Ordinance No. 13,212ORDINANCE NO. 13,212
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE A SCULPTURE
AGREEMENT WITH DAVID ADICKES FOR AN EQUESTRIAN STATUE OF SAM
HOUSTON FOR THE SAN JACINTO BOULEVARD PROJECT; AUTHORIZING
PAYMENT IN THE AMOUNT OF TWO HUNDRED THREE THOUSAND AND
NO /100 DOLLARS ($203,000.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 the City
Manager to execute a Sculpture Agreement with David Adickes for an equestrian statue of Sam Houston
for the San Jacinto Boulevard Project. A copy of said agreement is attached hereto as Exhibit "A," and
incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to David
Adickes in the amount of TWO HUNDRED THREE THOUSAND AND NO /100 DOLLARS
($203,000.00) in accordance with the agreement authorized in Section 1 hereinabove.
Section 3: 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,
subject to the provision that the original contract price may not be increased by more than twenty -five
percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediately from
City Council of the City of Baytown. /
INTRODUCED, READ and PASSED by the affirmative vote
Baytown this the 9"' day of June, 2016.
ATT T:
LE CIA LBR-11CH, City Cl r
o
APPROVED AS TO FORM: r
NACIO RAMIREZ, SR., City tto � � ey
,City CouncitOrdinances\2016`
9.SculptureAgreement.doc
after its passage by the
City Council of the City of
S, Mayor
Exhibit "A"
_ CITY OF BAYTOWN
PARKS AND RECREATION DEPARTMENT 2407 Market Street - P.O. Box 424
BATOWN Ba�,town, "rexac 777.522 -0424
(281) 420 -6597 • (281) 420 -65,46 Fax
June 3, 2016
Mr. David Adickes
Sculpturworx
2401 Nance Street
Houston, TX 77020
Re: San Jacinto Boulevard Project
Equestrian statue of Sanl I louston
Dear Mr. Adickes:
This Letter Agreement ("Agreement ") will evidence the terms and conditions by which David
Adickes (the "Artist ") will perform artistic sculpturing service for the equestrian statue of Sam Houston
for the San Jacinto Boulevard Project's roundabout (the "Project ") for and on behalf of the City of
Baytown (the "City ").
Citv's Obligations
1.01 The City shall pay the Artist a fee of TWO HUNDRED THREE THOUSAND AND
NO /100 DOLLARS ($203.000.00) for artistic sculpture services in accordance with the
following schedule:
UPON CITY'S APPROVAL OF:
AMOUNT DUE
Statue Design
$50,000.00
Fabricated, Finished Statue
5100.000.00
Statue Installation at Project
$53,000.00
Should the Statue not be installed for any reason, it is expressly understood that all
payments made by the City to the Artist shall be refunded to the City. Such payment
shall be due within thirty (30) days alter receipt of the invoice or approval of the services.
whichever is later. provided, ho%+evcr, 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 Artist's
subcontractors. Final payment shall not be made until the Project has been completed
and accepted by the City Manager.
1.02 The City will construct or cause to be constructed the base for the Statue to be placed,
which will include a rectangular framework at the top secured to the base. This frame %% ill
be a rectangle approximately 12'x 6' made ol'angle -iron approximately 2 "x 2" x 1/4 ".
1.03 The City will furnish the crane to offload the Statue and lift to the base for erectin�z. The
Artist will oversee this operation and weld the frames together.
1fe-,�
David Adickes Sculpturworx
Letter Agreement
June3, 2016
Page 2
2. The Artist's Obligations
2.01 The Artist will design and sculpt an equestrian statue of Sam Houston dressed in the
attire he would have worn at the Battle of San Jacinto in 1836, riding on his horse
pointing in the direction of San Jacinto (the "Status"), the statue shall be approximately
fifteen feet (15') tall and made of polished concrete over an armature, ( "skeleton ") of
heavy steel, finished with an elastomeric sealant of light stone color, between beige and
white, which will look like marble or carved stone. The Statue will have a base of
approximately I l' 1 I% " by 5' 11 %" which will fit inside and will be securely welded by
the Artist to the frame to be built by the City. The scope of work will include not only
the fabrication of the Statue but also the delivery of the Statue and supervision of the
placement of the same on the base to be built by the City pursuant to Section 1.02. The
Artist shall be present at all times during the installation of the Statue in order to oversee
the installation of the Statue on the site foundation. The City shall be responsible for all
expenses, labor and equipment involved with installation of the Statue and the Artist shall
be responsible for all expenses associated with the shipping and his oversight of the
installation as well as travel to the site.
2.02 Artist shall not use materials or finishes known to be hazardous or potentially hazardous,
including asbestos or any derivative thereof. The Artist shall report to the City any
material or finish potentially hazardous and any action taken by the Artist to minimize or
eliminate the hazard.
2.03 All copyrights in and to the Statue shall be jointly owned by the Artist and the City. It is
expressly agreed that the City may use images of the Statue in any brochure or
advertising with credit given to the Artist. Additionally, the City shall install a plaque at
the Project site identifying the Statue and the Artist.
2.04 The Artist shall perform all services under this Agreement with the care and skill
ordinarily used by members of the Artist's profession practicing under the same or
similar circumstances, time and locality. The Artist warrants that the Statue is solely the
result of the artistic efforts of the Artist and will be delivered to the City fiee and clear of
any liens. The Artist further wan -ants that the Statue will be free of defects in
workmanship or materials.
2.05 All risk of destruction, or damage to the Statue or any part thereof, from any cause
whatsoever, shall be the responsibility of the Artist until delivery and acceptance of the
Statue. Upon delivery and acceptance of the Statue, the risk of loss or damage shall be
borne by the City.
2.06 The Artist shall complete the Project and obtain the City Manager's approval of the same
2.07 within eight (8) months from the date of the City's execution of this Agreement.
THE ARTIST 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
M
David Adickes Sculpturworx
Letter Agreement
June3,2016
Page 3
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY THE ARTIST UNDER THIS CONTRACT CAUSED BY
THE SOLE OR JOINT NEGLIGENCE OF THE ARTIST. IT IS
THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH THE ARTIST AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE
ARTIST TO INDEMNIFY AND PROTECT THE CITY FROM THE
CONSEQUENCES OF THE ARTIST'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 ARTIST FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY 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 Artist shall require its contractors who are to deliver the Statue (hereinafter in this
section the "Contractors ") to 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 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)
Mi
David Adickes Sculpturworx
Letter Agreement
June3, 2016
Page 4
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 Contractor performing any services arising out of this Agreement, the Artist
shall file with the City valid certificates of insurance and endorsements acceptable to the
City evidencing the 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.
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.
E 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.
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 Artist 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 Artist shall
discontinue all services in connection with the performance of the Agreement. Within
ten (10) days after receipt of the notice of termination, The Artist 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. At the same
time that the final statement is tendered to the City, The Artist shall also tender all of the
Artist'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 Artist shall be liable for any damage to the City
resulting therefrom. This liability includes any increased costs incurred by the City in
completing the Artist's work. 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.
IBM
David Adickes Sculpturworx
Letter Agreement
lune3, 2016
Page 5
4.02 The personal skill, judgment and creativity of the Artist is an essential element of this
Agreement. Therefore, although the parties recognize that while Artist may employ
qualified personnel to work under Artist's supervision, Artist shall not assign, transfer or
subcontract the creative and artistic 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
Artist hereby agree that no claim or dispute between the City and the Artist 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 Artist consents to be joined in
the arbitration proceeding if the Artist's presence is required or requested by the City of
complete relief to be recorded in the arbitration proceeding.
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 Artist 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 Artist's work to be performed hereunder.
This release shall apply with respect to the Artist'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
David Adickes Sculpturworx
Letter Agreement
June3,2016
Page 6
receipt thereof, as the case may be, if delivered personally or sent by certified mail, return
receipt requested to the addresses listed on the fast 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 Artist 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 Artist as to the details of performing hereunder means that the Artist
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.
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 Artist. No provision
of this Agreement or act of the City in performance of the Agreement shall be construed
as making the Artist the agent, servant or employee of the City. Employees, interns and
volunteers of the Artist are subject to the exclusive control and supervision of the Artist.
The Artist is solely responsible for employee payrolls and claims arising therefrom. The
Artist shall notify the City of the threat of lawsuit or of any actual suit filed against the
Artist pertaining to this Agreement or which would adversely affect the Artist'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.
Should the above- referenced terms and conditions be acceptable to you, please execute this letter
agreement and return the same to my attention at the above - referenced address. Thereafter, I will present
it to the City Manager for approval. Should you have any questions or if I may be of any assistance,
please do not hesitate to contact me. Thank you for your assistance in this matter.
Sincerely,
Scott Johnson
Director of Parks and Recreation
AGREED:
DAVID ADICKES SCULPTURWORX
By:
DAVID ADICKES Ar (Date)
AGREED:
RICHARD L. DAVIS, City Manager (Date)
RAarenlFiles\ConU = tsWdickes SculpturcXSculpture Agmementdoc