls Assistant City Attorney TEXAS CUSTOM WORKS INC D/B/A/JADE PATINAS J.D. Flynn Owner Date: CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. G Jennifer Conn, Public Art Colle n Manager Arts Fort Worth �p4vonn�� F�Rr�O9.ld -o Pvo g=d ATTEST: °oars° a . �Unaa'd'O' By• Jannette Goodall, City Secretary CONTRACT AUTHORIZATION: M&C: N/A Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX -13- ACCEPTED AND AGREED: CITY OF FORT WORTH: By: Dana Burghdoff Assistant City Manager Date RECOMMENDED FOR APPROVAL By: Midori Clark Library Director APPROVED AS TO FORM AND LEGALITY: 9-0 Trey Qualls Assistant City Attorney TEXAS CUSTOM WORKS INC D/B/A/JADE PATIN By: J.D. Fly4 Owner Date: 5-17-2025 CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Jennifer Conn, Public Art Collection Manager Arts Fort Worth ATTEST: By: Jannette Goodall, City Secretary CONTRACT AUTHORIZATION: M&C: NIA Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -13- Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas EXHIBIT A THE ARTWORK L: Birth of Love (2001) Michael Pavlovsky Botanic Garden 3200 Botanic Garden Boulevard, 76107 Fort Worth, Texas 76104 -14- EXHIBIT B ESTIMATE JADE PATINAS DATE: 3-25-2025 CITY OF I=ORT WORTH 231 Castle Rid�,Q.e - Reci Oak, Tx 75154 317-253-42e9 E-MAIL: jadepatinasMgmailxom 1 Cleaning and restoration for the bronze sculpture "Birth Of Love" _ by Mike Pavlovsky I have a yearly maintenance for the sculpture cf $1000. Since it has been over a year I am providing an additional $200 incase any minor patina touch up is necessary. Total: $1000 - $1200 � L RQICK� y� y71f' yO1(l" �ULfdd. Jt�.r Gt'C�JL ��CfQd/Vp f4' lel7%�'K� [�IL� 07G O'1G�O�U� .7D✓✓. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas 9 -15- EXHIBIT C COMPENSATION AND PAYMENT SCHEDULE Compensation. a. The City shall pay Contractor an amount not to exceed ONE THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($1,200.00) for all services performed and materials, including but not limited to, insurance, incidental costs, contingencies, and any costs associated with the repair and 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 the Contractor's Estimate. 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 1.6 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 upon completion of services under this Agreement. f. Contractor shall submit a signed invoice to the City's Contract Manager for payment under this Agreement within fifteen (15) days of completing services under this Agreement and include any necessary receipts. g. City shall compensate Contractor in full in thirty (30) days or less after receipt of Contractor's final invoice and all deliverables. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -16- EXHIBIT D ®� Y 01-339 (Back) (Rev.4AM) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid None of pUrohaser, firm or agency City of Fort Worth, Texas Address (Street & number, P.O. Box orRou£e number) 200 Texas Street City, State. ZIP code Fort Worth, Texas 76102 Phone (Area code and number) 817-392.8360 lj 1 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 codP- Description of items to be purchased or on the attached order or invoice: All items. Purchaser acknowledges that this Certificate cannot be used for the purchase, lease or rental of a motor vehicle. Purchaser claims this exemption for the following reason: Municipality, Govemmental Entity 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 andior all applicable law. I understand thatitisa criminal offense togive an exemption certificate to the sellerfortaxableitems thatl know, atthe time ofpurchase, will be usedin a manner otherthan thatexpressed in this certificate, and depending on the amountottaxevaded, the offense mayrange from a Class C misdemeanor to a felony of the second degree. PufChaser Title Date S�NIVj1�1�f �6, Xl6 sign 1 �� sera Finance Director/CF0 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. Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -17- Date: Affiant (Contractor): Project: I*:401113118M AFFIDAVIT OF BILLS PAID Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's subcontractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the Project. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damage related to this Project. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of 12025. Notary Public, State of Texas Print Name Commission Expires Sole Source Professional Services Agreement between City of Fort Worth and Texas Custom Works Inc d/b/a Jade Patinas -18-