HomeMy WebLinkAboutMARIO MIGUEL ECHEVARRIA - CONTRACT - AGREEMENT MISC - MARIO MIGUEL ECHEVARRIAART IN PUBLIC PLACES CONSTRUCTION AGREEMENT
Foothills Activity Center Mural Project
THIS AGREEMENT is made and entered into this 16th day of May, 2017, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter
referred to as “the City”), and MARIO MIGUEL ECHEVARRIA (hereinafter referred to as
“Artist.”)
In consideration of the mutual covenants and obligations described below, 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 Foothills Activity 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 generally consists of the design, fabrication, signage, and
installation of a mural to be installed & partially painted at the Foothills Activity Center. The
Artist’s 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. Artist must begin the Project
promptly upon receiving the Notice to Proceed and must fully complete the Project by
August 31, 2017. Any extensions of this time limit must be agreed to in writing by the
parties. The City will grant the Artist a reasonable extension of time if the City is delayed
in performing its obligations or if conditions beyond the Artist’s control or Acts of God make
it impossible for the Artist to perform on schedule.
3. Capital Project Management Control System. To insure the Project is consistent with its
authorized scope and schedule, the Artist must provide an approximate schedule for
completing all unit work items covered by the Agreement. The schedule must show the
anticipated percentage completion of each unit work item for each week of the Project.
The Artist must submit the initial schedule to the City prior to beginning the work.
4. City Representative. On or before the date the City issues its Notice to Proceed the City
will designate its project representative who will make all necessary and proper decisions
regarding the Project within the scope of his or her authority. The Artist must direct all
requests for contract interpretations, change orders, or other clarification or instruction to
the City representative.
5. Changes to Scope of Work.
A. Changes by Artist. The Artist cannot change the Project specifications and drawings
in Exhibit “A” without advance written approval from the City.
B. Changes 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. Once the parties have reached agreement, the City will issue a written
Change Order documenting the agreed upon terms. The Artist must not proceed with
work related to the requested change until the City issues the Change Order.
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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 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 that the Artist
must 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
substantially similar works, the United States and worldwide copyrights therein, and
any renewals or extensions thereof, and any and all other rights that the Artist now has
or to which the Artist may become entitled 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 artwork. As additional consideration for this assignment, the
City agrees that all reproductions of the artwork by the City shall credit the Artist.
B. Exceptions. Notwithstanding the assignment of rights described in paragraph A.,
the City agrees that it may not alter the artwork and represent it as the Artist’s work
without the Artist’s permission. In addition, the City will not, nor will it license others to,
make three dimensional reproductions of the artwork without obtaining the consent of
the Artist, and negotiating additional compensation to the Artist in good faith.
C. License Back to Artist of Certain Rights. The City hereby grants to Artist the
following rights in and to the Project: the non-exclusive right to make two-dimensional
reproductions of the artwork for any promotional purpose, provided that any such
reproduction clearly states the location of the Project, acknowledges the City and the
Art in Public Places Program, and contains a copyright notice. With the exception of
publicity pieces, the Artist must not knowingly permit others to make reproductions of
the artwork for commercial purposes without the written permission of the City.
D. Rights under the Visual Artists’ Rights Act. To the extent the uses or removal of
the Project under this Contract affect any rights Artist may have under the provisions of
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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 three (3) years from the date of
the City's Letter of Acceptance, Artist agrees to replace or correct any material defects in
the Project, whether caused by defects in the design, workmanship or materials used in
the Project. If Artist fails to replace or correct any such defects, or to make arrangements
to do so within a reasonable time 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 will also provide, at no charge to the City, continuing advice
regarding the operation, care, maintenance and repair of the Project, as needed.
Additional services above and beyond this amount will be negotiated and agreed to in
writing by the parties.
10. Contract Sum. The City will pay Artist for the performance of this Contract, subject to
additions and deletions provided herein, Four Thousand, Six Hundred and Twenty Dollars
($4,620) for time, materials, Artist’s commission and related project costs, on the following
schedule:
A. $2,310 upon full execution of this Agreement;
B. $2,310 or any remaining amounts due under this Agreement, upon the City's final
approval and acceptance of the Project as complete and receipt of a lien waiver from the
Artist in substantially the form shown on Exhibit B. City will not make final payment until
it has received satisfactory maintenance instructions and photographs as described in
Section 9 and lien waivers in a form acceptable to the City from any and all
subcontractors that have performed work or provided materials in connection with the
Project.
11. Failure to Complete. If Artist becomes ill, dies, or is otherwise unable or unwilling to
complete the Project in accordance with the 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 or substantially
similar artwork within 150 miles of Fort Collins, Colorado.
13. Liquidated Damages. The parties agree the City will suffer certain unspecified damages if
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. Recognizing the difficulty of
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ascertaining the actual damages sustained by the City, the parties agree that the
assessment of liquidated damages is appropriate. If the Project is not completed within
the specified time, Artist authorizes the City to retain from any monies due the Artist, the
sum of Two Hundred Dollars ($200) per day for each and every calendar day the Project
remains unfinished. Liquidated damages will be capped at One Thousand Dollars
($1,000).
14. Governing Law. This Agreement is governed by the laws of the State of Colorado.
15. Notice. Any notice or other communication given by either party to the other related to this
Agreement must be hand delivered; sent by a commercial carrier; or sent by mail,
addressed to the party at its address as set forth below. The notice or other
communication will be effective on the date it is delivered or on the third business day after
being sent, whichever comes first.
If to the Artist: If to the City:
Mario Miguel Echevarria Ellen Martin
2715 Grinell Drive Lincoln Center
Longmont, CO 80503 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 Artist. 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. Assignment. Artist understands that the City enters into this Agreement based on the
special abilities of Artist and that the City considers this Agreement to be an agreement for
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personal services. Accordingly, Artist must neither assign any responsibilities nor
delegate any duties arising under this Agreement without the prior written consent of the
City.
18. Artist -- Independent Agent. The Artist performs all work under this 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
Artist uses subcontractors, 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,
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from work area hazards. The Artist must provide all work area safety control devices, at
Artist’s cost, including, for example, barricades and safety fences around excavations and
drop-offs. The Artist’s safety precautions must be in compliance with all applicable laws,
rules and regulations.
25. Work and Property. The Artist must use best efforts at all times during Artist’s work on the
Project 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 during Artist’s work on the Project.
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 that 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 negligence or fault of Artist, its
subcontractors, agents or employees in the performance of this Agreement.
In any and all claims against the City, or any of its officers, agents, or employees by any
employee, subcontractor or agent of the Artist, the Artist’s indemnification obligation are
not limited in any way by any limitation on the amount or type of damages, compensation,
or benefits payable by or for the Artist or any subcontractor under Workmen's
Compensation laws, Disability Benefit laws, or other employee benefit laws.
27. Insurance and Liability. The Artist must provide or, in lieu of personally providing, must
require all Subcontractors providing services in connection with this Agreement to provide,
from insurance companies acceptable to the City, the insurance coverage designated
below, and pay all costs for such coverage, before commencing work under this
Agreement. The Artist must furnish the City with certificates of insurance as specified
herein showing the type, amount, class of operations covered, effective dates, and date of
expiration of policies, and containing substantially the following statement:
“The insurance covered by this Certificate will not be canceled or
materially altered, except after ten (10) days written notice has been
received by the Owner, the City of Fort Collins.”
In case of the breach of any provision of this Section, the City, at its option, may take out
and maintain such insurance at the Artist’s expense.
The Artist must not commence work under this Agreement until all the insurance required
hereunder has been reviewed by the City and the Artist has provided an acceptable
certificate of insurance to the City.
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The Artist, or in lieu thereof, all Subcontractors of Artist, must maintain during the life of
this Agreement the Worker's Compensation Insurance required by state statute and, in
addition, Employer’s Liability Insurance in an amount not less than $400,000 for each
occurrence, for all of Artist’s employees, if any, to be engaged in work on the Project under
this Agreement.
The Artist and all Subcontractors of Artist must maintain during the life of this Agreement
commercial general liability insurance sufficient to provide coverage for claims for
damages for personal injury, including accidental death, as well as for claims for property
damage, which may arise directly or indirectly from performance of the work under this
Agreement. Coverage for property damage must be on a “broad form” basis. Amount of
insurance to be provided must be not less than $300,000 combined single limits for bodily
injury and property damage.
The Artist is responsible for any liability directly or indirectly arising out of the work
performed under this Agreement by a subcontractor, to the extent that liability is not
covered by the Subcontractor's insurance.
The Artist's and any subcontractor’s insurance policies required under this Agreement
must name the City as an additional insured for any claims arising out of work performed
under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A municipal corporation
BY: _______________________________
Gerry Paul
Purchasing Director
ATTEST:
______________________________
APPROVED AS TO FORM:
______________________________
ARTIST:
BY: _____________________________________
ARTIST
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Assistant City Attorney
City Clerk
EXHIBIT “A”
Artist will:
• Create the mural on prepared MDF panels (high quality pressed board). Panels are
estimated to weigh approximately 30 lbs. per panel.
• Install panels and provide installing hardware, ladder, power tools, layout devises.
Panels will be designed with the ability to be removed, if needed. Artist will provide the
City will installation details.
• Work with APP Coordinator on the color and placement of the lowest green circle,
closest to the floor. Artist will need written approval from APP Coordinator on color and
placement (or if the shape will be included in the mural).
City will:
• Provide scissor lift for artist installation (estimated up to 2 days)
• Provide a 5’ x 15’ staging area to store art and equipment for the installation, and limit
access to half of the gym (mural side) for the up to two days of installation.
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EXHIBIT B
SAMPLE LIEN WAIVER RELEASE
(ARTIST)
TO: City of Fort Collins, Colorado (OWNER)
FROM: MARIO MIGUEL ECHEVARRIA
PROJECT: Foothills Activity Center Mural 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 upon receipt of full and final payment, 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.
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Signed this __________ day of __________, 20___.
______________________________
MARIO MIGUEL ECHEVARRIA
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
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