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HomeMy WebLinkAbout19- Professional Services Agreement (The Trust for Public Land) - E. Nelson - Story Mill Community Park Art Installation PROFESSIONAL SERVICES AGREEMENT Story Mill Community Park This Professional Services Agreement("Agreement") is made and entered into between The Trust for Public Land, a nonprofit California public benefit corporation("TPL"),and Erik Nelson of Media Station Design Works, Inc. ("Artist"), collectively hereinafter referred to as the"Parties." RECITALS WHEREAS, TPL received a grant award from the National Endowment for the Arts("NEA")to create and install high-quality, art in Story Mill Community Park, which is located in Bozeman, Montana (the"Project"). WHEREAS, after undertaking an artist selection process, Artist was chosen to design and fabricate and install artwork at Story Mill Community Park WHEREAS, both parties wish to promote and maintain the integrity and clarity of the Artist's idea and statements as represented by the Work; and WHEREAS,the Artist is ready, willing and able to render such services as provided by this Agreement as an Artist. NOW,THEREFORE, in consideration of the mutual promises and covenants set forth below, and the recitals set forth above which are made a part hereof,the parties agree as follows: TERMS 1. SCOPE OF SERVICES. (a) Artist shall perform the tasks set forth on Exhibit 1 to this Agreement, which Exhibit is incorporated into and made a part of this Agreement(the "Services"). (b) Artist shall maintain full and accurate records and books of account necessary to document: (i)all activities undertaken by Artist in the course of performing this Agreement; and(ii)all charges, expenses and disbursements incurred by Artist, in performing services hereunder. Artist shall make such books and records available to TPL upon request during normal business hours. (c) Artist shall perform its services hereunder in strict compliance with applicable federal, state and local laws and regulations, including the federal requirements of the National Endowment for the Arts at Exhibit 2 to this Agreement, which Exhibit is incorporated into and made a part of this Agreement. (c) Artist shall determine the method,details,and means of performing the above-described services. TPL understands and hereby warrants that it retains no right to control the method and means by which the above-described services are to be performed by Artist. (d) Artist shall furnish all of the equipment, supplies, and materials necessary for the performance of the Services called for under this Agreement. I (e) TPL acknowledges and understands that during the term of this Agreement,Artist may routinely perform similar or other services for other clients or as a subcontractor or employee of other independent contractors (f) Artist represents to TPL that Artist is in the business of providing services of the sort to be performed under this Agreement. (g) Artist shall have no authority to act on behalf of or to bind TPL, including,without limitation, with respect to any third party contracts for goods or services. Further Artist shall not serve as an agent for TPL, nor represent herself as such to any third party. 2. TERM. The term of this Agreement shall commence upon execution of this Agreement, and shall continue until the artwork is finally installed in Story Mill Community Park and the Services have been completed, unless otherwise terminated in accordance to the terms of this Agreement. 3. INDEPENDENT CONTRACTOR RELATIONSHIP. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between TPL and Artist or any employee or agent of Artist. Both parties acknowledge that Artist is not an employee for state or federal tax purposes. Consequently, TPL will not withhold FICA, FUTA or any other state or federal taxes or assessments from any amounts payable to Artist in respect of any job. TPL shall provide Artist with an IRS Form 1099 within the required time frames after the end of each calendar year in which Artist performs services for Company. TPL shall not provide, or make any contribution to any entity or fund for, unemployment compensation, disability income or for any similar benefit to or on behalf of Artist. TPL will not provide liability insurance, errors and omissions insurance, worker's compensation insurance, umbrella coverage or any other type of insurance coverage for Artist. Artist is expected to maintain any coverage legally or customarily required of an independent contractor while performing the same or similar services for a person or entity in the position of TPL, and by signing this agreement, Artist warrants that he has obtained for himself, all insurance required by law or by industry custom for independent contractors involved in the same or similar work. Artist shall not make any claim against any insurance which TPL may from time to time provide for TPL and/or its employee(s), whether such claim arises out of or in connection with Artist's work for TPL or out of or in connection with any other facts or circumstances. It is agreed that Artist is solely responsible for the payment of unemployment insurance, social security, income, and any other taxes on the payments made under this Agreement. 4. PAYMENT FOR SERVICES. TPL shall pay to Artist a fee of$15,000 for services rendered under this Agreement, $10,000 payable upon signing of this contract and $5,000 upon installation of the sculpture on or before July 15th, 2019. Invoices shall be sent to the attention of Maddy Pope, TPL Project Manager,The Trust for Public Land, 1007 East Main Street, Suite 300, Bozeman, Montana, 59715, or via email to Maddv.Pope(alpl.org. TPL shall pay invoices within 30 days of receipt of invoices. Artist agrees to provide TPL with a standard completed IRS form W-9 prior to receiving payment from TPL. 5 EXPENSES. Artist shall not be reimbursed by TPL for Artist's transportation expenses, or for any other out-of-pocket expenses incurred by Artist in the course of rendering the Services for TPL. Artist shall be responsible for such costs and expenses. 6. WARRANTY. 2 (a) Exercise of Judgment and Skill. Artist represents and warrants to TPL that Artist is an experienced artist with the specialized knowledge,training and experience required for the provision of services to TPL pursuant to this Agreement. (b) Warranty as to Title. Artist represents and warrants that the artwork produced pursuant to this Agreement(i) is solely the result of the artistic effort of the Artist; (ii)except as otherwise disclosed in writing to TPL,the artwork is unique and original and does not infringe upon any copyright or the rights of any third party; (iii)that neither the artwork installed nor a duplication thereof has been accepted for sale elsewhere; and(iv)the Artist has not sold, assigned,transferred, licensed, granted encumbered or utilized the artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; (v)the artwork is free and clear of any liens from any source whatsoever. (c) Warranties of Quality and Condition. The Artist represents and warrants, except as otherwise disclosed to TPL in writing,that the execution and fabrication of the artwork will be performed in a skillful manner and the artwork, as fabricated and installed,will be free of defective or inferior materials and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the artwork. The Artist also represents and warrants that the artwork and materials used are not currently known to be harmful to public health and safety. The warranties described above shall survive the termination or other extinction of this Agreement. 7. TITLE TO AND OWNERSHIP OF ARTWORK. Artist shall own the artwork and bear the risk of any loss or damage prior to the time the artwork is installed. Upon installation of the artwork,title to and ownership of the artwork shall transfer to the City of Bozeman. Artist will execute such documentation as the City of Bozeman may reasonably request to confirm the transfer title to and ownership of the artwork by the City of Bozeman. 8. LICENSES AND CERTIFICATES. Artist shall maintain any current license or certification required by law, and shall conform with all legal requirements applicable to persons rendering the same or similar services, in effect during the course of rendering services to TPL. Artist shall not rely upon or use any license or license number which may be maintained from time to time by TPL. Artist shall also maintain in force while rendering services under any contract or invoice with TPL any business license which may be required by local governmental entities for persons rendering the same or similar services as those rendered by Artist for or on behalf of TPL. 9. TERMINATION. (a) This Agreement shall terminate automatically on the occurrence of any of the following events: (i)death or disability of Artist; (ii) bankruptcy or insolvency of TPL; (iii) assignment of this Agreement by either party without the express written consent of the other party; or(iv)completion of the project or services described above in Paragraph 1. As used herein, "disability" means any physical or mental condition that prevents Artist from performing Artist's obligations pursuant to this Agreement. (b) Except as otherwise provided in this Agreement, this Agreement may not be terminated by either party except in good faith, for good cause shown, and upon written notice to the other party. A termination of this Agreement shall be considered to be a termination "for 3 good cause," if such termination is for reasons including but not limited to the following: (i)material dishonesty; (ii)failure of TPL to compensate Artist in accordance with the provisions of Paragraph 6; and(iii)failure of Artist to perform services under or comply with the terms of this Agreement. (c) Upon termination of this Agreement, TPL will reimburse Artist for work performed prior to termination. (d) Artist's obligations to indemnify TPL under Paragraph 10 below shall continue in full force and effect notwithstanding any termination of this Agreement. 10. INDEMNIFICATION. Artist shall indemnify, defend and hold TPL and the City of Bozeman and their respective officers, agent and employees harmless from any and all demands, claims, causes of action, suits, proceedings, arbitrations,judgments, losses, liabilities, costs, expenses and fees, including but not limited to reasonable attorneys' fees, which arise from or in connection with the services provided by Artist or Artist's subcontractors and/or employees; the design, fabrication or installation of the artwork; and/or the negligence or intentional acts of Artist. This indemnification provision shall survive the termination or expiration of this Agreement. 11. CONFLICT OF INTEREST. It is understood that Artist may provide consulting and/or artistic services for other clients during the term of this Agreement. However, during the term of this Agreement, Artist will not undertake any responsibilities or engage in activities which may conflict with or be detrimental to the success of Artist's Services to TPL. Further, Artist shall disclose to TPL any situation which may reasonably present a conflict of interest. TPL and Artist will mutually and in good faith attempt to resolve any apparent or perceived conflict of interest. If the conflict cannot be resolved between the parties,TPL may terminate the Agreement effective on the day notice is sent to Artist. 12. PROJECT ADMINISTRATION. This Agreement will be administered by the following representative of TPL: Maddy Pope, Project Manager, provided that TPL reserves the right to change such person at any time. 13. DEFAULT. In the event that Artist defaults in the performance of any of Artist's obligations under this Agreement, in addition to TPL's right to recover damages for breach of contract or any other remedy provided by law or equity, TPL shall be entitled to receive all information and materials obtained by Artist in connection with the performance of this Agreement up until the time of Artist's default, and Artist shall return to TPL all supplies, documents and materials acquired by Artist by or on behalf of Company. 14. INSURANCE. Artist shall, while performing the Services hereunder, maintain any coverage legally and/or customarily required of an Artist while performing the same or similar services for a person or entity in the position of TPL and warrants that it has obtained for itself and its employees, all insurance required by law or by industry custom for Artists involved in the same or similar work. 15. MISCELLANEOUS. (a) Assignment. Neither party shall assign this Agreement or any rights or benefits accruing to it hereunder without the prior written consent of the other party. (b) Governing Law. This Agreement shall be governed by the laws of the State of Montana, applicable to contracts executed and performed entirely therein. 4 (c) Waiver of Default. Failure by either party to enforce any provision of this Agreement shall not be construed as a waiver of such provision or of the right to such party thereafter to enforce such provision. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. (d) Modifications. Except as expressly set forth elsewhere in this Agreement,this Agreement may be modified only in writing, signed by both parties hereto. (e) Integration Clause. This Agreement shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof and shall supersede all prior correspondence, conversations and negotiations with respect thereto. (f) Attorneys' Fees. The parties agree that reasonable attorneys' fees and costs shall be awarded to the prevailing party in any arbitration or litigation between the parties in connection with this Agreement. (g) Binding Effect. This Agreement shall be binding upon the heirs, successors, assigns and representatives of the parties hereto. (h) Severability. If any provision, in whole or in part, of this Agreement should be found to be invalid or unenforceable, it shall not affect the validity of any other provisions within this Agreement which shall continue to bind the parties. (i) Time is of the Essence. Artist understands that time is of the essence in this Agreement and that TPL will be relying on the timeliness of the Artist. 0) Multiple Originals/Electronic Signatures. Electronic signatures of or on behalf of either party on this Agreement shall be effective for all purposes, including delivery, as an original. This Agreement may be executed in multiple originals, which shall be deemed to be one document. (k) Nondiscrimination. Artist shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations and contracts. Hiring must be on the basis of merit and qualifications, and Artist shall not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition or privilege of employment, in performance of its acts and obligations under this Agreement, because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability. Artist shall require these nondiscrimination terms of its contractors installing artwork pursuant to this Agreement. 5 IN WITNESS WHEREOF,the parties have executed this Agreement. The effective date(the "Effective Date")of this Agreement shall be the last date of execution by either of the parties to this Agreement. THE R T FOR PUBLIC LAND By: Erik Nelson Business name: Media Station Design Works, Inc. 627 East Peach St., Bozeman, MT 59715 Date: Telephone: 406-580-9778 Email: ole@mediastation.biz FEIN#: 81-0503936 Date: 6 EXHIBIT 1 Artist Scope of Work The Trust for Public Land Maddy Pope, Project Manager 1007 E. Main St, Suite 300 WORK timeline for the completion of the Confluence sculpture. Week of June 24th-30th Cut 10"pipe and 6" square tube to size, order all sheet goods, weld angle iron to 10" base pipe and tie in rebar. Will have the base pipe ready for delivery on or before June 27th.Plasma cut tree top pieces, tack weld together, cut and weld all internal angle iron supports, dry fit square tube, weld rings on square tube, cut circular base and send cut files for stone half circles Week of July 1 st-July 7th roll 12"ring and tack weld to base weld 6" spacers between tree top sections. Form openings, sandblast lettering into stone section, full pregrind of all welds, fully weld all openings and perimeters. Full grind on both sides of tree top. Week of July 7th-JulyI2th Final detail grinding, sandblasting, full rust and prep for delivery. Let me know if you have any thing else you need from me at this time. I am very much looking forward to getting started on this. I am also around by phone anytime if you need me. Erik"Ole,"Nelson Media Station Design Works Inc. 627 East Peach Street Bozeman, MT 59715 EXHIBIT 2 National Endowment for the Arts Requirements Because The Trust for Public Land("TPL") has received federal grant funding from the National Endowment for the Arts for this project,the Artist must adhere to various provisions of federal law, including but not limited to the following. I. Acknowledgment In materials announcing the artwork, acknowledgement of the National Endowment for the Arts must be prominently displayed in all materials. Print materials shall use the following language: "This project is supported in part by an award from the National Endowment for the Arts." II. Financial Reporting Requirements a. Expense Tracking and Repnrting. Beyond the submission of invoices from Artist that detail the services provided during the relevant time period, TPL may request that Artist provide additional expense documentation and accounting information to comply with federal agency tracking and reporting requirements in conformance with the OMB Super Circular(effective December 26, 2013,at 2 CFR Part 200). The required federal agency reporting must occur at least annually but no more frequently than quarterly. III. Nondiscrimination Policies . a. Title VI of the Civil Rights Act of 1964, as amended, provides that no person in the United States shall,on the grounds of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. Title VI also extends protection to persons with limited English proficiency, as clarified by Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency(42 USC 2000d et seq.). b. Title IX of the Education Amendments of 1972, as amended, provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance (20 USC 1681 et seq.). C. Section 504 of the Rehabilitation Act of 1973, as amended, provides that no otherwise qualified individual with a disability in the United States shall, solely by reason of his/her disability, be excluded from participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance(29 USC 794). All organizations are legally required to provide reasonable and necessary accommodations for staff and visitors with disabilities. d. The Age Discrimination Act of 1975, as amended, provides that no person in the United States shall,on the basis of age, be excluded from participation in, be denied benefits of,or be subject to discrimination under any program or activity receiving Federal financial assistance(42 USC 6101 et seq.). e. The Americans with Disabilities Act of 1990 (ADA),as amended, prohibits discrimination on the basis of disability in employment(Title I); State and local government services(Title II); and places of public accommodation and commercial facilities(Title III)(42 USC 12101-12213). IV. Environmental and Preservation Policies a. The National Environmental Policy Act of 1969, as amended, applies to any federal funds that would support an activity that may have environmental implications. TPL may require your assistance with responding to specific questions or providing additional information in accordance with the Act. If there are environmental implications, either a determination of a categorical exclusion,an undertaking of an environmental assessment, or an issuance of a "finding of no significant impact" must occur, pursuant to applicable regulations and 42 USC Sec. 4332. b. The National Historic Preservation Act of 1966, as amended, applies to any Federal funds that would support either the planning or major renovation of any structure eligible for or on the National Register of Historic Places, in accordance with Section 106. This law also applies to project activities, such as new construction,that would affect such properties. Additional information may be requested, as well as changes in the design, renovation or construction plans,to ensure compliance with the Act(16 USC 470). V. Construction-Related Policies a. Davis-Bacon and Related Acts(DBRA), as amended, requires that each contract over$2,000 to which the United States is a party for the construction, alteration, or repair of public buildings or public works(these activities include, but are not limited to, painting, decorating, altering, remodeling, installing pieces fabricated off-site, and furnishing supplies or equipment for a work-site) must contain a clause setting forth the minimum wages to be paid to laborers and mechanics employed under the contract. Under the provisions of DBRA, independent contractors or their subcontractors must pay workers who qualify under DBRA no less than the locally prevailing wages and fringe benefits paid on projects of a similar character. Information about the laborers and projects that fall under DBRA can be found in the Department of Labor's Compliance Guide at ww.dol.gov/compliance/guide/dbra.htm. DBRA wage determinations are to be used in accordance with the provisions of Regulations, 29 CFR Part 1, Part 3, and Part 5, and with DOL's Compliance Guide. The provisions of DBRA apply within the 50 states, territories, protectorates, and Native American nations(if the labor is completed by non-tribal laborers). b. Copeland"Anti-Kickback"Act. If applicable to this project,the Artist shall be subject to the provisions of the Copeland"Anti-Kickback Act(18 U.S.C. 874 and 40 U.S.C. 276c)as supplemented by Department of Labor regulations(29 CFR part, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). Vl. Other National Policies a. Conflict of Interest. Artist certifies that no employee,officer, or agent participated in the selection, award or administration of a contract supported by a federal award. Artist further certifies that it neither solicited, offered nor accepted gratuities, favors or anything of monetary value in procuring this contract. b. Debarment and Suspension. Artist must comply with requirements regarding debarment and suspension in Subpart C of 2 CFR 180. There are circumstances under which TPL may receive information concerning your fitness to carry out a project and administer Federal funds, such as: i. Conviction of, or a civil judgment for,the commission of fraud, embezzlement, theft,forgery, or making false statements; ii. Any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility; iii. Any other cause of so serious or compelling a nature that it affects an organization's present responsibility. In these circumstances, TPL may suspend and/or terminate the contract to undertake an investigation of the specific facts in coordination with the federal funding agency. C. The Drug Free Workplace Act requires Artist to publish a statement about Artist's drug-free workplace program. Artist must give a copy of this statement to each employee(including consultants and temporary personnel)who will be involved in this project. Artist must maintain on file the place(s) where work is being performed under this contract(i.e., street address, city, state, and zip code). Artist must notify TPL and the federal funding agency of any employee convicted of a violation of a criminal drug statute that occurs in the workplace(41 USC 701 et seq. and 45 CFR 1155). d. Lobbying. Artist certifies, to the best of the Artist's knowledge and belief that: i. No U.S. Federal appropriated funds have been paid or will be paid, by the Artist or on behalf of the Artist,to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any U.S. federal contract,the making of any U.S. federal grant,the making of any U.S. Federal loan,the entering into of any cooperative agreement, and the extension,continuation, renewal, amendment, or modification of any U.S. federal contract, grant, loan, or cooperative agreement. ii. If any funds other than U.S. federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection the underlying U.S. federal award,the Artist shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. iii. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352,title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Artist certifies that the Artist will not: i. Attempt to influence legislation or support lobbying within the meaning of Section 501(c)(3)of the U.S. Internal Revenue Code using any of the funds received from TPL; or ii. Use any portion of these funds to participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office,to cause any private benefit to occur, or to take any other action inconsistent with Section 501(c)(3) of the U.S. Internal Revenue Code e. The Native American Graves Protection and Repatriation Act of 1990 applies to any organization that controls or possesses Native American human remains and associated funerary objects and receives Federal funding, even for a purpose unrelated to the Act(25 USC 3001 et seq.).