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HomeMy WebLinkAboutC04-048 Affleck Photography ~ COlf- tfi5-11 AGREEMENT BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO AND AFFLECK PHOTOGRAPHY, INC. TillS AGREEMENT made this -*aayof , 2004, by and between the County of Eagle, State of Colorado, a body corpora and politic "County") and Affleck Photography, Inc. ("Aflleck Photography"). The parties to this Agreement are collectively referred to from time to time as the "Parties." RECITALS WHEREAS, Aflleck Photography, Inc. owns a photo library consisting of original artwork and images produced by Aflleck Photography, Inc. ("Photo Library"); and WHEREAS, the County desires to purchase the rights to access and use the contents of this Photo Library for all uses that they so deem necessary to promote the County, including but not limited to: web use, regional and national advertising, brochures, rack cards, displays, and any and all uses of Eagle County and the Eagle County Regional Airport ("Airport"). AGREEMENT NOW THEREFORE, in consideration of the foregoing recitals and mutual promises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows: 1. FEE. The County agrees to pay Aflleck Photography a fee of Fifteen Thousand Dollars ($15,000) due and payable upon execution of the Agreement for access and use of the Photo Library according to the terms and conditions set forth herein. 2. TERM. The term of this Agreement is for one (1) year and shall commence on January 1,2004 and continue until December 31,2004. This term applies exclusively to the right to access the Photo Library and shall in no way restrict the County's ability to utilize displays, brochures or any other works that incorporate images of Aflleck Photography beyond the expiration of this Agreement. The County shall be entitled to unlimited future use, for an unrestricted period of time, of any Affleck Photography images acquired or reproduced by the County during the one (1) year term of this Agreement. 3. SCOPE. The payment of the fee set forth in Paragraph 1 shall entitle the County to have access to and the right to use, without further compensation, the entire content of the Photo Library, with the exception of the following images provided exclusively for the use of third parties: VCD 3464, VCD 3465, VCD 3761 and VCD 3862. In addition, Affleck Photography agrees to provide the County with a CD consisting of a compilation of Fair and Rodeo main evening event photographs at no additional charge to theCount)r. Affleck ~ Photography agrees to keep and maintain the Photo Library in the same or similar condition as at the time of execution of this Agreement for the duration of the Term and may not significantly reduce or otherwise alter the contents of the Photo Library without the agreement of the Parties. The County shall retain the right to use images on a nonexclusive basis for any and all uses that they so deem necessary to promote the County. Such uses shall include but not be limited to the following: website display, regional and national advertising, brochures, rack cards, displays, and any and all Eagle County and Airport uses. For purposes of this Agreement, "images" shall constitute both electronic images and actual slides or transparencies. Scanning and any other postproduction of the images shall be the sole cost and responsibility of the County. Affleck Photography agrees to grant the County direct access to a website that is secured with a user name and password to search for photographs and view these images prior to making requests to Affleck Photography for specific images. This will enable the County to access images quickly and efficiently for web and marketing use. The Parties agree that only Eagle County and the Airport's interests are contemplated in this Agreement and that any third party uses of the Photo Library are prohibited. 4. PHOTO CREDITS. Future website and CD production by County utilizing Affleck Photography images shall include a page of Photo Credits, which feature Affleck Photography and their website if available. Designated areas of the website and CD, selected at the sole discretion of the County, shall have a non-intrusive link labeled "photo credits" that will lead to a web page if available. Permanent displays and other items that have Affleck Photography images displayed shall have Aflleck Photography printed in a small, non-intrusive type on some part of the display, brochure or mailer. 5. ADDITIONAL WORK. The Parties agree that the Fifteen Thousand Dollar ($15,000) fee is for access to and use, including but not limited to the right to reproduce these images, of the Photo Library. Any additional work or photo assignments outside the Scope of this Agreement shall be subject to additional charges as agreed upon by both Parties. 6. DAMAGE TO IMAGES. Reasonable care shall be given to any original slides or other works submitted to the County for scanning or reproduction. The County shall be responsible for any damages incurred to the original images as a result of the County's own negligence. Replacement costs for the images shall be established by industry standards and may be estimated at $1500 per image if the damage is beyond repair. 7. INDEMNIFICATION. Affleck Photography is responsible for taking actions necessary to obtain copyright protection for any works which are made available to County under this Agreement. By executing this document, Aflleck Photography acknowledges that it is fully authorized to make these images available and that County may reproduce the images in its publications and for publicity purposes as stated herein. Aflleck Photography will not make available images that in any way violate any present or future laws, rules, requirements, orders, directions, ordinances or regulations of the United States of America, State of Colorado, County of Eagle, or other municipal, governmental, or lawful authority whatsoever having jurisdiction. Aflleck Photography shall be fully liable for all injuries to persons or damage to property, and shall indemnify and hold harmless Eagle County, its commissioners, boards, employees, agents 2 '0 and insurers, from any and all claims, suits, costs, losses and expenses that may in any manner result from any violation of the above. 8. NOTICES. All notices to be given with respect to this Agreement shall be in writing. Each notice shall be sent first class mail, postage prepaid, to the party to be notified at the following address or at such other address as either party may from time to time designate in writing. AFFLECK PHOTOGRAPHY. INC. Affleck Photography, Inc. c/o Jack Affleck P.O. Box 2276 Edwards, CO 81632 COUNTY Board of County Commissioners P.O. Box 850 Eagle, CO 81631 and Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Every notice shall be deemed effective three (3) days from the date it shall be deposited in the United States mail addressed to the Parties above. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. 9. GOVERNING LAW. This Agreement and all matters relating hereto shall be construed in accordance with the laws of the State of Colorado. The Parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th Judicial District for the State of Colorado. 10. ENTIRE AGREEMENT. This Agreement supersedes all previous communications, negotiations and/or agreements between the respective Parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated Agreement and there are no representations about any of the subject matter hereof except as expressly set forth in this Agreement. 11. MODIFICATION. Any revision, amendment or modification to this Agreement, shall only be valid if in writing and signed by all Parties. 3 . 12. ASSIGNMENT. This Agreement is not assignable without the prior written consent of both Parties, such consent not to be unreasonably withheld. 13. BINDING AGREEMENT. The terms and conditions of this Agreement shall be binding and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 14. NO WAIVER OF DEF AUL T. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed, or shall operate as a waiver of any subsequent default of any of the terms, covenants, or conditions herein contained, to be performed, kept and observed by the other party. 15. SEVERABILITY. It is understood and agreed by and between the Parties that if any covenant, condition or provision contained in this Agreement is held to be invalid by any court of competent jurisdiction, or otherwise appears to be invalid, such invalidity shall not affect the validity of any other covenant, condition or provision herein contained; provided however, that the invalidity of any such covenant, condition or provision does not materially prejudice either party in its respective rights and obligations contained in the remaining valid covenants, conditions and provisions of this Agreement. 16. NO TIDRD PARTY RIGHTS. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. 17. ATTORNEY FEES. In the event of any litigation in connection with this Agreement, the prevailing party shall be entitled to recover all of its costs and expenses, including but not limited to, attorney fees and costs. 18. AUTHORITY TO CONTRACT. Each Party hereby represents, warrants and covenants to the other that it has the full right, power and authority to enter into this Agreement and make the agreements contained herein on its part to be performed; that the execution, delivery and performance of this Agreement has been duly authorized by such Party; that this Agreement constitutes the valid and binding obligation of such Party, enforceable in accordance with its terms; and, that the making of this Agreement and the performance thereof will not violate any present laws or ordinances or the terms or provisions of any agreement to which such Party is a party or under which such Party is otherwise bound. 19. APPROPRIATIONS. Notwithstanding anything to the contrary contained in this Agreement, Eagle County shall have no obligations under this Agreement, nor shall any payments be made to Contractor in respect of any period after December 31 st of each calendar year during the term ofthis Agreement, without the appropriation therefore by the County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et.seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 4 . . .. IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of January 1, 2004. . i v.G.t~ ~ (~5', ~'Jo ~o/ By: .". -eO Teak J. Simo on, Clerk to the Board ATTEST: STATE OF COUNTY OF COUNTY OF EAGLE, STATE OF COLORADO By and Through its ::~~1j;: Tom C. tone, Chamnan AFFLECK PHOTOGRAPHY, INC. ) ) SS. 1 The foregoing instrument was acknowledged before me by Jack Affleck as President of Affleck Photography, Inc., this day of , 2004. My commission expires: Notary Public 5