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HomeMy WebLinkAbout2012-231 Contract - Ellen Falkner Contract for PERSONAL SERVICES less than $35,000 C I T Y OF CONTRACTOR: Ellen Falkner ASHLAND CONTACT: Utility Box Artist Calle Guanajuato 20 East Main Street Ashland, Oregon 97520 ADDRESS: 240 Orange Ave., Ashland OR 97520 Telephone: 541/488-6002 Fax: 541/488-5311 TELEPHONE: 541-482-3110 DATE AGREEMENT PREPARED: 3/28/12 Email: efalkner @qwest.net BEGINNING DATE: 9/04/12 COMPLETION DATE: 09/30/12 COMPENSATION: $1000 SERVICES TO BE PROVIDED: To transfer approved design onto utility boxes on Calle Guanajuato: "Bridge. Box" and "Hanna Sushi Box'. ADDITIONAL TERMS: See, Scope of Work and Special Provision Addendum, herein attached and incorporated. FINDINGS: Pursuant to AMC 2.52.040E and AMC 2.52.060, after reasonable inquiry and evaluation, the undersigned Department Head finds and determines that: (1) the services to be acquired are personal services; (2) the City does not have adequate personnel nor resources to perform the services; (3) the statement of work represents the department's plan for utilization of such personal services; (4) the undersigned Contractor has specialized experience, education, training and capability sufficient to perform the quality, quantity and type of work requested in the scope of work within the time and financial constraints provided; (5) the Contractor's proposal will best serve the needs of the City; and (6) the compensation negotiated herein is fair and reasonable; [If Applicable] (6) Contractor is not of an age to contract and responsible person over the age of 18 will personally guarantee and abide by the terms and conditions of this Agreement and Scope of Work and Special Provision Addendum which are incorporated into this Agreement and guaranty. NOW THEREFORE, in consideration of the mutual covenants contained herein the CITY AND CONTRACTOR AGREE as follows: 1. Findings/ Recitations. The findings and recitations set forth above are true and correct and are incorporated herein by this reference. 2. All Costs by Contractor: Contractor shall, at its own risk and expense, perform the personal services described above and, unless otherwise specified, furnish all labor, equipment and materials required for the proper performance of such service. 3. Qualified Work: Contractor has represented, and by entering into this contract now represents, that all personnel assigned to the work required under this contract are fully qualified to perform the service to which they will be assigned in a skilled and worker-like manner and, if required to be registered, licensed or bonded by the State of Oregon, are so registered, licensed and bonded. 4. Completion Date: Contractor shall start performing the service under this contract by the beginning date indicated above and complete the service by the completion date indicated above. 5. Compensation: City shall pay Contractor for service performed, including costs and expenses, the sum specified above. Payments shall be made within 30 days of the date of the invoice. Should the contract be prematurely terminated, payments will be made for work completed and accepted to date of termination. 6. Ownership of Documents: All documents prepared by Contractor pursuant to this contract shall be the property of City. 7. Statutory Requirements: ORS 279C.505, 279C.515, 279C.520 and 279C.530 are made part of this contract. 8. Living Wage Requirements: If the amount of this contract is $18,890 or more, Contractor is required to comply with chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in this chapter, to all employees performing work under this contract and to any Subcontractor who performs 50% or more of the service work under this contract. Contractor is also required to post the notice attached hereto as Exhibit B predominantly in areas where it will be seen by all employees. 9. Indemnification: Contractor agrees to defend, indemnify and save City, its officers, employees and agents " harmless from any and all losses, claims, actions, costs, expenses,judgments, subrogations, or other damages resulting from injury to any person (including injury resulting in death), or damage (including loss or destruction)to property, of whatsoever nature arising out of or incident to the performance of this contract by Contractor(including but not limited to, Contractor's employees, agents, and others designated by Contractor to perform work or services attendant to this contract). Contractor shall not be held responsible for any losses, expenses, claims, subrogations, actions, costs,judgments, or other damages, directly, solely, and proximately caused by the negligence of City. Contract for Personal Services, Revised 06/30/2011, Page 1 of 7 10. Termination: a. Mutual Consent. This contract may be terminated at any time by mutual consent of both parties. b' City's Convenience. This contract may be terminated at any time by City upon 30 days' notice in writing and delivered by certified mail or in person. C. For Cause. City may terminate or modify this contract, in whole or in part, effective upon delivery of written notice to Contractor, or at such later date as may be established by City under any of the following conditions: i. If City funding from federal, state, county or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services; ii. If federal or state regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this contract or are no longer eligible for the funding proposed for payments authorized by this contract; or iii. If any license or certificate required by law or regulation to be held by Contractor to provide the services required by this contract is for any reason denied, revoked, suspended, or not renewed. d. For Default or Breach. i. Either City or Contractor may terminate this contract in the event of a breach of the contract by the other. Prior to such termination the party seeking termination shall give to the other party written notice of the breach and intent to terminate. If the parry committing the breach has not entirely cured the breach within 15 days of the date of the notice, or within such other period as the party giving the notice may authorize or require, then the contract may be terminated at any time thereafter by a written notice of termination by the party giving notice. ii. Time is of the essence for Contractor's performance of each and every obligation and duty under this contract. City by written notice to Contractor of default or breach may at any time terminate the whole or any part of this contract if Contractor fails to provide services called for by this contract within the time specified herein or in any extension thereof. iii. The rights and remedies of City provided in this subsection (d) are not exclusive and are in addition to any other rights and remedies provided by law or under this contract. e. Obligation/Liability of Parties. Termination or modification of this contract pursuant to subsections a, b, or c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination or modification. However, upon receiving a notice of termination (regardless whether such notice is given pursuant to subsections a, b, c or d of this section, Contractor shall immediately cease all activities under this contract, unless expressly directed otherwise by City in the notice of termination. Further, upon termination, Contractor shall deliver to City all contract documents, information, works-in-progress and other property that are or would be deliverables had the contract been completed. City shall pay Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract. 11. Independent Contractor Status: Contractor is an independent contractor and not an employee of the City. Contractor shall have the complete responsibility for the performance of this contract. Contractor shall provide workers'compensation coverage as required in ORS Ch 656 for all persons employed to perform work pursuant to this contract. Contractor is a subject employer that will comply with ORS 656.017. 12. Assignment and Subcontracts: Contractor shall not assign this contract or subcontract any portion of the work without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be void. Contractor shall be fully responsible for the acts or omissions of any assigns or Subcontractors and of all persons employed by them, and the approval by City of any assignment or subcontract shall not create any contractual relation between the assignee or subcontractor and City. 13. Default. The Contractor shall be in default of this agreement if Contractor: commits any material breach or default of any covenant, warranty, certification, or obligation it owes under the Contract; its QRF status pursuant to the QRF Rules or loses any license, certificate or certification that is required to perform the Services or to qualify as a QRF if Contractor has qualified as a QRF for this agreement; institutes an action for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for the benefit of creditors; or ceases doing business on a regular basis of the type identified in its obligations under the Contract; or attempts to assign rights in, or delegate duties under, the Contract. 14. Insurance. Contractor shall at its own expense provide the following insurance: a. Worker's Comoensation,insurance in compliance with ORS 656.017, which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers b. Professional Liability insurance with a combined single limit, or the equivalent, of not less than: Not Applicable for each claim, incident or occurrence. This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this contract. C. General Liability insurance with a combined single limit, or the equivalent, of not less than: Not Applicable for each occurrence for Bodily Injury and Property Damage. It shall include contractual liability coverage for the indemnity provided under this contract. d. Automobile Liability insurance with a combined single limit, or the equivalent, of not less than: Not Applicable for each accident for Bodily Injury and Property Damage, including coverage for owned, hired or non- Contract for Personal Services, Revised 06/30/2011,Page 2 of 7 owned vehicles, as applicable. e. Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s)without 30 days'written notice from the Contractor or its insurer(s) to the City. f. Additional Insured/Certificates of Insurance. Contractor shall name The City of Ashland, Oregon, and its elected officials, officers and employees as Additional Insureds on any insurance policies required herein but only with respect to Contractor's services to be provided under this Contract. The Contractor's insurance is primary and non-contributory. As evidence of the insurance coverages required by this Contract, the Contractor shall furnish acceptable insurance certificates prior to commencing work under this contract. The certificate will specify all of the parties who are Additional Insureds. Insuring companies or entities are subject to the City's acceptance. If requested, complete copies of insurance policies; trust agreements, etc. shall be provided to the City. The Contractor shall be financially responsible for all pertinent deductibles, self-insured retentions and/or self- insurance. 15. Governing Law; Jurisdiction; Venue: This contract shall be governed and construed in accordance with the laws of the State of Oregon without resort to any jurisdiction's conflict of laws, rules or doctrines. Any claim, action, suit or proceeding (collectively, "the claim") between the City(and/or any other or department of the State of Oregon) and the Contractor that arises from or relates to this contract shall be brought and conducted solely and exclusively within the Circuit Court of Jackson County for the State of Oregon. If, however, the claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon filed in Jackson County, Oregon. Contractor, by the signature herein of its authorized representative, hereby consents to the in personam jurisdiction of said courts. In no event shall this section be construed as a waiver by City of any form of defense or immunity, based on the Eleventh Amendment to the United States Constitution, or otherwise, from any claim or from the jurisdiction. 16. THIS CONTRACT AND ATTACHED EXHIBITS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS CONTRACT 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 THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. CONTRACTOR, BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. 17. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds currently available and authorized for expenditure to finance the costs of this contract within the City's fiscal year budget. Contractor understands and agrees that City's payment of amounts under this contract attributable to work performed after the last day of the current fiscal year is contingent on City appropriations, or other expenditure authority sufficient to allow City in the exercise of its reasonable administrative discretion, to continue to make payments under this contract. In the event City has insufficient appropriations, limitations or other expenditure authority, City may terminate this contract without penalty or liability to City, effective upon the delivery of written notice to Contractor, with no further liability to Contractor. Certification. Contractor shall sign the certification attached hereto as Exhibi'A and herein incorporated by reference. ontractor: Q/ City�7and By d&& wUK"L64 ) By ! ^ "B SignatureeArt _,Ellen Falkner a artment Head ZjltJE tc&ar1�� Print Name Ellen Falkner/Artist Print Name 9 117_�IZ Date //�� Purchase Order No. C/_e p d as to form Contract for Personal Services, Revised 06/30/2011, Page 3 of 7 Scope of Work Addendum Reflections of Ashland. Utility Box Beautification Project in the City of Ashland This Scope of Work Addendum to the Personal Services Contract Agreement(the "Agreement"), between Ellen Falkner hereinafter"Artist," and the City of Ashland, hereinafter "City,"relates to the terms and conditions to transfer approved design onto the utility box adjacent to the bridge across from Calle Guanajuato and the utility box(s) located on the Calle directly behind Hanna Sushi during the month of September 2012 using the design chosen by the Citizen Selection Panel and approved by the City Council hereinafter"Design". WHEREAS, City owns or controls certain real properties which contain appropriate locations for the installation of public art; and WHEREAS, City, by and through the City of Ashland Public Art Commission, put out a competitive solicitation for public art at the above- described location in April 2012; and WHEREAS, following compliance with City ordinances and administrative policy for selection of public art, Artist's Design was selected for display; and NOW THEREFORE, for valuable consideration, the parties agree as follows: 1. Artist will transfer Design to the utility boxes stated above during the month of September 2012. 2. Upon completion of the transfer and no later than September 30, 2012 an honorarium of $1000 will be given to Artist. 3. Additionally, Artist expressly understands and agrees to the following terms and conditions: a. Artist is required to use paint approved by the City. b. Artist signature on the utility box will be no larger than 3"x 5". C. Design submitted by Artist is original, solely owned by Artist and reproduction will not violate the rights of any third party. Artist shall not make any additional, exact duplicate reproductions of the final design and dimension, nor shall the artist grant to a third party, the right to replicate the artistic designs and dimensions of the Design, without the written permission of the City of Ashland. d. Design shall be the exclusive property of the City of Ashland. e. Artist grants to the City of Ashland, an irrevocable license to make reproductions of the artwork and the final Design to be used in brochures, media, publicity and catalogs or other similar publications. f. Design may be removed and/or destroyed at any time without notification of the artist to accommodate utility box replacement. g. City of Ashland has the right to paint over Design if, in the future, the appearance deteriorates due to weather or vandalism, or the City no longer desires the artwork to cover the utility box. Contract for Personal Services, Revised 06/30/2011, Page 5 of 7 h. Painting activities must not interfere with automobile or pedestrian traffic. i. Applied paint must not interfere with the operation of the box's hinges, vents and locks, in addition to the legibility of any cautionary text on the box. All locks should be taped over prior to painting. j. Artist will supply their own water, paintbrushes, paint containers, drop cloths and all other materials necessary to complete the project. k. City will ensure that the boxes are cleaned and primed before being painted. 1. Drop cloths should be used at all time while painting to ensure that paint does not get on surrounding concrete or landscaping. m. City will provide a protective coating after completion of the project to protect the Design from weather and vandalism. n. Passage on the sidewalk for pedestrians must be at all times maintained during the painting process. Blocking traffic or lanes of the street may only be done in coordination with project staff and City officials. o. All reproductions of the Design will credit the artist by the name submitted with the entry. p. By this Agreement, City grants to Artist a revocable license for installation and display of Art identified in this Agreement and for no other purpose. At any time during the display period, and without any compensation to Artist, the City may revoke the license and remove or replace the Art from the display location and such decision shall be made in the sole discretion of the City. q. Artist further agrees, for itself, its heirs, executors, administrators, successors, and assigns, to release and forever discharge the City of Ashland, its elected and appointed officers, directors, agents, employees, successors, and assigns from any and all claims, demands, actions or causes of action, including causes of action under VARA and under this Agreement, which Artist now has or which hereinafter may accrue against the City of Ashland, its officers, directors, agents, employees, successors, and assigns in connection with the transfer installation, removal or any damage, from whatever cause, which may occur to the Art. r. Artist shall also hold harmless, indemnify, and defend the City of Ashland, its officers, directors, agents, employees, successors, and assigns from any and all liability, actions, claims, losses, damages or other costs including attorney's fees and witness costs (at both trial and appeal level, whether or not a trial or appeal ever takes place)that may be asserted by any person or entity, arising from, any and all claims of infringement or copyright in connection with Art, or arising out of the transfer, installation, removal of the Art or the terms of this Agreement. 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. S. The terms of the Solicitation documents, are incorporated herein by this reference. In the event of any conflict between the terns of the Solicitation documents and this Agreement, the terms of this Agreement shall control. 4. The parties agree that their authorized representatives have the ability and the competence to make this Agreement and are doing so freely and of their own will. Contract for Personal Services, Revised 06/30/2011, Page 6 of 7 5. This term of this Agreement shall commence upon execution by both City and Artist and shall terminate upon the earlier of the following: (1) the revocation of the license/permission to place or display public art on city property in the sole discretion of the City; (2) such time as mutually agreed to by the parties. The releases and other covenants of this Agreement survive the termination date in the event of a dispute or claim against the City. 6. This Agreement constitutes the entire Agreement between the parties on the subject matter hereof. There are no understandings, agreements or representations, oral or written, not specified regarding this Agreement. 7. No waiver, consent, modification or change in 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 any party to enforce any provision of this Agreement shall not constitute a waiver by the party of any other provision. 8. If any provision of this Agreement is held by a Court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding. 9. This Agreement and all matters relating to this Agreement shall be governed by the laws of the State of Oregon in force and effect at the time any need for interpretation of this Agreement or any decision or holding concerning this Agreement arises. The parties to this Agreement do not intend to confer any third party rights under this Agreement. 10. This Agreement is binding upon the heirs, representatives and assigns of the parties hereto. In witness whereof, the parties hereto have caused this instrument to be executed in two duplicate orieinals, either as individuals , or by their officers, duly authorized. Contract for Personal Services, Revised 06/30/2011, Page 7 of 7 Page 1 / 1 • Ashland Park Commission DATE PO NUMBER 20 E MAIN ST. 10/1/2012 00155 ASHLAND,OR 97520 -" (541)488-5300 VENDOR: 004056 SHIP TO: FALKNER, ELLEN S 240 ORANGE AVENUE ASHLAND, OR 97520 FOB Point: Req.No.: Terms: net Dept: Req.Del.Date: contact: Ann Seltzer Special Inst: Confirming? NO Quantity Unit Description Unit Price Ext.Price Artist paintinq on utlity boxes 1,000.00 Calle Guanajuato bridqe box Hanna Sushi box Contract for Personal Services Beginning date: 09/04/2012 Completion date: 09/30/2012 '-i SUBTOTAL 1000.00 BILL TO: TAX 0.00 FREIGHT 0.00 TOTAL 1,000.00 Account Number Project Number Amount Account Number Project Number Amount E 211.12.03.02.60410 1,000.00 Ju/ AuthorWed Signature VENDOR COPY FORM #3. CITY OF A request for a Purchase Order m SH LAN D REQUISITION Date of request: 1*0 W// Required date for delivery: Vendor Name 1'11124 69EWR adz Address,City,State,Zip 440 , fitwzue Jktnet Contact Name&Telephone Number / Fax Number 1� SOURCING METHOD ❑ Exempt from Competitive Bidding ❑ Emergency ❑ Reason for exemption: ❑ Invitation to Bid (Copies on Ole) ❑ Form#13,Written findings and Authorization ❑ AMC 2.50 Date approved by Council; ❑ Wdtten quote or proposal attached ❑ Written quote or proposal attached Q mall Procurement Cooperative Procurement Less than$5.000 ❑ Request for Proposal (Copies on file) ❑ State of Oregon D-Oirecl Award Date approved by Council: Contract# ❑ VerballWdtten quote(s)or proposal(s) ❑ State of Washington Intermediate Procurement ❑ Sole Source Contract# GOODS 8 SERVICES ❑ Applicable Form(#5,6,7 or 8) ❑ Other government agency contract $5,000 to$100,000 ❑ Wdtten quote or proposal attached Agency ❑ (3)Written quotes attached ❑ Form#4, Personal Services$5K to$75K Contract# PERSONAL SERVICES El Special Procurement Inter governmental Agreement $5.000 to$75.000 ❑ Form#9,Request for Approval ❑ Agency ❑ Less than$35,000,by direct appointment ❑ Written quote or proposal attached Date original contract approved by Council: ❑ (3)Written proposals attached Date approved by Council: (Date) ❑ Form#4, Personal Services$5K to$75K Valid until: Date Description of SERVICES Total Cost 0/1 ✓ 111 N �lJ $%09f j Item # Quantity Unit Description of MATERIALS Unit Price Total Cost ,'�TOTAL�CO§T z" ❑ Per attached quotelproposal $ Project Number______-___ Account NumberaI �•D P. -pYypD Account Number -__-__-_ -______ Account Number___-__-__- *Expenditure must be charged to the appropriate account numbers for the financials to accurately reflect the actual expenditures. IT Director in collaboration with department to approve all hardware and software purchases: ITDirector Date Support-Yes/No 8 signing this requisition form,I certify that the City's public contracting requirements have been satisfied. Employee Signature: Department Head Signature: (Equal to or greater than$5,000) Additional signatures(if applicable): Funds appropriated for current fiscal year YES / NO Finance Director-(Equal to orgreater than$5,000) Date Comments: Form#3-Requisition