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HomeMy WebLinkAboutTR PAUL ACADEMY - CONTRACT - RFP - ART IN PUBLIC PLACES TRANSFORMER CABINETSCONSTRUCTION AGREEMENT THIS AGREEMENT is made and entered into this day of, 2008, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporatio (hereinafter referred to as "the City"), and NORTHERN COLORADO ACADEMY OF ARTS AND KNOWLEDGE, DB/A T. R. PAUL ACADEMY OF ARTS & KNOWLEDGE, a Colorado non- profit corporation (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 Transformer Cabinets Mural Project attached hereto as Exhibit "A" and incorporated herein by this reference (the "Project"), and consisting in general terms of the design and installation of painted murals on transformer cabinet(s). 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 5, 2008. 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 System. In order to insure that the Project is consistent with its authorized scope and schedule, the Artist shall provide an approximate SCHEDULE for the completion of all unit work items covered by the Agreement. . 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. Changes to Scope of Work. A. Changes by Artist. Any change by Artist from the 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 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. Exhibit C — Minor Volunteer Waiver (page 2 of 2) JUVENILE ACKNOWLEDGMENT OF RISK AND CONSENT TO PARTICIPATE I, , the undersigned, state that I am under the age of eighteen (18) years and that I desire to participate in the City of Port Collins Transformer Cabinet Mural Project (the "Project") which participation may include, without limitation, the following risks and hazards: outdoor activities in the public right-of-way, use of tools or equipment, exposure to paint and/or other chemicals and physical exertion, any of which may result in damage to property, bodily injury or death. I am aware of the risks and hazards inherent in my participation in the Project, and recognizing those risks and hazards, I hereby give my consent and approval to my participation in the Project. I voluntarily assert that it is my desire to participate in the Project with full understanding of and having taken into consideration all such risks of loss, damage or injury to me or my property, which may be sustained during or incidental to my participation in the Project. Date: Signature of Juvenile Participant Printed Name of Juvenile Participant 6. Formal Acceptance and Ownership of the Project. 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 terms 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. 7. Ownership of Works Created. A. Assienment of Copyriaht. 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 and worldwide copyrights therein, and any renewals or extensions thereof, and any and all other rights that the Artist now has or to which the 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 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. Rights 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. Maintenance. The City is responsible for maintenance of the completed Project. 9. Contract Sum. The City will pay Artist for the performance of this Contract the sum of Four Hundred Dollars ($400) to be used for materials and supplies for the Project. 10. Failure to Complete. The parties agree that if Artist is 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 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. 11. Proiect as Unique. Artist represents and warrants that the Project is artistically unique. 12. Governing Law. This Agreement shall be governed by the laws of the State of Colorado. 13. 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: Northern Colorado Academy of Arts and Knowledge c/o Dianne Rees 4512 McMurry Fort Collins, CO 80525 (970)313-1615 14. Termination/Default. If to the City: Ellen Martin Lincoln Center 417 West Magnolia Fort Collins, CO 80521 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 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 parry 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. 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. 15. Assignment. This Agreement shall be considered an agreement for personal services. Accordingly, Artist shall neither assign any responsibilities nor delegate any duties arising under this Agreement, except to Artist's volunteers, without the prior written consent of the City. 16. 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 volunteers or employees be subagents of the City. 17. License and Business. The Artist 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. 18. Superintendence. The City and Artist shall keep competent supervisory personnel on the work during its progress. The Artist will designate before starting work an authorized representative who shall have complete authority to represent and to act for the Artist. The Artist shall be responsible for all construction means, methods, techniques, and procedures. The City will assist Artist in coordinating all portions of the work. 19. Volunteers. The Artist may use volunteers to complete the work. Artist is responsible for supervision of its volunteers. If any person acts in a disorderly or improper manner, the City may require Artist to remove such person from the work. The Artist is fully responsible to the City for the acts and omissions of its volunteers. Artist will ensure that each volunteer aged 18 and over signs a liability waiver in the form attached as Exhibit B (1 page), and that each volunteer under the age of 18 and the parent or legal guardian of each volunteer under the age of 18 signs a liability waiver in the form attached as Exhibit C (2 pages), before participating in the Project on City property. 20. 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. 21. Safety. The City will ensure that the transformer cabinets that are the site for the Project are safe to work on. Artist is otherwise responsible for maintaining a safe work area and protecting the safety and welfare of Artist's employees, volunteers, and the general public, including without limitation area residents, motorists, bicyclists, pedestrians, and children from work area hazards. If the City determines that work area safety control devices such as barricades and safety fences are necessary, the City will provide such devices at the City's expense. 22. Work and Property. The Artist shall use best efforts to at all times safely guard the City's property from 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 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. 23. Indemnity. As consideration for participation in the Project, 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 WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, A municipal corporation BY: James B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management TTEST: Wanda Krajice City Clerk APPROVED AS TO fFORM: (� � t;"`"_ Assistant City A "'orney ARTIST: NORTHERN COLORADO ACADEMY OF ARTS AND KNOWLEDGE. A Colorado non-profit corporation P rdent th - oard of Directors LXF-Ii r3i7 "A" Transformer Cabinet Mural Project 2008 Community Group: T.R. Paul Academy of Arts and Knowledge Location: In alley behind Perkins Restaurant at 310 S. College The project that we are doing is a "Hands On" experience, which is our Transformer Cabinet Mural theme. We chose this project because we wanted to bring joy to everyone who passes by. We can have fun with the project, and the student artists who are helping will have a great time with US! It's exciting to draw hands and we are showing that hands are essential for daily interactions. We brain- stormed lots of ideas and as all our creations come together is looks astounding! Top Cabinet behind Perkins East side North Side West Side South Side This cabinet will be painted on all four sides and the tope Our other cabinet theme is, "Teamwork," which is what it will take to complete this task. East Side Cabinet behind the Utilities Building Top North Side West Side This cabinet will be painted on the East side, North side, West side, and on the top. This cabinet has fins on the South side. Exhibit B — Volunteer Waiver — Age 18 and Over RELEASE OF LIABILITY, COVENANT NOT TO SUE AND HOLD HARMLESS In consideration of my participation in the City of Fort Collins Transformer Cabinet Mural Project (hereafter, the "Project"), the undersigned agrees as follows: 1. I understand that my participation in the Project may include, without limitation, the following risks and hazards: outdoor activities in the public right-of-way, use of tools or equipment, exposure to paint and/or other chemicals and physical exertion, any of which may result in damage to property, bodily injury or death. I am aware of the risks and hazards inherent in my participation in the Project, and recognizing those risks and hazards, I wish to participate in the Project. 2. On behalf of myself, my heirs, executors, administrators, personal representatives and assigns, I hereby release the City of Fort Collins, and its officers, employees, volunteers, and agents (collectively, "Releasees") from any and all liability for any and all claims and causes of action which I may hereafter have on account of any and all injuries and/or damage that I may sustain, or any loss of any other sort, arising out of or relating to my participation in or attendance at the Project, or incidental thereto, whether caused by the negligence of the Releasees or any other person. In addition, I covenant and agree not to sue any of the Releasees, and agree to forever hold them and each of them harmless, from any liability, claims, demands, actions, or causes of action whatsoever arising from my participation in the Project, whether such liability, claims, demands, or actions are the result of the negligence of the Releasees or any other person. This waiver, release, discharge, indemnification and hold harmless shall not be applicable to actions constituting gross negligence, recklessness or willful and wanton behavior on the part of the Releasees. However, these exceptions shall not be construed as a waiver of sovereign immunity or the protections of the Colorado Governmental Immunity Act. This release of liability, covenant not to sue, and hold harmless agreement shall be binding upon me, my heirs, executors, administrators, personal representatives, and assigns, and shall inure to the benefit of the Releasees and their successors and assigns. 3. I hereby agree to indemnify the Releasees and to assume and be responsible for all harm, injury or damage caused by me to any of the Releasees, the Releasees' property or equipment, other persons or other personal property used in conjunction with the Project. Signature Printed name Address 1 Date Exhibit C — Minor Volunteer Waiver (page 1 of 2) PARENTAL CONSENT RELEASE OF LIABILITY COVENANT NOT TO SUE AND HOLD HARMLESS In consideration of my child's participation in City of Fort Collins Transformer Cabinet Mural Project (the "Project"), the undersigned agrees as follows: 1. I am the parent or legal guardian of who is under the age of eighteen (18) years. I understand that my child's participation in the Project may include, without limitation, the following risks and hazards: outdoor activities in the public right-of-way, use of tools or equipment, exposure to paint and/or other chemicals and physical exertion, any of which may result in damage to property, bodily injury or death. I am aware of the risks and hazards inherent in my child's participation in the Project, and recognizing those risks and hazards, I hereby give my consent and approval to my child's participation in the Project. 2. On behalf of my child (pursuant to section 13-22-107, Colorado Revised Statutes) and myself, I hereby release the City of Fort Collins, and its officers, employees, volunteers, and agents (collectively, "Releasees") from any and all liability for any and all claims and causes of action which I or my child may hereafter have on account of any and all injuries and/or damage that I or my child may sustain, or any loss of any other sort, arising out of or relating to my child's or my participation in or attendance at the Project, or incidental thereto, whether caused by the negligence of the Releasees or any other person. In addition, on behalf of my child and myself, I covenant and agree not to sue any of the Releasees, and agree to forever hold them and each of them harmless, from any liability, claims, demands, actions, or causes of action whatsoever arising from my child's or my participation in the Project, whether such liability, claims, demands, or actions are the result of the negligence of the Releasees or any other person. This waiver, release, discharge, indemnification and hold harmless shall not be applicable to actions constituting gross negligence, recklessness or willful and wanton behavior on the part of the Releasees. However, these exceptions shall not be construed as a waiver of sovereign immunity or the protections of the Colorado Governmental Immunity Act. This release of liability, covenant not to sue, and hold harmless agreement shall be binding upon me, my child, my heirs, and/or my child's heirs, executors, administrators, personal representatives, and assigns, and shall inure to the benefit of the Releasees and their successors and assigns. 3. I hereby agree to indemnify the Releasees and to assume and be responsible for all harm, injury or damage caused by me or my child to any of the Releasees, the Releasees' property or equipment, other persons or other personal property used in conjunction with the Project. Signature of Parent or Legal Guardian Date Printed name of Parent or Legal Guardian Address