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Rip Caswell ~ C170006 CITY OF TIGARD.OREGON-CONTRACT SUMMARY FORM (THIS FORM MUST ACCOMPANY EVERY CONTRACT) ��0 � Contract Title: Oak Savanna Bronze Animals.Dirksen Nature Park Number: Contractor Rip Caswell- Sculptor Contract Total: $33.000.00 Contract Overview: The artist will produce 6 bronze sculptures depicting tipical animals that call the oak savanna home. Initial Risk Level: ❑ Extreme ❑ High ❑Moderate X Low Risk Reduction Steps: Insurance.Requirements adjusted to better reflect low risk. Risk Comments: 11 1 Risk Signature: L `: Contract Manager: Carla Staedter Ext:: 2788 Department: PW/Engineering Type: ❑ Purchase Agreement ❑ Personal Service ❑ General Service ❑ Public Improvement ❑ IGA X Other: Artist Start Date: 7/20/16 End Date:June 3,2017 Quotes/Bids;Proposal: FIRM AMOUNT/SCORE Rip Caswell 93 Keith Jellum C , Mark Andrew Account Stung: Fund-Division-Account 'Work Order—Activity'rype Amount FY 2016/17 420-8000-56005 92016-03 131 $33.000 FY (Agyhr Funding) FY FY FY Approvals - LCRB Date: Department Comments: Department Signature: Purchasing Comments: Purchasing Signature: City Manager Comments: City Manager Signature: 4/ a , After securing all required approvals, forward original copy to the Contracting and Purchasing Office along with a completed Contract Checklist. C-2 v(ZS) CITY OF TIGARD,OREGON ARTIST AGREEMENT OAK SAVANNA BRONZE ANIMALS-DIRKSEN NATURE PARK THIS AGREEMENT made and entered into this 6th day of July 2016, by and between the City of Tigard, a municipal corporation of the State of Oregon, hereinafter called City, and Rip Caswell, 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 Agreement 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 party,the Parties agree as follows: SCOPE OF WORK Artist shall initiate services 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 3th of June, 2017. 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 Thirty Three Thousand and No/100 Dollars ($33,000.00) for performance of those services described in this Agreement. This scope specifies work to be done by the Artist in three phases to include Phase 1 Notice to Proceed, Phase 2 Completion of Sculpting, and Phase 3 Completion of Foundry and Finishing of Final Bronze Sculpture. Payments shall be made in accordance with the Phases detailed in Exhibit A and will be made based on Artist's invoice, subject to the approval of the City's Project Manager. Payment 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, or fax. 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: Attn: Carla Staedter Attn: Rip Caswell Address: 13125 SW Hall Boulevard Address: 255 E Columbia River Hwy. Tigard, Oregon 97223 Troutdale,Oregon 97060 Phone: (503) 718-2788 Phone: (503) 492-2473 Email: carla@tigard-or gov Email: ripcaswellgallery@gmail.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 law 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. INDEMNIFICATION City 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 shall maintain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of Artist's activities or work hereunder. The policy or policies of insurance maintained by the Artist shall provide at least the following limits and coverages: 1. Commercial Automobile Insurance Artist shall also obtain, at Artist's expense,and keep in effect during the term of the contract, a business use endorsement or insure that business use is covered in her personal auto policy. The Combined Single Limit per occurrence shall not be less than$1,000,000. If Artist uses a personally-owned vehicle for business use under this contract, the Consultant shall obtain, at Artist's expense, and keep in effect during the term of the contract, business automobile liability coverage for all owned vehicles on an"occurrence"form. The Combined Single Limit per occurrence shall not be less than$1,000,000. 2. Insurance Carrier Rating Coverages provided by the Artist must be underwritten by an insurance company deemed acceptable by the City. The City reserves the right to reject all or any insurance carrier(s)with an unacceptable financial rating. 3. 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 affected until the required certificates have been received and approved by the City. 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 parties. 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 written 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,designs,maquettes and models. 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 an irrevocable,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. GOVERNING 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 delivery of the sculptures to the city, 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. The City reserves the right to relocate the work as need for maintenance periods. REPAIRS AND RESTORATION If the Artwork,once in the City's possession becomes damaged in any way,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 relocated or 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 Artwork, 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 City shall notify Artist within 30 calendar days after such Alteration. B. Consultation-After receiving such notice,Artist shall consult with 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 otherwise 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 Artwork 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 law 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. ATTORNEYS 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 Artist; 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 laws 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" indudes 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 amaterial 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 written,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. CITY1O/F)/T�IG�A�RD RIP � L4' By: Authorize City Staff By: A orize• 'epresentative of Artist �•/9 yaI(. 7- I.3 -/l1 Date Date Exhibit A Design. Sculpting,Foundry The Artist will research the theme and setting to determine design and infrastructure needs;will present concept drawings for review by Project Manager;will sculpt work as needed in clay and present clay work for review by City Project Manager;will cast work and manage all stages of foundry work;and will provide direction with artwork placement,attending up to three,4 hour onsite meetings. The artist shall create six life-size bronze likelihoods of native Oregon oak savanna animals to include: • Western Native Squirrel, • Native Deer Mouse, • Rat Snake, • Western Meadowlark, • Western Cottontail Rabbit, and • Black Tail Fawn (lying down) The Artist shall provide the following bronze sculpture installation items: • Mounting nuts installed under the sculpture • 6"All-Thread steel mounting bolts screwed into the mounting nuts as needed Payments The artist will be paid in three payments as follows: Payment 1-$11,000.00 Upon"Notice to Proceed"the artist will submit an invoice,payable within thirty(30) days, for $11,000.00 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 City project manager to review drawings. After drawing review with the city project manager, the artist will begin day sculpting work as needed to prepare for foundry. When clay work is completed,the artist will review work with the City project manager. (If needed,each piece can be reviewed separately to accommodate foundry schedule.) Payment 2- $11,000.00 Upon completion of clay sculpture review,the artist will submit an invoice,payable within thirty(30) days,to commence foundry work. The artist will manage all aspects of foundry and finishing work and will complete production of the six bronze animal sculptures described above. Payment 3-$11,000.00 Upon delivery of the finished sculptures the artist will invoice the city,payable within thirty (30) days, for the completed bronze works.