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HomeMy WebLinkAbout461366 LISA J CAMERON ARTWORKS - CONTRACT - AGREEMENT MISC - 9954495 ALLEY IMPROVEMENT PROJECT10/ �20?. 531'01p 36000 AGREEMENT re This AGREEMENT is made and entered into this RAay of July, .2009, by and between THE FORT COLLINS, COLORADO DOWNTOWN DEVELOPMENT AUTHORITY (the "DDA"), a body corporate and politic, and LISA J. CAMERON ("Aftist"). WITNESSETH: WHEREAS, pursuant to C.R.S. 31-25-807 the DDA is empowered to make and enter into all contracts which are necessary or incidental to the exercise of its powers and performance of its duties; WHEREAS, pursuant to the powers to cant' out its statutory mission, including the promotion of economic growth within the boundaries of the DDA (the "DDA District"), the Board of Directors of the DDA ("the Board") has developed and approved a Plan of Development of cultural activities throughout the DDA District, the purpose of which is to foster the intellectual, cultural, physical and spiritual rejuvenation and growth of the DDA District; WHEREAS, the DDA, in cooperation with the City of Fort Collins Art in Public Places Program, requested in spring 2009 proposals from area artists for a DDA Art in Action project calling for the creation, at a publicly -accessible worksite located in Old Town Square, Fort Collins, Colorado ("Old Town'), of artwork to be permanently installed upon completion in or near an alley to be renovated under the DDA's 2009 Alley Improvement Project; WHEREAS, the Board, on July 9, 2009, approved Artist's proposal for the Art in Action project, and authorized the Chairperson of the Board to enter into an agreement with Artist - concerning the creation and installation of the artwork described therein; and WHEREAS, this Agreement fiuthers the statutory mission of the DDA and is consistent with the DDA's adopted Plan of Development. NOW, THEREFORE, in consideration of the mutual promises and other valuable' consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1, Scope of .Services. Artist shall furnish all materials and perform all services necessary to complete the work described in the scope of services attached hereto as Exhibit "A" and incorporated. herein by this reference (the "Scope of Services"), which shall include, but not be limited to, all materials and services described in Artist's proposed budget, attached hereto as Exhibit aB" and incorporated herein' by this reference. The work Artist is to perform under the Scope of Services generally consists of two phases, the first being the completion of two (2) paintings (the "Paintings") at a work site located in Old Town; and the second being integration of the Paintings into a separate artwork, which shall be permanently displayed by the DDA in ,or near a newly renovated downtown alley (the "Artwork"). Art in Action.Agreeinent.01.17.09.Final privileges, but the same shall continue and remain in fiill force and effect. 30. General Indemnification. Artist shall indemnify, hold harmless and defend, at Artist's expense, the DDA, its officers, members, employees and agents from and against any loss, cost, expense or damage, including, but not limited to, the DDA's attorneys' fees, court costs, other legal expenses and judgments, and. against all liability whatsoever claimed by thud parties against the DDA, resulting from, arising out of or in any way connected with this Agreement; except where such loss, costs, expense, damage or liability is the result of the gross negligence of the DDA. In any and all claims against the DDA, or any of its officers, agents or employees by any employee or agent of Artist, or of any Subcontractor, the indemnification. obligation under this Section 30 shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Artist or any subcontractor under workers' compensation laws, disability benefit laws, or other employee benefit laws provided by local, state or federal law. 31. Intellectual Property Indemnification. Artist warrants that the Artwork. is the original work of Artist. Artist shall indemnify, hold harmless and defend, at Artist's expense, the DDA, its officers, members, employees and agents, from and against any loss, cost, expense or damage, including, but not limited to, the DDA's attorneys' fees, court costs, other legal expenses and judgments, and against all liability whatsoever claimed by third parties against the DDA, resulting from, or arising out of or in any way connected with a claim that any work Artist is producing, or has produced, for the DDA pursuant to the Scope of Services, or that the use or reproduction of any such work, infringes on a copyright, trademark, service mark or other intellectual property right belonging to any other person or entity. In the event of such a claim, and if (t) the work is held to be infringing, or (2) the -use of the work is restricted as a result of a claim of infringement, Artist shall, at its expense, either (a) obtain for the DDA the right to continue using the work in an unrestricted manner, or (b) replace or modify the work to be non - infringing and of equivalent utility. In the event that Artist replaces or modifies the work to be non -infringing, it shall reimburse the DDA .for all reasonable expenses for the removal and replacement of, the infringing work. In the event that neither alternative (a) nor (b) is reasonably possible, Artist shall iefimd to the DDA the amounts paid hereunder for the infringing work, and shall reimburse the DDA for all reasonable expenses for the removal and replacement of the infringing work. 32. . Notification of Claim. The DDA shall notify Artist within a reasonable time after receiving notice of any claim for- which any indemnity or hold harmless provision contained herein would apply. So long as Artist promptly and vigorously defends a claim, Artist shall have control over the defense and settlement of any such claim; provided, however, that Artist must obtain a complete discharge of all DDA liability through any such settlement. In the event that Artist fails to promptly and vigorously pursue the defense and/or settlement of such claim, the DDA may, at its option, and in its sole discretion, assume the defense and settlement thereof, and Artist shall be liable for all costs and expenses incurred by the DDA in the pursuit thereof. The DDA shall furnish, at Artist's reasonable request and expense, information and assistance necessary for such defense. 331. Notice. Any notice required or desired to be given by any party to this Agreement Art in Action.Agreenient.67.17.09.Final to shall be in writing and may be. personally delivered; sent by certified mail, return receipt requested; or sent by a nationally recognized receipted overnight delivery service, including the United States Postal Service, United Parcel Service, Federal Express, or Airborne Express, for earliest delivery the next day. Any such notice shall be deemed to have been given and received as follows: when personally delivered to the party to whom it is addressed; when mailed, three delivery (3) days after deposit with the United States Postal Service, postage prepaid; and when by overnight delivery service, one (1) day after deposit in the custody of the delivery service. The addresses for the mailing or delivering of notices shall be as follows: If to Artist: Lisa J. Cameron 4524 Skyline Drive Fort Collins, CO 80526 Lisa@li.sajp?imeron.com lisajcameron.com If to DDA: The Fort Collins, Colorado. Downtown Development Authority ATTN; Anne Aspen, Project Manager 19 Old Town Square, Suite 230 Fort Collins, CO 80524 aaspen@f6goy.com fcgov.com With a copies to: Liley,-Rogers & MarteIl, LLC ATTN: Lucia A. Liley, Esq. 300 S. Howes Street Font Collins, CO 80521 City of Fort Collins Art in Public Places Program ATTN: Ellen Martin 417 W. Magnolia Fort Collins, CO 80521 emartin c@i fcgov.com Notice of a change of address of a patty shall be given in the same manner as all other notices as hereinabove provided. 34. Subject to Annual Appropriation. Any financial obligations of the DDA arising under this Agreement which are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the City Council of the City, in its discretion, and/or the Board of the DDA, in its discretion, as applicable. 35. Successor Entity to the DDA. In the event that the legal existence of the DDA terminates during the term of this Agreement, it is expressly acknowledged by the parties hereto that the City of Fort Collins, Colorado (the "City") is designated the DDA's successor entity, and Art in Action.Agreenicnt.07.17.09.Fina1 t t all rights and obligations of the DDA set forth herein shall thereupon become the rights and obligations of the City. 36. Governing LawNenue/Severability. The laws of the State of Colorado shall govern the execution, construction, interpretation and enforcement of this Agreement. Should either party hereto institute legal suit or action resulting from, arising out of or in any way connected with, this Agreement, it is agreed that venue for such suit or action shall be proper and exclusive in the District Court of Larimer County, Colorado. If any term or provision contained herein is held to be illegal, invalid or unenforceable under local, state or federal law, such team or provision shall be hilly severable. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable term or provision had never comprised a part hereof and the remaining terms and provisions contained herein shall remain in full force and effect and shall riot be affected by the illegal, invalid or unenforceable provision or term or by its severance herefrom. 37. Attorney Fees. fn the event that any litigation is commenced by either party hereto against the other party, which litigation results from arises out. of or is in any way related to this Agreement, the court shall award to the substantially prevailing party all reasonable costs and expenses, including attorneys' fees and other legal expenses. 38. Sole Source Contract. To the extent this Agreement. may be construed to be a `sole source contract' within the meaning of Sections 15 through 17 of Article XXVIII of the Colorado Constitution, and to the extent these constitutional provisions have not been enjoined or invalidated by a court of competent jurisdiction, the requirements and limitations of these constitutional provisions are hereby incorporated into this Agreement. 39, Prohibition Against Employing Illegal Aliens. Pursuant to Colorado Revised Statutes ("C.R.S.") § 8-17.5-101 et seq., Artist represents and agrees that: a. As of the date of execution of this Agreement: i. Artist does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and ii. Artist shall participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 15.6, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program, an employment verification program established pursuant to C.R.S. § 8-17.5- 102(5)(c) C.R.S. and administered by the Colorado Department of Labor and. Employment, Division of Labor, in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Artist shall not knowingly employ or contract with an illegal alien to perform work -tinder this Agreement or knowingly enter into a contract with a subcontractor Art In Action.Agreement.07.17.09.Final 12 who knowingly employs or contracts with an illegal alien to perform work under this Agreement. c, Artist shall not use the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants during the term hereof. d. If Artist obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Artist shall: i. Notify such subcontractor and the DDA within three days that Artist has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and I Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this Section 39 the subcontractor does not cease employing or contracting with the illegal alien; except that Artist shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Artist shall comply with any reasonable request by the Colorado Department of Labor and Employment ( the "Department") made in the .course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in C.R.S. § 8-17.5-102 (5). f. If Artist violates any provision of this Agreement pertaining to the duties imposed by C.R.S § 8-17.5-102 the DDA shall have the right to terminate this Agreement. if this Agreement is so terminated, Artist shall be liable for actual and consequential darnages to the DDA arising out of Artist's violation of C.R.S. § 8-17.5-102. g. The DDA will notify the Office of the Secretary of State if Artist. violates this provision of this Agreement and the DDA terminates the Agreement for such breach. 40. InteQration/Suryival. This contract, which includes this Agreement together with any exhibits incorporated herein by reference, represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations or agreements, whether• written or oral. All conditions, rights, privileges, duties, covenants, warranties and obligations contained herein shall be binding upon, inure to the benefit of, and be enforceable by, the parties, their successors and assigns, and shall remain in full force and effect and shall survive, to the maximum extent allowable by law, the termination or expiration of this Agreement. 41. . Local, State and Federal Law. The meaning of "local, state or.federal law," shall include any and.all relevant common law doctrines, judicial precedent, acts, statutes, ordinances, Art in Action.Agreenient.07.17.09.Fina1 13 rules and regulations, which are now in force or which may hereafter be articulated, rendered, adopted, enacted, amended or promulgated. 42. Sections and Headings. Sections and headings are contained herein for organizational put -poses only and shall not affect the interpretation of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. ATTEST: By: &x BiTl Sear , Secr tary THE FORT COLLINS DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic By: jPattySpe ep%, airperson ARTIST By: (���Quklo Lisa J. Cameron, Artist Art in Action.Agreemeiit.07.17.09.Final 14 EXHIBIT A SCOPE OF SERVICES 2009 ART IN ACTION PROJECT 1. Project OVerview. This project involves the creation of artwork by Artist during the summer months of 2009 at an outdoor and publicly -accessible worksite located in Old Town Square, Fort Collins, Colorado ("Old Town"), and the installation by Artist of the completed artwork in or near an alley selected for renovation tinder the DDA's 2009 Alley Improvement Project. Artist shall perform such work in a manner which provides to visitors to Old Town an opportunity to meaningfully engage and interact with Artist while she is working on such artwork. The materials and process for creating the artwork shall be appropriate for on -site fabrication at an outdoor public venue. 2. The Artwork. Artist shall perform the following services and. deliver to the DDA the following artwork: a. Paintings at Work Site. Artist shall complete two (2) paintings at the Work Site in Old Town ("Work Site being defined and described in Section 3 of the Agreement). One of the paintings shall depict an image substantially the same as that shown in the picture attached hereto as Attachment "Al" and incorporated herein by -this reference (hereinafter the "Flower Painting"). The other painting shall depict an image substantially the same as that shown in the picture attached hereto as Attachment "Bl" and incorporated herein by this reference (hereinafter the "Pine Cone Painting"). (The Flower Painting and Pine Cone Painting shall be referred to hereinafter collectively as the "Paintings.") Each Painting shall use as a painting surface five (5) steel panels placed side -by -side to form a single surface measuring eight feet (81) in Iength by ten feet (10') in width, with each individual panel measuring eight feet (81) in length by two feet (2') in width. b. Completion and Installation of Artwork. Upon completion of Section 2(a) above, Artist shall integrate the Paintings into a separate artwork, and shall install such artwork when completed at a location to be determined by the DDA (hereinafter the "Artwork"). The Artwork shall be capable of being oriented in a manner such that one side of the Artwork has an appearance substantially the same as that shown in the picture attached hereto as Attachment 1A2" and incorporated herein by this reference; and the opposite side of the Artwork has an appearance substantially the same as that shown in the picture attached hereto as Attachment 11B2" and incorporated herein by Art in Aclion.Scopc of Services.FIna1.07.14.09 this reference. To complete the Artwork, Artist shall combine, using metal framework welded to the back of each panel, the five (5) panels which comprise the Pine Cone Painting with the five (5) panels which.comprise the Flower Painting to form five (5) two-sided paintings; in each instance one (1) Flower Painting panel being joined with one (1) Pine Cone Painting panel. When combined, the painted side of each panel shall face outward in a direction opposite that of the panel with which it is attached. Artist shall then complete the Artwork by affixing each of the five (5) two-sided paintings to individual stone bases (the "Bases"). As the final goal of this project is the installation of the Artwork in or near a newly renovated .downtown alley, the design of the Bases shall be compatible with 2009 Downtown Alley Improvement Project designs. Artist shall consult on the design of the Bases with Russell+Mills Studios, lead design consultant on the 2009 Downtown Alley Improvement Project ("Russell+ Mills"). Final design of the Bases shall be subject to approval by the DDA Representative ("DDA Representative" being defined and described in Section 9 of the Agreement), who shall have the right, in her sole discretion, to reject any design of Artist which Russell+Mills reasonably and in good faith determines to be incompatible, visually or otherwise, with said alley improvement designs. Artist shall install the Artwork in a manner and at a location to be determined by the DDA, c. Si egn d :Engineering Drawing and Lien Waivers. Prior to or at the time of Notice of Confirmation ("Notice of Confirmation" being defined and described in Section 6(C) of the Agreement), Artist shall provide to the DDA a signed engineering drawing of the Artwork, indicating that the Artwork possesses sufficient structural integrity to be safely displayed at a public venue and to be capable of withstanding anticipated environmental and other foreseeable conditions, including, but not limited to, wind, snow and human interaction. Artist shall further provide to the DDA prior to or at the time of Notice of Confirmation a lien waiver executed by Artist, which lien waiver shall be in a form reasonably acceptable to the DDA. If subcontractors are used by Alittst, the DDA may, at its sole discretion, require the submission by Artist of lien waivers, in a form reasonably acceptable to the DDA, executed by such subcontractors. 3. DDA's Intended Use of the Artwork. A►list understands that the DDA intends to permanently install the Artwork at an outdoor location open to the general public. The Artwork Will be exposed to harmful elements, including, but not be limited to, extreme temperature variations, wind, snow, rain, hail, ultraviolet radiation, graffiti, vandalism and other forms of human interaction. Accordingly, Artist shall design, construct and install the Artwork in a manner safe, suitable and fit for this particular and intended purpose, in accordance with generally acceptable standards and practices associated with similar types of work. Art in Action.Scope of Services.Final.0T.14.09 2 "Exhibit B" Art in Action Budget Concept and Design by Lisa Cameron' June of 2009 Insurance $1,770 Engineering $1,200 Materials Frames 2" x 2" steel square tubing $700 4' x 8' steel sheeting $1,300 5 steel weld plate Epoxy Cement, all thread, bolts $200 Chem Kronic Primer; latex, Genesis Gloss Anti Graffiti $1,600 Powder coating $700 Lighting Top Mount. $1,400 (Electric provided at site) Bases Buff sandstone, cored and delivery $2,400 Site Disposables $600 carts --moving panels/paint, shelter, tarps, buckets, wood display, barrier Fabrication Welding, Prep & Fabrication. .$7,400 Transportation $600 Onsite entertainment painting -2) 8' x 10" paintings $13,000 Installation Crane and labor $2,500 Paint touch up $300 Plaque $400 Concept, Design and Production I5% of total budget $6,750 Contingency $2,180 Total Expenditure $45,000 (not to exceed $45,000 cash value) O O N C o co v 2 �Q Q co !cam �� IQ Q ,c '3Ab 3031100 ® ° ' "Exhibit D" f 1 2 3 4 ? 5 6 7 8 9 10 11 12 13 14 15 16 17 18 X X t r X. X. 10am . 12:00 10am 10am to to to 19 4p}„ 20 bptt 5] of -22 4pm 23 24 25 X X. X..' x. 10am 10am ` 10am to to to 26 4pm 27 4pm 28 4pni 29 5p}ii 30 31 RID h a } - t 1 • gp s u F- i ; ,71 i c� � • r �; • 1 - y _ i i1 1 xl �.ti� :7 •I 1 -� it Z%}tSJ a .-✓S, 45t.>r � Sy � � f ? � � x �} t s �, �� :/ a' 7 r t� J F a s1: '* � � :r' y '' --stn �- �;. 2. Term of Apreement. This Agreement shall commence upon execution by the parties hereto and shall continue until the DDA's issuance to Artist of the Letter of Acceptance ("Letter of Acceptance" being hereinafter defined and described in Section 10 hereof). 3. Work Site. The Scope of Services shall be performed at the site located in Old Town designated as the "North Site" on the drawing attached hereto as Exhibit "C" and incorporated herein by this reference (the "Work Site"); provided, however, that the DDA shall have the right at any time during the term hereof, and at its sole discretion, to relocate the Work Site to any other site within the boundaries of the DDA district by providing written notice of such Work Site relocation to Artist. 4. Notification to Proceed. Upon the happening of all of the following events, the DDA shall send to Artist notice indicating that it may commence with the Scope of Services at the Work Site ("Notice to Proceed'): A. Execution of this Agreement; B. Receipt by the DDA of certificates of insurance which demonstrate that the requirements of Section 23 hereof have been met; and D. Approval by the DDA of all subcontractors to be used by Artist'at the Work Site. 5. Work Schedule. Artist shall work on the Paintings at the Work Site on the dates and at the times described in the schedule attached hereto as Exhibit "D" and incorporated herein by this reference (the "Work Schedule"). The DDA shall permit reasonable deviations from the Work Schedule in the event that conditions beyond Artist's control prevent Artist from performing on such days. Beginning with the DDA's issuance to Artist of Notice to Proceed and continuing until completion of the Paintings, Artist shall work on the Paintings at the Work Site a minimum of twenty (25) hours per week, except as may be provided in the Work Schedule, or is later agreed upon in writing by the parties hereto. 6. , Time of Comnletion.of the Scope of Services. Artist shall complete the Scope of Services in accordance with the following: A. Preparation for. Performance at the Work Site. Upon execution of this Agreement, Artist shalt commence with purchasing supplies and materials necessary for performance of the Scope of Services. Artist shall commence with performing the Scope of Services at the Work Site not later than two (2) weeks from the date of execution hereof; provided, however, that Artist shall not commence work at the Work Site until it has received Notice to Proceed from the DDA. B. Paintings at Work Site. Upon receipt of Notice to Proceed, Artist shall commence work on the Paintings at the Work Site. Artist agrees to use best efforts to complete the Paintings on or about October 1, 2009, but shall in any Art in Action.Agreeroent.07.17.09.Fina1 2 AW,111111 1 x x x' x •` 1 X x x X i 1 am 11 am 4pm 10arn to to to to 2 3 4 5 6p1„ 6 pm 7 9prti 6 8 4pm x. _ X x New X-. New 12pn� • 12pm . ; 12pm 11 am West _ West to to to to Fest Fest 9 10 6pm 11 6pm 12 6pm 13 .6pm 14 15 New x X i e Grreek x :.G A ree `• •` West 10am 10am 10am 10am Festival Festival Fest to to to to 16 17 5pm 18 4pm 49 4pm 20 4pm 21 22 X... x X..` x F 11pm _' 12pni. 12pm 12pm s .X. € 12pm to .to to to to 23 6ptn 24 G0m 25 6pm 26 6pn1 27 28 29 4pm b ... .5^ _ am . . . t3.. ...... { 'f�.RYll '- ., t ) i r'i I Y �J'• ,-� Yam:-: _ t..' ON :t -# 4 A � t r j 1 inS,.y �'` ENT.; V � i � j � 7 �-•- t. Q S:. '7 ? .tl�r #., F�3(.i? -x4.c'2. r X X 10am x 10am X 4poi ; to to to 1 2 5pm 3 5pm 4 .9pm 5 x. ? loam x loam x loam x 10am to to to to 6 7 8 4pm 9 4pni 10 4pm 11 4pm 12 ........ .... X-` loam X loam x loam x loam to to to to 13 4pm 14 4pm 15 4pm 16 17: 18 19 5pm x 10am x loam x 10am x. ` loam to to to to 20 4pni 21 22 23 24 4pm 25 4pm Z6 4pm " :X loam x , ` loam . X 1 10am X...= loam to. to to to 27 .40n, 28 4pm 29 4pnj 30 4pm OEM ... _•r.� E s .. _ _.. .... � J. 1 .E5 vS y _4 fiAp v.� 1 x S _... . ... .......zl - .T .._. ..�\ .. 2 .... } utL " yYr Y y 5 cr �,� cv 9'...",�`v� } r I �sfi 4 �.•`� YY �" L 3 a k - ,� �` a - # 4 M'. �;„ y��,�a �-a,.�,�,ys��*� k �. r Z ���.''� t r k-,r o "'7 'arc, "; " � a,,f���^'� � t r� 1•• '*�-� yS�, 's�7 � �W px � q •. r .tl �, 1 + A S G• �`jiY 1 kAl Y � 77 o T + •:: h J A a O .. •Y1dr. s � • v 1 f_t M� rr.� �v�' :� 1 d , �t � ^ r �7 i !� �' : r r , No Text Attachment 62 — PineConeModel.jpg event complete the Paintings not later than October 31, 2009. If Artist has not completed the Painting by October 1, 2009, the parties hereto shall negotiate in good faith to establish a work schedule for the final weeks of Artist's performance. Upon completion of the Paintings, Artist shall place the Paintings in a storage facility to be provided by the DDA, at the DDA's expense, until commencement of the completion and installation phase, discussed in Section 6(c) below, in or around March 2010. In the event that conditions beyond Artist's control prevent Artist from completing performance by the above -referenced deadline, the DDA shall grant to Artist a reasonable amount of time with which to complete performance. Absent such circumstances, any extension to such deadline must be agreed upon in writing by the parties hereto. C. Completion and Installation of Artwork. In or around March 2010, Artist shall complete the Artwork and install it at the location selected by the DDA, in its sole discretion, for permanent display (the "Installation Site'). The DDA shall - have the right to determine, in its sole discretion, the specific date that Artist shall begin completion of the Artwork (the "Completion Begin Date"). The DDA shall notify Artist in writing of such determination at least thirty (30) days prior to the Completion Begin Date indicated in such notice, which notice shall describe the location of the Installation Site. Artist shall'act in good faith and use best efforts to comply with the Completion Begin Date. Upon receipt of such notice, Artist shall within seven (7) days thereafter send notice to the DDA confumiing its ability to begin performance on such date ("Notice of Confirmation"), which notice :requirement may. be complied through email addressed to the DDA Representative. Artist shall include with such notice the signed engineering report and the lien waivers required by Section 2(C) of the Scope of Services to be submitted to the DDA, if not previously provided to the DDA by Artist. Artist shall complete and install the Artwork within a reasonable amount of time after the Completion Begin Date. 7. Artist's Compensation. In consideration of the services to be performed by Artist hereunder, the DDA agrees to pay to. Artist the sum of Forty Five Thousand Dollars. ,($45,000.00), which sum is the maximum amount the DDA shall pay to Artist pursuant to this. Agreement. The DDA shall pay to Artist such sum in. accordance with the following: A. Thirteen Thou sand:'Eight'.Hundred. and,Thirty-Six Dollars ($13 836 00) upon execution ofthts Agreement. upon DDA, ;that one Patting described in the S ;completed in accordance with the;te►'ins therein C. Seven Thousand,...Eight .Hundred and Seventy One Dollars ($7;87100) upon Ad to Aclion.Agreenien1.07.17.09.Final receipt by the: DDA of notice h,om' Aittst and: subsequent verification :by thee'` D ;.Eight Thousand One. Hundred and Thtrty Six Dollars ($813600) upon receipt by the DDA of Notice of Confitmatian E. Seven Thousand Two;Hundred andEtghty,-Six Dollats.($7,28600) upon the pDA's`issuance fa Artist of the Letter of Acceptance, :. The DDA shall make such payments to Artist within fifteen (15) days of becoming due. 8. Changes to Scope of Services. The DDA shall have the right during the term hereof to request changes to the design, materials or construction of the Paintings or the Artwork 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 DDA. Artist shall not deviate from the specifications and drawings contained in the Scope of Services without the prior written consent of the DDA. 9, DDA Representative/Artist's Reporting Requirement. The DDA shall designate a project representative to handle all matters related to this Agreement (hereinafter "DDA Representative% which matters shall include, but not be limited to, requests for contract interpretations, change orders, or other clarification or instruction. During the term hereof, Artist shall deliver to the DDA Representative monthly written reports detailing the status of Artist's work with respect to the Scope of Services and other material information. The first monthly report shall be due thirty (30) days after execution hereof The DDA Representative shall have the right to determine, in its sole discretion, the due dates for subsequent monthly reports, This monthly reporting requirement may be complied with by delivering such written reports to the DDA Representative via email attachment. 10. Formal Acceptance and Ownership of the.Project. Artist shall provide to the DDA written notice when it completes final installation of the Artwork ("Notice of Completion'), Not -more than thirty (30) days after receipt of such. notice, the DDA shall inspect the Artwork and provide. a written response to Artist, informing her that: (1) the DDA finds that the Scope of Services has been completed in a manner consistent with the terms of this Agreement and it formally accepts the Artwork (hereinafter the "Letter of Acceptance"); or (2) the DDA finds that the Scope of Services has not been completed in a manner consistent with this Agreement and the Artwork has been rejected by the DDA because of inconsistencies, defects or other issues, which Artist must then cure, at her own expense, within a reasonable amount of time considering the nature of such inconsistencies, defects or issues. Under no circumstance shall the DDA be obligated to issue to Artist the Letter of Acceptance until all of the following have occurred: (1) Artist has completed and installed the Artwork; (2) the Artwork has been inspected and approved by the DDA; and (3) the DDA is in receipt of the maintenance instructions required by Section 13 hereof and the engineering report and all lien waivers Art in Action.Agreenunt.07.17.09.Final required to be submitted by Artist under Section 2(C) of the Scope of Services. 11.. Guarantee of Workmanship and Material. All work performed hereunder, including design, workmanship and materials, shall be of high quality, and such work shall be consistent with generally accepted standards applicable to the types of work to be performed pursuant to the Scope of Services, shall be completed in accordance with the terms of this Agreement, and shall be safe, suitable and fit for its intended purpose. Artist warrants the Artwork against any and all defects for a period of three (3) years, beginning on the date of the DDAs issuance of the Letter of Acceptance (the "Warranty"). Artist shall replace or correct any defects in the Artwork, whether such defects result from defective design, workmanship or materials. If Artist fails to replace or correct any such defects, or to make arrangements to do so, within a reasonable amount of time considering the nature of the defect, the DDA shall have the right to arrange for such replacement or correction, and Artist shall reimburse the DDA for the costs of any such replacement or correction. During the Warranty, and continuing thereafter for the life of the Artwork. Artist shall attempt in good faith to honor all reasonable requests by the DDA to repair damage caused to the Artwork by vandalism, collision or environmental damage, and the DDA shall pay Artist reasonable amount for labor and material costs for such repairs, except to the extent such damage occurs within the Warranty and results from defects in design, workmanship or materials, in which case Artist shall be responsible for the cost of such repairs. . 12. Property Rights in and to.the Artwork. A. Assignment of Rights to the DDA. Artist hereby assigns, transfers, and conveys to the DDA all right, title and interest in and .to any and all work created pursuant to the Scope of Services, together with the copyright therein and the right to secure copyright registration therefor, 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, components and elements of the Paintings and the Mwork, 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 Artist now has or to which Artist may become entitled to under local, state or federal laws, or foreign laws, including, but not limited to, the following rights: to reproduce, publish and display the Paintings and/or the Artwork publicly, to prepare derivative works of and from the Paintings and/or the Artwork, to combine the Paintings and/or the Artwork with other materials, and to otherwise exploit and control the use of the Paintings and the Artwork. B. License Back to Artist. The DDA hereby grants to Artist the following license in and to the Paintings and the Artwork: an irrevocable, non-exclusive, non -assignable, royalty -free license to make two-dimensional reproductions of the Paintings or the Artwork for any purpose, provided that any such reproduction clearly states the location where the Artwork is then being displayed, acknowledges the DDA and the Art in Public Places Program, and Art in Action.Agreement.07.17.09.Fina1 contains a copyright notice. With the exception of publicity pieces, Artist shall not knowingly permit any other person or entity to reproduce, regardless of the form, the Paintings or the Artwork for any commercial purpose whatsoever without the prior written consent of the DDA. C. Waiver of Rights by Artist. To the extent the use or removal of the Paintings or the Artwork affects any rights which Artist may have under local, state or federal law, including, by way of example and not of limitation, the 1990 Visual Artists' Rights Act, Artist hereby knowingly waives any and all such rights, including rights to preservation of the ,Paintings and the Artwork, which are provided by such laws. 13. Maintenance Instructions and Maintenance Consultation. Prior to, or at the time of Notice of Completion by Artist, Artist shall provide to the DDA detailed written instructions concerning the use, care, maintenance and repair of the Artwork. Artist shall further provide to the DDA a compact disc containing high -quality digital images; stored in JPEG format, depicting no fewer than eight distinct views of the Artwork. For the life of the Artwork, Artist agrees to provide continuing advice to the DDA regarding the use, care, maintenance and repair of the Project at no charge to the DDA, unless otherwise agreed to in. writing by the parties hereto. 14. Termination. Notwithstanding any time periods contained.herein, the.DDA shall have the right to terminate this Agreement at any time without cause by providing written notice of termination to Artist. Such notice shall be delivered at least ten (10) days prior to the termination date contained in said notice. In the event of any such termination by the DDA, Artist shall be paid for services rendered and materials purchased prior to the date of termination, subject only to the satisfactory performance of Artist's duties and obligations hereunder. Any payments received by Artist from the DDA prior to termination shall be credited against the amount due. The DDA shall make payment within fifteen (15) days of its receipt of an invoice fiom Artist, which invoice describes in detail, and provides supporting documentation for, all services rendered and materials purchased prior to the date of termination. In the event of such termination by the DDA, Artist's sole right and remedy shall be payment for services rendered and materials purchased prior to the effective date of termination. 1.5. Failure to Complete. In the event that Artist becomes ill, dies or is otherwise unable or unwilling to complete the AiUvork in accordance with the terms hereof, the DDA shall own any and all right, title and interest to in an to the work, the extent of such rights being described in Section 12 hereof, completed pursuant to the Scope of Services prior to the effective date of.such inability or unwillingness to perform. The DDA shall be entitled to withhold any sums not yet paid to Artist, and may use any such sums toward completion of the Scope of Services in any manner the DDA, in its sole discretion, deems appropriate. 16. Independent Contractor. The services Artist will be performing' hereunder are those of an independent contractor, and not of an agent or employee of the DDA, nor shall Artist's employees, agents or subcontractors be considered employees or agents of the DDA. The DDA shall not be responsible for withholding any portion of Artist's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any Art in Aclion,Agrement.07.17.09.Final other purpose. 17. License and Business Requirements. Artist shall hold, in Artist's name, all necessary licenses to perform the Scope of Services, and shall have full authority to do such business in the State of Colorado. Artist shall at all times during the term hereof have a designated place of business for making and accepting communications with or from the DDA. 18. Storage of Paintings and Supervision at Work Site. At the conclusion of each work day, Artist shall store the Paintings in the storage facility to be provided by the DDA, at the DDA's expense (the "Storage Facility"). Artist shall be present at the Work Site, or cause competent .supervisory personnel to be present, any time the Paintings, or supplies, tools, equipment or any other materials used for the furtherance of the Scope of Services, are located on or about the Work Site; the same shall also be required of Artist with respect to the Installation Site. 19. Employees, Agents and Subcontractors. In performing hereunder, Artist shall employ and contract with only those persons or entities that are properly skilled, accredited or certified, as applicable, to safely and competently perform work of the type and scope which they will be performing; 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 Site or Installation Site. It is understood by the parties that Artist may use subcontractors for the transportation and/or installation of the Paintings or the Artwork, under the Artist's direction and supervision. Artist shall, within seven (7) days of execution of this Agreement, submit to the DDA the names of all subcontractors it is proposing to use to assist with the completion of the Paintings at the Work Site; and Artist shall, within seven (7) of issuing Notice of Confirmation to the DDA, submit to the DDA the names of all subcontractors it is proposing to Ilse to assist with installation of the Artwork at the Installation Site. The DDA shall have seven (7) business days after receipt of such notices to object to any subcontractors proposed by Artist. Artist shall not employ any subcontractors that the DDA objects to as lacking capability to safely and competently perform work of the type and scope anticipated. Artist agrees that it shall be firlly responsible to the DDA for the acts and omissions of its employees and agents, and for those of its subcontractors, and any persons either directly or indirectly employed by any subcontractor, to the same degree as acts and omissions of persons it directly employs. Nothing contained in this Agreement shall create any contractual relation between the DDA and any subcontractor, except to the extent the DDA is indemnified or insured through requirements upon said subcontractor. N. Safety at Work Site and Installation Site. Artist shall be solely responsible for maintaining a safe Work Site and Installation Site, and for protecting from work area hazards Artist's employees, agents, subcontractors, and the general public, including, by way of example and without limitation, admirers of the Artwork, passers-by, area residents and tenants, motorists, bicyclists, pedestrians and children. Artist shall provide and maintain during the term hereof any and all safety measures or precautions required by local, state or federal law, 'in addition to those measures and precautions which, according to accepted practice, are commonly provided and maintained for similar types or work. Art In Action.Agrcement.47:17.09.Final 21. Protection of Artwork. Artist shall protect the Paintings and the Artwork and any all supplies and materials necessary for completion of the Scope of Set -vices from damage due to the nature of the work, the actions of its employees, agents or subcontractors, or from any foreseeable cause whatsoever, and Artist shall be liable for any and all losses or damages arising therefrom, or from any unforeseen obstruction or defects .which may be encountered in the prosecution of the Scope of Services, or from the action of the elements, until the DDA has issued to Artist the Letter of Acceptance; except if such damage occurs to the Paintings while they are located in the Storage Facility; which damage is not caused by any act or omission of Artist, her employees, agents or subcontractors. .22. Protection of Property. In prosecuting the Scope of Services, Artist shall at all times use best efforts to safeguard and protect from image the Work Site, the Installation Site and all other property, whether real or personal, involved with or in proximity to, the.fabrication of the Paintings at the Worksite or the installation of the Artwork at the Installation Site. Artist shall be liable for any and all such damages which result from, arise out of or are in any way connected with this Agreement, and are caused by the act or omission of Artist itself, or those of its employees, agents or subcontractors. 23. Insurance Requirements. Artist shall, at its own expense, provide and maintain. throughout the term hereof the following insurance coverage, and shall require the same of all subcontractors providing services in connection with this Agreement: A. Employee Insurance. Workers' Compensation Insurance in accordance with the laws of the State of Colorado, and Employer's Liability Insurance in an amount not less than $400,000 for each occurrence, for all employees to be engaged in work on the Scope of Services, and any other employees' insurance which may be required by local, state or federal law. B. General Liability Insurance. Commercial general liability insurance as will provide coverage for claims for damages for bodily injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from performance of work under this Agreement. Amount of insurance to be provided under such policies shall be not less than One Million Dollars ($1,000,000.00) combined single limits for bodily injury and property damage. The DDA shall be named as additional insured on such policies, and such policies shall contain a standard cross -liability endorsement. Prior to commencing work hereunder, Artist shall furnish the DDA 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 shall not be canceled or materially altered, without ten (10) days' prior written notice to the Foil Collins, Colorado, Downtown Development Authority." Art in Action.Agreement.07.17.09.Final C. Subcontractor ,Liability. In the event that any work performed hereunder is performed by a subcontractor, Artist shall be responsible for any and all liability resulting from, arising out of or in any way connected to the work performed under this Agreement by the subcontractor, which liability is not covered by such subcontractor's insurance. D. Breach of Insurance Requirements. In the event Artist breaches any provision of this Section 23, the DDA may, at its option, and in its sole discretion, take out and maintain throughout the term hereof any insurance policy or policies necessary to meet the insurance requirements contained herein, and the cost of such policy or policies shall be deducted from payments owed to Artist. 24. Modification of Agreement. No subsequent.modification of any term or provision of this Agreement shall be valid, binding upon the parties or enforceable unless made in writing and signed by the parties hereto. 25. No Assianment. The parties hereto acknowledge that the DDA enters into this Agreement based upon the unique qualifications and abilities of Artist. Accordingly, Artist shall not have the right, power or authority to assign any responsibilities nor delegate any duties arising hereunder to any other individual or entity, except as is expressly authorized herein, Without the prior written consent of the DDA Representative.' 26, Default. Each and every term and provision contained herein shall be deemed to be a material element of this Agreement. In the event either party hereto should fail or refuse to perform in accordance with any term or provision of this Agreement, such party may be declared in default. 27. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a .period of five (5) days within which to cure said default. In the event the default remains.uncured after the five (5) day period, the party declaring default may elect to: (a) terminate this Agreement .and seek damages; or (b) avail itself of any other remedy at law or equity. 28, Acceptance Not Waiver. The DDA's approval of preliminary drawings, designs, plans, specifications, reports, incidental work or any other materials furnished hereunder shall not in any way relieve Artist of its responsibilities hereunder to produce quality work. The DDA's approval or acceptance of, or payment for, Artist's performance of the Scope of Services shall not be construed to. operate as a waiver of any rights or benefits provided to the DDA hereunder. 29. 'Limitation on Waiver of Breach. The failure of either panty hereto to insist, in any one instance or more, upon the performance of any of the ditties, obligations, covenants or conditions of this Agreement, or to exercise any right or privilege herein conferred, shall not be construed as thereafter waiving any such duties, obligations, covenants, conditions, rights. -,or Art in Action.Agceemcnt.07.17.09.Final