ATTACHMENT TO PURCHASE ORDER __________________________________ URBAN ARTS FUND GRAFFITTI PREVENTION/MURAL PROJECT A. Coordination and Liaison: With the expressed consent of the Manager of General Services, Vendor shall fully coordinate all services under the Purchase Order and this Attachment to Purchase Order (collectively, the “Purchase Order”) with the Director of Denver Arts & Venues or his or her designee (the “Director”). Vendor agrees that during the term of this Purchase Order he, she, or it shall fully coordinate all work hereunder as directed by the Director. B. Vendor Performance: Vendor shall perform all services and furnish all supplies, material and equipment as necessary for the aesthetic design and installation of the mural (the “Work”), including but not limited to, payments for all necessary taxes, insurance, tools, consultants, rental equipment, and all other items incidental to producing a complete and acceptable Work. C. Vendor’s Conceptual Design and Execution of the Work: Vendor has submitted an initial proposal and conceptual design for the Work. Vendor’s application of the Work at the site shall be consistent with the initial proposal and conceptual design. The Work shall be appropriate to a public setting and for viewing by public officials, City employees, citizens, and the general public of all ages visiting the Site. The City may, prior to, during, and after installation of the Work, require Vendor to make such revisions to the Work as are necessary for the Work to comply with the initial proposal and conceptual design, and applicable statutes, ordinances, or regulations of the City (including, without limitation the Denver Sign Code), the State of Colorado, or the U. S. Government. The City may also request revisions to the Work for other practical and/or non-aesthetic reasons. D. Display Period: The Work is intended to be temporary and will be painted over or otherwise destroyed by the City upon conclusion of the display period, which period shall be from the complete installation of the Work until the City determines, in its sole discretion and without notice to Vendor, to remove the Work from display. E. Warranties: Vendor represents and warrants to the City that: the aesthetic design and installation of the Work is solely the result of the artistic effort of Vendor; the Work is unique and original and does not infringe upon any copyright; that neither the Work installed hereunder, nor a duplicate thereof, has been accepted for sale or display elsewhere; the aesthetic design and installation of the Work will be performed in a workmanlike manner; and the Work will be applied to the site in such a manner as to reasonably protect it against damage or destruction by external forces. The foregoing warranties shall survive for a period of two (2) years after the City’s acceptance of the completed Work. The City shall give notice to Vendor of any observed breach with reasonable promptness. Vendor shall, at the request of the City, and at no cost to the City, cure reasonably and promptly the breach of any such warranty which is curable by Vendor utilizing artistic skill and which cure is consistent with professional conservation standards as determined solely by the City. F. Ownership, Maintenance, and Reproduction Rights: 1. Title. Title to the Work shall pass to the City upon final acceptance. 2. Waiver of Rights. Vendor understands and agrees that, as to his, her, or its rights in the Work, the provisions of this Purchase Order shall supersede the provisions of the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §101 et. seq., as amended, including but not limited to §106A(a) and §113, as to the Work, and that execution of this Attachment to Purchase Order by Vendor shall constitute a waiver by Vendor, as permitted in 17 U.S.C. §106A(e), as amended, of any and all rights or protections in the Work, and any uses of the Work whatsoever, set out in or otherwise granted by 17 U.S.C. §101, et seq., as amended, including but not limited to §106A(a) or §113, or otherwise in the nature of "Droit Moral" under which artists claim an interest in their work. Vendor understands and agrees that the Work is intended to be temporary and will be painted over or otherwise destroyed by the City upon conclusion of the display period. 3. Vendor’s Remaining Retained Rights in the Work. Vendor therefore retains: (i) all other right, title and interest in the Work including all copyrights, but expressly excluding any rights in the Work under VARA, 17 U.S.C. §101 et. seq., as amended, including but not limited to §106A(a) and §113, or otherwise in the nature of "Droit Moral" under which artists claim a continuing interest in their products and in the maintenance or modification of their products; and (ii) all rights expressly granted in this Attachment to Purchase Order. Vendor’s waived rights as described above are, insofar as such rights are transferable, assigned to the City. In view of the intention that the Work in its final dimension shall be unique, Vendor shall not make any additional exact duplicate, two or three-dimensional reproductions of the final Work, nor shall Vendor grant permission to others to do so except with the written permission of the City. The City is unable to grant permission of any kind for political use of the Work. The restriction on duplication or reproduction shall not apply to Vendor’s use of photographic reproductions of the Work in portfolio or in critical and scholarly writings. Vendor grants to the City and its assigns an irrevocable license to make two-dimensional reproductions of the Work for non-commercial purposes, in the sole discretion of the City and its assigns, including but not limited to reproductions for advertising brochures, media publicity, catalogues or similar publications. 4. Maintenance and Repair. The City shall not be responsible for any maintenance or repair of the Work if mural is on Private Property – property owner is responsible to hire artist for restoration. If artwork is sited on Denver Public Space (park, recreation center, cherry creek trail, etc.) The Urban Arts Fund Program will maintain artwork for its temporary duration. 5. Site alteration. Vendor agrees that the City is under no obligation to notify or consult with Vendor in the event of any proposed alteration of the site that would affect the intended character of the Work nor is the City under any obligation to maintain the integrity of the Work. 6. Removal, Relocation, Sale, Donation or Destruction. Nothing in this Purchase Order shall preclude any right of the City, in its sole discretion and without notice to Vendor, (i) to remove the Work from public display, or (ii) to destroy the Work. Rather, Vendor understands and agrees that the Work is intended to be temporary and will be painted over by the City or its contractors upon conclusion of the display period. Vendor waives any rights which he, she, or it might have in connection with the removal or destruction of the Work under the VARA, as amended, including but not limited to §106A(a) and §113. 7. Surviving Covenants. The covenants and obligations set forth in this section F shall survive the termination of the Purchase Order and shall be binding upon the parties, their heirs, legatees, executors, administrators, assigns, transferees and all their successors in interest, and the City’s covenants do attach and run with the Work and shall be binding to and until twenty (20) years after the death of Vendor. G. Insurance: In lieu of the insurance requirements set forth in section 16 of the Purchase Order, Vendor shall keep the required insurance coverage in force at all times during the term of the Purchase Order, or any extension thereof, during any warranty period, and for three (3) years after termination of the Purchase Order. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by A.M. Best Company as “A-”VIII or better. Each policy shall contain a valid provision or endorsement requiring notification to the City in the event any of the required policies are canceled or non-renewed before the expiration date thereof. Such written notice shall be sent to Denver Risk Management, 201 West Colfax Avenue, Dept. 1105, Denver, Colorado 80202. Such notice shall reference the Purchase Order number. Said notice shall be sent thirty (30) days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, Vendor shall provide written notice of cancellation, non-renewal and any reduction in coverage to Denver Risk Management by certified mail, return receipt requested within three (3) business days of such notice by its insurer(s) and referencing the Purchase Order number. If any policy is in excess of a deductible or self-insured retention, the City must be notified by Vendor. Vendor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Attachment to Purchase Order are the minimum requirements, and these requirements do not lessen or limit the liability of Vendor. Vendor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Purchase Order. Vendor shall provide a copy of this Purchase Order to its insurance agent or broker. Vendor may not commence services or work relating to the Purchase Order prior to placement of coverages required under this Purchase Order. Vendor certifies that the certificate of insurance attached to the Purchase Order documents, preferably an ACORD certificate, complies with all insurance requirements of this Purchase Order. The City requests that the Purchase Order number be referenced on the certificate. The City’s acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set forth in this Purchase Order shall not act as a waiver of Vendor’s breach of this Purchase Order or of any of the City’s rights or remedies under this Purchase Order. The City’s Risk Management Office may require additional proof of insurance, including but not limited to policies and endorsements. For Auto Liability, Vendor shall name the City and County of Denver, its elected and appointed officials, employees and volunteers as additional insured. For all coverages required under this Purchase Order, Vendor’s insurer shall waive subrogation rights against the City. All subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Purchase Order) shall be subject to all of the requirements herein and shall procure and maintain the same coverages required of Vendor. Vendor shall include all such subcontractors as additional insured under its policies (with the exception of Workers’ Compensation) or shall ensure that all such subcontractors and subconsultants maintain the required coverages. Vendor agrees to provide proof of insurance for all such subcontractors and subconsultants upon request by the City. 1. Workers’ Compensation/Employer’s Liability Insurance: The parties recognize and agree that Vendor is engaged in an independent occupation and profession and is free from control and direction in the performance of the services contracted for herein consistent with that mandated by C.R.S. 8-40-202(2)(a). It is understood and agreed by the parties that the City does not (1) require Vendor to work exclusively for the City, provided that Vendor may have elected to work exclusively for the City for the period of time specified in the term of this Purchase Order; (2) establish a quality standard for Vendor, provided that the parties agree that while the City may provide plans regarding its expectancy of the work to be performed by Vendor, the City will not oversee the actual work of Vendor or instruct Vendor as to how the work will be performed; (3) pay a salary or hourly wage to Vendor instead of the fixed contract rate stated herein; (4) terminate the work of Vendor for cause during the term of this Purchase Order unless Vendor violates the terms of the Purchase Order or fails to produce a work product or result that meets the specific terms provided in the Purchase Order; (5) provide any training for Vendor other than minimal orientation to the site or other parameters of Vendor activity; (6) provide tools or benefits to Vendor; (7) dictate the time of performance; except that Vendor completion date together with the range of negotiated and mutually agreeable work hours has been established herein; (8) pay Vendor personally instead of making City warrants payable to the professional name of Vendor, except that in this Purchase Order Vendor is an individual and sole proprietor; and (9) combine the regular operation of the City in any way with the professional or business operations of Vendor instead of maintaining office operations separately and distinctly. These provisions are separately stated in the “Separate Declaration Regarding Independent Status”, constituting the writing mandated by C.R.S. 8-40-202(2)(b), which must be signed and notarized by Vendor and the Director. 2. Vendor shall ensure personal automobile insurance is in force with limits of $100,000 bodily injury per person; $300,000 bodily injury per accident; $50,000 property damage for all vehicles used in performing services under this Purchase Order. The policy will include a business use endorsement. Vendor represents, as material representations upon which the City is relying, that Vendor does not own any motor vehicles and that in performing Work under this Purchase Order, Vendor’s owners, officers, directors, and employees use their personal vehicles. Vendor shall ensure that any person operating a motor vehicle in performing the Work under this Purchase Order shall keep in full force Personal Auto Liability coverage with minimum required limits. For claims-made coverage, the retroactive date must be on or before the contract date or the first date when any goods or services were provided to the City, whichever is earlier. Vendor shall advise the City in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limits. At its own expense, and where such general aggregate or other aggregate limits have been reduced below the required per occurrence limit, Vendor will procure such per occurrence limits and furnish a new certificate of insurance showing such coverage is in force. H. Compliance with Patent, Trademark and Copyright Laws: Vendor agrees that all work performed under this Agreement, shall comply with all applicable patent, trademark and copyright laws, rules, regulations and codes of the United States. Vendor further agrees that it will not utilize any protected patent, trademark or copyright in performance of its work unless the Vendor has obtained proper permission and all releases and other necessary documents. If the Vendor specifies any material, equipment, process or procedure, which is protected, the Vendor shall disclose such patents, trademarks and copyrights in the construction drawings or technical specifications. Vendor agrees to release, indemnify and save harmless the City, its officers, agents and employees, from any and all claims, damages, suits, costs, expenses, liabilities, actions or proceedings of any kind or nature whatsoever, of or by anyone whomsoever, in any way resulting from, or arising out of, directly or indirectly, the performance or work under this Agreement which infringes upon any patent, trademark or copyright protected by law. I. Indemnification: In addition to the other indemnification requirements the Purchase Order, Vendor will further indemnify, defend and hold the City harmless from and against any claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from any third party claim that the Work, when used by City the in accordance with this Agreement, infringes, misappropriates or violates any United States patent issued as of the date hereof, copyright, trademark, trade secret or other intellectual or proprietary right of any third party. If an injunction or order is obtained against the City’s use of the Works by reason of a claim of the type described above, or if in Vendors opinion, the Work is likely to become the subject of such a claim, Vendor shall take all necessary action to correct any such infringement or misappropriation to give the City the right to continue using the Work. J. Volunteer Waiver Form: Vendor may use volunteers to assist in performing the Work and related services required by the Purchase Order; provided, however, that prior to allowing volunteers to assist Vendor, Vendor shall obtain from the Director the City’s Volunteer Waiver of Liability Form and shall have each volunteer execute the Volunteer Waiver of Liability Form. Vendor shall provide such executed forms to the Director prior to allowing volunteers to assist Vendor. K. Legal authority: The person(s) signing and executing this Purchase Order does hereby warrant and guarantee that he/she has been fully authorized by Vendor to execute this Purchase Order on behalf of Vendor and to validly and legally bind Vendor to all the terms, performances and provisions herein set forth. By signing below, Vendor agrees to all of the terms, performances and provisions of this Purchase Order. _________________________ Name _________________________ Title _________________________ Date