HomeMy WebLinkAbout247203 SURFACE STRATEGY - CONTRACT - CONTRACT - 2207453ygyo,-c24
CONSTRUCTION AGREEMENT
THIS AGREEMENT is made and entered into this 2 1"day of V f
2002, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation
(hereinafter referred to as "the City"), and Surface Strategy, LLC. (hereinafter referred to as
"Artist.")
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. Scope 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 Collindale Clubhouse
project attached hereto as Exhibit "A" and incorporated herein by this reference (the "Project"),
and consisting in general terms of the design, construction, signage and installation of synthetic
rock mosaics and pre -cast concrete insets on the chimney, and stamping along the path in front
of the clubhouse, with the exception of the installation of the chimney insets. 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. Because the work to be performed pursuant to this
Agreement must be coordinated with the overall Collindale Clubhouse construction project, the
Artist shall be notified by the Project Manager for the Collindale Clubhouse construction project
as to when installation of the Project shall commence. The Artist shall then coordinate with the
construction Project Manager on the schedule for completion of this Project, including deadlines
for Substantial Completion and Final Acceptance of the Project. 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 System. In order to insure that the Project is
consistent with its authorized scope and schedule, the Artist shall provide an approximate time
line 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, once work commences. 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,
and other clarification or instruction shall be directed to the City representative.
EXHIBIT B
LIEN WAIVER RELEASE
(ARTIST)
TO: City of Fort Collins, Colorado (OWNER)
FROM: SURFACE STRATEGY, LLC (ARTIST)
PROJECT: Collindale Clubhouse
1. The ARTIST acknowledges having received payment, except final payment, from the
OWNER for all work, labor, skill and material furnished, delivered and performed by the
ARTIST for the OWNER or for anyone in the construction, design, improvement, alteration,
addition or repair of the above described project.
2. In consideration of such payment and this good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the ARTIST voluntarily waives all rights,
claims and liens, including but not limited to, mechanic's notices, equitable liens and labor and
material bond rights which the ARTIST may now or may afterward have, claim or assert for all
and any work, labor, skill or materials furnished, delivered or performed for the construction,
design, improvement, alteration, addition or repair of the above described project, against the
OWNER or its officers, agents, employees or assigns, against any fund of or in the possession or
control of the OWNER, against the project or against all land and the buildings on and
appurtenances to the land improved by the project.
3. The ARTIST affirms that all work, labor and materials, furnished, delivered or performed
to or for the construction, design, improvement, alteration, addition or repair of the project were
furnished, delivered or performed by the ARTIST or its agents, employees, and servants, or by
and through the ARTIST by various Subcontractors or material men or their agents, employees
and servants and further affirms the same have been paid in full and have released in full any and
all existing or possible future mechanic's liens or rights or claims against the project or any funds
in the OWNER'S rights or control concerning 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 hold harmless the OWNER, the lender, if any, and the
Surety on the project against and from any claim hereinafter made 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 set 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 LENDER, if any, and Surety on any labor and material bonds
for the project.
Signed this
day of
ARTIST
0
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
by
Subscribed and sworn to before me this
Witness my hand and official seal.
My Commission Expires:
Notary Public
Pd1I004
day of
PROJECT: CLUB HOUSE
CHIMNEY and PAVED AREAS
PROPOSAL: ROCK MOSAIC
COTTONWOOD
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Chimney - Collindale Goff Course
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5. Changes to Scope of Work.
A. Changes by Artist. Any change by Artist from the Project
specifications and drawings in Exhibit "A" or any other approved plans for the Project must be
approved in advance by the City.
B. Changes by the City, 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 regarding changes
in 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. Final Acceptance and Ownership of the Sculpture No more than thirty (30) days
after the Artist has informed the City that the Project has been fully installed and is ready for
Final Acceptance, 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 terms of this Agreement and all this related work 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 the
purpose 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, except for
interests retained by the Artist as described in paragraph 7, below, and artist shall have no further
obligations hereunder, except as set forth in paragraphs 8, 9, 12, and 26.
7. Conyright, Ownership of Works Created and Reproduction Rights.
A. The Artist retains all rights under the Copyright Act of 1976 and all rights in and
to the Project with the exception that the Artist hereby expressly assigns to the City, upon
payment in full for all work, all rights of ownership and possession of any graphic
representations, models, or other physical products designed or created by the Artist hereunder
for the use of the City or its assigns in any manner the City and/or its assigns deems appropriate.
The Artist retains ownership of the designs.
B. The City owns the physical structures that are incorporated into the Project.
Therefore, to the extent the uses or removal of the Project under this Agreement affect any rights
the 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.
C. The City and the Artist may make two-dimensional reproductions of the Project
for any purpose, provided that any such reproduction clearly states the location of the Project and
acknowledges the City and Artist as described below. With the exception of publicity pieces, the
F
Surface Strategy, LLC
1305 Krameria Street, Suite H-168
Denver, CO 80220
303-831-0601
8/28/2002
Budget & Schedule for Collindale Golf Course
Items
Description
Total Cost
Date of Delivery
7
Synthetic Rock Mosaics
6,416.67
10/01/02
7
Precast Concrete Cottonwood Lea
3,500.00
10/01/02
2
Stamping Tools
1,375.00
09/09/02
N/A
Art Materials
2,708.33
N/A
N/A
Artist Fee
4,000.00
N/A
N/A
Contingency
2,000.00
N/A
Total *
20,000.00
* Installation of all art is provided by contractor
City and Artist shall not knowingly permit others to make two-dimensional reproductions of the
Project for commercial purposes except with the written permission of both parties.
D. Notwithstanding any statement to the contrary contained in this Agreement, the
Artist shall retain the copyright to the designs incorporated in the Project, but hereby licenses the
City to use drawings, photographs or other depictions of the artwork for promotional purposes of
the Project, the Art in Public Places program or the City of Fort Collins.
E. The City shall assure that all reproductions of the Artwork by the City contain a
credit to the Artist and a copyright notice substantially in the following form: "Copyright,
Surface Strategy LLC, date" in such a manner and location as shall comply with U.S. Copyright
laws.
F. Any molds, elastomeric liners or stamps used to create the Project shall remain
the property of the Artist, who shall remove the molds/liners from the worksite upon completion
of the Project.
8. Guarantee of Workmanship and Material. For a period of three (3) years from the
date of the City's Letter of Acceptance, the Artist agrees to replace or correct any material
defects in the Project, whether caused by defects in the 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. The Artist shall not be responsible for defects related to installation
work not done by Artist or Artist's subcontractors.
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 color slides depicting
no fewer than a total of six views of the completed Project. Artist agrees to provide continuing
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.
10. Contract Sum. The City shall pay the Artist for the performance of this
Agreement, subject to additions and deletions provided herein, the sum of Twenty Thousand
Dollars ($20,000).
The City agrees to pay the Artist under the following schedule:
A. $10,000 upon full execution of this Agreement;
B. $5,000 upon installation of the Project (Substantial Completion);
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C. $5,000 or any remaining amounts due under this Agreement, upon the City's final
approval and acceptance of the Project as complete (Final Acceptance), and receipt
by the City of satisfactory maintenance instructions as described in Section 9, above,
lien waivers in substantially the form shown in Exhibit `B" 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 Complete. The parties agree that if Artist becomes ill, dies, or is
otherwise unable or unwilling to complete the Project in accordance with the Agreement, the
City shall be entitled to withhold any sums not yet paid to Artist. The City shall be entitled to
use any such sums toward completion of the Project in any manner deemed appropriate by the
City.
12. Proiect as Unique. Artist represents and warrants that the Project is unique, and
agrees that she will not create or be involved in the creation of an identical or substantially
similar Project 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 substantially completed within the time specified by
the Collindale Clubhouse construction Project Manager, this shall be assessed against the Artist,
and the Artist hereby authorizes the City to retain from any monies due the Artist, the sum of
Three Hundred Dollars ($300.00) per day for each and every calendar day after the deadline for
Substantial Completion that 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.
15. Notice. Any notice to be sent pursuant to this Agreement shall be deemed
delivered if mailed to the party at the following address:
If to the Artist:
Surface Strategy, LLC
Carolyn Braaksma, Member
Or Barb McKee, Member
1305 Krameria St., Suite H-168
Denver, CO 80220
(303) 813 0501
4
If to the City:
Ellen Martin
Lincoln Center
417 West Magnolia
Fort Collins, CO 80521
(970)221-6735
and any such notice shall be sent certified or registered mail, return receipt requested, postage
prepaid.
16. Termination/Default.
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 cure 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. Termination shall be effective upon the mailing, by the terminating
party, of written notice of termination to the defaulting party. If the Artist defaults or neglects to
cant' out the work in accordance with this Agreement, the City may elect to make good such
deficiencies and charge the Artist therefore. 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 party's reasonable attorneys fees and costs incurred because of the default.
17. Assienment. It is understood that the City enters into this Agreement based on
the special abilities of the Artist and that this Agreement shall be considered as an agreement for
personal services. Accordingly, the Artist shall neither assign any responsibilities nor delegate
any duties arising under this Agreement without the prior written consent of the City.
18. Artist -- Independent 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 shall 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 the Artist shall be
maintained with the City throughout the contract period.
5
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 her 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. Emplovees. 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 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 she is as fully responsible to the City for the acts and omissions of
her Subcontractors and of persons either directly or indirectly employed by them as she is for the
acts and omissions of persons directly employed by her. 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 contractor.
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. Persons. 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 Property. The Artist shall use her 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 her 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 except the
negligence of other City contractors, until the completion and acceptance of the work. All loss
or damages arising out of the nature of the work to be done under these contract documents, 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 its
officers, agents and employees, from and against all claims, damages, losses, and expenses,
including attorneys fees, arising out of or resulting from the Artist's performance under this
Agreement.
In any and all claims against the City, or any of its 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 Liability. The Artist shall provide, or in lieu of herself 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.
7
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 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 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 from 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 shall be named as additional insured 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 WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
ATTEST-
41�
City Clerk `
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By: Qom+ ` '
ire for of Purchasing and Risk Management
8
APPROVED S T FORM:
Assis ant City Attorney
ARTIST:
ATTEST: SURFACE STRATEGY, LLC
By:6AAk- qX-g
Carolyn Braaksma, Member
Or Barb McKee, Member