The Sculpture Foundation, Inc.C?onA,( -c,4 o ?'. D? APPROVED, A TO
FORM BY:
AGREEMENT FOR BALE OF WORK OF ART
THIS AGREEMENT made this. 27h day of November 2007, by
and between THE SCULPTURE FOUNDATION, INC., a New Jersey Corporation
(hereinafter referred to.as the "Foundation"), and The City of Carmel, Indiana, (hereinafter
referred to as the "Collector").
WHEREAS die Foundation is the exclusive representative for the works of J. Seward
Johnson (hereinafter referred to as the "Artist"), for the purpose of exhibition and sale of the
Artist's works.
WHEREAS the Artist has created (or will create) those certain Works of Art
(hereinafter referred to as "the Works"):
Description of Works: (See Attachment A)
Dimension: life-size
Media: bronze and various cast metals
NOW THEREFORE the parties agree as follows:
1. Sale: The Foundation agrees to sell and the Collector agrees to purchase the
Works for a total price of $ 979,000.00 (hereinafter the "Purchase Price"). It is
understood by both parties that the terms herein are subject to annual appropriations
on the part of the Collector. However, if the Collector fails to secure any appropriation
necessary for it to meet its obligations under this Agreement, the Foundation may
deem, in its sole discretion, this failure to be a termination by Collector. The Purchase:
Price i"; to be paid in five (5) installments. The first payment of $125,000.00 is due and is
payable upon signing this agreement and will secure the Works for the Collector. The
second payment of $213.500.00 is due and is payable on January 1`'2008. 'fhe third
payment of $213,500.00 is due and is payable on January V 2009. The fourth payment
of $213;500.00 is due.and is payable on January 1` 2010. The fifth payment of
$213,500.00 is due and is payable on January 1` 2011. Any applicable sales taxes will be
the sole responsibility of the Collector.
2. Termination. In the event the Collector terminates this Agreement prior
to payment of the full Purchase Price, all payments made under Section 1 herein will be
nonrefundable and the Collector Mll be liable for all further costs and fees incurred by
the Foundation at the time the Collector terminates this Agreement, as determined
solely by the Foundation, which may be in excess of any payments made.herein under
Section 1. If this Agreement is, terminated by the Collector,, all title, right and interest in
any of the Works will be controlled according to the following parameters: if the.first
payment only has been timely received, the Collector will "receive title to only Works
identified in Attachment A, Section 1. If the first two payments have been timely
received, the Collector will receive title to only the Works identified in Attachment A,
Sections 1 and 2. If the first three payments have been timely received, the Collector
will receive title to only the Works identified in Attachment A, Sections 1, 2 and 3. If the
first four payments have been timely received, the Collector will.receive title to only the
Works identified in Attachment A, Sections 1, 2, 3, and 4. All Works delivered that title
has not passed to the Collector will be returned to the Foundation at the Collectors
expense. Any restorations necessary to return said Works to their original state will be
billed to and be the sole responsibility of the Collector at the.Foundation's ordinary
rates.
In addition to the above terms of termination and any payments required
pursuant thereto, in the event Collector ternunates this Agreement prior to payment of
the full Purchase Price, Col I ector- agrees to pay the Foundation the difference between
the "Cannel Special Pricing" and the "Published Price" as listed in Attachment,A of this
Agreement, including all modifications fees'("Termination Fee") immediately upon
termination for all Works where title has passed to the Collector pursuant to
paragraphs 2 and 8 of this Agreement.
3. Deliverv and Installation. The Foundation guarantees that the Works, as
described in Attachment A, will be ready for shipment to a location designated by the
Collector within twenty-four (24) months from the signing of this agreement and the
date of the first payment due. The order of shipment of dhe sculptures will be in
accordance with Attachment A. The Purchase Price shall be F.O.B. the Artist's studio
located at 60 Sculptor's Way, Mercerville, NJ 08619. Delivery and installation, including
all shipping charges, shall be the Collector's responsibility and the Collector's expense,
and insured by die Collector for the full Purchase Price. If requested by Collector, the
Foundation shall make the shipping arrangements for Collector. If requested by the
Collector, the.Foundation shall provide consultation with Collector's architect, engineer
or contractor to develop a design and specifications-for the installation site, at the
Foundation's standard rates. The Collector shall consult and obtain the written
approval of the Foundation on all aspects of the representation and display of rite
Works, including sib age and any relocation of the Works after the original installation.
Non-Destruction. Collectorwlll not undertake or permit any
intentional destruction, damage or modification to any of the Works.
5. Restoration. If any 'of the Works are damaged, the Collector will give
the Foundation written notification of.same before any restoration is undertaken and
the Foundation shall-have the first opportunity to restore the Works, at its standard
charges then in effect. If die Foundation elects not to restore the Works, the Collector
must and iS authorized to;undeetake;tlteAill repair and restoration ofltf e Works
independently. If `restoration is needed prior to full payment of the Purchase Price, the
Collector will'be"finahciallyrespoiisible,for°all expenses and conservation. APthougli
title does not, transfer until fill payment of the Pi rchase,Price; (except as'noted in
S'ection2),'the maintenance-and upkeep of,each of the Works is the responsibility of the
Collector after-the Works are received for delivery under Section 3.
6, Copyright. The Artist, Foundation, and/or their successor(s), heir(s)
and/or assign(s)Js/are the cop yright.owner(s) ofthe Works and shallx&ain all
cop} rrig htoivnmhip'in the.Worl s. The Coll ector•agrees to never contest the copyrights
- - -
of°the artist, Foiinclation, and/ar'tlicir suecessoi•{s}, Heir{s}, ?ncl/or,assigri(s) ri the.
Works. It:is tihderstood`thatany pl'iotographic-oCother image, iTfd(i iing;any
der va6 ve,;of the Works may not he,used for,commerci 3l perirposes: -1f=the Collector
desires-to use:a1lwo-dimensional image.of the Works for a commercial or non-
commercial purpose, the Collector must submk a written request to,the,Foundation for
approval prior to any such use. :Non-commercial two-dimensional umages:of 'the Works
for media and promotional purposes will be generally permitted. All approved.images
arid use. of the Works must slimv the-following credit line:
[Title ofWq!}, to beldete rained)"by Seward Johnson.
O [Year of Completion•`to-begprovided] The Sculpture Forindation.
Non'commerci'al news reporting, editorial and lournalistic?photosoftheWorks requirethe
attribution'copyrightline; but do notregWre:cvritten appfoval.
7. Transfer of,,the Work. The Collector agrees-to notify,the F.oundab'on cif
the name=and address gf•any new owner of the Works prior.to,any transfer. The.
Foundations agre-ement_to any,said transfer is contingent on the following occurring,
4.
prior to any transfer: the Collector notifying the Foundation of the proposed transfer
and providing the name and address of the potential new owner; and the potential new
owner's agreement in writing to be bound by the terms and conditions of flus
Agreement, including paragraphs 1 through 10 inclusive. The Foundations will furnish
the new owner with a written history and provenance (a statement of origin) of the
Works, based upon the notifications of transfer received by the Foundation and its best
inform ati on.
8. Title. Title to the Works (exclusive of the copyright herein reserved to
the Foundatibn and except as otherwise noted in Section 2) shall pass to Collector upon
full payment of the Purchase Price.
9. Indemnification: Each party agrees to indemnify, defend and hold the
other party harmless from any-and all claims, costs, liabilities,' judgments expenses
and/or damages, including reasonable attorneys' fees, arising out any act, omission,
action, inaction, event or other circumstance arising from the sale and/or exhibition of
the Works under this Agreement. The obligation of this paragraph shall survive
termination of this Agreement.
10. 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.
11. Arbitration. Any dispute.or difference arising out of this Agreement or in
corm ction with any of the Works shall be submitted to binding arbitration under die
Commercial Arbitration Rules of the American Arbitration Association. The arbitration
5
shall take place in Santa Monica, CA and judgment based upon the arbitration award
may be entered in any court of competent jurisdiction. The arbitration award may
include reasonable attorney's fees on behalf of the prevailing party.
WITNESS our hands and seals the day first herein set forth.
ATTEST:
W S:
THE(
By:
Date:
Print:
Title:
6
('-APXAFT. TNJnTANA .
Title: Director and Curator
ATTACHMENT A.
Tlie Works-of, J. Seward.Johnson
To be delivered in the followig order-
.
Puu lished Oriee Carme . I Special. Pricing, Itemized
(with-modification (including-modifications)
fee noted in idditian)
Section One
1 Holding ;0ui
'older woman wiEh shopping bags.
Section-Two
-2: The Right Light
artist at easel
modifyioatiou fee4a chat ge canqas,toxeflert scene
3;,Oh, Its You, Welcome
smilingsecurity guard
4 Unconditional Surrender
kissing sailor ana.nurs'e from VJ Day
Section Three
5-My World
Iif le. girl. with,book.
6 Who's-in Cha}ge
boyeriding bn fathei's shotilders
7 Big Sister
girl,tying her sister's slice
Section Four
8-One'Man's Search
lboy,feading in'school sweater
iuodiftcaNmi fee toeluJtgeenrlileny
tgCannel High Schrlol
9 Things'to Do
seated woman?wri ti ng,a iisf
urodifurrtimr fee to update earrings,.
patiahitli4esigrr noles,,Wrn onberich
Section=Five
10 Elemental
couple wiihrumbrella
modificalion fee to add mrti,gi e;mirrnr, bag
11 Ambassador-of the!Streets
woman waWng dog
madification fee'
TOTAL,
$66,000 $76;060
$120,000 :$178,000
$8;060
$86;000 $'771Q00
'.$190,000. $122;000.
wjloo $70,000
$700;000 $86;000
$901000 $82;000
$86;000 $78,000
$4,000
$861000 $80,000
$8;000
?12D,000 $110,000
$10;000
$86;000 $78,000
Zi';oaa
$1,121,o0o ,$979;O00
RESOLUTION NO.- BPW-01-16-08m0f'ob
WHEREAS, theexecutive officer of a municipality' has the right and authority under. Indiana, Ia4v to
enter into contracts on behalf of the municipal corporation; and
WHEREAS; due to the exigencies of time, City of Carmel Mayor:James'Brainard, upon the,advice of
the;Carmel,City Attorney„execute that certaii ;Agreement For Sale Of Work O€Art Agreement"), attached
and incorporated herein. as Exhibit "A?';'and
WHEREAS, the City of Carmel.Board of Public Works.. and Safety now desires to:ratify the above
actions of Mayor Brainard and to adopt the same as the act of.theBoard
,NOW; THEREFORE, BE. IT,RESOLVED by the Board of Public Works and Safety of the City of
Carmel, Indiana,.that:
1. The foregoing R:ecitalk are fully incorporated herein,bythis reference.
2. The actions. of Mayor James Brainard im executing'the Agreement are hereby ratified arid such.
actions are hereby. approved and adopted by the Board.a"s its'own:
Approved and Adopted this_ I Ca day of: 2008-
CITY OF CARrNIFL, INDIANA
By and through its Board of Public Works and Safety
Sandra M.JobaSe ,
Deputy Clerk for
j? o,.,.a,e caw yd W V?-?luuws X,.Iti[y msen ngueue ooanw!+.: ao!?omcar.,?ame,