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HomeMy WebLinkAbout12500RESOLUTION NO. 12500 A RESOLUTION APPROVING AN AGREEMENT BETWEEN KENNETH WILLIAMS STUDIO AND THE CITY OF PUEBLO, A TH MUNICIPAL CORPORATION, RELATING TO THE 4 STREET BRIDGE ARTWORK PROJECT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME WHEREAS, the City of Pueblo has received $305,000 (PL1101) from the Colorado Department of Transportation to administer the selection of an artist and th installation of the art on the 4 Street Bridge in Pueblo, Ordinance No. 8339; th WHEREAS, the 4 Street Bridge Artwork Selection Committee approved the selection of Kenneth Williams Studio to create and install the artwork per the Call for th Entry and Request for Proposals for the 4 Street Bridge Artwork Project. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement between the City of Pueblo, a Municipal Corporation, and Kenneth th Williams Studio to provide artwork, relating to the 4 Street Bridge Artwork Project, Project No. 12-058, a copy of which is attached hereto having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is hereby authorized to execute and deliver said Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 3. Funding for the artwork will be provided from Project No. PL1101. INTRODUCED: September 24, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE: SEPTEMBER 24, 2012AGENDA ITEM # M-5 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JAMES F. MUNCH, ACTING DIRECTOR TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN KENNETH WILLIAMS STUDIO AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, RELATING TO TH THE 4 STREET BRIDGE ARTWORK PROJECT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve an agreement between the City of Pueblo and Kenneth th Williams Studio to provide artwork on the 4 Street Bridge in Pueblo? RECOMMENDATION Approve the Resolution. BACKGROUND The City solicited Call for Entry through CAFÉ an online company operated by Westaf, a public art management company. The online call for entry is the most common way of soliciting artists for public art projects. The call was limited to Colorado residents only. The selection committee consisted of a public art manager, the Pueblo Performing Arts Guild, adjacent property owners, Downtown Association, City Council representatives, and Colorado Department of Transportation staff. Request for Proposals (RFP) were given to the three finalists to present a final proposal. Kenneth Williams Studio of Pueblo was selected as the finalist. David Griggs from Denver and Tim Upham from ndrd Fort Collins were the 2 and 3 place finalists and were each given an honorarium of $1,000 for their participation. There were 21 total submittals for the Project. The artwork is anticipated to be completed in one year by September 2013. FINANCIAL IMPACT Funds in the amount of $300,000 are available from Project No. PL1101. ART IN PUBLIC PLACES SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 24th day of September, 2012, by and between THE CITY OF PUEBLO, COLORADO, a Municipal Corporation (hereinafter referred to as "the City "), and KENNETH WILLIAMS STUDIOS (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. Artist shall satisfactorily perform the artistic services and provide the completed Artwork for the project in conformance with City of Pueblo Request for Proposal Project No. 12 -058 (4 Street Bridge SH96 Artwork Project) dated June 15, 2012, and the responses thereto as set forth in Exhibit "A ", attached hereto and incorporated herein by this reference (the "Project" or "Artwork "). The Artist shall perform all of the work and furnish all of the labor, materials, design services, permits, licenses, personnel, equipment, off -site production, and tools required or incident to completing the Project. 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 receipt of the Notice to Proceed and must fully complete the Project by /August 31, 2013. Any extensions of this time limit must be agreed upon in writing by the parties. 3. 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 terms. The Artist must not proceed with work related to the requested change until the City issues the Change Order. 4. 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 1 Project, and the Artist will have no further obligations under this Agreement, except as set forth in paragraphs 6, 7, 10, and 24. 5. Ownership of Works Created. A. Assignment of Copyright. The Artist hereby assigns, transfers, and conveys to the City all right, title and interest in and to the Project together with the copyright therein and the right to secure copyright registration therefore, in accordance with Sections 101, 204, and 205 of Title 17 of the United States Code, the Copyright Law of the United States. This assignment, transfer and conveyance includes, without limitation, any and all features, sections, and components of the Project, any and all works derived therefrom, the Unites States and worldwide copyrights therein, and any renewals or extensions thereof, and any and all other rights that the Artist now has or to which the Artist may become entitled under existing or subsequently enacted federal, state, or foreign laws, including, but not limited to the following rights: to reproduce, publish, and display the Project publicly, to prepare derivative works of and from the Project, to combine the Project with other materials, and to otherwise exploit and control the use of the Project. As additional consideration for this assignment, the City agrees that all reproductions of the Project by the City shall credit the Artist. B. 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 Project for any purpose, provided that any such reproduction clearly states the location of the Project, acknowledges the City and the Art in Public Places Program, and contains a copyright notice. With the exception of publicity pieces, the Artist must not knowingly permit others to make reproductions of the Project for commercial purposes without the written permission of the City. C. Rights under the Visual Artists' Rights Act. To the extent the uses or removal of the Project under this Contract affect any rights Artist may have under the provisions of federal or state law, including the 1990 Visual Artists' Rights Act, the Artist hereby knowingly waives any rights of preservation of the Project provided by those laws. 6. 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, materials, fabrication or installation 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. 7. 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 8. Contract Sum. The City will pay Artist for the performance of this Contract, subject to additions and deletions provided herein, the sum of Three Hundred Thousand Dollars ($300,000) on the following schedule: A. City will pay Artist for all Basic Services and the Artwork the maximum lump sum set forth above and in Exhibit "A ", as full compensation for all product furnished and services performed by Artist under this Agreement, except for services for additional work or work beyond the scope of this Agreement. Partial periodic payments may be requested not more frequently than monthly, and upon approval by City's representative, will be made based upon the percentage of work complete and in place as determined by City's representative; provided, however, that City may also request partial payment for specifically ordered materials and work in process which are suitably and securely stored on or off site, in an amount not to exceed 50% of the value of the completed Artwork or portion thereof. In order to avail itself of partial payment for specially ordered materials and work in process, Artist shall submit to City, and obtain City's approval of, a schedule of values for all labor, equipment and materials to be furnished for or in connection with the work, which schedule shall aggregate to not more than the lump sum contract price. B. All applications for payment shall contain appropriate records and other documentation that such services have been performed and the amount of product delivered and incorporated into the Artwork or, in the discretion of Customers representative, suitably and securely stored on site. Thereafter, City will pay Artist for the amount of the application approved by City's representative within 40 days of the date such application is received; provided, however, that final payment hereunder shall not be made until the date of final settlement and in accordance with the provisions of 38 -26 -107, C.R.S. C. No separate or additional payment shall be made to Artist for profit or overhead, nor for any unanticipated expenses. D. Before undertaking any work or providing any services which Artist considers beyond or in addition to the Basic Services described in Exhibit "A" or otherwise contemplated by the terms of this Agreement, Artist shall advise the city in writing that (i) Artist considers the work beyond the scope of this Agreement, (ii) the reasons that Artist believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. Artist shall not proceed with such out of scope or additional work until authorized in writing by the City. The compensation for any such authorized work shall be negotiated, but in the event the parties fail to negotiate or are unable to agree as to the compensation the Artist shall be compensated for its direct costs and time at the rate of $25.00 per hour. 9. 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. 10. 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 100 miles of Pueblo, Colorado. 3 11. 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 One Hundred Dollars ($100) per day for each and every calendar day the Project remains unfinished. 12. 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: Kenneth Williams Bill Zwick 505 West 10 Street Landscape Architect/Project Manager Pueblo, CO 81003 211 E. `D' Street Pueblo, CO 81003 Either party may change its address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. 13. Termination/Default. A. Termination. The City may terminate this Agreement and Artist's performance hereunder, at any time upon seven (7) days written notice to the Artist, either for cause or for convenience. In such event, Artist shall cease all work and stop incurring expenses, if any, and 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. 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. Termination for Default. In the event termination of this Agreement or Artist's services is for breach of this Agreement by Artist, or for other fault of Artist including but not limited to any failure to timely proceed with work, or to pay its employees, or to perform work according 4 to the highest standards governing such work, or to perform work in a manner deemed satisfactory by the City, or to deliver the Artwork, then in that event, Artist's entire right to compensation shall be limited to the lesser of the contract price or the reasonable value to City of work performed, if any. Artist's responsibility for its work and services, and its obligations under paragraphs 6, 7, 10, and 24 of this Agreement, shall survive any termination. 14. Assignment. Artist understands that the City enters into this Agreement based on the special abilities of Artist and that the City considers this Agreement to be an agreement for personal services. Accordingly, Artist must neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 15. 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. Artist shall be solely and entirely responsible for its acts and the acts of its subcontractors, agents and employees. Artist shall be responsible, in accordance with applicable law, to City for all loss or damage to City caused by Artist's breach of this Agreement or negligent act or omission, including any such breach, act or omission by Artist's employees. Artist shall be completely responsible for the safety of Artist's employees in the performance of work under this Agreement and shall provide all necessary safety and protective equipment and training for such employees. Artist shall be solely responsible for payment of all wages to its employees, and for all withholding payroll taxes associated with same. Artist shall be responsible to comply with all Colorado Department of Transportation ( "CDOT ") and ASHTO safety standards. Artist shall coordinate all on -site activities with the City and CDOT representatives. 16. 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. 17. 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. 18. 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. 19. Equal Employment Opportunity. In connection with the performance of this Agreement, Artist shall not discriminate against any employee or applicant for employment because of race, color, religion, sec, national origin, disability or age. Artist shall endeavor to insure that applicant are employed, and that employees are treated during employment, without regard to their race, color, religion, sec, national origin, disability or age. 5 20. 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. 21. 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. 22. 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, 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. Artist shall be responsible to comply with all CDOT and ASHTO safety standards. Artist shall coordinate all on -site activities with the City and CDOT representatives. 23. Work and Property. The Artist must use best efforts at all times to safely guard the Project, the City's property and adjacent property, including underground utilities, from damage, injury or loss in connection with the Project. The Artist must provide and maintain all passageways, guard fences, lights, and other facilities required for property protection by state or municipal laws and regulations and location conditions. The Artist must protect the Project and related materials from damage due to the nature of the work, the elements, carelessness of the Artist, or from any foreseeable cause whatever until the completion and acceptance of the Project by the City. The Artist assumes all risk of loss or damages arising out of the nature of the work to be done under this Agreement, or from 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 24. Indemnity. The Artist agrees to indemnify and save harmless the City against any and all damages to property or injuries to or death of any person or persons arising from its performance of this Contract, including property and employees or agents of the City and shall defend, indemnify and save harmless the City from any and all claims, demands, suits, actions or proceedings of any kind or nature, including without limitation Worker's Compensation claims, of or by anyone whomsoever in any way 6 resulting from or arising out of the Artist's operations in connection with this Contract, including operations of sub - contractors and acts or admissions of employees or agents of the Artists or its sub - contractor. 25. Insurance. Artist shall not commence work under this contract until he has obtained at his own expense and without cost to the City all insurance required under this paragraph and such insurance has been approved by the City, nor shall Artist allow any subcontractor to commence work on his subcontract until all similar insurance required of the subcontractor has been so obtained and approved. Artist shall maintain such insurance until the final acceptance by the City of all construction covered by the contract. A. Commercial General Liability Insurance. Artist shall secure and maintain during the period of this contract and for such additional time as work on the project is being performed, Commercial General Liability Insurance issued to and covering the liability of the Artist with respect to all work performed by him and all his subcontractors under the contract, to be written on a Commercial General Liability policy form CG 00 01. This insurance shall be written in amounts not less than $600,000 for each occurrence and aggregate for personal injury including death and bodily injury and $600,000 for each occurrence and aggregate for property damage. This policy of insurance shall be endorsed naming the City of Pueblo, its agents, officers and employees as additional insureds. To the extent that Artist's work, or work under his direction, may require blasting, explosive conditions, or underground operations, the commercial general liability coverage shall contain no exclusion relative to blasting, explosion, collapse of building, or damage to underground property. The policy shall also provide coverage for contractual liability assumed by Artist under the provisions of the Contract, and "Completed Operations and Projects Liability "coverage. B. Comprehensive Automobile Liability Insurance. Artist shall procure and maintain during the period of the contract and for such additional time as work on the project is being performed, Comprehensive Automobile Liability Insurance. This insurance shall be written with limits of liability for and injury to one person in any single occurrence of not less than $150,000 and for any injury to two or more persons in any single occurrence of not less than $600,000. This insurance shall include uninsured/underinsured motorist coverage and shall protect Artist from any and all claims arising from the use both on and off the site of the project of automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by Artist. C. Workers' Compensation Insurance. Artist shall procure and maintain during the period of this contract and for such additional time as work on this project is being performed, Workers' Compensation Insurance, including Occupational Disease Provisions, fully complying with the provisions of the Workers' Compensation Act, as amended, of the State of Colorado. Such insurance shall be obtained notwithstanding that Artist may have no employees as defined under said Act or that Artist might otherwise avail itself of an exemption under the Act from any legal requirement to obtain such coverage. Such insurance shall cover all employees of Artist performing work on the project irrespective of whether such employees may be shareholders, managers, partners or owners of Artist or exempt employees under the Act. If any class of employees engaged in hazardous work under this contract at the site of the project is not protected by the Workers' Compensation statute, Artist shall provide, and similarly shall cause each subcontractor to provide, special insurance for the protection of such employees not otherwise protected. Workers' compensation policy shall contain an endorsement waiving subrogation against the City. D. The CGL policy shall contain any necessary endorsements to insure Artist's contractual obligation to hold harmless, defend and indemnify Customer, from and against any liability to third parties, arising out of negligent acts or omissions of Artist, its agents and employees. 26. State - Imposed Mandates Prohibiting Illegal Aliens from Performing Work. A. Prior to, or within ten (10) days of execution of this Agreement, Artist shall submit to the Purchasing Agent of the City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and that the Artist will participate in either the E- Verify Program" created in Public Law 208, 104 Congress, as amended and expanded in Public law 156, 108 Congress, as amended, that is administered by the United States Department of Homeland Security or the "Department Program" established pursuant to section 8- 17.5- 102(5)(c), C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. B. Artist shall not: (I) Knowingly employ or contract with an illegal alien to perform work under this Agreement; (II) Enter into a contract with a subcontractor or subconsultant that fails to certify to Artist that the subcontractor or subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. The following state - imposed requirements apply to this Agreement: (I) The Artist shall have confirmed or attempted to confirm the employment eligibility of all of its employees who are newly hired for employment in the United States through participation in the Basic Pilot Program and, if the Artist is not accepted into the Basic Pilot Program prior to entering into this Agreement, that the Artist shall apply to participate in the Basic Pilot Program every three months until the Artist is accepted or this Agreement has been fully completed, whichever occurs earlier. This provision shall not be required or effective if the Basic Pilot Program is discontinued. (II) The Artist is prohibited from using the Basic Pilot Program procedures to undertake pre - employment screening of job applicants while this Agreement is being performed. (III) If the Artist obtains actual knowledge that a subconsultant or subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien to perform work under this Agreement, the Artist shall be required to: a. Notify the subconsultant or subcontractor and the Purchasing Agent of the City within three (3) days that the Artist has actual knowledge that the subconsultant or subcontractor is employing or contracting with an illegal alien; and b. Terminate the subcontract with the subconsultant or subcontractor if within three (3) days of receiving the notice required pursuant to subparagraph (c)(III)A. above the subconsultant or subcontractor does not stop employing or contracting with the illegal 8 alien; except that the Artist shall not terminate the contract with the subconsultant or subcontractor if, during such three (3) days, the subconsultant or subcontractor provides information to establish that the subconsultant or subcontractor has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment (hereinafter referred to as CDLE) made in the course of an investigation that CDLE is undertaking pursuant to its authority under 8- 17.5- 102(5), C.R.S. D. (I) Violation of this Section by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination, the Contractor shall be liable for City's actual and consequential damages. E. (I) Nothing in this Section shall be construed as requiring the Contractor to violate any terms of participation in the E- Verify Program. 27. PERA Liability. Artist shall reimburse the City for the full amount of any employer contribution required to be paid by City to the Public Employees' Retirement Association ( "PERA ") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. Artist shall fill out the questionnaire attached as Exhibit "C" and submit the completed form to City as part of the signed Agreement. 28. Governing Law. This Agreement is governed by the laws of the State of Colorado. Any unresolved dispute arising from or concerning any breach of this Agreement shall be decided in a state court of competent jurisdiction located in Pueblo, Colorado. 29. Force majeure. Any delays in or failure of performance by any party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or orders of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such party. 30. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 31. No Multi -year Fiscal Obligation on City. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the City which may arise under this Agreement in any fiscal year after 2011, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement, including any sub - agreement, attachment, schedule, or exhibit thereto, by the City. 32. No Third Party Beneficiaries; No Waiver of Immunities. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for 9 or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24 -10 -101 et seq., C.R.S. 33. Entire Agreement. This Agreement, the RFP and the Exhibit "A" attached hereto contain the entire agreement between the Artist and the City respecting the work to be performed by the Artist, and any other written or oral agreement or representation respecting such work or the duties of either Artist or the City in relation thereto not expressly set forth in this Agreement and its Exhibits is null and void. 34. Successors and Assigns. This Agreement shall be binding on the parties hereto and on their successors and assigns; provided, however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to Contract may be assigned by it without the written consent of the City. 35. Amendments. No amendment to this Agreement shall be made nor be enforceable unless made by written amendment signed by an authorized representative of Artist and the City. 36. Premises Condition. In the performance of all services under this Agreement, Artist shall strictly observe all rules, regulations and other requirements of City and CDOT with respect to the Premises, regardless of whether same are imposed by lease or other agreement, or by ordinances or resolutions of City, or by regulations adopted by City's Department of Public Works. 37. Severability. If any provision of this Agreement is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other funding source for this Agreement, then such provision shall be deemed void and the remainder of the Agreement enforced. 38. Signatures. The persons signing this Agreement on behalf of each party represent and warrant that such persons and their respective party have the requisite power and authority to enter into, execute and deliver this Agreement and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. [SIGNATURE PAGE TO FOLLOW] 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE CITY OF PUEBLO, COLORADO, A Municipal Corporation BY: i / _ 4 Pres' 4 en of - ouncil ATTEST: Cit Jerk FUNDS ARE AVAILABLE: ARTIST: �/ l .Ij _�_ ✓1� Director of Finance Kenneth Williams Studio APPROVED AS TO FORM: Attorney 11 v EXHIBIT A c1 RESPONSE COVER SHEET City of `F ' - y,s irk, REQUEST FOR PROPOSAL Project No. 12-058 4 Street Bridge SH96 Artwork Project The undersigned, having carefully read and considered the Request for Proposal (RFP) for the above referenced project, does hereby offer to provide such goods and services on behalf of the City of Pueblo (hereinafter referred to as "City ") in the manner described and subject to the terms and conditions set forth in the attached RFP. A]] Services will be provided at the rates set forth in submitted proposal or as negotiated by all involved parties. Proposer acknowledges that the company is qualified to provide these types of Services. At any time during the selection and award process, the City may request information substantiating the indicated requirements. Failure to provide this information may result in a vendor's Proposal being declared non - responsive. Proposer acknowledges and accepts that all components of and responses to ibis RFP will be included and become a part of the final service agreement. The undersigned further states that this Proposal is made in good faith and is not founded on, or in consequence of, any collusion, agreement or understanding between themselves or any other interested party. FIRMNAME: f':t.in W I 11 t6( vii it1( , S+ di - 0 BY : (Printed Name) 1`\ i�� � r � ! 1 ,•' / / / A,._ . -. (Signed Name) �= `- [ r ,. ,... -/! ,ate ----- ------ i (Title) _ A -a --;+--- ADDRESS : 0 1 - (include PO Box if applicable) T (� ( ' _ g/c 3 E -MAIL ADDRESS l' tt r L i / o , S + J - i ( , � tr l o 6 ) ( a * , I )e t PHONE / . _ ' — +U 1- FAX A„/ REQUEST FOR PROPOSALS 1. INVITATION TO SUBMIT PROPOSAL: The City of Pueblo will receive proposals from the finalist pre selected from the Call For Entry for the 4 Street Bridge SH96 Artwork Project. All proposals shall be accepted up to the hour of 5:00 P.M. on the 18 day of July 2012, at the City's Planning and Community Development Office, 211 E. D Street, Pueblo, CO 81003 or at the scheduled artwork presentation on July 18, 2012. PROJECT NO.: 12 -058 PROJECT NAME: 4 Street Bridge SH96 Artwork Project The City of Pueblo (City) will review all proposals and make the selection. All questions and comments regarding the art project will need to be directed to Bill Zwick, Department of Planning and Community Development, at bzwickanpueblo.us (719) 553- 2246. Any questions regarding the RFP process must be addressed to Naomi Hedden, Director of Purchasing. The City reserves the right to reject any and all proposals for any or all items covered in the Request for Proposal, and to waive any informality or defects in proposals or to accept such proposals as it shall deem to be in the best interest of the Corporation. Respondents shall submit eight (8) copies of their Proposal at the time of the presentation to the selection committee at the time of the presentation. A copy of the presentation must be included with this official proposal and enclosed in an envelope clearly marked with the above referenced project number and name. 2. INSTRUCTIONS TO ARTISTS: a. The completed signature page contained within this package must accompany Artist's submitted proposal. Officials of the artist's corporation shall designate their official title; partners or sole owners shall so state, giving the names of all interested parties. The person signing the proposal must initial all corrections or erasures. Prospective Artists must review, examine and satisfy themselves by personal examination of the work site and the proposed scope of work. No adjustments or alterations will be permitted due to the Artist not being familiar with the goals of the project. No disputes relating to cost estimate or claims of misunderstanding in regards to the nature of the amount of work to be done will be allowed. b. Proposals shall be good for 120 days from date of opening. c. The City may provide approximately $300,000 to furnish and install the artwork(s) on the monuments. The City may request additional tile artwork from a separate artist from the existing budget. d. If Artist's fails to make delivery in accordance with the agreed delivery date or schedule, or otherwise fails to observe or comply with any other terms, conditions, instructions, specifications or warranties applicable to this proposal, the Customer may terminate the contract award by notice to the Artist. e. Artists should describe in detail the method, steps, materials constructing the artwork, including, but not limited to, engineering of any necessary foundations, minimal disturbance to the existing site, coordination with the construction of the building and site work, materials, finishes, timeframe and warranties. f. Artists will commit to and meet the nondiscrimination and equal employment requirements of Section 1.8.3, P.M.C. Minority and Woman Owned Businesses are encouraged to submit proposals. g. The Artists shall furnish all of the labor, materials, tools, equipment, utilities, and transportation services necessary to perform and complete, in a workmanlike manner, all of the work required in connection with the construction and installation of the artwork. h. The artist selection has been completed through the Call For Entry and Interview phases of the project and were evaluated on the following: 1. The Artists recent experience in similar construction projects. Please submit samples of similar work. 2. Client references. 3. The proposed artwork for this project. The perceived completeness of the Artists proposal. Addressing of all probable aspects of the project including discussion and defense of proposed options. 4. Estimated costs for the complete project. 5. Perceived ability of the Artist to complete necessary work in terms of experience, staff, bonding and insurability, fiscal responsibility, and availability. 6. Artists shall also reference how the artwork shall be constructed and installed on the site. 7. Time needed to complete the project. 3. INSURANCE: Artist, and Artist's subcontractors, must provide proof of insurance as follows: The Artist shall not commence work under proposed contract until obtaining, at Artist's expense and without cost to the City, all insurance required under this paragraph and such insurance have been approved by the Corporation, nor shall the Artist allow any subcontractor to commence work under a sub - contract until all similar insurance required of the subcontractor has been so obtained and approved. The Artist shall maintain such insurance until the final acceptance by the City of all artwork covered by the contract. a. Commercial General Liability — The Artist shall secure and maintain during the period of this contract and for such additional time as work on the project is being performed, Commercial General Liability Insurance (or approved equal) issued to and covering the liability of the Artist with respect to all work performed by the Artist and insurance shall be written in amounts not less than $600,000 for each occurrence and aggregate for personal injury including death and bodily injury and $600,000 for each occurrence and aggregate for property damage. This policy of insurance shall name the Corporation, its agents, officers and employers as additional insured. This policy shall have all necessary endorsements to provide coverage without exclusion for explosion and collapse hazards, underground property damage hazard, blanket contractual coverage, as well as City's and Artist's Protective Liability (OCP) coverage. The policy shall also provide coverage for contractual liability assumed by Artist under the provisions the Contract, and "Completed Operations and Projects Liability" coverage. b. Comprehensive Automobile Liability Insurance — The Artist shall procure and maintain during the period of the contract and for such additional time as work on the project is being performed, Comprehensive Automobile Liability Insurance. This insurance shall be written with limits of liability for and injury to one person in any occurrence of not less than $150,000 and for any injury to two or more persons in any single occurrences of not less than $600,000. This insurance shall include uninsured /underinsured motorist coverage and shall protect the Artist from any and all claims arising from the use both on and off the site of the project of automobiles, trucks, tractors, backhoes and similar equipment whether owned, leased, hired or used by the Artist. c. Worker's Compensation Insurance — If necessary, the Artist shall procure and maintain during the period of this contract and for such additional time as work on this project is being performed. Workers' Compensation Insurance, including Occupational Disease Provisions, fully complying with the provisions of the Workers' Compensation Act, as amended, of the State of Colorado. Such insurance shall be obtained notwithstanding that Artist may have no employees as defined under said Act or that Contractor might otherwise avail itself of an exemption under the Act from any legal requirement to obtain such coverage. Such insurance shall cover all employees of Artist performing work on the project irrespective of whether such employees may be shareholders, managers, partners or owners of Artist or exempt employees under this Act. 4. SCOPE OF WORK: Selected Artists shall be responsible for the following: • Evaluating the 4 Street SH96 Bridge monuments design and site conditions (see attached site plan and monument construction drawings). The Artist will be required to submit design, location of artwork, and necessary construction drawings for approval by the Customer and CDOT prior to installation of the artwork. Plans shall describe proposed construction methods, sizes and materials used. • Artist shall provide artwork that relates to both the surrounding community and the architecture of the bridge. • Artist shall be required to coordinate the design, construction and installation of the artwork with CDOT requirements. • The Artwork shall be designed, engineered and constructed to comply with all State and Local codes and requirements (all design and engineer documents shall be approved by Owner). „1 \v O r"/ • Construct the artwork as agreed upon by the City within the agreed timeframe. 5. ARTIST'S PROPOSALJPRESENTATION: In addition to the Call For Entry requirements the artist/proposer should provide and be familiar with the following: 1. Scope of Work. From the RFQ/Cali For Entry and Interview process provide a scope of work outline of the work the Artist understands to be completed for the project. 2. Proposed Artwork and Work Plan. Drawings, sketches and a scaled model of the proposed artwork(s) on the monuments. Also include an outline of the specific tasks, materials, and other important requirements needed to complete the artwork. 3. Work Schedule. A schedule outlining time requirements for each tasks and a final completion date. (tentative) 4. Qualifications. A complete resume for the firm and individual resumes for key project staff that will be on this project. Also, provide samples of similar projects. 5. Cost Estimate. A lump sum cost to build, install and complete the proposed artwork(s). Please provide a breakdown of the costs per the artwork. 6. CONTRACT FOR SERVICES: The City will notify the selected Artist within 30 days of receipt of the proposals. The selected Artist must enter into a signed contract enumerating the job to be performed, the time for completion of the job, and the total cost for completion. 7. QUOTATION RECORD: The price for the artwork in this proposal = $ 310(), Oa) - fiiv.lochi4 Provide a breakdown of each artwork proposed. Calendar days needed to complete the job from acceptance of the design: 3 1 cue' €k $ ./ 5 L -' `- 8. ATTACHMENTS: 1. Colorado PERA Questionnaire 2. COOT Plans and drawings (to be sent next week 6/21) 3. "Soul of Pueblo” document. 4. PPAG Strategic Plan � 5. Pueblo Art District Vision 6. Artist Agreement Draft , Od,/1/M 7. Site Plan and Images • COLORADO PUBLIC EMPLOYEES RETIREMENT ASSOCIATION SUPPLEMENTAL QUESTIONNAIRE TO BE ANSWERED BY ANY BUSINESS PERFORMING SERVICES FOR THE CITY OF PUEBLO Pursuant to section 24- 51- 1101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant, independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed, signed and returned to the City of Pueblo: (a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes, No X'. (b) If you answered "yes" to (a) above, please answer the following question: Are you an individual, sole proprietor or partnership, or a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No. If you answered "yes" please state which of the above entities best describes your business: (c) If you answered "yes" to both (a) and (b), please provide the name, address and social security number of each such PERA Retiree. Name Name Address Address Social Security Number Social Security Number (If more than two, please attach a supplemental list) Failure to accurately complete, sign and return this document to the City of Pueblo may result in your being denied the privilege or doing business with the City of Pueblo. If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Signed rte. � __ . i ..` .. 0 _ B y: -- Name: Title: For purposes of responding to question (b) above, an "affiliated party" includes (1) any person who is the named beneficiary or cobeneficiary on the PERA account of the PERA Retiree; (2) any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half - siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation. EXHIBIT B SAMPLE LIEN WAIVER RELEASE (ARTIST) TO: City of Pueblo, Colorado (OWNER) FROM: [ ] (ARTIST) 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 , 2012. [Artist's name] STATE OF COLORADO ) ) ss. COUNTY OF PUEBLO ) Subscribed and sworn to before me this day of , 2012, by: Witness my hand and official seal. My Commission Expires: Notary Public 12