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HomeMy WebLinkAboutExhibitGRAPELAND PARK PURCHASE AND SALE AGREEMENT THIS GRAPELAND PARK PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered into as of this day of '2008 between Britto Central, Inc., a Florida corporation with offices at 818 Lincoln Road, Miami Beach, Florida ("Britto") and the City of Miami (the "City"), a municipal corporation of the State of Florida. WHEREAS, the City and Recreational Design & Construction, Inc. ("RDC") entered into a Sculpture Agreement pursuant to which RDC agreed to provide the services of Britto to design and build a sculpture (the "Sculpture") to be located in a park known as Grapeland Park (the "Park") within the City; and WHEREAS, the City and Britto have agreed that Britto shall produce for sale by the City items with images of the Sculpture (collectively and as described further below, the "Items"), subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable consideration, the parties agrees as follows. 1. PRODUCTION AND SALE OF ITEMS. From time to time, the City may request that Britto produce Items for purchase by the City and re -sale to retail customers only at the site of the Park. Items may include, but not be limited to, t -shirts, hats and towels in the reasonable discretion of Britto at the time of the request by the City. The purchase price of the Items shall be as agreed by the parties from time to time. Britto shall also provide the City with suggested resale prices of the Items. In the event the City decides to sell Items at prices less than the suggested resale prices, the City shall provide Britto with at least thirty (30) days' advance written notice. 2. DELIVERY. Items shall be made available to the City at Britto's studio. The City shall pay all costs of packing, shipping, insurance, handling and other charges in respect of delivery of the Items to the Park. 3. RESERVATION OF RIGHTS. Britto shall retain all rights in connection with the Items and all preliminary designs and incidental artwork or items created in connection with the Sculpture or the Items, and all copies and reproductions thereof including any electronic rights or usage. Britto also reserves all rights of reproduction and all copyrights in the Sculpture and Items themselves including all common law rights and the right to claim statutory copyright. Britto may place a copyright notice in the Items and shall receive all authorship credit in connection with the Sculpture and/or the Items or any reproduction thereof. Britto further reserves all rights under the Visual Artists Rights Act of 1990. The City will be entitled to permit the reproduction of the Sculpture or the Items in advertising, internal reports, catalogues or magazines for the purpose of furthering business described above, but only with Britto's prior written consent, which consent shall not be unreasonably withheld. (M_739019; 1 ,7- 4. TERM. This Agreement shall remain in effect for an initial term (the "Initial Term") of one (1) year and shall be automatically renewed for additional one (1) year terms (each a "Renewal Term" and collectively with the Initial Term, the "Term") as long as it remains in effect. The Agreement may be terminated at any time by either party upon ninety (90) days' notification in writing to the other party. The Agreement may be terminated immediately by either party upon written notification to the other party in the event of a material breach or the declaration of bankruptcy or like relief. 5. SURVIVAL OF TERMS. Each of the covenants, obligations, representations, and agreements contained in this Agreement shall survive execution of the Agreement. 6. NOTICES. Any notices required by this Agreement shall be deemed effective unless placed in the United States mail, certified or registered, return receipt requested, postage prepaid, addressed to Britto or the City at.the following addresses, or at such other address designated in writing by the party to receive such notice: OTICE TO CITY: City of Miami City Manager 444 S.W. 2 I Avenue Miami, Florida 33130 WITH COPY-TO- City OPYTO:City of Miami City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130 NOTICE TO BRITTO: Britto, Inc. 818 Lincoln Road Miami Beach, FL 33139 ATTN: Judy Margolis 7. PUBLIC RECORDS. , Britto understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Britto's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 8. COMPLIANCE WITH FEDERAL. STATE AND LOCAL LAWS. Britto understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Britto agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. {M2739019;1 y 9. INDEMNIFICATION. Each party (an "Indemnitor") shall indemnify, defend and hold harmless the other, its officials, employees and agents, as applicable (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of the Indemnitor or (ii) an Indemnitor's failure to comply with any of the paragraphs herein or an Indemnitcr's failure to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Each Indemnitor expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of such Indemnitor, or any of its subcontractors, as provided above, for which such Indemnitor's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 10. INDEPENDENT CONTRACTOR. Britto and its employees and agents shall be deemed to be independent contractors, and not agents, employees or representatives of the City and shall not attain rights or benefits under the Civil Service or Pension Ordinances of the City nor any rights generally afforded classified or unclassified employees; further they shall not be entitled to the Florida Workers Compensation benefits as employees of the City. 11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 12. CONFLICT OF INTEREST. Britto is aware of the conflict of interest laws as set forth in Section 2-611 of the Code of the City of Miami, Florida, as amended, and agrees that it will comply in all respects with the terms thereof. 13. WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury In respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Britto entering into the subject transaction. 14. SEVERABILITY. If any provision of this Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never r Ci M2739019;1 1 -� included herein and the Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 15. CAPTION. The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provisions thereof. 16. MISCELLANEOUS. This Agreement shall be governed by the laws of the State of Florida. This Agreement contains the entire understanding and agreement of the parties with respect to this subject matter set forth herein, superseding any and all prior agreements, written and oral, between the parties regarding the same subject matter. Each party agrees that no other agreement, covenant, representation, inducement, promise or statement with respect to the subject matter hereof, if not set forth herein in writing, shall be valid or binding. Any waiver, alteration or modification of any of the provisions of this Agreement, or cancellation or replacement of the same, shall not be valid unless made in writing and signed by the parties hereto. In connection with any action arising from or in connection with the enforcement of this Agreement except as specifically provided herein, the prevailing party shall be entitled to an award of its expenses, including reasonable attorneys' and paralegals' fees and disbursements incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level, and whether or not suit or any other proceeding is instituted. The City agrees that Britto would be irreparably harmed by any breach of this Agreement, that such injury may not be compensable by monetary damages and that Britto may specifically enforce the provisions of this Agreement by injunction without thereby affecting any claim for damages or other rights of Britto. By: Name: [Signatures continue on following page] M 273 90 i 9; I } BRITTO CENTRAL, INC. Name`' i I U Title: (,F0