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131294 ROBERT TULLY - CONTRACT - RFP - 7071 APP MASON CORRIDOR PROJECT
P ART IN PUBLIC PLACES CONSTRUCTION AGREEMENT Mason (MAX) Corridor Project THIS AGREEMENT is made and entered into this -� day of�1ti t� 2012, 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: 1. Scope of the Work. The Artist must furnish all of the materials and perform all of the work for the artistic components of the Mason Corridor (MAX) Project and South Transit Center 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 functional components for the corridor including benches, light poles, sound art, windscreen images, Public Service Co historical marker, and South Transit Center stone panels. The Artist's work must be of high quality, in compliance with generally accepted standards of workmanship, and in conformity with this Agreement. The Artist must work cooperatively with the City's general contractors on the MAX Project and South Transit Center Project. 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 must fully complete the Project by October 1, 2013. 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 on the part of the City in performing its obligations under this Agreement or if conditions beyond the Artist's control or Acts of God render timely performance 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 coordinate with the overall construction schedules for the MAX Project and South Transit Center Project and must indicate the anticipated percentage completion of each unit work item for each week for the duration of the work. The initial schedule is attached hereto as Exhibit "B". The parties understand and agree that the Project schedule may have to change in order to coordinate with and meet the requirements of the general contractors on the MAX and South Transit Center Projects. 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. 0 EXHIBIT C SAMPLE LIEN WAIVER RELEASE (ARTIST) TO: City of Fort Collins, Colorado (OWNER) FROM: Robert Tully (ARTIST) PROJECT: Mason Corridor (MAX) Project 1. The 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 OWNER 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 waives all 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 for all and any work, labor, skill or materials furnished, 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 control of the OWNER, against the project or against all land and the buildings on and appurtenances to the land improved by the project. 3. The ARTIST affirms 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 full any and all existing or possible future mechanic's liens or rights 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. 4. The ARTIST agrees 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, if any, and Surety on any labor and material bonds for the project. Signed this day of , 20. Robert Tully STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this day of , 20_, by Robert Tully. Witness my hand and official seal. My Commission Expires: Notary Public EXHIBIT D FEDERAL TRANSIT ADMINISTRATION TABLE OF CONTENTS 1. 2. NO GOVERNMENT OBLIGATION TO THIRD PARTIES...................................................1 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS.................................................................................................................................1 3. ACCESS TO RECORDS AND REPORTS..........................................................................1 4. FEDERAL CHANGES........................................................................................................3 5. TERMINATION...................................................................................................................3 6. CIVIL RIGHTS REQUIREMENTS.......................................................................................4 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE)........................................................5 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS...............6 9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) ......... 6 10. BUY AMERICA...................................................................................................................7 11. BREACHES AND DISPUTE RESOLUTION.......................................................................8 12. LOBBYING.........................................................................................................................8 13. CLEAN AIR.......................................................................................................................10 14. CLEAN WATER REQUIREMENTS..................................................................................10 15. CARGO PREFERENCE REQUIREMENTS......................................................................10 16. FLY AMERICA REQUIREMENTS....................................................................................11 17. DAVIS-BACON AND COPELAND ANTI -KICKBACK ACTS............................................11 18. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT.....................................18 19. BONDING REQUIREMENTS............................................................................................19 20. ENERGY CONSERVATION REQUIREMENTS................................................................22 21. RECYCLED PRODUCTS..................................................................................................22 22. ADA Access.....................................................................................................................23 NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. ACCESS TO RECORDS AND REPORTS Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). D. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Characteristics Operations I Service Contract Turnkey Constructio n Architectural Engineering Acquisitio n of Rolling Stock Professional Services I State Grantees a. Contracts below None Those None None None None SAT ($100,000) imposed on state pass thru to b. Contracts above None Contractor Yes, if non- None unless None None unless non- $100,000/Capital unless' competitive non- unless competitive award Projects non- award or if competitive non- competitive funded thru2 award competitiv award 5307/5309/5 a award 311 II Non State Grantees a. Contracts below Those SAT ($100,000) Yes imposed on Yes Yes Yes Yes non -state b. Contracts above Grantee $100,000/Capital pass thru to Projects Yes3 Contractor Yes Yes Yes Yes Sources of Authority: 149 USC 5325 (a) 2 49 CFR 633.17 318 CFR 18.36 (i) FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. TERMINATION A. Termination for Convenience (General Provision) The (Recipient) may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to (Recipient) to be paid the Contractor. If the Contractor has any property in its possession belonging to the (Recipient), the Contractor will account for the same, and dispose of it in the manner the (Recipient) directs. B. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the (Recipient) may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the (Recipient) that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the (Recipient), after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. C. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from (Recipient) setting forth the nature of said breach or default, (Recipient) shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude (Recipient) from also pursuing all available remedies against Contractor and its sureties for said breach or default. D. Waiver of Remedies for any Breach In the event that (Recipient) elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by (Recipient) shall not limit (Recipient)'s remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. E. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provisions of this contract, the (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the Recipient may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Recipient resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Recipient in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and 2. the contractor, within [10] days from the beginning of any delay, notifies the (Recipient) in writing of the causes of delay. If in the judgment of the (Recipient), the delay is excusable, the time for completing the work shall be extended. The judgment of the (Recipient) shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, 'Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is _9.9_ %. A separate contract goal [has not] been established for this procurement. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City of Fort Collins deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). c. The successful bidder/offeror will be required to report its DBE participation obtained through race -neutral means throughout the period of performance. d. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the City of Fort Collins. In addition, [is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor's work by the City of Fort Collins and contractor's receipt of the partial retainage payment related to the subcontractor's work.] e. The contractor must promptly notify City of Fort Collins whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of City of Fort Collins. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as "covered transactions." Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. This represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Grantees, contractors, and subcontractors who enter into covered transactions also must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Language The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualified by certification. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by {insert agency name). If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to (insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. BUY AMERICA The contractor agrees to comply with 49 U.S.C. 53230) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, and microcomputer equipment and software. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors. Certification requirement for procurement of steel, iron, or manufactured products Certificate of Compliance with 49 U.S.C. 5323U)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 53236)(1) and the applicable regulations in 49 C.F.R. Part 661.5. Date Signa Comp Title Certificate of Non -Compliance with 49 U.S.C. 53236)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(1) and 49 C.F.R. 661.5, but it may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 C.F.R. 661.7. Date Signature Company Name Title BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City's [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by City, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. LOBBYING Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying 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 by 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 terns. The Artist must not proceed with work related to the requested change until the City issues the Change Order. 6. Formal Acceptance and Ownership of the Project. The Artist must notify the City when the Project is fully 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: (1) the City agrees that the Project is fully installed and is complete consistent with the terms of this Agreement, all other related work is completed in accordance with this Agreement, and the City formally 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. Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100, 000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-- LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, 4• v� certifies or affirms the truthfulness and accuracy of each statement of it certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., ap I to this ce cation and disclosure, if any. Signature of Contractor's Authorized Official wn , -Name and Title of Contractor's Authorized Official 2 Date CLEAN AIR Clean Air— (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. CLEAN WATER REQUIREMENTS Clean Water— (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. CARGO PREFERENCE REQUIREMENTS Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to 10 use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels; b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill -of - lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. FLY AMERICA REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10 which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government -financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. DAVIS-BACON AND COPELAND ANTI -KICKBACK ACTS Background and Application The Davis -Bacon and Copeland Acts are codified at 40 USC 3141, et seq. and 18 USC 874. The Acts apply to grantee construction contracts and subcontracts that "at least partly are financed by a loan or grant from the Federal Government." 40 USC 3145(a), 29 CFR 5.2(h), 49 CFR 18.36(i)(5). The Acts apply to any construction contract over $2,000. 40 USC 3142(a), 29 CFR 5.5(a). 'Construction,' for purposes of the Acts, includes "actual construction, alteration and/or repair, including painting and decorating." 29 CFR 5.5(a). The requirements of both Acts are incorporated into a single clause (see 29 CFR 3.11) enumerated at 29 CFR 5.5(a) and reproduced below. The clause language is drawn directly from 29 CFR 5.5(a) and any deviation from the model clause below should be coordinated with counsel to ensure the Acts' requirements are satisfied. Clause Lanauaae Davis -Bacon and Copeland Anti -Kickback Acts (1) Minimum wages — (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in 11 the construction or development of the project), will be paid unconditionally and nol less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii) (A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area in which the work is performed. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, 12 Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis - Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (v) (A) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by 13 the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(v) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (2) Withholding — The City of Fort Collins shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the City of Fort Collins may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records — (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, anc social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under 14 a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii) (A) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the City of Fort Collins for transmission to the Federal Transit Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department 15 of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees — (i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, 16 Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. c (6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. (7) Contract termination: debarment - A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis -Bacon and Related Act requirements - All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards - Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 17 (10) Certification of eligibility — (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.1001. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT Background and Application The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq. The Act applies to grantee contracts and subcontracts "financed at least in part by loans or grants from ... the [Federal] Government." 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6). Although the original Act required its application in any construction contract over $2,000 or non -construction contract to which the Act applied over $2,500 (and language to that effect is still found in 49 CFR 18.36(i)(6)), the Act no longer applies to any "contract in an amount that is not greater than $100,000." 40 USC 3701(b)(3) (A)(iii). The Act applies to construction contracts and, in very limited circumstances, non - construction projects that employ "laborers or mechanics on a public work." These non - construction applications do not generally apply to transit procurements because transit procurements (to include rail cars and buses) are deemed "commercial items." 40 USC 3707, 41 USC 403 (12). A grantee that contemplates entering into a contract to procure a developmental or unique item should consult counsel to determine if the Act applies to that procurement and that additional language required by 29 CFR 5.5(c) must be added to the basic clause below. The clause language is drawn directly from 29 CFR 5.5(b) and any deviation from the model clause below should be coordinated with counsel to ensure the Act's requirements are satisfied. Clause Language Contract Work Hours and Safety Standards (1) Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefore- shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the 18 B. Exceptions. Notwithstanding the assignment of rights described in paragraph A., the City agrees that it may not alter the sound art components of the Project and represent them as the Artist's work without the Artist's permission. Turning off the sound for any period of time will not be considered an alteration under this paragraph C License Back to Artist of Certain Rights. The City hereby grants to Artist the following rights in and to the Project: (i) the non-exclusive right to make two-dimensional reproductions of the Project for non-commercial, promotional purposes, 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; and (ii) the exclusive right to create and reproduce derivative artworks depicting characters, images and/or themes that are similar, but not identical, to those depicted in the Project, in any form and for any purpose except to the extent prohibited by paragraph 12, below. With the exception of the rights granted above, the Artist must not make or knowingly permit others to make reproductions of the Project for any purposes without the written permission of the City. D. Rights under the Visual Artists' Ri htg s 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. 8. Guarantee of Workmanship and Material. For a period of two (s) 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 satisfactory 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 damage 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. 2 clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. (3) Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. BONDING REQUIREMENTS Applicability to Contracts For those construction or facility improvement contracts or subcontracts exceeding $100,000, FTA may accept the bonding policy and requirements of the recipient, provided that they meet the minimum requirements for construction contracts as follows: (a) A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The "bid guarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. (b) A performance bond on the part to the Contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. (c) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the contract. Payment bond amounts required from Contractors are as follows: 1. 50% of the contract price if the contract price is not more than $1 million; 2. 40% of the contract price if the contract price is more than $1 million but not more than $5 million; or 3. $2.5 million if the contract price is more than $5 million. (d) A cash deposit, certified check or other negotiable instrument may be accepted by a grantee in lieu of performance and payment bonds, provided the grantee has established a procedure to assure that the interest of FTA is adequately protected. An 19 irrevocable letter of credit would also satisfy the requirement for a bond. Flow Down Bonding requirements flow down to the first tier contractors. Model Clauses/Language FTA does not prescribe specific wording to be included in third party contracts. FTA has prepared sample clauses as follows: Bid Bond Requirements (Construction) (a) Bid Security A Bid Bond must be issued by a fully qualified surety company acceptable to the City and listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate of Authority as described thereunder. (b) Rights Reserved In submitting this Bid, it is understood and agreed by bidder that the right is reserved by the City to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of the City. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid opening without the written consent of the City, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefore. It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income generated thereby which has been retained by the City as provided in [Item x "Bid Security" of the Instructions to Bidders]) shall prove inadequate to fully recompense the City for the damages occasioned by default, then the undersigned bidder agrees to indemnify the City and pay over to the City the difference between the bid security and (Recipient's) total damages, so as to make the City whole. The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive. Performance and Payment Bonding Requirements (Construction) The Contractor shall be required to obtain performance and payment bonds as follows: (a) Performance bonds 1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the the City determines that a lesser amount would be adequate for the protection of the City. 2. The City may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The City may secure additional protection by directing 20 the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (b) Payment bonds 1. The penal amount of the payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million. (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is more than $5 million. 2. If the original contract price is $5 million or less, the City may require additional protection as required by subparagraph 1 if the contract price is increased. Performance and Payment Bonding Requirements (Non -Construction) The Contractor may be required to obtain performance and payment bonds when necessary to protect the (Recipient's) interest. (a) The following situations may warrant a performance bond: 1. City property or funds are to be provided to the contractor for use in performing the contract or as partial compensation (as in retention of salvaged material). 2. A contractor sells assets to or merges with another concern, and the City, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. 3. Substantial progress payments are made before delivery of end items starts. 4. Contracts are for dismantling, demolition, or removal of improvements. (b) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows: 1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the City determines that a lesser amount would be adequate for the protection of the City. 2. The City may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The City may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (c) A payment bond is required only when a performance bond is required, and if the use of payment bond is in the (Recipient's) interest. (d) When it is determined that a payment bond is required, the Contractor shall be required to obtain payment bonds as follows: 1. The penal amount of payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million; 21 (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is increased. Advance Payment Bonding Requirements The Contractor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a performance bond is not furnished. The City shall determine the amount of the advance payment bond necessary to protect the City. Patent Infringement Bonding Requirements (Patent Indemnity) The Contractor may be required to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Contractor is unknown or doubtful. The City shall determine the amount of the patent indemnity to protect the City. Warranty of the Work and Maintenance Bonds (a) The Contractor warrants to City, the Architect and/or Engineer that all materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by City, free from faults and defects and in conformance with the Contract Documents. All work not so conforming to these standards shall be considered defective. If required by the [Project Manager], the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. (b) The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by City and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to City. As additional security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item X below], furnish separate Maintenance (or Guarantee) Bonds in form acceptable to City written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all). ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. RECYCLED PRODUCTS Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. 22 ADA Access Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C. Sections 12101 et seq. and DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; and Joint ATBCB/DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by reference the ATBCB's "Americans with Disabilities Act Accessibility Guidelines" (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37. 23 SECTION Bond No. 71346792 KNOW ALL MEN BY THESE PRESENTS that Robert Tully dba Tully Artworks 733 McKinley Avenue Louisville, CO 80027 (an Individual). (a Partnership). (a Corporation), hereinafter referred to as the "Principal" and Western Surety Company jl P.O. Box 5077 Sioux Falls, SO 57117 hereinafter referred to as 'the Suretyl, are held and firmly bound unto Crtv of Fort Collins, 300 Laporte Ave, Fort Collins, Colorado 80522 a (Municipal Corporation) hereinafter referred to as the "OWNER", in the penal sum of ' I in lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, successors and assigns, iointly and severally, firmly by these presents THE CONDITIONS OF THIS OBLIGATION are sugh tthat whereas the Principal entered into a certain Agreement with the OWNER, dated the3c day ofj�t)-14* ,0, 12 . a copy of which is hereto attached and made a part hereof for the performance of The Eity of Fort Collins Project. Mason Corridor (MAX) Project and South Transit Center Project NOW. THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings. covenants, terms, conditions and agreements of said Agreement during the original term thereof, and any extensions thereof which may be granted by the OWNER, with or without Notice to the Surety and during the life of the guaranty period, and it the Principal shall satisfy all claims and demands incurred under such Agreement, and shall fully indemnity and save harmless the OWNER from all cost and damages which A may suffer by reason of failure to do so, and shall reimburse and repay the OWNER all outlay and expense which the OWNER may incur in making good any default then this obligation shall be void: otherwise to remain In full force and effect. PROVIDED. FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the Work to be performed thereunder or the Specifications accompanying the same shall in any way affect its obligation on this bond: and it does hereby waive notice of any such change. extension of time, alteration or addition to the terms of the Agreement or to the Work or to the Specifications PROVIDED, FURTHER, that no final settlement between the OWNER and the CONTRACTOR shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. PROVIDED, FURTHER, that the Surety Company must tie authorized to transact business in the State of Colorado and be acceptable to the OWNER. One Hundred Ninety Two Thousand Six Hundred Fifty Dollars and No Cents. ($192,650.00) 24 IN WITNESS WHEREOF, this instrument is �ez<�ecuted in three (3) counterparts, each one of which shall be deemed an original. this:3cJ 'day of2012. IN PRESENCE OF: Principa Robert Tully db Artworks Robert Tully (Title) we�eas (Title) (Corporate Seal) IN PRESENCE OF: N/A IN PRESENCE OF: SE Anita C. Keller / Witness (Sure�y Seal) 733 McKinley Avenue, Louisville, CO 80027 (Address) Other Partners By: N/A By: Surety Western Surety Company Bx 4deFl -,,4��L . o� i sonl tan n ac P.O. Box 5077, Sioux Falls, SD 57117 (Address) .NOTE: Date of Bond must not be prior to date of Agreement. If CONTRACTOR is Partnership, all partners should execute Bond. 2i SECTION 00615 PAYMENT BOND Bond No. 71346792 KNOW ALL MEN BY THESE PRESENTS: that Robert Tully dba Tully Artworks 733 McKinley Avenue Louisville, CO 80027 (an Individual). (a Partnership), (a Corporation), hereinafter referred to as the "Principal' and Western Surety Company P.O. Box 5077 Sioux Falls, SD 57117 hereinafter referred to as "the Surety", are held and firmly bound unto the City of Fort Collins 300 Laporte Ave.. Fort Collins, Colorado 8,0522 a (Municipal Corporation) hereinafter referred to as "the OWNER', in the penal sum ' of in lawful money of the United States, for the payment of which sum well and truly to be made. we bind ourselves, successors and assigns, jointly and severally, firmly by these presents. THE CONDITIONS OF THIS OBLIGATION are such that whereas the Principal entered into a certain Agreement with the OWNER, dated the ]IE " day ofA'f^V� �12 a copy of which is hereto attached and made a part hereof for the performance of The City of Fort Collins project, Mason Corridor (MAX) Project and South Transit Center Project. NOW, THEREFORE, if the Principal shall make payment to all persons, firms, subcontractors, and corporations furnishing materials for or performing labor in the prosecution of the Work provided for in such Agreement and any authorized extension or modification thereof, including all amounts due for materials, lubricants, repairs on machinery, equipment and tools, consumed, rented or used In connection with the construction of such Work, and all insurance premiums on said Work, and for all labor, performed in such Work whether by subcontractor or otherwise, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the Work to be performed thereunder or the Specifications accompanying the same shall in any way affect its obligation on this bond; and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work or to the Specifications. PROVIDED, FURTHER, that no final sel shall abridge the right of any beneficiary PROVIDED, FURTHER, that the Surety the State of Colorado and be acceptable the between the OWNER and the CONTRACTOR ier, whose claim may be unsatisfied. must be authorized to transact business in One Hundred Ninety Two Thousand Six Hundred Fifty Dollars and No Cents. ($192,650.00) 2r, i I IN WITNESS WHEREOF, this instrument is executed i three (3) counterparts, each one of which shall be deemed an original, this day of No✓4ift�u2 , 2012. IN PRESENCE OF- Principal bertTully Tully Artworks X� (Title) witness i (Title) (Corporate Seal) IN PRESENCE OF: IN PRESENCE OF: L/I�/J & Anita C. Keller / Witness (Surety Seal) 733 McKinley Avenue, Louisville, CO 80027 (Address) Other Partners By: N/A Surety Western Surety Company By: \ k- - y K. Anderson I Alt in -Fact P.O. Box 5077, Sioux Falls, SO 57117 (Address) NOTE: Date of Bond must not be prior to date of Agreement. If CONTRACTOR is Partnership, all partners should execute Bond. 27 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Fulls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Timothy Blanchard, Andrew P Walters, Ashley K Anderson, Jonathan B Land, Individually of Grand Junction, CO, its true and lawful Auorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney. pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 7th day of August, 2012. =�.ftPETyC WESTERN SURETY COMPANY aBaq�,°a- �ifv`Sf Ax'.! tt 4N UPµ01 LfP� aul T. BmBat, Vice President Slate of South Dakota s.s County of Minnehuhu On this 7th day of August, 2012, before me personally came Paul T. BruOat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is Such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires"""""^""""""`*"""^^`• J. MOHR I f ^ NOTARY PUBLIC June 23. 2015 ; sEAE seAE _------�� SOUTH PAKOTA J. Mohr, Notary Public CERTIFICATE 1, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law of the corporation ,p med on the reverse hereof is still in force. In testimony whereof 1 have hereunto subscribed my name and affixed the seal of the said corporation this day of U Lr FfZ_ 2012 WESTERN SURETY COM-PANY �TN Form F4280-7-2012 L.. Nelson, Assistant Secretary 10. Contract Sum. The City will pay Artist for the performance of this Contract, subject to additions and deletions provided herein, the sum of One Hundred and Ninety -Two Thousand, Six Hundred and Fifty Dollars ($192,650) based on the Project Budget included in Exhibit A, on the following schedule: A. $28,897 upon full execution of this Agreement; B. Up to $125,223 in monthly progress payments: Artist shall, once per month, submit an invoice to the City representative documenting the time, materials and other allowable Project expenses incurred by Artist in the previous 30 days for which Artist is seeking payment; B. $38,530 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 "C", and comparable lien waivers from any and all subcontractors that have performed work or provided materials in connection with the Project; and all federal requirements set forth in Exhibit "D" have been met. 11. Failure to Complete. If Artist becomes ill, dies, or is otherwise unable or unwilling to complete the Project in accordance with the Agreement, 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. Project as Unique. Artist represents and warrants that the Project is artistically unique, and agrees not to create or be involved in the creation of an identical artwork, or a substantially similar artwork that will be displayed within 100 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 Five Hundred Dollars ($500) per day for each and every calendar day the Project remains unfinished. In no event will liquidated damages exceed Thirty —Five Thousand Dollars ($35,000). 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 3 BUY AMERICA CERTIFICATION The contractor agrees to comply with 49 U.S.C. 53230) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, and microcomputer equipment and software. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors. Certification requirement for procurement of steel, iron, or manufactured products Certificate of Compliance with 49 U.S.C. 5323y)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 53230)(1) and the applicable regulations in 49 C.F.R. Part 661.5. Date Signa Comr Title H rA-iSt ©UJV\W Certificate of Non -Compliance with 49 U.S.C. 53236)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(1) and 49 C.F.R. 661.5, but it may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 C.F.R. 661.7. Date Signature Company Name Title 29 LOBBYING CERTIFICATION Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100, 000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)] 30 (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] r The Contractor, a (r (� I Iv certifies or affirms the truthfulness and accuracy of each statement of its certication and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disolosure, if any. Signature of Contractor's Authorized Official �I Vy__r1 , Name and Title of Contractors Authorized Official Date 31 DAVIS BACON WAGE RATES General Decision Number: C0120008 08/31/2012 CO8 Superseded General Decision Number: CO20100008 State: Colorado Construction Type: Building County: Larimer County in Colorado. BUILDING CONSTRUCTION PROJECTS (does not include residential construction consisting of single family homes and apartments up to and including 4 stories) Modification Number Publication Date 0 01 /06/2012 1 01/13/2012 2 01 /27/2012 3 02/24/2012 4 04/06/2012 5 05/18/2012 6 06/01 /2012 7 07/27/2012 8 08/03/2012 9 08/17/2012 10 08/31/2012 ASBE0028-001 07/01 /2010 Rates Fringes Asbestos Workers/Insulator(Includes application of all insulating materials, protective coverings, coatings and finishings to all types of mechanical systems) $ 30.23 11.53 CARP 1001-001 05/01 /2009 Rates Fringes CARPENTER (Including Formbuilding and Metal Stud Work) $ 26.60 8.89 CARP1607-002 06/01/2012 Rates Fringes MILLWRIGHT $ 28.95 11.10 ELEC0068-009 06/01/2011 Rates Fringes ELECTRICIAN (Including Low Voltage Wiring and Installation of Communications Systems, Security Systems, Telephones, and Temperature Controls) $ 31.60 12.57 ELEV0025-002 01/01/2012 Rates Fringes Elevator Constructor $ 39.34 23.535 32 FOOTNOTE: a. Employer contributes 8% of basic hourly rate for over 5 years' service and 6% basic hourly rate for 6 months' to 5 years' service as Vacation Pay Credit. PAID HOLIDAYS: New Year's Day; Memorial Day; Independence Day; Labor Day; Veterans Day; Thanksgiving Day; Friday after Thanksgiving Day; and Christmas Day. IRON 0024-001 07/01 /2011 Rates Fringes IRONWORKER, STRUCTURAL $ 23.80 10.91 PAI N0930-001 07/01 /2012 Rates Fringes GLAZIER $ 27.77 7.42 PLAS0577-001 08/01 /2011 Rates Fringes Cement Mason/Concrete Finisher $ 23.00 10.75 PLUM0003-001 07/01 /2012 Rates Fringes PLUMBER (Excluding HVAC work) $ 33.18 11.44 PLUM0208-001 07/12/2012 Rates Fringes PIPEFITTER (Including HVAC pipe) $ 30.10 11.52 SHEE0009-001 01 /01 /2011 Rates Fringes Sheet metal worker (Includes HVAC duct and installation of HVAC systems) $ 31.66 10.98 SU CO2001-015 12/20/2001 Rates Fringes LABORER Common $ 9.56 2.36 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is union or non -union. 33 Union Identifiers An identifier enclosed in dotted lines beginning with characters other than "SU" denotes that the union classification and rate have found to be prevailing for that classification. Example: PLUM0198-005 07/01/2011. The first four letters , PLUM, indicate the international union and the four -digit number, 0198, that follows indicates the local union number or district council number where applicable , i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. The date, 07/01/2011, following these characters is the effective date of the most current negotiated rate/collective bargaining agreement which would be July 1, 2011 in the above example. Union prevailing wage rates will be updated to reflect any changes in the collective bargaining agreements governing the rate. Non -Union Identifiers Classifications listed under an "SU" identifier were derived from survey data by computing average rates and are not union rates; however, the data used in computing these rates may include both unior and non -union data. Example: SULA2004-007 5/13/2010. SU indicates the rates are not union rates, LA indicates the State of Louisiana; 2004 is the year of the survey; and 007 is an internal number used in producing the wage determination. A 1993 or later date, 5/13/2010, indicates the classifications and rates under that identifier were issued as a General Wage Determination on that date. Survey wage rates will remain in effect and will not change until a new survey is conducted WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: • an existing published wage determination " a survey underlying a wage determination • a Wage and Hour Division letter setting forth a position on a wage determination matter ' a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis -Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 34 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested parry's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION 35 SCOPE OF WORK Artwork for Mason Corridor Artist: Robert Tully Exhibit "A" The following descriptions accompany drawings and itemized costs and details of the artworks. LIGHT POSTS. The artist will provide 25 welded stainless steel light posts that include light - reflective, sculptural detailing. The detailing will be unique for each of 12 stations, so designs will be done in pairs, two for each station. The posts will be 15 feet high and 12" square with a 13" square base plate. The reflective sculptural details would be made of 1 1/4" square stainless pieces 3/8" thick. They would be welded together at various angles to form strings about 10 to 18 inches long. They then would be formed into different shapes and welded to the vertical posts near the top for the final composition, which would denote motion or energy in an abstract way. Structural vertical posts will be 2" square tube of brushed 304L stainless. The top and bottom box shapes and the reflective sculpture would be 316L stainless (for best appearance in chemical or salt environments). The artist will provide electrical chases and anchor holes. He will ask the general contractor for a hole pattern for the fixtures at the top and will match that pattern. The artist will store and deliver the light posts to the site. Limits of work. The artist does not provide the two fixtures for the top, installation of the posts, or electrical wiring and connections. The order is simply for customized posts. The artist also does not provide foundations or anchor rods, although the engineered plan for them is in the construction documents. The artist will create the first light pole prototype and obtain the City of Fort Collins written approval before producing additional light poles. The City requires the sculptural components to start at a minimum of 8 ft. above the ground and strong enough to hold the weight of a 175 lb. individual. SOUND ART. On each light post as described, the artist will install 25 speakers and other equipment for sound art will be installed in the station icons. The speakers will need to be mounted 8' or higher on the light pole. The sounds will be nature -related. Working in conjunction with sound artist Jim Green, the artist will first develop a sample WAV sound file for submission to the City. The artists also will propose durations and frequency of play time for consideration. Upon approval, they will create a total of 12 files, one for each station, along with a master file for the City to own at stops, the sound would play on both sides of the street. Some sounds will be purchased recordings of nature while others will be recorded by the artists. The artists will alternate, combine, enhance or otherwise mix the sounds for the final composition. The sound systems would run independently from the station's announcement system and from each other. Each light post will contain a stainless steel, NEMA rated speaker box about 12" square with a speaker grill. A separate steel box will house equipment designed for outdoor use--, a 12-volt converter, a digital repeater for sound, a timer, and (potentially) a motion sensor will be installed in each station icon. The boxes will have tamper -resistant screws for a removable hatch and will be designed to be water proof to protect the components. As in a typical light post, the speaker box also covers the anchor bolts and the 4" electrical connection box for the lights. Limits of work. The artists will provide and pull the wire and perform wiring in the base of each light post, while the City will install wiring to that point and a 12V link from one post to the other on station platforms. The City will decide whether to interrupt the sound with its announcement system and provide the wiring to do so. Artist Team will work with the Project Team to develop the final approved sounds files and sound experience Final written approval will be required from the City of Fort Collins before proceeding to create the final sound files. ART BENCHES. The scope of work includes 24 benches made of colored, cast concrete slabs on stainless steel legs. The designs will be inspired by the glass windscreens by the artist, so that the look carries through each station in windscreen and bench. The first step in the scope will be to produce images of each bench for submission to the City. (A design has been submitted for Harmony station already along with most station windscreens.) Benches at full MAX stations will be 30" long, 15" wide and 18" high, matching the width of the unused ticket vending machine opening; a pair of benches will face each other. Benches at MAX stops paired across the street will be 36" x 16" x 18" high with one bench on each side of the street. Concrete of two or more colors will be mixed in the design. The benches will be 3 1 /12" thick, reinforced with 1/2" rebar. Colors generally will be mixed and poured at the same time, leading to feathered edges, daubs and swirls in the design. The concrete is troweled, cured overnight, honed with a fine -grit, water -fed polishing tool, and patched wherever pin holes occur. Once cured for three weeks, the bench is given three coats of clear Hydrosheen sealer or equivalent. The concrete will have 5/16" stainless steel plates embedded at the four rounded corners as weld plates for the legs. The legs will be 2" square stainless tubes welded to the bench top. The bench will have an approved skateboard deterrent element and structural support under the bench (for stiffness), to prevent cracking. The artist will provide delivery and installation. Holes will be drilled in the concrete for 5/8" x 4" anchors to be epoxied in the concrete at each leg. The artist will coordinate with the design team for installation timing. The artist will consult with the City as to the required skateboard -deterring additions to the bench (such as a stainless steel corner plates). The artist will be required to obtain written approval from the City of Fort Collins for the final designs for the benches and the skateboard -deterring addition. WINDSCREENS. The artist will produce computer CD image files of designs suitable for lamination in glass windscreens by the DuPont Expressions process. The artist will coordinate with the lamination fabricator selected by the City to meet the fabricator's specifications for file size and type. The artist will select portions of the designs for 12" x 12" samples for the fabricator to make and afterward will adjust designs if needed for the proper appearance prior to fabrication of the larger end product. The windscreens will be translucent so that light, objects and colors behind them can be seen, reducing clarity of the design but allowing for safety and a sense of light and openness. Each station will have a unique design reflective of the neighborhood and architecture. Draft designs have been produced for all 12 stations but the artist will submit revisions for Mountain, Drake, and Horsetooth stations. The artist will sharpen the historic photo for Harmony. Draft images are not simply to be enlarged, which would decrease clarity dramatically; all designs are to be "repainted" by hand on the computer from their current small file to actual 5' x 8' size (10 glass panels) and 4'3" x 8' (six panels), Art image is the full size of the glass, resulting in very large file sizes stored on CDs. Full MAX stations have one 5' x 8' panel. MAX stops generally have two 4'3" x 8' panels side by side only on one side of the street. However, the Mulberry and Olive stops have a single 4'3" wide end panel. The artist will take a CSU logo provided by the University and enlarge it to the proper size for lamination. Artist will be required to obtain written approval from the City of Fort Collins for final windscreen designs and the number of windscreen panels to be produced. The City may reduce the number of windscreen panels and budget. Limits of work. The City, not the artist, shall authorize lamination of the large windscreens after review of a glass sample from a portion of the design. Fabricator's shipment shall be to the installing glazier, not the artist. The artist does not store, install or supervise installation of the glass. HISTORICAL MARKER. The artist shall construct a historical marker near the Prospect Station according to his design submitted to the City. The marker is to be 12' 3" high and 37" square at its brick base, along with galvanized steel supports and 12 vintage glass insulators as light fixtures. Drawings give details of the design. City contractor will provide bricks of type and condition suitable for marker construction. The artist will provide an engineer's stamped shop drawing of a reinforced concrete foundation. The artist will purchase all materials and complete all welding and other fabrication steps and installation. City contractor will provide and install brick pavers around marker site. Limits of work. The artist will include electrical conduits and chases within the monument, while the City will provide electricity to the structure and connect fixtures purchased and attached by the artist. The City will facilitate access for excavation, pouring concrete, and installation. The City will supply a soils report for the artist's engineer. The artist will work with the team on the details of the project, including; recycled materials and signage text. The artist will obtain written approval for the City of Fort Collins on any changes from the proposed concept. STONE RELIEF PANELS FOR SOUTH TRANSIT CENTER (STC). The artist will design, create and install 30 granite panels with sandblasted, painted images at the South Transit Center. The designs will relate to local transportation and will be submitted to the City for approval prior to fabrication. The designs will be made in pairs --one with a historical transportation image and one with a detail from the first that is enlarged and adapted to convey motion and energy. The designs will be sandblasted into polished Colorado rose red granite slabs. Incised areas will be stained with Lithichrome pigments intended for exterior granite. be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to the Artist: Robert Tully 733 McKinley Ave. Louisville, CO 80027 16. Termination/Default. If to the City: Ellen Martin Lincoln Center 417 W. 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 the notice 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 element of this Agreement. If either party fails or refuses to perform according to the terms of this Agreement; 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 termination 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 default. 17. Assi ng ment. 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. 4 The granite slabs will be 1 1/4" thick. With mounting hardware they will be approximately flush with the concrete columns into which they are set. They will be sized to fit into the 1 1/2" recessed niche in the STC columns, leaving a 3/8" gap around the stone to be filled with mortar. At the smaller platform columns, the stones will be 33 3/8" high, tapering from 15 3/8" wide at the top to 21 3/8" at the bottom. At the larger lobby columns, the panels will be 53 3/8" high, tapering the other way. The artist will coordinate with the architect and contractor on niche sizes and installation. Limits of work and coordination. The artist will provide two templates for the STC contractor to use in drilling holes in the concrete columns for mounting hardware. The artist will supply the mounting hardware. The contractor will epoxy the hardware to the wall with the proper positioning to prepare the site for installation. The general contractor will keep the panel niches free of paint, sealer or coatings. The artist will deliver the stone panels and install them. After installation, the general contractor shall provide cement mortar around the panels in a color to be specified by the City in consultation with the artist. The contractor will protect the panels after installation during column painting or coating. The artist will obtain final approval of the designs before proceeding. The artist will create one prototype for the City of Fort Collins to approve before fabrication of the 30 panels. LIGHT POSTS MAX Stations Artist: Robert Tully 10/31/12 LIGHT POSTS --Quantity 25 Materials --Stainless steel (Buy America certified) Bottom plates 12" x 12" x 0.75" w 5 holes (24) 304L $5,325 Cut sheet for top box and lower cover (72) 12" x 12" x 11 ga 316L 1,968 Brushed square tube (96) 2"x2"x.120 304L 16,471 Polished bar for reflective element .375 x 1.25" x 36 If. 316L 700 Polished bar for sides of top and bottom enclosures .125" x 4" x 144 If. 316L 2,199 Machined tabs w 1/4" threaded holes for access panels 304L 600 Top fixture mount plate 4,400 Shipping to shop and then to site 800 Polishing for reflective element after welding 2,800 Labor --cutting, welding, reflective element design 190 hours @$100 7.5 hrs/pole 19,000 Machining holes for electrical chase in tube 600 Coordination, management with electrical for fixtures, junction 500 Studio rent, administrative 2,000 Contingency 5,000 SUBTOTAL $62,363 Fabricate unique/custom light poles with integrated metal sculptural components for each station of MAX. The Artist will combine hand crafted metal sculptural elements added to commercially available metal components for exterior light poles. Installation will be provided in this service. 15, LIGHT POST WITH INTEGRATED MET/ SCULPTURE TO REFLEC Uses standard Kim Lightinc top of artist -fabricated pole four posts of 2 x 2" square space for sculpture. Sounds components under removable box cover along with electrical connections and foundatioins bolts. See foundation drawings for details. 8" . MASON BRT Robert Tully ' 12 . 12" ht reflective tlpture made of ished stainless steel cares welded ether. Two views of ne sculpture. Each tion to have unique :tern. Standard MAX LIGHT POST Two views. 1211x12"x15' +� (top 5' shown) r Stainless steel polished i squares are welded together ` to form patterns denoting motion and energy for MAX.. The squares play with light from the fixtures that will be k mounted to the top of the posts. Robert Tully 12/15/2010 ■ fixtures to be mounted on either side at top. SOUND ART MAX Stations Artist: Robert Tully and Jim Green SOUND For an independent sound system, 12 unique WAV sound files of nature -oriented sounds by the artists. Includes purchase cost of some sounds and live recording of others, editing. $20,000 Speakers (25) 3,600 12V converter (18) 450 Timer (18) 990 Digital repeater for sound (18) 1800 Motion sensor (18) 900 Enlargement of stainless steel box on light post with speaker grill (25) 3,800 Installation and wiring by artists 4 hrs @$80 (12 stations) 3,840 Separate system project management and design 6,000 Contingency 2,000 TOTAL $43,380 Robert Tully & Jim Green — Mason Corridor SOUND ART. On each light post as described, the artist will install 25 speakers and other equipment for sound art will be installed in the station icons. The speakers will need to be mounted 8' or higher on the light pole.The sounds will be nature -related. Working in conjunction with sound artist Jim Green, the artist will first develop a sample WAV sound file for submission to the City. The artists also will propose durations and frequency of play time for consideration. Upon approval, they will create a total of 12 files, one for each station, along with a master file for the City to own at stops, the sound would play on both sides of the street. Some sounds will be purchased recordings of nature while others will be recorded by the artists. The artists will alternate, combine, enhance or otherwise mix the sounds for the final composition. The sound systems would run independently from the station's announcement system and from each other. Each light post will contain a stainless steel, NEMA rated speaker box about 12" square with a speaker grill. A separate steel box will house equipment designed for outdoor use--, a 12-volt converter, a digital repeater for sound, a timer, and (potentially) a motion sensor will be installed in each station icon. The boxes will have tamper -resistant screws for a removable hatch and will be designed to be water proof to protect the components. As in a typical light post, the speaker box also covers the anchor bolts and the 4" electrical connection box for the lights. Limits of work. The artists will provide and pull the wire and perform wiring in the base of each light post, while the City will install wiring to that point and a 12V link from one post to the other on station platforms. The City will decide whether to interrupt the sound with its announcement system and provide the wiring to do so. Artist Team will work with the Project Team to develop the final approved sounds files and sound experience. Final written approval will be required from the City of Fort Collins before proceeding to create the final sound files. BENCHES MAX stations Artist: Robert Tully BENCHES --Quantity 24 Design 11 designs, 2 hours each @ $50 $1,100 Materials Stainless square tube 2"x2" x .120 wall for legs plus top, bottom mounting plates w holes 7,920 Epoxy and bolts 960 Concrete, colors, form supplies 1,440 Contingency on material cost, redo 2000 Labor Weld legs and plates 1.5 hrs. each @ $80 (weld only, no design) 4,080 Form complex design, pour three or more colors at once like painting, strip form, patch holes, polish, 3 coats sealer 7.6 hours ea. @ $100 18,240 Install Load, ship, unload, field weld legs to bench, drill holes and epoxy bolts in concrete 7,680 TOTAL $43,420 BENCHES Cast concrete with integral color, 30" x 15" x 18" high. Designs vary to reflect each station locale and windscreen. Stainless steel legs (4) with 2" sq. tube, attached to concrete with bolts, epoxy. Two benches per station. NOTE: The two benches at downtown stops will measure 36" x 15" x 18" high and be located across the street from each other. Benches will include anti -skateboarding metal corners. Chiseled edges to give Harmony Station design 1" x 1" x .12 stainless 1/8 inch stainless steel square tube on both plate embedded in long sides of bench, poured concrete bench connected in middle to form H pattern Field weld bottom plate to support frame to remove any gap for concrete to flex and crack under weight Comer angle protrudes 3/8 inch above bench as arding device 4 bolts total 5 1/2" long set through pavers to concrete with epoxy and cap nuts. ATM TOWER HARMONY ART WINDSCREEN CLEAR GLASS WINDSCREENS y BENCH PLAN, CENTER PLATFORMS 12/15/10 TULLY r CONCRETE BENCHES 3011 X 15" X 3" a asp o aF ICON SUPPORTS Im BENCHES match windscreens EXAMPLE: WINDSCREEN Harmony Station. The image in the glass windscreen is based on historic photos of apple orchards there with artist - added apples. 5'x8' BENCH TOP Cast concrete design based on orchard windscreen theme above. 18. Artist -- Independent Agent. The Artist performs all work under this Agreement 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 making and accepting communications with or from the City. The Artist must maintain a current address and telephone number with the City throughout the term of this Agreement. 20. Superintendence. Before starting work the Artist must designate 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 date of this Agreement, submit to the City the names of all subcontractors Artist intends to use for the work. The Artist must 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 Project. 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 lien 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 Agreement 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 safety 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. The Artist must provide all work area safety control devices, 5 WINDSCREEN DIGITAL FILES (NOT GLASS) MAX Stations Artist: Robert Tully WINDSCREEN DIGITAL FILES (NOT GLASS) --Quantity 16 plus 4 CSU logo files Artist's final file production: Enlarge small $6,400 concept files to 5 x 8 feet by repainting design with enough detail and density. Save to CD for shipping and archive. 16 files for glass panels, 4 hours each @$100 Produce original designs for MAX station windscreens. Artist will create small design concepts for approval. After approval artist will create larger files to show needed detail and send the required format to windscreen manufacturer. Artist will approve and oversee production of windscreen. 16 designs plus 4 logo panels ARTIST DESIGN TIME Addendum to Itemized Costs, Mason Corridor Robert Tully 7/21/12 Windscreen revisions Replace Mountain station design Revise Horsetooth design Revise Drake design 6 h rs @ $50 $300 4 h rs @ $50 200 4 h rs @ $50 200 Total $700 Windscreen Art Specifications The supplier will produce 20 tempered, laminated glass windscreens each with a unique interlayer of an art image or CSU Logo. The interlayers will be produced as a high - resolution inkjet polymer print from a digital file to be supplied by the City's artist at 200 pixels per inch. Windscreens will have two layers of 1/4" clear or low -iron tempered glass such as Starphire, plus one image layer .030" thick and one soft -white layer .030" thick. The artist may substitute a clear layer in place of the soft white as needed and the supplier will coordinate production with the artist. Edges will be rounded and polished. The image layer must be UV stable. Notice of at least a 10 year warranty of the product must be delivered to the client. The windscreens must be suitable for installation outdoors subject to sun, weather and minimal rain protection; glass clamps will suspend the windscreen off the ground with no glass holes required. Include crating for shipment. Six windscreens would measure 5'x8'. Ten windscreens would measure 4'3"x8'. Before producing the windscreens, the supplier will submit a 12" x 12" sample from each of the image files for a check on proper design visibility. The supplier also shall submit a 4" x4" or similar sample of the clear glass for a check on "greenness" or clarity compatibility with adjacent non -art windscreens. HARMONY station NEIGHBORHOOD LINK: Historic apple orchard location and nearby Harmony farming colony Cil HARMONY platform view HORSETOOTH station lw NEIGHBORHOOD LINK: Horsetooth Mountain 19 TROUTMAN station NEIGHBORHOOD LINK: Water theme from ditch and name Q E3 TROUTMAN platform view SWALLOW platform view 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. The Artist shall provide personal protective equipment (PPE) for personnel working on job site. 25. Work and Pronertv. 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, except when such facilities are provided by the MAX Project general contractor. 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 any 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, damages, losses, expenses, and legal fees including attorney'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. 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 Subcontractor's insurance. 27. Federal Requirements. Artist much comply with, and require all of Artist's subcontractors to comply with, all applicable requirements of the Federal Provisions set forth in Exhibit D, attached and incorporated herein by reference. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. 6 oilflop II BAYFARM station NEIGHBORHOOD LINK: Dot pattern inspired by NRRC aerial maps made with Light Detection and Ranging sensors (LIDAR) FARM Drm view DRAKE station WN NEIGHBORHOOD LINK: CSU Veterinary Hospital station ■ .III r q; �r i t✓ K3 PROSPECT station NEIGHBORHOOD LINK: Renowned CSU seed bank and flower trial garden. PROSPECT platform view UNIVERSITY station LOCATION LINK: The rams horn grows and transforms to denote both change and continuity over generations. The yellow bars give a sense of motion and passage of time, as well as measurement and calibration. The design is inspired by network patterns used to study biological generations. It is meant to have a timeless compatibility with the station. AA6 UNIVERSITY Close up details ayh� e i y�y L I � r oallsolso ATTEST: Zv a Wanda-Kfaymck City Clerk G\T Y OF %��o 2 Dvl <1. o.. APPROV D A TO FORM: Assistant City kttomey THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation BY: � J m s B. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management No Text MULBERRY detail i■ all] oal a wre No Text 41k, 0 Plu ww-7 �l■1�1�it.T: f.� +•t C97 to OI 06 I l a` n lial PAW MA a JA1191f1UM A#1j.M)) i104 ' ` 4P � e OLIVE platform view MOUNTAIN stop NEIGHBORHOOD LINK: Downtown lights, music, people, festivals Robert Tully 12/19/12 ■i Oip Ir m [I LWJ SOUTH TRANSIT CENTER STONE RELIEF PANELS MAX Station Artist: Robert Tully STC STONE RELIEF PANELS Create 29 Designs, 3 hours ea @ $50 $4,350 (30) Colorado Rose Red granite slabs 1 3/4 $9,684 thick with sandblasted, colored, recessed designs on transportation themes. Sizes are 54" high and 34" high, both skewed in width to match columns Installation by artist, panels backed by thin- $816 set mortar and Hilti epoxy on dowels. Templates supplied by artist for building contractor to drill holes and set dowels prior to artist's installation. TOTAL $14,850 STATE OF COLORADO ) )ss. COUNTY OF/-a,;�� Subscribed and sworn to before me this ,�2 q4,1 day of k1bV6>a%e 2012, by: 7 vhe,-f- - l-u/!y Witness my hand and official seal. My Commission Expires: 0 Notary Pu lic ,•.rip lifq=�"��i'' STONE PANE' FOR SOUTH TRANSIT CEN Sandblasted relief on rose red granite.Two s and 54 inches high. Thirty panels will be m concrete columns in tr pairs. Fifteen designs represent transportatic and each will have an panel with an enlargec gives a more abstract representation of moti�.. _.._ energy. PUBLIC SERVICE STATION CO. HISTORICAL MARKER MAX Station Artist: Robert Tully PUBLIC SERVICE COMPANY HISTORICAL MARKER Foundation, excavation and anchors 2000 Brick, cleaning and installation and stone cap 2000 Steel, cut with holes 1460 Glass vintage lights (12) 120 Electrical installation (assume elect. supplied to site) 800 Fixture sockets to fit glass lights 240 Glass mounting pipes and crossbars 400 Engineering review 500 Shop drawings 500 Welding of art pedestal boxes 1200 Management and design details 2300 Zinc plaque for historical text, intalled 450 Powdercoat black paint on vertical tubes 200 Contingency 600 TOTAL $12,770 W-7-All : IF aA .Mau — vow k IW, -Adm. SAW. OV _S VOL 7- qND WIRI'AIC o9R,: v j-4 T-6*%5 West Elevation, PSCo Historical Marker Proposal Located southeast of Prospect Station next to walk and bike racks Artist: Robert Tully 2/2/12 Green glass electrical insulators (Vintage ones foi sale on Ebay for $10 apiece) Optional lighting in glass insulators and in plaque bo) to illuminate wording and sides of box Zinc plaque with black background and silver letter describing history of site, 14" x 10" Buff sandstone cap 42" x 42" x 3" Galvanized steel angle posts 4" x 4" x 1 /4" (Option for more historic look could be timbers) Wire mesh with black coating, 1" square holes Galvanized rectangular steel tube crossbars 4" x 2" with stainless steel bolts. 'E: THE PSCo BUILDING WILL BE RCHED FOR STEEL IN USABLE JDITION DURING DEMOLITION FOR IN THE HISTORIC MARKER. 1 1 /4" round steel pipes with flat black powdercoat paint. (To support plaque box as well as serving as wire chase for optional lights in insulators.) Galvanized steel box to hold plaque on front and optional light, 15" x 11" x 14" high. Light would shine downward from under lip of lid. Galvanized steel pedestal with vertical bar "cooling" veins 3/4" deep Salvaged brick veneer on concrete .� core. Orange -red used brick or similar with overhang courses at top as in historic building. Galvanized structure above is mounted through stone to concrete q7" North Elevation, PSCo Historical Marker Proposal Located southeast of Prospect Station next to walk and bike racks Artist: Robert Tully 2/2/12 12'3" 12 glass insulators total -- Rounded roof with drip edge Metal strips raised 1./4" allow indirect illumination from inside box through screen slots. 18" 1 U 15" r„ 58" Option: LED strip under roof lights plaque Plaque 14" 4" 23" ?7" C 1-302 MATCH LINE-183+00 SEE DWG NO. R50 £z O O > D O —i cn O m zl z � I --1 i f I I i r— ®I ; m —f 7 M -0 r G7 LI ;0 K ;D M 71 rn X rn yCy M O m H N D n co g z r, Z� Z o N Z_ m —4 � z X > > O z f c7 ti O Z Z fx Z C n 011, s Il OD � p I NN Zw CO m GJ N 1 A tg O q� N � _ PI J ;0 L') V m0> f1 I�FO P -+f- 1 N O �o '+ o Ico 1 YD I I mm rnA84+00 i I II W A i Proposed historical 1� marker location r - I =l 1 1 �l I � I I .I I i I I � I A =185+00 _p ASEMENT STING ►r o.. Ln Sl --=- S r W c.n VERSt-"r 115 --- i r 11.1: Slt ------ 511--- Slj -- 3" v-_ Brick pavers 3' (matching those in marker) 3" PSCo Historical Marker Bricks from PSCo building will be reused as pavers here if available COLORADO STATE II NDAT ION MAX Station Artist: Robert Tully Outside Direct Costs Misc. travel and administration $1,500 Finish photo documentation, plaque $800 Studio Rent $1,000 Performance & Payment Bonds $5,467 TOTAL $8,767 Exhibit "B" ART COMPLETION SCHEDULE The Artist will complete elements of the project according to the following schedule: Windscreen enlargement files are to be completed and ready for delivery to the City's chosen glass fabricator by January 31, 2013. STC stone panels are to be installed by the artist by June 30, 2013. Two additional sample drawings will be submitted by December 18, 2012, and the remainder by January 21, 2012. Light posts will be delivered to the site by May 30, 2013. One will be ready for inspection January 21, 2013. A minimum of two per month will be completed after that point. A sample sound file will be delivered to the City by January 10, 2012, and the remainder by March 15, 2013. The sound installation will be complete by August 30, 2013. Benches drawings will be submitted by March 1, 2013, and the finished products installed by August 30, 2013. The PSCo historical marker will be completed on site by June 15, 2013.