Ashely Montague ~ C190065 CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM
(THis FOxmr MusTAccompANYEvERY CONTRACT)
Contract Title: Mural Painting Retaining Wall/Abutment n,Tiedeman on
Faring Greenway'Trail Number:
Contractor: Artist Ashler Montague Contract Total: $7,500.00
Contract Overxriew: 'This artist agreement is to paint a mural on the new rets j=vmll and bridge
abutments at Tiedeman Avenue on the Fanno Greenway Trail.
Initial Risk Level: ❑ Extreme ❑ High ❑Moderate k Low
Risk Reduction Steps:
Risk Comments:
Risk Signature:
Contract Manager taedter Ext: 2788 Department: PW-Engineering
T}Tpe. ❑ Personal Svc ❑ Professional Svc ❑ Architectural.Agr ❑ Public Imp ❑ General Svc
❑ Engineering Svc ❑ Other: Artist Agreement Start Dat� end Date- 6-30-19
Quotes/Bids/Propos-al: FIRM AN oi=/SCORE
Ashleq Montague $7.500.00
Account String: Fund-Division-Account Work Order—Activit} ZWe Amount
FY 2019 420-8000-56005 92051-130 $7.500.00
FY
FY
FY
FY
Approvals - LCRB Date:
Department Comments:
Department Signature 14
Purchasing Comments:
Purchasing Signature:
Citi Manager Comments:
Citv Manager Signature:
After securing all required approvals, forward original copy to the Contracting and Purchasing Office along with a
completed Contract Checklist.
CITY OF TIGARD,OREGON
ARTIST AGREEMENT
MURAL PAINTING ON RETAINING WALL AND BRIDGE ABUTMENTS-
TIEDEMAN RE-ALIGNMENT OF THE FANNO GREENWAY TRAIL
THIS AGREEMENT made and entered into this 15"' day of April, 2019,by and between the City
of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Ashley
Montague,hereinafter called Artist, collectively hereinafter called the Parties.
RECITALS
WHEREAS,City,has need for the services of an individual or firm with a particular training,ability,
knowledge, and experience possessed by Artist,and
WHEREAS, City has determined that_artist is qualified and capable of performing the professional
services as City does hereinafter require,under those terms and conditions set forth, and
WHEREAS, the Artist has satisfied himself as to the amount and source of the funds available to
purchase the work and for all of Artist's services contemplated by this ..-kgreement from negotiation
of final design to delivery of artwork within the time and price limitations set by the City,
THEREFORE,in consideration of those premises as generally recited and in consideration of each
party's performance of the terms and conditions of this Agreement as they run to the benefit of the
other parts,the Parties agree as follows:
SCOPE OF WORK
Artist shall initiate seri-ices on upon receipt of City's notice to proceed, together with an executed
copy of this Agreement. Artist agrees to complete work that is detailed in Exhibit A—Scope of Work
and by this reference made a part hereof.
EFFECTIVE DATE AND DURATION
This Agreement shall become effective upon signatures and shall expire,unless otherwise terminated
or extended, on 30'b of June, 2019. All work under this Agreement shall be completed prior to the
expiration of this Agreement.
COMPENSATION
City agrees to pay Artist an amount not to exceed Seven Thousand Five Hundred and No/100 Dollars
($7,500.00) for performance of those services described in this Agreement. This scope specifies work
to be done by the Artist in two phases to include Phase 1 Notice to Proceed and Phase 2 Completion
of Mural Painting. Payments shall be made in accordance with the Phases detailed in Exhibit A and
will be made based on the Artist's invoice, subject to the approval of the City's Project Manager.
Payment 1 - Notice to Proceed shall be made payable vithin seven (7) business days. Payment 2 -
Completion of Mural Painting, shall be payable within thirty (30) days from the date of receipt by the
City.
CONTACT INFORMATION
All notices,bills,and payments shall be made in writing and may be given by personal delivery,mail,
fax or email. Payments may be delivered by personal delivery, mail, or electronic transfer. The
following addresses and contacts shall be used to transmit notices, bills, payments, and other
information:
OKI
lit €
Attn: Carla Staedter Attn: Ashley Montague
Address: 13125 SW Hall Boulevard Address: 5230 NE 58'Ct.
Tigard, Oregon 97223 Portland, OR 97218
Phone: (503) 718-2788 Phone: 503-933-0963
Email: carlac)ti rd-or. ov Email: sknn,.mrclsCa`,?mail.com
ARTIST As INDEPENDENT CONTRACTOR
Artist acknowledges that for all purposes related to this Agreement,Artist is and shall be deemed to be
an independent contractor as defined by ORS 670.600 and not an employee of City,shall not be entitled
to benefits of any kind to which an employee of City is entitled and shall be solely responsible for all
payments and taxes required by law. Furthermore,in the event that Artist is found by a court of lave-or
any administrative agency to be an employee of City for any purpose, City shall be entitled to offset
compensation due, or to demand repayment of any amounts paid to Artist under the terms of this
Agreement, to the full extent of any benefits or other remuneration Artist receives (from City or third
party) as a result of said finding and to the full extent of any payments that City is required to make (to
Artist or to a third party) as a result of said finding. Artist acknowledges that for all purposes related to
this Agreement,Artist is not an officer,employee, or agent of the City as those terms are used in ORS
30.265.
BUSINESS LICENSE
Artist shall obtain,prior to the execution of any performance under this,agreement, a Cit;of Tigard
Business License. The Tigard Business License is based on a calendar year with a December 31st
expiration date. New businesses operating in Tigard after June 30th of the current year will pay a pro-
rated fee though the end of the calendar year.
INDEMNIFICATION
Citi has relied upon the professional ability and training of Artist as a material inducement to enter into
this Agreement. Artist warrants that all its work will be performed in accordance with generally accepted
professional practices and standards as well as the requirements of applicable federal,state and local laws,
it being understood that acceptance of an Artist's work by City shall not operate as a waiver or release.
Artist agrees to indemnify and defend the City,its officers,employees,agents and representatives and
hold them harmless from any and all liability, causes of action, claims,losses, damages,judgments or
other costs or expenses including attorney's fees and witness costs (at both trial and appeal level,
whether or not a trial or appeal ever takes place including any hearing before federal or state
administrative agencies) that may be asserted by any person or entity which in any way- arise from,
during or in connection with the performance of the work described in this contract, except liability
arising out of the sole negligence of the City-and its employees. Such indemnification shall also cover
claims brought against the City under state or federal worker's compensation laws. If any aspect of
this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity of the remainder of this indemnification.
INSURANCE
Artist and its subcontractors shall maintain insurance acceptable to City in full force and effect
throughout the term of this contract. Such insurance shall cover risks arising directly-or indirectly out
of Artist's activities or work hereunder,including the operations of its subcontractors of any tier.
The policy or policies of insurance maintained by the Artist shall provide at least the following limits
and coverages:
A. Automobile Insurance
Based on the scope of work,which requires no driving as part of the project, additional
auto insurance is not required. Artist will obtain, at Artist's expense, and keep in effect
during the term of the contract automobile insurance as required by the State of Oregon.
Driving to and from the work location at Tiedema.n Pedestrian Bridge is distinct from and
not considered driving required by this Agreement.
B. Additional Insured Provision
All policies aforementioned, shall include the City its officers, employees, agents and
representatives as additional insureds with respect to this contract.
C. Insurance Carrier Rating
Coverages provided by the Artist must be underwritten by an insurance company deemed
acceptable by the City. All policies of insurance must be written by companies having an
A.M. Best rating of"A-`'II" or better, or equivalent. The City reserves the right to reject
all or any insurance carrier(s)with an unacceptable financial rating.
D. Self-Insurance
The City understands that some,'artists may self-insure for business risks and the City will
consider whether such self-insurance is acceptable if it meets the minimum insurance
requirements for the type of coverage required. If the Artist is self-insured for commercial
general liability or automobile liability insurance the Artist must provide evidence of such
self-insurance. The Artist must provide a Certificate of Insurance showing evidence of
the coverage amounts on a form acceptable to the City-. The City reserves the right in its
sole discretion to determine whether self-insurance is adequate.
E. Certificates of Insurance
As evidence of the insurance coverage required by the contract, the Artist shall furnish a
Certificate of Insurance to the City. No contract shall be effective until the required
Certificates of Insurance have been received and approved by the City. The certificate will
specify and document all provisions within this contract and include a copy of Additional
Insured Endorsement. A renewal certificate will be sent to the below address prior to
coverage expiration.
F. Independent Consultant Status
The service or services to be rendered under this contract are those of an independent
Consultant. Consultant is not an officer,employee or agent of the City as those terms are
used in ORS 30.265.
G. Primary Coverage Clarification
The parties agree that Consultant's coverage shall be primary to the extent permitted by
law. The parties further agree that other insurance maintained by the City is excess and
not contributory insurance with the insurance required in this section.
H. Cross-Liability Clause
A cross-liability clause or separation of insureds clause will be included in all general
liability,professional liability,pollution and errors and omissions policies required by this
contract.
A certificate in form satisfactory to the City certifying to the issuance of such insurance will
be forwarded to:
City of Tigard
Attn: Contracts and Purchasing Office
13125 SW Hall Blvd.
Tigard, Oregon 97223
At the discretion of the City, a copy of each insurance policy, certified as a true copy by an
authorized representative of the issuing insurance company may be required to be forwarded
to the above address.
Such policies or certificates must be delivered prior to commencement of the work. The
procuring of such required insurance shall not be construed to limit Artist's liability hereunder.
Notwithstanding said insurance,Artist shall be obligated for the total amount of any damage,
injury,or loss caused by negligence or neglect connected with this contract.
TERMINATION
In addition to any other remedies available to it, either party may terminate this agreement on the
other's material breach, repudiation, default or excessive delay in performance. Material breach of
contract includes but is not limited to any willful failure or refusal to perform a party's obligations
under this agreement according to all applicable terms and conditions. Repudiation is any act that
would cause a reasonable person to believe that a party's failure or refusal to perform its obligations
is imminent or evident. Default by Artist shall include his failure to supply enough properly skilled
workers, proper materials or adequate equipment for efficient prosecution of the work; failure to
promptly pay subcontractors or suppliers; or, disregard of applicable law, the terms of any permit
issued for the work, or the express instructions of City; or, appointment of a receiver because of the
Artist's insolvency,or being adjudged bankrupt and the court orders termination,or,making a general
assignment for the benefit of creditors. Default by City may include City's failure to make progress
payments to Artist when due according to this Agreement.
Any termination for breach,repudiation or default may not proceed until the complaining party gives
the other not less than seven (7) calendar days advance written notice of the act complained of and if
the act is not cured within that time, the complaining party may deem this agreement terminated.
Upon such event Artist shall immediately cease all activity on the work,unless City directs otherwise,
and Artist shall peacefully surrender to City the rights to all work accomplished as of the date of
termination, all property that would constitute a deliverable under this contract if the work were
completed,all materials purchased for-but not yet incorporated into the work for which City has paid
Artist and any all items in Artist's possession that are unique to and necessary to complete the work.
In case of termination resulting from City's breach, repudiation or default, City shall be obligated to
pay Artist the contract value of all work performed as of the date of termination but shall not be liable
for Artist's incidental or consequential damages including lost business opportunity or lost profit. In
case of termination resulting from Artist's breach,repudiation or default Artist shall be liable to City
for all amounts paid by City to Artist in excess of expenses already incurred. City may,in addition to
any other remedy, proceed to finish the work by whatever means the City deems expedient. If the
execution of the work is delayed by labor disputes, strikes, fire or other external forces or natural
calamities,the time for completion of the work may be extended by the time equivalent to such period
of delay. Nothing in this Agreement is intended to limit either party's remedies for damages resulting
from the other's repudiation or breach or default.
AGREEMENT MODIFICATIONS,EXTRA_AND DISPUTED WORK
Modifications to this Agreement are valid only if made in writing and signed by all parries. If Artist,
in the course of work, considers that part of the work is outside of the Scope of Work as detailed in
Exhibit A of this Agreement, the Artist shall immediately give notice to the City and obtain City s
written directions before performing the extra or disputed work. Within ten (10) calendar days
following such v-ritten direction,Artist shall file with the City a written summary of the work the Artist
is claiming to be extra or disputed, including an itemization of any extra costs the Artist has or will
incur as a result. Artist understands that the price agreed on for the work represents the maximum
amount available to and allocated by City for the work and that the costs of any extra and disputed
work will likely result in reducing the scope of other portions of the work to be performed by Artist
by a corresponding sum. Artist agrees to negotiate any and all such reduction in scope in good faith.
OWNERSHIP OF WORK PRODUCT
In consideration of City's payments,all work product that is accomplished when Artist's right to periodic
payment accrues and that is contemplated by that payment,including but not limited to designs,drawings,
plans, specifications and tangible property in transit, on site or in place shall become City's exclusive
property following City's acceptance of the finished work,after which time Artist may request return of
studies,drawings,and designs.
Except for where this Agreement provides otherwise Artist shall retain all copyright to the completed
work. Artist represents that the work in its final dimension shall be unique and original and that the work
or a substantially similar work has not been sold or installed in any other place open to the public.Artist
agrees not to make,cause or allow to be made any further commercial use or reproductions of the work
without City's prior written consent. Artist hereby grants to City anirrevocable,perpetual license to make
and to distribute reproductions of the work in any medium and to authorize others to do the same so
long as all such reproductions bear a copyright notice in the form prescribed by federal law.
GoyERNING LAw
_Artist shall comply with all applicable federal, state and local laws; and rules and regulations on non-
discrimination in employment because of race, color, ancestry, national origin, religion, sex, marital
status, age, medical condition or disability. The provisions of this Agreement shall be construed in
accordance with the provisions of the laws of the State of Oregon. All provisions required by ORS
Chapter 279 to be included in a contract of this type are incorporated into this Agreement as though fully
set forth herein. Any action or suits involving any question arising under this Agreement must be brought
in the appropriate court of the State of Oregon.
MAINTENANCE
Upon completion of the mural to the cit;, the Artist shall provide City-with recommendations for
routine maintenance for the work, including periodic cleaning (permanent record forms.) The City
will be responsible for ensuring adequate future maintenance and cleaning of the Work in accordance
with the Artist's recommendations.
REPAIRS AND RESTORATION
If the Artwork,once in the City's possession becomes damaged in anyway,the City shall first contact
the Artist to see if he can make the necessary repairs, and then contact the necessary agencies or
conservators to repair the work.
If the Artwork needs repair or restoration during the next twenty years,the City may in its reasonable
opinion and to the extent practicable give the Artist the option to conduct or supervise the restoration
or repair subject to the suitable payment terms being agreed with the Artist.All repairs or restoration
should be made in accordance with recognized conservation standards.
ALTERATIONS AND MODIFICATIONS TO THE WORK
The design intent of the Artist shall be maintained, and the work shall not be altered or modified in
any way, unless approved by the Artist. If any significant alteration or modification of the work by
others compromises the original design intent, the Artist may withdraw his authorship and/or his
attribution from the work.
If a piece is to be modified,the Artist must be notified before the change. In the instance that a work
must be removed from the City's collection,the Artist must be notified and given the opportunity to
purchase the art from the City. In all situations,the rights of the Artist will be respected as defined in
the Visual Artists Rights Act of 1990,unless waived by the Artist.
DE-ACCESSION/RELOCATION
In the instance that a work must be removed from the City's collection, the Artist must be notified
and given the opportunity to purchase the art from the City. In all situations, the rights of the Artist
will be respected as defined in the Visual Artists Rights Act of 1990,unless waived by the artist. Should
the work be dismantled or destroyed, the City will offer the Artist first right of refusal to accept
materials comprising the work, prior to removal. If, through decay, vandalism or other forces, the
Artwork has lost its integrity to the point where it should be destroyed, the City shall first offer the
artwork to Artist free of charge.
If City intends to take any action with respect to the Site or the Artwork that would alter the Arm ork,
other than routine cleaning and maintenance, the following procedures shall apply:
A. Notice-Where time permits,the City shall make reasonable good faith efforts to notify Artist
at least 20 calendar days prior to authorizing any alteration of the Artwork, at the last phone
number or address provided by Artist to the City's Project Manager. Where time does not
permit prior to alteration of the Artwork—for example,in cases of public hazard,accident or
unauthorized ,alteration — the Cit; shall notify Artist within 30 calendar days after such
Alteration.
B. Consultation-After receiving such notice,Artist shall consult-6th City to determine whether
the Artwork can be restored or relocated,and to attempt to come to a mutually agreeable plan
for disposition of the Artwork. Such consultation shall be without charge by Artist unless
othervise specifically agreed in writing. If City intends to remove the Artwork, Artist shall
consult regarding methods to minimize or repair any Alteration to the Artwork caused by such
removal and the potential costs of such removal.
C. Restoration-If the Artwork is altered,with or without prior notice to Artist,and City intends
to maintain the Artwork on display, City shall make a reasonable good faith effort to engage
.Artist in the restoration of the Artwork and to compensate Artist for Artist's time and efforts
at fair market value,which may be the subject of a future Agreement between Artist and City.
However, City has no obligation under this Agreement to restore the Artwork to its original
condition, to compensate Artist for any restoration work, or to maintain the Artwork on
display. If Artist fails or refuses to negotiate with City in good faith with respect to any
restoration, City may contract with any other qualified art conservator or artist for such
restoration.During Artist's lifetime,City shall make best efforts not to display or de-accession
only a portion of the Art-work without Artist's consent.
D. Removal by Artist - Where time permits, if City intends to take action that will destroy or
significantly Alter the Artwork, such as destruction of all or part of the site, and City
determines that it will not remove the Artwork itself, City shall allow Artist to remove the
Artwork at Artist's expense within 60 days of notice from the City of the need to remove the
Artwork,in which case title shall revert to Artist. If Artist fails to remove the Artwork within
that 60 day period,City may alter the Artwork in any manner,including destroying it,at City's
sole discretion.
E. Remedies - If City breaches any of its obligations under this Section,Artist's remedies shall
be limited as follows:If City inadvertently fails to provide a required prior notice of alteration;
City will provide notice as soon as it discovers the omission, and before alteration of the
Artwork if that remains possible. If City alters the Artwork without providing Artist a required
prior notice of alteration,Artist shall be given the first right of refusal to restore the Artwork
at the same location and City shall make reasonable efforts to provide funding for the
restoration. If City funds cannot be made available after reasonable efforts are made to secure
such funding,Artist may, but is not obligated to,restore the Artwork at Artist's expense. If
Artist elects not to restore the Artwork, City may retain another Artist or conservator to
restore it, or may alter the Artwork in any manner, at City's sole discretion. If City alters the
Artwork without Artist's consent in a manner that is prejudicial to Artist's reputation,Artist
retains the right to disclaim authorship of the Artwork.
ARBITRATION
Any dispute between the parties,including but not limited to disputes arising out of this agreement,
shall, upon written notice, be submitted to binding arbitration pursuant to Oregon lav- by a
professional arbitration service acceptable to the parties. If the parties are unable to agree on an
arbitrator or an arbitration service within 15 days from receipt of written notice, the dispute shall be
submitted to the presiding court judge for the County of Washington. The parties agree that all facts
and other information relating to any arbitration arising under this Agreement shall be kept
confidential to the fullest extent of the law.
ATTORNEY'S FEES
In the event of arbitration or litigation arising out of,or in any way related to any term set forth in this
agreement,the prevailing party,in addition to any other relief awarded, shall be entitled to recover its
reasonable attorney's fees and court costs at arbitration,trial, and/or on appeal.
REPRESENTATIONS AND WARRANTIES
Artist represents and warrants to the City that:
A. Artist has the power and authority to enter into and perform this Agreement.
B. This Agreement, when executed and delivered, is a valid and binding obligation of Artist,
enforceable in accordance with its terms.
C. Artist (to the best of Artist's knowledge, after due inquiry), for a period of no fewer than six
calendar years (or since the firm's inception if less than that) preceding the effective date of
this Agreement,faithfully has complied with:
1) All tax laws of this state,including but not limited to ORS 305.620 and ORS chapters 316,
317, and 318;
2) Any tax provisions imposed by a political subdivision of this state that applied to Artist,
to Artist's property, operations, receipts, or income, or to Artist's performance of or
compensation for any work performed by!grist;
3) Any tax provisions imposed by a political subdivision of this state that applied to Artist,
or to goods, services, or property,whether tangible or intangible,provided by Artist;and
4) Any rules,regulations,charter provisions,or ordinances that implemented or enforced any
of the foregoing tax laws or provisions.
D. Any intellectual property rights or such delivered to the City under this Agreement,and Artist's
services rendered in the performance of Artist's obligations under this Agreement, shall be
provided to the City free and clear of any and all restrictions on or conditions of use,transfer,
modification,or assignment,and shall be free and clear of any and all liens,claims,mortgages,
security interests,liabilities, charges,and encumbrances of any kind.
Compliance with Tax Laws
A. Artist must,throughout the duration of this_agreement and any extensions,comply with all tax lays
of this state and all applicable tax laws of any political subdivision of the State of Oregon. For the
purposes of this Section, "tax laws" includes all the provisions described in subsection 25.C. 1)
through 4) of this Agreement.
B. Any violation of subsection A of this section shall constitute a material breach of this Agreement.
Further,any violation of Artist's warranty,in subsection 25.0 of this Agreement that the Artist has
complied with the tax laws of the State of Oregon and the applicable tax laws of any political
subdivision of this state also shall constitute a material breach of this Agreement. Any violation shall
entitle the City to terminate this Agreement, to pursue and recover any and all damages that arise
from the breach and the termination of this Agreement, and to pursue any or all of the remedies
available under this_agreement,at law,or in equity,including but not limited to:
1) Termination of this Agreement,in whole or in part;
2) Exercise of the right of setoff,and withholding of amounts otherwise due and owing to Artist,
in an amount equal to State's setoff right,without penalty;and
3) Initiation of an action or proceeding for damages, specific performance, declaratory or
injunctive relief. The City shall be entitled to recover any and all damages suffered as the result
of Artist's breach of this Agreement, including but not limited to direct, indirect, incidental
and consequential damages,costs of cure,and costs incurred in securing a replacement Artist.
These remedies are cumulative to the extent the remedies are not inconsistent, and the City may
pursue any remedy or remedies singly,collectively, successively,or in any order whatsoever.
COMPLETE AGREEMENT
This Agreement and attached exhibit constitutes the entire Agreement between the parties. No waiver,
consent,modification,or change of terms of this Agreement shall bind either party unless in writing and
signed by both parties. Such waiver,consent,modification,or change if made, shall be effective only in
specific instances and for the specific purpose given. There are no understandings, agreements, or
representations,oral or witten,not specified herein regarding this Agreement. Artist,by the signature of
its authorized representative,hereby acknowledges that he/she has read this Agreement,understands it
and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized
undersigned officer and Artist has executed this Agreement on the date hereinabove first written.
CITY FTI ARD /� ASHLEY MONTA UE
�
By: Authorized City Staff By: Authoriz presentative of Artist
Date Date
Exhibit A
Des'
The Artist will research the theme and setting to determine design and infrastructure needs;will
present concept drawings for review by Project manager. City Project Manager will provide a scale
elevation of the retaining wall. City staff will prime the concrete wall and bridge abutments with a
light primer.
The design will cover both the retaining wall and bridge abutments.
Payments
The artist will be paid in two payments as follows:
Payment 1- $3,750
Upon"Notice to Proceed"the artist will submit an invoice,payable within seven (7) business days,
for$3,750.00 to complete research of the site and surrounding and to produce project concept
drawings. When drawings are completed the.Artist will schedule a meeting with the Cit;-Project
'_Manager to review drawings. After draining review with the city project manager,the artist will
move to the next step of the project.
Payment 2-$3,750
Upon completion of the project concept drawings and approval of the City Project Manager,the
artist will paint the outdoor mural at the project site. Upon completion of the mural,the artist vill
submit an invoice,payable within thirty (30) days for$3,750