HomeMy WebLinkAboutBPW 05-03-17-02/ Acknowledging Receipt of Contract/Black & White International, LLC/40,000/Love at First RideRESOLUTION NO. BPW 05-03-17-02
RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY
ACKNOWLEDGING RECEIPT OF CONTRACT
WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to
enter into contracts; and
WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor may enter into contracts on behalf of the
City; and
WHEREAS, pursuant to his authority under Indiana law; the City's mayor, the Honorable James C.
Brainard, has caused to be signed the City contract attached hereto as Exhibit A (the "Contract"); and
WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and
Safety for it to be publicly acknowledged, filed in the Clerk -Treasurer's Office, and made available to the public for
review.
follows:
NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as
1. The foregoing Recitals are incorporated herein by this reference.
2. The receipt of the Contract is hereby acknowledged.
3. The Contract shall be promptly filed in the office of the Clerk -Treasurer and thereafter made available to
the public for review.
SO RESOLVED this �_ day of , 2017.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
SASE Bass\My Documents\BPW-Resolutions\2017Wcknowledge Black & White International Construction Agreement.docx4/24/2017 8:44 AM
Black & White International, LLC
Engineering Department - 2017
Appropriation # P.O. #:
Contract Not To Exceed $40,000.00
AGREEMENT FOR SALE OF WORK OF ART
THIS AGREEMENT FOR SALE OF WORK OF ART ("Agreement") is hereby entered into by and between
the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (the °Collector"), and Black &
White International, LLC, a Missouri Limited Liability Company ("Black & White").
WHEREAS, Black & White is the exclusive representative for the works of Wiktor Szostalo (the -Artist"), for
the purpose of exhibition and sale of the Artist's works.
WHEREAS, the Artist has created (or will create) the Work of Art entitled "Love @ First Ride" (the "Work").
The Work is described in greater detail in Exhibit A, which is attached hereto and is incorporated herein by this
reference.
NOW THEREFORE the parties agree as follows:
1. ACKNOWLEDGMENT, ACCEPTANCE:
Black & White acknowledges that it has read and understands this Agreement, and agrees that its execution
of same constitutes its acceptance of all of the Agreement's terms and conditions.
2. PERFORMANCE:
Black & White agrees to sell and the Collector agrees to purchase the Work for a total purchase price of
Forty Thousand Dollars ($40,000) (the "Purchase Price"). The Purchase Price includes the Work, shipping
costs, and complete installation of the Work at Collector's designated location. The Collector will use City of
Carmel budget appropriation number funds to pay the Purchase Price.
3. PRICE AND PAYMENT TERMS:
3.1 Black & White shall submit an invoice for the Purchase Price of the Work to Collector within thirty
(30) days of the Collector taking possession of the Work. Collector shall pay Black & White the
Purchase Price of the Work within thirty-five (35) days after the date of Collector's receipt of Artist's
Invoice detailing same, so long as and to the extent such Work is not disputed, is in conformance
with the specifications set forth In Exhibit A, is submitted on an invoice that contains the Information
contained on attached Exhibit B, and Black & White has otherwise performed and satisfied all the
terms and conditions of this Agreement.
3.2 Black & White agrees not to provide any goods and services to Collector that would cause the total
cost of the Work provided by Black & White to Collector hereunder to exceed the Purchase Price,
unless Collector has previously agreed, in writing, to pay an amount in excess thereof.
4. WARRANTY:
Black & White expressly warrants that the Work will conform to those certain specifications, descriptions
and/or quotations regarding same as were provided to Black & White by Collector and/or by Black & White to
and accepted by Collector, all of which documents are incorporated herein by reference, and that the Work
will be delivered in a timely, good and workmanlike manner and free from defect. Black & White
acknowledges that it knows of Collector's intended use and expressly warrants that the Work provided to.
Collector pursuant to this Agreement has been selected by Black & White based upon Collector's stated use
and are fit and sufficient for their particular purpose.
5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same("Effective
Date°), and both parties shall thereafter perform their obligations hereunder in a timely manner, Time is of the
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Black & White International, LLC
Engineering Department - 2017
Appropriation I/ P.O. Ih
Contract Not To Excecd $40.000.00
essence of this Agreement.
6. DELIVERY AND INSTALLATION:
Black & White guarantees that the Work, as described in Exhibit A, will be ready for installation at a location
designated by the Collector within six (6) months of the Effective Date. Delivery and installation of the Work,
including all shipping charges, shall be Black & White's responsibility. Black, & White shall insure the Work
for the full Purchase Price until the Work is fully installed at Collector's designated location. The Collector
shall consult and obtain the written approval of Black & White on all aspects of the representation and display
of the Work, including signage and any relocation of the Work after the original installation.
7. COPYRIGHT:
The Artist, Black & White, and/or their successor(s), heir(s), and or assign(s) islare 4he copyright owner(s) of
the Work and shall retain all copyright ownership in the Work. The Collector agrees to never contest the
copyrights of the Artist, Black & White, and/or their successor(s), heir(s), and/or assigns) in the Work. It is
understood that any photographic or other image, including any derivative, of the Work may not be used for
commercial purposes. If the Collector desires to use a two-dimensional image of the Work for a commercial
or non-commercial purpose, the Collector must submit a written request to Black & White for approval prior to
any such use. Non-commercial two-dimensional images of the Work for media and promotional purposes
will generally be permitted. All approved images and use of the Works must show the following credit line:
'Love @ First Ride" by Wiktor Szostalo.
0 2017 Black & White International, LLC.
Non-commercial news reporting, editorial and journalistic photos of the Work require the attribution copyright
line, but do not require written approval.
8. DEFAULT:
In the event Black & White: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Black & White's warranties; (b) fails to provide the Goods and Services as specified
herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services
and does not correct such failure or breach within five (5) business days (or such shorter period of time as is
commercially reasonable under the circumstances) after receipt of notice from Collector specifying such
failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the
benefit of creditors or dissolves, each such event constituting an event of default hereunder, Collector shall
have the right to (1) terminate all or any parts of this Agreement, without liability to Black & White; and (2)
exercise all other rights and remedies available to Collector at law and/or in equity.
9. INDEMNIFICATION:
Black & White shall indemnify and hold harmless Collector from and against any and all liabilities, claims,
demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or
damages to any person or property arising from or in connection with the sale and/or exhibition of the Work
under this Agreement.
Black & White further agrees to indemnify, defend and hold harmless Collector and its officers, officials,
agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs,
attorney fees, and other expenses, caused by any act or omission of Artist and/or of any of Artist's agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
10. GOVERNMENT COMPLIANCE:
Artist agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Artist's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Artist agrees to indemnify and hold harmless
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Black & While International, LLC
Engineering Department - 2017
Appropriation # P.O. ll:
Contract NotTo Enced $40,000.00
Collector from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules,
regulations and codes. This indemnification obligation shall survive the termination of this Agreement.
11. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any .
party of a breach of any provision of. this Agreement constitute a waiver of any succeeding breach of the
same or any other provision hereof.
12. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Black & White,
nor Artist, nor any of its officers, employees, contractors, subcontractors and agents are employees of
Collector. The Purchase Price set forth herein shall be the full and maximum compensation and monies
required of Collector to be paid to Black & White under or pursuant to this Agreement
13. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, .they
waive their right to a jury trial, agree to file any such lawsuit In an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
14. SEVERABILITY:
If any term of this.Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
15. NOTICE:
Any notice provided for In this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S, certified mail, return receipt requested, to the party to be notified at the address specified
herein:
If to Collector: Collector of Carmel AND
Douglas C. Haney,
One Civic Square
Corporation Counsel
Carmel, Indiana 46032
Department of Law
One Civic Square
Carmel, Indiana 46032
If to Black & White: Black & White International, LLC.
4398 Chouteau Avenue
St. Louis, MO 63110
ATTENTION: Wiktor Szostalo
Notwithstanding the above, notice of termination under paragraph 16 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set. forth hereinabove within five (5) business days from
the date of such oral notice.
16. TERMINATION:
Notwithstanding anything to the contrary contained In this Agreement, Collector may, upon notice to Black &
White, Immediately terminate this Agreement for cause, in the event of a default hereunder by Black & White
and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be
provided hereunder. In the event of such termination, Black & White shall be entitled to receive only payment
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Black & White International, LLC
Engineering Department - 2017
Appropriation 11 P.O. Ih
Contract Not To Exceed $40,000.00
for work completed as of the date of termination, except that such payment amount shall not exceed the
Purchase Price, unless the parties have previously agreed in writing to a greater amount.
17. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
18. HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this -
Agreement nor limit, expand or otherwise alter the, meaning of any provision hereof.
19. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
20. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than Collector and Black & White.
21. IRAN CERTIFICATION:
Pursuant to I.C. § 5.22-16.5, Black & White shall certify that, in signing this document, it does not engage in
investment activities within the Country of Iran.
22. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same
freely; voluntarily, and without any duress, undue Influence or coercion,
23. ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire
agreement between Black & White and Collector with respect to the subject matter hereof, and supersedes
all prior oral or written representations and agreements regarding'same. Notwithstanding any other term or
condition set forth herein, but subject to.paragraph 16 hereof, to the extent any term or condition contained in
any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or
condition contained in this Agreement, the term or condition contained in this Agreement shall govern and
prevail.. This Agreement may only be modified by written amendment executed by both parties hereto, or
their successors in interest.
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Black K White Internationul, LLC
Engineering Department - 2017
Appropriation it P.O. 0:
Contract Not To Excecd $40,000.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
COLLECTOR OF CARMEL, INDIANA
by and through its Board of Public
Works and Safety
By:
J s Brainard, Presiding Officer
ate: 3 -31—oZij {'1
Mary Ann Burke, Member
Date:
Lori S. Watson, Member
Date:
ATTEST:
Christine S. Pauley, Clerk -Treasurer
Date:
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Date:
Black & white International, LLC
Engineering Department - 2017
Appropriation M P.O. Ih
Contract Not To Exceed $40,000.00
EXHIBIT A
Below are the dimensions and a short description of the sculpture, both technical and artistic/conceptual.
"Love at First Ride" will be:
15' long, from front wheels to rear;
12' wide at the "handle bar" level, and 8' wide at the ground level, at the "wheels";
8' tall.
The "wheels" and all elements of the "bicycles" other than "frames" will be made of laser, or plasma cut 118"(3mm)
thick Corten steel sheet, welded with Corten wire.
The "frames" will be made of 3132" stainless steel tubing cut into smaller pieces and re -welded with stainless steel
wire for both more strength and my "signature" unique look.
All of It will be thoroughly ground and polished to be absolutely safe to touch and sit on.
The approximate weight will be 550 to 600 Ibs, and a sufficient foundation for it, I tested on similar sculptures of mine,
will be 4 to 5 rebar reinforced concrete pillars 20" in diameter, poured 3' deep into the ground, into which the 4
outside wheels will be anchored, plus one might be added for the bicycles in the middle.
When the sculpture is completed i will provide a footprint for the foundation.
My "Love at First Ride" is about three things at once: LOVE, of parents with'two kids, who are enjoying each other
and Nature, while riding bicycles, which in itself contributes to cleaner air and saving -our natural environmentlif
And makes us healthier:)
The most important metaphor of this sculpture, both humorous and warm is the one handle bar holding all of the
"bicycles" together. No one person decides where it's going, they are "caught" in it really together.
It doesn't even look it's gonna work, but somehow it is, and it's fun.
Well, isn't it a suiting metaphor for love?
The sculpture will be interactive, people young and older will be allowed to touch it and safely climb it, to both play,
and of course to take seifies and lots of pictures in general.
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]EX HIB IT B
Invoice
Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
Project Name:
Invoice No.
Purchase Order No:
Date:
Signature
Printed Name
Goods
Services
Person Providing
Goods/Services
Date
Goods/
Service
Provided
Goods/Services Provided
(Describe each good/service
separately and in detail)
Cost Per
Item
Hourly
Rate/
Hours
Worked
Total
GRAND TOTAL
Signature
Printed Name
EXHIBIT C
INSURANCE COVERAGES
Worker's Compensation & Disability
Employer's Liability:
Bodily Injury by Accident/Disease:
Bodily Injury by Accident/Disease:
Bodily Injury by Accident/Disease:
Property damage, contractual liability,
products -completed operations:
General Aggregate Limit (other than
Products/Completed Operations):
Products/Completed Operations:
Personal & Advertising Injury
Policy Limit:
Each Occurrence Limit:
Fire Damage (any one fire):
Medical Expense Limit (any one person):
Statutory Limits
$100,000 each employee
$250,000 each accident
$500,000 policy limit
$500,000
$500,000
$500,000
$250,000
$250,000
$ 50,000
Comprehensive Auto Liability (owned, hired and non -owned)
Bodily Single Limit:
Injury and property damage:
Policy Limit:
Umbrella Excess Liability
Each occurrence and aggregate:
Maximum deductible:
$500,000 each accident
$500,000 each accident
$500,000
$500,000
$ 10,000