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HomeMy WebLinkAbout22-4 Resolution No. 22-4 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT FOR WORK OF ART WITH BEN PIERCE FOR THE PURCHASE OF "THE SHAPE OF HAPPINESS" BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Richard G.Kozal,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute a Purchase Agreement for Work of Art on behalf of the City of Elgin with Ben Pierce, for the purchase of"the shape of happiness", a copy of which is attached hereto and made a part hereof by reference. _s/David J. Kaptain David J. Kaptain, Mayor Presented: January 12, 2022 Adopted: January 12, 2022 Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT FOR WORK OF ART THIS AGREEMENT is made and entered into this 12th of January , 2022, by and between the CITY OF ELGIN, Illinois,a municipal corporation("City"),and BEN PIERCE,a resident of the state of Missouri, ("Artist"). WHEREAS, the City and the Artist have previously entered into a Public Art Artist Agreement, dated August 17, 2018 ("Artist Agreement"), whereby the City provided a grant to the Artist for the creation of a work of art for temporary public display on certain City-owned property;and WHEREAS, pursuant to the Artist Agreement,the Artist created a work of art known to the parties as "the shape of happiness,"currently located and on public display on State Street, Elgin, Illinois, and depicted in Exhibit A, attached hereto and incorporated herein by this reference(the"Artwork");and WHEREAS, the City has determined that a beneficial public purpose will be served by entering into an agreement with the Artist to provide for the purchase of the Artwork,as well as any and all of the Artist's rights and interests therein,by the City and from the Artist,pursuant to the terms and conditions of this Agreement;and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The foregoing recitals are hereby incorporated into this Agreement 2. City shall purchase and Artist shall sell and convey all right, title, and interest to the Artwork commonly known as"the shape of happiness,"depicted in the above-referenced Exhibit A; provided, however, that the Artist shall retain all copyright interests in the Artwork under the Copyright Act of 1976, 17 U.S.C. 101,et seq.,except as such rights are limited by the license granted to the City pursuant to paragraph 6, herein. 3. The purchase price for the Artwork and any and all of Artist's rights in the Artwork shall be in the total amount of Twenty-Six Thousand Dollars ($26,000.00) (the "Purchase Price"). 4. Upon the execution of this Agreement by both parties,Artist agrees to and shall execute and deliver to the City a Bill of Sale conveying all right,title, and interest to the Artwork, including but not limited to all ownership interest, other than the copyright interests retained by the Artists set forth in paragraph 2 of this Agreement,to the City. The Bill of Sale shall be in the form attached hereto as Exhibit B. Artist further agrees and shall execute any other documents deemed necessary by the City to facilitate and/or effectuate the conveyance of the Artwork and/or any and all of Artist's interests therein to the City. 5. Upon receipt of the executed Bill of Sale and the receipt of any other documents deemed necessary by the City pursuant to paragraph 4, above, City shall make payment to the Artist in the amount of the Purchase Price. 6. The Artist grants to the City and its assigns a royalty-free, irrevocable license to make, display, and distribute two-dimensional and/or digital reproductions of the Artwork for educational, governmental, and/or any other City-related purpose, including, but not limited to, reproductions used in the City's publicity, electronic and multimedia, social media,calendars, posters, brochures,videos, broadcasts,films, postcards, books, flyers, promotional materials, advertising, catalogues, museums, educational materials, development projects, or any other similar publications. No three-dimensional reproductions of the Artwork may be made by the City without the prior written consent from the Artist. 7. The City may terminate this Agreement at any time prior to the City's acceptance of the Bill of Sale from the Artist for any reason whatsoever, in its sole discretion. In the event this Agreement is so terminated,the City's obligation to make any payments to the Artist pursuant to this Agreement shall be null and void. 8. This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. The relationship of the Artist to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Artist and the Artist's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 9. If the Artist violates or breaches any term of this Agreement,such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual,legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Artist, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default,and in the event the City, within fifteen (15)days after notice thereof by the Artist demanding compliance,fails to comply with the terms and conditions of this Agreement, the Artist, as its sole and exclusive remedy, may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel, with the sole exception of the money the City has agreed to pay the Artist pursuant to paragraph 3 hereof, no action shall be commenced by the Artist,any related agents, persons or entities,and/or any of their successors and/or assigns,against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Artist in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Artist interest at the rate of nine percent (9%) per annum, plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour, which Artist agrees to be reasonable. The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 10. To the fullest extent permitted by law, Artist agrees to indemnify, defend and hold harmless the City, its officials, officers, employees, agents, attorneys, commission members and boards and commissions(collectively,the"Indemnities")from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including, but not limited to,workers' compensation claims, in any way resulting from or arising out of any breach of this Agreement or any negligent acts or omissions of the Artist in connection herewith, including any negligent acts or omissions of agents of the Artist arising out of the performance of this Agreement and/or the Subject Services by the Artist, its subcontractors, agents or employees. In the event of any action against the City, its officials, officers, employees, agents,attorneys, commission members or boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. Artist shall further indemnify,defend,and hold harmless all Indemnities from all loss and liability,including attorney's fees,court costs, and all other litigation expenses,from any and all suits or claims for infringement of copyright and/or any other intellectual property right claims of any person or persons arising from the City's use or display of the Artwork. The City is not responsible for,and has not duty to prevent, any third party infringement of the Artist's copyright interests, and is not responsible for protecting the intellectual property rights of the Artist. The provisions of this paragraph 10 shall survive any expiration, completion and/or termination of this Agreement. 11. The Artist represents and warrants as follows: a. That the Artwork is solely the result of the artistic effort of the Artist; b. Except as otherwise disclosed in writing to the City,the Artwork is unique and original and is does not infringe upon any copyright or the rights of any person; c. The Artwork(or duplicate thereof) has not been accepted for sale elsewhere; d. The Artist has not sold, assigned, transferred, licensed, granted, encumbered or utilized the Artwork or any element thereof or any copyright related thereto which may affect or impair the rights granted pursuant to this Agreement; e. The Artwork is free and will be free and clear of any liens from any source whatsoever; f. The Artwork is wholly original with the Artist and shall not infringe upon or violate the rights of any third party; g. The Artist has the full power to enter into and perform this Agreement and make the grant of rights contained in this Agreement; h. The representations and warranties contained herein shall survive any expiration, completion and/or termination of this Agreement. 12. The Artist, as author of the Artwork described in this Agreement, agrees to and does hereby permanently waive the Artist's rights pursuant to 17 U.S.C. § 106A(a)(3), or as otherwise may be provided by law,to prevent any distortion,mutilation, modification or destruction of that work, for whatever reason and for whatever use of the work such distortion,mutilation,modification or destruction of the work is undertaken. This waiver does not extend to the rights of attribution conferred by 17 U.S.C. § 106A(a)(1) or § 106A(a)(2). The provisions of this paragraph shall survive the sale and conveyance of the Artwork to the City and any expiration,completion and/or termination of this Agreement. 13. No official,officer,employee,agent,attorney or commission member of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 14. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, employee or applicant for employment because of sex, age, race, color, creed, national origin,marital status,of the presence of any sensory,mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to,the following:employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 1S. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation,termination or suspension,in whole or in part,of the Agreement by the City. 16. The terms and provisions of this Agreement shall be severable. If any paragraph, subparagraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. n 17. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed,modified,discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly-executed amendment hereof. 18. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois.Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 19. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Artist shall comply with all applicable federal,state,city and other requirements of law including,but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees.Without limiting the foregoing,the Artist hereby certifies,represents and warrants to the City that all of Artist's employees and/or agents who will be providing products, and/or services with respect to this Agreement shall be legal residents of the United States. Artist shall also secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this Agreement.City shall have the right to audit any records in the possession or control of the Artist to determine the Artist's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit,the Artist shall make available to the City the City's relevant records at no cost to the City.The Artist shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 20. All notices,reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid,addressed as follows: As to the City: As to Artist: City of Elgin BEN PIERCE 150 Dexter Court Elgin, IL 60120-5555 �3 lo; Attention: Richard G. Kozal City Manager With a copy to: William A. Cogley,Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 S i 21. This Agreement is, and shall be deemed and construed to be,a joint and collective work product of the City and the Artist and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any,of the terms and provisions contained herein. 22. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned or delegated by the Artist without the express written consent of the City, which consent may be withheld at the sole discretion of the City. 23. Artist hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be entitled pursuant to law,including, but not limited to,pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act(815 ILCS 205/1,et seq.),as amended. The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 24. The parties hereto agree that any cause of action by the Artist arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time-barred. The provisions of this paragraph shall survive any expiration,completion and/or termination of this Agreement. 25. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this Agreement,any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e- mail as a defense to this Agreement and shall forever waive such defense. SIGNATURE PAGE FOLLOWS r_ IN WITNESS WHEREOF,the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN,a municipal corporation ARTIST: BEN PIERCE By: By G Richard G. Kozal,City Manager BEN PIERCE Ate City Clerk EXHIBIT A DEPICTION OF "the shape of happiness" a Q EXHIBIT B BILL OF SALE—"the shape of happiness" a BILL OF SALE Seller, BEN PIERCE(the"Artist"), a resident of the State of Missouri, in consideration of Twenty-Six Thousand Dollars ($26,000.00), to be paid to the ARTIST, does hereby sell, assign, transfer, convey and set over to Buyer, CITY OF ELGIN, an Illinois municipal corporation, of Elgin, Illinois, the following described personal property, and any and all rights and interest therein, in perpetuity,to-wit: All right, title, and interest to the sculpture known to the parties as "the shape of happiness," currently located and on public display on State Street, in the City of Elgin, Kane County, Illinois, and depicted in Exhibit A, attached hereto and incorporated herein by this reference (the "Artwork");provided,however,that the Artist shall retain all copyright interests in the Artwork under the Copyright Act of 1976, 17 U.S.C. 101, et seq., except as such rights are limited by the license granted to the Buyer pursuant to the Purchase Agreement for Work of Art entered into by and between the Buyer and the Seller, dated _ January 12 , 2022, such rights granted to the Buyer being as follows: The Seller grants to the Buyer and.its assigns a royalty-free, irrevocable license to make, display, and distribute two-dimensional and/or digital reproductions of the Artwork for educational, governmental, and/or any other City-related purpose, including, but not limited to, reproductions used in the City's publicity, electronic and multimedia, social media, calendars, posters, brochures, videos, broadcasts, films, postcards, books, flyers, promotional materials, advertising, catalogues, museums, educational materials, development projects, or any other similar publications. In further consideration of this sale, the Artist, as author of the Artwork described above, agrees to and does hereby permanently waive the Artist's rights pursuant to 17 U.S.C. § 106A(a)(3), or as otherwise may be provided by law, to prevent any distortion, mutilation, modification, or destruction of that work, for whatever reason and for whatever use of the work such distortion, mutilation, modification, or destruction of the work is undertaken. This waiver does not extend to the rights of attribution conferred by 17 U.S.C. § 106A(a)(1) or § 106A(a)(2). II �� Seller hereby represents and warrants to Buyer that Seller is the absolute owner of said property, that said property is free and clear of all liens, charges, and encumbrances, and that Seller has full right, power, and authority to sell said personal property and to make this bill of sale. SIGNATURE PAGE FOLLOWS IN WITNESS WHEREOF, Sell r has signed and sealed this bill of sale at U, HiaMs,this ^day of (Q jM , 2021. M(DSO u rr BEN PIERCE, a r sident of the State of Missouri BEN PIERCE STATE OF i L-L ))ss COUNTY OF C 1 Wa V I 1, It k vi v t mMgnotary public in and for said County,in the State aforesaid, DO HEREBY CER 'Y that BEN PIERCE, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and official seal,this '0day ofttV �(1021. ANoui M NARAMOREC-NOTARY SEAL MISSOURIAPE GIRARDEAUON#16154681xpires:June 14,2024 EMBITA DEPICTION OF `he shape of happiness" (»2 y. a. � � �- \.� \ � ,, .