HomeMy WebLinkAbout464980 ELIZABETH LUNDBERG MORISETTE - CONTRACT - RFP - 7102 TRANSFER CABINET MURAL PROJECT 2010 (2)ART IN PUBLIC PLACES CONSTRUCTION AGREEMENT
Transformer Cabinet Murals
THIS AGREEMENT is made and entered into this day of , 2010, by
and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (hereinafter
referred to as the "City"), and Elizabeth Morisette (hereinafter referred to as "Artist") as
representative for Girl Scout Troop 72258.
In consideration of the mutual covenants and obligations herein expressed, the parties agree as
follows:
1. Scope of the Work. The Artist must furnish all of the materials and perform all of the
work for the 2010 Transformer Cabinet Mural Project as shown on the drawings and described in the
specifications attached as Exhibit "A" and incorporated by reference into this Agreement (the
"Project"). The Project consists in general terms of the design, construction, signage and installation
of a painted mural on one transformer cabinet. 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
October 30, 2010. Any extensions of this time limit must be agreed upon in writing by the parties.
The City will grant the Artist a reasonable extension of time if there is a delay on the part of the City
in performing its obligations under this Agreement or if conditions beyond the Artist's control or
Acts of God render timely performance of the Artist's services impossible.
3. Capital Project Management Control System. In order to insure that the Project is
consistent with its authorized scope and schedule, the Artist must provide an approximate schedule
for the completion of all unit work items covered by the Agreement. The schedule must indicate the
anticipated percentage completion of each unit work item for each week for the duration of the work.
The Artist must submit the initial schedule to the City prior to beginning the work.
4. City Representative. On or before the date the City issues its Notice to Proceed the
City will designate its project representative who will make all necessary and proper decisions with
reference to the Project within the scope of his or her authority. The Artist must direct all requests
for contract interpretations, change orders, or other clarification or instruction to the City
representative.
5. Changes to Scope of Work.
A. Changes by Artist. The Artist cannot change the Project specifications and drawings
in Exhibit "A" within 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
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Exhibit D — Minor Volunteer Waiver
PARENTAL CONSENT, RELEASE OF LIABILITY, COVENANT NOT TO SUE,
AND HOLD HARMLESS
In consideration of my child's participation in City of Fort Collins Transformer Cabinet Mural
Project (the "Project"), the undersigned agrees as follows:
1. I am the parent or legal guardian of , who is under the age
of eighteen (18) years. I understand that my child's participation in the Project may include, without
limitation, the following risks and hazards: outdoor activities in the public right-of-way, use of tools
or equipment, exposure to paint and/or other chemicals and physical exertion, any of which may
result in damage to property, bodily injury or death. I am aware of the risks and hazards inherent in
my child's participation in the Project, and recognizing those risks and hazards, I hereby give my
consent and approval to my child's participation in the Project.
2. On behalf of my child (pursuant to section 13-22-107, Colorado Revised Statutes) and myself,
I hereby release the City of Fort Collins, and its officers, employees, volunteers, and agents
(collectively, "Releasees") from any and all liability for any and all claims and causes of action which
I or my child may hereafter have on account of any and all injuries and/or damage that I or my child
may sustain, or any loss of any other sort, arising out of or relating to my child's or my participation
in or attendance at the Project, or incidental thereto, whether caused by the negligence of the
Releasees or any other person. In addition, on behalf of my child and myself, I covenant and agree
not to sue any of the Releasees, and agree to forever hold them and each of them harmless, from any
liability, claims, demands, actions, or causes of action whatsoever arising from my child's or my
participation in the Project, whether such liability, claims, demands, or actions are the result of the
negligence of the Releasees or any other person. This waiver, release, discharge, indemnification and
hold harmless shall not be applicable to actions constituting gross negligence, recklessness or willful
and wanton behavior on the part of the Releasees. However, these exceptions shall not be construed
as a waiver of sovereign immunity or the protections of the Colorado Governmental Immunity Act.
This release of liability, covenant not to sue, and hold harmless agreement shall be binding upon me,
my child, my heirs, and/or my child's heirs, executors, administrators, personal representatives, and
assigns, and shall inure to the benefit of the Releasees and their successors and assigns.
3. I hereby agree to indemnify the Releasees and to assume and be responsible for all harm,
injury or damage caused by me or my child to any of the Releasees, the Releasees' property or
equipment, other persons or other personal property used in conjunction with the Project.
Signature of Parent or Legal Guardian Date
Printed name of Parent or Legal Guardian
Address
JUVENILE ACKNOWLEDGMENT OF RISK AND CONSENT TO PARTICIPATE
I, , the undersigned, state that I am under the age of eighteen (18)
years and that I desire to participate in the City of Fort Collins Transformer Cabinet Mural Project (the
"Project") which participation may include, without limitation, the following risks and hazards: outdoor
activities in the public right-of-way, use of tools or equipment, exposure to paint and/or other chemicals
and physical exertion, any of which may result in damage to property, bodily injury or death.
I am aware of the risks and hazards inherent in my participation in the Project, and recognizing those
risks and hazards, I hereby give my consent and approval to my participation in the Project. I
voluntarily assert that it is my desire to participate in the Project with full understanding of and having
taken into consideration all such risks of loss, damage or injury to me or my property, which may be
sustained during or incidental to my participation in the Project.
Signature of Juvenile Participant
Printed Name of Juvenile Participant
Date:
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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.
6. Formal Acceptance and Ownership of the Project. The Artist must notify the City
when the Project is fully installed and complete. No more than thirty (30) days after receiving such
notice, the City will provide the Artist a written response, informing the Artist that either:
(1) the City agrees 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
Project, and the Artist will have no further obligations under this Agreement, except as set forth in
paragraphs 8, 9, 12, and 26.
7. Ownership of Works Created.
A. Assignment of Copyright. The Artist hereby assigns, transfers, and conveys to the
City all right, title and interest in and to the Project together with the copyright therein and the
right to secure copyright registration therefore, in accordance with Sections 101, 204, and 205
of Title 17 of the United States Code, the Copyright Law of the United States. This
assignment, transfer and conveyance includes, without limitation, any and all features,
sections, and components of the Project, any 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:
(i) the non-exclusive right to make two-dimensional reproductions of the
Project for non-commercial, promotional purposes, 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; and
(ii) the exclusive right to create and reproduce derivative artworks depicting
characters, images and/or themes that are similar, but not identical, to
those depicted in the Project, in any form and for any purpose except to
the extent prohibited by paragraph 11, below.
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With the exception of the rights granted above, the Artist must not make or
knowingly permit others to make reproductions of the Project for any 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.
8. Maintenance. The City is responsible for maintenance of the completed Project.
9. Contract Sum. The City will pay Artist the sum of Four Hundred Fifty Dollars ($450)
to be used for materials and supplies for the Project. Artist is donating Artist's time for this Project.
The City agrees to pay the Artist under the following schedule:
A. $350 upon full execution of this Agreement;
B. $100 or any remaining amounts due under this Agreement, upon the City's final approval
and acceptance of the Project as complete and a lien waiver in substantially the form
shown in Exhibit `B" from.
10. 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.
11. 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 Fort Collins, Colorado.
12. Governing Law. This Agreement is governed by the laws of the State of Colorado.
13. 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:
Girl Scout Troop 72258
Elizabeth Morisette
1900 Sheely Dr.
Fort Collins, CO 80526
970-691-8198
If to the City:
Ellen Martin
Lincoln Center
417 West Magnolia
Fort Collins, CO 80521
970-416-2789
14. Termination/Default.
A. Termination. The City may terminate this Agreement on no less than seven (7) days
written notice to the Artist. In such event the City will compensate Artist for all services
performed to the date Artist receives the notice of termination, together with reasonable
expenses then due, unless the parties agree otherwise in writing.
B. Default. Each and every term and condition of this Agreement is deemed to be a
material element of this Agreement. If either party fails or refuses to perform according to the
terms of this Agreement; it may be declared in default thereof. If Artist defaults or neglects to
carry out the work in accordance with this Agreement, the City may elect to make good such
deficiencies and charge Artist therefor.
C. Remedies Upon Default. If one party declares the other in default of this Agreement
and performance is possible within the completion time established herein, the defaulting
party has a period of five (5) days within which to cure the default. If the defaulting party
fails to correct the default (or timely performance is not possible), the party declaring default
may elect to: (1) immediately terminate the Agreement; (2) treat the Agreement as continuing
and require specific performance; and/or (3) avail itself of any other remedy at law or equity.
If either party elects to terminate the agreement for default, termination will be effective upon
the mailing, by the terminating party, of written notice of termination to the defaulting party.
15. Assi 11�. 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.
16. Artist -- Independent A ent. 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.
17. 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.
18. Superintendence. Before starting work the Artist must designate an authorized
representative who has complete authority to represent and act for the Artist. The City and Artist will
both keep competent supervisory personnel on the work during its progress. The Artist will provide
efficient supervision of the work, using Artist's best skill and attention, and will be responsible for all
construction means, methods, techniques, and procedures, and for providing adequate safety
precautions. The City will assist Artist in coordinating all portions of the work.
19. Volunteers. The Artist may use volunteers to complete the work. Artist is responsible
for supervision of its volunteers. If any person acts in a disorderly or improper manner, the City may
require Artist to remove such person from the work. The Artist is fully responsible to the City for the
acts and omissions of its volunteers. Artist will ensure that each volunteer aged 18 and over signs a
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liability waiver in the form attached as Exhibit C (1 page), and that each volunteer under the age of
18 and the parent or legal guardian of each volunteer under the age of 18 signs a liability waiver in
the form attached as Exhibit D (2 pages), before participating in the Project on City property.
20. 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.
21. Safety. The City will ensure that the transformer cabinets that are the site for the
Project are safe to work on. Artist is otherwise responsible for maintaining a safe work area and
protecting the safety and welfare of Artist's employees, volunteers, and the general public, including
without limitation area residents, motorists, bicyclists, pedestrians, and children from work area
hazards. If the City determines that work area safety control devices such as barricades and safety
fences are necessary, the City will provide such devices at the City's expense.
22. Work and Property. The Artist must use best efforts at all times to safely guard the
Project, the City's property and adjacent property from damage, injury or loss in connection with the
Project. The Artist must protect the Project and related materials from damage due to the nature of
the work, the elements, carelessness of the Artist, or from any foreseeable cause whatever until the
completion and acceptance of the Project by the City. The Artist assumes all risk of loss or damages
arising out of the nature of the work to be done under this Agreement, or from any unforeseen
obstructions or defects 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
23. Indemnity. The Artist indemnifies and holds harmless the City, its officers, agents and
employees, from and against all claims, damages, losses, expenses, and legal fees including
attorney's fees, arising out of or resulting from the Artist's performance under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
01 Cp4
O; .s
Wanda Kr
City Clerk
COL
APPRO ED T FORM:
c
Assistant City Attorney
STATE OF COLORADO )
)ss.
COUNTY OF 1 V-yj e ( )
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
ljaes B. O'Neill II, CPPO, FNIGP
ctor of Purchasing and Risk
Management
ART
7K"�6( ,
Eli abe orisette
Subscribed and sworn to before me this day of �, 2010, by:
E112C4Q1h'( on�t P
Witness my hand and official seal.
My Commission Expires:
Notary Public
�X(I 113 )T A
Transformer Cabinet Mural Project 2010
Non -Profit: Girl Scout Troop 72258 with Elderhaus
Location: 3 cabinets behind 230 Remington
As an artist and leader of troop 72258, Elizabeth Morisette will lead and be responsible for this project. The people
in the Elderhaus class will help us with the design of these cabinets by providing handprints, drawings, memories or
- colors to bring out their personalities.
L' We will have several ways to incorpo-
rate these ideas.
Pair of cabinets
s side 1
The Third Transformer Cabinet will be a com-
bination of several designs. All of these de-
signs will have drawings of the memories of
the Elderhaus participants inside them. Some
designs are geometric, some are organic
blobs and some are wavy lines representing
the Poudre River. Drawings of all four sides of
the three cabinets will be presented to the
APP staff before the project begins the pro-
ject. A volunteer waiver will be required to be
signed by all participants or Legal Guardians
of individuals painting on the cabinets.
On the first cabinet we will trace the
hands of the Elderhaus participants
and ourselves as well as people who
might stop by and look at our work.
These tracings will be filled with
colors and designs to make a vibrant
display.
The second cabinet will have colorful
spots all over it. These spots repre-
sent the people of Fort Collins.
i
q
its side 2
The artists will paint all four sides as well as the tops of all three cabinets at this site. The artists are required to create a
busy, active surface with either composition or paint layering to deter graffiti.
EXHIBIT B
SAMPLE LIEN WAIVER RELEASE
(ARTIST)
TO: City of Fort Collins, Colorado (OWNER)
FROM: Elizabeth Morisette (ARTIST)
PROJECT: 2010 Transformer Cabinet Mural Project
1. The ARTIST acknowledges having received payment, except final payment, from the OWNER for all work,
labor, skill and material furnished, delivered and performed by the ARTIST for the OWNER or for anyone in the
construction, design, improvement, alteration, addition or repair of the above described project.
2. In consideration of such payment and 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 , 2010.
Elizabeth Morisette
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn to before me this day of , 2010, by:
Witness my hand and official seal.
My. Commission Expires:
Notary Public
Exhibit C — Volunteer Waiver — Age 18 and Over
RELEASE OF LIABILITY, COVENANT NOT TO SUE, AND HOLD HARMLESS
In consideration of my participation in the City of Fort Collins Transformer Cabinet Mural
Project (hereafter, the "Project"), the undersigned agrees as follows:
1. I understand that my participation in the Project may include, without limitation, the
following risks and hazards: outdoor activities in the public right-of-way, use of tools or equipment,
exposure to paint and/or other chemicals and physical exertion, any of which may result in damage to
property, bodily injury or death. I am aware of the risks and hazards inherent in my participation in
the Project, and recognizing those risks and hazards, I wish to participate in the Project.
2. On behalf of myself, my heirs, executors, administrators, personal representatives and assigns,
I hereby release the City of Fort Collins, and its officers, employees, volunteers, and agents
(collectively, "Releasees") from any and all liability for any and all claims and causes of action which
I may hereafter have on account of any and all injuries and/or damage that I may sustain, or any loss
of any other sort, arising out of or relating to my participation in or attendance at the Project, or
incidental thereto, whether caused by the negligence of the Releasees or any other person. In
addition, I covenant and agree not to sue any of the Releasees, and agree to forever hold them and
each of them harmless, from any liability, claims, demands, actions, or causes of action whatsoever
arising from my participation in the Project, whether such liability, claims, demands, or actions are
the result of the negligence of the Releasees or any other person. This waiver, release, discharge,
indemnification and hold harmless shall not be applicable to actions constituting gross negligence,
recklessness or willful and wanton behavior on the part of the Releasees. However, these exceptions
shall not be construed as a waiver of sovereign immunity or the protections of the Colorado
Governmental Immunity Act. This release of liability, covenant not to sue, and hold harmless
agreement shall be binding upon me, my heirs, executors, administrators, personal representatives,
and assigns, and shall inure to the benefit of the Releasees and their successors and assigns.
3. I hereby agree to indemnify the Releasees and to assume and be responsible for all harm,
injury or damage caused by me to any of the Releasees, the Releasees' property or equipment, other
persons or other personal property used in conjunction with the Project.
Signature
Printed name
Address
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Date