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HomeMy WebLinkAbout52708 Tigard Mural SIGNEDAgency/State Agreement No. 52708 1 COOPERATIVE MAINTENANCE AGREEMENT Fanno Creek Overpass Mural Art & Maintenance THIS AGREEMENT is made and entered into by and between the STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "ODOT” or “State”, and the CITY OF TIGARD, acting by and through its elected officials, hereinafter referred to as "Agency,” both herein referred to individually or collectively as “Party” or “Parties.” RECITALS 1. By the authority granted in Oregon Revised Statutes (ORS) 190.110, 366.572 and 366.576, State may enter into cooperative agreements with counties, cities and units of local governments for the performance of work on certain types of improvement projects with the allocation of costs on terms and conditions mutually agreeable to the contracting parties. 2. The state, by ORS 366.220, is vested with complete jurisdiction and control over the roadways of other jurisdictions taken for state highway purposes. 3. Agency has requested to paint mural art, hereafter referred to as “Mural” on the north side and the south side of the Fanno Creek overpass. The location and Mural design are attached as Exhibit A. Agency will maintain the Mural. Agency will abide by the guidelines set forth in the ODOT Art Directive attached as Exhibit B. 4. The Fanno Creek Overpass is owned and managed by the State. NOW THEREFORE, the premises being in general as stated in the foregoing Recitals, it is agreed by and between the Parties hereto as follows: TERMS OF AGREEMENT 1. Under such authority, State and Agency agree to Agency funding, painting and maintaining the Mural on the Fanno Creek Overpass, hereinafter referred to as “Project.” The location and design of the Project is approximately as shown on the sketch map attached hereto, marked Exhibit A, and by reference made a part hereof. 2. The Mural is to be created using long lasting materials (Lightfast, high-quality Acrylic paints) and covered in a clear coat varnish to resist vandalism. 3. This Agreement shall become effective on the date all required signatures are obtained and shall remain in effect for twenty (20) calendar years unless otherwise agreed to by the parties. STLAWS.DOC ver.2-18-2003 2 AGENCY OBLIGATIONS 1. Agency shall provide the artist(s), materials, and any additional costs related to the Mural and ongoing maintenance of the Mural. ODOT will not be responsible for any cost associated with the Mural. 2. Mural artwork shall be kept clean and in good repair, including, but not limited to: a. Any damage to the Mural due to vehicle crashes, vandalism including graffiti, acts of nature, or regular wear or aging must be repaired or removed by Agency within fourteen (14) days of discovery. b. Offensive graffiti must be removed within forty-eight (48) hours of discovery. 3. All work in the area of the Fanno Creek Overpass must be conducted in a manner to minimize interference with Highway traffic and to control said traffic according to Oregon Temporary Traffic Control Handbook (OTTCH) and the Manual on Uniform Traffic Control Devices (MUTCD). 4. If Agency fails to maintain, repair, or remove the Mural artwork as required, the Mural artwork may be removed by ODOT at Agency’s expense without commitment for restoration, replacement or compensation by State. 5. Agency understands State shall complete a routine inspection and maintenance of the Fanno Creek Overpass every two (2) years, but could be more frequently, depending on the condition of the overpass. Agency shall be responsible for any maintenance and/or damage of the Mural artwork reported to Agency after State’s inspection. 6. All employers, including Agency, that employ subject workers who work under this Agreement in the State of Oregon shall comply with ORS 656.017 and provide the required Workers’ Compensation coverage unless such employers are exempt under ORS 656.126. Employers Liability insurance with coverage limits of not less than $500,000 must be included. Agency shall ensure that each of its contractors complies with these requirements. 7. Agency shall perform the service under this Agreement as an independent contractor and shall be exclusively responsible for all costs and expenses related to its employment of individuals to perform the work under this Agreement including, but not limited to, retirement contributions, workers’ compensation, unemployment taxes, and state and federal income tax withholdings. 8. Agency acknowledges and agrees that State, the Oregon Secretary of State's Office, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of Agency which are directly pertinent STLAWS.DOC ver.2-18-2003 3 to the specific Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of six (6) years after final payment. Copies of applicable records shall be made available upon request. 9. Agency shall require its contractor(s) and subcontractor(s) that are not units of local government as defined in ORS 190.003, if any, to indemnify, defend, save and hold harmless the State of Oregon, Oregon Transportation Commission and its members, Department of Transportation and its officers, employees and agents from and against any and all claims, actions, liabilities, damages, losses, or expenses, including attorneys’ fees, arising from a tort, as now or hereafter defined in ORS 30.260, caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Agency's contractor or any of the officers, agents, employees or subcontractors of the contractor ("Claims"). It is the specific intention of the Parties that the State shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the State, be indemnified by the contractor and subcontractor from and against any and all Claims. 10. Any such indemnification shall also provide that neither the Agency's contractor and subcontractor nor any attorney engaged by Agency's contractor and subcontractor shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at any time at its election assume its own defense and settlement in the event that it determines that Agency's contractor is prohibited from defending the State of Oregon, or that Agency's contractor is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue claims it may have against Agency's contractor if the State of Oregon elects to assume its own defense. 11. Agency certifies and represents that the individual(s) signing this Agreement has been authorized to enter into and execute this Agreement on behalf of Agency, under the direction or approval of its governing body, commission, board, officers, members or representatives, and to legally bind Agency. 12. Agency’s contact for this Agreement is Windol Cador, windol.cador@tigard-or.us or assigned designee upon individual’s absence. Agency shall notify the other Party in writing of any contact information changes during the term of this Agreement. STATE OBLIGATIONS 1. State grants authority to Agency to enter upon State right of way for painting and maintenance activities under this Agreement. Any work or maintenance on the Fanno Creek Overpass requires prior notification and approval of the District 2B Office. 2. State reserves the right to remove the Mural artwork if Agency fails to maintain, repair or remove the Mural as required. Such removal shall be conducted at STLAWS.DOC ver.2-18-2003 4 Agency’s expense without commitment for restoration, replacement or compensation by State. 3. If damage occurs to the Fanno Creek Overpass, State shall notify Agency, and Agency will then assume responsibility for the Mural repainting after repairs are made to the Fanno Creek Overpass. 4. State’s District 2B contact for this Project is Jim Bailey or assigned designee upon individual’s absence. State shall notify the other Parties in writing of any contact information changes during the term of this Agreement. GENERAL PROVISIONS 1. This Agreement may be terminated by mutual written consent of both Parties. 2. State may terminate this Agreement effective upon delivery of written notice to Agency, or at such later date as may be established by State, under any of the following conditions: a. If Agency fails to provide services called for by this Agreement within the time specified herein or any extension thereof; b. If Agency fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from State fails to correct such failures within ten (10) days or such longer period as State may authorize; c. If Agency fails to provide payment of its share of the cost of activities performed under this Agreement; d. If federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the work under this Agreement is prohibited or State is prohibited from paying for such work from the planned funding source. 3. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the Parties prior to termination. 4. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against State or Agency with respect to which the other Party may have liability, the notified Party must promptly notify the other Party in writing of the Third Party Claim and deliver to the other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Each Party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt by a Party of the notice and copies required in this paragraph and meaningful opportunity for the Party to participate in the investigation, defense and STLAWS.DOC ver.2-18-2003 5 settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to that Party's liability with respect to the Third Party Claim. 5. With respect to a Third Party Claim for which State is jointly liable with Agency (or would be if joined in the Third Party Claim), State shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Agency in such proportion as is appropriate to reflect the relative fault of State on the one hand and of Agency on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of State on the one hand and of Agency on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. State’s contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if State had sole liability in the proceeding. 6. With respect to a Third Party Claim for which Agency is jointly liable with State (or would be if joined in the Third Party Claim), Agency shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by State in such proportion as is appropriate to reflect the relative fault of Agency on the one hand and of State on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of Agency on the one hand and of State on the other hand shall be determined by reference to, among other things, the Parties' relative intent, knowledge, access to information and opportunity to correct or prevent circumstances resulting in such expenses, judgments, fines or settlement amounts. Agency's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law, including the Oregon Tort Claims Act, ORS 30.260 to 30.300, if it had sole liability in the proceeding. 7. The Parties shall attempt in good faith to resolve any dispute arising out of this Agreement. In addition, the Parties may agree to utilize a jointly selected mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation. 8. If Agency fails to maintain facilities in accordance with the terms of this Agreement, State, at its option, may bill Agency for removal of the Mural, and seek an injunction to enforce the duties and obligations of this Agreement or take any other action allowed by law. 9. This Agreement may be executed in several counterparts (facsimile or otherwise) all of which when taken together shall constitute one agreement binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart. Each copy of this Agreement so executed shall constitute an original. 10. This Agreement and attached exhibits constitute the entire agreement between the Parties on the subject matter hereof. There are no understandings, agreements, or STLAWS.DOC ver.2-18-2003 6 representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either Party unless in writing and signed by both Parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of State to enforce any provision of this Agreement shall not constitute a waiver by State of that or any other provision. THE PARTIES, by execution of this Agreement, hereby acknowledge that their signing representatives have read this Agreement, understand it, and agree to be bound by its terms and conditions. SIGNATURE PAGE TO FOLLOW CITY OF TIGARD, by and through elected officials By __Sambo Kirkman_____________________________ Date ___11-19-25__________________________ By _______________________________ Date ____________________________ LEGAL REVIEW APPROVAL (If required in Agency’s process) By _____Shelby Rihala____________________________ Agency Counsel Date __11/19/25___________________________ Agency Contact: Windol Cador City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 STATE OF OREGON, by and through its Department of Transportation By ____________________________ Region 1 Maintenance and Operations Manager Date __________________________ APPROVAL RECOMMENDED By ____________________________ District 2B Manager Date __________________________ State Contact: Jim Bailey ODOT District 2B 9200 SE Lawnfield Rd. Clackamas, OR 97015 Cory HAMILTON (Nov 24, 2025 09:45:41 PST) 11/24/2025 Theodore MILLER (Nov 24, 2025 10:59:52 PST) 11/24/2025 STLAWS.DOC ver.2-18-2003 7 EXHIBIT A – Location Map & Mural Design STLAWS.DOC ver.2-18-2003 8 STLAWS.DOC ver.2-18-2003 9 52708 Tigard Mural final Final Audit Report 2025-11-24 Created:2025-11-24 (Pacific Standard Time) By:Dessia SCOTT-MYERS (Dessia.SCOTT-MYERS@odot.oregon.gov) Status:Signed Transaction ID:CBJCHBCAABAAs2BuIUqHTrBLD8xXG1zfEEvYKdBkqg-5 "52708 Tigard Mural final" History Document created by Dessia SCOTT-MYERS (Dessia.SCOTT-MYERS@odot.oregon.gov) 2025-11-24 - 9:35:17 AM PST- IP address: 167.131.0.194 Document emailed to Cory HAMILTON (Cory.D.HAMILTON@odot.oregon.gov) for signature 2025-11-24 - 9:36:16 AM PST Email viewed by Cory HAMILTON (Cory.D.HAMILTON@odot.oregon.gov) 2025-11-24 - 9:45:24 AM PST- IP address: 104.47.64.254 Document e-signed by Cory HAMILTON (Cory.D.HAMILTON@odot.oregon.gov) Signature Date: 2025-11-24 - 9:45:41 AM PST - Time Source: server- IP address: 167.131.0.194 Document emailed to Theodore MILLER (Theodore.C.MILLER@odot.oregon.gov) for signature 2025-11-24 - 9:45:42 AM PST Email viewed by Theodore MILLER (Theodore.C.MILLER@odot.oregon.gov) 2025-11-24 - 10:58:39 AM PST- IP address: 104.47.65.254 Document e-signed by Theodore MILLER (Theodore.C.MILLER@odot.oregon.gov) Signature Date: 2025-11-24 - 10:59:52 AM PST - Time Source: server- IP address: 167.131.0.194 Agreement completed. 2025-11-24 - 10:59:52 AM PST