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Bayliss & Co. LLC/Eng/435,167/Art Installation – Homage to Hoagy Bayliss&Co.,LLC Engineering Department-2018 ��j 0k Appropriation#2017 LOIT Bond Fund P.O.#: 102087 Contract Not To Exceed$435,167.00 •FAO AGREEMENT FOR SALE OF WORK OF ART THIS AGREEMENT FOR SALE OF WORK OF ART ("Agreement") is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (the "Collector"), and Bayliss &Co., LLC. WHEREAS, Bayliss & Co., LLC. is the exclusive representative for the works of Bayliss & Co., LLC (the "Artist"), for the purpose of exhibition and sale of the Artist's works. WHEREAS, the Artist has created (or will create) the Work of Art entitled "Homage to Hoagy" (the "Work"). The Work is described in greater detail in Exhibit A, which is attached hereto and is incorporated herein by this reference. NOW THEREFORE the parties agree as follows: 1. ACKNOWLEDGMENT, ACCEPTANCE: Bayliss & Co., LLC acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: Bayliss & Co., LLC agrees to sell and the Collector agrees to purchase the Work for a total purchase price of Four Hundred Thirty Five Thousand One Hundred Sixty Seven Dollars ($435,167.00) (the "Purchase Price"). The Purchase Price includes the Work and shipping costs. Bayliss & Co., LLC shall pack and arrange pickup and delivery of the completed Work to the Installation Site (the "Site") as specified by the Collector. The Collector shall assume ownership and liability for the Work once it is packed aboard its transport vehicle. The Collector shall be responsible for the cost of delivery and installation of the Work. The Artist shall coordinate with the Collector to prepare the Site for installation. The Collector shall use its best efforts to secure the Site and protect the public during installation of the Work. The Collector will use City of Carmel budget appropriation number 2017 LOIT Bond funds to pay the Purchase Price. 3. PRICE AND PAYMENT TERMS: 3.1 Bayliss & Co., LLC shall submit an invoice for the Purchase Price of the Work to Collector. Collector shall pay Bayliss & Co., LLC the Purchase Price of the Work within thirty (30) days of the execution of this Agreement, so long as and to the extent such Work is not disputed, is in conformance with the specifications set forth in Exhibit A, and Brad Howe has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Bayliss & Co., LLC agrees not to provide any goods and services to Collector that would cause the total cost of the Work provided by Bayliss & Co., LLC to Collector hereunder to exceed the Purchase Price, unless Collector has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Bayliss & Co., LLC expressly warrants that the Work will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Bayliss & Co., LLC by Collector and/or by Bayliss & Co., LLC to and accepted by Collector, all of which documents are incorporated herein by reference, and that the Work will be delivered in a timely, good and workmanlike manner and free from defect. Bayliss & Co., LLC acknowledges that it knows of Collector's intended use and expressly warrants that the Work provided to Collector pursuant to this Agreement has been selected by Bayliss & Co., LLC based upon Collector's stated use and are fit and sufficient for their particular purpose. [S:`Cootracts\Prof.Sva&C.v+As Svcs\Engineamg\20181Bayliss&Co.,LLC Artwork Purchase-Homage to Hoagy.doc:11/9/2018 12.29 PM] 1 Bayliss&Co.,LLC Engineering Department-2018 Appropriation#2017 LOIT Bond Fund P.O.#: 102087 Contract Not To Exceed$435,167.00 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same ("Effective Date"), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6. COPYRIGHT: The Artist, Bayliss & Co., LLC, and/or their successor(s), heir(s), and or assign(s) is/are the copyright owner(s) of the Work and shall retain all copyright ownership in the Work. The Collector agrees to never contest the copyrights of the Artist, Bayliss & Co., LLC, and/or their successor(s), heir(s), and/or assign(s) in the Work. It is understood that any photographic or other image, including any derivative, of the Work may not be used for commercial purposes. If the Collector desires to use a two-dimensional image of the Work for a commercial or non-commercial purpose, the Collector must submit a written request to Bayliss & Co., LLC for approval prior to any such use. Non-commercial two-dimensional images of the Work for media and promotional purposes will generally be permitted. 7. DEFAULT: In the event Bayliss & Co., LLC: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Bayliss & Co., LLC's warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from Collector specifying such failure or breach; or(d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, Collector shall have the right to (1) terminate all or any parts of this Agreement, without liability to Bayliss & Co., LLC; and (2)exercise all other rights and remedies available to Collector at law and/or in equity. 8. INDEMNIFICATION: Bayliss & Co., LLC shall indemnify and hold harmless Collector from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with the sale and/or exhibition of the Work under this Agreement. Bayliss & Co., LLC further agrees to indemnify, defend and hold harmless Collector and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Artist and/or of any of Artist's agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. 9. GOVERNMENT COMPLIANCE: Artist agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Artist's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Artist agrees to indemnify and hold harmless Collector from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 10. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. IS:\Contracts\Prof.Svcs&Good Svcs\Engincering\2018\Bayl ss&Co..LLC Artwork Purchase-Homage to Hoegy.doc:11N2018 12:29 PM] 2 Bayliss&Co.,LLC Engineering Department-2018 Appropriation#2017 LOIT Bond Fund P.O.#: 102087 Contract Not To Exceed$435,167.00 11. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Bayliss & Co., LLC nor any of its officers, employees, contractors, subcontractors and agents are employees of Collector. The Purchase Price set forth herein shall be the full and maximum compensation and monies required of Collector to be paid to Bayliss & Co., LLC under or pursuant to this Agreement 12. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 13. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 14. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to Collector: Collector of Carmel AND Douglas C. Haney, One Civic Square Corporation Counsel Carmel, Indiana 46032 Department of Law One Civic Square Carmel, Indiana 46032 If to Bayliss &Co., LLC: Bayliss & Co., LLC 415 Davis Drive Anderson, IN 46011-2274 ATTENTION: Arlon Bayliss Notwithstanding the above, notice of termination under paragraph 15 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 15. TERMINATION: Notwithstanding anything to the contrary contained in this Agreement, Collector may, upon notice to Bayliss & Co., LLC, immediately terminate this Agreement for cause, in the event of a default hereunder by Bayliss& Co., LLC and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Bayliss & Co., LLC shall be entitled to receive only payment for work completed as of the date of termination, except that such payment amount shall not exceed the Purchase Price, unless the parties have previously agreed in writing to a greater amount. 16. UNAUTHORIZED ALIENS: By signing this agreement, Bayliss & Co., LLC certifies and represents that it does not knowingly employ unauthorized aliens. (S:1ConrtxtetProf.Sva&C..,de Svcs Togmeermg\20l8 Bayliss&Co..LLC Artwork Pease-Homage to Hoagy.da::11/92018 12:29 PM1 3 Bayliss&Co.,LLC Engineering Department-2018 Appropriation#2017 LOIT Bond Fund P.O. #: 102087 Contract Not To Exceed$435,167.00 17. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 18. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 19. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 20. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than Collector and Bayliss & Co., LLC 21. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, Bayliss & Co., LLC shall certify that, in signing this document, it does not engage in investment activities within the Country of Iran. 22. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 23. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Bayliss & Co., LLC and Collector with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. [SACootrects\Prof.Svcs&Goods Svcs\Eogmeermg\2018\Bayliss&Co.,LLC Artwork Purchase-Homage to Hoagy.doc:I1/92018 12,29 PM] 4 Bayliss&Co.,LLC Engineering Department-2018 Appropriation#2016 COLT Bond Fund P.O.#: 102088 Contract Not To Exceed$360.000.(10 IN WITNESS WHEREOF,the parties hereto have made and executed this Agreement as follows: COLLECTOR OF CARMEL, INDIANA BAYLISS& CO., LLC by and through its Board of Public Works and Safety By: By: .`eP oit6wt se:).) ames Brainard, Presidin Officer Authorized Signatur ate: ira(NOM ali4V46S Printed Name Ma Ann urke, e r Date: �/ o�O /$ 04.7NeR - Sh41S -f(.4 l . Air Title Lori S. W:tson, '•m er FIDITIN: 4 — 1:Z Date: bl oZo I,93 Last Four of SSN if Sole Proprietor: AU Date: (Ci { (? Christ' a S. Pautey, erk-Tre ure Date: /f dif IS C•ona,,?,.S..,A Ga.1.S,.••Fn,mmutF:bl N,h..A I'..,IL(An....\Pv.Ac R•M••4.II'.OI'I 1`.N P'II 5 bayliss co. 415 davis drive anderson, IN 46011 -2274 aabayliss@arlonbaylIss non Two Sculptures for the City of Carmel It is my pleasure to present quotations (see attached)for two roundabout sculptures for the City of Carmel. Summary Homage to Hoagy Carmichael at 3rd Avenue SW and City Center Drive After careful review and discussions with our fabricator, BoMar Industries,we are able to quote the following: Homage to Hoagy sculpture,delivery and installation: 323,000 Cast concrete pedestal/base (with veneered stone face) and footing/foundation: 62,617 4 kiosks to compliment sculpture: 25,500 Costs associated with music etc: (see detail) 24,050 Preparation of site and power supply to site: Others TOTAL: $435,167 Rose Theme Sculpture at N.Pennsylvania and Old Meridian Street Also after careful review and discussions with our fabricator, BoMar Industries,we are able to quote the following: Roses sculpture,delivery and installation: 323,000 Footing/foundation: 37,000 Preparation of site and power supply to site: Others TOTAL: $360,000 eteRyt._ November 7,2018 t „Fe3 It,- eN .' —IIo$ ,:, t �' k, • /a •• . i Or •.. Beacon Bloom Roundabout Sculpture-detail City of Carmel.Indiana,USA-September 2017 City of Carmel Arlon Bayliss-Owner City Hall Bayliss&Co.LLC I Civic Square 415 Davis Drive Carmel,IN 46032 Anderson,IN 460 1 1-2274 Bayliss & Co. I Ic PROIECT r:T: :Artwork for Roundabout at 3rd.and City Center Dr,Carmel,IN PROJECT DESCRIP— Jrh:Sculpture Honoring Hoagy Carmichael DESCRIPTION , COST Quote#2571 November 7,2018 Line:1 Sculpture . As per supplied drawing and model . Includes integrated lighting,delivery and installation .Artist coordination with landscape architect re:planting design etc. 325,000 Line:2 Base and Footing/Foundation . Pedestal under sculpture and footing/foundation . Excavation,backfill,reinforced concrete core,limestone facade and installation . Electrical supply to site,finish grade and landscaping by others 62,617 Line:3 Kiosks .As per supplied drawing . Kiosks and signage at 4 crossing points:metal fabrication,paint, engineering,concrete footers and installation 25,500 Line 4: Costs Associated with Music . As per supplied comprehensive list of components 24,050 Design fee . @50%of$4,000 (paid) -2,000 Total $435,167.00 Quote offered by: Arlon Bayliss-Owner Special Note:Due to the Miscellaneous Tariff Bill Act of 2018•the pricing of metals is currently in fluxAs a temporary measure Bayliss&Co.is only able to guarantee quoted materials pricing for 24 hours.If placing an order over 24 hours after receipt of this quote,please contact Bayliss& Co.to confirm materials pricing.Thank you for your understanding of these unforeseen circumstances.Bayliss&Co.anticipates returning to our standard 30 day quote terms once the market stabilizes. Payment terms are to be COD until Bayliss&Co.account is set up and approved.Please refer to quote number when ordering.Above pricing does not include shipping or applicable sales axes unless stated otherwise. Exhibit___A_____ 2©0 bayliss s co. 415 davis drive anderson, IN 46011-2274 aabayiss@arioroaylIss corn Homage to Hoagy Kiosks Costs Associated With Music:Detail 4 Kiosks QTY Type Part# 4 GILDER SD-25 1 GILDER SD-25 KIT 3 GILDER PS-24VDC/2.5A 4 ACDC SPEAKERS 4 POLY WC-39*1508 4 POLY WX-38 4 AUTODIR 12MM MAGNETIC PROXIMITY SENSORS 4 AUTODIR ST12A7W MOUNTING BRACKET 4 AUTODIR MAG-4 1 SHOP SUPPLIES 1 MOUNTING HARDWARE FOR SPEAKERS,SENSORS,AND MAGNETS 1 ACD PRE-ASSEMBLY&TESTING 1 ACD FREIGHT 1 ACD RICK THOMAS SCRIPT production,recording 1 ACD TALENT 1 ACD ON-SITE COMMISSIONING&TESTING TOTAL $24,050 It is recommended that each kiosk is programmed with a unique 1.5 minute soundtrack comprising of music and spoken narrative Note:Cost of music rights and rights acquisition are NOT included. Cceolt. 11/7/2018 Exhibit____ __ �6C3 EXHIBIT B Invoice Date: Name of Company: Address &Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Date Goods/Services Provided Cost Per Hourly Total Goods/Services Goods/ (Describe each good/service Item Rate/ Service separately and in detail) Hours Provided Worked GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker's Compensation&Disability Statutory Limits Employer's Liability: Bodily Injury by Accident/Disease: $100,000 each employee Bodily Injury by Accident/Disease: $250,000 each accident Bodily Injury by Accident/Disease: $500,000 policy limit Property damage,contractual liability, products-completed operations: General Aggregate Limit(other than Products/Completed Operations): $500,000 Products/Completed Operations: $500,000 Personal &Advertising Injury Policy Limit: $500,000 Each Occurrence Limit: $250,000 Fire Damage(any one fire): $250,000 Medical Expense Limit(any one person): $ 50,000 Comprehensive Auto Liability(owned,hired and non-owned) Bodily Single Limit: $500,000 each accident Injury and property damage: $500,000 each accident Policy Limit: $500,000 Umbrella Excess Liability Each occurrence and aggregate: $500,000 Maximum deductible: $ 10,000 bayliss CO. 415 davis drive anderson, IN 46011-2274 aabayliss@arlonbayliss.com November 5, 2018 To:City of Carmel, Indiana Verification: Employer/Employee I hereby verify that Bayliss & Co. LLC does not have any full time or part time employees Sincerely, etewt_c5izie Arlon Bayliss-Principal,Bayliss&Co. o INDIANA RETAIL TAX EXEMPT Page 1 of 1 City ®f Carmel CERTIFICATE NO.003120155 002 0 PURCHASE ORDER NUMBER �j ll ll ll FEDERAL EXCISE TAX EXEMPT 1 02087 ONE CIVIC SQUARE 35-6000972 _ THISNUMBERMUSTAPPEARONINVOICES,A/P CARMEL,INDIANA 46032-2584 VOUCHER,DELIVERY MEMO,PACKING SUPS, SHIPPING LABELS AND ANY CORRESPONDENCE FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL-1997 PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION 11/9/2018 372450 Project 16-ENG-108;Contract Date 11.21.18 BAYLISS&CO.LLC City Engineering's Office VENDOR 415 DAVIS DRIVE SHIP 1 Civic Square TO Carmel,IN 46032- ANDERSON,IN 46011--2274 Kate Lustig PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT 30840 QUANTITY UNIT OF MEASURE DESCRIPTION UNIT PRICE EXTENSION Department: 2200 Fund: 0 2017 LOIT Bond Fund Account: 44-628.71 1 Each Sculpture-Homage to Hoagy-3rd Avenue and City Center $435,167.00 $435,167.00 Roundabout Sub Total $435,167.00 -'"--N.N..\\\ O F GA : s,?\ x 41 .-- eCo.._,, 1 ® ■ S t a i ■ N Send Invoice To: \ w , } City Engineering's Office Kate Lustig 1 Civic Square Carmel,IN 46032- I�IfND 1 a141 PLEASE INVOICE IN DUPLICATE DEPARTMENT _L ACCOUNT I PROJECT I PROJECT ACCOUNT I AMOUNT PAYMENT $435,167.00 SHIPPING INSTRUCTIONS 'A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN SHIP PREPAID. AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN *C.O.D.SHIPMENT CANNOT BE ACCEPTED. THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER. 'PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL 'THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99,ACTS 194: AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. ORDERED BY Jeremy Kash man James Crider TITLE Director Administration CONTROL NO. 1 02087 CLERK-TREASURER