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HomeMy WebLinkAboutNICK AND HENRY COVEY - CONTRACT - RFP - APP 2015 PIANOS ABOUT TOWN PROJECTArt in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 1 of 12 ART IN PUBLIC PLACES CONSTRUCTION AGREEMENT Pianos About Town Murals THIS AGREEMENT is made and entered into this 8th day of March, 2016, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter referred to as “the City”), and Nick and Henry Covey (hereinafter referred to as “Artists.”) In consideration of the mutual covenants and obligations herein expressed, the parties agree as follows: 1. Scope of the Work. The Artists must furnish all of the materials and perform all of the work for the Pianos About Town 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 painting a mural on all sides of an upright piano, including designing the mural, priming the piano, and interacting with the visiting community while painting in a public location. The Artists’ work must be of high quality, in compliance with generally accepted standards of workmanship, and in conformity with this Agreement. 2. Time of Completion. The City will issue a Notice to Proceed. Artists must begin the Project promptly upon receipt of the Notice to Proceed. The Artists are scheduled to paint the piano in a location (Curfman Gallery, Lory Student Center, Colorado State University), in Fort Collins on view to the public starting March 9, 2016. The Artists are required to paint on site during regular Museum business hours. The Project must be fully complete by March 23, 2016. Any extensions of this time limit must be agreed upon in writing by the parties. The City will grant the Artists 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 Artists’ control or Acts of God render timely performance of the Artists’ services impossible. 3. Capital Project Management Control System. [This paragraph intentionally omitted.] 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 Artists must direct all requests for contract interpretations, change orders, or other clarification or instruction to the City representative. 5. Changes to Scope of Work. A. Changes by Artists. The Artists cannot change the Project specifications and drawings in Exhibit “A” without advance written approval from the City. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 2 of 12 B. Changes by the City. The City may request changes in the design and construction of the Project through written Change Order Requests. The Artists and the City will then negotiate in good faith to reach agreement on any necessary changes in price or scheduling requirements. Once the parties have reached agreement, the City will issue a written Change Order documenting the agreed upon terms. The Artists 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 Artists must notify the City when the Project is fully complete. The City’s representative will do a walk-through of the Project with the Artists and either accept the Project as complete or explain to the Artists any unresolved issues or defects that remain, which the Artists must cure before the City will accept the Project as complete. Once the City has accepted the Project the City will be the sole owner of the Project, and the Artists will have no further obligations under this Agreement, except as set forth in paragraphs 8, 12, and 26. 7. Ownership of Works Created. A. Assignment of Copyright. The Artists 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 Artists now have or to which the Artists 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 Artists. Because of the temporary nature of the Pianos About Town mural project, the City reserves the right to paint over this Project or dispose of the Project in any manner the City deems appropriate. B. License Back to Artists of Certain Rights. The City hereby grants to Artists 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 DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 3 of 12 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 Artists must not make or knowingly permit others to make reproductions of the Project for any purposes without the written permission of the City. C. Rights under the Visual Artists’ Rights Act. To the extent the uses or removal of the Project under this Contract affect any rights Artists may have under the provisions of federal or state law, including the 1990 Visual Artists’ Rights Act, the Artists hereby knowingly waives any rights of preservation of the Project provided by those laws. 8. Guarantee of Workmanship and Material. For a period of one (1) year from the date of the City's acceptance of the Project, Artists agree to replace or correct any material defects in the Project, whether caused by defects in the, workmanship or materials used by the Artists in the Project, but not including the piano itself. If Artists 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 Artists must reimburse the City for the costs of any such replacement or correction. If the City asks Artists to repair damage caused to the Project by vandalism, collision, extreme environmental conditions, or other unforeseeable causes, the City will reimburse Artists 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 [This paragraph intentionally omitted.] 10. Contract Sum. The City will pay Artists for the performance of this Contract, subject to additions and deletions provided herein, the sum of Six Hundred and Fifty Dollars ($650) on the following schedule: A. $260 upon full execution of this Agreement; B. $390 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 a lien waiver from the Artists in substantially the form shown in Exhibit “B”, and comparable lien waivers from any and all subcontractors that have performed work or provided materials in connection with the Project. The City will not make final payment until it has received a notarized letter, license, or other acknowledgement from the TM or Copyright holder(s), showing a legal right to use images, photographs taken by Rosalie Winard, likeness, designs, and previously published engineering diagrams. 11. Failure to Complete. If Artists 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 DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 4 of 12 sums not yet paid to Artists, and may use any such sums toward completion of the Project in any manner the City may deem appropriate. 12. Project as Unique. Artists represent and warrant 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, Artists authorize the City to retain from any monies due the Artists, the sum of Fifty Dollars ($50) per day for each and every calendar day the Project remains unfinished. In no event will liquidated damages exceed Three Hundred Dollars ($300). 14. Governing Law. This Agreement is governed by the laws of the State of Colorado. 15. Notice. Any notice or other communication given by either party to the other related to this Agreement must be hand delivered; sent by a commercial carrier; or sent by mail, addressed to the party at its address as set forth below. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to the Artist: If to the City: Nick Covey Ellen Martin 220 N. Roosevelt Ave Lincoln Center Fort Collins, CO 80521 417 West Magnolia Fort Collins, CO 80521 16. Termination/Default. A. Termination. The City may terminate this Agreement on no less than seven (7) days written notice to the Artists. In such event the City will compensate Artists for all services performed to the date Artists receive 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 Artists default or neglect to carry out the work in accordance with this Agreement, the City may elect to make good such deficiencies and charge Artists therefor. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 5 of 12 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. Attorney’s 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. Assignment. Artists understand that the City enters into this Agreement based on the special abilities of Artists and that the City considers this Agreement to be an agreement for personal services. Accordingly, Artists must neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 18. Artists -- Independent Agents. The Artists perform all work under this Agreement as independent agents and are not agents of the City, nor are the Artists' Subcontractors or employees subagents of the City. 19. License and Business. The Artists must hold, in the Artists' name, all necessary licenses and permits to perform the work. The Artists 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 Artists must maintain a current address and telephone number with the City throughout the term of this Agreement. 20. Superintendence. Before starting work the Artists must designate an authorized representative who has complete authority to represent and act for the Artists. The Artists must keep competent supervisory personnel on the work during its progress and provide efficient supervision of the work, using Artists’ best skill and attention. The Artists 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 Artists must employ only competent, skillful workers to do the work. Whenever any person employed by the Artists appears to be incompetent or acts in a disorderly or improper manner, the Artists must promptly remove such person from the work. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 6 of 12 22. Subcontractors. [This paragraph intentionally omitted.] 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 Artists 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 Artists 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 Artists are solely responsible for maintaining a safe work area and protecting the safety and welfare of Artists’ employees and subcontractors, and the general public, including without limitation area residents, motorists, bicyclists, pedestrians, and children, from work area hazards. The Artists’ safety precautions must be in compliance with all applicable laws, rules and regulations. 25. Work and Property. The Artists 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 Artists must provide and maintain all passageways, guard fences, lights, and other facilities required for property protection by state or municipal laws and regulations and location conditions. The Artists must protect the Project and related materials from damage due to the nature of the work, the elements, carelessness of the Artists, or from any foreseeable cause whatever until the completion and acceptance of the Project by the City. The Artists assume 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 Artists indemnify and hold harmless the City, the Fort Collins Downtown Development Authority, the Bohemian Foundation, and their respective officers, agents and employees (collectively, the “Indemnified Parties”), from and against all claims, damages, losses, expenses, and legal fees including attorney’s fees, arising out of or resulting from the Artists’ performance under this Agreement. In any and all claims against the Indemnified Parties by any employee, subcontractor or agent of the Artists, the Artists’ 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 Artists or any subcontractor under Workmen's Compensation laws, Disability Benefit laws, or other employee benefit laws. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 7 of 12 The Artists are 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, A Municipal Corporation BY:__________________________________ Gerry Paul Purchasing Director ATTEST: ______________________________ City Clerk APPROVED AS TO FORM: ______________________________ Assistant City Attorney ARTISTS: __________________________________ Henry Covey __________________________________ Nick Covey DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 8 of 12 EXHIBIT A SCOPE OF WORK DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 9 of 12 DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 10 of 12 This image is a sample of the two-tone stencil technique showing one of the animals on the front bottom panel of the piano design. The Artists are required design approval from APP staff before work starts on the piano. The Artists are required to prime and paint all sides of the upright piano. Artists will paint their mural in view of the community to enjoy. The Artists shall engage visitors and give them an opportunity to interact with them while they are painting the piano. The materials and process for creating the artwork shall be appropriate for on-site fabrication at this venue. The Artists must have a presence and paint on-site, especially on weekends. Artists are not required to be on-site painting every day, but are required to paint for 14 days and cannot complete the mural project early, without prior approval. The Artists will coordinate their painting schedule with the LSC Program Manager. Artists are required to create a busy, active, surface with either composition or paint layering, and strong color contrast to deter graffiti. Artists are required to send APP staff images showing the progress of the piano mural. Artists are required to keep the working area clean from any paint splatters, or will clean area immediately. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 11 of 12 EXHIBIT B SAMPLE LIEN WAIVER RELEASE (ARTISTS) TO: City of Fort Collins, Colorado (OWNER) FROM: Nick and Henry Covey (ARTISTS) PROJECT: Piano Project 1. The ARTISTS acknowledge having received payment, except final payment, from the OWNER for all work, labor, skill and material furnished, delivered and performed by the ARTISTS 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 ARTISTS voluntarily waive all rights, claims and liens, including but not limited to, mechanic’s notices, equitable liens and labor and material bond rights which the ARTISTS 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 ARTISTS affirm 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 ARTISTS or ARTISTS’ agents, employees, and servants, or by and through the ARTISTS 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 ARTISTS 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 ARTISTS’ 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 attorney’s 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. DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519 Art in Public Places Construction Agreement APP 2015 Pianos About Town Project Page 12 of 12 Signed this __________ day of __________, 20__. ______________________________ Nick Covey and Henry Covey STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this __________ day of __________, 20__, by: ______________________________ Witness my hand and official seal. My Commission Expires: ______________________________ ______________________________ Notary Public DocuSign Envelope ID: 323755BA-7CC3-44B0-A06B-0EB7D13F6519