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HomeMy WebLinkAbout432538 JAMES R LYNXWILER - CONTRACT - RFP - 7112 ART IN PUBLIC PLACES ART IN ACTIONCOPY d AGREEMENT This AGREEMENT is made and entered into this 'day of v ham, 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 Districf ), 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. Scope 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) sculpture offsite, and the third being integration of the Artwork into a permanent DDA display within the DDA's boundaries. 2. Term of of Agreement. This Agreement shall commence upon execution by the Art in Action.Agreement: James Lynxwilet 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 adceptance 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 fi-om 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 laws provided by local, state or federal law. . 31. Intellectual ProuertyIndemnification. 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, fiom 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 patties 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: James Lynx%viler to 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 settiement 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 io 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: Ellen 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 Lynxwiler 11 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. 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 party all reasonable costs and expenses, including attorneys' fees and other legal expenses. 37.' Prohibition Against Employing Illegal 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 Lynxwiler 12 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 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 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). £ 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 agieements, 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 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: Bill Sears, ecretary THE FORT COLLINS DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politLe By: 4 Wv `r. Patty Spe ce Chairperson THE ARTIST By: a es Lynxwile Art in Action.Agreement.dames Lynxwiler 14 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 continence 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; acid 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. 5. 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 continence 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.AgreemenL-James Lynxwiler 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 Artwork (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 Lynx«•iler 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 die "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 be 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 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 casts 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 fiom 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.A, eement.-lames Lynxwiter 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 Artist 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 fiom 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: lames Lynxwiler 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 contr4ctor, 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 o£ 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 fu11 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 InstaIIation 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 ariy 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.Agrcement: James Lynxwiler 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 Lyn viler 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, 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 Fort 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 fiom, 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