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HomeMy WebLinkAboutBrad Howe, Inc/Eng/188,500.00/Art Installation – Reckon Brad Howe,Inc. Engineering Department-2018 Appropriation#2016 COLT Bond Fund P.O.#: 101966 Contract Not To Exceed$188,500.00 Q 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 Brad Howe, Inc. WHEREAS, Brad Howe, Inc. is the exclusive representative for the works of Brad Howe (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 "Reckon" (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: Brad Howe, Inc. 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: Brad Howe, Inc. agrees to sell and the Collector agrees to purchase the Work for a total purchase price of One Hundred Eighty Eight Thousand Five Hundred Dollars ($188,500.00) (the "Purchase Price"). The Purchase Price includes the Work and shipping costs. Brad Howe, Inc. shall pack and arrange pickup and delivery of the completed Work to the Installation Site (the "Site")as specified by the Collector. The Collector shall assume ownership and liability for the Work once it is packed aboard its transport vehicle. The Collector shall be responsible for the cost of delivery and installation of the Work. The Artist shall coordinate with the Collector to prepare the Site for installation. The Collector shall use its best efforts to secure the Site and protect the public during installation of the Work. The Collector will use City of Carmel budget appropriation number 2016 COIT Bond funds to pay the Purchase Price. 3. PRICE AND PAYMENT TERMS: 3.1 Brad Howe, Inc. shall submit an invoice for the Purchase Price of the Work to Collector. Collector shall pay Brad Howe, Inc. the Purchase Price of the Work within thirty (30) days of the execution of this Agreement, so long as and to the extent such Work is not disputed, is in conformance with the specifications set forth in Exhibit A, and Brad Howe has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Brad Howe, Inc. agrees not to provide any goods and services to Collector that would cause the total cost of the Work provided by Brad Howe, Inc. to Collector hereunder to exceed the Purchase Price, unless Collector has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Brad Howe, Inc. expressly warrants that the Work will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Brad Howe, Inc. by Collector and/or by Brad Howe, Inc. 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. Brad Howe, Inc. acknowledges that it knows of Collectors intended use and expressly warrants that the Work provided to Collector pursuant to this Agreement has been selected by Brad Howe, Inc. based upon Collectors stated use and are fit and sufficient for their particular purpose. [X:lpberlsnderlContracts\Brad Howe,Inc.Artwork Purchase dac:9/25/2018 9:52 AM) 1 Brad Howe, Inc. Engineering Department-2018 Appropriation#2016 COTT Bond Fund P.O.#: 101966 Contract Not To Exceed$188,500.00 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 essence of this Agreement. 6. COPYRIGHT: The Artist, Brad Howe, Inc., and/or their successor(s), heir(s), and or assign(s) is/are the 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, Brad Howe, Inc., and/or their successor(s), heir(s), and/or assign(s) 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 Brad Howe, Inc. for approval prior to any such use. Non-commercial two-dimensional images of the Work for media and promotional purposes will generally be permitted. 7. DEFAULT: In the event Brad Howe, Inc.: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Brad Howe, Inc.'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 Brad Howe, Inc.; and (2) exercise all other rights and remedies available to Collector at law and/or in equity. 8. INDEMNIFICATION: Brad Howe, Inc. 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. Brad Howe, Inc. 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. 9. 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 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. 10. 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. IX:yoberlander\Courtacts\Brd Howe,Inc.Artwork Purchase doe:925/2018 9.49 AM] 2 Brad Howe,Inc. Engineering Department-2018 Appropriation#2016 COIT Bond Fund P.O.#: 101966 Contract Not To Exceed$188,500.00 11. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Brad Howe, Inc. 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 Brad Howe, Inc. under or pursuant to this Agreement 12. 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. 13. 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. 14. 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 Brad Howe, Inc.: Brad Howe, Inc. 423 Latigo Canyon Road Malibu, CA 90265 ATTENTION: Brad Howe Notwithstanding the above, notice of termination under paragraph 15 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. 15. TERMINATION: Notwithstanding anything to the contrary contained in this Agreement, Collector may, upon notice to Brad Howe, Inc., immediately terminate this Agreement for cause, in the event of a default hereunder by Brad Howe, Inc. 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, Brad Howe, Inc. shall be entitled to receive only payment 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. 16. UNAUTHORIZED ALIENS: By signing this agreement, Brad Howe, Inc. certifies and represents that it does not knowingly employ unauthorized aliens. [X:yoberlsmdc\Contrxys\Brad Howe,Inc.Artwork P rchase.doc:9252018 9:49 AM] 3 Brad Howe,Inc. Engineering Department-2018 Appropriation#2016 COIT Bond Fund P.O.#: 101966 Contract Not To Exceed$188,500.00 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 Brad Howe, Inc. 21. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, Brad Howe, Inc. 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 Brad Howe, Inc. 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. [X:\joberlander\Contracts\Brd Howe,Inc.Artwork Purchase.doc.925/2018 9.49 AM) 4 bract t t<nwe, tnt. Engineering Department 24.OI8 Apprnpriatiort I3 2016('WIT Bond Fund P.O. tt• II)IcJ(ili C'ontracc Not Ti, Exceed $I;Sg 5U0.(X) IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: COLLECTOR OF CARMEL. INDIANA BRAD HOWE, INC. by and through its Board of Public Works and Safety By: Lic9Prccen James Brainard, Presiding Officer Date: /uthorited Signatur `7/ 'A/ M�I7�r T 7� Mary Ann urke, Printed Name Date: �b /; t Title Lori S. W !son, ember r FID/TIN: 4 Q j 3 V 9 Date: /0/32,5___ _ r Last Four of SSN if Sole Proprietor: ATTEST: Date: ft4V/a/f gial Christine S. Pa y, Clerk-Treasurer Date: /Q 3//� 2 0 ky - � ----- ` - � � ` � \ �. . . ` \ ` ` | ^-- ` - / � ` ' ' \ \ / \ ^^ BRAD HOWE Sculpture Concept "Reckon" — Carmel, IN "Reckon" The working title is a term used in English for the process of thinking To reckon is to arrive at a deduction or conclusion, with a quality of intuitive thinking and approximate guessing. The structure of the sculpture is that of a radiant energy -both a sun and a flower,both provider and receiver. It implies reaction and expansion,and the vitality of living energy. Brad Howe 423 LATIGO CANYON ROAD • MALIBU • CALIFORNIA 90265 TEL • 818-865-8594 FAX • 818-865-8216 bradhowe@bradhowe.com Exhibit BRAD HOWE "If we are to engage in the project of self-edification, the evolution of self, the enterprise is tied to our imagination. As Richard Rorty indicates,imagination is bound by our vocabulary, and it is in the growth of vocabulary we should focus. Vocabulary is tied to experience, and it is in energized moments of exposure to strangeness that our vocabulary expands. Encountering strangeness stretches and expands our self-image and seeds the rich potential for our collective conversations." -Brad Howe Brad Howe began his career in Brazil after studying history at the University of Sao Paulo. His work presents the influence of inquiry into the aesthetics of various cultures and distinct movements in the continuum of art history. Howe's work continues to connect with international communities, exhibiting and completing numerous site-specific commissions both here and abroad. Known for his sculpture practice, Howe's focus also includes the representation of objects through diverse means, including photography. Exhibit A BRAD HOWE Jeremy Kashman Invoice # 1108 ATTN: Nancy S. Heck September 12, 2018 City of Carmel I Civic Square Carmel, IN 46032 INVOICE Brad Howe $180,000.00 Reckon 2018 100% Stainless Steel PPG Epoxy Primer BASF, R-M Automotive Urethane Color Coat and Clear Coat Est. Weight 12001bs = �1 127x 120x32inches ?1. (Inv# BH 12390) Subtotal: $180,000.00 Crating, Packing and Shipping $8,500.00 Total: $188,500.00 Artist will arrange shipment upon full receipt of payment. Thank You, Brad Howe 423 LXI'IGO CANYON ROAD•M\1,IBU•CALIFORNIA 90265 TEL•818-865-8594 FAX•818-865-8216 bradhowe@bradhowe.com ,r Exhibit Llorci EXHIBIT B Invoice Date: Name of Company: Address &Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Date Goods/Services Provided Cost Per Hourly Total Goods/Services Goods/ (Describe each good/service Item Rate/ Service separately and in detail) Hours Provided Worked GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker's Compensation&Disability Statutory Limits Employer's Liability: Bodily Injury by Accident/Disease: $100,000 each employee Bodily Injury by Accident/Disease: $250,000 each accident Bodily Injury by Accident/Disease: $500,000 policy limit Property damage, contractual liability, products-completed operations: General Aggregate Limit(other than Products/Completed Operations): $500,000 Products/Completed Operations: $500,000 Personal &Advertising Injury Policy Limit: $500,000 Each Occurrence Limit: $250,000 Fire Damage(any one fire): $250,000 Medical Expense Limit(any one person): $ 50,000 Comprehensive Auto Liability(owned,hired and non-owned) Bodily Single Limit: $500,000 each accident Injury and property damage: $500,000 each accident Policy Limit: $500,000 Umbrella Excess Liability Each occurrence and aggregate: $500,000 Maximum deductible: $ 10,000 EXHIBIT D AFFIDAVIT t /Jh L•s, ,�� , being first duly sworn, deposes and says that he/she is familiar with and has personal knowledge of the facts herein mid, if called as a witness in this matter, could testify as follows: l. I am over eighteen (I 8)years of age and am competent to testify to the facts contained herein. 2. I run now and at all times relevant herein have been employed by 13/4 0/___1024.4 .... (the "Employer") in the position of �.e 3. I am familiar with the employment policies, practices, and procedures of the Employer and have the authority to act on behalf of the Employer. 4. The Employer is enrolled and participates in the federal E-Verify program and has provided documentation of such enrollment and participation to the City of Cannel, Indiana. S. The Company does not knowingly employ any unauthorized aliens. FURTHER AFFIANT SAYETH NOT. EXECUTED on the 2-Cg day of �� ,� 20/r I rimed:_1 j/j I certify under the penalties for perjury under the laws of the United States of America and the State of Indiana that the foregoing factual statements and representations are true and correct. Printed: ���,+�f� L �•�t� ity INDIANA RETAIL TAX EXEMPT Page 1 of 1 ofII1arrrie1 0ERTIFICATE NO.0031201550020 PURCHASE ORDER NUMBER Jl FEDERAL EXCISE TAX EXEMPT 101966 ONE CIVIC SQUARE 35-6000972 THIS NUMBER MUST APPEAR ON INVOICES,A/P CARMEL, INDIANA 46032-2584 VOUCHER,DELIVERY MEMO,PACKING SLIPS, SHIPPING LABELS AND ANY CORRESPONDENCE FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL-1997 PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION 9/20/2018 372797 Contract Date 10.03.18 BRAD HOWE INC City Engineering's Office ,VENDOR 423 LATIGO CYN ROAD SHIP 1 Civic Square TO Carmel, IN 46032- MALIBU, CA 90265- Kate Lustig PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT 29445 QUANTITY UNIT OF MEASURE DESCRIPTION UNIT PRICE EXTENSION Department: 2200 Fund: 0 COIT Bond Fund Account: 44-628.71 1 Each Art Installation -Reckon $188,500.00 $188,500.00 Sub Total $188,500.00 OF CAR c4;t 461/4( h ( ( t 1111111 $ a i let Send Invoice To ii t Skip Tennancour American Structurepoint, Inc. i' 8425 Wicklow Way r Brownsburg, IN 46112 \\Ns ./..,_._1/0 1 /�IT Bond 2016 Co PLEASE INVOICE IN DUPLICATE DEPARTMENT ACCOUNT PROJECT PROJECT ACCOUNT I AMOUNT PAYMENT $188,500.00 SHIPPING INSTRUCTIONS *AlP VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN *SHIP PREPAID AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN •C.O.D.SHIPMENT CANNOT BE ACCEPTED. THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER. 'PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL A.,c_.:‘,0 •THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99,ACTS 1945 AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO ORDERED BY Jeremy Kashman James Crider TITLE Director Administration CONTROL NO 101966 CLERK-TREASURER