HomeMy WebLinkAboutProfessional Service Agreement with J. Amber Conger dba Refinerii for Meridian City Hall Public Art ProjectPROFESSIONAL SERVICES AGREEMENT
MERIDIAN CITY HALL PUBLIC ART PROJECT
This AGREEMENT FOR PROFESSIONAL SERVICES/MERIDIAN CITY HALL
ARTWORK ("Agreement") is made this 3rd day of February, 2009 ("Effective Date"), by and
between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho
("City"), and J. Amber Conger, on behalf of Refinerii, a Limited Liability Company organized under
the laws of the State of Idaho ("Artist"). (City and Artist may hereinafter be collectively referred to as
"Parties.")
WHEREAS, the City desires that public art will be a component of Meridian City Hall and to
that end, the Meridian Arts Commission issued the Request for Proposals ("RFP") attached hereto as
Exhibit A, seeking artists' general proposals for public art installations;
WHEREAS, a selection panel comprised of representatives of the Meridian Chamber of
Commerce, the City Parks and Recreation Department, the Meridian Historical Preservation
Commission, the Meridian Arts Commission ("MAC"), and the community reviewed the responses to
the RFP and selected Artist as one of three finalists to create specific proposals;
WHEREAS, Artist created the proposal for two pieces of artwork as set forth in Exhibit B
hereto ("Works"), and, following a public comment period, the selection panel's evaluation of Artist's
proposal in light of the stated criteria and public comments collected, and the panel's recommendation
to the Meridian City Council that Artist's proposal be accepted, the Meridian City Council did adopt
such recommendation at its regular meeting on December 23, 2008;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants
herein contained, the Parties agree as follows:
I. SCOPE OF SERVICES.
Artist shall design and fabricate the Works, as described and depicted in Exhibit B, and shall install
such Works at Site #1, over the Meridian City Hall entryway, and at Site #2, the alcove outside City
Council chambers, as such Sites are described in the RFQ attached hereto as Exhibit A.
II. COMPENSATION.
A. Total amount. The total payment to Artist for the design, fabrication, and installation of the
Works shall be $25,000.00. This amount shall constitute full compensation for any and all
services, materials, and costs to be performed or furnished by Artist. Of this amount, $9,500.00
will be provided by an Idaho Commission on the Arts Public Art and Cultural Facilities grant;
$10,000 will be provided by the City of Meridian; and $5,500 will be provided by private
donors.
B. Method of payment. Artist shall provide City with an invoice for services and/or materials
provided during the billing period, which City shall pay within thirty (30) days of receipt. City
shall not withhold any federal or state income taxes or Social Security tax from any payment
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CITY HALL ENTRYWAY & COUNCIL CHAMBERS ART PAGE 1 Of 10
made by City to Artist under the terms and conditions of this Agreement. Payment of all taxes
and other assessments on such sums shall be the sole responsibility of Artist.
C. Payment schedule. Artist shall be paid per the following schedule:
$7,500.00 shall be paid to Artist within fourteen (14) days of submission of a timeline for
construction and installation of the Works as approved by the Designated Representative of
the Meridian Arts Commission ("DRMAC").
2. $7,500.00 shall be paid to Artist within fourteen (14) days of submission of a detailed plan
for installation of the Works at the Sites as approved by the DRMAC.
3. $7,500.00 shall be paid to the Artist within fourteen (14) days of completion of fabrication
of the Works, or all components thereof, as approved by the DRMAC.
4. $2,500.00 shall be paid to the Artist within fourteen (14) days of Final Completion, which
shall be defined as the complete installation of the completed Works at the Sites, as
confirmed by City; Artist's submission of a maintenance plan to the DRMAC, submission
of an mutually agreed-upon indemnification agreement as provided by the City Attorney's
Office, and waivers of lien from any and all sub-contractors, as approved by Meridian City
Council; and final inspection and approval of the installation by Meridian Building
Department.
III. TIME OF PERFORMANCE.
A. Timeline. In working towazd the installment of the Works, the Parties shall comply with the
following timeline:
1. By 5:00 p.m., February 13, 2009: Artist shall submit to the DRMAC a general plan and
timeline for construction and installation of the Works. The DRMAC shall approve or
approve as modified such timeline within seven (7) days of receipt.
2. By 5:00 p.m., February 20, 2009: Artist shall submit to the DRMAC a detailed plan and
timeline for construction and installation of the Works at the Sites, which plan shall be
reached following: a) consultation with the City's Maintenance Supervisor, Building
Inspection Coordinator, Development Services Manager, Mayor's Office, and the contract
engineer who engineered the beam from which the entryway component of the Works will
be suspended; and b) approval by the Meridian Building Department. The DRMAC shall
approve, or approve as modified, such plan within seven (7) days of receipt.
By 5:00 p.m., May 29, 2009: Artist shall complete fabrication of the Works, and obtain
approval of such fabrication by the DRMAC. The DRMAC shall approve, or approve as
modified, such Works within seven (7) days of Artist's notice of such completion. The
DRMAC shall determine that the Works aze in keeping with Artist's representations. Non-
material design refinements and/or improvements shall be left to the discretion of the Artist.
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4. By 5:00 p.m., June 5, 2009: Artist shall cause the final installation of the Works and fmal
inspection and approval of the installations thereof by the Meridian Building Department.
Artist shall immediately notify the DRMAC of any material delay that occurs or is
anticipated affecting the installations.
5. By 5:00 p.m., June 19, 2009: Artist shall be responsible for Final Completion, which shall
be defined as completed installation and inspection of the completed Works at the Site and
Artist's submission of a) a long-term maintenance plan for the Works to the DRMAC,
which plan shall be prepared by Artist; b) a mutually agreed-upon indemnification
agreement, the first draft of which agreement shall be prepared by City; c) full releases and
waivers of lien from any and all subcontractors and/or major suppliers involved with the
Works, which releases/waivers shall be prepared by City; c) express waiver of any and all
right, title, or interest in the Works, which waiver shall be prepared by City; and d)
preliminary approval by Meridian City Council. The Meridian City Council may extend the
date of Final Completion for a reasonable amount of time only if such delay is due to
circumstances and events beyond the control of Artist or is allowed under a written
agreement by the Parties.
6. By 5:00 p.m., July 8, 2009: Provided that Artist has carried out Final Completion and
submission of all releases, waivers, and plans as provided herein, City shall execute Final
Acceptance of the Works, which shall be defined as adoption of a resolution indicating that
the City accepts the delivery of the Works as designed, fabricated, and installed.
B. Time of the essence. Artist acknowledges that services provided under this Agreement shall be
performed in a timely manner. The Parties acknowledge and agree that time is strictly of the
essence with respect to this Agreement, and that the failure to timely perform any of the
obligations hereunder shall constitute a breach of, and a default under, this Agreement by the
party so failing to perform.
C. Inspection. The Artist shall provide the DRMAC and/or City with reasonable opportunities to
review the progress of the Works to ensure compliance with the timeline, upon DRMAC's or
the City's request. If during such inspection, or the approval processes required herein, the
DRMAC or City concludes that the Works or any portion or component thereof do not conform
to the proposal as described and depicted in Exhibit B hereto or as mutually agreed by the
Parties in writing, notice of specific non-conformity and request for Artist to address the
specified non-conformity shall be given to Artist in writing as soon as practicable. Artist shall
have fourteen (14) days to address and correct any non-conformity. If, upon DRMAC's/City's
re-inspection, the DRMAC or City concludes that the Works or the nonconforming portion or
component thereof remain nonconforming, termination procedures may commence. The
DRMAC'slCity's failure to disapprove in writing shall constitute presumptive approval of the
Works as inspected.
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IV. INSTALLATION, MAINTENANCE AND REPAIRS.
A. Installation coordination. During the installation of the Works or any portion or component
thereof Artist shall coordinate all such activities, and/or the activities of her subcontractors and
employees, with the City's Maintenance Supervisor. At the time and on the date mutually
agreed-upon by the Parties, the City's Maintenance Supervisor or designee shall cause the
removal of the ceiling panels as necessary to access the beam from which the entryway
component of the Work shall be suspended.
B. First year following Final Acceptance. Artist shall be fully responsible for all parts and
workmanship of the Works for a period of one (1) yeaz after City's Final Acceptance of the
Works, and during such yeaz shall replace any defective parts and/or rework any defective
craftsmanship in a timely fashion at no cost to City, except that during such year Artist shall not
be required to replace or repair any damage to the Works caused by City; by City's agents,
employees, visitors, or volunteers; or by an act of God.
C. Determination of need for repair. At all times, including the first year following Final
Acceptance, City shall make any and all determinations regazding whether the Works' parts
and/or craftsmanship require maintenance, restoration, or repair. Artist shall be encouraged to
provide input regarding such matters, as Artist may deem appropriate or upon City's request,
but all decisions regarding the need for maintenance, restoration, or repair shall be made by
City.
D. Maintenance, restoration, and repair. City shall provide basic maintenance, restoration, and
repair of the Works at its own cost. Where practical, City shall give Artist first right of refusal
to perform and/or act as consultant regazding repairs or restoration. Artist shall be entitled to
reasonable compensation for such labor. In the event that the Works aze damaged or destroyed,
City shall restore the Works, subject to receipt of any insurance proceeds and availability of
sufficient funds.
V. CREATION, INTEGRITY, AND OWNERSHIP OF WORKS.
A. Waiver and relinquishment of rights. Between Artist's Final Completion and City's Final
Acceptance, Artist shall expressly waive any and all right, title, or interest in the Works. Artist
understands that this waiver includes waivers of the exclusive rights of reproduction,
adaptation, publication, and display. Artist agrees to relinquish any and all rights, title, and
interest to the Works developed in connection with this Agreement, and hereby expressly
waives any rights Artist has to the Works, including, but not limited to, the rights afforded
artists under the Copyright Act of 1976 and the Visual Arts Rights Act of 1990, Title 17 U.S.C.
§ § 101 et seq. Artist understands and agrees that the right of attribution and integrity, as
specifically set forth in 17 U.S.C. § 106A, aze hereby expressly waived except as otherwise
provided herein. To the extent that the provisions of this Agreement differ with the Copyright
Act of 1976 and Visual Arts Rights Act of 1990, the provisions of this Agreement will govern
and any such differences in the rights and duties created thereunder are expressly waived.
B. Limited edition. The Works shall each be a limited edition of one (1). Artist warrants and
represents that the Works designed, fabricated, and installed pursuant to this Agreement has
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never heretofore been designed, fabricated, installed, created, published, or copied and that
Artist is the sole creator and owner of all rights in the Works and the design thereof.
C. Ownership. Upon City's Final Acceptance, the Works shall be owned by City.
D. No copyright. Artist shall not make any claim to the copyright of the Works.
E. Photographs of Works by City. City may photographically reproduce the image of the Works
and all preliminary studies, models and maquettes thereof that have been delivered to and
accepted, as City may desire for educational and public information purposes. Where
practicable and to the extent of City's authority, Artist shall be acknowledged on each such
photographic reproduction to be the creator of the original subject thereof, provided that
photographic reproductions of preliminary studies, models and maquettes shall not be identified
as or represented to be the finished Works.
F. Photographs of Works by Artist. Artist may photographically reproduce the image of the
Works and all preliminary studies, models and maquettes thereof, as Artist may desire for
marketing, educational and public information purposes. Where practicable, Artist shall
acknowledge on each such photographic reproduction the location of such Works, provided that
reproductions of preliminary studies, models and maquettes shall not be identified as or
represented to be the finished Works.
G. Models of Works. City shall at no time create any model, maquette, replica, copy, or any other
three-dimensional reproduction of Works or any component thereof for any purpose without
first entering into a mutually agreed-upon written agreement with Artist governing the creation,
use, and/or sale of such model, maquette, replica, copy, or reproduction. Upon Final
Completion, Artist shall not create any new model, maquette, replica, copy, or any other three-
dimensional reproduction of Works or any component thereof for any purpose without first
entering into a mutually agreed-upon written agreement with City governing the creation, use,
and/or sale of such model, maquette, replica, copy, or reproduction. This provision shall not
prevent Artist's creation of any model or mock-up for purposes of designing and/or engineering
Works prior to Final Completion.
H. Alteration of Works. If any alteration occurs to the Works after installation, whether
intentional or accidental and whether caused by City or others, upon written request of Artist,
such Works shall no longer be represented to be the work of Artist. Other than as specified
herein, Artist specifically waives the right to claim any other remedy concerning the alteration
of the Works as provided for under Idaho or federal law, whether by statute or otherwise.
I. Use of City name. City hereby conveys to Artist permission to use City's name in all forms
and media and in all manners, including, but not limited to, exhibition, display, advertising,
trade, and editorial uses, without violation of City's rights of privacy or any other rights City
may possess in connection with its commission and purchase of the Works.
J. Removal from display. City shall have the right to remove the Works from public display. In
the event that City determines that the Works or either component thereof shall be sold, Artist
shall be provided the first right of refusal to purchase the Works or such component from City.
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Should Artist choose to purchase the Works pursuant to this provision, the price of the Works
shall be the fair market value thereof. This provision shall expire upon the death of Artist and
shall not be extended to Artist's estate unless City so elects.
K. Subcontracting or assignment of obligations. Artist shall not subcontract or assign any of her
obligations under this Agreement that require or that may require her artistic talent or expertise.
Artist may subcontract or assign obligations that do not require her artistic talent or expertise,
including, but not limited to, such obligations as transport and installation of the Works, and
other obligations as outlined in Artist's proposal as set forth in Exhibit B. Any subcontractor or
assignee shall• be bound by all the terms and conditions of this Agreement.
VI. INDEMNIFICATION, WAIVER, AND INSURANCE.
A. Indemnification. Artist shall indemnify, save, and hold harmless the City and any and all of its
employees, agents, volunteers, and/or elected officials from any and all losses, claims, and
judgments for damages or injury to persons or property, and from any and all losses and
expenses caused or incurred by Artist, her servants, agents, employees, guests, and/or business
invitees, occurring before City's Final Acceptance of the Works.
B. Waiver. Artist waives any and all claims and recourse against City, including the right of
contribution for loss and damage to persons or property arising from, growing out of, or in any
way connected with or incident to Artist's performance of this Agreement, whether such loss or
damage may be attributable to known or unknown conditions, except for liability arising out of
concurrent or sole negligence of City or its officers, agents or employees.
C. Insurance to be obtained by City. City shall obtain all necessary property and commercial
general liability insurance as may be required in order to protect its insurable interests for its
rights and obligations described within this Agreement. Upon City's Final Acceptance of the
Works, City shall obtain property insurance for the Works.
D. Insurance to be obtained by Artist. Artist shall obtain and shall maintain, at her own
expense, from the Effective Date of this Agreement through City's Final Acceptance of the
Works, each and all of the following:
1. General liability insurance. General liability insurance with a limit of not less than one
million dollars ($1,000,000.00) per each occurrence, combined single limit bodily injury
and property damage, covering the actions and omissions of Artist and her employees,
agents, and/or workers in fabricating, transporting, and installing the Works and/or
components or materials thereof, including coverage for owned, non-owned, and hired
vehicles, as applicable.
2. Workers' compensation insurance. Artist shall obtain and shall maintain, at her own
expense, from the Effective Date of this Agreement through City's Final Acceptance of the
Works, throughout the course of this Agreement, workers' compensation insurance, in an
amount required by law, to cover any and all persons employed by Artist.
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3. Insurance of Works. Before commencing fabrication of the Works, Artist shall procure
and maintain, at her own expense, from the Effective Date of this Agreement through City's
Final Acceptance of Works, insurance on the Works in an all-risk form with limits of not
less than one hundred thousand dollars ($100,000), and any deductible not to exceed five
hundred dollars ($500) each loss, with any loss payable to City. Artist agrees to bear all
risks of loss of and/or damage to the Works until City's Final Acceptance of Works.
E. Proof of insurance. Artist shall provide to City, within seven (7) days of the Effective Date of
this Agreement, written proof that she has obtained all insurance required hereunder. If any
change is made to any insurance policy or coverage required under and/or obtained pursuant to
this Agreement, Artist or Artist's insurance agent shall notify City immediately.
F. Insurance to be obtained by Artist's subcontractors. Artist shall require any and all
subcontractors employed or utilized in the course and scope of the obligations described in this
Agreement to obtain and maintain general liability insurance and workers' compensation
insurance in the amounts described herein. Artist shall provide to City, within twenty-four (24)
hours of hiring or engaging any subcontractor, written proof that her subcontractors have
obtained all insurance required hereunder.
G. No cancellation without notice. On all insurance policies required under this agreement, such
policies shall provide that they may not be cancelled or reduced in coverage except upon thirty
(30) days advance written notice to all Parties. Any cancellation of insurance without
appropriate replacement in the amounts and terms set forth herein may constitute grounds for
termination of the contract.
VII. TERMINATION.
A. Termination for cause. If City determines that Artist has failed to comply with any term or
condition of this Agreement, violated any of the covenants, agreements, and/or stipulations of
this Agreement, falsified any record or document required to be prepared under this Agreement,
engaged in fraud, dishonesty, or any other act of misconduct in the performance of this
Agreement; or if either Party willfully or negligently defaults in, or fails to fulfill, its material
obligations under this Agreement; the other Parry shall have the right to terminate the
Agreement by giving written notice to the defaulting party of its intent to terminate, and shall
specify the grounds for termination. The defaulting party shall have thirty (30) days after
receipt of such notice to cure the default. If the default is not cured within such period, this
Agreement shall be terminated upon mailing of written notice of such termination by the
terminating party.
1. Default by City. In the event of termination for non-performance or default by City, City
shall compensate Artist for work actually completed by Artist prior to the date of written
notice of termination and any additional services and materials actually performed or
supplied prior to the date of written notice of termination, less payments of compensation
previously made, riot to exceed the total amount of compensation allowed hereunder.
2. Default by Artist. In the event of termination for non-performance or default by Artist,
except that caused by the death or incapacity of Artist, all finished and unfinished drawings,
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CITY HALL ENTRYWAY & COUNCIL CHAMBERS ART PAGE 7 Of 10
photographs, plans, timelines, and/or any and all other work products prepared and
submitted or prepazed for submission under this Agreement shall, at City's option, become
its property, provided that no right to fabricate the Artwork shall pass to City.
Notwithstanding this provision, Artist shall not be relieved of any liability for damages
sustained by City attributable to Artist's breach of this Agreement. City may reasonably
withhold payments due until such time as the exact amount of damages due to City from
Artist is determined. Artist shall not be relieved of liability to City for damages sustained
by City by virtue of any breach or default of this Agreement by Artist. This provision shall
survive the termination of this Agreement and shall not relieve Artist of liability to City for
damages.
B. Termination without cause. City may terminate this Agreement for any reason at any time by
giving at least fifteen (15) days notice to Artist.
C. Termination upon death or incapacity of Artist. This Agreement shall automatically
terminate upon the death or incapacity of Artist. In the event of termination caused by the death
or incapacity of Artist, all finished and unfinished drawings, photographs, plans, timelines,
and/or any and all other work products prepazed and submitted or prepared for submission
under this Agreement shall, at City's option, become its property, and the right to fabricate
and/or complete fabrication of the Artwork shall pass to City. Notwithstanding this provision,
neither Artist nor Artist's estate shall be relieved of any liability for damages sustained by City
attributable to Artist's default. City may reasonably withhold payments due to Artist or to
Artist's estate until such time as the exact amount of damages due to City from Artist or
Artist's estate is determined. Artist shall not be relieved of liability to City for damages
sustained by City by virtue of any breach or default of this Agreement by Artist. This provision
shall survive the termination of this Agreement and shall not relieve Artist or Artist's estate of
liability to City for damages.
D. Non-waiver of breach. A waiver of any breach or default of any provision of this Agreement
shall not be construed as a waiver of a breach of the same or any other provision hereof.
VIII. GENERAL PROVISIONS.
A. Relationship of Parties. It is the express intention of Parties that Artist is an independent artist
and not an employee, agent, joint venturer, or partner of City. Nothing in this Agreement shall
be interpreted or construed as creating or establishing the relationship of employer and
employee between Artist and City or between Artist and any official, agent, or employee of
City. Both parties acknowledge that Artist is not an employee of City. Artist shall retain the
right to perform services for others during the term of this Agreement.
B. Compliance with law. Throughout the course of this Agreement, Artist shall comply with any
and all applicable federal, state, and local laws.
C. Non-Discrimination. Throughout the course of this Agreement, Artist shall not discriminate
against any person as to race, creed, religion, sex, age, national origin, sexual orientation or any
physical, mental, or sensory handicap.
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D. Entire Agreement. This Agreement constitutes the entire understanding between the Parties.
This Agreement supersedes any and all statements, promises, or inducements made by either
party, or agents of either party, whether oral or written, whether previous to the execution
hereof or contemporaneous herewith. The terms of this Agreement may not be enlarged,
modified or altered except upon written agreement signed by both parties hereto.
E. Costs and attorneys' fees. If either party brings any action or proceedings to enforce, protect or
establish any right or remedy under the terms and conditions of this Agreement, the prevailing
party shall be entitled to recover reasonable costs and attorneys' fees, as determined by a court
of competent jurisdiction, in addition to any other relief awazded.
F. Agreement governed by Idaho law. The laws of the State of Idaho shall govern the validity,
interpretation, performance and enforcement of this Agreement. Venue shall be in the courts of
Ada County, Idaho.
G. Cumulative Rights and Remedies. All rights and remedies herein enumerated shall be
cumulative and none shall exclude any other right or remedy allowed by law. Likewise, the
exercise of any remedy provided for herein or allowed by law shall not be to the exclusion of
any other remedy.
H. Interpretation. Words of gender used in this Agreement shall be held and construed to include
any other gender, and words in the singulaz shall be held to include the plural and vice versa
unless the context otherwise requires. The Agreement and the captions of the various sections
of this Agreement aze for convenience and ease of reference only, and do not define, limit,
augment or describe the scope, context or intent of this Agreement or any part or parts of this
Agreement.
I. Severability. If any provision of this Agreement is found by a court of competent jurisdiction
to be illegal, invalid, or unenforceable, the remainder of this Agreement shall not be affected.
J. Successors and Assigns. All of the terms, provisions, covenants and conditions of this
Agreement shall inure to the benefit of, and shall be binding upon, each party and their
successors, assigns, legal representatives, heirs, executors, and administrators.
K. Notice. Any and all notice required to be provided by either of the Parties hereto, unless
otherwise stated in this Agreement, shall be in writing and shall be deemed communicated upon
mailing by United States Mail, addressed as follows:
Artist:
J. Amber Conger
Refinerii, LCC
P.O. Box 3531
Nampa, Idaho 83653
(208) 861-7515
refinerii@yahoo.com
DRMAC: C
Delta James Emily Kane
Sage Community Resources City of Meridian
P.O. Box 902 33 E. Broadway Ave.
Donnelly, Idaho 83615
(208) 859-7042
djames@sageidaho.com
Meridian, Idaho 83642
(208) 898-5506
ekane@meridiancity.org
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Either party may change her/its address for the purpose of this paragraph by giving written
notice of such change in the manner herein provided.
L. City Council approval required. The validity of this Agreement shall be expressly
conditioned upon City Council action approving the Agreement. Execution of this Agreement
by the persons referenced below prior to such ratification or approval shall not be construed as
proof of validity in the absence of Meridian City Council approval.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 3rd day of
February, 2009.
ARTIST:
~ Vl
J. Amber Conger, Owner/Member, Refinerii, LCC
STATE OF IDAHO )
ss:
County of ~ )
I HEREBY CERTIFY that on this o`t "~ day of „Q,~ij , 2009, before the undersigned, a
Notary Public in the State of Idaho, personally appeazed J. Amber onger, known to me to be the
person who executed the said instrument, and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day
and yeaz in this ceifi~~at~ ~i~~,~~above written.
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_ Notary Public for Idaho
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CITY OF MER)`~~~.~,Np a ,,~,~~`
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BY: ~~~
Tammy e eerd, Mayor
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PROFESSIONAL SERVICES AGREEMENT
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