Ordinance No. 15,784 ORDINANCE NO. 15,784
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED SIX HUNDRED
SEVENTY-NINE THOUSAND EIGHT HUNDRED TWO AND 20!100 DOLLARS
($679,802.20) TO NELCO MEDIA, INC., THROUGH THE INTERLOCAL
PURCHASING SYSTEM (TIPS), FOR THE PURCHASE OF EQUIPMENT,
CONSULTING, AND INSTALLATION SERVICES RELATED TO THE BRUNSON
STUDIO FOR THE PUBLIC AFFAIRS DEPARTMENT; MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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WHEREAS, the City has entered into a cooperative purchasing agreement with The Interlocal
Purchasing System("TIPS"); and
WHEREAS, pursuant to such agreement, the City may make purchases based upon the bids
received by TIPS; and
WHEREAS, TIPS has received bids for the construction, rehabilitation, and maintenance of
municipal commercial construction, including projects such as The Brunson Studio; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes payment
not to exceed the amount of SIX HUNDRED SEVENTY-NINE THOUSAND EIGHT HUNDRED TWO
AND 20100 DOLLARS ($679,802.20)to Nelco Media, Inc.,through a cooperative purchasing agreement
with The Interlocal Purchasing System(TIPS) for The Brunson Studio, as outlined in Exhibit "A"with is
incorporated by reference as if fully set forth herein.
Section 2: That pursuant to the provisions of Texas Local Government Code Annotated
§252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) or less,
provided that the original contract price specified in Section 1 may not be increased by more than twenty-
five percent (25%) or decreased by more than twenty-five percent (250,0) without the consent of the
contractor to such decrease.
Section 3: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmativ the Ci Cou_101 of the City of
Baytown this the 25"'day of April, 2024.
CO TO.
✓, ANDON CAPETILL , Mayor
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ELA C ON, City Clerk -'-"k
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APPkOVED A TO FORM:'`'t—
SCOTT LE D, City Attorney
R:Vance Hinds Ordinances\2024 2024.04.25 TIPS Purchase Nelco Media The Brunson.docx
EXHIBIT "A"
AGREEMENT FOR CONSULTING AND INSTALLATION SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
This Agreement ("Agreement") is entered into by and between Nelco Media, Inc.(hereinafter "Consultant")
and the City of Baytown, a home-rule municipality located in Harris and Chambers Counties, Texas (the
"City") for the installation of Studio and Studio Equipment for The Brunson Theater Project(the"Work").
1. City's Obligations
1.01 The City shall pay the Consultant a total fee of SIX HUNDRED SEVENTY-NINE
THOUSAND EIGHT HUNDRED TWO AND 20 100 DOLLARS ($679,802.20) ("Fee")
for the Work in accordance with the following schedule:
UPON CITY'S APPROVAL OF: AMOUNT DUE
Down payment upon execution 50%of Fee) $339,901.10
The remaining 50°a of Fee upon 1000,0 of $339,901.10
the Work Completed, as verified by the
City's Representative,including completion
of punch list and settlement of all bona fide
disputes,plus net 30 days.
Should the Work not be completed for any reason, it is expressly understood that all
payments made by the City to the Consultant shall be refunded to the City minus the value
of equipment and services that has been delivered and completed. Such payment shall be
due within thirty (30) days after receipt of the invoice or approval of the services,
whichever is later; provided, however, no payment shall be made until all the insurance
certificates evidencing the required insurance coverages and endorsements have been
provided to the City, including, but not limited to, that provided by the Consultant's
subcontractors. Final payment shall not be made until the Project has been completed and
accepted by the City Manager. Approval will be expedited and based on the approval
schedule above.
Prices are determined by the Nelco Media, Inc. Quote No. 2204, dated July 17, 2023 from
the TIPS Contract No. 230105 Nelco TIPS No. 4967, which is attached as Exhibit"A" and
incorporated by reference as if fully set forth herein.
2. The Consultant's Obligations
2.01 The Consultant will design and install a studio in The Brunson Theater. The Consultant
shall be present at all times during the installation of the Work in order to oversee the
installation of the Work.
2.02 Consultant shall not use materials or finishes known to be hazardous or potentially
hazardous, including asbestos or any derivative thereof. The Consultant shall report to the
City any material or finish potentially hazardous and any action taken by the Consultant to
minimize or eliminate the hazard.
2.03 It is expressly agreed that the City may use images of the Work in any brochure or
advertising. It is expressly agreed that Consultant may use image of the work in any
brochure or advertising.
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2.04 The Consultant shall perform all services under this Agreement with the care and skill
ordinarily used by members of the Consultant's profession practicing under the same or
similar circumstances, time and locality. The Consultant warrants that the Work will be
installed and completed free and clear of any liens. The Consultant further warrants that
the Work will be free of defects in workmanship or materials.
2.05 All risk of destruction, or damage to the Work or any part thereof, from actions by the
consultant, or their subcontractors, shall be the responsibility of the Consultant until
installation and acceptance of the Work. Upon installation and acceptance of the Work,
the risk of loss or damage shall be borne by the City.
2.06 The Consultant shall establish timelines of equipment and installation once the PO is
received. The Consultant shall complete the Project and obtain the City Manager's
approval of the same within six (6) months from the date of the City's execution of this
Agreement.
2.07
THE CONSULTANT AGREES TO AND SHALL INDEMNIFY
AND HOLD HARMLESS AND DEFEND THE CITY, ITS
OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER
REFERRED TO AS THE "CITY") FROM AND AGAINST ANY
AND ALL CLAIMS, LOSSES,DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL
EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, FOR DAMAGE TO ANY PROPERTY, OR FOR ANY
BREACH OF CONTRACT, ARISING OUT OF, OR IN
CONNECTION WITH THE WORK DONE BY THE
CONSULTANT UNDER THIS CONTRACT CAUSED BY THE
SOLE OR JOINT NEGLIGENCE OF THE CONSULTANT. IT IS
THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH THE CONSULTANT AND THE CITY, THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY THE CONSULTANT TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF THE
CONSULTANT'S OWN NEGLIGENCE, WHETHER THAT
NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF
THE RESULTING INJURY, DEATH OR DAMAGE. SUCH
INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY
ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR
RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS
INDEMNIFIED, THE CONSULTANT FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
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LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE
INDEMNITY PROVIDED FOR IN THIS SECTION 2.07 SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS
LETTER AGREEMENT.
2.08 Consultant, and its contractors and subcontractors involved in the Work
(hereinafter in this section the "Contractors"), shall maintain and keep in force and
effect insurance against claims for injuries to or death of persons or damages to
property which may arise out of or result from the Consultant's and Contractors'
operations and/or performance of the services arising out of this Agreement. Such
insurance coverage shall be primary insurance with respect to the City, its officers, agents
and employees. Any insurance or self-insurance maintained by the City, its officials,
agents and employees shall be considered in excess of the Contractor's insurance and shall
not contribute to it.
The following is a list of standard insurance policies along with their respective minimum
coverage amounts required of the Contractor in this contract:
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Ongoing & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $1,000,000
a. Coverage shall be broad form CGL.
b. Waiver of subrogation in favor of the City required.
c. No coverage shall be excluded from standard policy without notification of
individual exclusions being attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $500,000 or
BI per person $250,000
BI per Accident: $500,000, and
PD per accident: $250,000
a. Coverage for"Any Auto."
b. Waiver of subrogation in favor of the City required.
Prior to the Consultant and Contractor performing any services arising out of this
Agreement, the Consultant shall file with the City valid certificates of insurance and
endorsements acceptable to the City evidencing the Consultant's and Contractor's
insurance. Such certificates shall contain a provision that coverage afforded under the
policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days'
prior written notice has been given to the City via certified mail, return receipt requested.
The following are general requirements applicable to all policies:
a. AM Best Rating of A-:VII or better for all liability policies.
b. Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
c. Liability policies will be on occurrence form.
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d. The City, its officials and employees are to be added as Additional Insured to the
commercial general liability and business automobile policies.
e. Upon request of and without cost to the City, certified copies of all insurance policies
and+or certificates of insurance shall be furnished to the City's representative.
Certificates of insurance showing evidence of insurance coverage shall be provided to
City's representative prior to execution of this agreement.
f. Upon request of and without cost to the City, loss runs (claims listing) of any and.-'Or
all insurance coverage shall be furnished to the City's representative.
2.09 Consultant shall purchase, and provide a copy to the City before any work is performed,
Performance and Payment Bonds in the full amount of contract price for the Work in
Exhibit "A."
3. Term
The term of this Agreement shall begin on the date signed by the City Manager and shall continue
in full force and effect until the services required herein for the Project are completed and accepted
by the City Manager.
4. General Conditions
4.01 The City, besides all other rights or remedies it may have, shall have the right to terminate
this Agreement with or without cause upon ten (10) days' written notice from the City
Manager to the Consultant of the City's election to do so. Upon delivery of any notice of
termination either in person or to the above-referenced address, The Consultant shall
discontinue all services in connection with the performance of the Agreement. Within ten
(10) days after receipt of the notice of termination, The Consultant shall submit a final
statement showing in detail the services satisfactorily performed and accepted and all other
appropriate documentation required herein for payment of services, as well as any non-
reimbursable expenses Consultants asserts the City owes. At the same time that the final
statement is tendered to the City, The Consultant shall also tender all of the Consultant's
work product, whether complete or not, in an acceptable form and format to the City. No
final payment will be made until all work product is so tendered. If this Agreement is
terminated for cause, the Consultant shall be liable for any damage to the City resulting
therefrom. The rights and remedies of the City in this section are in addition to any other
rights and remedies provided by law or under this Agreement.
4.02 The personal skill, judgment and creativity of the Consultant is an essential element of
this Agreement. Therefore, although the parties recognize that while Consultant may
employ qualified personnel to work under Consultant's supervision, Consultant shall not
assign, transfer or subcontract the creative and Consultantic portions of the Project to
another party without the prior written consent of the City.
4.03 Notwithstanding anything to the contrary contained in this Agreement, the City and the
Consultant hereby agree that no claim or dispute between the City and the Consultant
arising out of or relating to this Agreement shall be decided by any arbitration proceeding
including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C.
Sections 1-14), or any applicable State arbitration statute, including, but not limited to,the
Texas General Arbitration Act, provided that in the event that the City is subjected to an
arbitration proceeding notwithstanding this provision, the Consultant consents to be joined
in the arbitration proceeding if the Consultant's presence is required or requested by the
City of complete relief to be recorded in the arbitration proceeding.
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4.04 Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any
right or remedy occurring as a result of any future default or failure of performance.
4.05 By this Agreement, the City does not consent to litigation or suit, and the City hereby
expressly revokes any consent to litigation that it may have granted by the terms of this
Contract or any other contract or agreement, any charter, or applicable state law. Nothing
contained herein shall be construed in any way so as to waive in whole or part the City's
sovereign immunity. The Consultant assumes full responsibility for its work performed
hereunder and hereby releases, relinquishes and discharges the City, its officers, agents,
and employees from all claims, demands, and causes of action of every kind and character,
including the cost of defense thereof, for any injury to or death of any person (whether they
be either of the parties hereto, their employees, or other third parties) and any loss of or
damage to property (whether the property be that of either of the parties hereto, their
employees, or other third parties) that is caused by or alleged to be caused by, arising out
of, or in connection with the Consultant's work to be performed hereunder. This release
shall apply with respect to the Consultant's work regardless of whether said claims,
demands, and causes of action are covered in whole or in part by insurance.
4.06 This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas.
4.07 All parties agree that should any provision of this Agreement be determined to be invalid
or unenforceable, such determination shall not affect any other term of this Agreement,
which shall continue in full force and effect.
4.08 In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed
for or against any party hereto on the basis that such party did or did not author the same.
4.09 All notices, requests and other communications which are required under this Agreement
shall be in writing and shall be deemed to have been duly given upon the delivery or receipt
thereof, as the case may be, if delivered personally or sent by certified mail, return receipt
requested to the addresses listed on the first page of this Agreement.
4.10 The terms of this Agreement constitute the entire understanding between the parties hereto
and no statement, condition, understanding, inducement or representation, oral or written,
expressed or implied, which is not contained herein shall be binding or valid. This
Agreement may only be amended or modified by mutual consent of the parties hereto in
writing signed by both parties.
4.11 The Consultant is and shall at all times be an independent contractor and is not an agent or
employee of the City. Any provisions in this Agreement that appear to give the City the
right to direct the Consultant as to the details of performing hereunder means that the
Consultant shall follow the wishes of the City as to the results of the services to be
performed herein only, which shall comply with all applicable laws and ordinances.
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4.12 The execution of this Agreement and the rendering of services prescribed by this
Agreement do not change the independent status of the City or the Consultant. No
provision of this Agreement or act of the City in performance of the Agreement shall be
construed as making the Consultant the agent, servant or employee of the City. Employees,
interns and volunteers of the Consultant are subject to the exclusive control and supervision
of the Consultant. The Consultant is solely responsible for employee payrolls and claims
arising therefrom. The Consultant shall notify the City of the threat of lawsuit or of any
actual suit filed against the Consultant pertaining to this Agreement or which would
adversely affect the Consultant's ability to perform services under this Agreement.
4.13 This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
4.14 Payments and Interest are governed by Chapter 2251 of the Texas Government Code.
4.15 Inspection of Books and Records The parties to this Agreement shall maintain all books,
documents, papers, accounting records, and other documentation relating to costs incurred
and engineering inspection and testing services performed under this Agreement and shall
make such materials available to the other party or their duly authorized representatives for
review and inspection at its office during the Agreement period and for seven (7) years
from the date of completion of work defined under this Agreement or until any impending
litigation or claims are resolved. Additionally, the parties and their duly authorized
representatives shall have access to all the governmental records that are directly applicable
to this Agreement for the purpose of making audits, examinations, excerpts, and
transcriptions.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the same
Agreement on the____ day of ,202_,the date of the execution by the City Manager of
the City of Baytown.
CITY OF BAYTOWN
JASON REYNOLDS, City Manager
ATTEST:
ANGELA JACKSON, City Clerk-
APPROVED AS TO FORM:
SCOTT LEMOND, City Attorney
CONSULTANT:
Sinn
Printed Na
Title
3166