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HomeMy WebLinkAboutRosa Cruz Gonzalez - Personal Services Agreement - Utility Box Wrap PERSONAL SERVICES AGREEMENT UTILITY BOX WRAP THIS AGREEMENT is made and entered into between the City of Pasco, a Washington Municipal Corporation, hereinafter referred to as "City", and Rosa Cruz Gonzalez, hereinafter referred to as"Artist,"on the�day of March , 2022. RECITALS WHEREAS,the Pasco City Council established the Arts and Culture Commission to assist in the promotion, retention and acquisition of public arts in the City as a measure to enhance the quality of life, connectivity and community identity among Pasco residents; and WHEREAS,the Artist(s)represents that they are qualified and possesses sufficient skills, experience,equipment, and necessary capabilities,including:technical and professional expertise, when required, to perform the services and/or tasks as set forth in this Agreement upon which the City is relying. NOW, THEREFORE, in consideration of the mutual covenants, and performances contained herein, the parties agree as follows: 1. Scope of Services. The Artist shall furnish all materials and perform such services and accomplish such tasks as required to complete the rendering and as described in the Scope of Work detailed in Exhibit A, attached hereto and incorporated herein(the"Project"). 2. Term. This Project shall begin on the execution date listed above and promptly be completed by May 31, 2022. The Project is not complete until the City has issued a resolution for the acceptance of the project at which time the City will be the sole owner of the Project. 3. Compensation and Pavment. 3.1. Payment for services provided hereunder shall be made following the performance of such services. Such payment shall be full compensation for work performed or services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to complete the Project. 3.2. No payment shall be made for any services rendered by the Artist except for services identified and set forth in this Agreement except as may be authorized by a written supplemental agreement approved by the City. 33. The City sha11 pay the Artist for wark performed under this Agreement upon timely submitted invoices detailing work performed and expenses for which reimbursement is sought. The City shall approve all invoices before payment is Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 1 of 9 issued. Payment shall occur within thirty (30) days of receipt and approval of an invoice. 3.4. The City shall pay the Artist for all work performed and expenses incurred under this Agreement, as follows. 3.4.1. ❑ Hourly (Single Rate): $ per hour plus actual expenses incurred as provided under this Agreement, but not to exceed a total of $ without prior written authorization by the City; or 3.4.2. ❑ Hourly(Multiple Rate): Such rates as identified on Elchibit A,plus actual expenses incurred as provided under this Agreement, but not to exceed a total of$ without the prior written authorization by the City; or 3.4.3. � Fixed Sum: A total of$ 900 3.4.4. ❑ Other: 4. Reports and Inspections. 4.1. The Artist at such times and in such forms as the City may require, shall furnish to the City such statements, recards, studies, surveys, reports, data, and information as the City may request pertaining to matters covered by this Agreement. 4.2. The Artist shall, at any time during normal business hours and as often as the City or the Washington State Auditor may reasonably deem necessary, make available for examination all of its records and data with respect to all matters covered, directly or indirectly,by this Agreement and shall permit the City, or its designated authorized representative to audit and inspect other data relating to all matters covered by this Agreement. The City shall receive a copy of all audit reports made by the agency ar firm as to the Artist's activities. The City may, at its discretion, conduct an audit at its expense, using its own or outside auditors, of the Artist's activities which relate, directly or indirectly, to this Agreement. Artist shall be provided a copy of such reports. 4.3. The Artist, during the term of this Agreement, shall provide all documentation and information necessary for the City to obtain pernuts and registration documents for the project. - 4.4. Artist shall maintain books,records and documents,which sufficiently and properly reflect all direct and indirect costs related to the performance of this Agreement, and shall maintain such accounting procedures and practices as may be necessary to assure proper accounting of all funds paid pursuant to this Agreement. These Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 2 of 9 records shall be subject, at a11 reasonable times, to inspection, review, or audit as provided above. 4.5. The Artist shall retain all books, records, documents or other material relevant to this Agreement for three (3) years after its expiration. Artist agrees that the City, or its designee, shall have full access and right to examine any of said materials at all reasonable times during this period. 5. Ownership and Use of Documents. 5.1. All research,tests,surveys,preliminary data,information,drawings and documents made,collected,or prepared by the Artist for performing the services subj ect to this Agreement, as well as any final product, collectively referred to as"work product," shall be deemed as the exclusive property of the City, including copyright as secured thereon.Artist may not use them except in connection with the performance of the services under this Agreement or with the prior written consent of the City. Any prior copyrighted materials owned by the Artist and utilized in the performance of the services under this Agreement, or embedded in with the materials, products and services provided thereunder, shall remain the property of the Artist subject to a license granted to the City for their continued use of the products and services provided under this Agreement. Any work product used by the Artist in the performance of these services which it deems as "confidential," "proprietary," or a"trade secret" shall be conspicuously designated as such. 5.2. In the event of Artist's default, or in the event that this Agreement is terminated prior to its completion,the work product of the Artist, along with a summary of the services performed to date of default or ternunation, shall become the property of the City, and tender of the work product and summary shall be a prerequisite to final payment under this Agreement. The sumuiary of services provided shall be prepared at no additional cost, if the Agreement is terminated through default by the Artist. If the Agreement is tenninated through convenience by the City, the City agrees to pay Artist for the preparation of the summary of services provided. 6. Maintenance Re airs and Restoration. 6.1. The City Recognizes that maintenance of the Project on a regular basis according to the maintenance instructions is essential to the integrity of the Project and that the City will be solely responsible to maintain the Project after final acceptance. The City shall nonetheless have the right to determine, in its sole discretion, when and if maintenance,repairs, and restorations to the Project will be made. 6.2. Nothing in this agreement shall preclude any right of the City in its sole discretion to (i) remove the Project from public display, (ii) move or relocate the Project to another location selected by the City for public display; or(iii) destroy the Project. 7. Warranties. Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 3 of 9 7.1. Uniqueness. The Artist represents and warrants to the City that the Project is artistically unique, and agrees not to create or be involved in the creation of an identical artwork. Additionally,the Artist represents and warrants that: 7.1.1 The Project is solely the result of the artistic effort of the Artist; and 7.1.2 Except as otherwise disclosed in writing to the City, priar to the time of agreement execution, the Project is unique and original and does not infringe upon any copyright and any other property or personal right; and 7.1.3 That neither the Project delivered, nor a duplicate of it, has been accepted for sale elsewhere; and 7.1.4 The Project is free and clear of any liens or claims or encumbrances from any source whatsoever. 7.2. Materials. The Project, as fabricated and executed, will use materials that are of good quality, fit for the selected uprose, within manufacturer tolerances and warranties, and free from all faults and defects not inherent in the quality required. 7.3. Defects and Deficiencies. Any work or material that is found to be defective or deficient, Artist will, without cost to the City, correct it promptly after receipt of a written notice from the City, unless City has previously issued written notice accepting the defect or deficiency or City is the cause of the defect or deficiency, such as installation error. 8. Public Records. 8.1. Artist acknowledges that the City is an agency subject to Chapter 42.56 RCW "Public Records Act." All preliminary drafts or notes prepared or gathered by the Artist, and recommendations of the Artist are exempt prior to the acceptance by the City ar public citation by the City in connection with City action. 8.2. If the Artist becomes a custodian of public records of the City and request for such records is received by the City, the Artist shall respond to the request by the City for such records within five(5)business days by either providing the records, or by identifying in writing the additional time necessary to provide the records with a description of the reasons why additional time is needed. Such additional time shall not exceed twenty(20)business days unless extraordinary good cause is shown. 8.3. In the event the City receives a public records request for protected work product of the Artist within its possession,the City shall,prior to the release of any protected work product or as a result of a public records request or subpoena, provide Artist at least ten (10) business days prior written notice of the pending release and to Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 4 of 9 reasonably cooperate with any legal action which may be initiated by the Artist to enjoin or otherwise prevent such release. 9. Inde endent Contractor Relationshi . 9.1. The parties intend that an independent contractor relationship is created by this Agreement. The City is interested primarily in the results to be achieved; subject to the scope of services and the specific requirements of this Agreement, the implementation of services will lie solely with the discretion of the Artist. No agent, employee, officer or representative of the Artist shall be deemed to be an employee, agent, officer, or representative of the City for any purpose, and the employees of the Artist are not entitled to any of the benefits or privileges the City provides for its employees. The Artist will be solely and entirely responsible for its acts and for the acts of its agents, employees, officers, subcontractors or representatives during the performance of this Agreement. 9.2. In the performance of the services provided in this Agreement, Artist is an independent contractor with full authority to control and direct the performance of the details of the work, however,the results of the work contemplated herein must meet the approval of the City and shall be subject to the Ciry's general rights of inspection and review to secure the satisfactory completion thereof. 9.3. The Artist shall comply with all State and Federal laws including, but not limited to: 9.3.1. The definition requirements of RCW 50.04.140 (Employment Security). 9.3.2. RCW 51.08.195 (Industrial Insurance). 9.4. The City may, at its sole discretion, require the Artist to remove any employee, agent or servant from employment on this Project who,in the City's sole discretion, may be detrimental to the City's interest. 10. Indemnification. 10.1. The Artist shall defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers from any and all claims and causes of action, including, but not limited to, actions of law or administrative proceedings for all injuries to persons or damages to properly, and all losses,damages,demands, suits, judgments, including attorney fees, arising out of, or as a result of, or in connection with the work performed under this Agreement, and caused or occasioned in whole or in part by reason of errors, negligent acts or omissions of the Artist or its subcontractors in the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City, its officers, employees, agents, and volunteers. Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 5 of 9 10.2. Should a Court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injuries or damages to property caused by or resulting from the concurrent negligence of the Artist,and the City,its officers,employees,agents and volunteers, the Artist's liability and obligation to defend hereunder shall only be the proportionate extent of the Artist's negligence. 10.3. It is further agreed that the indemnification provided herein constitutes the Artist's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. 10.4. No liability shall attach to the City by reason of entering into this Agreement except as expressly provided herein. 10.5. This indemnification shall include damages, penalties and attorney fees sustained as a result of Artist's delayed or failed performance of Section 6 above. 10.6. This waiver has been mutually negotiated by the parties, and the provisions of this section shall survive the expiration or ternunation of this Agreement. 11. Nondiscrimination. In the performance of this Agreement,the Artist will not discriminate against any employee or applicant for employment on the grounds of race, creed, color, national origin, sex, marital status, age or the presence of any sensory,mental or physical handicap; provided that the prohibition against discrimination in employment because of handicap shall not apply if the particular disability prevents the proper performance of the particular worker involved. The Artist shall ensure that applicants are employed, and that employees are treated during employment in the performance of this Agreement without discrimination because of their race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap. Artist shall take such action with respect to this Agreement as may be required to ensure full compliance with local, State and Federal laws prohibiting discrimination in employment. 12. Covenant Against Contin�ent Fees. The Artist warrants that it has not employed nor retained any company, firm, or person, other than a bona fide employee working exclusively for the Artist, to solicit ar secure this Agreement; and that it has not paid or agreed to pay any company, person or firm, other than a bona fide employee working exclusively for the Artist, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to terminate this Agreement. 13. Assi�nment and Subcontracting. 13.1. The City has awarded this Agreement to the Artist due to its unique qualifications to perfortn these services. The Artist shall not assign(or subcontract other than as specifically identified in Exhibit A) its performance under this Agreement or any Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 6 of 9 portions of this Agreement without the prior written consent of the City, which consent must be sought at least thirty (30) days prior to the date of any proposed assignment. 13.2. Any work or services assigned or subcontracted hereunder shall be subject to each provision of this Agreement including Section 6, Public Records; Section 10, Nondiscrimination;proper bidding procedures where applicable; and all local, State and Federal statutes, ordinances and guidelines. 13.3. Any technical or professional service subcontract not listed in this Agreement,must have prior written approval by the City. 14. Termination. 14.1. Termination for Convenience. Either party may terminate this Agreement for any reason upon giving the other party no less than ten (10) business day's written notice in advance of the effective date of such termination. 14.2. Termination for Cause. If the Artist fails to perform in the manner called for in this Agreement, or if the Artist fails to comply with any other provisions of this Agreement and fails to correct such noncompliance within five(5)business days of written notice thereof, the City may terminate this Agreement for cause. Termination shall be effected by serving a notice of termination on the Artist setting forth the manner in which the Artist is in default. The Artist will only be paid for services and expenses complying with the terms of this Agreement, incurred priar to termination. 15. General Provisions. 15.1. For the purpose of this Agreement,time is of the essence. 15.2. Notice. Notice provided for in this Agreement shall be sent by: 15.2.1. Personal service upon the Project Administrators; or 15.2.2. Certified mail to the physical address of the parties, or by electronic transmission to the e-mail addresses designated for the parties below. 15.3. The Project Administrator for the purpose of this Agreement sha11 be: For the City: Steve M. Worley, P.E,or his/her designee Public Works Director 525 North 3`a PO Box 293 Pasco WA 99301 WorlevS�ci��asco-wa.��ov (e-mail address) Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 7 of 9 For the Artist: Rosa Cruz Gonzalez, or his/her designee 2861 N 9�' St Milwaukee,WI 53206 ctu�,lezstermannstudiotcr��;mail.com (e-mail address) 16. Dis ute Resolution. 16.1. This Agreement has been and shall be construed as having been made and entered into and delivered within the State of Washington and it is agreed by each party hereto that this Agreement shall be governed by the laws of the State of Washington. 16.2. In the event of a dispute regarding the enforcement, breach, default, or interpretation of this Agreement, the Project Administrators, or their designees, shall first meet in a good faith effort to resolve such dispute. In the event the dispute cannot be resolved by agreement of the parties, said dispute shall be resolved by arbitration pursuant to RCW 7.04A,as amended,with both parties waiving the right of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County, Washington. The substantially prevailing party shall be entitled to its reasonable attorney fees and costs as additional award and judgment against the other. 17. Nonwaiver. Waiver by the City of any provision of this Agreement or any time limitation provided far in this Agreement shall not constitute a waiver of any other similar event or other provision of this Agreement. 18. Inte�ration. This Agreement between the parties consists in its entirety of this document and any e�ibits, schedules or attachxnents. Any modification of this Agreement or change order affecting this Agreement shall be in writing and signed by both parties. 19. Authorization. By signature below, each party warrants that they are authorized and empowered to execute this Agreement binding the City and the Artist respectively. IN WITNESS WHEREOF,the parties have caused this Agreement to be executed on the date first written above. CITY OF PASCO,WASHINGTON ARTIST �� Dave Zabell, Ci y a ager Rosa Cruz Gonzalez ATTEST: Personal Services Agreement—Rosa Cruz Gonzalez Utility Box Wraps Page 8 of 9 ��� ����--� Debra C. 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