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HomeMy WebLinkAboutProfessional Service Agreement with Gabriel Bishop for Construction of Art Display Cases for Initial PointPROFESSIONAL SERVICES AGREEMENT for CONSTRUCTION OF ART DISPLAY CASES FOR INITIAL POINT GALLERY This PROFESSIONAL SERVICES AGREEMENT for CONSTRUCTION OF ART DISPLAY CASES FOR INITIAL POINT GALLERY ("Agreement") is made this t' day of September, 2010 ("Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho ("City"), and Gabriel Bishop, an individual person whose address is 2937 E. Falcon Dr., Meridian, Idaho ("Contractor"). (City and Contractor 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, instituted Initial Point Gallery, an art gallery on the third floor of Meridian City Hall, the address of which is 33 E. Broadway Ave., Meridian, Idaho ("Initial Point Gallery"); WHEREAS, the City desires that the capacity of Initial Point Gallery be increased to include displays ofthree-dimensional artwork; 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. Contractor shall design and construct two (2) display cases using clear acrylic and wood, one (1) with the dimensions of Size "D" and one (1) of Size "E" as such sizes are described and depicted in Exhibit A ("Deliverables"), and shall deliver such Deliverables to Initial Point Gallery on or before October 8, 2010. II. COMPENSATION. A. Total payment. The total payment to Contractor for the design, fabrication, and delivery of the Deliverables shall be one thousand six hundred dollars ($1,600.00). This amount shall be due upon City's written acceptance of the Deliverables, and shall constitute full compensation for any and all of Contractor's labor, materials, and costs for completion of services under this Agreement. B. Method of payment. To request payment for services rendered under this Agreement, Contractor shall provide City with an invoice, 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 made by City to Contractor under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums shall be the sole responsibility of Contractor. III. TIME OF PERFORMANCE. A. Timeline. The Parties shall comply with the following timeline. By 5:00 p.m. on October 8, 2010, Contractor shall deliver the finished Deliverables to Initial Point Gallery. Within seven FY11 PROFESSIONAL SERVICES AGREEMENT INITIAL POINT GALLERY DISPLAY CASES PAGE 1 Of 6 (7) days of Contractor's delivery of the Deliverables to Initial Point Gallery, but no later than 5:00 p.m. on October 15, 2010, City shall issue a written acceptance of the Deliverables as delivered, or a written determination that the Deliverables are nonconforming. City's failure to issue written acceptance or determination of nonconformity shall constitute City's presumptive acceptance of the Deliverables as inspected. B. Time of the essence. Contractor 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. Contractor shall provide to City reasonable opportunities to review the progress of the Deliverables to ensure compliance with the timeline, upon City's request. C. Determination of nonconformity. If during the course of this Agreement City concludes that the Deliverables or any portion or component thereof do not conform to the plans as described and depicted in Exhibit A hereto or as mutually agreed by the Parties in writing, City shall, as soon as practicable as soon as practicable, provide to Contractor written notice of -the specific non-conformity and request that Contractor address the specified non-conformity. Contractor shall have fourteen (14) days to address and correct any non-conformity. If, upon City's re- inspection, City concludes that the Deliverables or the nonconforming portion or component thereof remain nonconforming, termination procedures may commence. IV. INSTALLATION, MAINTENANCE AND REPAIRS. A. Installation coordination. In delivering and installing the Deliverables or any portion or component thereof, Contractor shall coordinate all such activities, and/or the activities of his subcontractors and employees, with the Initial Point Gallery Curator and City Maintenance Supervisor. B. First year following acceptance. Contractor shall be fully responsible for all parts and workmanship of the Deliverables for a period of one (1) year after City's acceptance of the Deliverables, and during such year shall replace any defective components and/or rework any defective craftsmanship in a timely fashion at no cost to City, except that during such year Contractor shall not be required to replace or repair any damage to the Deliverables caused by City; by City's agents, employees, visitors, or volunteers; or by an act of God. V. CREATION, INTEGRITY, AND OWNERSHIP OF DELIVERABLES A. Ownership. Upon Contractor's delivery of the Deliverables and City's written acceptance thereof, Deliverables shall be owned by City, whereupon City shall have the right to remove the Deliverables from public display, to modify the Deliverables, and to sell the Deliverables or any component thereof. B. No copyright. Contractor shall not make any claim to the copyright of design or plans for the construction of Deliverables. FYI I PROFESSIONAL SERVICES AGREEMENT INITIAL POINT GALLERY DISPLAY CASES PAGE 2 Of 6 C. Removal from display. In the event that City determines that the Deliverables or either component thereof shall be sold, Contractor shall be provided the first right of refusal to purchase the Deliverables or such component from City. Should Contractor choose to purchase the Deliverables pursuant to this provision, the price of the Deliverables shall be the fair market value thereof. This provision shall expire upon the death of Contractor and shall not be extended to Contractor's estate unless City so elects. D. Subcontracting or assignment of obligations. Contractor shall not subcontract or assign any of his obligations under this Agreement that require or that may require his professional workmanship or expertise. Contractor may subcontract or assign obligations hereunder that do not require his professional workmanship or expertise, including, but not limited to, such obligations as transport and installation of the Deliverables. Any subcontractor or assignee shall be bound by all the terms and conditions of this Agreement. VI. INDEMNIFICATION, WAIVER, AND INSURANCE. A. Indemnification. Contractor 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 Contractor, or by his servants, agents, employees, guests, and/or business invitees, occurring before City's acceptance of the Deliverables. B. Waiver. Contractor 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 Contractor's performance of this Agreement, whether such loss or damage may be attributable to known or unknown conditions or risks, except for liability arising out of concurrent or sole negligence of City or its officers, agents or employees. C. Insurance. City will provide hereunder no insurance or other coverage or benefits to Contractor or his agents, employees, or subcontractors. Contractor shall obtain all necessary insurance as may be required in order to protect his insurable interests as may be affected by the rights and obligations described within this Agreement. This includes, but is not limited to, general liability, acts and omissions, automobile, shipping, worker's compensation, or property insurance. VII. TERMINATION. A. Termination for cause. If City determines that Contractor 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 Party 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 FY11 PROFESSIONAL SERVICES AGREEMENT INITIAL POINT GALLERY DISPLAY CASES PAGE 3 Of 6 Agreement shall be terminated upon mailing of written notice of such termination by the terminating party. Default by City. In the event of termination for non-performance or default by City, City shall compensate Contractor for work actually completed by Contractor 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, not to exceed the total amount of compensation allowed hereunder. 2. Default by Contractor. In the event of termination for non-performance or default by Contractor, except that caused by the death or incapacity of Contractor, all finished and unfinished drawings, photographs, plans, timelines, and/or any and all other work products or materials prepared or purchased under this Agreement shall, at City's option, become City's property. Notwithstanding this provision, Contractor shall not be relieved of any liability for damages sustained by City attributable to Contractor's breach of this Agreement. City may reasonably withhold payments due until such time as the exact amount of damages due to City from Contractor is determined. Contractor shall not be relieved of liability to City for damages sustained by City by virtue of any breach or default of this Agreement by Contractor. This provision shall survive the termination of this Agreement and shall not relieve Contractor of liability to City for damages. B. Termination upon death or incapacity of Contractor. This Agreement shall automatically terminate upon the death or incapacity of Contractor. In the event of termination caused by the death or incapacity of Contractor, all finished and unfinished plans, materials, and/or components prepared under this Agreement shall, at City's option, become its property. C. 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 Contractor is an independent Contractor 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 Contractor and City or between Contractor and any official, agent, or employee of City. Both parties acknowledge that Contractor is not an employee of City. Contractor 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, Contractor shall comply with any and all applicable federal, state, and local laws. C. Non-Discrimination. Throughout the course of this Agreement, Contractor shall not discriminate against any person as to race, creed, religion, sex, age, national origin, sexual orientation or any physical, mental, or sensory handicap. FY I I PROFESSIONAL SERVICES AGREEMENT INITIAL POINT GALLERY DISPLAY CASES PAGE 4 Of 6 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 awarded. 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. 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. I. 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. J. 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: Contractor: Gabriel Bishop 2937 E. Falcon Dr. Meridian, Idaho 83642 (208) 895-9864 gabrielb@musgrovepa. com C Emily Kane City of Meridian 33 E. Broadway Ave. Meridian, Idaho 83642 (208) 898-5506 ekane@meridiancity.org 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. K. 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. FY11 PROFESSIONAL SERVICES AGREEMENT INITIAL POINT GALLERY DISPLAY CASES PAGE 5 Of 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the ~ day of September, 2010. 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