HomeMy WebLinkAbout582560 CHELSEA ERMER - CONTRACT - CONTRACT - CHELSEA ERMERArt in Public Places Construction Agreement
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ART IN PUBLIC PLACES CONSTRUCTION AGREEMENT
Downtown Barrier Murals
THIS AGREEMENT is made and entered into this 3
rd
day of August, 2020, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation
(hereinafter referred to as “the City”), and Chelsea Ermer (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. The Artist must furnish all of the materials and perform all of the
work for the Downtown Barrier 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 painting
a mural on multiple concrete barriers, including designing the mural, and painting in
a public location. 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 22, 2020. 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. [This paragraph intentionally omitted.]
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” without advance written approval from the City.
B. Changes by the City. The City may request changes in the design, painting
location, schedule, 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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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 complete. The City’s representative will do a walk-through
of the Project with the Artist and either accept the Project as complete or explain to
the Artist any unresolved issues or defects that remain, which the Artist must cure
before the City will accept the Project as complete. Once the City has accepted the
Project 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, 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 United 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. Because of the
temporary nature of the Pianos About Town mural project, the City reserves the
right to paint over this Project or dispose of the Project in any manner the City
deems appropriate.
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 the Artist’s 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 12, below.
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With the exception of the rights granted above, the Artist must not make
or knowingly permit others to make any 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. Guarantee of Workmanship and Material. For a period of one (1) year from the date
of the City's acceptance of the Project, Artist agrees to replace or correct any
material defects in the Project, whether caused by defects in the, workmanship or
materials used by the Artist in the Project, but not including the piano itself. 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.
9. Maintenance [This paragraph intentionally omitted.]
10. Contract Sum. The City will pay Artist for the performance of this Contract, subject
to additions and deletions provided herein, the sum of Two Hundred and Fifty Dollars
($250) on the following schedule:
A. $125 upon full execution of this Agreement;
B. $125 or any remaining amounts due under this Agreement, upon the City's final
approval and acceptance of the Project as complete. The City will not make final
payment until it has received a lien waiver from the Artist in substantially the form
shown in Exhibit “B”, and comparable lien waivers from any and all
subcontractors that have performed work or provided materials in connection
with the Project.
11. 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 may deem appropriate.
12. 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 artwork,
or a substantially similar artwork that will be displayed within 100 miles of Fort
Collins, Colorado.
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13. 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 Ten Dollars ($10) per day
for each and every calendar day the Project remains unfinished. In no event will
liquidated damages exceed Fifty Dollars ($50).
14. Governing Law. This Agreement is governed by the laws of the State of Colorado.
15. 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:
Chelsea Ermer Ellen Martin
3331 Stanford Rd #206 Lincoln Center
Fort Collins, CO 80525 417 West Magnolia
Fort Collins, CO 80521
16. 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
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effective upon the mailing, by the terminating party, of written notice of
termination to the defaulting party.
D. Attorneys Fees. If the non-defaulting party must commence legal or equitable
action against the defaulting party to enforce the terms of this Agreement, the
defaulting party is liable to the non-defaulting party for the non-defaulting party’s
reasonable legal fees, including attorney’s fees, incurred because of the default.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. Subcontractors. [This paragraph intentionally omitted.]
23. 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.
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24. 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’s safety precautions
must be in compliance with all applicable laws, rules and regulations.
25. 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
26. Indemnity. The Artist indemnifies and holds harmless the City, the Fort Collins
Downtown Development Authority, the Bohemian Foundation, and their respective
officers, agents and employees (collectively, the “Indemnified Parties”), 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 any and all claims against the Indemnified Parties by any employee, subcontractor
or agent of the Artist, the Artist’s indemnification obligation are not limited in any way
by any limitation on the amount or type of damages, compensation, or benefits
payable by or for the Artist or any subcontractor under Workmen's Compensation
laws, Disability Benefit laws, or other employee benefit laws.
The Artist is responsible for any liability directly or indirectly arising out of the work
performed under this Agreement by a subcontractor, to the extent that liability is not
covered by the Subcontractor's insurance.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
BY:__________________________________
Gerry S. Paul
Purchasing Director
ATTEST:
______________________________
APPROVED AS TO FORM:
______________________________
ARTIST:
__________________________________
Chelsea Ermer
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Assistant City Attorney ll
City Clerk
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EXHIBIT A
SCOPE OF WORK
Mural Concept
The Reserve by Old Elk Distillery
The mural cannot advertise the business where the barriers are located. APP could ask
for changes to the mural design.
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This mural will be temporary, and barriers will be removed from these sites.
All barriers in front of this business, must be painted (5 barriers at this site).
Artist will paint the inside of the barrier and wrap the murals around the top to the
other side, as can be reached. Murals compositions will be the length of the
barrier.
Artist will submit a drawing of the full length of the mural for approval of the APP
Coordinator, prior to starting the mural.
Artist will sign each concrete barrier mural.
Artist is required to send APP Project Manager images showing the progress of
the piano mural.
Artist is required to keep the working area clean from any paint splatters or will
clean area immediately.
COVID – 19
Keeping you and our community safe is our priority. Please follow Larimer County
Public Health Orders at:
https://www.larimer.org/health/communicable-disease/coronavirus-covid-19
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EXHIBIT B
SAMPLE LIEN WAIVER RELEASE
(ARTIST)
TO: City of Fort Collins, Colorado (OWNER)
FROM: Chelsea Ermer (ARTIST)
PROJECT: Downtown Barrier 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 __________, 20__.
______________________________
Chelsea Ermer
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EXHIBIT C
AFFIDAVIT PURSUANT TO C.R.S. 24-76.5-103
I, , swear or affirm under penalty of perjury under the laws of the
State of Colorado that (check one):
___ I am a United States citizen, or
___ I am a Permanent Resident of the United States, or
___ I am lawfully present in the United States pursuant to Federal law.
I understand that this sworn statement is required by law because I have applied for a public
benefit. I understand that state law requires me to provide proof that I am lawfully present in the
United States prior to receipt of this public benefit. I further acknowledge that making a false,
fictitious, or fraudulent statement or representation in this sworn affidavit is punishable under the
criminal laws of Colorado as perjury in the second degree under Colorado Revised Statute 18-
8-503 and it shall constitute a separate criminal offense each time a public benefit is fraudulently
received.
Signature Date
INTERNAL USE ONLY Valid forms of identification
---current Colorado driver’s license, minor driver’s license, probationary driver’s license, commercial
driver’s license, restricted driver’s license, instruction permit
---current Colorado identification card
---U.S. military card or dependent identification card
---U.S. coast guard merchant mariner card
---Native American tribal document
The following forms of identification may be accepted
---original birth certificate from any state of the United States
---certificate verifying naturalized status by U.S. with photo and raised seal
---certificate verifying U.S. citizenship by U.S. government, e.g., U.S. passport
---order of adoption by a U.S. court with seal of certification
---valid driver’s license from any state of the U.S. or the Dist. of Columbia excluding AK, HI, MD, MI, NM,
OR, UT, and WI
---valid immigration documents demonstrating lawful presence, e.g., current foreign passport with
current I-551 stamp or visa, current foreign passport with I-94, I-94 with asylum status, unexpired
Resident Alien card, Permanent Resident card or Employment Authorization card
*A waiver may be available where no identification exists or can be obtained due to a medical condition,
homelessness, or insufficient documentation to receive a Colorado I.D. or driver’s license. Contact your
department director.
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X
Chelsea Ermer
8/3/2020