HomeMy WebLinkAbout451193 BURGEON GROUP - CONTRACT - PURCHASE ORDER - 9124924Poudre River Public Library District
AGREEMENT FOR EDUCATIONAL DESIGN AND ARTWORK
FABRICATION CONSULTANT
LOCATION: Poudre River Old Town Library
PROJECT NAME: Play and Learn
AMOUNT: $61,100
DURATION: August 13th, 2012 — December 31, 2012
THIS AGREEMENT is made and entered into this 13th day of August, 2012 by and between Poudre
River Public Library District hereinafter called the "LIBRARY," and BURGEON GROUP, LLC,
hereinafter called the "CONSULTANT."
NOW, THEREFORE, the LIBRARY and the CONSULTANT, for the consideration, covenants, and
under the conditions hereinafter set forth, do agree as follows:
1. Independent CONSULTANT
The LIBRARY does hereby retain the CONSULTANT to perform the work and services
hereinafter described. The CONSULTANT is an independent CONSULTANT and shall furnish
all supervision, labor, materials, equipment, supplies, and all other incidentals, except as
specifically provided below, and shall conduct and complete the work in a competent and
professional manner.
2. Liaison
All notices, statements or directions are to be given or submitted under the terms of this
AGREEMENT to the LIBRARY'S appointed representative and the CONSULTANT or any of
the CONSULTANT'S appointed representatives.
CONSULTANT:
Burgeon Group
2244 N IP Street
Phoenix, Arizona 85006
Attn: Kim van der Veen
Ph: 602-451-7285
3. Scope of Work
LIBRARY:
Poudre River Public Library District
301 Olive Street
Fort Collins, CO 80524
Attn: Holly Carroll
Ph:970-221-6670
A. The work under this AGREEMENT is to design, fabricate, and complete Custom educational
artwork (here after referred to as ARTWORK) including an Alphabet Whirligig; Pre -Literacy
Kiosks, seating, and a donor recognition component to be determined.
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iv. The Contractor shall indemnify and hold harmless the District, its
directors, officials, agents and employees, from and against any and all claims, demands, suits,
actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including
attorney's fees) and liabilities of, by or with respect to third parties, arising from the Contractor's
failure to comply with the provisions of the Department Program and §§ 8-17.5-102(5)(c),
C.R.S., arising under this Att. A or in any way related to performance hereof. The obligations of
this indemnification shall survive the termination or expiration of this Att. A and the Agreement.
4. Contractor is prohibited from using E-Verify Program or the Department Program
procedures to undertake pre -employment screening of job applicants while the Agreement is in effect.
5. If the Contractor obtains actual knowledge that a subcontractor performing work under
the Agreement knowingly employs or contracts with an illegal alien, the Contractor shall:
(a) Notify the subcontractor and the District within three days that the Contractor
has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and
(b) Terminate the subcontract with the subcontractor if within three days of
receiving the notice the subcontractor does not stop employing or contracting with the illegal alien;
except that the Contractor 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.
6. Contractor shall comply with any reasonable request by the Department made in the
course of an investigation that the Department is undertaking, pursuant to the law.
7. If the Contractor violates any of the provisions under this Att. A, the District may
terminate the Agreement for breach of contract. The Contractor shall be liable for actual and
consequential damages to the District.
8. In case of any conflict between the Agreement and this Ex. A, the provisions of this
Ex. A shall control.
burgeon
group
Interactive learning Spaces
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B. The CONSULTANT shall execute the ARTWORK in accordance with the design approved by
the LIBRARY. Any change in the scope, design, or material of the proposed ARTWORK, or
any change that will alter the ARTWORK visually shall require prior review and approval of
J the LIBRARY.
C. Proposals and decisions affecting the site of the ARTWORK shall be promptly submitted by
the LIBRARY to the CONSULTANT.
D. The CONSULTANT shall furnish and deliver the completed ARTWORK by December 31,
2012, and ownership of ARTWORK shall pass to the LIBRARY upon acceptance by the
LIBRARY.
4. Ownership of Documents and Models
A. Drawings, specifications, and models of the ARTWORK, or which relate to the ARTWORK,
including all preliminary studies, shall be the property of the CONSULTANT following
completion of the ARTWORK under this AGREEMENT. CONSULTANT will provide
applicable drawings and specifications to LIBRARY for necessary maintenance and repair.
B. However, all of these items, mentioned in the immediately preceding paragraph, shall become
and remain the property of the LIBRARY should this AGREEMENT be terminated by the
LIBRARY under Section I LP, for fault on the part of the CONSULTANTaem se-efth&
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C. TERMS OF COPYRIGHT USAGE: License is granted for display of ARTWORK in a
public library setting. License is granted for LIBRARY to create and publish derivative
artworks, such as photographs and digital images, for the sole purpose of publicity. No
revenue may be generated from the generation, sale or publication of such artworks.
CONSULTANT retains all other copyrights to derivative artwork.
1. Reservation of Rights: All rights not expressly granted above are retained by
CONSULTANT or its principals, including any electronic rights or usage,
including any derivative artwork or images, including all rights to media or
technologies not yet in general use, and including but not limited to, all rights in
sketches, prototypes or other preliminary materials. Any use additional to that
expressly granted above requires prior written arrangement and possible payment
of an additional fee. CONSULTANT similarly reserves all rights to any drawings,
models, specifications, or other contributory works.
2. Credits and Copies: A credit line suitable for the presentation of ARTWORK or
licensed derivative artwork shall be used. LIBRARY will make no copies of the
ARTWORK. LIBRARY agrees to provide copies of any derivative artwork to the
CONSULTANT.
3. Transferability: License may only be transferred as required for continued display
1 in the artwork's designated library setting. Transferee must accept all terms of
J copyright usage in this AGREEMENT.
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D. TRADEMARKS: ARTWORK or descriptive materials may contain trademarks, for example
LibrainiumTM, owned by the CONSULTANT. LIBRARY agrees to maintain proper
trademark notification anywhere CONSULTANT'S trademarks appear.
-� 5. Time Schedule
A. The CONSULTANT shall commence work on the project upon the date of execution of this
contract, and shall complete the ARTWORK prior to December 31, 2012. Such times for
completion shall be extended, by the LIBRARY, to the extent that the CONSULTANT
actually incurs delays in the progress of the ARTWORK due to strikes, unusually severe
weather, impossibility of procurement of needed materials, or acts of God beyond the control
of the CONSULTANT. Extensions required by the LIBRARY may cause the
CONSULTANT to incur costs including but not limited to: storage and/or unused shop time.
Such costs may be charged to the LIBRARY and added to the total payment given in section
7A. Amendments to the time of installation shall be agreed to in writing by both
CONSULTANT and LIBRARY.
B. Neither party shall be liable to perform under this AGREEMENT if such failure arises out of
causes beyond control, and without the fault or the negligence of said party. Such causes may
include, but are not restricted to, Act of God or the public enemy, fires, floods, epidemics,
quarantine restrictions, freight embargoes, and unusually severe weather. In every case,
however, a failure to perform must be beyond the control and without the fault or the
negligence of said party.
6. Review of ARTWORK in Progress
J The LIBRARY, or its representative, shall have the right at reasonable times to review the
ARTWORK and progress of the ARTWORK upon request. Authorized representatives of the
LIBRARY may review the ARTWORK at its location.
7. Payment
A. The CONSULTANT shall be paid by the LIBRARY for completed work and/or services
related to this AGREEMENT, only as provided hereinafter. Such payment shall be full
compensation for all work performed and/or service rendered, and for all supervision, labor,
supplies, materials, travel expenses, equipment or use thereof, and for all other incidentals
necessary to complete the ARTWORK. Total payment shall not exceed $61,100 including
shipping and installation. The total payment is subject to adjustment as set forth in Section 8.
B. Payment schedule:
• Deposit of 50% of total contract amount is due at contract signing to initiate the contract.
• Final payment due upon completion of installation.
C. The CONSULTANT is responsible for payment of required materials, labor of assistants,
insurance, communications, studio space, travel, transportation, storage, and rental of the
completed ARTWORK.
J D. The CONSULTANT shall submit a billing when he/she believes each stage outlined above
has been'reached. The determination that the stage has in fact been reached shall be solely
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that of the LIBRARY. The LIBRARY will promptly seek to determine whether or not the
applicable stage has been reached and upon making that determination it will process the
�} invoices and make payment within 30 days.
` 8. Additional Services of the CONSULTANT
A. The LIBRARY may request that the CONSULTANT provide extra services beyond those
required in the Scope of Work. These services shall be paid for by the LIBRARY in addition
to the agreed upon fee upon approval of addendums specifying work and costs.
CONSULTANT shall notify LIBRARY when requested services are beyond the scope of
work.
9. Sub -Consultants
The CONSULTANT will use her/her best efforts to perform the services required under this
contract in a satisfactory and competent manner. Should the CONSULTANT employ and
subcontract with any third persons in the performance of this contract, the CONSULTANT agrees
that all such third persons will be bound by the terms and conditions of this contract.
10.Insurance
A. The risk of damage to or loss of the ARTWORK during development and through delivery
shall be.solely that of the CONSULTANT. This risk shall transfer to the LIBRARY only
upon delivery of the artwork. The CONSULTANT shall provide a policy of insurance,
covering all risks and hazards against any damage to or loss of the ARTWORK while it is
being made and delivered. After delivery, the LIBRARY being the party most able to ensure
the ARTWORK is protected, risk of damage or loss, other than due to the actions or
negligence of CONSULTANT, shall be solely that of the LIBRARY.
B. The CONSULTANT and/or his/her sub -consultants shall pay for the costs of the required
insurance.
WORKERS COMPENSATION: Coverage as required by the applicable laws
2. GENERAL LIABILITY: $1,000,000.00. CONSULTANTS producing works which
can be installed without engineering or architectural review do NOT require
professional liability insurance; however, in the event that services delivered as a part
of the AGREEMENT require such professional services, Professional Liability, Errors
and Omissions coverage shall be provided. "Professional Services" for the purpose of
this AGREEMENT shall mean any services provided by a licensed professional, such
as structural review or engineering.
C. All insurance policies must cover the LIBRARY, its officers, officials, employees and agents
as additional insured as respects: liability arising out of activities performed by or on behalf
of the CONSULTANT in connection with this AGREEMENT.
D. The CONSULTANT and/or his/her sub -consultants must furnish certificates of insurance and
policy endorsements as evidence of compliance with all insurance requirements of this
contract.
100029550) Page 4 of 10
CONSULTANT shall submit certificates of insurance to the LIBRARY. The certificates shall
include: (a) Name and address of the insured; (b) Name and location of the Project; (c) Types
of insurance; (d) Policy numbers; (e) Expiration dates; (f) Limits of liability for bodily injury
and for property damage; (g) Endorsements required to make policies conform with the
insurance requirements; (h) An endorsement requiring the insurer to provide to the LIBRARY
prior written notice of forty five (45) days before the coverage under such policies may be
canceled, materially modified, or non -renewed.
E. Any deductibles or self -insured retentions must be declared to, and approved by, the
LIBRARY. The deductible and/or self -insured retention of the policies shall not apply to the
CONSULTANT'S liability to the LIBRARY and shall be the sole responsibility of the
CONSULTANT.
F. To the extent of the CONSULTANT'S negligence, the CONSULTANT'S insurance coverage
shall be primary insurance as respects the LIBRARY, its officers, employees, and agents.
Any insurance and/or self-insurance maintained by the LIBRARY, its officers, employees, or
agents shall not contribute with the CONSULTANT'S insurance or benefit the
CONSULTANT in any way.
G. The CONSULTANT'S insurance shall apply separately to each insured against whom claim
is made and/or lawsuit is brought, except with respect to the limits of the insurer's liability.
H. Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except as
reduced in aggregate by paid claims until after forty-five (45) days prior written notice has
been given to the LIBRARY.
�J I. Insurance is to be placed with insurers with a Bests' rating of no less than A:VIII, or, if not
rated with Bests', with minimum surpluses the equivalent of Bests' surplus size VIII. Any
exception must be approved by the LIBRARY.
11. General Provisions
A. Default: Each and every term and condition hereof shall be deemed to be a material element
of the AGREEMENT. In the event either party should fail or refuse to perform according to
the terms of this AGREEMENT, such party may be declared in default thereof.
B. Independent Entities: LIBRARY, and CONSULTANT are independent entities and their
employees or volunteers are not to be considered agents or employees of the other. Actions
performed by CONSULTANT pursuant to this AGREEMENT are those of an independent
consultant and not those of an employee of the LIBRARY.
C. Entire AGREEMENT: This AGREEMENT (8 pages) represents the entire and integrated
agreement and understanding between the parties and supersedes all prior negotiations,
statements, representations and agreements, whether written or oral.
D. Assignment: Neither this AGREEMENT, nor any rights or obligations hereunder shall be
Jassigned or delegated by a party without the prior written consent of the other party.
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E. Modification: This AGREEMENT shall be modified only by a written agreement, duly
executed by all parties hereto.
F. Invalidity: The parties mutually understand and agree this AGREEMENT shall be governed
j by and interpreted pursuant to the laws of the State of Colorado.
Venue:. Any dispute regarding this AGREEMENT shall be arbitrated in Phoenix, Arizona under the rules of
the American Arbitration Association and the laws of Colorado. This AGREEMENT shall be governed by the
laws of the State of Colorado and courts of such state shall have exclusive jurisdiction and venue.
G.
H. Contingencies: CONSULTANT certifies and warrants no gratuities, kick -backs or
contingency fees were paid in connection with this AGREEMENT, nor were any fees,
commissions, gifts or other considerations made contingent upon the award of this
AGREEMENT.
1. Discrimination: All parties agree they will not discriminate against any person who performs
work under the terms and conditions of this AGREEMENT because of race, age, color,
gender, sexual orientation, creed, handicapping condition, or national origin.
ADA Compliance: All parties agree they will not discriminate against a qualified individual
with disability, pursuant to a law as set forth in the Americans With Disabilities Act, P.L. 101-
336, 42 U.S.C. § 12101, et seq., and/or any properly promulgated rules and regulations
relating thereto.
K. Conflict of Interest: LIBRARY and CONSULTANT affirm, to their knowledge, neither
/ CONSULTANT nor any employee of CONSULTANT has any personal beneficial interest
whatsoever in the AGREEMENT described herein. Neither CONSULTANT nor any
employee of CONSULTANT, compensated either partially or wholly with funds from this
AGREEMENT, shall engage in any conduct or activity, which would constitute a conflict of
interest relative to this AGREEMENT.
L. Force Maieure: Neither party shall be liable to perform under this AGREEMENT if such
failure arises out of causes beyond control, and without the fault or the negligence of said
party. Such causes may include, but are not restricted to, Act of God or the public enemy,
fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe
weather. In every case, however, a failure to perform must be beyond the control and without
the fault or the negligence of said party.
M. Notices: All notices required and permitted under this AGREEMENT shall be deemed to
have been given, if and when deposited in the U.S. Mail, properly stamped and addressed to
the party for whom intended at such parties' address listed herein, or when personally
delivered to such party. A party may change its address for notice hereunder by giving written
notice to the other party.
N. Omitted
O. Termination: This AGREEMENT may be terminated by any party at anytime for failure of
Janother party to comply with the terms and conditions of this AGREEMENT with thirty (30)
days prior written notice to all other parties; or upon mutual written agreement by all parties.
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CONSULTANT shall be entitled to compensation for any satisfactory work completed prior
to termination. In the event of termination CONSULTANT reserves all rights with respect to
any ARTWORK or portion thereof.
P. Understanding and acceptance- By their execution each party certifies it has read and
understood this AGREEMENT, agrees to be bound by the terms hereof, they have the
authority to execute and bind, and have received a signed and dated copy of the
AGREEMENT.
Q. Successors and assigns: The parties agree all covenants, agreements, conditions, and terms
contained in this AGREEMENT shall be binding upon, apply and inure to the benefit of the
successors and assigns of the respective parties hereto.
12. Compliance with Statutes, Rules, and Regulations
In Performance of the ARTWORK, the CONSULTANT shall comply with all applicable state
and local laws, rules, and regulations, including those set forth in the acknowledgment attached as
Exhibit A.
13. Warranty
The CONSULTANT shall grant a warranty period of two (2) year(s) from the date ARTWORK is
open to the public, provided that the ARTWORK is stored in a climate controlled as for public
occupancy and LIBRAY follows maintenance and cleaning guidelines, for CONSULTANT to
i:D repair/replace the ARTWORK due to defect of materials, and/or workmanship failure.
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AND ENTERED INTO THIS 13th DAY OF AUGUST, 2012.
Signature:
Printed Name:
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Date:
Attest by:
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BURGEON GROUP
Signature: r �
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Printed Name: Kim van der Veen
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Date:
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Address:
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City, State, Zip Code:
60 a KKr - 7 5
Phone Number:
(00029550) Page 8 of 10
Exhibit A
PROHIBITION AGAINST EMPLOYMENT OF ILLEGAL ALIENS
Pursuant to §§ 8-17.5-101, et seq., C.R.S.
1. Burgeon (Contractor) acknowledges that, prior to executing the accompanying
Agreement, Contractor has certified that it does not knowingly employ or contract with an illegal
alien to perform work under the Agreement and that the Contractor has participated in the E-Verify
Program (formerly known as the Basic Pilot Programs) (the "B-Verify Program") or the Colorado
Department of Labor and Employment (the "Department") program established by § 8-17.5-
102(5)(c), C.R.S. (the "Department Program") in order to confirm the employment eligibility of all
employees who are newly hired for employment to perform work under the Agreement.
2. Contractor shall not:
(a) Knowingly employ or contract with an illegal alien to perform work under the
Agreement; or
(b) Enter into a contract with a subcontractor who fails to certify to the Contractor
that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work
under the Agreement.
3. The Contractor has confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under the Agreement through participation in the E-
Verify Program or the Department Program.
(a) In the event the Contractor uses the Department Program for the employment
verification described herein, the Contractor shall comply with the requirements mandated by § 8-
17.5-102(5)(c), C.R.S. including:
C.R.S.; and i. The Contractor shall comply with the provisions of § 8-17.5-102(5)(c),
ii. Contractor shall notify the District of its determination to participate in
the Department Program, and
iii. The Contractor must, within twenty days after hiring an employee who
is newly hired to perform work under the Agreement, affirm that the Contractor has examined
the legal work status of the employee, retained file copies of the documents required by 8
U.S.C. § 1324a and not altered or falsified the identification documents for the employee, and
the Contractor must provide a written, notarized copy of the affirmation of compliance with §
8-17.5-102(5)(c), C.R.S. to the District.
"'Basic Pilot Program" is described in § 8-17.5-101(1), C.R.S., as amended, and further defined as the Basic Pilot
Employment Verification Program created in Public Law 208, 104" Congress, as amended, and expanded in Public Law
156, 108 Congress, as amended, that is administered by the United States Department of Homeland Security.
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