PROFESSIONAL SERVICES AGREEMENT
(City of Barstow and Main Street Murals)
1. IDENTIFICATION
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into by and between the City of Barstow, a California Municipal Corporation (“City”) and Main Street Murals, a California 501(c)(3) Nonprofit Public Benefit Corporation (“MSM”).
2. RECITALS
2.1 MSM will develop, paint and maintain historic murals in the downtown Barstow area and to market these murals as a tourist attraction.
2.2 MSM represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its artists and volunteers. MSM further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and MSM agree as follows:
3. DEFINITIONS
3.1 “Scope of Services”: Such professional services as are set forth in the attached Exhibit A, incorporated herein by this reference.
3.2 “Approved Fee Schedule”: Such compensation rates as are set forth in the attached Exhibit B, incorporated herein by this reference.
3.3 “Commencement Date”: August 1, 2022
3.4 “Expiration Date”: June 30, 2023
4. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Expiration Date unless extended by written agreement of the parties or terminated earlier in accordance with Section 17 (“Termination”) below.
5. MSM’S SERVICES
5.1 MSM shall perform the services identified in the scope of Services. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties and any corresponding increase or decrease in Professional Services Agreement
City of Barstow / Main Street Murals
compensation shall be incorporated by written amendment to this Agreement. In no event shall the total compensation and costs payable to MSM under this Agreement exceed the sum of Thirty-Five Thousand Dollars and No/Cents ($35,000.00) unless specifically approved in advance and in writing by City.
5.2 MSM shall obtain a City of Barstow business license prior to commencing performance under this Agreement.
5.3 MSM shall perform all work to the highest professional standards of MSM’s profession and in a manner reasonably satisfactory to City. MSM shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the political Reform Act (Government Code Section 81000 et seq.)
5.4 During the term of this Agreement, MSM shall not perform any work for another person or entity for whom MSM was not working at the Commencement Date if both (i) such work would require MSM to abstain from a decision under this Agreement pursuant to a conflict of interest statute; and (ii) City has not consented in writing to MSM’s performance of such work.
5.5 MSM represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by MSM or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Jane Laraman-Brockhurst’ shall be MSM’s project administrator and shall have direct responsibility for management of MSM’s performance under this Agreement. No change shall be made in MSM’s project administrator without City’s prior written consent.
6. COMPENSATION
6.1 City agrees to compensate MSM for the services provided under this Agreement, and MSM agrees to accept in full satisfaction for such services, payment in accordance with the Approved Fee Schedule.
6.2 MSM shall submit to City an invoice, on a quarterly basis, for the services performed pursuant to this Agreement. Prior to the first payment, MSM shall provide Articles of Incorporation, proof of 501(c) (3) status and proof of insurance as required in Section 11 of this Agreement. Each invoice shall itemize the services rendered during the billing period and the amount due. Within ten business days of receipt of each invoice, City shall notify MSM in writing of any disputed amounts included on the invoice.
Within thirty calendar days of receipt of each invoice, City shall pay all undisputed amounts included on the invoice. City shall not withhold applicable taxes or other authorized deductions from payments made to MSM.
6.3 Payments for any services requested by City and not included in the Scope of Services shall be made to MSM by City on a time-and-materials basis using MSM’s standard fee schedule. Fees for such additional services shall be paid within sixty days of the date MSM issues an invoice to City for such services.
Professional Services Agreement
City of Barstow / Main Street Murals
7. MURAL DEVELOPMENT
7.1 Mural images shall be painted along Main Street between 1st Street and 7th Street.
7.2 MSM shall be solely responsible for obtaining permission from property owners prior to painting any mural images on private property. Council approval is required for any mural images to be painted on city buildings or property. MSM shall present renderings and locations of proposed mural images to the Council for their approval before any painting work can take place and work erected. The Council’s determination on the mural images and location shall be final.
7.3 MSM or its contract artists (whichever is applicable) holds complete ownership of all visual images/murals and written products developed and produced by the MSM in the performance of this Agreement. MSM shall be solely responsible for the maintenance, repair and upkeep of its murals, including the removal of graffiti.
7.4 The City will provide a link to the MSM’s website.
7.5 MSM represents and warrants that MSM will ensure that it has the legal right to utilize all intellectual property, if applicable, in the development of its murals. MSM further represents that MSM shall hold harmless and defend City for any legal challenges brought against City under intellectual property law in connection with any and all murals developed under this Agreement.
8. RELATIONSHIP OF PARTIES
MSM is, and shall at all times remain as to City, a wholly independent contractor. MSM shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of MSM or any of MSM’s employees, except as set forth in this Agreement. MSM shall not represent that it is, or that any of its agents or employees are, in any manner, employees of City.
9. CONFIDENTIALITY
All data, documents, discussion, or other information developed or received by MSM or provided for performance of this Agreement are deemed confidential and shall not be disclosed by MSM without prior written consent by City. City shall grant such consent if disclosure is legally required. Upon request, all City data shall be returned to City upon the termination or expiration of this Agreement.
10. INDEMNIFICATION
10.1 The parties agree that City, its officers, agents, employees and volunteers should, to the fullest extent permitted by law, be protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions Professional Services Agreement
City of Barstow / Main Street Murals
of this indemnity provision are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law. MSM acknowledges that City would not enter into this Agreement in the absence of MSM’s commitment to indemnify and protect City as set forth herein.
10.2 To the fullest extent permitted by law, MSM shall indemnify, hold harmless and when the City requests, with respect to a claim, provide a deposit for the defense of, and defend City, its officers, agents, employees and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, and injury to any property arising out of or in connection with MSM’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of MSM or any of its officers, employees, servants, agents, subcontractors, in the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Such costs and expenses shall include reasonable attorney’s fees due to counsel of City’s choice, expert fees and all other costs and fees of litigation.
10.3 City shall have the right to offset against the amount of any compensation due MSM under this Agreement any amount due City from MSM as a result of MSM’s failure to pay City promptly any indemnification arising under this Section 10 and related to MSM’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable worker’s compensation laws.
10.4 The obligations of MSM under this Section 10 will not be limited by the provisions of any workers’ compensation act or similar act. MSM expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
10.5 MSM agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 10 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of MSM in the performance of this Agreement. In the event MSM fails to obtain such indemnity obligations from others as required herein, to the fullest extent permitted by law, MSM agrees to be fully responsible and indemnify, hold harmless and defend City, its officers, agents, employees and volunteers from the against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of MSM’s subcontractors or any other person or entity involved by, for, with or on behalf of MSM in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of City’s choice.
10.6 City does not, and shall not; waive any rights that it may possess against MSM because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.
Professional Services Agreement
City of Barstow / Main Street Murals
11. INSURANCE
11.1 During the term of this Agreement, MSM shall carry, maintain and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with MSM’s performance of this Agreement. Such insurance shall be the types and in the amounts as set forth below:
11.1.1 Comprehensive General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) including products and operations hazard, contractual insurance, broad form property damage, independent MSMs, personal injury, underground hazard, and explosion and collapse hazard where applicable.
11.1.2 Automobile Liability Insurance for vehicles used in connection with the performance of this Agreement with minimum limits of One Million Dollars ($1,000,000) per claimant and One Million Dollars ($1,000,000) per incident.
11.1.3 Worker’s Compensation insurance as required by the laws of the State of California.
11.2 MSM shall require each of its subcontractors to maintain insurance coverage that meets all of the requirements of this Agreement.
11.3 The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least A: VII in the latest edition of Best’s Insurance Guide.
11.4 MSM agrees that if it does not keep the previously mentioned insurance in full force and effect, City may either (i) immediately terminate this Agreement; or (ii) take out the necessary insurance and pay, at MSM’s expense, the premium thereon.
11.5 At all times during the term of this Agreement, MSM shall maintain on file with City’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming the City and its officers, employees, agents and volunteers as additional insureds. MSM shall, prior to commencement of work under this Agreement, file with City’s Risk Manager such certificate(s).
11.6 MSM shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverage(s).
11.7 The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming City and its officers, employees, agents and volunteers as additional insureds. All of the policies required under this Agreement Professional Services Agreement
City of Barstow / Main Street Murals
shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty days’ prior written notice to City.
11.8 The insurance provided by MSM shall be primary to any coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers, shall be in excess of MSM’s insurance and shall not contribute with it.
11.9 All insurance coverage provided pursuant to this Agreement shall not prohibit MSM, and MSM’s employees, agents or subcontractors, from waiving the right of subrogation prior to a loss. MSM hereby waives all rights of subrogation against the City.
11.10 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of City, MSM shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or MSM shall procure a bond guaranteeing payment of losses and expenses.
11.11 Procurement of insurance by MSM shall not be construed as a limitation of MSM’s liability or as full performance of MSM’s duties to indemnify, hold harmless and defend under Section 10 of this Agreement.
12 MUTUAL COOPERATION
12.1 City shall provide MSM with all pertinent data, documents and other requested information as is reasonably available for the proper performance of MSM’s services under this Agreement.
12.2 In the event any claim or action is brought against City relating to MSM’s performance in connection with this Agreement, MSM shall render any reasonable assistance that City may require.
13. RECORDS AND INSPECTIONS
MSM shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of three years after the expiration or termination of this Agreement. City shall have the right to access and examine such records, without charge, during normal business hours. City shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings and activities.
14. PERMITS AND APPROVALS
MSM shall obtain at its sole cost and expense, all permits and regulatory approvals necessary in the performance of this Agreement. This includes, but shall not be limited to, encroachment permits, building and safety permits and inspections.
Professional Services Agreement
City of Barstow / Main Street Murals
15 NOTICES
Any notice, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during MSM’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
If to City:
City of Barstow
Attention: City Manager
220 East Mountain View Street, Ste. A
Barstow, CA 92311
Telephone: 760-256-3531
Facsimile: 760-256-4472
If to MSM:
Main Street Murals
Attention: Jane Laraman-Brockhurst
48686 Silver Valley Road
Newberry Springs, CA 92365
Telephone: 760-257-1052
[email protected]
With a courtesy copy to:
City Counsel
Colantuono, Highsmith & Whatley, P.C.
790 E. Colorado Blvd, Ste 850
Pasadena, CA 91101
213-542-5719 – Direct
213-542-5700 – Main
16. SURVIVING COVENANTS
The parties agree that the covenants contained in Section 9, Section 10, Paragraph 12.2 and Section 13 of this Agreement shall survive the expiration or termination of this Agreement.
17. TERMINATION
17.1 City shall have the right to terminate this Agreement for any reason on five calendar days’ written notice to MSM. MSM shall have the right to terminate this Agreement for any reason on sixty calendar days’ written notice to City. MSM agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be returned to City upon the termination or expiration of this Agreement.
17.2 If City terminates this Agreement due to no fault or failure of performance by MSM, then MSM shall be paid based on the work satisfactorily performed at the time of termination. In no event shall MSM be entitled to receive more than the amount that Professional Services Agreement
City of Barstow / Main Street Murals
would be paid to MSM for the full performance of the services required by this Agreement.
18. GENERAL PROVISIONS
18.1 MSM shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than MSM.
18.2 In the performance of this Agreement, MSM shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition or any other unlawful basis.
18.3 The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph thereof, as the case may be, and not such heading, shall control and govern in the construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).
18.4 The waiver by City or MSM of any breach of any term, covenant or condition herein contained shall not be deemed a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by City or MSM unless in writing.
18.5 MSM shall not be liable for any failure to perform if MSM presents acceptable evidence, in the City’s sole judgment that such failure was due to causes beyond the control and without the fault or negligence of MSM.
18.6 Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance of the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any of all or such other rights, powers or remedies. In the event legal action shall be necessary to enforce any term, covenant or condition herein contained, the party prevailing in such action, whether reduced to judgment or not, shall be entitled to its reasonable court costs, including accountants’ fees, if any, and attorneys’ fees expended in such action. The venue for any litigation shall be San Bernardino County, California.
Professional Services Agreement
City of Barstow / Main Street Murals
18.7 If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, invalid or unenforceable, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
18.8 This Agreement shall be governed and construed in accordance with the laws of the State of California.
18.9 All documents referenced as Exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and MSM with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties.
Amendments hereto or deviations here from shall be effective and binding only if made in writing and executed by City and MSM.
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Professional Services Agreement
City of Barstow / Main Street Murals
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City”
City of Barstow
“MSM”
Main Street Murals
By: By:
Paul Anthony Courtney, Dr., BA
Mayor
Jane Laraman-Brockhurst
Date Date
Attest:
By:
Andrea Flores
City Clerk
Date
Approved as to form:
By:
Matthew Summers
City Attorney
Date
Professional Services Agreement
City of Barstow / Main Street Murals
EXHIBIT A
SCOPE OF SERVICES
This Service Agreement is set out to assist in the development of production of murals, the maintenance of existing murals and to promote the walking gallery tour as a tourist attraction in Barstow.
MSM’s responsibilities are as follows:
MSM shall produce and complete two murals and or maintenance of existing murals per fiscal year during the term of the Agreement, pertaining only to the walking gallery of historic murals along Barstow’s Downtown Main Street located between 1st Street and 7th Street.
MSM will seek and execute an agreement with each property owner prior to painting on any site. Each agreement with the property owner shall be filed with the City. MSM will maintain existing murals; remove graffiti and repair deterioration or damage of murals.
MSM will continue to produce brochures and related materials, maintain website, and distribute marketing posters and flyers to promote the murals and painting/education events.
Professional Services Agreement
City of Barstow / Main Street Murals
EXHIBIT B
APPROVED FEE SCHEDULE
Total per fiscal year 22/23: $35,000
Production of two (2) murals per year and or maintenance of existing murals. Marketing materials & tour including: Brochures, flyers, website and a minimum of 12 walking tours per year.
Maintenance of existing murals.
MSM shall receive $8,750 on a quarterly basis for services performed pursuant to this Agreement. The first payment of $8,750 shall be processed within thirty days from the execution of the Agreement by both parties. Prior to this payment, MSM shall provide Articles of Incorporation, proof of 501(c) (3) status, and Certificate of Insurance as stated in Section 11 of this agreement.
Each invoice shall itemize the services rendered during the billing period and the amount due.
Within ten business days of receipt of each invoice, City shall notify MSM in writing of any disputed amounts included on the invoice. Within thirty calendar days of receipt of each invoice, City shall pay all undisputed amounts included on the invoice. City s hall not withhold applicable taxes or other authorized deductions from payments made to MSM.
MSM shall submit to the City Manager’s Office, a written quarterly report and a financial statement prior to receiving payment; and a verbal presentation to the Council at the end of the fiscal year.