HomeMy WebLinkAbout340582 KARL CIESLUK - CONTRACT - RFP - ART IN PUBLIC PLACES SPRING CANYONCONSTRUCTION AGREEMENT
THIS AGREEMENT is made and entered into this Off, day of AeAV.,, 2007, by and
between THE CITY OF FORT COLLINS, COL O , a municipal corporation (hereinafter referred
to as "the City'), All Children Together, Inc., a Colorado non-profit corporation ("ACT'J, and Karl
Ciesluk (hereinafter referred to as "Artist.')
W ITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between
the parties hereto as follows:
1. Scape of the Work. The Artist shall furnish all of the materials and perform all of the
work shown on the drawings and described in the specifications for the Spring Canyon Community Park
Project attached hereto as Exhibit "A" and incorporated herein by this reference (the "Project"), and
consisting in general terms of the design, travel, construction, signage and installation of two elements,
including a cor-ten steel Eagle Sun Sculpture Shelter and a bridge project that will cover one of the
parks bridges with tiles engraved with animal images. Work performed shall be of high quality, in
compliance with generally accepted standards of workmanship, and in conformity with the contract
documents.
2. Time of Completion. The work to be performed pursuant to this Agreement shall
commence upon receipt by artist of the Notice to Proceed and shall be fully completed by September 30,
2007. Any extensions of the time limit set forth above must be agreed upon in writing by the parties
hereto. The City shall grant a reasonable extension of time to the Artist in the event there is a delay on
the part of the City in performing its obligations under this Agreement or if conditions beyond the
Artist's control or Acts of God render timely performance of the Artist's services impossible.
3. Capital Project Management Control S sy tem, In order to insure that the Project is
consistent with its authorized scope and schedule, the Artist shall provide an approximate SCHWULE
for the completion of all unit work items covered by the Agreement. The schedule shall indicate the
anticipated percentage completion of each unit work item for each week for the duration of the work.
The initial schedule must be submitted to the City prior to beginning the work
4. City Representative. The City will designate, prior to commencement of the work, its
project representative who shall make, within the scope of his authority as provided by ordinance and in
the Capital Project Management Control System, all necessary and proper decisions with reference to
the Project. All requests for contract interpretations, change orders, or other clarification or instruction
shall be directed to the City representative.
S. Images to Scope of Work
A. Changes by Artist. Any change by Artist from the Project specifications and drawings in
Exbibit "A" must be approved in advance by the City.
B. Changes by the Citv. The City shall be entitled to request changes in the design and
construction of the Project through written Change Order Requests. No work related to the
requested change shall proceed until the parties have reached agreement rega xhng changes in
KARL CIESLUK, 281 Lorne Greene Way, Ottawa, Ontario, Canada K2B 6A8
Phone/Fax: (613) 828-1282 Email: kariciesiuk@rogers.com
DESCRIPTION OF BRIDGE ENGRAVED TILE SCULPTURE:
For the Bridge, my theme will be water — the "Source of Life" which also
relates to my foliage theme found in the stone seed pod and wooden
sprout sculpture, found along the banks of the irrigation canal. My plan
is to inlay blue porcelain tiles into a section running through the middle
of the bridge, representing the water to which the animals are drawn.
On either side will be earth -tone, glazed porcelain tiles that will display
engravings of animals that depend on this water for survival. Colorado
has thousands of miles of irrigation channels, such as the ones found
beneath the bridge, that flora and fauna rely on for their lives. The
students from the local school will draw 75 designs of the animals
dependant on this source of life, and send these drawings to me. I will
then engrave 50 of these designs onto 36 tiles. I will ship these
engraved file to Ellen Martin, who will store them until my tile contractor
installs them in the half -inch deep indentation made in the concrete
bridge.
ESTIMATED TIMETABLE FOR BRIDGE ENGRAVED
TILES
BRIDGE (porcelain tiles)
4-6 weeks
ADMINISTRATION AND ORGANIZING 1-2 weeks
COST ESTIMATE
Inlaid Ceramic Tile on Pedestrian Bridge, 16' long $12,000
This price includes material, fabrication, installation, supervision,
living expenses while in Colorado, organizational and administrative
costs plus air fare (see detailed cost estimate)
KARL CIESLUK, 291 Lorne Greene Way, Ottawa, Ontario, Canada K28 8A8
Phone/Fax: (613) 828-1282 Email: karlclesluk@rogers.com
COST ESTIMATE
The Bridge Project — "The Essence of Life"
Airfare and Living Expenses (food and accommodation
while in Fort Collins
1,300
Cost for 36 tiles engraved with 50 animals from student
drawings
2,880
Tile installation
1,100
Cost of 125 porcelain tiles
800
Shipping and packing of engraved tiles
800
Liability Insurance
500
Administration and co-ordination of materials and sub
contractor
600
Sub Total
Contingency 12%
958
Artist Fee
3,062
TOTAL
12,000
Artist will supply additional tiles.-
* 10 engraved tiles
• 5 blue tiles
• 5 earthtone plain tiles
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price or scheduling requirements related to the requested change, and a written Change Order
documenting the agreed upon terms is issued by the City.
6. Formal AceWWM and Ownersbip of the Protect. No more than thirty (30) days after the
Artist has informed the City that the Project has been fully installed and is complete, the City will
provide a written response to the Artist, informing the same either that: (1) the City agrees that the
Project has been fully installed and is complete consistent with the terns of this Agreement, all other
related work is completed in accordance with this Agreement and Exhibit "A," and the City formally
accepts the Project as completed ("Letter of Acceptance"); or (2) the Project is not deemed to be
completed due to unresolved issues or defects that remain, and describing such outstanding issues or
defects which Artist must then cure before a Letter of Acceptance will be issued. The Project is not
finally complete for purposes of this Agreement until the City has issued a Letter of Acceptance. Upon
the City's issuance of a Letter of Acceptance the City will become the sole owner of the Project, and
artist shall have no furdw r obligations hereunder, except as set forth in paragraphs 8, 9,12, and 26.
Ownership of Works Created.
A. Asjignment of Cop3t The Artist hereby assigns, transfers, and conveys to the City
all right, title and interest in and to the Project together with the copyright therein and the right to
secure copyright registration therefore, in accordance with Sections 101, 204, and 205 of Title 17
of the United States Code, the Copyright Law of the United States. This assignment, transfer
and conveyance includes, without limitation, any and all features, sections, and components of
the Project, any and all works derived therefrom, the Unites States, Canadian and worldwide
copyrights therein, and any renewals or extensions thereof, and any and all other rights that the
Artist now has or to which he may become entitled under existing or subsequently enacted
federal, state, or foreign laws, including, but not limited to the following rights: to reproduce,
publish, and display the Project publicly, to prepare derivative works of and from the Project, to
combine the Project with other materials, and to otherwise exploit and control the use of the
Project. As additional consideration for this assignment, the City agrees that all reproductions of
the Project by the City shall credit the Artist.
B. License Back to Artist of Certain Rights. The City hereby grants to Artist the following
rights in and to the Project: the non-exclusive right to make two-dimensional reproductions of
the Project for any purpose, provided that any such reproduction clearly states the location of the
Project, acknowledges the City and the Art in Public Places Program, and contains a copyright
notice. With the exception of publicity pieces, the Artist shall not knowingly permit others to
make reproductions of the Project for commercial purposes without the written permission of the
City.
C. Riuhts under the Visual Artists' Rights Act. To the extent the uses or removal of the
Project under this Contract affect any rights Artist may have under the provisions of federal or
state law, including the 1990 Visual Artists' Rights Act, the Artist hereby knowingly waives any
rights of preservation of the Project provided by those laws.
8. CiRADMILee of Woricmansh_.. and Material. For a period of three (3) years from the date of
the City's Letter of Acceptance, Artist agrees to replace or correct any material defects in the Project,
whether caused by defects in the design, workmanship or materials used in the Project. If Artist fails to
replace or correct any such defects, or to make arrangements to do so within a reasonable time
satisfactory to the City, the City shall have the right to arrange for such replacement or correction, and
Artist agrees to reimburse the City for the costs of any such replacement or correction. Should the City
ask Artist to repair damage caused to the Project by vandalism, collision, or other unforeseeable
environmental damage, Artist shall be reimbursed for reasonable material and labor costs for such
repairs, except to the extent such damage is due to a defect in design, workmambip or materials used in
the Project.
9. Maintenance Instructions and Maintenance. Artist shall provide to the City written
instructions for maintenance of the Project, to include detailed information regarding the operation, care,
maintenance and repair of the Project and a complete set of digital images depicting no fewer than a
total of six views of each element of the completed Project. Following the warranty period, Artist
agrees to continue to provide advice to the City regarding the operation, care, maintenance and repair of
the Project at no charge to the City, unless otherwise agreed to by both parties in writing. The City shall
provide Artist with information sufficient for Artist to render an opinion on any issue for which advice is
sought. If the City wants the Artist to visit the Project site to obtain such information, the City shall
compensate Artist for Artist's time and reasonable and necessary travel expenses for such site visit.
1 0 0 _i i �s? t 11,1
A. The City and ACT shall pay Artist for the performance of this Contract, subject to
additions and deletions provided herein, the total sum of Thirty -Three Thousand, Three Hundred and
Ten Dollars ($33,310.), consisting of Twenty -One Thousand Dollars ($21,000) of APP funds to be paid
by the City and Twelve Thousand, Three Hundred Ten Dollars ($12,310) to be paid by ACT.
Artist will be paid under the following schedule:
L ACT shall pay $12,310 towards the cost of the Eagle Shelter upon full
execution of this Agreement;
ii. The City shall pay $4,500 upon shipment and installation of bridge tiles;
iii. The City shall pay $4,500 upon installation of Eagle Shelter structure;
iv.. The City shall pay $12,000 or any remaining amounts due under this
Agreement, upon the City's final approval and acceptance of the Project as
complete, and receipt by the City of satisfactory maintenance instructions as
described in Section 9, above, lien waivers in substantially the form shown in
Exhibit `V' from Artist and a comparable lien waiver from any and all
Subcontractors that have performed work or provided materials in connection
with the Project.
11. Failure to Comnlete. The parties agree that if Artist becomes ill, dies, or is otherwise
unable or unwilling to complete the Project in accordance with the Agreement, any work already done
on the Project shall be the property of the City. The City shall be entitled to withhold or receive any
sums not yet paid to Artist, and may use any such sums toward completion of the Project in any manner
deemed appropriate by the City.
12. Project as Unique. Artist represents and warrants that the Project is artistically unique,
and agrees that he will not create or be involved in the creation of an identical or substantially similar
artwork within 100 miles of Fort Collins, Colorado.
13. Liquidated Damages. It is specifically recognized by and between the parties hereto that
the City will suffer certain unspecified damages in the event the Project is not completed within the time
set forth above, as adjusted for any delays agreed upon by the parties pursuant to Section 2, above. In
recognition of the difficulty of ascertaining the actual damages to be sustained by the City, the parties
agree that the assessment of liquidated damages shall be appropriate. In the event the Project is not
completed within the specified time, unless the delay was caused by the acts or omissions of the City,
this shall be assessed against Artist, and Artist hereby authorizes the City to retain from any monies due
the Artist, the sum of One Hundred Dollars ($100.00) per day for each and every calendar day the
Project remains unfinished. In no event shall liquidated damages exceed the sum of Three Thousand
Dollars ($3,000.00)
14. Governing Law. This Agreement shall be governed by the laws of the State of Colorado
and the United States.
15. Notice. Any notice to be sent pursuant to this Agreement shall be deemed delivered if
sent to the other parties by certified or registered mail, return receipt requested and postage prepaid, at
the following address:
If to the Artist:
If to the City:
Karl Ciesluk
Ellen Martin
291 Lorne Green Way
Lincoln Center
OTTAWA, Ont. K2B 6A8
417 West Magnolia
(613) 828-1282
Fort Collins, CO 80521
16. Termination/Default.
If to ACT:
Robert L. Powell
Double Edge Construction Services, Inc.
4026 Timberline Rd., Suite 100
Fort Collins, CO 80525
A. Termination. This Agreement may be terminated by the City upon at least seven (7) days
written notice to the Artist. In such event the City shall compensate Artist for all services
performed to the date notice of termination is received, together with reasonable expenses then
due, unless otherwise agreed in writing by the parties.
B. Default. Each and every term and condition of this Agreement shall be deemed to be a
material element of this Agreement. Time is of the essence. In the event either party should fail
or refuse to perform according to the terms of this Agreement; they may be declared in default
thereof.
C. Remedies Upon Default. In the event a party has been declared in default hereof and
performance is possible within the completion time as established herein, such defaulting party
shall be allowed a period of five (5) days within which to acre said default. In the event the
default remains uncorrected (or timely performance is not possible), the party declaring default
may elect to: (1) immediately terminate the Agreement; (2) treat the Agreement as continuing
and require specific performance; and/or (3) avail himself of any other remedy at law or equity.
If any party elects to terminate the agreement for default, termination shall be effective upon the
mailing, by the terminating party, of written notice of termination to the defaulting party.
D. Artist's Failure to Complete. If Artist fails to carry out the work in accordance with this
Agreement, in addition to the remedies for default described above, the City may elect to make
good such deficiencies and charge Artist therefore.
E. Attornevs Feea. In the event of default of any of the agreements herein by either party
which shall require the party not in default to commence legal or equitable action against the
defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -
defaulting parry's reasonable legal fees, including attorneys fern, incurred because of the
default.
17. Ami . It is understood that the City enters into this Agreement based on the
special abilities of Artist and that this Agreement shall be considered as an agreement for personal
services. Accordingly, Artist shall neither assign any responsibilities nor delegate any duties arising
under this Agreement without the prior written consent of the City.
18. Artist -- hxk-Lmdent Agent. The Artist shall perform all work under this Agreement as
an independent agent and shall not be considered an agent of the City, nor shall the Artist's
Subcontractors or employees be subagents of the City.
19. License and Business. The Artist shall hold, in the Artist's name, all necessary licenses to
perform the work, and shalt have full authority to do business in the State of Colorado. The Artist shall
have a designated place of business for making and accepting communications with or from the City.
The address and telephone number of Artist shall be maintained with the City throughout the contract
period.
20. Superintendence. The Artist shall keep competent supervisory personnel on the work
during its progress and designate before starting work an authorized representative who shall have
complete authority to represent and to act for the Artist. The Artist shall provide efficient supervision of
the work, using his best skill and attention. The Artist shall be solely responsible for all construction
means, methods, techniques, and procedures, and for providing adequate safety precautions and
coordinating all portions of the work.
21. Employ. The Artist shall employ only competent, skillful workers to do the work;
whenever any person shall appear to be incompetent or to act in a disorderly or improper manner, such
person shall be removed from the work.
22. Subcontractors. It is understood by the parties that the Artist may utilize Subcontractors
to complete the fabrication, transportation and/or installation of the Project, under Artist's direction and
supervision. The Artist shall, within fifteen (15) days of the effective date of this Agreement, submit to
the City the names of all Subcontractors proposed for the work. The Artist shall not employ any
Subcontractors that the City may object to as lacking capability to properly perform work of the type
and scope anticipated. The Artist agrees that he is as fully responsible to the City for the acts and
omissions of his Subcontractors and of persons either directly or indirectly employed by them as he is
for the acts and omissions of persons directly employed by him. Nothing contained in the contract
documents shall create any contractual relation between any Subcontractor and the City, except to the
extent the City is indemnified or insured through requirements upon said Subcontractor. If
subcontractors are used, the City may, in its discretion, require the submission of lien waivers in a form
reasonably acceptable to the City by any such subcontractors prior to final payment to the Artist.
23. Prosecution of the Work It is expressly understood and agreed that the time of
beginning, rate of progress, and time of completion of the work are the essence of this Agreement. The
work shall be prosecuted at such time, and in or on such part or parts of the project as may be required to
complete the Project during the time specified in the Agreement and the approved construction schedule.
The Artist's tools and equipment used on the work shall be furnished in sufficient quantity and of a
capacity and type that will safely perform the work specified without delay in the progress of the work.
24. Wet. The Artist shall be solely responsible for maintaining a safe work area and
protecting the safety and welfare of Artist's employees, subcontractors, and the general public, including
without limitation area residents, motorists, bicyclists, pedestrians, and children from work area hazards.
The Artist shall provide all work area safety control devices, at Artist's cost, including, for example,
barricades and safety fences around excavations and drop-offs. The Artist's safety precautions shall be
in compliance with all applicable laws, rules and regulations.
25. Work and Pronerty. The Artist shall use his best efforts to at all times safely guard the
City's property from injury or loss in connection with the work. The Artist shall, at all times, use his
best efforts to safely guard and protect from damage the work and adjacent property, including
underground utilities. All passageways, guard fences, lights, and other facilities required for protection
by state or municipal laws and regulations and location conditions must be provided and maintained.
The Artist shall protect the work and materials from damage due to the nature of the work, the elements,
carelessness of the Artist, or from any foreseeable cause whatever until the completion and acceptance
of the Project All loss or damages arising out of the nature of the work to be done under this
Agreement, or from any unforeseen obstruction or defects which may be encountered in the prosecution
of the work, or from the action of the elements, shall be the liability of the Artist.
26. Indemnity.. The Artist shall indemnify and hold harmless the City and ACr, and their
respective officers, agents and employees, from and against all claims, damages, losses, and expenses,
and legal fees including attorney's fees, arising out of or resulting from the Artist's performance under
this Agreement
In any and all claims against the City, ACT, or any of their officers, agents, or employees by any
employee or agent of the Artist, or of any Subcontractor, the indemnification obligation under this
Section shall not be limited in any way by any limitation on the amount or type of damages,
compensation, or benefits payable by or for the Artist or any Subcontractor under Workmen's
Compensation laws, Disability Benefit laws, or other employee benefit laws.
27. Insurance and Liabilitv. The Artist shall provide, or in lieu of himself providing, shall
require all Subcontractors providing services in connection with this Agreement to provide from
insurance companies acceptable to the City the insurance coverage designated hereinafter and pay all
costs before commencing work under this Agreement. The Artist shall furnish the City with certificates
of insurance specified herein showing the type, amount, class of operations covered, effective dates, and
date of expiration of policies, and containing substantially the following statement:
'"The insurance covered by this Certificate will not be canceled or materially
altered, except after ten (10) days written notice has been received by the Owner,
the City of Fort Collins."
In case of the breach of any provision of this Section, the City, at its option, may take out and maintain,
at the expense of the Artist, such insurance.
'The Artist shall not commence work under this Agreement until all the insurance required thereunder
has been reviewed by the City and an acceptable certificate of insurance has been provided to the City.
The Artist, or in lieu thereof, all Subcontractors of Artist, shall maintain during the life of this
Agreement the statutory Worker's Compensation Insurance required and, in addition, Employer's
Liability Insurance in an amount not less than $400,000 for each occurrence, for all of his her
employees, if any, to be engaged in work on the Project under this Agreement.
The Artist and all Subcontractors of Artist shall maintain during the life of this Agreement such
commercial general liability insurance as will provide coverage for claims for damages for personal
injury, including accidental death, as well as for claims for property damage, which may arise directly or
indirectly fiom performance of the work under this Agreement. Coverage for property damage shall be
on a "broad form" basis. Amount of insurance to be provided shall be not less than $300,000 combined
single limits for bodily injury and property damage.
In the event any work under this Agreement is performed by a Subcontractor, the Artist shall be
responsible for any liability directly or indirectly arising out of the work performed under this
Agreement by a Subcontractor, which liability is not covered by the Subcontractor's insurance.
The City and ACT shall be named as additional insureds on the Artist's and any Subcontractor's
insurance policies required under this Agreement, for any claims arising out of work performed under
this Agreement.
IN WrrNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
THE CrrY OF FORT COLLINS, COLORADO,
AM
'
l3PO, FNIGP
nd RiskManagement
APPROV AS T FORM:
Assistant City Attorney
ALL CHILDREN TOGFI HER, INC.
a non-prI fit co ;l P
Robert L. Powell
Vice - Chair of the Board of Directors
ILI
OF40WI
ARTIST:
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Karl Ciesluk
sT*TE OF cOLelAeO
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GOUNTY OF )
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Subscribed and sw o before is day of O P2) L . 2007, by:
Witness my hand an "cieal.
My Commission Expires:
Notary Public
Ku R-AL Connelly B.A., LL.B.
92oirnteDrive
NgVAON X206B1
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040
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SAMPLE LIEN WAIVER RELEASE
(SST)
TO: City of Fort CoIUm Colorado (QW
FROM: Karl CieaIuk (A�RT1�T)
PROJECT: Spring CanyonCotumuaity Park (E
1. The ARTIST acknowledges hat*
skill and material furnished, delivered and p
design, improvement, alteration, addition or
& Bridge Tile) Project
al payment, from the OWNER for all work, labor,
the OWNER or for anyone in the construction,
project.
2. In consideration of such payment and thiAgood and valuable consideration, the receipt and adequacy of which are
hereby aft
Wledged, the ARTIST voluntarily waive frights, claims and liens, including but not limited to, mechanic's
es;�gm 8 VaticSk, hens aid labor and material bond rights the ARTIST may now or may afterward have, claim or
assert (r all and any work, labor, skill or materials furnished, delivered or performed for the construction, design,
improvejneni, alteration, addition or repair of the above described project, against the OWNER or its officers, agents,
{ `err t an fund of or in the ossession or control o£ the OWNER, against the act or all
employe. ,.; ., Y P project against
land and the b g._ eppurtenanoes to the land improved by the project.
3. The ARTIST affirms tbij all work, labor and materials, furnished, delivered or performed to or for the cenatraction,
design, improvement ory� ition or repair of the project were furnished, delivered or performed by the ARTIST or
its agents, employees, or by and through the ARTIST by various Subcontractors or material men or their agents,
employees and servants affirms the same have been paid in fall and have released in full any and all existing or
passible future mechanic's liens or rights or claims against the project or any funds in the OWNER'S rights or control
concerting the project or against the OWNER or its officers, agents, employees or assigns arising out of the project.
4. The ARTIST agrees to defend and bold harmless the OWNER, the lender, if any, and the Surety on the project
against and from any claim hereinafter trade by the ARTIST'S Subcontractors, material men, employees, servants agents or
assigns against the project or against the OWNER or its officers, employees, agents or assigns arising out of the project for
All loss, damage and costs, including reasonable attorneys fees, incurred as a result of such claims
5- The parties acknowledge that the description of the project act forth above constitutes an adequate description. of the
property and improvements to which this Lien Waiver Release pertains. It is further acknowledged that this Lien Waiver
Release is for the benefit of and may be relied upon by the OWNER, the I.ENDER, if any, and Surety on any labor and
material bonds for the project.
Signed this day of 2007.
Karl Cie"
STATE OF COLORADO )
) ss.
COUNTY OF I.ARMUM )
Subscribed and sworn to before me this day of , 2007, by:
Witness my land and official seat
My Commission Expires:
Notary Public