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HomeMy WebLinkAboutExhibitLICENSE AGREEMENT THIS LICENSE AGREEMENT (hereinafter the "Agreement") is entered into this day of , 200'8, by and between Britto Central, Inc., a Florida corporation with offices at 818 Lincoln Road, Miami Beach, Florida the ("Licensor"), and the City of Miami, Florida (the "Licensee"). Background Licensor and Recreational Design & Construction, Inc. ("RDC") entered into the Sculpture Agreement, dated January _, 200 8 (the "Sculpture Agreement"), pursuant to which Licensor agreed to provide the services of Romero Britto (the "Artist") to design and fabricate a sculpture to be located in a park ("Grapeland Park") to be designed and constructed by RDC within the City of Miami. In addition, under the Sculpture Agreement, Licensor agreed to grant to Licensee an exclusive license to use the images created by the Artist and incorporated in the sculpture in certain items to be manufactured by the Licensee and sold by the Licensee at Grapeland Park. Licensor is authorized to grant licenses to third parties for the use of certain images created by the Artist and for the use of his name, biographical information and portrait in connection with said uses. Licensor desires to grant a license for the use of certain images created by the Artist as further described in this Agreement and for the use of his name, biographical information and portrait in connection with said uses to Licensee upon the terms and conditions set forth in this Agreement. Licensee desires to receive, for the consideration set forth in this Agreement and upon the terms and conditions set forth in this Agreement, such a license. Accordingly, Licensor and Licensee hereby agree as follows: Terms rc fY. .. . 11e_ _ t_ _ _es (a) Licensor hereby grants to Licensee a license to use the images created by the Artist and described on FNhibit A attached. hereto and incorporated herein (the "Images") for the manufacture and sale (collectively, the "Licensed Uses") of certain items of merchandise in the Territory (as defined in Section 3 below) ("Licensed Merchandise") described on Exhibit B attached hereto and incorporated herein and to use the Artist's name, portrait and biographical information, which portrait and information will be provided to Licensee upon request; in_ connection with the marketing and advertising of LicensedMerchandise eiEpose o de ,, .1!"Flirt 0' tt"_.� Arti •.T`t st.c t"e,=uto_ tke Tro agPs=,, (OH' "License"). The distribution and sale of the Licensed Merchandise by the Licensee shall be limited to Grapeland Park. If Licensed Merchandise is to be used for any purpose other than commercial sale and promotional purposes in connection with the marketing and advertising of the Licensed Merchandise, Licensor must grant prior written approval for any and all of said other uses, which approval may be conditioned in the sole discretion of Licensor. (b) The Licensed MerchandiCe shall include the items described on Exhibit B attached hereto and incorporated herein as well as additional items that may be mutually agreed to by the parties in writing and added to Exhibit B during the term of this Agreement. The Images shall be exhibited on the Licensed Merchandise in their entirety and in the same form as described in Exhibit A. Licensee may not alter the Images in any way, except for size alterations of the total Images, in connection with its use of the Images under this Agreement. (c) All items of Licensed Merchandise and all marketing and advertising pieces must be clearly marked with "Copyright Romero Britto." 2. Term. Subject to the provisions of Section 9, the term of this Agreement shall be FIVE (5) years, commencing on , 200'8 and expiring on , 201 -3 The term may be extended for an additional ( ) year period to commence immediately following expiration of the initial term of this Agreement upon the written consent of the parties prior to the expiration of the initial term. 3. Territory. The territory of this Agreement shall be Grapeland Park (the "Territory"), meaning that the Licensee may use the License created by this Agreement and engage in the Licensed Uses only within the Territory. 4. No Assignment or Sublicense. This Agreement may not be assigned or sublicensed by Licensee without the prior written consent of Licensor, and any assignments or sublicenses without the written approval of Licensor are void and have no force or effect. 5. No Ownership interest. The License created by this Agreement does not grant to Licensee any ownership interest in the images or any portion thereof or any images contained in the Images. The License merely grants to Licensee the License to use the images upon the terms and conditions set forth in this Agreement. In addition, Licensor _shall be the ownerof any trademarks that are used .rfregistered with respect to this Agreement or the Images,including any trademarks that are registered by Licensee. Licensor _ti 'royal; (Duality Control E 5 } f:i�,r4k_ryLuL _IICa �� tiCa cri, 211, review the Qua of oI the I: rem`+, to ansore proper use of the Images. Such review shall include, but not be limited, to pre - approval of a proof or prototype of each type of item of Licensed Merchandise prior to its initial manufacture and sale. Licensee shall deliver a sample item of Licensed Merchandise to Licensor for approval (with packaging, if available), and Licensor will provide written approval or disapproval, in its sole discretion, within ten (10) business days following receipt of the item. If the item is disapproved, the Licensor shall describe the reason(s) for the disapproval and the parties shall work together to modify the item in order that Licensor may provide approval therefor. (b) Following approval of an item of Licensed Merchandise as provided in Section 6(a), the item in the form approved may be manufactured and distributed as described in this Agreement without further approval. Licensee agrees to provide to Licensor at least five (5) of each Licensor -approved item of Licensed Merchandise at no cost within one (1) calendar month afterits initial manufacture. 7. Consideration. As consideration for the License granted by Licensor under this Agreement, Licensee shall make a contribution to the Britto Foundation, Inc. in an aggregate amount equal to $50,000, payable in $10,000 annual installments on 1, 200 9; 1, 20 tq 1, 2011 ,, 1, 2012 and 1, 2013. 8. Representations and Warranties of Licensee. Licensee represents and warrants as follows: (a) Licensee shall refrain from engaging in any activities that would adversely affect the reputation of the Licensor and/or the Artist. (b) Licensee shall indemnify, defend and hold Licensor harmless from any and all claims, suits, actions, costs and/or losses based upon the manufacture, marketing, advertising, sale and/or distribution of the Licensed Merchandise. (c) Licensed Merchandise. Licensee shall use its best efforts to promote and sell the (d) The Licensed Merchandise shall at all times be of high quality in. contents and workmanship. Termination; Remedies. (a) Each party hereto shall have the right to terminate this Agreement due to a breach by the other party of any tern of this Agreement, including- but not limited to the representations and warranties set forth herein, following written notice ofsaid breach to the breaching party and failure e of the t4., the breach within three e ! .., ..__ i_tev day. .._ receipt of the notice. Licensor may terminate this Agreement at any time by giving written notice to Licensee if (a) Licensee is involuntarily dissolved, makes an assignment for the benefit of creditors, files a voluntary petition in bankruptcy, or is subject to any similar action or event or (b) Licensor becomes aware that Licensee has committed any act or become involved in any situation or occurrence which, in the opinion of Licensor, brings Licensor or the Artist into public disrepute, scandal or ridicule, or shocks or offends the community, or reflects unfavorably upon Licensor or the Artist. (b) Licensee acknowledges that a breach by it of any of its agreements contained herein will cause irreparable harm or damage to Licensor, the monetary amount of which would be difficult, if not impossible, to ascertain. Licensee therefore agrees that Licensor and its successors and assigns shall have the right to seek and obtain any remedy available at law to a party in the event of a violation or threatened violation of this Agreement by Licensee. 10. Promotion and Publicity. (a) Licensee and Licensor shall agree on a plan to promote the Licensed Merchandise. All such promotion shall be at Licensee's cost. (b) All press releases concerning this Agreement shall be pre - approved by both parties. In no event shall any information concerning the payments to be made to Licensor under this Agreement or the methods used by the Artist to create his art be disclosed in any press release or in any interview with the press. (c) If Licensee desires to have the Artist make a public appearance which requires out-of-town travel by Artist, then Licensee shall provide at its sole expense (i) two airline tickets (one first class and one business class); (ii) car service at the location of the public appearance; (iii) two hotel rooms; and (iv) meals during the stay. 1 .. Miscellaneous Provisions, (a) NOTriiiNTu nJrtUt.N (J ;IN'i'A1Nlt! L) SHALL BE CONSTRUED AS CREATING A JOINT VENTURE OR PARTNERSHIP BETWEEN THE PARTIES. THE RELATIONSHIP BETWEEN THE PARTIES IS ONE OF "INDEPENDENT_ CONTRACTOR" AND NEITHER PARTY TO THIS AGREEMENT IS AN EMPLOYEE, AGENT, SERVANT, PARTNER OR JOINT VENTURER OF THE OTHER, MEANING THAT, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, NO PARTY TO THIS AGREEMENT HA.S THE AUTHORITY, IMPLIED, APPARENT OR EXPRESSED, To LAWFULLY BIND THE OTHER WITH RESPECT TO ANY MATTER. (b) Neither the Licensor nor the Licensee, including. their employees, is authorized to release any information regarding the terms of this Agreement or any other financial or confidential information without the prior written consent of the other party. (c) This Agreement contains the entire understanding of Licensee and Licensor and supersedes any previous written and verbal agreements regarding the same. (d) No modifications, alterations, amendments, or waivers of any provision of this Agreement shall be binding unless such modification, alteration, amendment, or waiver is in writing and signed by Licensor. (e) This Agreement shall be governed by the laws of the State of Florida and any action, claim or dispute arising out of this Agreement shall be subject to the jurisdiction of the courts of the State of Florida. (f) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, permitted assigns, and legal representatives. This provision shall not be construed to affect the provision elsewhere in this Agreement restricting assignments. (g) If an action at law is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and expenses in relation thereto, in addition to any other relief to which it may be entitled. (h) All notices in relation to this Agreement must be in writing and shall be forwarded to the respective party at the addresses indicated in the Preamble. (i) The parties agree to have this Agreement registered with the registry where the Images are registered, if applicable, or with the competent Registry of Titles arid Deeds in the event the Images are not registered. Licensee shall bear all costs and fees related to such registration. IN WITNESS WHEREOF, the parties have executed this Agreement on this day of , 2007. [Signature Page to fbi ovv (SEAL) ATTEST: BRITTO CENTRAL, INC. By: Title : Date : THE CITY OF MIAMI, FLORIDA CITY OF MIAMI, FLORIDA, a municipal Corporation of the State of Florida By: _ By: Priscilla A. Thompson. City Clerk Pedro G. Hernandez, P.E., City Manager APPROVED AS TO INSURANCE REQUIREMENTS: APPROVED AS TO LEGAL FORM AND CORRECTNESS FOR THE USE AND RELIANCE OF THE CITY OF ON 7 ‘ra? By: Lee Ann Brehm, Risk Management Administrator Bv: _ Julie 0. Brit , City Attorney