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HomeMy WebLinkAbout12-19-18-02/The Seward Johnson Atelie/ RESOLUTION NO. BPW 12-19-18-02 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. NOW, THEREFORE, BE IT RESOLVED by the City of Cannel Board of Public Works and Safety as follows: 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 t k day of /J9VWi J2 '� 2018. CITY OF CARMEL,INDIANA By and through its Board of Public Works and Safety BY: Nc9-1,- r(5--evi• James Brainard,Presiding Officer Date: �rGL� Mary Burke,Mer�}oLlr 1$ Date: / Lori S.Watson e ber Date: /'.//1/6 8 ATTE : dkt- z—ee_y- Christine Pauley, rk-Treas er Date: `1��� S:\E Bass\My Documents\BPW-Resolutions\2018\Acknowledge Seward Johnson Atelier,Inc.Agreement for Sale of Art.docxl1/29/2018 11:04 AM AGREEMENT FOR SALE OF WORK OF ART THIS AGREEMENT made this 19th day of November, 2018 ("Effective Date"), by and between THE SEWARD JOHNSON ATELIER, INC. ("TSJA"), a New Jersey nonprofit corporation, with a principal address of 14 Fairgrounds Road, Suite A, Hamilton, NJ 08619 and The City of Cannel, Indiana("Collector"), with a principal address of 1 Civic Square, Carmel, IN 46032 (each individually a"Party" and collectively,the"Parties"). WHEREAS, TSJA is a nonprofit corporation organized and operated for charitable and educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), whose mission is to: promote public appreciation and knowledge of art and public placement and view of sculpture; support and lend art to businesses, individuals, charitable organizations, and government entities for public exhibition; and build and revitalize communities through the public placement of art; and WHEREAS,TSJA owns certain works of art created by Seward Johnson(the "Artist") and all right in the copyright therein for the purposes of public exhibition, display, sale, and donation in furtherance of its charitable and educational purposes; and WHEREAS, the Artist has created that certain works of art entitled"Captured," "Shaping Up,""Monet, Our Visiting Artist," "Wine, Food and Thou," and"Strolling Professor"("Works"): Description: see attached Exhibit A Dimension: life-scale Media : bronze WHEREAS, the Collector desires to purchase from TSJA, in accordance with the terms of this Agreement, an edition of the Works. 1 NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. Sale: TSJA agrees to sell and the Collector agrees to purchase the Works for a total price of US $354,000(the"Purchase Fee"). The Purchase Price does not include costs and expenses associated with shipping the Works from the studio, or any disposition of the Works after delivery including,but not limited to moving to a site, installation and/or maintenance of the Works, which shall be the sole responsibility of the Collector. The payment of$354,000, the total amount, is due upon the signing of this agreement and will secure the pieces for the client. Any applicable sales taxes under this Agreement will be the sole responsibility of the Collector. 2. Term. This Agreement shall commence from the Effective Date and shall remain in effect for the full term of the copyright in the Works, inclusive of all applicable renewals ("Term"). 3. Title. Subject to the provisions of Paragraphs 7, 8 and 9 herein, title to the Works shall pass to Collector upon delivery of the Works in accordance with Paragraph 4 herein. 4. Shipping and Installation. Upon the execution of this Agreement and full payment of the Purchase Fees as directed, TSJA will make arrangements to ship the Work F.O.B. the artist's studio located at 60 Sculptor's Way, Mercerville, NJ 08619 ("Facilities"). All responsibility for damage or loss to the Work will be the responsibility of TSJA up to and until the works leave the Facilities. Upon arrival, the Collector shall have an opportunity to inspect the Works prior to accepting the Works pursuant to Paragraph 5 herein. If the Works arrive damaged, the Collector 2 may refuse the Works and will send TSJA a written notice detailing the nature of the damage within three (3) days of refusal of the Works ("Refusal Period"). If the Works are refused, TSJA shall have forty-five (45) days from the end of the Refusal Period to repair and re- deliver the Works pursuant to the terms of this Paragraph 4. If the Collector has not notified TSJA of any damage to the Works during the Refusal Period, Collector shall be deemed to have accepted delivery of the Works and the Collector shall assume all risks relating to the Works, including but not limited to, risk of damage, loss or destruction of the Works. The Collector shall be responsible for unloading, unpacking, and uncrating the Works at the time of delivery, installing the Works and all costs and expenses relating thereto. 5. Warranties a. The Parties warrant: i. that each Party has the full and unencumbered right to enter into this Agreement and to perform its obligations hereunder, and has reviewed this Agreement with its respective attorneys. b. TSJA warrants: i. that it has the full right and power to execute and deliver this Agreement and to consummate the transactions contemplated herein; ii. that the Works are authentic, that is, created by the Artist and the attribution, provenance and description of the Works in this Agreement is accurate and correct; and iii. that TSJA owns all rights, title and interest in and to the Works, inclusive of all copyright rights worldwide. The Collector is relying upon TSJA's warranties set forth in this Paragraph 5 with respect to authenticity of the Works. Upon Collector's request,TSJA may, in its sole discretion,provide documents attesting to the authenticity of the Works. The condition of the Works are"as is", and TSJA makes no warranties, express or implied,regarding the Works, other than those expressly stated herein. 3 6. Licenses and Permits. It is the Collector's sole responsibility to obtain and maintain any and all necessary licenses, certificates, permits, and registrations required under federal, state, municipal or other applicable laws to receive delivery of and display the Works. 7. Non-Destruction. Collector will not undertake or permit any intentional destruction, damage or modification to the Works. 8. Restoration. If the Works are damaged, the Collector will provide TSJA written notification of such damage before any restoration is undertaken ("Damage Notice"). Within thirty (30) days of receipt of a Damage Notice ("Restoration Period"), TSJA shall have the first opportunity to restore the Works, at TSJA's standard rates then in effect for applicable sculptural restoration, in order to assist in retaining the Artist's original materials and intention for the Works. If TSJA does not provide notice to the Collector that it intends to restore the Works within the Restoration Period, the Collector may proceed to restore the Works in Collector's sole discretion. 9. Copyright. It is understood that TSJA is the sole copyright owner of the Works, and shall retain copyright ownership of the Works, including, but not limited to, the exclusive right create, sell and or/transfer additional editions or versions of the Works and to complete any limited edition(s) which include the Works. The Collector agrees to never contest the copyright of TSJA and/or its successor(s), heir(s), licensee(s), representative(s) and/or assign(s) in the Works. The Collector shall not use any two- dimensional image of the Works, including photographs, drawings and depictions (collectively referred to as "Image(s)"), except as provided for in this Paragraph 9. The Collector may use and may permit Images to be used in connection with non-commercial editorial or journalistic uses ("Permitted Uses") without the prior written permission of 4 TSJA. The Collector shall obtain TSJA's prior written consent prior to using the Images in any way other than the Permitted Uses, including, but not limited to, direct sale of the Image(s) in any form such as posters, post cards or prints or for use on websites and/or in promotional and/or advertising materials for the purchase of goods. All Images of the Works hereunder shall show the following appropriate credit lines: "Captured"by Seward Johnson©2013 The Seward Johnson Atelier,Inc." "Shaping Up"by Seward Johnson©1987 The Seward Johnson Atelier,Inc." "Monet, Our Visiting Artist"by Seward Johnson ©2004 The Seward Johnson Atelier,Inc." "Wine, Food and Thou"by Seward Johnson ©2014 The Seward Johnson Atelier,Inc." "Strolling Professor"by Seward Johnson©1986 The Seward Johnson Atelier,Inc." ("Credit Line"). The Collector shall not create any three-dimensional derivative works based on the Works, including, but not limited to, full-scale or reduced scale replicas of the Works in any medium, for any purpose. The Collector's rights in and to the Works are limited to the rights expressly granted under this Agreement. All rights not expressly granted under this Agreement are reserved by TSJA. 10. Transfer of the Works. In the event ownership of the Works is transferred and/or sold by the Collector, Collector agrees to notify TSJA of the name and address of the new owner of the Works ("Transfer Notice"). The new owner of the Works must agree in writing to be bound by the terms of this Agreement, including, but not limited to, the provisions of Paragraphs 8, 9 and 10 herein, or the transfer and/or sale will be invalid, null and void. Provided that the Collector provides Foundation with a Transfer Notice TSJA will furnish the new owner with a written history and provenance (a statement of origin) of the Works, based upon the Transfer Notice and any other notifications of transfer of the Works received by TSJA, and its best information. 5 11. Governing Law. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of New Jersey, without reference to conflicts of laws doctrine. 12. Notices. Any notice herein required or permitted to be given by either Party to the other Party shall be deemed given if and when mailed in a sealed wrapper by United States certified or registered mail, postage prepaid, return receipt requested, to the following addresses or any other addresses designated in writing by the Parties: If to the Collector: Mayor Jim Brainard City of Carmel, Indiana 1 Civic Square Carmel, IN 46032 If to TSJA: Ms. Paula A. Stoeke Curator The Seward Johnson Atelier, Inc. 2525 Michigan Avenue, Ste. A-6 Santa Monica, CA 90404 And Mr. Michael Unger Chief Administrative Officer The Seward Johnson Atelier, Inc. 14 Fairgrounds Road, Suite A Hamilton, NJ 08619 13. Miscellaneous. This Agreement contains the entire understanding of the Parties and shall be binding upon the heirs, successors and assigns of the Parties. Any amendment or notification of this Agreement shall be in writing and signed by both Parties. The failure of either Party to insist upon strict performance of this Agreement shall not be construed as a waiver of any subsequent breach of non-performance. This Agreement may be executed in counterparts, each of which shall constitute an original and both of which shall constitute one and the same instrument. TSJA may assign this Agreement at any time. WITNESS our hands and seals the day first herein set forth. THE SEWARD JOHNSON ATELIER, INC. By: Date: 6 Print: Paula A. Stoeke Title: Curator CITY OF C MEL, INDIAN , ' By: • _zee-- �t _ Date: 02 Sr" NOU(,iwhPla- 'Z'6/UQ Print: 4/1/5-5 6 /(7/,/4/Pj Title: NAY a Guidelines for the Care of Painted Sculpture In general, a painted sculpture will maintain its appearance for a number of years before the wear and tear distracts from the viewing of the piece. In severe conditions such as those listed below, frequent cleanings are suggested. Every year the sculpture should be cleaned with a mild non-detergent soap using a soft brush, sponge, or cloth. (Never use a wire or heavy bristle brush as scratching could occur.)Appropriate soaps for cleaning include: Orvus liquid soap,non-ionic detergent, liquid dish detergent such as the brands Ivory Liquid or Joy. Remember to rinse well with water and dry thoroughly. Although a yearly cleaning is done, a close inspection should be undertaken to make sure there are no inconsistencies developing in the paint due to the atmospheric influences, or rubbing and scratch marks. Small areas of bare metal on a larger whole will tend to corrode faster than normal and it is important to isolate those areas when they appear. Re- painting should be done when the condition of the paint layer is compromised beyond the scope of a small touch up. Please notify a technician at the Johnson Atelier through The Sculpture Foundation if this occurs. Atmospheric conditions greatly affect the longevity of painted outdoor sculptures. Severe outdoor conditions can increase the damage to paint and metal to a large degree. These conditions include: heavy acid rain, extreme swings in relative humidity and temperature, salt air, rapid freeze/thaw cycles and bird droppings. In an interior site, watch for places on the surface of the sculpture becoming worn away by excessive handling or scratched by touching or climbing. Following these simple guidelines will extend the life of your painted sculpture and preserve it for years of enjoyment. 7 For any questions contact: info@sewardjohnsonatelier.org or call 310-264-2400 or 609- 860-7777 Exhibit A Sculptures Purchased 1. Captured(woman reading on a bench) $78,000 2. Shaping Up(girl jogging while listening to music) $65,000 3. Monet, Our Visiting Artist(Monet painting at easel) $75,000 4. Wine, Food and Thou(woman with picnic basket) $68,000 5. Strolling Professor(man walking with open book) $68,000 8