HomeMy WebLinkAboutContract 44247 (2)- � ;_ � �:.
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ARTWORK MAINTENANCE AGREEMENT BETWEEN
THE CITY OF FORT WORTH AND NU, INC., D/B/A NU-DESIGN
This Artwork Maintenance Agreement ("Agreement") is made and entered into on this
/_ day of �l� !. ;' i',Vj�i, , 2013 ("Effective Date"), by and between the City of
Fort Worth, a home-iule municipal coiporation of the State of Texas ("City"), acting by and
through Fernando Costa, its duly authorized Assistant City Manager, and NU, INC., d/b/a NU-
DESIGN, a Texas for profit coiporation, ("Conh�actor") acting by and tluough its Principle,
Kelly Hart. ,The City has designated the Arts Council of Fort Worth and Tarrant County, Inc.,
(the "Contract Manager") to manage this Agreement on its behalf. The Contract Manager shall
act tlu�ough its designated Public Art Collection Manager ("Manager").
WHEREAS, the City is in need of services to assist in maintaining the value, integrity,
and authenticity of public artwork included in the Fort Woirth Public Art Collection titled Avenare
of Light (the "Artwork") located on the Lancaster Avenue medians between Lamar and
Commerce Sh•eets, more particularly described in the attached Exhibit "A" which is incorporated
herein; and,
WHEREAS, City and Conh�actor desu•e to enter into a contr•act to have such seivices
provided which benefit City.
NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the
parties agree as follows:
ARTICLE 1
SERVICES
11 Contractor covenants and agrees to fully perform, or cause to be perfoimed, with good
faith and due diligence, all seivices described in E�ibit "B", which is attached hereto and
incorporated herein for all pwposes incident to this Agreement ("Ser•vices"). Seivices must be
performed in compliance with the American Institute of Contractois (AIC) code of Ethics and
any and all requirements and standards set forth by the City and those imposed by any applicable
laws, statutes, regulations, and ordinances.
1.2 Existing conditions hidden or concealed and not available for reasonable visual
observation discovered during perfoimance of the Seivices will be reported promptly to Manager
prior to commencing further Seivices.
Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design
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1.3 Contractor shall promptly repair, to a condition acceptable to the Contract Manager and
the City, any damage caused to City property, including, but not limited to, the Arlwork, by
Contractor or its employees, agents or subcontractors.
ARTICLE 2
TERM & TERMINATION
2.1 Term. This Agreement shall be in effect from the Effective Date and, unless tei�ninated
earlier pursuant to the terms of this Agreement, shall extend until final payment to Cont�•actor by
City.
2.2 Termination. Either party may cancel this Agreement at any time and for any reason by
providing the other party with thirty (30) days written notice of termination. In the event this
Agreement is terminated prior to expiration of the Term, City shall pay Contractor only for
Service actually rendered as of the effective date of termination, and Contractor shall continue to
pr•ovide the City with Seivices t•equested by the City and in accordance with this Agreement up
to the effective date of tei�nination
ARTICLE 3
FEE
3.1 In consideration of the Services to be perfor-med hereunder by Contractor, City promises
and agrees to pay Contractor an amount not to exceed EIGHTEEN THOUSAND DOLLARS
AND NO CENTS ($18,000.00), which shall constitute full compensation for any and all costs
associated with this Agreement, including, but not limited to, all Services performed and
materials furnished by Contractor under this Agreement.
3.2 Payment from City to Contractor shall be made on an invoice basis for Services rendered
following receipt by City from Contractor of a signed invoice. The invoice shall be submitted to
City no later than the 15th day following the end of the month. If the City requires additional
reasonable documentation, it shall request the same promptly after receiving the above-described
information, and the Conhactor shall provide such additional reasonable documentation to the
extent the same is available.
3.3 On full and final completion of the Services, Contractor shall submit a final invoice, and
City shall pay any balance due within thirty (30) days of receipt of such invoice.
3.4 In the event of a disputed or contested billing, only the poi�tion being contested will be
withheld from payment, and the undisputed portion will be paid. City will exercise
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reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested
portion of the billing until the contest has been mutually resolved.
3.5 For contested billings, the City shall make payment in full to Contractor within sixty (60)
days of the date the contested matter is resolved.
ARTICLE 4
INDEPENDENT CONTRACTOR
4.1 Contractor shall operate hereunder as an independent contractor and not as an officer,
agent, seivant, or employee of City. Contractor shall have exclusive control of and the exclusive
right to control the details of the Seivices perfoi�ned hereunder, and all persons perfoi�ning same,
and shall be solely responsible for the acts and omissions of its officers, agents, seivants,
employees, subcontractors and program participants. The dochine of respondeat superior shall
not apply as between the City and Contractor, its ofiicers, agents, servants, employees,
subconh•actors, or program participants, and nothing herein shall be consh-ued as creating a
partnership or joint entetprise between City and Contractor. It is expressly understood and
agreed that no officer, agent, employee, or subcontractors of Contractor is in the paid seivice of
City.
ARTICLE 5
1NDEMNIFICATION
5.1 CONTRACTOR COVENANTS AND AGREES TO AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND
ITS REPRESENTATIVES, OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR
DAMAGE AND/OR PERSONAL INJURY, INCLUDINGS BUT NOT LIMITED TO,
DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND OR CHARACTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH
THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE OR
NONPERFORMANCE OF THIS AGREEMENT AND/OR THE OPERATIONS,
ACTIVITIES AND SERVICES DESCRIBED HEREIN; AND CONTRACTOR HEREBY
ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY AND ITS OFFICERS,
REPRESENTATIVES, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
INJURY, INCLUDINGS BUT NOT LIMITED TO, DEATH, TO ANY AND ALL
PERSONS, OF WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR
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ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF
THIS AGREEMENT AND/OR THE OPERATIONS, ACTIVITIES AND SERVICES
DESCRIBED HEREIN. CONTRACTOR LIKEWISE COVENANTS AND AGREES TO
AND DOES HEREBY INDEMNIFY AND HOLD HARMLESS CITY FROM AND
AGAINST ANY AND ALL INJURY, DAMAGE OR DESTRUCTION OF PROPERTY OF
CITY, ARISING OUT OF OR IN CONNECTION WITH ALL ACTS OR OMISSIONS OF
CONTRACTOR, ITS OFFICERS, MEMBERS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, INVITEES, LICENSEES, OR PROGRAM PARTICIPANTS.
5.2 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST
THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM,
CONTRACTOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT CONTRACTOR'S EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO CITY.
53 CONTRACTOR AGREES TO AND SHALL RELEASE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS, REPRESENTATIVES, AND LEGAL REPRESENTATIVES FROM
ALL LIABILITY FOR 1NJURY, DEATH, DAMAGE OR LOSS TO PERSONS OR PROPERTY
SUSTAINED BY CONTRACTOR IN CONNECTION WITH OR 1NCIDENTAL TO
PERFORMANCE UNDER THIS AGREEMENT.
5.4 CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL 1NJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR
OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR,
ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
5.5 Contractor shall require all of its subcontractors to include in their subcontracts a release
and indemnity in fa�or of the Arts Council and the City in substantially the same for�n as above.
5.6 This Section 5 shall survive the expiration or termination of this Agreement.
ARTICLE 6
INSURANCE
6.1 During the term of this Agreement, Contractor shall procure and maintain at all times, in
full force and effect, a policy or policies of insurance that provide the specific coverage set forth
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in this Section 6 as well as any and all other public risks related to Contractor's performance of
its obligations under this Agreement. Contractor shall specifically obtain the following types of
insurance at the following limits:
• Commercial General Liability:
$1,000,000 per occuirence; providing blanket conn•actual liability insurance products
and completed operations; independent contractor's liability; and coverage for
property damage to City facilities. The City of Fort Worth shall be named as an
Additional Insured; and
• Automobile Liability:
$1,000,000 per occurrence or accident; including, but not limited to, all vehicles,
whether owned or hired, in use by Contractor, its employees, agents or subcontractor;
and
• Worker's Compensation/Emplover's Liability:
Worlcer's coinpensation coverage as required by applicable law; and Employer's
Liability at $100,000 per accident. The City of Fort Worth shall be provided with a
Waiver of Subrogation.
Contractor shall pr•omptly provide the City with certificates of insurance that verify Contractor's
compliance with the insurance requirements of this Agreement. The City's Risk Manager shall
have the right to review and evaluate Contractor's insurance coverage and to make reasonable
requests or revisions pertaining to the types and limits of that coverage. Contractor shall comply
which such requests or revisions as a condition precedent to the effectiveness of this Agreement.
ARTICLE 7
MISCELLANEOUS
7.1 Assignment• Contractor shall not assign or subcontract all or any par-t of its rights,
privileges or duties under this Agreement without the prior written consent of City, and any
attempted assignment or subcontract of same without such prior written approval shall be void
and constitute a breach of this agreement.
7.2 Compliance with Law. Contractor, its officer•s, agents, employees and subconh•actors,
shall abide by and comply with all laws, federal, state and local, including all ordinances, iules
and regulations of City. It is agreed and understood that, if City calis to the attention of
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Contractor any such violation on the part of Contractor or any of its officers, agents, employees
or subcontractors, then Contractor shall immediately desist from and coirect such violation.
7.3 Non-Discrimination. Contractor, in the execution, performance or attempted
performance of this contract and Agreement, wili not discriminate against any person or persons
because of disability, age, familial status, sex, race, religion, color•, national origin or any other
protected class of individuals, nor� will Contractor permit its ofiicers, agents, employees, or
subcontractors to engage in such discrimination. This Agreement is made and entered into with
reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort
Worth ("Discrimination in Employment Practices"), and Contractor hereby covenants and agrees
that Contractor, its agents, employees and subconh actors have fuliy complied with all provisions
of same and that no employee or employee-applicant has been discriminated against by either
Contractor, its agents, employees or subconh�actors.
7.4. Right to Audit. Contractor agrees that the City shall, until the expit•ation of three (3)
years after final payment under this Agreement, have access to and the right to examine any
directly pertinent books, documents, papers and records of the Contractor involving h•ansactions
relating to this Agreement. Contractor agrees that the City shall have access during normal
working hours to all necessary Contractor facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of this
section. The City shall give Contractor reasonable advance notice of intended audits.
Contractor further agrees to include in all of its subcontractors agreements hereunder a
provision to the effect that the subcontractors agrees that the City shall, until the
expiration of three (3) years after final payment under the subcontract, have access to
and the right to examine any directly pertinent books, documents, papers and records of
such subcontractors involving transactions to the subcontract, and further that City shall
have access during normal working hours to all subcontractors facilities and shall be
provided adequate and appropriate workspace in order to conduct audits in compliance
with the provisions of this paragraph. City shall give subcontractors reasonable
advance notice of intended audits
tei�nination of this Agreement.
This Section 7.4 shall survive the expiration or
7.5 Fiscal Fundin�. In the event no funds or insufficient funds are appropriated by the City
in any fiscal period for• any payments hereunder, City will notify Contractor of such occurrence
and this Agreement shall tei�rninate on the last day of the fiscal period for which appropriations
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were received without penalty ar• expense to City of any kind whatsoever, except as to the
portions of the payments herein agreed upon for which funds shall have been appropriated.
7.6 Entire A�reement. This written instrument constitutes the entire agreement by the parties
hereto concerning the work and seivices to be performed her•eunder, and any prior or
contemporaneous, oral or written agi•eement, which purpoi�ts to vary from the terms hereof shall
be void.
7.7 Venue and Jurisdiction. Should any action, whether real or asserted, at law or in equity,
arise out of the execution, performance, attempted performance of this Agreement, venue for
said action shall lie in Tarrant County, Texas.
7.8 Notices. Notices to be provided hereunder shall be sufficient if forwarded to the
other party by hand-delivery or via U.S. Postal Service certiiied mail, postage pr•epaid, to the
address of the other party shown below:
Feinando Costa, Assistant City Manager
City of Fort Woi�th
1000 Throckmorton St.
Fort Worth, Texas 76102
(817) 392-8518
Copy to:
City of Fort Worth
Office of the City Attorney
Attn: City Attorney
1000 Throckmorton Street
Fort Worth, Texas 76102
Kelly Hart, Contractor
P.O. Box 14116
Arlington, TX 76094
(817) 874-6486
7.9 Non-Waiver. The failure of City or Contractor to insist upon the performance of any
term oi• provision of this Agreement or to exercise any right herein conferred shall not be
constiued as a waiver or relinquishment to any extent of City's or District's right to assert or rely
upon any such teim or right on any future occasion.
7.10 Disclosure of Conflicts. Contractor hereby warrants to the City that Conh•actor has made
full disclosure in writing of any existing or potential conflicts of interest related to Contractoi•'s
services and proposed seivices with respect to the Services. In the event that any conflicts of
interest arise after• the Effective Date of this Agreement, Contractor hereby agrees immediately to
make full disclosure to the City in writing. The City acknowledges that Conh•actor may use
products, materiais or methodologies proprietaiy to Contractor. The City agrees that
Contractor's provision of Seivices under this Agreement shall not be grounds for the City to
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have or obtain any rights in such pr•oprietary products, materials or methodologies unless the
parties have executed a separate written agreement with respect thereta Notwithstanding the
foregoing, Contractor understands and agrees that the City is subject to various public
infoimation laws and regulations, including, but not limited to, the Texas Open Records Act.
Contractor, for itself and its officers, agents and employees, further agr•ees that it shall treat ail
information provided to it by the City as confidential and shall not disclose any such infoi�nation
to any third party without the prior written approval of the City.
7.11 Severabilitv. If any provision of this Agreement is heid to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the r•emaining provisions shall not in
any way be affected or impaired.
7.12 Force Majeure. The City and Contractor shali exercise their best efforts to meet their
respective duties and obligations as set forth in this Agreement, but shail not be held liable for
any delay or omission in performance due to force majeure or other causes beyond their
reasonable control, including, but not limited to, compliance with any government law,
ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters,
wars, riots, material or labor restrictions by any govei7unental authority, transportation problems
and/or any other similar causes.
7.13 Headin�s not Controlling_ Headings and titles used in this Agreement are for reference
puiposes only and shall not be deemed a part of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 8 of 20
IN WIT`NESS WHEREOF, the parties hereto have executed this agreement in multiples in Fort
Worth, Tarrant County, Texas, to be effective as of the Effective Date.
CITY OF FORT WORTH
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Feinando Costa
Assistant City Manager
APPROVED AS TO FORM AND LEGALITY:
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W
ty Attorney
ATTEST:
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Maiy J. Ka�ts�
City Secretary
No M&C i•equired
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NU, INC
By:
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Principle
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Aitwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design
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Exhibit A
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Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 10 of 20
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P.O. BOX 14116, ARLINGTON, TX 76094. WWW.NU-DESIGN.COM 817-874-6486
Lancaster Sculptures Trouble Report
During the installation of the fixes to ihe inoperable wireless system (originally designed and set up by
Excitemeni), we located some problems which need to be addressed immediately. These issues,
described and shown beiow, are unfo�tunately the result of cuiiing corners and shoddy workmanship.
These practices are way below spec and could cause unreliable performance and permanent
damage or even catastrophic failure of sculpture components. For each issue we have provided a
description of why it is important and what we wili do to resoive ihe issue. (This is essentially a
reinstall of all of the controlling components in each tower.)
Overview: (main tower)
This is ihe inside of the lower thai contains the
computer and controi equipment. On the ieft is
the compuisr (black box) and towards the right is
the box that coniains connections and interface
hookups. The computer had faiied but we have
already removed it and have ii working again. It
wiii be reinsialled in co�junction with the other
fixes so ihat it is less Iikely to fail again.
Artwark Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 11 of 20
Issue # 1: Power Supplv (main tower�
Description: This is an old used power supply
from a Toshiba laptop. it was spliced into place
to power the computer.
Probiem: Since #his is an exposed environment
that is subject to extreme conditions {temp etc.}
and industrial computer was selected. It shouid
be paired with a power suppiy that was designed
for the same environment. Used equipment
should not be used and this power suppiy
was not designed for this use.
Solution: We will install a new industrial power
supply that was designed to work with this type of
computer and to withstand these environmental
conditions.
Issue # 2: UPS (main tower)
Description: This is a UPS (Uni�terruptable
Power Supply) that was placed in a box on the
bottom of the unft.
Probiem: This is an inexpensive UPS designed
for light office duty and not made to withstand
the conditions of this instailation. In this
environment it is prone to failure and acid
leakage.
Solution: The industriai power supply that we vaill
install (see issue # 1) will also serve as a
upslbattery backup. It is designed for this
environment and, by combining the two functions,
is more compact and cost effective. Batteries are
easily replaceable.
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Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 12 of 20
Issue # 3: Spiices (main tower)
Description: This is the wiring which connects
most of the equipment in the unit to power.
Probtem: Wires of various gages and types are
inappropriateiy spliced using a combination of
twisting the wires together and tape. Some
connections have wire-nuts and others are
exposed. This is not a reliable method of
making connections and is not considered
professional or up to spec.
Solution: We will replace the bad splices and
connection with ciean, properly connected wires
using professional materials and techniques and
bringing the system up to spec.
Issue # 4: Electricai Piuq Wirinq
Description: This is a plug which pov�ers some of the equipment in the tower.
Problem: Looking closely, there are severai devices (muftipie wires) coming out of a sing�e plug. This
is definitely not up to spec and is inappropriate for any type of wiring.
Solution: We wili instali new plugs correctly—one per device.
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Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 13 of 20
issue # 5: Electrical Pluq Routins� (main tower)
Description: This is a fou� way a/c power splitter.
Problem: This should not be used in a professionai installation and is not up to spec.
Solution: We will remove this splitter and connect equipment to proper outlets.
Issue # 6; Surqe Suppression {all towers) DONE
Description: Much of the equipment was plugged directly into a/c power.
Problem: Sensitive equipment as is used in the tower can be damaged by normal fluctuations in a/c
power. All equipment of this type should 6e protected by surge supp�ession to avoid
interruption of normal functioning and catastrophic damage.
Solution: tNe have already had whoie circuit surge suppression installed by Mike.
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Issue # 8: Butt Spiices (all towers)
Description: The radio power supplies were cut and badly butt spliced.
P�oblem: These connections a�e not protected from moisture. . This is not a reliable method of
making connections and is not considered professionai or up to spec.
Sotution: We will replace the bad splices and connection with clean, properly connected wires usi�g
professional materiais and techniques and bri�ging the system up to spec.
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Issue # 9: Box Seals (aIi towers)
Description: These are the holes in the boxes that are used for routing wires between fhe equipment
box contents and other items.
Problem: These hoies are poorly and incompietely seaied using putty. This will aiiow moistu�e to
enter the box and may cause catastrophic damage.
Solution: We will replace this putty wfth appropriate water seaiing boots and hardware.
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Issue # 10: Antennas (aIl towers)
Description: These antennas are mounted at the top of each base.
Problem: Connectors and mounting hardware are incompletely sealed using putty. This will lead to
moisture damage and will eventuaily cause the antenna to fail.
Solution: We wili replace the putty with proper water sealing barriers that are correctly applied.
Issue # 91: Controllers (all towers)
Description: The U5 controiler was not �eplaced with a U8 as indicated by Excitement. Some of
the towers still have old controllers running.
Prohlem: Excitement had indicated problems with U5 controllec Spare controllers should not be
running since they may be usefui as repiacements if the current controlier fails.
Solution: We will keep the U5 controller in the main tower and monitor for problems. We will remove
the controllers from the other towers, install one in the main tower as a backup and store the
remaining controllers in case the others fail.
Issue #12 Damaqed Bolts (East most towe�l
Desc�iption: Some bolt heads are stripped and some boits are orossthreaded.
Problem: Tower cannot be opened.
Solution: We will remove damaged bofts and replace with new (wili need to get the extra bolts).
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Artwork Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 18 of 20
r1:r_n�c�»
in order to evaluate the light outage on the west most tower as reported by Jenny Conn, we took
apart the system entirely and determined that there were marry additionai issues. We will need to take
apa�t each tower's wiring and test, fix and replace items as appropriate. This wiil include but is not
limited to the foilowing issues:
. Each tower is set up differently; wiring, components and configuration vary on a tower by tower
basis, We will make them uniform
+ A uariety of non-standard power supplies and transformers are in use. Many of them are not rated
for use in this type of environment and are a point of failure. We wiil replace them with
appropriately rated power supplies.
• At Iast count 8 light fixtu�es are either nonfunctional or functioning incorrectiy. We wili need to test
ail of them and replace or repair as needed. We will aiso check aU fixtures.
• One tower is not receiving DMX signals... wiil need to test and repair or repiace parts.
. Wiring connections in the external light housing is exposed...wiii replace and repai� as required.
As part of the repair process we will create a maintenance schedule which vaill include potential future
points of failure and inspection, maintenance and repiacements schedule.
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Repair Costs: Noting additional issues (ne>ct page) and depending on what parts are damaged and
need to be repiaced or repaired as well as problems in towers not yet taken fuliy apart, the budget is
12k —18k as we discussed,
Schedule: We recommend scheduling this right away so that we can complete before freezing
moisture may get into the c�nnections.
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Artwark Maintenance Agreement with Nu, Inc., d/b/a Nu-Design 20 of 20