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HomeMy WebLinkAbout25-0822 Michael Brown PURCHASE AGREEMENT FOR ARTWORK THIS AGREEMENT is made and entered into this 22nd of August,2025, by and between the CITY OF ELGIN, an Illinois municipal corporation ("City"), and MICHAEL BROWN("Artist"). 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 and display of certain artwork from the Artist,pursuant to the terms and conditions of this Agreement; and WHEREAS, the Artist represents that it has the necessary expertise and experience to create and provide the artwork and to otherwise perform the subject services upon the terms and conditions set forth in this Agreement. 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. The Artist shall provide to the City the following described limestone and steel original pieces of artwork:(1)"Fire and Water Chaco Revisited"an Indiana limestone sculpture to measure approximately eleven feet (11') in height, four feet(4') in width and three feet (3') in depth;(2)"Another Thought"an Indiana limestone sculpture to measure ten feet(10') in height, three feet (3') in width, and two feet (2') in depth; and "Anasazi Gate" an Indiana limestone sculpture measuring eleven feet(11') in height,four feet(4')in width,and three feet(3')in depth (the three pieces are herein collectively referred to as the"Artwork". The specifications,location, and design for the Artwork are set forth in Exhibit A, attached hereto and made a part hereof by this reference (the fabrication, creation, and provision of the Artwork and the services relating thereto are hereinafter referred to as the "Subject Services"). The artwork is to be installed in Wing Park, 1010 Wing Park, Elgin,IL 60120. Artist is responsible for bringing the artwork to the location of installation. In the event of any conflict between the provisions of this Agreement and the provisions in Exhibit A hereto, the provisions of this Agreement shall control. The Artist represents and warrants that the Artist has the skills and knowledge necessary to create and provide the Artwork and conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, and that the Subject Services set forth in Exhibit A are integral parts of this Agreement and may not be modified, amended, or altered except by a written amendment to this Agreement agreed to and executed by both parties hereto. 3. The Artist warrants and agrees that it shall complete the Subject Services under this Agreement and deliver the Artwork to the City on or before October 30, 2025. 4. In addition, upon completion of the Subject Services and the delivery of the Artwork to the City,the City shall purchase and the Artist shall sell and convey all right,title,and interest to the Artwork, including but not limited to all ownership interests the Artist may have in the Artwork. Artist further agrees and shall execute any other documents deemed necessary by 1 the City to facilitate and/or effectuate the conveyance of the Artwork and/or the Artist's interests therein to the City. 5. City shall pay to the Artist the total amount of Thirteen Thousand Dollars ($13,000.00) for the Subject Services under this Agreement and for the conveyance any and all of Artist's rights in the Artwork to the City (the "Purchase Price"). City shall own the Artwork and the Artist shall own the copyright for the Artwork. The Purchase Price is inclusive of all delivery and/or installation costs or any other charges in any way associated with the Subject Services. The City shall pay Thirteen Thousand Dollars ($13,000) upon the completion of the Subject Services and the conveyance of the Artwork to the City. 6. 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. 7. 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 5 hereof, no action shall be commenced by the Artist,any related agents, person s, 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. 8. 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 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 2 covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration,completion and/or termination of this Agreement. 9. 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. 10. 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. 11. Artist will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, ancestry, order of protection status, familial status, marital status, 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 question.Artist will take affirmative action to comply with the provisions of Elgin Municipal Code Section 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 commitment to all persons who participate in recruitment, screening, referral and selection of job applicants, prospective job applicants,and subcontractors. 12. 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. 13. 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. 14. This Agreement and its exhibits constitute 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. 3 15. 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. 16. 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. 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 Michael Brown 150 Dexter Court 10403 Medjool Drive Elgin, IL 60120-5555 Venice, FL 34293 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 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. 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 4 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. 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 Agreement. 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 ELGIN MICHAEL BROWN 10403 Medjool Drive Venice, FL 34293 C 13\ By: c�Q „zz t- —tfrA1/1 j\ktiek,a-$ 2--er051\ 2c)2-C Richard G. Kozal, City Man ger SLR or,,� Kimberly De i City lerk Legal Dept\Agreement\Michael Brown-Purchase Agr-Artwork-Clean-8-15-25.docx 5 EXHIBIT A DESCRIPTION OF ARTWORK AND SCOPE OF SERVICES,TO BE INSERTED • Dimensions: o Another Thought: Indiana limestone, 10'H x 3'W x 24"D o Anasazi Gate: Indiana limestone, 11'H x 3' W x 24"D o Fire and Water Chaco Revisited: Indiana limestone, 11'H x 4'W x 3'D. • Installation: To be completed by the City of Elgin with assistance of Michael Brown. • Images of the installation location: Ins . '• , . ' .- . ' .'. .- -. • '.-. •• n 'lit shown below: I. O ' iihg Park ,st 11 fir.: ow • r i z* • Images of the proposed artworks: Anasazi Gate Fire and Water Chaco Revisited Another Thought LI