HomeMy WebLinkAbout2021-045 Agreement- Cobalt Designs GOODS &SERVICES AGREEMENT(GREATER THAN$25,000)
PROVIDER: Cobalt Designworks
CITY OF PROVIDER'S CONTACT: Jennifer Corio
ASHLAND ADDRESS: 1930 D Street
20 East Main.Street Vancouver,Washington 98663
Ashland, Oregon 97520
Telephone: 541/488-5587
Fax: 541/488-6006 TELEPHONE: 360-281-5619 •
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EMAIL: Jennifer@cobaltdesignworks.com
This Goods and Services Agreement(hereinafter"Agreement") is entered into by and between the City of
Ashland, an Oregon municipal corporation(hereinafter "City") and Cobalt Designworks,LLC, a limited
liability company("hereinafter"Provider"),for the fabrication and installation of the sculpture"Golden
Connections." -
1. PROVIDER'S OBLIGATIONS
1.1 Provider shall manufacture, engineer,transport, and install the City-commissioned sculpture entitled
"Golden Connections"as set forth in the "SUPPORTING DOCUMENTS" attached hereto and,by this
reference,incorporated herein. Provider expressly acknowledges that time is of the essence of any
completion date set forth in the SUPPORTING DOCUMENTS, and that no waiver or extension of
such deadline may be authorized except in the same manner as herein provided for authority to exceed
the maximum compensation. The goods and services defined and described in the"SUPPORTING
DOCUMENTS" shall hereinafter be collectively referred to as"Work."
1.2 Provider shall obtain and maintain during the term of this Agreement and until City's final acceptance
of all Work received hereunder, a policy or policies of liability insurance including commercial
general liability insurance with a combined single limit, or the equivalent, of not less than$2,000,000
(two million U. S. dollar's)per occurrence for Bodily Injury,Death, and Property Damage.
1.2.1 The insurance required in this Article shall include the following coverages:
• Comprehensive General or Commercial General Liability,including personal injury,
contractual liability, and products/completed Operations coverage; and
• Automobile Liability.
1.2.2 Each policy of such insurance shall be on an"occurrence" and not a"claims made" form, and
shall:
• Name as additional insured "the City of Ashland, Oregon, its officers, agentsand
employees" with respect to claims arising out of the provision of Work under this
Agreement; .
• Apply to each named and additional named insured as though a separate policy had been
issued to each,provided that the policy limits shall not be increased thereby;
• Apply as primary coverage for each additional named insured except to the extent that
two or more such policies are intended to "layer" coverage and;taken together,they
provide total coverage from the first dollar of liability;
• Provider shall immediately notify the City of any change in insurance coverage
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• Provider shall supply an endorsement naming the City, its officers, employees, and
agents as additional insureds by the Effective Date of this Agreement; and
• Be evidenced by a certificate or certificates of such insurance approved by the City.
1.3 All subject employers working under this Agreement are either employers that will comply with ORS
656.017 or employers that are exempt under ORS 656.126. As evidence of the insurance required by
this Agreement,the Provider shall furnish an acceptable insurance certificate prior to commencing any
Work under this Agreement.
1.4 Provider agrees that no person shall, on the grounds of race, color,religion, creed, sex,marital status,
familialstatus or domestic partnership,.national origin, age,mental or physical disability,sexual
orientation, gender identity orsource of income, suffer discrimination in the performance of this
Agreement when employed by Provider. Provider agrees to comply with all applicable requirements of
federal and state civil rights and rehabilitation statutes,rules and regulations. Further,Provider agrees
not to discriminate against a disadvantaged'business enterprise,minority-owned business,woman-
owned business, a business that a service-disabled veteran owns or an emerging small business
enterprise certified under ORS 200.055,in awarding subcontracts as required by ORS 279A.110.
1.5 In all solicitations either by competitive bidding or negotiation made by Provider for work to be
performed under a subcontract,including procurements of materials or leases of equipment, each
potential subcontractor or supplier shall be notified by the Providers of the Provider's obligations under
this Agreement and Title'VI of the Civil Rights Act of 1964 and other federal nondiscrimination laws.
1.6 Living Wage Requirements: If the amount of this Agreement is$22,002.43 or more,Provider is
required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as
defined in that chapter,to all employees performing Work under this Agreement and to any
Subcontractor who performs 50%or mote of the Work under this Agreement. Provider is also,required
to post the notice attached hereto as "Exhibit A"predominantly in areas where it will be seen by all
employees.
2. CITY'S OBLIGATIONS
2.1City shall pay Provider the sum of$25,000.00 (twenty-five thousand U. S. dollars) as provided
herein as full compensation for the Work as specified in the SUPPORTING DOCUMENTS.
2.2 In no event shall Provider's total of all compensation and reimbursement under this Agreement exceed
the sum of$25,000.00 (twenty-five thousand U.S. dollars without express,written approval from the
City official whose signature appears below, or such official's successor in office. Provider expressly
acknowledges that no other person has authority to order or authorize additional Work which would
cause this maximum sum to be exceeded and that any authorization from the responsible official must
be in writing. Provider further acknowledges that any Work delivered, or expenses incurred without
authorization as provided herein is done at.Provider's own risk and as a volunteer without expectation
of compensation or reimbursement.
2.3 The sum set forth in Subsection 2.1 above shall be paid pursuant to the following schedule: one-third
of the total sum due shall be paid upon execution of this Agreement; one-third of the total sum due
shall be paid when fabrication of the sculpture,"Golden Connections,"is fifty percent(50%)
complete; and the final one-third of the total sum due shall be paid upon the City's final written •
acceptance of the installed Work.
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3. GENERAL PROVISIONS
3.1 This is a non-exclusive Agreement. City is not obligated to procure any specific amount of Work
from Provider and is free to procure similar types of goods and services from other providers in its
sole discretion.
3.2 Provider is an independent contractor and not an employee or agent of the City for any purpose.
3.3 ` Proprietary Rights and Rights of Reproduction
3.3.1 Provider retains all rights it may be entitled to pursuant to the Copyright Act of 1976, 17 U.S.0
101 et. seq., and all other rights in and to the artwork entitled"Golden Connections"except
ownership and possession, and except as such rights are limited to this Subsection 3.3.
3.3.2 Because the parties intend that the artwork,"`Golden Connections," in its final dimension shall
be unique,Provider shall not make any additional duplicate,three-dimensional reproductions
of the artwork at any scale, or permit others to do so, except with the written permission of the
City. Provider grants to the City and its assigns an irrevocable,non-exclusive,royalty-free
license to graphically reproduce the artwork for City use, including but not limited to,the
purposes of marketing,publicity, education, or exhibition of the artwork.
3.3.3 The City shall make its best efforts to credit Provider with the creation of the artwork, and
when applicable,will publish a copyright notice in substantially the following form: "Cobalt
Designworks_Jennifer Corio and Dave Frei,2021". Provider shall use its best efforts to give
a credit reading"an original work commissioned and owned by the City of Ashland, Oregon"
in any public showing or print reproduction under Provider's control.
3.4 Provider is not entitled to, and expressly waives all claims to City benefits such as health and disability
insurance,paid leave, and retirement.
3.5 Provider shall not assign this Agreement or subcontract any portion of the Work to be provided
hereunder without the prior written consent of the City. Any attempted assignment or subcontract
without written consent of the City shall be void. Provider 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
the City of any assignment or subcontract shall not create any contractual relation between the
assignee or subcontractor and the City.
3.6 This Agreement embodies the full and complete understanding of the parties respecting the subject
matter hereof. It supersedes all prior agreements,negotiations, and representations between the
parties,whether written or oral.
3.7 This Agreement may be amended only by written instrument executed with the same formalities as
this Agreement.
3.8 The following laws of the State of Oregon are hereby incorporated by reference into this Agreement:
ORS 279B.220,279B.230 and 279B.235.
3.8 This Agreement shall be governed by the,laws of the State of Oregon without regard to conflict of
laws principles. Exclusive venue for litigation of any action arising under this Agreement shall be in
the Circuit Court of the State of Oregon for Jackson County unless exclusive jurisdiction is in federal
court,in which case exclusive venue shall be in the federal district court for the district of Oregon.
Each party expressly waives any and all rights to maintain an action under this Agreement in any other
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venue, and expressly consents that,upon motion of the other party,any case may be dismissed or its
venue transferred,as appropriate, so as to effectuate this choice of venue.
3.9 Provider shall defend, save,hold harmless and indemnify the City and its officers, employees and
agents from and against any and all claims, suits, actions,losses, damages,liabilities, costs, and
expenses of any nature resulting from, arising out of, or relating to the activities of Provider or its
officers, employees, contractors,or agents under this Agreement.
3.10 Neither party to this Agreement shall hold the other responsible for damages or delay in performance
caused by acts of God, strikes,lockouts,accidents, or other events beyond the control of the other or '
the other's officers, employees or agents. (
3.11 If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable,
such provision shall not affect the other provisions,but such unenforceable provision shall be deemed
modified to the extent necessary to render it enforceable,preserving to the fullest extent permitted the
intent of Provider and the City set forth in this Agreement.
3.12 Deliveries will be.F.O.B destination. Provider shall pay all transportation and handling charges for the
Work.Provider is responsible and liable for loss or damage until final inspection and acceptance of the
Work by the City. Provider remains liable for any latent defects,fraud, and warranties.
3.13 The City may inspect and test the Work.The City may reject non-conforming Work and require
Provider to correct any non-conformities without charge or deliver them at a reduced price, as
negotiated. If Provider does not cure any defects within a reasonable time,the City may reject the
Work and cancel this Agreement in whole or in part. This paragraph does not affect or limit the City's
rights, including its rights under the Uniform Commercial Code, ORS Chapter 72 (UCC).
3.14 Provider represents and warrants that the Work is new, current,and fully warranted for a period of two
years upon acceptance where Artist is liable and responsible for repairs costs that are needed due to
defects in material and workmanships.All delivered Work;including the artwork,"Golden
Connections"will comply with SUPPORTING DOCUMENTS and be free from defects in labor,
material, and manufacture. Provider shall transfer all warranties to the City.
4. SUPPORTING DOCUMENTS
The following documents are,by this reference, expressly incorporated in this Agreement,and are
collectively referred to in this Agreement as the"SUPPORTING DOCUMENTS:"
• The City's written Request for Qualifications for a Site-Specific Public Art.Installation dated
November 9, 2020.
• Provider's complete,written Refined Design Proposal entitled"Golden Connections,"dated
June 17,2021.
5. REMEDIES '
5.1 In the event Provider is in default of this Agreement, City may, at its option,pursue any or all of the
remedies available to it under this Agreement and at law or in equity,including,but not limited to:
5.1.1 Termination of this Agreement; '
5.1.2 Withholding all monies due for.the Work that Provider has failed to deliver within any scheduled
completion dates or any Work that have been delivered inadequately or defectively;
5.1.3 Initiation of an action or proceeding for damages, specific performance,or declaratory or
injunctive relief; .
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5.1.4 These remedies are cumulative to the extent the remedies are not inconsistent, and City may
pursue any remedy or remedies singly, collectively, successively or in any order whatsoever.
5.2 In no event shall City be liable to Provider for any expenses related to termination of this Agreement,
but Provider shall be entitled to receive,just and equitable compensation for any satisfactory services
completed on the Work prior to the date of termination,not to exceed the payment ceiling set forth
above. If previous amounts paid to Provider exceed the amount due,Provider shall immediately return
any excess amounts paid by City upon written demand from the City.
6. TERM AND TERMINATION
6.1 Term-This Agreement shall be effective from the date of execution on behalf of the City as set forth
below(the"Effective Date"),and shall continue in full force and effect until May 31,2022,unless
sooner terminated as provided in Subsection 6.2.
6.2 Termination
6.2.1 The City and Provider may terminate this Agreement by mutual agreement at any time.
6.2.2 The City may,upon not less than thirty (30) days' prior written notice,terminate this Agreement
for any reason deemed appropriate in its sole discretion.
6.2.3 Either party may terminate this Agreement,with cause,by not less than fourteen(14) days' prior
written notice if the cause is not cured within that fourteen(14) day period after written notice.
Such termination is in addition to and not in lieu of any other remedy at law Or equity.
7. NOTICE
Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in
writing to the other partyby personal delivery,by sending via a reputable commercial overnight courier, or
by mailing using registered or certified United States mail,return receipt requested,postage prepaid,to the
address set forth below:
If to the City:
City of Ashland—Community Development Department
Attn: Aaron Anderson(PAC)
20 E. Main Street
Ashland, Oregon 97520.
With a copy to: _
City of Ashland-Legal Department
20 E.Main Street
Ashland,-Oregon 97520
If to Consultant:
Jennifer Corio
1930 D Street
Vancouver, Washington 98663
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8. WAIVER OF BREACH
One or more waivers or failures to object by either party to the other's breach of any provision,term;
condition, or covenant contained in this Agreement shall not be construed as a waiver of any subsequent •
breach, whether or riot of the same nature.
9. PROVIDER'S!COMPLIANCE WITH TAX LAWS
9.1 Provider represents and warrants to the City that:
9.1.1 Provider shall,throughout the term of this Agreement,including any extensions hereof, comply
with:
(i) All tax laws of the State of Oregon,including but not limited to ORS 305:620 and ORS
chapters 316, 317, and 318;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable
to Provider; and
(iii) Any rules,regulations, charter provisions, or ordinances that implement or enforce any of
the foregoing tax laws or provisions.
9.1.2 Provider,for a period of no fewer than six(6) calendar years preceding the Effective Date of this
Agreement, has faithfully complied with:
(i) All tax laws of the State of Oregon,including but not limited to ORS 305.620 and ORS
chapters 316, 317, and 318;
(ii) Any tax provisions imposed'by a political subdivision of the State of Oregon applicable
to Provider; and
(iii) Any rules,regulations, charter provisions, or ordinances that implement or enforce any of
the foregoing tax laws or provisions.
9.2 Provider's failure to comply with the tax laws of the State of Oregon and all applicable tax laws of any
political subdivision of the State.of Oregon shall constitute a Material breach of this Agreement.
Further, any violation of Provider's warranty, as set forth in this Article 9, shall constitute a material
breach of this Agreement. Any material breach of this Agreement shall entitle the City to terminate
this Agreement and to seek damages and any other relief available under this Agreement, at law, or in
equity.
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IN WITNESS WHEREOF the parties have caused this Agreement to be signed in their respective
names by their duly authorized representatives as of the dates set forth below.
CITY OF ASHLAND: COBALT DESIGNWORKS (PROVIDER):
By. BY ��r(, �LCC ! I�CLr"
Adam Hanks CityManager Pro Tem / G'
�/ Signature
1
7,5/z (Ai" COrt
Date Printed Name
Alta t,te zx,it4 Member-, ( '6-li D&U i.dorti `
d J Title
07/ ,-/-1-(7 )2-x 0
3. . Date`
Purchase Ord'e"r No. (W-9 is to be submitted with this signed Agreement)
APPROVED AS TO FORM:
---%--'" A37 ."----
?assistant City Attorney
Date
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