HomeMy WebLinkAbout16- Eric Ian Photography PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this T day of January, 2016, by and
between the CITY OF BOZEMAN, MONTANA, a municipal corporation organized and existing
under the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana 59771,
hereinafter referred to as "City," and Eric Ian Photography, LLC, 603 S 5th Ave, Bozeman, MT
59715, hereinafter referred to as "Consultant."
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to hire Consultant as an independent contractor to perform for
City services described in the Scope of Services attached hereto as Exhibit "A" and by this
reference made a part hereof.
2. Effective Date: This Agreement is effective upon the date of its execution and will
terminate on the 30th day of June, 2016.
3. Scope of Work: Consultant will perform the work and provide the services in
accordance with the requirements of the Scope of Services attached hereto. For conflicts between
this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement
governs.
4. Payment: City agrees to pay Consultant an amount based on the Consultant's
proposal but not to exceed six thousand three hundred dollars ($6,300.00) for services performed
pursuant to the Scope of Services. Any alteration or deviation from the described work that
involves additional costs above the Agreement amount will be performed by Consultant after
written request by the City, and will become an additional charge over and above the contract
amount. The parties must agree in writing upon any additional charges.
5. Consultant's Representations:
To induce Cityto enter into this Agreement, Consultant makes the following 1,
representations;
a. Consultant has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, growth policies,
adopted plans of the City, ordinances, rules, and regulations that in any manner may affect cost,
progress or performance of the Scope of Services.
b. Consultant represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, !1
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or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status: The parties agree that Consultant is an
independent contractor for purposes of this Agreement and is not to be considered an employee of
the City for any purpose. Consultant is not subject to the terms and provisions of the City's
personnel policies handbook and may not be considered a City employee for workers'
compensation or any other purpose. Consultant is not authorized to represent the City or otherwise
bind the City in any dealings between Consultant and any third parties.
Consultant shall comply with the applicable requirements of the Workers' Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Consultant shall maintain workers' compensation coverage for all members and
employees of Consultant's business, except for those members who are exempted by law.
Consultant shall furnish the City with copies showing one of the following: (1) a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Consultant agrees to defend, indemnify, and hold
the City harmless against claims, demands, suits, damages, losses, and expenses connected
therewith that may be asserted or claimed against, recovered from or suffered by the City by reason
of any injury or loss, including but not limited to, personal injury, including bodily injury or death,
property damage, occasioned by, growing out of, or in any way arising or resulting from any
intentional or negligent act on the part of Consultant or Consultant's agents or employees.
For the professional services rendered, to the fullest extent permitted by law, Consultant
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
willful misconduct of the Consultant or Consultant's agents or employees.
Consultant also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except "responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
Should City be required to bring an action against the Consultant to assert its right to
defense or indemnification under this Agreement or under the Consultant's applicable insurance l`
policies required below the City shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
jurisdiction determines the Consultant was obligated to defend the claim(s) or was obligated to
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indemnify the City for a claim(s) or any portion(s) thereof.
The above obligations shall survive termination of this agreement.
In addition to and independent from the above, Consultant shall secure insurance coverage
that will protect, defend, and indemnify the City and which is acceptable to the City and furnish to
the City an accompanying certificate of insurance issued by a company authorized to do business in
the State of Montana in amounts not less than as follows:
• Workers' Compensation- statutory
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate
• Professional Liability - $500,000 per claim; $1,000,000 annual aggregate
The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional
or named insured on a primary non-contributory basis on both the Commercial General and
Automobile Liability policies. The insurance and required endorsements must be in a form suitable
to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The
City must approve all insurance coverage and endorsements prior to the Consultant commencing
work.
8. Professional Service: Consultant agrees that all services and work performed
hereunder will be accomplished in a professional manner.
9. Compliance with Laws: Consultant agrees to comply with all federal, state and
local laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the
Montana Safety Act in Title 50, Chapter 71, MCA. Consultant agrees to purchase a City business
license.
10. Nondiscrimination: The Consultant will have a policy to provide equal
employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. The Consultant will 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 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, except when the reasonable demands of the position require an age, physical or mental
disability, marital status or sex distinction. The Consultant shall be subject to and comply with Title
VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations
promulgated thereunder. The Consultant shall require these nondiscrimination terms of its sub-
consultants providing services under this agreement.
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11. Default and Termination: If either party fails to comply with any condition of this
Agreement at the time or in the manner provided for, the other party, at its option, may terminate
this Agreement and be released from all obligations if the default is not cured within ten (10) days
after written notice is provided to the defaulting party. Said notice shall set forth the items to be
cured. Additionally, the non-defaulting party may bring suit for damages, specific performance,
and any other remedy provided by law. These remedies are cumulative and not exclusive. Use of
one remedy does not preclude use of the others. Notices shall be provided in writing and hand-
delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement.
12. Modification and Assignability: This document contains the entire agreement
between the parties and no statements, promises or inducements made by either party or agents of
either party,which are not contained in this written Agreement, may be considered valid or binding.
This Agreement may not be enlarged, modified or altered except by written agreement signed by
both parties hereto. The Consultant may not subcontract or assign Consultant's rights, including the
right to compensation or duties arising hereunder, without the prior written consent of City. Any
subcontractor or assignee will be bound by all of the terms and conditions of this Agreement.
13. Ownership and Publication of Materials: All reports, information, data, and other
materials prepared by the Consultant pursuant to this Agreement, except those separately identified
in the Scope of Services or in other written agreements between the parties, are owned by the City.
The City has authority to release, publish or otherwise use, in whole or part, reports, information,
data and other materials prepared by Consultant pursuant to this Agreement, except those separately
identified in the Scope of Services or in other written agreements between the parties. Any re-use
without written verification or adaptation by the Consultant for the specific purpose intended will be
at the City's sole risk and without liability or legal exposure to the Consultant. No material
produced in whole or in part under this Agreement may be copyrighted or patented in the United
States or in any other country without the prior written approval of the City. Consultant may use the
proposed videos for marketing purposes.
14. Liaison: City's designated liaison with Consultant is Heather Higinbotham and
Consultant's designated liaison with City is Eric Ian.
15. Applicability: This Agreement and any extensions hereof shall be governed and
construed in accordance with the laws of the State of Montana.
16. Reports/Accountability/Public Information: Consultant agrees to develop and/or
provide documentation as requested by the City demonstrating Consultant's compliance with the
requirements of this Agreement. Consultant shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Consultant pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Consultant shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
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17. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party's right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
18. Attorney's Fees and Costs: That in the event it becomes necessary for either Party
of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement
or to give any notice required herein, then the prevailing Party or the Party giving notice shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel 1
to include City Attorney.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN,MONTANA Eric Ian Photography,LLC
By01\1331( By
Chris Kukulski, City Manager
Print Name: Z.t C. L/4'
Print Title: i $A4o-1 uT r etc.
APPROVED AS TO FORM:
BY '!
Greg Sullivan, Bozeman City Attorney
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