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Owens and Crawley, LLC/Eng/100,000/Art Installation – Monon Boulevard – ‘Sail’Owens and Crawley, LLC �� Engineering Department - 2018 `C� Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 JAS 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 Owens and Crawley, LLC, ("Owens and Crawley"), WHEREAS, Owens and Crawley is the exclusive representative for the works of Quincy Owens and Luke Crawley (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 "Sail" (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: ACKNOWLEDGMENT, ACCEPTANCE: Owens and Crawley 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. PERFORMANCE: Owens and Crawley agrees to sell and the Collector agrees to purchase the Work for a total purchase price of One Hundred Thousand Dollars ($100,000) (the "Purchase Price"). The Purchase Price includes the Work, shipping, and installation costs. Owens and Crawley shall pack, deliver, and install the completed Work on a finished foundation at the Installation Site (the "Site") as specified by the Collector. The Artist shall provide the Collector the specifications to prepare the foundation at the Site for installation. The Collector shall assume ownership and liability for the Work once it is successfully installed at the site. 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 Owens and Crawley shall submit an invoice for 50% of Purchase Price of the Work to Collector. Collector shall pay Owens and Crawley 50% of the Purchase Price ($50,000) of the Work within thirty (30) days of the execution of this Agreement and the remaining 50% ($50,000) upon successful installation of the Work, so long as and to the extent such Work is not disputed, is in conformance with the specifications set forth in Exhibit A, and Owens and Crawley has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Owens and Crawley agrees not to provide any goods and services to Collector that would cause the total cost of the Work provided by Owens and Crawley to Collector hereunder to exceed the Purchase Price, unless Collector has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Owens and Crawley expressly warrants that the Work will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Owens and Crawley by Collector and/or by Owens and Crawley 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. Owens and Crawley 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 Owens and Crawley Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 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 essence of this Agreement. 6. COPYRIGHT AND REPRODUCTION RIGHTS: Once submitted, the Artwork provided under this Agreement shall become the physical property of the Collector. Artist reserves all rights of reproduction and all copyright in the Artwork. Artist shall receive authorship credit in the connection with the Artwork or any reproductions of the Artwork, and agrees to the Collector's use of Artist's rights of naming and likeness to facilitate such credit. Although Artist retains the copyright, Artist shall grant to the Collector a perpetual, irrevocable, royalty -free, worldwide, nonexclusive, license to graphically depict, display in any manner or publicly perform in any manner the Artwork by photographic, electronic, digital, mechanical or any other media or method(s) that may become available following the completion and acceptance of the Artwork. The Collector is only permitted to use the aforementioned license for non-commercial purposes. DEFAULT: In the event Owens and Crawley: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Owens and Crawley'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 Owens and Crawley; and (2) exercise all other rights and remedies available to Collector at law and/or in equity. INDEMNIFICATION: Owens and Crawley 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. Owens and Crawley 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. 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: Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 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. 11. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Owens and Crawley 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 Owens and Crawley 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 One Civic Square Carmel, Indiana 46032 If to Owens and Crawley: AND Douglas C. Haney, Corporation Counsel Department of Law One Civic Square Carmel, Indiana 46032 Owens and Crawley, LLC 9513 Falkirk Drive Indianapolis, IN 46256 ATTENTION: Luke Crawley 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 Owens and Crawley, immediately terminate this Agreement for cause, in the event of a default hereunder by Owens and Crawley 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, Owens and Crawley 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. Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 16. UNAUTHORIZED ALIENS: By signing this agreement, Owens and Crawley certifies and represents that it does not knowingly employ unauthorized aliens. 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 Owens and Crawley. 21. IRAN CERTIFICATION: Pursuant to I.C. § 5-22-16.5, Owens and Crawley 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 Owens and Crawley 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. 4 Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 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 dames Brainard, P sidi Date: 4 A / Mary Ann rke,r/b'9 Date: / �/ Lori S. V1 atson mber Date: 7 / r a� A ATTEST: I OWENS AND CRAWLEY, LLC "- - , I L-1ri Authorized Signature Luke E. Crawley Printed Name Artist, Partner Title FID/TIN: 47-3156918 Last Four of SSN if Sole Proprietor: Date: 7/10/2018 Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 EXHIBIT A Description of Work Owens and Crawley will provide an approximately 30' tall sculpture with three main vertical faces that are each approximately 11' wide maximum and form an equilateral triangle. The main structural frame will be fabricated out of aluminum and each main face will have translucent acrylic inserts. The sculpture will be internally lit with programmed color changing LEDs. Please see conceptual rendering below; the work is circled in black. A 6 Owens and Crawley, LLC Engineering Department - 2018 Appropriation # 2016 COIT Bond Fund P.O. #: 100724 Contract Not To Exceed $100,000.00 EXHIBIT B Invoice Date: 3/1/18 Name of Company: Owens and Crawley LLC Address & Zip: 9513 Falkirk Dr, Indianapolis, IN, 46256 Telephone No.: (317) 385 -7717 Fax No.: N/ A, email: lukecrawley@gmail.com Project Name: Sail Invoice No. 46032-30-1 Purchase Order No: Signature Luke E. Crav Printed Name 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 Owens and Crawley, 3/2/18 50% Payment for Sculpture 50,000.00 50,000.00 LLC Design/ Build/ Purchase 50,000.00 GRAND TOTAL Signature Luke E. Crav Printed Name v � ofCarmel Cty INDIANA RETAIL TAX EXEMPT NO. 003120155 002 0 Page 1 of 1 PURCHASE ORDER NUMBER _CERTIFICATE FEDERAL EXCISE TAX EXEMPT 101473 ONE CIVIC SQUARE 35-6000972 THIS NUMBER MUST APPEAR ON INVOICES, AIP 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 Contract Date d ,1 8' 3/8/2018 372287 IL - ENG - 2'Z OWENS & CRAWLEY, LLC City Engineering's Office VENDOR 9513 FALKIRK DRIVE SHIP 1 Civic Square TO Carmel, IN 46032 - INDIANAPOLIS, IN 46256 - Kate Lustig PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT 24017 QUANTITY UNIT OF MEASURE DESCRIPTION UNIT PRICE EXTENSION Department: 2200 Fund: 0 COIT Bond Fund Account., 94-650.04 1 Each Monon Boulevard Sculpture - Sail Send Invoice To: Skip Tennancour American Structurepoint, Inc. 8425 Wicklow Way \7�zl I Brownsburg, IN 46112 $100,000.00 $100,000.00 Sub Total $100,000.00 2016 COIT Bond PLEASE INVOICE IN DUPLICATE DEPARTMENT - ACCOUNT PROJECT PROJECT ACCOUNT AMOUNT PAYMENT $100,000.00 SHIPPING INSTRUCTIONS ' AIP 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 UNOBUGATED 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 'THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945 ��- AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. ORDERED BY Jeremy Kashman TITLE Director CONTROL NO. 101473 CLERK -TREASURER James Crider Administration