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HomeMy WebLinkAbout24-130 Resolution No. 24-130 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH ACME DESIGN INC. FOR THE PURCHASE OF CUSTOM REPLICA ARTWORK BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER 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 on behalf of the City of Elgin with ACME Design Inc., for the purchase of custom replica artwork, in such form as approved by the Corporation Counsel. s/David J. Kaptain David J. Kaptain, Mayor Presented: May 8,2024 Adopted: May 8, 2024 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk P RCHASE AGREEMENT FOR ARTWORK THIS AGREEME T is made and entered into this ; of ,2024, by and between the CITY OF E IN, an Illinois municipal corporatio ("City"), nd ACME DESIGN, INC., an Illinois corporati in("Artist"). WHEREAS, the ity has determined that a beneficial public purpose will be served by entering into an agrcemen with the Artist to provide for the purchase of certain artwork and large- scale props from the Artis , pursuant to the terms and conditions of this Agreement; and WHEREAS, the rtist represents that it has the necessary expertise and experience to create and provide the an ork and large-scale props and to otherwise perform the subject services upon the terms and condit ons set forth in this Agreement. NOW. THEREF ' , in consideration of the mutual promises and covenants contained herein, the sufficiency of hich is hereby mutually acknowledged,the parties hereto hereby agree as follows: 1. The forego ng recitals are hereby incorporated into this Agreement 2. The Artist -hall create, fabricate, and provide to the City the following described two pieces of artwork: (l a custom replica of the "Angel of independence" sculpture located in Mexico City, to measure pproximately twenty feet (20') in height; and (2) a sign consisting of the letters"MX,"said lett rs to measure approximately seven to eight feet(7' to 8') in height and approximately one foot I') deep (the two pieces are herein collectively referred to as the "Artwork". The specific.lions and design for the Artwork arc set forth in Exhibit A, attached hereto and made a part h reof by this reference (the fabrication, creation, and provision of the Artwork and the services lating thereto are hereinafter referred to as the"Subject Services"). In the event of any conflict s etween the provisions of this Agreement and the provisions in Exhibit A hereto, the provisions $ this Agreement shall control. The Artist represents and warrants that the Artist has the skills a $ knowledge necessary to create and provide the Artwork and conduct the Subject Services prov..ed for in Exhibit A in a reasonable and workmanlike manner, and that the Subject Services set b rth in Exhibit A are integral parts of this Agreement and may not he modified, amended, or al ed except by a written amendment to this Agreement agreed to and executed by both parties reto. 3. The Artist arrants and agrees that it shall complete the Subject Services under this Agreement and deliver th. Artwork to the City on or before August 15, 2024. 4. In additio , upon completion of the Subject Services and the delivery of the Artwork to the City, the • ty shall purchase and the Artist shall sell and convey all right, title,and interest to the Artwork, in luding but not limited to all ownership interests the Artist may have in the Artwork. Artist funh r agrees and shall execute any other documents deemed necessary by the City to facilitate and/. effectuate the conveyance of the Artwork and/or the Artist's interests therein to the City. 1 5. City shall ,•ay to the Artist the total amount of Twenty-Six Thousand Seven Hundred Dollars($26,70 1 for the Subject Services under this Agreement and for the conveyance any and all of Artist's righ s in the Artwork to the City(the"Purchase Price"). The Purchase Price is inclusive of all delivery d/or installation costs or any other charges in any way associated with the Subject Services. to City shall pay Thirteen Thousand Three Hundred Fifty Dollars ($13,350) of die Pinellas Price upon the execution of this Agreement. The City shall pay the balance of Thirteen Thou nd Three Hundred Fifty Dollars (S13,350) upon the completion of the Subject Services and the •nveyancc of the Artwork to the City. 6. This Agrc ent shall not be construed so as to create a partnership,joint venture, employment or other agen•y relationship between the parties hereto. The relationship of the Artist to the City arising out of t is Agreement shall be that of an independent contractor. It is expressly agreed and understood t the Artist and the Artist's officers, employees, and agents are not employees of the City an arc not entitled to any benefits or insurance provided to employees of the City. 7. If the Arti t 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, contractu=,, legal or equitable remedies to which it may be entitled by law as a result of such violation o breach; and, in addition, if the Artist, by reason of any default, fails, within fifteen (15) days a er notice thereof by the City demanding compliance, to comply with the terms and conditions ,f this Agreement, the City may terminate this Agreement. If the City violates or breaches any erm of this Agreement, such violation or breach shall he deemed to constitute a default, and i the event the City, within fifteen (15) days after notice thereof by the Artist demanding compl.nce, fails to comply with the terms and conditions of this Agreement, the Artist, as its sole an. exclusive remedy, may terminate this Agreement. Notwithstanding anything to the contrary i 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 5 hereof, no action shall be commenced by the Art%t,any related agents,person s,or entities,and/or any of their successors and/or assigns, against th= City for monetary damages. In the event any legal action is brought by the City for the enforcem=nt 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 'ercent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars ($250.00) r hour, which Artist agrees to be reasonable. The provisions of this paragraph shall survive at expiration,completion and/or termination of this Agreement. 8. To the full st extent permitted by law, Artist agrees to indemnify,defend and hold harmless the City, its offi ials, officers, employees, agents, attorneys, commission members and hoards and commissions rom and against any and all claims, suits,judgments, costs, attorney's foes, damages or other rcl cf, including, but not limited to, workers' compensation claims, in any way resulting from or a 'sing out of any breach of this Agreement or any negligent acts or omissions of the Artist in .onncction herewith, including any negligent acts or omissions of agents of the Artist arising out o 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, cmplo , agents, attorneys. commission members or boards or commissions covered by the foregoin! duty to indemnify, defend and hold harmless, such action shall be 2 defended by legal counsel f the City's choosing. The provisions of this section shall survive any expiration,completion an or termination of this Agreement. 9. The Artist, as author of the Artwork dcscribcd 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 provi ed by law, to prevent any distortion, mutilation. modification or destruction of that work, or whatever reason and for whatever use of the work such distortion, mutilation, modification o destruction of the work is undertaken. This waiver does not extend to the rights of-attribution co ferred by 17 U.S.C. § 106A(a)(1)or § 106A(a)(2). The provisions of this paragraph shall surviv the sale and conveyance of the Artwork to the City and any expiration, completion and/or terrain ion of this Agreement. 10. No official officer, employee, agent. attorney or commission member of the City shall be charged persona ly or held contractually liable under any term or provision of this Agreement or because of ' eir execution, approval or attempted execution of this Agreement. 11. Artist will not discriminate against any employee or applicant for employment because of race, color, rii igion, sex, national origin, age, ancestry, order of protection status, familial status, marital sta s, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service which would not interfere with the efficient performance of the job in estion. Artist will take affirmative action to comply with the provisions of Elgin Municipal Code `ection 5.02.040 and will require any subcontractor to submit to the City a written commitment to comply with those provisions. Artist will distribute copies of this commitmcnt,to all person: who participate in recruitment, screening, referral and selection of job applicants, prospective jo applicants,and subcontractors. 12. No person hall be denied or subjected to discrimination in receipt of the benefit of any services or activities adc possible by or resulting from this Agreement on the grounds of sex, race, color, creed, nation I origin, age except minimum age and retirement provisions, marital status or the presence of a y sensory,mental or physical handicap. Any violation of this provision shall be considered a viol tion of a material provision of this Agreement and shall be grounds for cancellation, termination .r suspension, in whole or in part,of the Agreement by the City. 13. The terms d provisions of this Agreement shall be severable. If any paragraph, subparagraph, phrase,cla se or other provision of this Agreement,or any portion thereof,shall be held to be void or othe se unenforceable, all other portions of this Agreement shall remain in full force and effect. 14. This Agre- ent and its exhibits constitute the entire Agreement of the parties on the subject matter hereof 1 nd may not be changed, modified, discharged or extended except by written amendment duly 'xecuted by the parties. Each party agrees that no representations or warranties shall be bindin_ upon the other party unless expressed in writing herein or in a duly- executed amendment hereof. 15. This Agr- : lent shall be deemed to have been made in and shall be construed in accordance with the laws .f the State of Illinois. Venue for the resolution of any disputes or the 3 i enforcement of any rights ursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 16. Notwithsta ding any other provision in this Agreement, it is expressly agreed and understood that in connect on with the performance of this Agreement the Artist shall comply with all applicable federal, stat , city and oilier 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 rele ant 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. 17. 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 Acme Design, Inc. 150 Dexter Court ' 37 North Union Street Elgin, IL 60120-5555 Elgin, Illinois 60123 City Manager With a copy to: Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 18. 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 he 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. 19. 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. 4 20. 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 Agrt:eine 1. 21. 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. 22. 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. This Agreement may be executed electronically,and any signed copy of this Agreement transmitted by facsimile machine,email,or other electronic means 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 facsimile machine, email, or other electronic means shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. IN WITNESS WHEREOF, the undersigned have entered into executed this Agreement on the date and year first written above. CiTY OF El.GIN ACME DESIGN, INC. By: By: ?ee, - L Richard G. Kozal, City Manager 13oruzie-i, Kimberly Dewis, 'it erk L.:gal ucpt Agrcnncnt',Pwrltsw Agi-Acme Dcsgro Kcpdcs An-4.30-2/Aocz 5 I EXHIBIT A Working with local business, ACME Design Inc, the fabrication of the Angel of Independence is expected to take approximately 2(1 weeks in total. The sculpture will consist of the tower and angel only, no base, as is seen in the image below. The angel figure shown on the top of the tower measures approximately 4 feet tall, while the tower itself is close to 16 feet tall for a total of approximately 20 feet without a base for installation. The material used for creation of the tower is a combination of mixed media including EPS foam with fire- rated polyurca/polyurethanc hard coat as well as thermoplastic 3D printed elements, internal armature, and scenic painting. A gold tone mctal-lic paint and faux stone finished column with a metal base plate make the piece realistic when viewed up close I .4. � , -t'. . s s r 05, ts� ► '� The large `MX' sign serves as both a popular photo opportunity as well as a call back to Mexico. Decorated in various bright colors with the assistance of local artists, the piece stands alone. The materials used for this include I lb. EPS foam with fire-rated polyurea/polyurethane hard coat and scenic paint. The letters will be approximately 7-8 feet tall and approximately 1 foot deep. These will be prepped with a low sheet white base coat before handing them off to be designed and painted in the traditional style. rI 4*-4,. .:: ..„ - ,. . , 4,,,,,.. ii 4%. . • ; -"'..?; - .1/ . — "fel-, • '• . 4" _" • 1 ,, . .4,ifel • • y t Jikr t• e Z 0 �. .. Yy O , vl .