CONDITIONS GOVERNING ARTIST SELECTION and EXECUTION OF PUBLIC ART nn nnGENERAL: The City shall provide a contract for signature in the event you are selected, but the following comments will be included in that contract. nn nnAll funds allocated for this commission are governed by the City of Denver’s Public Art Program under D.R.M.C. §§ 20-85 through 20-88. nn nnThe artist(s) (the “Artist”) is submitting an application for a commission to design, execute, fabricate, deliver and install a work of art (the “Work”), to be integrated into the Minoru Yasui Building (the “Site”), after consultation with the Denver Office of Cultural Affairs (DOCA), Site designers and architects, Department of Parks & Recreation and other involved agencies. nn nnBoth parties wish to reasonably promote and maintain the integrity and clarity of the Artist’s ideas and statements as represented by the Work. nn nnThe Artist will be selected via an open Call for Entry by an independent expert panel. The Artist is ready, willing and able to render such services as an independent contractor. nn nnAs used in this Agreement, “Work” means the work of art as ultimately conceived, designed, fabricated, transported, delivered and installed by the Artist, after consultation with the Site designers and others. The Work includes all physical components of the complete artwork including but not limited to associated foundations, bases, or mounting brackets or devices, electronic components, video components and all other miscellaneous components necessary to complete the fabrication and installation of the artwork. nn nnIf selected, the Artist shall perform all services and furnish all supplies, material and equipment as necessary for the design, execution and fabrication of the Work, including but not limited to, payments for all necessary taxes, insurance, small tools, Artist consultants, rental equipment, and all other items incidental to producing a complete and acceptable Work, and shall, either directly or through qualified sub-consultants, undertake the transportation and installation of the Work at the Site. nn nnIf selected, the Artist shall determine the artistic expression, scope, design, color, size, material, texture, and location on the Site of the Work, subject to review and acceptance by the City as set forth in this Agreement. nn nnArtist’s Proposal and Design Review nn nnIf selected for commission, the Artist will submit an initial proposal and develop the design for the Work, in accordance with the proposal letter to the City. The Artist shall then prepare and submit to the City detailed preliminary working drawings of the Work and the Site, together with such other graphic material as may reasonably be requested by the City in order to permit the City to carry out preliminary design review and to certify the compliance of the Work with the finally approved preliminary design of the Work. The Artist shall be solely responsible for designing the Work in compliance with all applicable City, State and/or Federal statutes, ordinances, and/or regulations. nn nnFollowing approval of the preliminary design by the City, the Artist shall prepare and submit to the City detailed working drawings of the Work and the Site, together with such other graphic material as may reasonably be requested by the City in order to permit the City to carry out final design review and to certify the compliance of the Work with applicable statutes, ordinances, and regulations. The Artist shall be solely responsible for designing, fabricating, constructing, delivering and installing the Work in compliance with all applicable city, state and/or federal statutes, ordinances, and/or regulations. It is expressly understood that the Artist shall have his or her final design reviewed and stamped as approved as to structural integrity by a professional engineer licensed to practice in the State of Colorado. nn nnThe submission shall also include a written statement detailing anticipated regular and routine maintenance, such maintenance to be provided by the City in its sole discretion, as appropriate to maintain the Work in its intended condition. nn nnAt any point during the design review, the City may also require the Artist to make such revisions to the design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of the City, the State of Colorado, or the U. S. Government. The City may also request revisions in order for the Work to comply with the finally approved conceptual design of the Work or for other practical and/or non-aesthetic reasons. nn nnEXECUTION OF COMMISSION nn nnAfter written approval by the City of the Final Design, the Artist shall furnish to the City a schedule for the completion of fabrication and installation of the Work, including a schedule for the submission of progress reports, if any. After written approval of the schedule by the City, the Artist shall fabricate, transport and install the Work in accordance with such schedule. The City shall have the right to review the Work at reasonable times during the fabrication hereof. The Artist shall submit to the City progress reports acceptable to the City. The Artist shall present to the City in writing for further review and approval any significant changes in the scope, design, color, size, material or texture of the Work. The City shall in its sole discretion determine whether a significant change exists. nn nnThe Artist shall notify the City in writing when fabrication of the Work is completed and it is ready for delivery and installation at the Site. The Artist shall deliver and install the completed Work at the Site in compliance with the schedule approved pursuant to Section 1.5. The City shall endeavor to prepare the Site for the timely installation of the Work, including public access, and area lighting of the Work, but shall not be responsible for any utility provision or expense, or for any physical alteration of the Site surface. nn nnThe Artist at his or her sole expense shall furnish the City with photographs suitable for reproduction and print use, of the Work as installed in addition to a plaque at the Site, according to the City’s specifications. The Artist shall be available at such time or times as may be agreed between the City and the Artist to attend an inauguration or presentation ceremony(s) relating to the transfer of the Work to the City. The City shall endeavor to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between the City and the Artist as soon as practicable following installation. Upon installation of the Work, the Artist shall provide to the City written recommendations for appropriate maintenance and preservation of the Work. nn nnThe risk of loss or damage to the Work shall be borne by the Artist until installation of the Work and final acceptance thereof by the City, and the Artist shall take such measures as are necessary to protect the Work from loss or damage until such final acceptance. The parties recognize that the City is self-insured and possesses immunities pursuant to C.R.S. §24-10-101, et seq. nn nnThe City, at its option, may retain all plans, drawings, slides, photographs, submittals, studies, designs, maquettes and models, and other documents submitted to the City by the Artist. These items, when submitted, become and are the property of the City, and the City may, without restriction, make use of such documents for educational, public relations, arts promotional and other non-commercial purposes. The Artist shall not be liable for any damage which may result from any use of said documents for purposes other than those described in this Agreement. nn nnCOORDINATION AND LIAISON nn nnThe Director of the Denver Office of Cultural Affairs (“Director”) orders and directs all services under this Agreement and, until otherwise notified by the Mayor, is designated as the authorized representative of the City through whom services performed under this Agreement shall be coordinated. The Director may from time to time direct, in writing, with copy to the Artist, that the authority to coordinate certain day-to-day matters shall be exercised by other City employees, including but not limited to those in the Department of Public Works. The Artist agrees that during the term of this Agreement he or she shall fully coordinate all work hereunder as directed by the City, including coordination with the City’s Department of Public Works, other City agencies or departments and other consultants or contractors to the City. nn nnWARRANTIES: nn nnThe Artist represents and warrants to the City that the Work submitted in this application is solely the result of the artistic effort of the Artist; if selected for commission, the execution and fabrication of the Work will be performed in a workmanlike manner; will be free of defects in material and workmanship, including any defects consisting of “inherent vice” or qualities which cause or accelerate deterioration of the Work. nn nnOWNERSHIP AND REPRODUCTION RIGHTS: nn nnTitle to the Work shall pass to the City upon final acceptance. The Artist shall be required to waive rights under the Visual Artists Rights Act; however, the City provides notice in the event of alteration, sale or donation to third parties, repair of damage, or destruction. If the City shall at any time decide to destroy the Work, it shall by notice to the Artist offer the Artist a reasonable opportunity to recover the work at no cost to the Artist, except for an obligation of the Artist to indemnify and reimburse the City for the amount by which the cost to the City of such recovery exceeds the costs to the City of the proposed destruction as determined solely by the City. nn nnTERMINATION OR SUSPENSION OF AGREEMENT nn nnIn addition to the City’s rights of termination during Work design and fabrication as set out above, the City may terminate this Agreement at any time on ten (10) days notice if the Artist’s services become unsatisfactory to it or if the Project is canceled. The City may otherwise terminate the Agreement without cause, for its convenience, upon thirty (30) days notice to the Artist. If the Artist’s services are terminated, he or she shall be paid only for that portion of work or services satisfactorily completed at the time of notice of such action. nn nnIn the event of default by the Artist, all finished and unfinished drawings, sketches, photographs, and other work products prepared and submitted or prepared for submission by the Artist under this Agreement shall at the City’s sole option become its property, provided that no right to fabricate or execute the Work shall pass to the City. Notwithstanding the previous sentence, the Artist shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Artist, and the City may reasonably withhold payments to the Artist until such time as the exact amount of such damages due the City from the Artist is determined, or exercise all of its other rights hereunder. nn nnWHEN RIGHTS AND REMEDIES NOT WAIVED nn nnIn no event shall any payment by the City hereunder constitute or be construed to be a waiver by the City of any breach of term, covenant, or condition or any default which may then exist on the part of the Artist, and the making of any such payment when any such breach or default shall exist shall not impair or prejudice any right or remedy available to the City with respect to such breach or default. No assent, expressed or implied, to any breach of any one or more covenants, terms, or conditions of the Agreement shall be construed as a waiver of any succeeding or other breach. nn nnNO DISCRIMINATION IN EMPLOYMENT nn nnIn connection with the performance of work under this Agreement, the Artist agrees not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability; and further agrees to insert the foregoing provision in all subcontracts hereunder. nn nnINSURANCE: nn nnIf selected for commission, the Artist agrees to secure and deliver to the City's Risk Management Administrator at or before the time of execution of this Agreement, and to keep in force at all times during the term of the Agreement, a commercial general liability insurance policy, including public liability and property damage, in form and company acceptable to and approved by said Administrator. nn nnINDEMNIFICATION: The Artist shall defend, release, indemnify and save and hold harmless the City against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of the City, and shall defend, release, indemnify, and save and hold harmless the City from any and all claims, demands, suits, liabilities, actions, causes of action, or legal or equitable proceedings of any kind or nature, including workers’ compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of the Artist’s activities in connection herewith, including acts or omissions of the Artist or his or her officers, employees, representatives, suppliers, invitees, licensees, subconsultants, contractors, and agents; provided, however, that the Artist need not indemnify and save harmless the City, its officers, agents, and employees from damages proximately resulting from the sole negligence of the City’s officers, agents, and employees. This indemnity clause shall also cover payment of the City’s defense costs in the event that the City, in its sole discretion, elects to provide its own defense. The insurance coverage specified herein constitutes the minimum requirements, and said requirements shall in no way lessen or limit the liability of the Artist under the terms of the Agreement. The Artist shall procure and maintain, at his or her own expense and cost, any additional kinds and amounts of insurance that, in his or her judgment, may be necessary for the Artist’s proper protection in the prosecution of the services hereunder. This indemnity clause shall survive termination of this Agreement. nn nnCONFLICT OF INTEREST: The parties agree that no official, officer or employee of the City shall have any personal or beneficial interest whatsoever in the services or property described herein and the Association further agrees not to hire or contract for services any official, officer or employee of the City or any other person which would be in violation of the Denver Revised Municipal Code Chapter 2, Article IV, Code of Ethics, or Denver City Charter Sections 1.2.9 and 1.2.12. nn nnDISPUTES: All disputes of whatsoever nature between the City and Artist regarding this Agreement shall be resolved by administrative hearings pursuant to the procedure established by Denver Revised Municipal Code 56-106. For the purposes of that procedure, the City official rendering a final determination shall be the City representative identified in Article 2 hereof.