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HomeMy WebLinkAboutMICHAEL ALLISON - CONTRACT - BID - 7022 APP 2009 TRANSFORMER CABINET MURAL PROJECTCONSTRUCTION AGREEMENT THIS AGREEMENT is made and entered into this to, day of , 2009, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter referred to as "the City"), and Michael Allison (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, construction, signage and installation of painted murals on one transformer cabinet. 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 August 24, 2009. 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. 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. 5. 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. 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, and artist shall have no further obligations hereunder, except as set forth in paragraphs 8, 9, 12, and 26. 7. 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 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' Ri is 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. Guarantee of Workmanship 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, workmanship or materials used in the Project. 9. Maintenance. Artist shall provide to the City a disk of digital images depicting no fewer than a total of eight 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 Artist for the performance of this Contract, subject to additions and deletions provided herein, the sum of Two Thousand, Four Hundred and Sixty -Five Dollars ($2,465). The City agrees to pay the Artist under the following schedule: A. $985. upon full execution of this Agreement; B. $1480. 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 "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, 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. 12. Project as Unique. Artist represents and warrants that the 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 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, this shall be assessed against Artist, and Artist hereby authorizes the City to retain from any monies due the Artist, the sum of Fifty Dollars ($50.00) per day for each and every calendar day the Project remains unfinished. In no event shall liquidated damages exceed Four Hundred Dollars ($400.00). 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: Michael Allison 1624 S. Whitcomb St. Fort Collins, CO 80526 (970) 472-5273 16. 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 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 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. D. Attorneys. 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 legal fees, including attorney's fees, incurred because of the default. 17. Assi mom. 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 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 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 Artist's 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. 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 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 is as fully responsible to the City for the acts and omissions of Artist's Subcontractors and of persons either directly or indirectly employed by them as for the acts and omissions of persons directly employed by Artist. 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. 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, 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 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 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 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, at the expense of the Artist, such insurance. The Artist shall not commence work under this Agreement until all the insurance required hereunder 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 Artist's 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 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. F0F2T .. SEAL _ ,TTEST LIM Wanda Kraj City Clerk APPROVED AS TO FORM: (-�u 101 Assistant Ci y Attorney STATE OF COLORADO ) )ss. COUNTY OF I-a-r-: mer' ) THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation (� BY: Ja es . O'Neill II, CPPO, FNIGP Dire or of Purchasing and Risk Management ARTIST: Michael Allison Subscribed and sworn to before me this 6V41 day of ' 2009, by: /17;cAaee� l 4//f Sm-1 Witness my hand and official seal. My Commission Expires: Notary Pultic Transformer Cabinet Mural Project 2009 Artist: Michael Allison Location: behind 824 S. College Ave. My artwork is done to express the beauty and intrigue found through interconnectedness in the world. My transformer cabinet mural reveals a story about relationships. The objects in the mural will provide a space for contemplating life and energy as it exists inside and outside the elements of our experience. Artist will paint all sides and tops of the 3 cabinets. Design can be simplified on the tighter sides between the cabinets, however design needs to be busy not to allow space for graffiti. EXHIBIT B SAMPLE LIEN WAIVER RELEASE (ARTIST) TO: City of Fort Collins, Colorado (OWNER) FROM: Michael Allison (ARTIST) PROJECT: Transformer Cabinets Mural 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, famished, 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 ARTIST's 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 12009. Michael Allison STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this day of , 2009, by: Witness my hand and official seal. My Commission Expires: Notary Public