HomeMy WebLinkAbout131294 ROBERT TULLY - CONTRACT - AGREEMENT MISC - APP COLLEGE & HARMONY PROJECTART IN PUBLIC PLACES CONSTRUCTION AGREEMENT
THIS AGREEMENT is made and entered into this l l day of WIZIL , 2011, by
and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter
referred to as "the City"), and Robert Tully (hereinafter referred to as "Artist.")
In consideration of the mutual covenants and obligations herein expressed, the parties agree as follows:
I. Scope of the Work: The Artist must furnish all of the materials and perform all of the
work for the College & Harmony Project as shown on the drawings and described in the specifications
attached as Exhibit ''A- and incorporated by reference into this Agreement (the "Project'). The Project
consists in general terms of the design, construction, signage and installation of four stainless steel
sculptures that will be suspended in the columnar structures at the intersection of College Avenue and
Hannony Road. The Artist's work must be of high quality, in con?pliance with generally accepted
standards of workmanship, and in conformity with this Agreement.
2. Time of Completion. The City will issue a Notice to Proceed. -Artist must begin the
Project promptly upon receipt of the Notice to Proceed and most fully complete the Project by June 30,
2011. Any extensions of this time limit must be agreed upon in writing by the parties. The City will
grant the Artist a reasonable extension of time if there is a delay out the part of the City in performing its
obligations under this Agreement or if conditions beyond the Artist'scontrol or Acts of God render
timely perfannance of the Artist's services impossible.
3. Capital Project Management Control System. In order to insure that the Project is
consistent with its authorized scope and schedule, the Artist must provide an approximate schedule for
the completion of all unit work items covered by the Agreement. The schedule must indicate the
anticipated percentage completion of each unit work item for each week for the duration of the work.
The Artist must submit the initial schedule to the. City prior to beginning the work.
4. City Representative. On or before the date the City issues its Notice to Proceed the City
will designate its project representative who will make all necessary and proper decisions with reference
to the Project within the scope of his or her authority. The Artist must direct all requests for contract
interpretations; change orders; or other clarification or instruction to the City representative.
5. Changes to Scope of Work.
A. Changes by Artist. The Artist cannot change the Project specifications and drawings in
Exhibit "A without advance written approval from the City.
B. Changes.bv the City. The'City may request changes in the design and construction of the
Project through written Change Order Requests. The Artist and the City will then negotiate in
good faith to reach agreement on any necessary changes in price or scheduling requirements.
Once the parties have reached agreement, the City will issue a written Change Order
documenting, the agreed upon terms. The Artist must not proceed with work related to the
requested change until the City issues the Change Order.
No Text
6. Formal Acceptance and Ownership of the Project. The Artist must notify the City when
the Project is filly installed and complete. No more than thirty (30) days after receiving such notice, the
City will provide the Artist a written response, informing the Artist that either:
(I) the City agrees that the Project is fully installed and is complete consistent with the terms of
this Agrcennent, all other related work is completed in.accordancc with this Agreement, and the City
fornially accepts the Project as completed ("Letter of Acceptance"): or
(2) the City does not consider the Project to be completed due to unresolved issues or defects that
remain, and describing the outstanding issues or defects which the Artist must then cure before the City
will issue a Letter of Acceptance.
The Project is not finally complete for purposes of this Agreement until the City has issued a Letter of
Acceptance. Once the City has issued a Letter of Acceptance the City will be the sole owner of the
Project, and the Artist will have no further obligations under this Agreement, except as set forth in
paragraphs 8, 9,12, and 26.
7, Ownership of Works Created
A. Assignment of Copyright. The Artist hereby assigns, transfers, and conveys to the City
all right, title and interest in and to the Project together with the copyright therein and the right to
secure copyright registration therefore, in accordance with Sections 101, 204, and 205 of Title 17
of the United States Code, the Copyright Law of the United States. This assignment, transfer
and conveyance includes, without limitation, any and all features, sections, and components of
the Project, any and all works derived therefrom, the Unites States and worldwide copyrights
therein, and any renewals or extensions thereof, and any and all other rights that the Artist now
has or to which the Artist may become entitled under existing or subsequently enacted federal,
state, or foreign laws, including, but not limited to the following rights: to reproduce, publish,
and display the Project publicly, to prepare derivative works of and from the Project, to combine
the Project with other materials, and to otherwise exploit and control the use of the Project. As
additional consideration for this assignment, the City agrees that all reproductions of the Project
by the City shall credit the Artist.
B. Exceptions. Notwithstanding the assignment of rights described in paragraph A,, the City
agrees that it may not alter the artwork and represent it as the Artist's work without the Artist's
permission. fit addition, the City will not, nor will it license others to, make three dimensional
reproductions of the Project without obtaining the consent of the Artistr and paying additional
compensation to the Artist in an amount to be negotiated in good faith.
C. License Back to Artist of Certain Rights. The City hereby grants to Artist the following
rights in and to the Project: the non-cxclusivc right to make two-dimensional reproductions of
the Project for any purpose, provided that any such reproduction clearly states the location of the.
Project, acknowledges the City and the Art in Public Places Program; and contains a copyright
notice. With the exception of publicity pieces, the Artist must not knowingly permit others to
make reproductions of the Project for commercial purposes without the written permission of the
City.
D. Rights under the. Visual Artists' Rights Act. To the extent the uses or removal of the
Project under this Contract affect any rights Artist may have under the provisions of federal or
state law, including the 1990 Visual Artists' Rights Act, the Artist hereby knowingly waives any
rights of preservation of the Project provided by those laws.
S. Guarantee ol'Workmanship and Material. For a period of three (3) years from the date of
the City's Letter of Acceptance, Artist agrees to replace or correct any material defects in the Project,
whether caused by defects in the design, workmanship or materials used in the Project. If Artist fails to
replace or correct any such defects, or to make arrangements to do so within a reasonable time
satislactory to the City, the City has the right to arrange for such replacement or correction, and Artist
must reimburse the City for the costs of any such replacement or correction. If the City asks Artist to
repair damage caused to the Project by vandalism, collision, extreme environmental conditions, or other
unforeseeable causes, the City will reimburse Artist for reasonable material and labor costs for such
repairs, except to the extent such dama e is due to a defect in design, workmanship or materials used in
the Project.
9. Maintenance. Artist must provide to the City written instructions for maintenance of the
Project, including detailed information on the operation, care, maintenance and repair of the Project, as
well as a disk of digital images depicting a total of at least eight views of the completed Project. Artist
also agrees to provide continuing advice to the City regarding the operation, care, maintenance and
repair of the Project at no charge to the City, unless otherwise agreed to by both parties in writing.
10. Contract Sum. The City will pay Artist for the performance of this Contract, subject to
additions and deletions provided herein,, the sum of Fifteen Thousand Four Hundred Dollars (515,400)
on the following schedule:
A. S7,200 upon full execution of this Agreement:
B. $5,200 upon completion and installation of all art c ornponents;
B. S3,000 or any remaining amounts due under this Agreement, upon the City's final approval
and acceptance of the Project as complete. The City will not make final payment until it has received
satisfactory maintenance instructions and photographs as described in Section 9 and a lien waiver from
the Artist in substantially the form shown in Exhibit "B", and comparable lien waivers from any and all
subcontractors that have performed work or provided materials in connection with the Project.
11. Failure to Complete. If Artist becomes ill, dies, or is otherwise unable or unwilling to
complete the Project in accordance with the Agrectnent, any work already done on the Project will be
the City's property. The City will be entitled to withhold any sums not yet paid to Artist, and may use
any such sums toward completion of the Project in any manner the City deems appropriate.
12. Proiect as Unique. Artist represents and warrants that the Project is artistically unique,
and agrees not to create or he involved in the creation of an identical or substantially similar artwork
within 150 miles of Fort Collins, Colorado.
13. Liquidated Damages. The parties agree that the City will suffer certain unspecified
damages in the event the Project is not completed within the time set forth above, as adjusted for any
delays agreed upon by the parties pursuant to Section 2, above. In recognition of the difficulty of
ascertaining the actual damages sustained by the City, the parties agree that the assessment of liquidated
damages is appropriate. In the event the Project is not completed within the specified time, Artist
authorizes the City to retain from any monies due the Artist, the sum of Fifty Dollars (S50) per day for
each and every calendar day the Project remains unfinished. In no event will liquidated damages exceed
Three Thousand Dollars (S3,000).
14. Governing Law. This Agreement is governed by the laws of the State of Colorado.
15. Notice. Any notice or other communication given by either party to the other related to
this Agreement must be hand delivered; sent by a commercial carrier, or sent by mail, addressed to the
party at its address as set forth below. The notice. or other communication will be effective on the date it
is delivered or on the third business day after being_ sent, whichever comes first.
f to the Artist:
Robert Tully
733 McKinley Ave.
Louisville, CO 80027
(720)771-8502
16. Termination/Default.
If to the City:
Ellen Martin
Lincoln Center
417 West Magnolia
Fort Collins. CO 80521
A. Termination. The City may terminate this Agreement on no less than seven (7) days
written notice to the Artist. In such event the City will compensate Artist for all services
performed to the date Artist receives tilenotice of termination,, together with reasonable
expenses then due, unless the parties agree otherwise in writing-
B. Default. Each and every term and condition of this Agreement is deemed to be a material
clement of this Agreement. If either party tails or refuses to perform according to the terms of
this Agrccmcnt; it may be declared in default thereof. If Artist defaults or neglects to carry out
the work in accordance with this Agreement, the City may elect to make good such deficiencies
and charge Artist therefor.
C. Remedies Upon Default. If one party declares the other in default of this Agreement and
performance is possible within the completion time established herein, the defaulting party has
a period of five (5) days within which to cure the default. If the defaulting party fails to correct
the default (or timely performance is not possible), the party declaring default may elect to: (1)
immediately terminate the Agreement; (2) treat the Agreement as continuing and require
specific performance, and/or (3) avail itself of any other remedy at law or equity. If either
party elects to terminate the agreement for default, termination will be effective upon the
mailing, by the terminating party, of written notice of temtination to the defaulting party.
D. Attorneys Fees. If the non -defaulting party must commence legal or equitable action
against the defaulting party to enforce the terms of this Agreement, the defaulting party is
liable to the non -defaulting party for the non -defaulting party's reasonable legal fees, including
attorney's fees, incurred because of the detault.
17. Assignment. Artist understands that the. City enters into this Agreement based on the
special abilities of Artist and that the City considers this Agreement to be an agreement for personal
services. Accordingly, Artist must neither assign any responsibilities nor delegate any duties arising
under this Agreement without the prior written consent of the City.
18. Artist-- Independent Agent. The Artist performs all work under this,Agrecment as an
independent agent and is not an agent of the City, nor are the Artist's Subcontractors or employees
subagents of the City.
19. License and Business. The Artist must hold, in the Artist's name. all necessary licenses
and permits to perform the work. The Artist must have full authority to do business in the State of
Colorado, and have a designated place of business for staking and accepting communications with or
from the City. The Artist most maintain a current address and telephone number with the City
throughout the term of this Agreement.
20. Superintendence. Before starting work the Artist must deli,mate an authorized
representative who has complete authority to represent and act for the Artist. The Artist must keep
competent supervisory personnel on the work during its progress and provide efficient supervision of the
work, using Artist's best skill and attention. The Artist is solely responsible for all construction means,
methods, techniques, and procedures, and for providing adequate safety precautions and coordinating all
portions of the work.
21. Employees. The Artist must employ only competent, skillful workers to do the work.
Whenever any person employed by the Artist appears to be incompetent or acts in a disorderly or
improper manner, the Artist must promptly remove such person from the work.
22. Subcontractors. The Artist may use subcontractors to complete the fabrication,
transportation and/or installation of the Project, under Artist's. direction and supervision. The Artist
must, within fifteen (15) days of the effective (late of this Agreement, submit to the City the naives of all
subcontractors Artist intends to use for the work. The Artist most not employ any subcontractors that
the City, in its discretion, objects to as lacking the capability to properly perform work of the type and
scope intended for the Projcct. The Artist is as fully responsible to the City for the acts and omissions of
Artist's subcontractors and of persons either directly or indirectly employed by them as for the acts and
omissions of persons directly employed by Artist. Nothing contained in the contract documents creates
any contractual relation between any subcontractor and the City, except to the extent the City is
indemnified or insured through requirements upon said subcontractor. If subcontractors are used, the
City may, in its discretion, require the submission of licit waivers in a form reasonably acceptable to the
City by any such subcontractors prior to final payment to the Artist.
23. Prosecution of the Work. The time of beginning, rate of progress, and time of completion
of the work are the essence of this Agreement. The Artist must do the work at such time, and in such
order, as will result in successful completion of the Project during the time specified in the.Agrecmcnt
and the approved construction schedule. The Artist must furnish tools and equipment for the Project in
sufficient quantity and of a capacity and type that will safely perform the work specified without delay
in the progress of the work.
24. Safety. The Artist is solely responsible for maintaining a safe work area and protecting
the salcty and welfare of Artist's employees and subcontractors, and the general public, including
without limitation area residents, motorists, bicyclists, pedestrians; and children, from work area
hazards. 'rhe Artist must provide all work area safety control devices, at Artist's cost, including, for
example, barricades and safety fences around excavations and drop-offs. The Artist's safety precautions
must be in compliance with all applicable laws, rules and regulations.
25. Work and Property. The Artist must use best efforts at all times to safely guard the
Project, the City's property and adjacent property, including underground utilities, from damage, injury
or loss in connection with the Project. The Artist must provide and maintain all passageways, guard
fences, lights, and other facilities required for property protection by state or municipal laws and
regulations and location conditions.
The Artist must protect the Project and related materials from damage due to the nature of the work, the
elements. carelessness of the Artist, or from any foreseeable cause whatever until the completion and
acceptance of the Project by the City. The Artist assumes all risk of loss or damages arising out of the
nature of the work to be done under this Agreement, or from airy unforeseen obstructions or defects
which may be encountered in, the prosecution of the work, or from the action of the elements or other
damage, except damage proximately caused by the City, its employees, agents or other contractors, until
final acceptance of the Project by the City
26. Indemnity. The Artist indemnifies and holds harmless the City, its officers, agents and
employees, from and against all claims, dama,cs, losses, expenses, and legal fees including attorncy's
fees, arising out of or resulting from the Artist's performance under this Agreement.
In any and all claims against the City, or any of its officers, agents, or employees by any employee,
subcontractor or agent of the Artist, the Artist's indemnification obligation are not limited in any way by
any limitation on the amount or type of damages, compensation, or benefits payable by or for the Artist
or any subcontractor under Workmen's Compensation laws, Disability Benefit laws, or other employee
benefit laws.
27. Insurance and Liability. The Artist must provide, or.in lieu of personally providing, must
require all Subcontractors providing services in connection with this Agreement to provide, from
insurance companies acceptable to the City, the insurance coverage designated below, and pay all costs
for such coverage, before commencing work under this Agreement. The Artist must furnish the City
with certificates of insurance as specified herein showing the type, amount, class of operations covered,
cf1bctivc dates, and date of expiration of policies, and containing substantially the following statement:
"The insurance covered by this Certificate will not be canceled or materially
altered, except after ten (10) days written notice has been received by the Owner,
tits City of Fort Collins."
In case of the breach of any provision of this Section, the City, at its option, may takc.out and maintain,
such insurance at the Artist's expense.
The Artist must not commence work under this Agreement until all the insurance required hereunder has
been reviewed by the City and the Artist has provided an acceptable certificate of insurance to the City.
The. Artist, or in lieu thereof, all Subcontractors of Artist, must maintain during the life of this
Agreement the Worker's Compensation Insurance required by state statute and, in addition, Employer's
Liability Insurance in an amount not less than S400.O00 for each occurrence, for all of Artist's
employccs, if any, to be engaged in work on the Project under this Agreement.
The Artist and all Subcontractors of Artist must maintain during the life of this Agreement commercial
general liability insurance sufficient to provide coverage for claims for damages for personal injury,
including accidental death, as well as for claims for property damage, which may arise directly or
indirectly from performance of the work under this Agreement. Coverage for property damage must be
on a "broad form" basis. Amount of insurance to be provided must be not less than 5300.000 combined
single limits for bodily injury and property damage.
The Artist is responsible for any liability directly or indirectly arising out of the work performed under
this Agreement by a subcontractor, to the extent that liability is not covered by the Subcontractors
insurance.
The Artist's and any subcontractor's insurance policies required under this Agreement must name the
City as an additional insured for any claims arising out of work performed under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
THE CITY OF FORT COLLINS. COLORADO,
A Municipal C07rahon
BY:�
e James B. O'Ncill 11, CPPO, FNIGP
Director of Purchasing and Risk Management
Wanda Krajicck
City Clerk
APPROVFbAS FORM:
Assistant City Attorney
ARTIST:
Ruheri Tully
STATE OF COLORADO )
)ss.
COUNTY OF'&, , IAo r )
Subscribed and sworn to before me this `-+*+ day of_L2 n( 1 2011, by:
Witness my hand and official seal.
My Commission Expires: �- ; , ) � ICA I li -,
TRYSTIN D. Pi RSEN
NOTARY PUBLIC Notary Public
STATE OF COLORADO
WYMNINSTON'Mm ZIWM2
Contract Attachment I
College & Harmony Project - Robert Tully
Outline: The artwork is a reflected -light sculpture suspended inside four columns at the intersection of Harmony
Road and College Avenue. The project team has designed 15' tall columns for each of the four comers to serve as
civic monuments denoting this busy intersection as major crossroads. The artist will use these predesigned
columns as the support structure for an interior light -reflective artwork.
Column on left shown vothoul textured acrylic panels.
Column on right shown with acrylic panels.
Materials for the sculpture are stainless steel wire mesh, aluminum spheres 1.5" in diameter, and other simple
aluminum shapes. These materials will have a brushed finish to glow under direct sun in the day and under
changing LED white lights at night. Textured acrylic panels surrounding the four sides of each column will further
diffuse the light. The resulting effect will be a softened display of the sculpture inside. Each sculpture (4) will
measure approximately 10' tall x 2' square. The acrylic panels for the columns will be provided by the Project.
Configuration: About 30 small aluminum spheres will hang vertically in even spacing within each column, giving a
sense of order and uniting all four columns. A semi -transparent stainless steel mesh will be formed into different
shapes within each column. One is a spiral shape, one has a layered look, the third is a series of circular layers,
and the fourth, a stepped motif. The shapes will have a cloud -like presence.
Two LED lights will be hidden in the ceiling of the column, with a third light on the floor of the column. The three
lights will be programmed to change in a fading sequence, illuminating different parts of the mesh and spheres. All
columns will change together. Lighting will be provided by the Project.
Maintenance: The suspended sculpture is not expected to need any maintenance. The acrylic panels will need
replacement in 10 to 20 years due to UV exposure, so a common, less expensive type has been chosen at about
$6 a square foot. Some graffiti can be cleaned away, but replacement may be necessary for other graffiti and
breakage. The acrylic sheet is commonly used in outdoor tables, signage and skylights. The LED lights are much
more long-lasting than standard bulbs. Once programmed, the light sequence will remain set.
E\I IIBIT B
SAMPLE LIEN WAIVER RELEASE
(ARTIST)
TO: Citv of Fort Collins. Colorado (OWNER)
FROM: RobertTully (ARTIST)
PROJECT: College C harmony Project
I. 'file ARTIST acknowledges having received payment, except final payment, from the OWNER for all work, labor.
skill and material Furnished, delivered and performed by the ARTIST for the OIVNER or for anyone in the construction,
design, improvement, alteration. addition or repair of the above described project.
2. In consideration of such payment and this good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged. the ARTIST voluntarily waivesall rights, claims and liens, including but not limited to, mechanic's
notices. equitable liens and labor and material bond rights which the ARTIST may now or may afterward have, claim or
assert ibr all and any work, labor. skill or materials fumished, delivered or performed for the construction, design,
improvement, alteration, addition or repair of the above described project. against the OWNER or its officers, agents.
employees or assigns, against any fund of or in the possession or controlof the OWNER; against the project or against all
land and the buildings on and appurtenances to the land improved by the project.
3'. The ART'ISP aftinns that all work. labor and materials, furnished. delivered or performed to or for the construction,
design,improvement, alteration, addition or repair of the project were furnished, delivered or performed by the ARTIST or
ARTIST's agents, employees, and servants. or by and through the ARTIST by various Subcontractors or material men or
their agents, employees and servants and further affirms the same have been paid in full and have released in Fill any and all
existing or possible future mechanic's liens or rigliis or claims against the project or any funds in the OWNER'S rights or
control concerning the project or against the OWNER or its officers. agents, employees or assigns arising out of the project.
q. 'file ARTISTagrees to defend and hold harmless the OWNER, the lender, if any, and the Surety on the project
against and from any claim hereinafter made by the ARTIST'S Subcontractors, material men. employees, servants agents or
assigns against the project or against the OWNER or its officers, employees. agents or assigns arising out of the project for
all loss, damage and costs, including reasonable attorneys fees, incurred as a result of such claims.
5. The parties acknowledge that the description of the project set forth above constitutes an adequate description of the
property and improvements to which this Lien Waiver Release pertains. It is further acknowledged that this Lien Waiver
Release is for the benefit of and may be relied upon by the OWNER, the LENDER, ifany, and Surety on any labor and
material bonds for the project.
Signed this day of .2011
Robert Tully
STATE OF COLORADO )
) ss.
COUNTY OF LARLNIER I
Subscribed and sworn to before me this day of , 2011. .by:
Witness my hand and official seal.
My Commission Expires:
Notary Public