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Item 4G M E M O R A N D U M October 31, 2007 TO: Shana Yelverton, City Manager FROM: Steve Polasek, Director of Community Services Approve a personal services agreement with Bill Marquis for the SUBJECT: reconstruction of the log cabin on the hill in Bicentennial Park in the amount of $97,000. Action Requested: City Council consideration to approve a personal services agreement with Bill Marquis for the reconstruction of the log cabin on the hill in Bicentennial Park in the amount of $97,000. Background Information: The Southlake Historical Society donated the logs of an historical cabin to the City this past May to be restored on the hill in Bicentennial Park. As part of their consideration for donation it was also stipulated that the cabin be restored as historically accurately as possible, “with consideration to present day techniques that promise the cabin structure will last for future generations.” City staff, working with the Southlake Historical Society, began exploring experts on building log cabins that could use period tools and historically accurate materials. Bill Marquis whom is one of the pre-eminent log cabin restorers in Texas and resides in the North Texas area is especially well versed in log cabins constructed in the Cross timbers ecosystem. Mr. Marquis has reconstructed numerous log cabins and other structures including work for local communities such as the cities of Farmers Branch (cabin), Euless (log cabin and barn) and Colleyville (barn). Mr. Marquis will provide a value added service by being available throughout the construction project to speak with students from CISD and other groups about the process of building a cabin and using period tools to do so. He will do much more then just build the cabin – he will involve himself in our community. Mr. Marquis meets all of the criteria of the Southlake Historical Society for this project. Once reconstructed, the cabin itself will be approximately fifteen by fifteen feet with a front porch extending the length of the house and approximately three windows. Mr. Marquis will also construct the foundation for the cabin and apply the necessary fire retardant. A rock fireplace with chimney ($10,000) is not included in this proposal; however, it is anticipated that the Southlake Historical Society will seek an SPDC Matching Funds request in the immediate future in order to add this element to the cabin. Financial Considerations: Funding in the amount of $97,000 is identified for this project within the Hotel Occupancy Tax fund. Financial Impact: Ongoing maintenance of the cabin and surrounding site is anticipated at approximately $2,500 annually; however, more detailed costs will be determined prior to completion of the construction phase of the project. Citizen Input/ Board Review: The City Council approved $97,000 from the Hotel Occupancy Tax to be allocated for the re-construction of the log cabin. The City Council approved the donation of the logs to re-build the cabin in May of 2007. The City Council adoption on February 6, 2007 of the Bicentennial Park Schematic Design designating the hill near the water tower as being suitable for a historical interpretation site. City Council designation on May 16, 2006 of the hill at Bicentennial Park as the location for placement of the log cabin. Legal Review: Given the unique nature of the services to be provided this project was not required to be bid per the city attorney but rather negotiated as a personal services agreement. The proposed personal services agreement has been reviewed by city attorney. Alternatives: City Council review and consideration of the proposed personal services agreement. Supporting Documents: Supporting Documents include:  Proposed personal services agreement with Bill Marquis Staff Recommendation: City Council consideration to approve a personal services agreement with Bill Marquis for the reconstruction of the log cabin on the hill in Bicentennial Park in the amount of $97,000. AGREEMENT TO PROVIDE PERSONAL SERVICES THIS AGREEMENT (“Agreement”) is entered into this __ day of ___________, 2007 effective immediately by and between Bill Marquis an individual doing business in the State of Texas ("CONTRACTOR") and the CITY OF SOUTHLAKE, TEXAS, a municipal corporation of the State of Texas ("CITY"). For convenience, CONTRACTOR and the CITY may sometimes be referred herein collectively as “parties” and individually as a “party.” WITNESSETH WHEREAS, CITY desires to engage CONTRACTOR to perform certain personal services requiring a high degree of specialized skill as set forth in this Agreement; and WHEREAS, CONTRACTOR agrees to provide such work and services for the CITY in accordance with the terms of this Agreement; NOW, THEREFORE , for the mutual promises set forth herein, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually agree as follows: Employment of CONTRACTOR 1. . (a) CITY agrees to engage CONTRACTOR and CONTRACTOR hereby agrees to perform the services described in the Scope of Services which is hereby incorporated into this Agreement as Exhibit “A.” The Services provided herein will collectively be referred to as the “project.” (b) Notwithstanding anything to the contrary contained in this Agreement, CITY and CONTRACTOR agree and acknowledge that CITY is entering into this Agreement in reliance on CONTRACTOR’s special and unique abilities with respect to the project that is the subject of this agreement. CONTRACTOR accepts the relationship of trust and confidence established between it and the CITY by this Agreement. (c) CONTRACTOR covenants with CITY to use his best efforts, skill, judgment, and abilities to perform the work in the Project and to further the interests of CITY in accordance with CITY’s requirements, in accordance with the highest standards of CONTRACTOR’s business or area of expertise and in compliance with all applicable national, federal, state, municipal, laws, regulations, codes, ordinances, orders and with those of any other body having jurisdiction. CONTRACTOR warrants, represents, covenants, and agrees that all of the work to be performed by CONTRACTOR under or pursuant to this Agreement shall be of the standard and quality which prevail among similar individuals or businesses of superior knowledge and skill engaged in providing similar services in major United States urban areas under the same or similar circumstances and involving a project such as the Project. CONTRACTOR warrants, represents, covenants, and agrees that the work it performs will be accurate and free from any material errors. (d) CONTRACTOR acknowledges that approval or acceptance by CITY of CONTRACTOR’s services shall not constitute nor be deemed a release of the responsibility and liability of CONTRACTOR or his agents for the accuracy and competency of the services performed under this Agreement; nor shall approval be deemed to be an assumption of such responsibility by CITY for any defect in the work prepared by CONTRACTOR or his agents. Notice to Proceed 2. . No billed work shall be done pursuant to this Agreement until CONTRACTOR is instructed in writing by CITY to proceed. Time of Performance 3. . The services to be performed hereunder by CONTRACTOR shall be undertaken and completed within 180 days of Contractor’s receipt of a written Notice to Proceed from CITY. Work days may be extended with the approval of the City for inclement weather and illness. Compensation 4. . CITY agrees to pay CONTRACTOR a total fee not to exceed Ninety-Seven Thousand Dollars and no cents ($97,000.00) as set forth in the Scope of Services (attached hereto as Exhibit “A”). CONTRACTOR agrees to complete the Project and all services provided herein for said sum. Method of Payment 5. . CONTRACTOR shall submit monthly statements summarizing the task(s) undertaken and the percentage of the task(s) completed during the billing period. Total payments shall not exceed the amount shown in (4), above. CITY shall pay invoices within 30 days of receipt; provided, however, that in the event CITY requests any supporting documentation for charges, payment shall be made within 30 days of receipt of the documentation. Changes. 6. CITY may from time to time require changes in the scope of services of the CONTRACTOR to be performed hereunder. Such changes, which are mutually agreed upon by and between CITY and the CONTRACTOR, shall be incorporated in a written amendment to this Agreement. Services and Materials to be Furnished by CITY. 7. CITY shall furnish the CONTRACTOR with all available information, data, and material CONTRACTOR requests pertinent to the execution of this Agreement. CITY shall cooperate with CONTRACTOR in carrying out the work herein and shall provide adequate staff for liaison with CONTRACTOR. Termination of Agreement. 8. (a) CITY has the right to terminate this Agreement for any reason upon thirty (30) days’ notice to CONTRACTOR. Upon termination pursuant to this paragraph, CONTRACTOR shall be entitled to payment to compensate CONTRACTOR for the services satisfactorily performed from the time of the last payment date to the termination date in accordance with this Agreement, provided CONTRACTOR shall have delivered to CITY such statements, accounts, reports and other materials as required herein, and provided that CONTRACTOR shall have delivered to CITY all reports, documents and other materials prepared by CONTRACTOR prior to termination. CITY shall not be required to reimburse CONTRACTOR for any services preformed or expenses incurred after the date of the termination notice, nor shall CITY reimburse CONSULANT for lost or anticipated profits. Nonappropriation. (b) If the governing body of the CITY fails to specifically appropriate sufficient funds to make the payments due in any Fiscal Year under this Agreement, CONTRACTOR or CITY may terminate this Agreement at the end of the then current Fiscal Year, whereupon CITY will be obligated to pay those amounts then due subject to the provisions herein. Nothing in this Section or elsewhere in this Agreement will be deemed in any way to obligate the CITY or create a debt of CITY beyond its current Fiscal Year. CONTRACTOR HAS NO RIGHT TO COMPEL CITY TO LEVY OR COLLECT TAXES TO MAKE ANY PAYMENTS REQUIRED HEREUNDER, OR TO EXPEND FUNDS BEYOND THE AMOUNT PROVIDED FOR IN THE THEN CURRENT FISCAL YEAR OF CITY. Ownership of Documents. 9. All information and other data given to, prepared, or assembled by CONTRACTOR under this Contract, and other related items shall become the sole property of CITY and shall be delivered to CITY, without restriction on future use with the exception of previously copyrighted material used by CONTRACTOR for informational or educational purposes. CONTRACTOR shall have no liability for changes made to or use of any drawings, specifications, and other documents by the CITY subsequent to the completion of the Project. CITY shall require that any such changes or other use shall be sealed by individual making the change or use and shall be approximately marked to reflect what was changed or modified. Records and Inspections. 10. CONTRACTOR shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of three years after the completion of the Project, or if litigation relating to any aspect of this Agreement is commenced within that year, until there is a final, nonappealable judgment or a settlement agreement has been executed between all the parties. CITY shall have free access at all proper times to such records, and the right to examine and audit the same and to inspect all Project data, documents, proceedings, and activities. Completeness of Contract. 11. This Agreement and the documents incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this contract or any part thereof shall have any validity or bind any of the parties hereto. If there is any conflict between the terms of this Agreement and the documents attached hereto, the terms of this Agreement shall control. This Agreement may not be subsequently modified except by a writing signed by both parties. CITY Not Obligated to Third Parties. 12. CITY shall not be obligated or liable hereunder to any party other than CONTRACTOR. When Rights and Remedies Not Waived. 13. In no event shall the making by CITY of any payment to CONTRACTOR constitute or be construed as a waiver by CITY of any breach of covenant, or any default which may exist on the part of CONTRACTOR and the making of any such payment by CITY while any such breach or default shall exist in no way impairs or prejudices any right or remedy available to CITY in respect to such breach or default. Indemnification.CONTRACTOR AGREES TO INDEMNIFY AND HOLD 14. HARMLESS THE CITY AND ALL OF ITS OFFICERS, EMPLOYEES, COUNCIL MEMBERS AND AGENTS FROM ANY AND ALL CLAIMS BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR DAMAGES, JUDGMENTS, ATTORNEY’S FEES, EXPENSES, INJUNCTIVE OR EQUITABLE RELIEF, INTEREST, PERSONAL INJURY, AND DEATH, THAT MAY ARISE FROM CONTRACTOR’S PERFORMANCE UNDER THIS AGREEMENT, PROVIDED THAT CONTRACTOR SHALL NOT BE REQUIRED TO INDEMNIFY OR HOLD THE CITY HARMLESS FOR THE INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS OF THE CITY TO THE EXTENT THAT SUCH ACTS CAUSE THE INJURIES OR DAMAGES COMPLAINED OF . Personal Services. 15. CONTRACTOR understands that this is a contract for CONTRACTOR’s personal services, and represents that all of the services required hereunder will be performed by CONTRACTOR or under CONTRACTOR's direct personal supervision, and any personnel engaged in the work shall be qualified to perform such services. Independent Contractor 16. . The relationship between CITY and CONTRACTOR will be that of an independent contractor. The parties agree that none of the provisions of this Agreement are intended to create, nor will be deemed or construed to create, any relationship between CITY and CONTRACTOR other than that of independent parties contracting with each other to carry out this Agreement. It is expressly agreed that CONTRACTOR and CONTRACTOR’s personnel, if any, may not for any purposes be deemed to be an officer, employee, agent, partner, joint venturer, ostensible or apparent agent, servant or borrowed servant of the CITY. CONTRACTOR agrees that he will not hold himself out as an agent of the CITY to any persons or entities. Assignability. 17. The parties hereby agree that CONTRACTOR may not assign, convey or transfer its interest, rights and duties in this Agreement without the prior written consent of CITY. Notices. 18. Any notices, bills, invoices, or reports required by this Agreement shall be sufficient if sent by the parties via personal delivery, facsimile, or via United States certified mail, postage paid, to the addresses noted below: If intended for CITY, to: If intended for CONTRACTOR, to: Deputy Director of Community Services _____________________ City of Southlake _____________________ Address: 400 N. White Chapel _____________________ Southlake, Texas 76092 _____________________ Telephone No.: 817.748.8021 _____________________ Fax No.: 817.748.8027 _____________________ Governing Law/Venue. 19. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any action brought to interpret or enforce the terms of this Agreement shall lie in Tarrant County, Texas. Attorney’s Fees/Costs. 20. If any legal proceeding is brought to interpret or enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover from the nonprevailing party, in addition to the prevailing party’s actual damages, reasonable attorney’s fees and court costs, in accordance with Section 271.159 of the Texas Local Government Code. Conflict of Interest. 21. CONTRACTOR represents and warrants that it will complete a Conflict of Interest Questionnaire as required by State law. Legal Construction 22. . In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions thereof; and this Contract shall be considered as if such invalid, illegal or unenforceable provision had never been contained in this Contract. Captions 23. . The captions to the various clauses of this Contract are for informational purposes only and shall not alter any substance of the terms and conditions of this Contract. Successors And Assigns 24.. This Contract shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and, except as otherwise provided in this Contract, their assigns. Entire Agreement 25.. This Contract embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Contract, and except as otherwise provided herein, cannot be modified without written agreement of the parties to be attached to and made a part of this Contract. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement effective the date written above. CITY OF SOUTHLAKE, TEXAS By: ____________________________ Print Name:______________________ Title:____________________________ CONTRACTOR ____________________________ EXHIBIT A SCOPE OF SERVICES AND PAYMENT OF FEES A. Scope of Services: 1. Restore and rebuild a 15’x15’ log cabin with foundation, a front porch extending the length of the cabin, and 3 to 5 windows using the donated remnant materials from 3 log cabins to build a single historically accurate log cabin. 2. All construction materials to be historically accurate. a. Additional required logs to be hewn from trees types utilized in original construction. b. Period hand tools to be utilized in cabin construction. 3. City responsible to deliver donated materials to Contractor renovation work site. Contractor responsible for transportation of logs and other materials to final construction site. 4. Provide proposal for ongoing maintenance, support and repair of cabin after completion of the project. 5. Log cabin built to meet building code and other accepted construction criteria for type of building. 6. Fire retardant applied in order to meet building code/fire code specifications. 7. Provide shop drawings as necessary to include: a. Foundation detail. b. Method and materials used to provide roof. 8. City of Southlake will provide water, electricity and trash disposal receptacle (small dumpster) to the construction site. 9. Assist Southlake Historical Society to raise awareness of project by speaking at society membership/program drives. Speak to Southlake/ Carroll ISD schoolchildren regarding project. Wearing period style dress is preferred whenever reasonable to do so. B. Payment for CONTRACTOR Services: Compensation for each task listed under Section A Scope of Services shall not exceed the amounts listed in the following table: Not to Exceed Task Amount I. Build Log cabin as indicated in scope of services. $97,000 TOTAL $97,000 Potential add-ons Rock fireplace with chimney $10,000 Glass window panes $300 - $500