HomeMy WebLinkAbout432538 JAMES R LYNSWILER - CONTRACT - RFP - 7112 ART IN PUBLIC PLACES ART IN ACTIONov,q3e)V�
f op-0 9 o/ I COPY
AGREEMENT
This AGREEMENT is made and entered into this day of un�, 2010, by and
between THE FORT COLLINS, COLORADO DOWNTOWN DEVELOPMENT AUTHORITY
(the "DDA"), a body corporate and politic, and James Lynxwiler ("the Artist").
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 carry 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 February 2010 proposals from area the 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
within the DDA's boundaries;
WHEREAS, the Board, on May 13, 2010, approved the Artist's proposal for the Art in
Action project, and authorized the Chairperson of the Board to enter into an agreement with'the
Artist concerning the creation and installation of the artwork described therein; and
WHEREAS, this Agreement furthers 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. Scone of Services. -The 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 the Artist's proposed budget, attached
hereto as Exhibit "B" and incorporated herein by this reference. The work the Artist is to
perform under the Scope of Services generally consists of three phases, the first being -the
completion of one (1) sculpture (the "Artwork") at a work site located in Old Town; the second
phase being the completion of one (1) scuIpture offsite, and the third being integration of the
Artwork into a permanent DDA display within the DDA's boundaries.
2. Term of Agreement. This Agreement shall commence upon execution by the
Art in Action.Agreement.-James Lynxwilet
7.1.6. The irrigation system must be designed to provide full coverage and matched
precipitation rates. Lateral piping shall be sized based on flow demands
(gpm's); velocities shall not exceed five and a half (5.5) feet per second.
Principles of xeriscape shall be utilized in the design of the irrigation system.
Some design considerations will include: shrub and perennial beds are to be
zoned separately from turf areas; sloped areas to have separate zoning for
heads at the higher elevations from those at the lower elevation and areas
with different exposures are to be zoned separately. Check valves -in -head
are to be used for all areas adjacent to walkways and at the bottom of berms
and pond areas.
7.2. Materials.
7.2.1. Contractor is responsible for supplying saddle for'the`PVC or AC pipe.
7.2.2. Backflow device and water meter perthe City of Fort Collins standards and
the flow meter to be Data Industrial
7.2.3. Copper is to be type K rigid conforming to ASTM Standard 888.
7.2.4. Mainline. Class 200 .PVCNSF approve If three (3) inches or larger use
ringtite pipe.
7.2.5. Laterals.
7.2.5.a.Two {2�es or larger Class 200 PVC, NSF approved.
7.2.5.1b.10ne and afhalf (1.5)'inches or one (1) inch: Class 200 PVC, NSF
approved..
7.2 5 c.No laterals smaller than one (1) inch.
7.2 5.d.Tnckl'e tubing shall be -weather and UV resistant material.
f 7 2 5'd Polyethylene Drip Pipe NSF approved, SDR pressure rated pipe,
only as approved for drip applications.
'-7,2:6. Pipe Fitts..
72.6.a.Funr'' i e (pop-up heads only): to be compatible to the elbows
Y P P (P P- p Y) P
needed for the sprinkler heads.
7.2:6b.Late al fittings: Schedule 40, Type 1, PVC solvent weld with ASTM
Standards D2466 and D1784.
7.2.6.c.Copper or cast bronze fittings, soldered or threaded per
installation details for all copper pipe.
7.2.7. Mainline fittings. Ductile iron for three (3) inches and larger, PVC
Schedule 80 for two and a half (2.5) inches and under. •
7.2.8. Sleeving. Ductile iron pipe or PVC under all paved surfaces.
7.2.8.a.Sizes to be a minimum of two sizes larger than the pipe being
13
derivative works of and from the Artwork, to combine the Artwork with other
materials, and to otherwise exploit and control the use of the Artwork.
C. License Back to The Artist. The DDA hereby grants to the Artist the
following license in and to the Artwork: an irrevocable, non-exclusive, non -
assignable, royalty -free license to make two-dimensional reproductions of the
Artwork for any purpose, provided that any such graphic reproduction used
within one hundred (10) miles of Fort Collins, Colorado clearly acknowledges
the DDA and the Art in Public Places Program, and contains a copyright
notice. With the exception of publicity pieces, the Artist shall not knowingly
permit any other person or entity to reproduce, regardless of the form, the
Artwork for any commercial purpose whatsoever without the prior written
consent of the DDA.
D. Waiver of Rights by The Artist. To the extent the use or removal of the
Artwork affects any rights which the Artist may have under local, state or
federal law, including, by way of example and not of limitation, the 1990
Visual Artists' Rights Act, the Artist hereby knowingly waives any and all
such rights, including rights to preservation of 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 the Artist, the Artist shall provide to the DDA detailed written
instructions concerning the use, care, maintenance and repair of the Artwork. The 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, the 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 the 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, the
At shall be paid for services rendered and materials purchased prior to the date of termination,
subject only to the satisfactory performance of the Artist's duties and obligations hereunder. Any
payments received by the 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
from the 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, the Artist's sole right and remedy shall be payment for services
rendered and materials purchased prior to the effective date of termination.
15. Failure to Complete. In the event that the Artist becomes ill, dies or is otherwise
unable or unwilling to complete the Artwork 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
Art in Action.Agreement.-James Lynxwiter
sleeved. Minimum two (2) inches in diameter, or larger where
appropriate, for irrigation lines.
7.2.8.b.Wires to be in separate sleeve from pipe, two (2) inch minimum size
pipe for control wire sleeves.
7.2.8.c.Shall have marker tape on upper side and both ends for future
locates.
7.2.9. Valves.
7.2.9.a.Remote Control Zone Valves: ElectricaI1) opa rated, appropriate for
the water supply, with manual bleed device and flow control stem.
Shall have a slow -opening and slowfclosing action for protection
against surge pressure. Brand and model to be Rainbird PE Series
Remote Control Valves, scrubber option with 'self cleaning screen
unless City specifies other brand>and model`
7.2.9.b.lsolation Gate Valves: Kennedy 1571X or Mat6o.#100M, able to
withstand a continuous' operating pressure of�150 psi. Clear
waterway equal to full diameter of pipee> Shall be opened by turning
square nut to the left (wheel opening is unacceptable)
7.2.9.c.Manual Drain Valve: Three,_quarter (0.75) inch ball valve with tee
handle. Watts#B 6000, or approved equal.
7.2.9.d.Quick Couple�Valves�:One (1) inch brass, Rainbird #5RC units with
rubber cover. Supply one(1.) inch br< ss key for Rainbird 55K.
7.2.10 Valve Boxes House valves in valve box, with matching locking cover:
Carson,Arn t k cir\approved� equal. Only ne (1) valve per box. Install
in box sizes as sp
ecified.
7.2.11. Control Syst
em.
1'1. a C stroll` er: /rritro MC Plus Series controller or approved equal.
.' � .
Number.of stations shall include two (2) extra stations for possible
f�uture�use. Controller box shall be weather tight and vandal
�
resistant with locking exterior disconnect. One (1) Eicon pigtail for
each 12 stations.
\ :7.2.11.b.Control System Enclosure: Hoffman Model A242408LP with A-
,24�24 steel panel, Model A-FK1208 floor stand kit and AL-2BR
lock kit, or approved equal.
7.2. "tcurge Protection: Eight (8) foot copper grounding rod, #4 solid
copper wire, grounding buss receptacle, ground terminal strip and
Irritrol SPD-587 surge protector per details.
7.2.12. Electric Control Wiring: #14 solid copper direct burial OF or PE cable, UL
approved, or larger, per system design and manufacturer's
recommendations.
7.2.12.a.Five (5) wires with consistent color scheme throughout:
Red = live; White = ground; Black, Blue and Green = extra
14
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 the 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 the Artist will be performing hereunder are
those of an independent contr4etor, and not of an agent or employee of the DDA, nor shall the
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 the Artist's compensation
hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any
other purpose.
17. License and Business Requirements. The Artist shall hold, in the 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. The 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 the Artwork and Supervision at Work Site. At the conclusion of each
work day, the Artist shall store the Artwork in the storage facility to be provided by the DDA, at
the DDA's expense (the "Storage Facility"). The Artist shall be present at the Work Site, or
cause competent supervisory personnel to be present, any time the Artwork, 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 the. Artist with respect to the
Installation Site.
19. Employees, Agents and Subcontractors. In performing hereunder, the 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 the Artist may use subcontractors for the transportation
and/or installation of the Artwork, under the Artist's direction and supervision. The 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 Artwork at the Work
Site; and the 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 use 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 the Artist. The 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. The Artist agrees that it shall be fully
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
Art in Action.Agreement.-James Lynxwiler
7.2.12.b. Snaptite connecters and water -proofing sealant to be used to join
control wires to remote control valves.
7.2.12.c.All sprinkler heads shall be of the same manufacturer as specified
on the plans, marked with the manufacturer's name and model in
such a way that materials can be identified without removal from the
system. City will specify brands and models to match other
equipment in use in public systems in the vicinity. Gear driven rotor
heads are to be Hunter or approved equal. Pop-up spray heads are
to be Hunter, Rainbird, or approved equal.
7.3. Inspection.
7.3.1. Locate all utilities prior to trenching and pro
shall include, but are not limited to the follow
for locates and 1-800-922-1987 for utility loi
Contact other utilities as required./
7.3.2. Inspect tap or other existing irrigation syste
7.4. Execution.
from damage. Required calls
.N
City.P-arks Division, 221-6660,
3 within the City of Fort Collins.
s applicable, prior to work.
7.4.1. Water Service Con ne6tions(Taps): ,48hours prior to connection,
contact the City of Fort -.Collins Utilities (Water), at 221-6700 to schedule
the work for water tap" sand spectio.ns.Minimum two (2) weeks prior
notice is,to: gi \ n to the\Water' Mete Shop, 221-6759, for installations
which will i equine meters and] or backflow devices larger than two (2) inches.
�' i/ connection to corporation stop
7 4 1.a Contractor is/ for excavation, p p
atthewa'ter main,.pr` ding the saddle for the PVC orA.C. pipe, making
theconnection to the existing water service, backfill and compaction,
and pavement / shoulder / surface treatment replacement as needed.
�. \.
Sold ered/Jonits or fittings are permissible above grade or inside a vault.
Nb ;solder; sealants, fluxes, pipe dope, and other materials shall contain
any ]ead. All taps and installations are subject to approval and
inspection by the City of Fort Collins Utilities (Water). Install meter as
specified in precast vault. Inspection of service line (where
appropriate), vault, water meter and backflow is to be coordinated with
he City of Fort Collins Utilities (Water).
7.4.1.b.Install winterization assembly downstream of meter vault on copper a
minimum of six (6) feet away from the outside of the meter vault on
the copper pipe.
7.4.1.c.Copper pipe to be soldered so.that a continuous bead shows around
the joint circumference. Insert a dielectric union wherever a copper -
based metal (copper, brass, bronze) and an iron -based metal (iron,
galvanized steel, stainless steel) are joined.
7.4.2. Pipe trenching.
15
subcontractor.
20. Safety at Work Site and Installation Site. The Artist shall be solely responsible
for maintaining a safe Work Site and Installation Site, and for protecting from work area hazards
the 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. The 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.
21. Protection of Artwork. The Artist shall protect the Artwork and any all supplies
and materials necessary for completion of the Scope of Services from damage due to the nature
of the work, the actions of its employees, agents or subcontractors, or from any foreseeable cause
whatsoever, and the 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 the Artist the
Letter of Acceptance; except if such damage occurs to the Artwork while they are located in the
Storage Facility, which damage is not caused by any act or omission of the Artist, his employees,
agents or subcontractors.
22. Protection of Property. In prosecuting the Scope of Services, the Artist shall at all
times use best efforts to safeguard and protect from damage the Work Site, the Installation Site
and all other property, whether real or personal, involved with or in proximity to, the fabrication
of the Artwork at the Worksite or the installation of the Artwork at the Installation Site. The
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 the Artist itself, or
those of its employees, agents or subcontractors.
23. Insurance Requirements. The 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
Art in Action.Agreement. James Lynxwiler
7.4.2.a. Install pipe in open cut trenches of sufficient width to facilitate
thorough tamping / puddling of suitable backfill material under and
over pipe.
7.4.2.b. Trench depths:
• Mainline — Minimum of 24 inches deep from top of pipe to finished
grade.
• Lateral — Minimum of 16 inches deep from top of pipe to finished
grade.
• Sleeves — Install sleeving at a depth which permits the encased
pipe or wiring to remain at the specifiedbu ial depth.
7.4.3. Sleeving. Boring shall not be permitted unless obstruction in pipe path
cannot be moved, or pipe cannot be re- rLit ed..-
7.4.3.a. Mainline installed in existing sleeves at`4eater depth than
adjacent pipe, shall have'd manual drain valvb'�t each end if the
sleeve is longer than° 20 feet, or at, one end if the sleeve is less
than 20 feet.
r
7.4.3.b. Install sleeve so endsktph d:pastrAedge of curb, gutter, sidewalk,
bikepath orother obstruction;, -a minimum of two (2) feet.
7.4.3.c. Mark all sleeves with an 'Y''chiseled in walk (or other surface)
directly over\sleeve locat on.
7.4.3.d. Shall be laid to -drain at�minimum grade of five (5) inches per 100
feet
7.4.3.e/S'hall1be\bedded\i-phtwo (2) inches of fill sand and covered by six
(6) inches of fill sand
7._.3.. s Sleeves_ installed forfiuture use shall be capped at both ends.
7.4 3:`g�Separate/sleeve (two,(2�) inch minimum size) shall be used for all
7.4 3.h. 'Sleev ng shall � joints unless necessary due to length of
sleeving run. If joints are necessary, only solvent welded joints
are allowed.
`4
7.4.3.i. `Compaction of backfill for sleeves shall be 95% of Standard
Proctor Density, ASTM D698-78. Use of water (puddling)
aro fund sleeves for compaction, will not be allowed.
>I 7.4.4. PipenstaillAtion.
7.4�4_a:/Use Teflon tape on all threaded joints; only Schedule 80 pipe
may be threaded.
7.4.4.b. Reducing pipe size shall be with reducing insert couplings, at
least six (6) inches beyond last tee of the larger pipe.
7.4.4.c. Snake PVC lateral pipe from side to side within trench.
7.4.4.d. Cut pipe ends square and deburr. Clean pipe ends before using
primer and solvent cement. Join in manner recommended by
manufacturer and in accordance with accepted industry practices.
Cure for 30 minutes before handling and 24 hours before
allowing water in pipe.
16
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 heretuider, the 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 For
Collins, Colorado, Downtown Development Authority."
C. Subcontractor Liability. In the. event that any work performed hereunder is
performed by a subcontractor, the 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 the 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 the 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 Assignment. The parties hereto acknowledge that the DDA enters into this
Agreement based upon the unique qualifications and abilities of the Artist. Accordingly, the
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.
Art in Action.Agreement: James Lynxwiler
7.4.4.e. Backfill shall be free from rubbish, stones larger than two (2) inch
diameter, frozen material and vegetative matter. Do not backfill
in freezing weather. If backfill material is rocky, the pipe shall be
bedded in two (2) inches of fill sand covered by six (6) inches of
fill sand.
7.4.4.f. After puddling or tamping, leave all trenches slightly mounded to
allow for settling.
7.4.4.g. Compact to proper densities depending on whether surface area
over the line will be paved or landscaped.
7.4.5. Thrust blocks.
7.4.5.a. Shall be installed where PVC mainline'two and a half (2.5) inches
or larger changes direction ove20 degrees.
7.4.5.b. Minimum of one (1) cubic4ddt of concrefe ';
7.4.5.c. Keep pipe joint clean of -co crete. Do not encase.
7.4.5.d. Place wiring away •.,from thrust block to avoid contact with
concrete.
7.4.6. Valve Installation. Install at least\1,- inches from and align with adjacent
walls or paved edges.
7.4.6.a. Automatic Remote Valves: Install in such a way that valves are
N "
accessible for,repairs. Make electrical connection to allow pigtail
s s lenoid can;be�removed`fro valve with 24 inches (minimum)
sl ck�to allow erid's to)be pulled 1'2 inches above ground.
• Flush,, completely\before installing valve. Thoroughly flush piping
system under full head of water for three (3) minutes through
furtliest�,vaive, before..installing heads.
Vawe assembly o-i � Jude ball valve and union per detail for ease
• of maintenance and repair.
- • "Install in valve box per details.
7.4.6.b. \Quick Couple Valve. Install in ten (10) inch round locking valve
box. Flush completely before installing valve. Thoroughly flush
�7>:_i
i ')m system under full head of water for three (3) minutes
through furthest valve.
7:4.6.cy!Isolation Gate Valves. Install in valve box.
7.4:'6d', 'Valve Boxes.
Brand all valve boxes with the following codes: "SV" and the
controller valve number per As -built plans for all remote control
valves; "DV" for all drain valves; "GV" for all isolation valves;
"DRGV" for all drip system isolation valves; "QC" for all quick
coupling valves; "WA" for all winterization assemblies; "FM" for all
flow meter assemblies; and WV" for all master valve assemblies.
Use a branding iron stamp with three (3) inch high letters.
• Valve box shall NOT rest on mainline, use brick or other non -
compressible material per detail. Top of valve box to be flush with
finish grade.
17
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 the Artist of its responsibilities hereunder to produce. quality work. The
DDA's. approval or aceptance of, or payment for, the 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 party hereto to insist, in any
one instance or more, upon the performance of any of the duties, 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
privileges, but the same shall continue and remain in full force and effect.
30. General Indemnification. The Artist shall indemnify, hold harmless and defend, at
the 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, 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 the 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 the Artist or any subcontractor
under workers' compensation laws, disability benefit laws, or other employee benefit Iaws
provided by local, state or federal law.
3t. Intellectual Property Indemnification. The Artist warrants that the Artwork is the
original work of the Artist. The Artist shall indemnify, hold harmless and defend, at the 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 the 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 (1) the work is held to be infringing, or (2) the use of the work is restricted as a
result of a claim of infringement, the 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 the 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, the Artist shall refund 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 the Artist within a reasonable time
Art in Action.Agreement.•Ja=3 Lynxwiler to
Exhibit A: Guidelines and Standards
Section 5. Planting Guidelines.
5.1. Weather, Climate, Soils. Planting guidelines suggest design considerations for
successful implementation of streetscape styles. Due to severe climate conditions in
Fort Collins, consideration of long term maintenance is an important element of the
initial design of any streetscape. Fort Collins is located in a transitional zone between
the High Plains and the Great American Desert. Precipitation is limited to 15 inches
per year on average, with extreme temperatures in the 90;.s in the summer and as low
r
as -20 in the winter. As much as one third of the rain ,comes in April and May as
heavy downpours. Heavy snows in spring and fall!may%reak tree limbs, coming
when trees are in leaf. Mild spring and fall weather`isbroken, by sudden frosts. Soil is
naturally alkaline and production of organic matter and humusl :i's low. Soils are often
heavy clay.
5.2. General Planting Considerations. These severe conditions require:careful design
and selection of vegetation. Adaptable\plants/that have proven hardy are
recommended wherever possible. Xeriscape/methods are advisable, such as
grouping plants with similar water demands together and watering higher demand
plants on a different sprinkler schedule while drought -tolerant plants may be watered
by rain or bubbler irrigation. \Soil�-p`reparation i\aXcritical step in all xeriscape.
General planting considerations include the following:
5.2.1. Coordinated e planting s is `a r� hythm�d pattern for the street. By
alternating tree types, a sense of enclosure can be achieved while slower
growing�trees are established:
5.2.2. Gardens
for rnaint
5.3._ACoritact the City
City maintained
Section 6S-'Mantin
6.1. Projects Govern
nials..a d annuals'should be restricted to high priority areas
and safety -reasons.
y_Parks Division shall be contacted before work in any
.apelis commenced.
dards.
ed by City Planting Standards.
6.1.1. Public projects such as parks, streets, medians, substations, treatment plants,
plazas and public buildings shall provide for tree planting as a part of the
development process. The landscape plan for such projects shall be
approved by the City and must adhere to the City Forestry Standards and
Specifications.
6.1.2. Private projects shall provide for street tree planting as part of the
development process. Street trees shall be located on the public right-of-way
9
• Install valves in box with adequate space to access valves with
ease. Valves shall not be too deep to be inaccessible for repairs.
A three (3) inch depth of three-quarter (0.75) inch washed gravel
to be placed in the bottom of each valve box with enough space to
fully turn valve for removal (see detail).
7.4.7. Head Installation.
7.4.7.a. Set heads plumb and level with finish grade. In sloped area,
heads to be tilted as necessary to provide full radius spray
pattern.
7.4.7.b. Flush lateral lines before installing-�-Mads. Thoroughly flush
piping system under full head ater for three (3) minutes
through furthest head, before.i S. alling heads. Cap risers if delay
of head installation occurs ,
7.4.7.c. Pop-up heads along walks grid bikeways b'edsheads in a six (6)
inch layer of sand under the base of the hea-' X
d'
7.4.7.d. Nozzles: Supply appropriate nozzle for best performance.
7.4.7.e. Adjustment: Adjust `nozzles an -,radius of throw;to minimize
overspray onto hard surfaces.
7.4.8. Electrical Connectiofdn�New connections to be approved through City of
Fort Collins Utilities `(Light °&. Power), call\21-6700 to obtain power
information and request con en ction--,Actualconnection to transformer or
other power-.so.urce to be done/byCi y of Fort Collins Utilities (Light &
Power)./Work-to be coord hated%and scheduled with them by calling 221-
6700/All work other than actual connection, including access to the
transformer box where applicable, to be supplied by the contractor. All
materials to be proid.ed by the -:contractor. When working near any City
� �.. / �
Electric.facility, .priorw�coordination/and approval is required.
4. 7.9'_Controller Installation.
rl _.
7.4.9.a To be installed in an above ground location suitable to prevent
_ vandalism and provide protection from adverse weather
conditions, and per City direction. All exposed wiring to and from
the controller shall, be encased in galvanized metal conduit.
,Exterior controllers to be installed on a six (6) inch thick concrete
pad.
7.4.9.b/Install Controller per City direction and in accordance with
manufacturers specifications. Install surge protection, grounding
rods and other accessory components as specified.
7.4.9.c. Attach wire markers to the ends of control wires inside the
controller unit. Label wires with the identification number of the
remote control valve activated by the wire.
7A.10 Wiring.
18
after receiving notice of any claim for which any indemnity or hold harmless provision contained
herein would apply. So long as the Artist promptly and vigorously defends a claim, the Artist
shall have control over the'defense and settlement of any such claim; provided, however, that the
Artist must obtain a complete discharge of all DDA liability through any such settlement. In the
event that the 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 the Artist shall be liable for all costs and expenses incurred by the DDA
in the pursuit thereof. The DDA shall furnish, at the Artist's reasonable request and expense,
information and assistance necessary for such defense.
33. Notice. Any notice required or desired to be given by any party to this Agreement
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 the Artist: James Lynxwiler
414 N Loomis Avenue
Fort Collins, CO 80521
If to DDA: The Fort Collins, Colorado
Downtown Development Authority
ATTN: Programs Administrator
19 Old Town Square, Suite 230
Fort Collins, CO 80524
With a copies to: Liley, Rogers & Martell, LLC
ATTN: Lucia A. Liley, Esq.
300 S. Howes Street
Fort Collins, CO 80521
City of Fort Collins Art in Public Places Program
ATTN: EIlen Martin, Visual Arts Administrator
417 W. Magnolia,
Fort Collins, CO 80521
Notice of a change of address of a party shall be given in the same manner as all other
Art in Action.Agreement: James Lynmviler . 11
7.5
7.6.
7.4.10.a. Comply with City of Fort Collins Electrical Code.
7.4.10.b. Power source brought to controller to a ground fault receptacle
installed within controller casing.
7.4.10.c. String control wires as close as possible to mainline, consistently
along and slightly below one side of the pipe.
7.4.10.d. Leave minimum loop of 24 inches at each valve and controller
and at each splice, at the ends of each sleeve, at 100 foot
intervals along continuous runs of wiring, and change of direction
of 90 degrees or more. Band wires together at ten (10) foot
intervals with pipe wrapping tape.
7.4.10.e. Install common ground wire and one -control wire for each remote
control valve. Multiple valves on,/ 4single control wire are not
permitted. Install three (3) extra/wires, as specified, to the
furthest valve on the system ,a'nd!/ or a - b, ranch of the system.
Testing. All tests to be run in the presence if staff from theCity Parks Division.
Schedule all tests a minimum of 48 hours"in* advance. Repeat any�failed tests until
full acceptance is obtained. Operational Test: Activate each remote:control valve
X.from the controller in the presence of staff;from the"City Parks Division. Replace,
adjust or move heads and nozzles as needed to obtain acceptable performance of
system as directed by that staff member. Replace defective valves, wiring or other
appurtenances to correct opera"tional'deficiencie&:.:
Completion Services."
. �:ion f
7.6.1. When ,prolect^ construction s. complete, request a punchlist inspect o 0r
Construction Acceptance from�-the City Parks Division.
7.6.1\a.,`
7 6 1 b
7.6.1.c
information incl
components.
:�\staff from the City Parks Division.
the City Parks Division with ordering
model numbers, size and style for all
Provide two (2) sets of As -built drawings per below, showing
system asyinstalled with each sheet clearly marked "As -built
Drawings", the name of the project and all information clearly
provided.
o -One set of reproducible mylars, no larger than 24" x 36".
•jOne set of all sheets reduced to 11" x 17", with each station color
coded, and each sheet plastic laminated.
Clean Up. Remove all excess materials, tools, rubbish and
debris from site.
7.6.2. Once Construction Acceptance is obtained, begin warranty and
maintenance period by contractor. Maintain irrigation system in optimal
working condition for duration of period between Construction Acceptance
and Final Acceptance. Make periodic adjustments to system to achieve
most desirable application of water.
19
notices as hereinabove provided.
34. 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
all rights and obligations of the DDA set forth herein shall thereupon become the rights and
obligations of the City.
35. Governing Law/Venue/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 term or
provision shall be fully 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
not be affected by the illegal, invalid or unenforceable provision or term or by its severance
herefrom.
36. Attorney Fees. In 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 patty all reasonable costs
and expenses, including attorneys' fees and other legal expenses.
37. Prohibition Against Employing Illegat Aliens. Pursuant to Colorado Revised
Statutes ("C.R.S.") § 8-17.5-101 et seq., the Artist represents and agrees that:
a. As of the date of execution of this Agreement:
i. The Artist does not knowingly employ or contract with an illegal alien
who will perform work under this Agreement; and
ii. The Artist shall participate in either the e-Verify program created in Public
Law 208, 104th Congress, as amended, and expanded in Public Law 156,
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. The Artist shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor
who knowingly employs or contracts with an illegal alien to perform work under
Art in Action.Agreement: James LynxMIer 12
7.6.3. Request Final Acceptance inspection from the City Parks Division at least
30 days before the end of the one year maintenance period. Provide the
City Parks Division with operating keys, servicing tools, test equipment,
warranties / guarantees, maintenance manuals, and contractor's affidavit of
release of liens. Submittal of all these items must be accompanied by a
transmittal letter and delivered to the City Parks Division offices, delivery at
the project site is not acceptable.
7.7. Guarantee/ Warranty and Replacement. For the period following Construction
Acceptance notice by City of Fort Collins, and prior to FinalfAcceptance, all irrigation
materials, equipment, workmanship and other appurtenances' are to be guaranteed /
warranted against defects. Settling of trenches or other`depressions, damages to
structures or landscaping caused by settling and otherdefects to be corrected by the
contractor at no cost to the City of Fort Collins. Make�repairs within seven (7) days of
notification by the City Parks Division. Guararrt ^ee %Warranty applies to all originally
installed materials and equipment, and to replacements made during. the guarantee /
warranty period. 17
Section 8. Turf Seeding Stan.dards.
8.1. General.
8.1.1. Seed M
activity i
perform
mix` s_f a
blegra;
x,,—Shall be approved
J,.,take;place, planned.
;d n the�area being se(
be used that does'.
"�un
V
9
5
5
8.1.1.b
90%
10%
by/the-City Parks Division based on the
Tigationvim,ethod and maintenance to be
led. In all cases, a drought tolerant seed
Dt contain more than five percent (5%)
1`
re -approve nd Mix (for temporary or permanent
awed and non -irrigated areas):
Lincoln Smooth Brome
Perennial Ryegrass
Sideoats' Grama
,,'Blue Grama
Buffalograss (treated)
/Little Bluestem
Sand Dropseed
Pre -approved Irrigated Seed Mix (for mowed applications):
Eldorado, Silverado and Monarch Turf type Tall Fescue
Bluegrass mix (drought tolerant blends)
8.1.2. Seeded Areas. Seeding is allowed in Parkways where approved by City,
on side slopes of detention ponds to be maintained by the City, and in some
temporary dryland applications. No seeding is allowed in medians. All
proposed seeded areas are to be specifically approved by the City Parks
Division.
20
this Agreement.
c. The 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 the Artist obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, The
Artist shall:
i. Notify such subcontractor and the DDA within three days that the Artist has
actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
ii. 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 the
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. The 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 the 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, the Artist shall be liable for actual
and consequential damages to the DDA arising out of the Artist's violation of
C.R.S. § 8-17.5-102.
g. The DDA will notify the Office of the Secretary of State if the Artist violates this
provision of this Agreement and the. DDA terminates the Agreement for such
breach.
38. Integration/Survival. 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.
39. Sections and Headings. Sections and , headings are contained herein for
Art in Action.Agreement: James Lynxwiler 13
8.2. Submittals. Certificates showing State, Federal or other inspection showing source
and origin.
8.3. Materials.
8.3.1. Seed. Shall be of fresh, clean, new crop seed composed of the varieties
approved by the City with tested minimum percentages of purity and
germination clearly labeled on the package. All seed shall be free of Poa
annua and all noxious objectionable weeds with a maximum crop of. 10%
and maximum weeds of .10% weeds.
8.3.2. Mulch.
8.3.2.a.For slopes 30% and less: Native'grass`,straw without weed seed
and consisting of grasses as specified for�seeded application.
8.3.2.b.For slopes 30% and greater�rd inaccessible teas: Hydromulch
using Weyerhauser "Silva Fiber" mulch or approved equal. The
wood cellulose fiber for hydraulic mulching shall not contain any
substance or factor which might inhibit germination or> growth of
grass seed. It shall be dyed,agre/7-' color to allow metering of its
application.
8.3.2.c.Tackafier use Teratack 111, or'approved equal.
slopes re ter ,30°/�u�Soil Saver jute netting, or
8.3.3. Netting. Forg � g,
approved equal. Nettingl\to\be s pled -with No �;1'1 gauge steel wire forged
into a six (6) ch long U-shape and pai`ntedjor visibility in mowed areas.
8.3.4. Fertilizer. Use a` fertilizer with a formula of 18-46-0 on all areas to be
seeded.
8.3 5 rins.p coon., 1 � pect fin sh,g ade and trim where needed to obtain finish
grades,o�f one:(1) inch below adjacent pavements. Verify positive drainage
away from all structures. Verify or complete removal of rock and debris
larger than one 'inch from all areas to be seeded.
8.4. Execution.
8.4.1. Fertilizer) Apply eight (8) pounds per 1,000 square foot of seeded area and
ake lightly into top one -eighth (0.12) inch of soil just prior to seeding
operation.
8.4.2 Seeding.
8.4.2.a.Do not sow seed in windy weather or when ground is frozen or
otherwise untillable.
8.4.2.b.Use brillion type drill or hydraulic seeding methods. Drill
seed in manner such that after surface is raked and rolled,
seed has one -quarter (0.25) inch of cover.
8.4.2.c.Hydraulic seeding will be used in areas that are not accessible for
21
organizational purposes 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:
4
Bill Sears, ecretary
THE FORT COLLINS DOWNTOWN
DEVELOPMENT AUTHORITY, a body corporate
and politic
By: 0 Wv
Patty Spe ce Chairperson
THE ARTIST
By:
a es Lynxwile
Art in Action.Agreement.-James Lynxwiler 14
machine methods. Hydraulic pump capable of being operated at
100 gallons per minute and at 100 pounds per square inch pressure
to be used. The equipment shall have an acceptable pressure
gauge and a nozzle adaptable to hydraulic seeding requirements.
Storage tanks shall have a means of agitation and a means of
estimating the volume used or remaining in the tank. Do not seed
and mulch in the same operation.
8.4.2.d.Rates:
• Dryland Mix — 12 pounds pure live seed per acre.
• Irrigated Mix — 12 pounds pure live seed per acre.
8.4.3. Mulching.
8.4.3.a. Native Grass Mulch: Apply atarate of 'tw� (2) tons per
acre. Mulch seed beds within�24 hours after; seeding.
8.4.3.b. Hydromulching: Wood cellulose fibers must become evenly
dispersed when agitated°in water. When sprayed uniformly on the
soil surface, the fiberssh II form a/blotter like groundcover which
readily absorbs water ah 'allows infiltration to the underlying soil.
Cellulose fiber mulch shall`,be added with the proportionate
quantities ofowater and other,app oved materials in the slurry tank.
All ingred ients"shalrbe mixed to,form a homogenous slurry. Using
the color of the mulch�s.`a .metering g. agent, spray apply the slurry
mixture uniforml,y;over the:seed.ed areal Apply with tackafier used
at�a rate of 120�pounds p`r eacre Unless otherwise ordered for
� � . .
-specific'areas, fiber�`mul'ch shall'be applied at the rate of 2,000
pounds per�acre. Hyd aulic mulching shall not be performed in the
.: `presence ofree surface water resulting from rains, melting snow or
other causes
8 4.4 , • Netting. Net areas over 30% slope. If contractor fails to net and
subsequent soil"erosion occurs, contractor shall re-establish finish grade,
soil preparation, seed
Collins.
bed and apply netting at no cost to the City of Fort
`.
8.4'5, ,. ,Watering. Irmmediately after seeding and mulching, water seeded area
slightly to/a depth of two (2) inches, but with care so that no erosion takes
place, and,,po gullies are formed. Water lightly two (2) times per day and
keep seeded area moist until turf is established. Sloped areas should be
hand watered until turf is established to prevent erosion; water these areas
more often but for shorter periods of time.
8.4.6. Clean Up. Remove all hydromulch and other mulch materials from all plant
materials, fences, concrete and other areas except for seed bed.
8.4.7. Protection. Provide and install barriers as required to protect seeded
areas from pedestrian and vehicular damage. Provide signage if
needed.
22
parties hereto and shall continue until the DDA's issuance to the 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 the Artist.
4. Notification to Proceed. Upon the happening of all of the following events, the
DDA shall send to the 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 the Artist at the
Work Site.
5. * Work Schedule. The Artist shall work on the Artwork 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 the Artist's control prevent the
Artist from performing on such days. Beginning with the DDA's issuance to the Artist of Notice
to Proceed and continuing until completion of the Artwork, the Artist shall work on the Artwork
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 Completion of the Scope of Services. The 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, the Artist shall commence with purchasing supplies and
materials necessary for performance of the Scope of Services. The 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 the Artist shall not commence work at the Work Site until it
has received Notice to Proceed from the DDA.
B. Artwork at Work Site. Upon receipt of Notice to Proceed, the Artist shall
commence work on the Artwork at the Work Site. The Artist agrees to use
best efforts to complete the Artwork on or about October 1, 2010, but shall in
Art in Action.Agreement-James Lynxwiier
and must adhere to the design objectives, spacing, location, and other
requirements of the City Forestry Standards and Specifications.
6.2. Specific Standards.
6.2.1. Existing healthy street trees shall be preserved wherever possible. If a tree is
removed, mitigation trees shall be provided of at least equal value as that of
the removed tree.
6.2.2. New street trees that are part of a new developmb project shall be at least
two (2) inch caliper on arterial and collector streets and one and a quarter
(1.25) inch caliper on residential local streets. � There is not a minimum tree
size requirement for infill plantings. 1
6.2.3. Except in residential areas, automatic:Jrri,
shrubs, and turf per City standards.
6.2.4.A continuous gentle two percent '(2%o) sl
used to achieve a carpet of turf within, hi
6.3. Size, Type, and Distributionl'of-T
6.3.1. Public tree planting canbe
container �m6 h d Barer c
permissio,n.,'of'fhe,City ForestE
6.3.2. No si` ngle species sihall make
on shall be provided to all trees,
fr6m curb to sidewalk shall be
Species
by the- balled and,
population. The following>requi
-sit \ 1�\
t,
urlapped, tree spade, or
permitted without written
re than 15% of the total City tree
ents are for tree species at any one
Number of Trees at
Maximum % of any 1 Species at
kSite
Site
1Q#o 19
50
20)to 39
33
/0 to 59
25
60 or more
15
10
any event complete the Artwork not later than October 31, 2010. If the Artist
has not completed the Artwork by October 1, 2010, the parties hereto shall
negotiate in good faith to establish a work schedule for the final weeks of the
Artist's performance. Upon completion of the Artwork, the Artist may place
the Artwork 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 the event that conditions beyond the
Artist's control prevent the Artist from completing performance by the
above -referenced deadline, the DDA shall grant to the 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 October 2010, the
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 the Artist shall -begin completion of. the At (the "Completion
Begin Date"). The DDA shall notify the 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, The Artist shall act in good faith and use, best efforts to
comply with the Completion Begin Date. Upon receipt of such notice, the
Artist shall within seven (7) days thereafter send notice to the DDA
confirming its ability to begin performance on such date ("Notice of
Confirmation"), which notice requirement may be complied through email
addressed to the DDA Representative. The 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 the Artist. The .Artist shall complete and install the
Artwork within a reasonable amount of time after the Completion Begin
Date.
7. The Artist's Compensation, In consideration of the services to be performed by
the Artist hereunder, the DDA agrees to pay to the Artist the sum of Sixty One Thousand, Seven
Hundred Dollars ($61,700.00), which sum is the maximum amount the DDA shall pay to the
Artist pursuant to this Agreement. The DDA shall pay to the Artist such sum in accordance with
the following:
A. Twenty Five Thousand Dollars ($25,000.00) upon execution of this
Agreement.
B. Fifteen Thousand Dollars ($15;000.00) upon receipt by the DDA of notice
from the Artist, and subsequent verification by the DDA, that the sculpture is
ready for mold and casting (the beginning of the foundry work).
Art in Action. Agreement. James Lynxwiler
6.3.3.The plant palette in the appendix of this document constitutes the official tree
species for Fort Collins. No species other than those included in this list shall
be planted as street trees without written permission of the City Forester. City
does reserve the right to select trees not on the bid list.
6.4. Soil Preparation Requirements.
6.4.1. All utilities shall be located prior to trenching and shall be protected from
damage. Locate all utilities and protect from damage. Required calls shall
include, but are not limited to the following:
City Parks Division, for Irrigation, pipe, and wir4 cates ................ 221-6660
Utility Locates ...................................... .............. ` 1-800-922-1987
........
For: ZI/Cit of Fort Collins Utilities Li ht,Power, Stormwat Wastewater, &
Y ( J
Water)
Public Service \
US West Communication
AT&T Cable Services
6.5. Placement of Trees in Parkway.,
6.5.1.At the irite rsectinn of roadways o yr 6 cular access points, no plant material
with a mature'heig"ht\greater�thahn,two and a -half (2.5) feet shall be planted
with in/aaight triangle�measuring\30 feet along the boundary of each of the
intersecting roadvvaysi, measureVrom the point of intersecting curblines,
except Where engineering standard's indicate otherwise.
6.5 2 e planting vis permitted -Where the distance between a curb and a
det ched`sidewalk\is less than four (4) feet.
6.5.3.Trees maybe planted in the center of the planting strip measured from the
w front of the sidewalk and back of the curb as approved by the City Forestry
Division. 1 ''
6.5.4. Where the sidewalk is attached to the curb as a continuous element (such as
near turn :lanes), the street tree planting must be at least three (3) feet and no
more than seven (7) feet in back of the walk. The tree must be located on the
public
right-of-way.
6.5.5. No street tree shall be planted closer to the street than two and a half (2.5)
feet from the face of the curb.
6.5.6. Residential streets, which may use the option of rollover rather than vertical
curbs, center (or as approved by the City of Fort Collins Forestry Division) the
11
C. Ten Thousand Dollars ($10,000.00) upon receipt by the DDA of notice from
the Artist, and subsequent verification by the DDA, that the sculpture is
finished and ready for placement.
D. Five Thousand Dollars ($5,000.00) upon receipt by the DDA of notice from
the Artist, and subsequent verification by the DDA, that the site prep,
footing, and base are finished and the sculpture is installed.
E. Six Thousand, Seven Hundred Dollars ($6,700.00) upon the DDA's issuance
to the Artist of the Letter of Acceptance.
The DDA shall make such payments to the 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 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. The 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/The Artist's Reporting Requirement. The DDA shall
designate the Programs Administrator as 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, the Artist shall deliver to the DDA Representative monthly
written reports detailing the status of the 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. The 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 the Artist, informing him 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 the Artist must then cure, at him own expense, within a reasonable
amount of time considering the nature of such inconsistencies, defects or issues. Under no
circumstance shall the DDA ba obligated to issue to the Artist the Letter of Acceptance until all
of the following have occurred: (1) The Artist has completed and installed the Artwork; (2) the
Art in Action.Agreement.-James Lynxwiler 4
tree within the landscaping area of the parkway rather than from the flowline
to the edge of the sidewalk as approved by the.
6.5.7. Larger maturing trees should be placed 40 feet apart and smaller maturing
trees (such as in the Variety/Combination style) may be placed 20 feet apart.
The City Forester may require wider spacings if it is necessary for
development of the tree or for safe use of the street or sidewalk. When space
is limited or to achieve certain design effect, closer spacings may be
considered.
6.5.8. No tree shall be planted closer than eight (8) feet'from any driveway or alley
nor shall a tree be planted in such a manner than :its eventual growth cannot
be reasonably controlled so as to avert interference with or obstruction to any
improvements installed for public benefit< �
6.5.9. Tree plantings made in a sidewalk/rr ust have a minim
cutout area.
6.6. Tree inspection and Warranty
City Forestry Division must inspect trees prior4c
accept the trees after planting-�-Contractor muss
Forestry Department. The warr�an yfor all trees
seasons after planting acceptance.
\A
Section 7. Irrigation
7.1. General.
7.1.1. I rrigation\de:
f
.V1 2. I rr2. iaat on
Xmaintained sc
,`spray passing
possible so th
7.1.3.The ii
the C
lards\/ { `
16 square feet
Anting and must
>chedule this with the
s for two full growing
,all be done by 'kertified irrigation designer or someone
ty Parks Division.
m.d sign and installation shall be monitored, inspected, and
ie City Parks Division. Irrigation systems shall be installed and
'that notiheads spray onto any streets in such a way that they
motorists or pedestrians. Heads should be adjusted wherever
p6hey do not overspray sidewalks.
system must comply with the Uniform Plumbing Code and with
Tort Collins Electrical Code.
7.1.4. Any deviation in taps from the approved construction plans must be approved
by City of Fort Collins Utilities prior to installation. Any water service line shall
be coordinated with City of Fort Collins Utilities, 221-6700.
7.1.5. Any deviation in layout of the irrigation system from the approved construction
plans must be reviewed and approved by the City Parks Division prior to
installation.
12
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 required to be submitted by the 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. The Artist warrants the
Artwork against any and all defects for a period of three (3) years, beginning on the date of the
DDA's issuance of the Letter of Acceptance (the "Warranty"). The Artist shall replace or correct.
any defects in the Artwork, whether such defects result from defective design, workmanship or
materials. If the 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 the 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, the 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 the 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 the Artist shall be
responsible for the cost of such repairs. .
12. Property Rights in and to the Artwork.
A. Artists Representation. Artist represents and warrants_ that the Project is
artistically unique, and agrees that he will not create more than six (6) total
multiples of this sculpture and will not be involved in the creation of an
identical or substantially similar artwork within one hundred (100) miles of
Fort Collins, Colorado. The original casting and casting number two are the
sculptures referred to in this agreement.
B. Assignment of Rights to the DDA. With the exception of A above, the 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 Artwork, any and all works derived
therefrom, the United 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 to under local, state or federal
laws, or foreign laws, including, but not limited to, the following rights: to
graphically reproduce, publish and display the Artwork publicly, to prepare
Art in Action.Ad eement: James Lynxwiler