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Professional Services Agreement with Mark Johnstone for Public Art Consulting ServicesPROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES This PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES ("Agreement") is made this ~~ day of June, 2012 ("Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho ("City"), by and through the Meridian Arts Commission ("MAC"), and Mark Johnstone, an individual whose address is P.O. Box 4350, Hailey, Idaho ("Consultant"). WHEREAS, City has determined the need for professional public art consulting services in order to complete the installation of two public art pieces in conjunction with Phase II of the Meridian Split Corridor roadway construction; and WHEREAS, Consultant is specially trained, experienced, and competent in the provision of such professional services; 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. A. Scope of work. City agrees to engage Consultant to provide, and Consultant agrees to provide, the services described in the Scope of Work, attached hereto as Exhibit A, in accordance with the timeline described therein. B. Time of performance. The services to be performed by Consultant and the contributions and decisions made by City under this agreement shall be completed by the deadlines set forth in the Scope of Work. Consultant agrees that services and work 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. Term. This Agreement begins immediately upon execution and shall remain in effect through November 30, 2012. D. Records. All records, including those of costs, reimbursable expenses, and payments shall be kept to generally recognized accounting methods and standards and shall be available to the other Party at all times. Consultant specifically recognizes that records containing information relating to the conduct or administration of the public's business prepared, owned, used or retained by Consultant shall be public records. PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE 1 OF ~ II. PAYMENT. A. Amount. City shall remit to Consultant for services rendered pursuant to this Agreement an amount not to exceed eight thousand dollars ($8,000.00), to be paid by City following provision of the following deliverables as described in and pursuant to the timeline set forth in the Scope of Work attached hereto as Exhibit A; 1. Upon completion of Project Phase 1: $ 1,000.00 2, Upon completion of Project Phase 2; $ 1,600.00 3. Upon completion of Project Phase 3; $ 1,600.00 4. Upon completion of Project Phase 4: $ 3,200.00 5. Upon completion of Project Phase 5: $ 600.00 Total compensation: $ 8,000.00 The remittals described in this paragraph shall constitute full compensation from City to Consultant for any and all of Consultant's services, costs, and expenses related to services performed under this Agreement. City shall not reimburse Consultant for any other costs, including, but not limited to, any costs related to travel, tips, meals, phone calls, or Internet usage. B. Method of payment. Upon execution of this Agreement, Consultant shall provide City with a completed W-9 form. Upon completion of each project phase as set forth in the Scope of Work, Consultant shall provide City with an itemized invoice for services provided, which invoice shall be provided by formal notice. City shall pay Consultant for services provided within thirty (30) days of receipt of invoice. Payment of all taxes and other assessments on such sums shall be the sole responsibility of Consultant. III. GENERAL TERMS. A. Independent contractor. In all matters pertaining to this Agreement, Consultant shall be acting as an independent contractor, and neither Consultant nor any officer, employee or agent of Consultant shall be deemed an employee of City. Except as expressly granted herein, Consultant shall have no authority or responsibility to exercise any rights or power vested in City. The selection and designation of the personnel of City in the performance of this agreement shall be made by City. B. Day-to-day communications. The following person shall serve as City's primary contact for all day-to-day communications between City and Consultant as may be necessary or useful for accomplishing each party's respective tasks as set forth in the Scope of Work. Communication between Consultant and the City's primary contact regarding day-to-day matters shall occur via e-mail or telephone, as follows: City: Emily Kane Consultant: Mark Johnstone ekane@meridiancity.org markjohnstone@cox-internet.com Phone: 208-898-5506 Phone: 208-788-3788 Either party may change its contact information for the purpose of this paragraph by giving formal notice of such change to the other in the manner herein provided. PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE 2 OF 7 C. Formal notice. Formal notice required to be provided by either of the parties under this Agreement shall be in writing and be deemed communicated when mailed by United States Mail, addressed as follows; City: City of Meridian Consultant: Mark Johnstone City Attorney's Office P.O. Box 4350 33 E. Broadway Avenue Hailey ID 83333 Meridian ID 83642 Either party may change its address for the purpose of this paragraph by giving formal notice of such change to the other in the manner herein provided. D. Insurance. Consultant warrants that he has obtained, and will maintain at his expense for the duration of this Agreement, worker's compensation insurance in the amount required by Idaho law. All other insurance shall be obtained at Consultant's sole discretion and risk. E. Indemnity. Consultant shall indemnify, defend, save, and hold harmless the City and any and all of City's officers, agents, or employees from any and all losses, claims, suits, actions, or judgments for damages or injury to persons or property, and from any and all losses and, expenses caused or incurred by Consultant, his servants, agents, employees, guests, and/or business invitees while on City's premises or while fulfilling Consultant's obligations under this Agreement, except for liability arising out of concurrent or sole negligence of City or City's officers, agents, or employees. Consultant shall indemnify, defend, save, and hold harmless the City and any and all of City's officers, agents, or employees from any and all losses, claims, suits, actions, or judgments for damages or injury to persons or property, and from any and all losses and expenses caused or incurred by Consultant, its servants, agents, employees, guests, and/or business invitees as a result of or arising out of the work performed under this Agreement and arising from the sole or joint negligence of Consultant. F. Compliance with laws. Consultant shall provide services and work under this Agreement consistent with the requirements and standards established by applicable federal, state and city laws, ordinances, regulations and resolutions. Consultant shall not discriminate against any person in the performance of this Agreement, on the grounds of race, gender, religion, national origin, sexual orientation, marital status, disability, or age. G. Industry standards. Consultant represents and warrants that he will perform his work in accordance with generally accepted industry standards and practices for the profession or professions that are used in performance of this Agreement and that are in effect at the time of performance of this Agreement. H. Entire agreement; modification. This Agreement embodies the entire agreement and understanding between the parties pertaining to the subject matter of this Agreement, and supersedes all prior agreements, understandings, negotiations, representations, and discussions, whether verbal or written, of the parties pertaining to that subject matter. PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE 3 OF 7 The Agreement may not be changed, amended, or superseded unless by means of writing executed by both Parties hereto. I. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. Assignment. Consultant may not subcontract, assign, or transfer any right or duty arising hereunder without the prior written consent of the City. Any subcontractor, transferee, or assignee shall be bound by all of the terms and conditions of this Agreement. City may withhold its consent to assignment, succession or other transfer of Consultant's rights and responsibilities under this Agreement, when City, in its reasonable discretion, determines that the proposed transaction would not serve the best interest of the City of Meridian. The provisions of this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. K. Termination. In the event of any termination of this Agreement, all finished or unfinished documents, data, and reports prepared by Consultant under this Agreement shall, at the option of City, become City's property, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. This Agreement maybe terminated as follows: 1. Termination for convenience. City may terminate this Agreement in whole, or in part, for the convenience of the City when both parties agree that the continuation of the project is not in the best interest of both parties and that further expenditure of funds will not produce satisfactory results. The parties shall agree in writing upon the conditions, effective date and fair and reasonable payment for services reasonably performed to the date of termination. 2. Termination for cause. If City determines that Consultant has failed to comply with the terms and conditions 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, the City may terminate this Agreement in whole, or in part, at any time, by giving formal notice to Consultant, in the manner herein provided, of any or all deficiencies claimed. The formal notice will be sufficient for all purposes if it describes the default in general terms and provides a reasonable time to cure. If all defaults are not cured and corrected within the reasonable period as specified in the formal notice, the City may, with no further notice, declare this Agreement to be terminated. Consultant will thereafter be entitled to receive payment for those services reasonably performed to the date of termination, less the amount of reasonable damages suffered by the City by reason of Consultant's failure to comply with this Agreement. Notwithstanding the above or any other provision of this Agreement, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE 4 OF ~ this Agreement by Consultant, and City may withhold any payments to Consultant for the purposes of set-off until such time as the exact aiilouut of damages due City from Consultant is determined. This provision shall survive the termination of this Agreement and shall not relieve Consultant of liability to City for damages. L. Non waiver. A waiver of any right, remedy or provision provided in this Agreement or bylaw shall not constitute a waiver of any other rights, remedies or provisions, whether or not similar, nor shall any waiver in one instance constitute a waiver in any other instance or constitute a continuing waiver. The rights and remedies provided herei^ are not exchisive and are in addition to any other rights and remedies provided by law or under this Agreement. City shall not be required to reinstate any provisions of this Agreement following a waiver for the provision to be ef'f'ective in any other insru~ce. M. Severability. If any part of this Agreement is held to be invalid or Lmenforceabie., such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. The invalidity or unenforceability of aay particular provision of this Agreement shall not affect the other provisions, and this Agreement shall be construed in all respects as if any invalid or unenforceable provision were omitted. N. Attorney fees. hi the event an action, suit, or proceeding, ii7cludingappeal therefrom, is brought for failure to observe any of the terms ofthis Agreement, the non-prevailing party shall be responsible for the prevailing party's attorney's fees, expenses, costs, and disbursements for said action, suit, proceeding orappeal. O. Governing law; venue. This Agreement shall be governed and construed in accordance with the laws of the State of Idaho without resort to any jurisdiction's conflict of laws, rules or doctrines. Any claim, action, suit or proceeding between the City and Contractor that arises from or relates to this Agreement shat] be brought and conducted sole]}~ and exclusively with the Fourth Judicial District Court of Ada Count}~ for the State of Idaho. Provided, however, if the claim must be brought in a federal forum, then it shall be brought and conducted exclusively within the United States District Court for Idaho. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this day of June, 2012. EXHIBIT A SCOPE of WORK DEADLINE SERVICES AND DELIVERABLES CONTRIBUTIONS AND PAYMENT PROVIDED BY CONSULTANT DECISIONS MADE BY CITY SCHEDULE 7/1/12 Project commences By • Attend meeting with Ada Schedule and attend meeting 7/13/12 County Highway District, City with Ada County Highway Parks & Rec. Dept,, Mayor's District, City Parks & Rec. Office, Meridian Arts llept,, Mayor's Office, Commission Meridian Arts Commission • Attend meeting with City • Schedule and attend meeting Project Manager with City Project Manager • Prepare project budget ® Input from City Finance ,~ De t. on budget By • Prepare Call to Artists • Approval by City Purchasing 7/22/12 • Prepare Request for Manager (as to form, ~ Qualifications regulatory compliance) ~, • Prepare Request for Proposals • Approval by City Parks ~ x Dept. Director and Ada ~ County Highway District (as to project specs) ® Approval by Meridian Arts Colnmisslon • Design artist selection ~ ~ • Input fi~om Meridian Arts ' Upon Iocess and elf Lbilit cllteria Y ,~~ ~ P~ g s Commission, Cit r Attorne > Y completion • Pre Marc project schedule Office f P roject o • Schedule Artist workshop; • Room reservation (if Phase l: notify City to reserve meeting workshop held at Meridian $ 1,000.00 space (if held at City Hall) City Hall) By • Release Call to Artists in • Approval of press release by 7/27/12 electronic and printed Mayor's Chief of Staff (as to N formats; due date of 9/10/12 form and content) • Prepare and distribute press • Posting on City webpage ~ release regarding Call to • Posting on City social media ~ Artists • Provide artist mailin list ti Between • Present, in Meridian, an • Host workshop Upon ~ 8/6/12 and Artist workshop on how to • Provide use of computer completion p"' 8/10/12 respond to Call to with PowerPoint capability, of Project Artists/RFQ projector, screen Phase 2: $1,600.00 PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE E OF 7 DEADLINE SERVICES AND DELIVERABLES CONTRIBUTIONS AND PAYMENT PROVIDED BY CONSULTANT DECISIONS MADE BY CITY SCHEDULE m 9/10/12 Res onses to RFQ due ~% Between • Convene RFQ Selection • Designate 5-7 members for ~ 9/10/12 Panel RFQ Selection Panel Upon and ® Oversee selection of three (3) • Host meeting completion w 9/14/12 qualii'ied finalists • Provide use of computer of PI•oject ~ with PowerPoint capability, Phase 3: ~' projector, screen $ 1,600.00 By • Provide notification of • Schedule display sites for 9/21/12 selection and RFP to public input finalists; proposal due date of 10/15/12 • Notification of decision to non-finalists d, 10/15/12 Res onses to RFP due ~ Between • Coordinate with artists to set • Approval of press release by 10/19/12 up display of proposal at Mayor's Chief of Staff (as to Q' H and designated sites form and content) w 11/7/12 • Prepare and distribute press • Posting on City webpage a release regarding public input Posting on City social media p~ o ortunit Between • Convene RFP Selection • Designate 5-7 members for 11/7/12 Panel RFQ Selection Panel and • Oversee selection of selected • Host meeting Upon 11/16/12 artist • Provide use of computer completion with PowerPoint capability, of Project projector, screen Phase 4: $ 3,200.00 By Provide notification of ®Prepare draft resolution 11/19/12 selection selected artist accepting artist and proposal ® Notification of decision to for City Council; put on those not selected 11/27/12 meeting agenda ~ 11/27/12 • City Council resolution accepting artist and proposal Upon ~ and authorizing contract completion p~®, development of Project Phase 5: $ 600.00 TOTAL PAYMENT: $ 8,000.00 PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC ART CONSULTING SERVICES PAGE 7 OF ~