HomeMy WebLinkAboutWendy Wahman - 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 Wendv Wahman,hereinafter referred
to as "Artist,"on the 28th day of November, 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 andlor 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 "ProjecY').
2. Term. This Project shall begin on the execution date listed above and promptly be
completed by February 28, 2023. 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. Comnensation 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.
3.3. The City shall pay the Artist for work 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
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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 Exhibit 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$ 300
3.4.4. ❑ Other:
4. Re orts and Inspections.
4.1. The Artist at such times and in such forms as the City may require, shall furnish ta
the City such statements, records, 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 nortnal 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 or 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 permits 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
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records shall be subject, at all 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 subject 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 termination, 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 summary of services provided shall be
prepared at no additional cost, if the Agreement is terminated through default by
the Artist. If the Agreement is terminated through convenience by the City, the
City agrees to pay Artist for the preparation of the summary of services provided.
6. Maintenance,Repairs, and Restorallon.
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.
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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 prepaxed or gathered by the
Artist,and recommendations of the Artist are exempt prior to the acceptance by the
City or 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 wark 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
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reasonably cooperate with any legal action which may be initiated by the Artist to
enjoin or otherwise prevent such release.
9. Independent Contractor Relationship.
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 City'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.
14. Indemnification.
10.L 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 property,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.
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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,emplvyees,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.
14.4. 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 termination 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 A�ainst 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 or 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 Subcontractin�.
13.1. The City has awarded this Agreement to the Artist due to its unique qualifications
to perform these services. The Artist shall not assign(or subcontract other than as
specifically identified in E�ibit A) its performance under this Agreement or any
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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 prior
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 shall be:
For the City: Angela Pashon, or his/her designee
Senior Management Analyst
525 North 3ra
PO Box 293
Pasco WA 99301
pashona��pasco-wa.aov (e-mail address)
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For the Artist: Wendy Wahman, or his/her designee
5322 N. 40th St.
Tacoma, WA 98407
wendv(u�wendy�vahman.com (e-mail address)
16. Dispute 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 pariy 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 for in this Agreement shall not constitute a waiver of any other similar event or
other provision of this Agreement.
18. Int�ration. This Agreement between the parties consists in its entirety of this document
and any e�chibits,schedules or attachments. 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,WASH GTON ARTIST
:
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Adam Lincoln, Inte im City Manager Wendy Wahman
ATTEST:
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Debra C. Barham, City Clerk
APPROVED AS TO FORM:
Kerr Ferguson , LC, City Attorney
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