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Ordinance No. 10,318ORDINANCE NO. 10,318 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A PERSONAL SERVICES AGREEMENT WITH EDD HAYES FOR THE DESIGN AND CONSTRUCTION OF THE FIREFIGHTERS' MEMORIAL; AUTHORIZING PAYMENT IN THE AMOUNT OF ONE HUNDRED FIVE THOUSAND AND NO/] 00 DOLLARS ($105,000.00); AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. 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 negotiate and execute a Personal Services Agreement with Edd Hayes for the design and construction of the firefighters' memorial, under terms and conditions deemed acceptable to the City Attorney and the City Manager. Section 2: That the City Council of the City of Baytown authorizes payment to Edd Hayes in the amount of ONE HUNDRED FIVE THOUSAND AND NO /100 DOLLARS ($105,000.00), pursuant to the agreement identified in Section 1 hereof Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO 1100 DOLLARS ($25,000.00) or less; however, 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 and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 27'h day of April, 2006, CALVIN MUNDINGER, Mayo ty Clerk APPROVED AS TO`FORM: NACIO RAMIREZ, SR. ity Attorney 0 RAKaren\FilesTity Council \0rdinances\2006\Apri1 27\ AuthorizeContract4FirefighterMemorial .doc CITY OF BAYTO WN 2401 Market Street BAYTO'"IN Baytown, Texas. 77520 June 12,2006 Mr.Edd Hayes Edd Hayes Sculpture 302A Main Street Spring,TX 77373 Re: Baytown Firefighters' Memorial Project Life-size Bronze Firefighter Statue Dear Mr.Hayes: This Letter Agreement ("Agreement") will evidence the terms and conditions by which Edd Hayes Sculpture (the "Artist") will perform artistic sculpturing service for the life-size bronze firefighter statue for the Baytown Firefighters' Memorial Project (the "Project") for and on behalf of the City of Baytown(the"City"). 1. City's Obligations 1.01 The City shall pay the Artist a fee of FIFTY-FIVE THOUSAND AND NO/100 DOLLARS ($55,000.00) for artistic sculpture services in accordance with the following schedule: UPON CITY'S APPROVAL OF: AMOUNT DUE 18-inch ma uette depicting a firefighter $10,000.00 life-size clay sculpture $22,500.00 life-size bronze sculpture $22,500.00 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 Artist's subcontractors. Final payment shall not be made until the Project has been completed and accepted by the City's Fire Chief. 2. The Artist's Obligations 2.01 The Artist will design and sculpt a life-size memorial statue honoring fallen firefighters killed in the line of duty. The scope of work will include the following: a. the creation of clay a study, (maquette), of the Artist's own design depicting a Firefighter. Size will be approximately 18 inches tall, (115 life-size); S 1 Mr.Edd Hayes Letter Agreement June 121,2006 Page 2 b. the enlargement of the maquette to life-size and sculpted again in clay; C. the molding and casting of the sculpture into bronze; and d. the supervision of the placement of the statue. 2.02 The resulting life-size bronze sculpture will be cast in a limited edition of eight. All copyrights,by federal law,are automatically retained by the Artist. All molds will remain the property of the Artist. Artist gives the right to Client to use images of the bronze in any brochure or advertising with credit given the Artist. 2.03 The Artist will make available bronze castings of the maquette to the City at a wholesale price,which is 30%off of the retail price. 2.04 The Artist will deliver the finished life-size bronze to Client for installation. Artist will guarantee the life-size bronze against any defects in materials and/or workmanship for a period of one year from installation. This does not cover any damage done to the bronze during installation. 2.05 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. 2.06 The Artist shall complete the Project and obtain the Fire Chief s approval of the same within eight(8)months from the date of the City's execution of this Agreement. 2.07 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 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, Mr.Edd Hayes Letter Agreement June 12,2006 Page 3 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. 2.06 Throughout the term of this Agreement, the Artist at its own expense shall purchase, 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 Artist's operations and/or performance of the services under this Agreement, whether such operations and/or performance be by the Artist, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The Artist's 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 Artist's insurance and shall not contribute to it. Further, the Artist shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability(CGL) General Aggregate: $1,000,000 Products&Completed Operations: $500,000 Personal&Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. 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 t , Mr.Edd Hayes Letter Agreement June 121 2006 Page 4 BI per person$250,000 BI per Accident: $500,000,and PD per accident: $2509000 a. Coverage for"Any Auto." Upon execution of this contract, the Artist shall file with the City valid Certificates of Insurance and endorsements acceptable to the City. 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 Artist shall also file with the City valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: a. AM Best Rating of B+: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. E& 4 can be on claims-made 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. 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. 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 Fire Chief. 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. Mr.Edd Hayes Letter Agreement June 12,2006 Page 5 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. 4.02 Neither the City nor the Artist shall sell,assign,or transfer any of its rights or obligations under this Agreement in whole or in part during the term hereof. 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. i t Mr.Edd Hayes Letter Agreement June 12,2006 Page 6 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 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. Sincer ly, c- Shone Blake Fire Chief AGREED: Edd HaA�SSpture 6 By: r 3 (Date) GZ�I eS Printed Name AGREED: 61ZZ A)� Gary Jackson, Manager (Date) RAKaren\Files\Contracts\Edd Hayes Sculpture\Edd Hayes Sculpture AgreementAmended.doc