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HomeMy WebLinkAbout2008-251 Agrmt - Donation & Maintenance - Path to Joy & Unity DONATION & MAINTENANCE AGREEMENT This Agreement is made and entered into this ~ day of ~ ., 2008, by and between the City of Ashland Oregon (hereinafter referred to as "City"), and Lloyd M. Haines, (hereinafter ("Donor"). WHEREAS, Donor is the owner of eight panels of art, commonly and collectively known as liThe Path to Joy and Unity," hereinafter called II Art," more particularly described and shown in Exhibit A attached hereto and made a part hereof by this reference. WHEREAS, Donor has agreed to donate the Art to the City of Ashland on the terms and conditions contained in this Agreement, and City is willing to accept the donation of said Art; and WHEREAS, the proposed donation and placement of the Art has previously been submitted to and approved by the Planning Commission of the City of Ashland and the Department of Transportation of the State of Oregon, hereinafter "ODOT." NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Donor do hereby agree as follows: Donation of Art 1. Donor agrees to give, transfer and donate the Art to City, free and clear of any encumbrances or liens. The donation includes the Art described in Exhibit A, inclusive of the frames in which the Art is installed, the lighting which will illuminate the Art, together with the cost and expense of installation and maintenance of the Art pursuant to this Agreement. The City agrees to accept the Art into the City's Public Art Inventory. 2. The donation of the Art and the lighting to the City of Ashland is complete and absolute, provided, however, in the event City decides the Art shall no longer be displayed under the Lithia Way Viaduct, as provided herein, or at some other public location where the Art can be viewed by the general public, the City agrees, as a condition of the donation, that prior to any other authorized disposition of the Art under Oregon law and City ordinance, the City shall first offer to re-convey to Donor, at no cost, the Art, inclusive of frames and Page 1 of 6 lighting. If Donor fails to accept the offer to re-convey within sixty days of receipt of the written offer, the City, in its sole discretion, may dispose of the Art in any lawful manner. As a condition of ~he above re-conveyance, Donor may be required to remove the Art from the point of installation. Art Installation 3. The Art described in Exhibit A together with the frames in which the Art is installed, as well as the lighting which will illuminate the Art, shall all be affixed by Donor to the underside of the Lithia Way overpass, commonly referred to as the Lithia Way Viaduct, located in Ashland, Oregon. This installation shall be in accordance with the plans and specifications previously prepared by Donor and approved by ODOT, attached as Exhibit ".B" 4. The installation of the Art and lighting shall be done at the sole cost and expense of Donor, and shall be done in accordance with Exhibit ".B" In addition, Donor shall procure an electrical permit from City approving the installation of the lighting, in substantial conformance with Exhibit II .B". The installation shall be installed by an appropriately licensed and bonded electrical contractor. 5. The lighting shall be connected to the electrical service already owned and maintained by Ashland which provides power to the illumination of the walkway under the Viaduct. Connection of the lighting to the electrical service shall be completed by Donor at his sole cost and expense. The lighting installation shall be inspected by the City of Ashland Building Safety Division prior to its connection to the City electrical meter. Signage. 6. A plaque similar in design as the one installed at the Nourishing Our Community on the comer of Lithia Way and Pioneer Street may be imbedded at ground level under the bridge walkway mural artwork. Plaque verbiage is limited to the title of the installation "Path to Joy and Unity:, the names of each of the four artists, the year of installation and the name of the Donor. The plaque must be approved by the Public Art Commission prior to installation. Donor will assume all costs associated with the plaque and installation. Maintenance Page 2 of 6 7. Donor agrees to maintain the Art while it is affixed to the Viaduct at his sole cost and expense. This maintenance shall include, but not be limited to cleaning and repairing the work as necessary. Additionally, Donor agrees to maintain the lighting and change bulbs as necessary, so long as the Art remains under the Viaduct. All work to be done by appropriately licensed and bonded contractors. 8. Donor agrees to remove any and all of the Art at such time as ODOT requires the Art to be removed to inspect the bridge to which they are affixed. It is anticipated that this inspection will take place on a yearly basis, and Donor, ODOT and City shall cooperate in this undertaking. City shall use its best efforts to provide at least twenty (20) days notice to Donor of ODOT's intention to inspect the bridge. Release and Hold Harmless 9. Donor further agrees, for itself, its officers, agents and employees, their heirs, executors, administrators, successors, and assigns, to release and forever discharge the City of Ashland, its officers, directors, agents, employees, successors, and assigns from any and all claims, demands, actions or causes of action, including causes of action under V ARA and under this Agreement, which Donor now has or which hereinafter may accrue against the City of Ashland, its officers, directors, agents, employees, successors, and assigns in connection with the donation, removal of the Art or any damage which may occur to the Art. Donor 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, during or in connection with the donation, installation and maintenance of the Art, including causes of action under V ARA and under this Agreement, except liability arising out of the negligence of the City. Such indemnification shall also cover claims brought against the City under state or federal workers 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. Page 3 of 6 Term. 10. This Agreement shall remain in full force and effect so long as the Art is installed under the Viaduct. If Ashland decides to remove the Art, and it is returned to Donor in accordance with this Agreement, this Agreement shall terminate and have no further force or effect. Miscellaneous. 11. 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. 12. 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. 13. 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. 14. This Agreement is binding upon the heirs, representatives and assigns of the parties hereto. In witness whereof, the parties hereto set their hands as to the day and the year hereinafter written. at Page 4 of 6 fl. APPROVED AS TO FORM R,d~. Richard Ap i flilo City Attorney V Page 5 of 6 rr . EXHIBIT A Eight panels of art, commonly and collectively known as liThe Path to Joy and Unity,"with each panel being approximately 4-feet-by-8-feet and affixed to a metal frame. (two panels created by Denise Baxter; two panels created by Robert Paulmenn; two panels created by Judith Falconer; and two panels created by Joseph Crowell). [Photographs attached], Page 6 of 6 rr I