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HomeMy WebLinkAboutSURFACE STRATEGY LLC - CONTRACT - CONTRACT - ART CANAL IMPORTATION PONDS AND OUTFALL DRAINAGE IMPROVEMENT PROJECT CIPOCONSTRUCTION AGREEMENT THIS AGREEMENT is made and entered into this � day of k kN , 2008, 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.") RECITALS 1. The City is the owner of the Canal Importation Ponds and Outfall Drainage Improvement Project (the "CIPO Project") currently under construction in the City's Red Fox Meadows Natural Area (the "Project Site"). 2. The City's general contractor on the CIPO Project, under a City Work Order Contract (the "Construction Contract") is Gamey Construction ("Contractor'). 3. The Artist was selected by the City's Art in Public Places Board (the `Board") to work with the CIPO Project team to design artwork for the Project Site, and the City and Artist entered into a Design Consultant Agreement dated August 3, 2007. 4. The Artist's designs for proposed artwork for the Project Site were approved by the Board on December 12, 2007, and on January 15, 2008, the Fort Collins City Council approved the expenditure of Art in Public Places funds to create the artwork proposed by the Artist. NOW, THEREFORE, the parties wish to enter into an agreement for creation of artwork for the Project Site on the following terms and conditions: 1. Scone of the Work. The Artist shall furnish all of the materials and perform all of the work described in the Scope of Work attached hereto as Exhibit "A" and incorporated herein by this reference (the "Art Project"). The Art Project will consist of two phases, identified for purposes of this Agreement as "Phase I" and "Phase II". Phase I consists in general terms of the Artist designing and fabricating hand carved clay prototypes from which Artist will create concrete form liners ("Liners') that Contractor will use to create enhancements for concrete structures within the Project Site. Phase II consists in general terms of the Artist's creating drawings that illustrate the layout of the Liners on each structure, and the Artist being present at the Project Site as needed to consult on and assist with the creation of the concrete structure enhancements. Artist's work must be of high quality, in compliance with generally accepted standards of workmanship, and in conformity with this Agreement. 2. Time of Completion. Artist must commence the work to be performed pursuant to this Agreement upon receipt by Artist of the Notice to Proceed. In order to insure that the Art Project is consistent with its authorized scope and schedule, the Artist must complete Phase I in accordance with the schedule attached as Exhibit `B" and incorporated herein by this reference (the "Schedule"), delivering the Liners designated "CGW" and "CGH no later than April 3, 2008, and with Phase I fully completed by October 1, 2008. Any extensions of the time limits set forth in the Schedule must be agreed upon in writing by the parties hereto. Completion time for Phase II depends on Contractor's schedule for the CIPO Project. The City will provide Artist with the CIPO Project schedule as soon as it is available; however, such schedule is subject to change. Artist agrees to coordinate with Contractor and the City to be at the Project Site for the activities indicated in the Scope of Work. 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 with the City and Contractor. Artist is responsible for any damage occurring to the Liners during shipping, but not for any damage that occurs during unpacking of the Liners. 7. Upon delivery of the Liners, Artist will also provide Contractor with any Artist or Manufacturer instructions or recommendations for unwrapping, use, handling, maintenance, cleaning and storage of the Liners. B. Phase II 1. Based on dimensions to be provided by the Contractor, the Artist will create drawings that clearly illustrate the layout of the Liners on each concrete structure that is included in the Art Project. Those structures and the intended pattem(s) for each are as follows: Headwall/Wingwall 1-Fairbrooke Detention Basin CGH/CGW Headwall/Wingwall 2-Fairbrooke Detention Basin CGW Headwall/Wingwall 1-Kane Detention Basin CGW Headwall/Wingwall 2-Kane Detention Basin CGW Castlerock Outfall HM/WR Headwall/Wingwall 1-Red Fox Meadows Detention Basin CGH/CGW Headwall/Wingwall 2-Red Fox Meadows Detention Basin CGH/CGW Headwall 3- Kane Detention Pond CGW New Mercer Ditch I WR New Mercer Ditch 2 WR 2. Artist must be available to come to the Project Site at reasonable times and upon no less than 72 hours advance notice for the following purposes: (a) to aid in the alignment of the Liners and the matching of patterns for at least the first time a Liner in each pattern is set up for use with the concrete forms; (b) during stripping of Liners; (c) to consult with City and Contractor regarding surface defects, if requested; (d) to inspect completed walls and determine whether further treatment is needed, and consult regarding any final coating, such as paint or graffiti guard; (e) for additional consultation or field work as requested by the City. 3. Artist will provide the appropriate type of headless nails to attach the Liners to the concrete forms. II. CITY RESPONSIBILITIES: The Artist recommends that the City and/or its Contractor meet certain standards and perform certain tasks in order for the concrete casting project to be a success. While the City is not obligated to follow the Artist's recommendations, the City agrees that the Artist will not be responsible or liable for any damage to the Liners or problems or defects in the finished Project that arise from the City's failure to follow these recommendations or to require the Contractor to follow these recommendations, except to the extent the Artist's acts or omissions, or those of the Artist's subcontractors or suppliers, contributed to the problem. 1. City will coordinate with Artist to arrange date and time for delivery of the Liners and verify the number of Liners upon receipt of shipment, including verifying that City has received a complete set of all specified graphics and textures. City is responsible for unpacking the Liners, and reporting to the Artist any damage caused during shipping. 2. Liners should be handled, cleaned and stored so as not to damage the Liner edges and surfaces, and in a manner conforming to any Manufacturer recommendations provided by the Artist. When Liners are not in use, they should be stored front face down and out of direct sunlight, in temperatures below 140 degrees. 3. City should provide a release agent such as Crescent 880 or equal and apply the first coat with a hard bristle brush and reapply by spraying it before every pour. Liners can be cleaned regularly by scrubbing the surface with a stiff bristle scrub brush dipped repeatedly in an approved release agent. Clean and repair surfaces of forms between each pour. Do not reuse split, frayed, delaminated or otherwise damaged Liners. Repair and replace Liners as needed. 4. City will arrange for the Artist to be at the Project Site at specific times as noted under Artist's Obligations, above. The bottom of all Liners will be placed at slab on grade. All panels should rest on the top of the footing. Check alignment of all Liner patterns along the vertical edge using the Manufacturer's markings, and have pattern matches approved by the Artist. The cast in place wall at Taft Bill Road and Drake underpass is the standard of quality for pattern matching. 5. Design and fabricate concrete forms in a manner that will facilitate the placement of concrete and the desired graphics, and to support the Liners and the related accessories with minimum deflection. 6. Comply with any Manufacturer's recommendations provided by Artist for methods of securing Liners to supporting formwork. Remove ties immediately after form removal. Do not remove form ties (1/8" piece of steel) until concrete has set as specified in the Construction Contract. Remove Liners using Manufacturer's recommended method as provided by Artist to reduce risk of damaging surfaces and textural impressions that are part of the Liners. 7. Notify the Artist when the Liners and concrete forms are set up and ready for use the first time per pattern. If problems persist after the first two uses, continue to notify the Artist before all placement of concrete. The City and the Artist shall review the preparation of the graphics and Liners and approve their installation prior to the concrete being placed by the Contractor. The City will seek periodic reviews and feedback from the Artist on compliance with the intent, methodology, use and care of Liners. 8. City should provide a method of sealing formjoints to prevent loss of water from wet concrete based on any Manufacturer's recommendations, take necessary steps to insure no damage to joints or cast surfaces that may occur during the stripping operation or during installation, design the layout of form ties to eliminate location of ties outside of graphic areas, and deposit and consolidate concrete to minimize air and water pockets per standards set forth in the Construction Contract. 9. Artist recommends slump of 4" with final analysis of slump determined by the City based on the design of the concrete mix to achieve a smooth, sculptural, architectural finish while using Liners. Additional water should not be added to achieve higher slumps. The City may determine whether to mix in a retarding agent. Continue pumping concrete to maintain a consistent slump of 4" of the entire batch during pour. 10. Allow concrete to cure as per the Construction Contract and coordinate with the Artist, if needed, to be present on site during stripping of Liners 11. Notify the Artist if any surface defects are found upon removal of the forms, and consult with the Artist on appropriate methods for patching. Contractor will patch in a manner that will blend in with surrounding texture and color to cover surface blemishes. 12. As the job progresses direct any questions related to the integrity of the Liners and attached graphics immediately to the Artist and the City's APP Representative for clarification. 13. The Artist and City will determine, after inspection of each wall, whether further architectural treatment by a decorative concrete sub -contractor will be required. All additional treatments will be the responsibility of the City. The City will coordinate with the Artist if the City needs the Artist to do additional work in the field to apply additional treatment. ATTACHMENT I Approved Designs for Concrete Wall Enhancements Heron Mural Water Ripple Cattail & Grass - Wingwalls X X' Cattail & Grass - Headwall PROJECT SCHEDULE: Red Fox Meadows, PHASE 1 SUBMITTED BY: Barb McKee, Surface Strategy LLC DATE: March 5, 2008 Exhibit'B" PATTERN NAME CARVE DATE DELIVERY OF LINER Cattail Grass Win wall - CGW March 1- March 21, 2008 3-Apr-08 Cattail Grass Headwall - CGH March 1- March 21, 2008 3-A r-08 Water Ripple - WR Aril 14 - May 16,2008 1-Jun-08 Heron Mural - HIM June 9 - Sept 8, 2008 1-Oct-08 EXHIBIT C SAMPLE LIEN WAIVER RELEASE (ARTIST) TO: City of Fort Collins, Colorado (OWNER) FROM: Surface Strategy, LLC (ARTIST) PROJECT: Red Fox Meadows Natural Area Project 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 andfurther 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 , 2008_ Sulfate Strategy, LLC STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this day of , 2008, by: Witness my hand and official seal. My Commission Expires: Notary Public 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. [This paragraph intentionally omitted.] 4. City Representative. The City will designate, prior to commencement of the work, its project representative who shall make, within the scope of their authority as provided by ordinance and in the Capital Project Management Control System, all necessary and proper decisions with reference to the Art Project. All requests for contract interpretations, change orders, or other clarification or instruction shall be directed to the City representative. 5. Changes to Scope of Work. A. Changes by Artist. Any change by Artist from the Art Project specifications and drawings in Exhibit "A" 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 Art 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. Formal Acceptance and Ownership of the Project. No more than thirty (30) days after the delivery of the last Liner(s) to the Project Site, the City will provide a written response to the Artist, informing the same either that; (1) the City agrees that Phase I of the Art Project 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 Phase I as completed ("First Letter of Acceptance"); or (2) Phase I 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 the First Letter of Acceptance will be issued. Phase I of the Project is not finally complete for purposes of this Agreement until the City has issued a First Letter of Acceptance. Upon the City's issuance of a First Letter of Acceptance for Phase I the City will become the sole owner of the Liners, subject to the restrictions in Section TA. below. No more than thirty (30) days after the Artist informs the City that Phase II of the Art Project is fully installed and complete, the City will provide a written response to the Artist, informing the Artist either that (1) the City agrees that Phase 11 is complete consistent with the terms of this Agreement and Exhibit "A" and the City formally accepts Phase II as completed ("Second Letter of Acceptance"); or (2) Phase II 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 the Second Letter of Acceptance will be issued. Phase II of the Project is not finally complete for purposes of this Agreement until the City has issued a Second Letter of Acceptance. Upon the City's issuance of the Second Letter of Acceptance the City wilt become the sole owner of the Art Project and Artist shall have no further obligations under this Agreement except as set forth in paragraphs 7, 9, 12, 16 and 26, below. Ownership of Works Created. A. Assignment of Copyright. The Artist hereby assigns, transfers, and conveys to the City all right, title and interest in and to the Art 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 Art Project, any and all works derived therefrom, the Unites States and worldwide copyrights therein, and any renewals or extensions thereof, and any and all other rights that the Artist now has or to which Artist 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 Art Project publicly, to prepare derivative works of and from the Art Project, to combine the Art Project with other materials, and to otherwise exploit and control the use of the Art Project. As additional consideration for this assignment, the City agrees that if it reuses the Liners it will use them only for other City projects; that the City will not sell, loan or otherwise convey or allow the use of the Liners by any third party without Artist's consent; and that all reproductions of the Art 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 Art Project: the non-exclusive right to make two-dimensional reproductions of the Art Project for any purpose, provided that any such reproduction clearly states the location of the Art 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 Art Project for commercial purposes without the written permission of the City. C. Rights under the Visual Artists' Rights Act. To the extent the uses or removal of the Art 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 Art Project provided by those laws. 9. Guarantee of Workmanship and Material. Artist agrees to replace or correct any material defects in the Liners during the term of the CIPO Project, whether caused by defects in the design, workmanship or materials used in the Liners. 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 Liners or the Art 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, workmanship or materials used or provided by Artist in the Art Project. 9. Maintenance Instructions and Maintenance. At the time the first Liner is delivered to the CIPO Project site, Artist shall provide to the City written instructions for use, maintenance, repair and care of the Liners, including any instructions from the Liner manufacturer. At or before the completion of Phase I, Artist will also provide the City a CD of digital images in JPPG format, depicting each of the clay prototypes/carving process, and Liners. At the end of Phase I1, Artist will provide the City with a second CD of digital images in JPEG format showing at least one frontal view of each concrete structure enhanced by the Art Project. Artist agrees to provide continuing advice to the City regarding the operation, care, maintenance and repair of the Art Project at no charge to the City, unless otherwise agreed to by both parties in writing. 10. Parents. A. For Phase I of this Agreement, the City will pay Artist, subject to additions and deletions provided herein, the sum of One Hundred, Eight Thousand, Seven Hundred and Ninety Dollars (108,790) under the following schedule: (i) $50,000 - upon full execution of this Agreement; (ii) $30,000 - upon proof to the City that the clay prototypes are complete; (iii) $28,790 - or any remaining amounts due under Phase I, following delivery of all the completed Liners to the Project Site, formal acceptance by the City of all the Liners as complete, and receipt by the City of satisfactory maintenance instructions and images of the prototypes and Liners as described in Section 9, above, lien waivers in substantially the form shown in Exhibit "C" from Artist and a comparable lien waiver from any and all Subcontractors that have performed work or provided materials in connection with the Art Project. B. For Phase 11 of this Agreement, the City will pay Artist on an hourly basis at the rate of $50.00 per hour for time spent on Phase II of the Art Project but excluding travel time, and a mileage invoice of $.365 per mile for working trips to Fort Collins up to a maximum of $30 per round trip. The Artist must submit to the APP Coordinator monthly, detailed invoices for payment. C. The total contract sum for the Art Project must not exceed the total sum of One Hundred Eighty -Six Thousand Dollars ($186,000.00). 11. Failure to Complete. If Artist becomes ill, dies, or is otherwise unable or unwilling to complete the Art Project in accordance with the Agreement, any work already done on the Art Project shall be the property of the City. The City shall be entitled to withhold any sums not yet paid to Artist, and may use any such sums toward completion of the Art Project in any manner deemed appropriate by the City. 12. Proiect as Unique. Artist represents and warrants that the Art Project is artistically unique, and agrees not to 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 Art Project is not completed within the time frames 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 Art Project is not completed within the specified time due to delays caused by Artist, this shall be assessed against Artist, and Artist hereby authorizes the City to retain from any monies due the Artist, the sum of Two Hundred Dollars ($200.00) per day for each and every calendar day the Project remains unfinished. In no event shall liquidated damages exceed the sum of Nineteen Thousand Dollars ($19,000.00). 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 sent to the other party by certified or registered mail, return receipt requested and postage prepaid, at the following address: If to the Artist: Surface Strategy, LLC Barbara McKee 1305 Krameria St. Suite H-168 Denver, CO 80220 (303)813-0501 16. Termination/Default. If to the City: Ellen Martin Lincoln Center 417 West Magnolia Fort Collins, CO 80521 (970) 416-2789 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. If Artist defaults or neglects to carry out the work in accordance with this Agreement, the City may elect to make good such deficiencies and charge Artist therefore. 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 itself of any other remedy at law or equity. If either 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. Attorneys Fees. In the event either party defaults under any provision of this Agreement, and the other party commences legal or equitable action against the defaulting party to enforce its rights hereunder, the defaulting party will be liable to the non -defaulting party for the non - defaulting party's reasonable legal fees, including attorney's fees, incurred because of the default. 17. Assignment. 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 -- Independent Agent. The Artist shall perform all work under this Agreement as an independent agent and shall not be considered an agent or employee 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 Artist shall be maintained with the City throughout the contract period. 20. Superintendence. The Artist must provide competent and efficient supervision of all work done pursuant to this Agreement using Artist's best skill and attention, and designate before starting work an authorized representative who will have complete authority to represent and to act for the Artist. 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 to be done pursuant to this Agreement. 21. Employees. 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 Art 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 it is as fully responsible to the City for the acts and omissions of its Subcontractors and of persons either directly or indirectly employed by it as it is for the acts and omissions of persons directly employed by it. 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 Art Project as may be required to complete the Art Project during the time specified in the Agreement and the approved construction schedule(s). 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. Safety. 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 during Phase I of the Art Project. The Artist's safety precautions shall be in compliance with all applicable laws, rules and regulations. Artist shall take all reasonable precautions to protect Artist's safety, the safety of others, the Art Project and City property when working at the Project Site during Phase 11 of the Art Project. 25. Work and Property. The Artist shall use best efforts to at all times safely guard and protect the Art Project, the City's property and adjacent property from damage, injury or loss in connection with the work. 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 Art 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, 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, 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, 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 personally 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 such insurance at the expense of the Artist. 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 employees, if any, to be engaged in work on the Art 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 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. APPROV AS T FORM: cI Assistant City Attorney STATE OF 604e)lfsoZD6� COUNTY OF D441W-k jss. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation �(m� B. O'Neill H, CPPO, FNIGP 71tor of Purchasing and Risk Management ARTIST: Surface Strategy, LLC a Colo ado limited liability company By: ��� lL Barbara McKee Member/Manager Subscribed and sworn to before me this O 4L— day oflG_Z�2008, by: Barbara McKee as, Member/Manager of Surface Strategy, LLC. Witness my hand and official seal. My Commission Expires: E TE M. RICHARDSON ARY PUBLIC OF COLORADO My Commission Expires 02/24/2009 EXHIBIT A SCOPE OF WORK Art in Public Places Component of City of Fort Collins CIPO Project at Red Fox Meadows I. ARTIST'S OBLIGATIONS: Artist will perform all the work and provide all the materials necessary to accomplish the following: A. Phase I 1. Based on Artist's designs as shown in Attachment 1 to this Scope of Work, Artist will carve full size clay prototypes of four designs for concrete wall enhancements in patterns known as "Heron Mural" (HM), "Water Ripple" (WR), "Cattail & Grass — Wing Wall" (CGW) and "Cattail & Grass —Head Wall" (CGH) 2. The proposed dimensions of the prototypes are as follows, however, these sizes are subject to change at the City's request based on changes in the CIPO Project, up until the time that a prototype is completed, with any reasonable costs for changes requested by the City to be covered by the City. ART TREATMENT SIZE TOTAL SQ. FT. Heron Mural (HM) 67.25" h x 19.5 '1 x 1.75" d 128.7 Water Ri ple (WR) 3' 4" h x 5' 1 x .75"d 16.5 _ Cattail & Grass CGW) 6' h x 7.5' 1 x 1.75" d 45 Cattail & Grass CGH - 5' h x 8' 1 x 1.75" d 40 3. Artist will deliver the prototypes to a company with experience in the concrete form liner industry ("Manufacturer") to produce multi -use, urethane rubber liners ("Liners") consistent with the requirements of this Agreement. 4. Artist will oversee and approve the fabrication of one (1) master mold for most patterns, one (1) Liner in the HM pattern, four (4) Liners of the CGW pattern and one (1) liner of the CGH pattern. (The City has not yet determined the number of Liners for the WR pattern. The City intends to issue a change order to add the number and size of WR Liners to the Art Project and authorize payment for such Liners.) 5. Artist will ensure that the Manufacturer uses a system of edge markings to aid in the proper matching of one Liner pattern to the next. 6. Artist will ensure that the completed Liners are appropriately packaged for transportation and arrange for their delivery to the Project Site, coordinating delivery time(s)