03/19/2008 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
May 29, 2008
TO:
Dent Pierce, Director
Public Works Division
ATTN:
FROM:
Beth Leto, Assistant Director
Public Works Division
Pamela G. Hancock, D(~
At the March 19, 2008, Board of County Commissioners Meeting the Board granted
approval of a retroactive Contract for artist services for the African Cemetery Memorial Project
and modification of County Purchasing Policy (between Monroe County and Professor Dinizula
Gene Tinnie).
Enclosed is a duplicate original of the above-mentioned for your handling. Should you
have any qu<:stions please do not hesitate to contact this office.
cc:
County Attorney
Finance
File./
Artist Services Al!:reement
Between
Monroe County and Professor Gene S. Tinnie.
This AGREEMENT dated the 21'( day of February 2007, is entered into by and
between the BOARD OF COUNTY COMMISSIONERS FOR MONROE COUNTY,
HEREINAFTER "County", and Professor Gene S. Tinnie, hereinafter "Artist,"
WHEREAS, Monroe County submitted an application for bricks and
mortarkapital projects grant to DAC 1 for the second phase of the African Cemetery
Memorial Project; and
WHEREAS, as its regularly scheduled meeting on July 11, 2007, DAC 1
approved funding for the second phase of the African Cemetery Memorial Project and
approved the design concept submitted by the African Cemetery Memorial Committee;
and
1NHEREAS, the Board of County Commissioners of Monroe County have
determined that it is in the interest of the promoting the understanding and awareness of
the visual arts to contract for the creation and installation of artwork as part of the African
Cemetery Memorial Project.
NOW, THEREFORE, in consideration of the mutual covenants and payments
containe:d herein, the parties have entered into this agreement on the terms and conditions
as set forth below.
1. AGREEMENT PERIOD. This agreement if for the period March 19, 2008,
through 60 days subsequent to date of issuance of Certificate of Occupancy or Certificate
of Completion of phase II of the African Cemetery Memorial Project. This agreement
shall remain in effect for the stated period unless one party gives to the other written
notification of termination pursuant to and in compliance with paragraphs 7, 12 and 13
below. All work for which AIPP funds are to be expended must be completed by the
stated termination date.
2. SCOPE OF AGREEMENT. The Artist shall provide:
a) Design drawings and construction specifications for the African Cemetery
Memorial plaza, including base panel artwork, tile work, etching work, templates,
stains and colors as approved by DAC I on July 11,2007.
b) Design drawings and construction specifications for the African Cemetery
Memorial ornanlental perimeter fence.
c) Design drawings and construction specifications for the African Cemetery
Memorial plaques.
Artist shall confer with and coordinate activities with Monroe County Senior Director of
Public Facilities Maintenance, John King, and the construction contractor on the job in
order to insure that there is as much cooperation and cohesiveness in the incorporation of
the art into the building under construction, and so that there shall be the least amount of
interference between the Artist and the Contractor.
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3. AMOUNT OF AGREEMENT AND PAYMENT: The County shall provide an
amount not to exceed $25,000 for services used to create the project. The Board of
County Commissioners assumes no liability to fund this agreement for an amount in
excess of this award. Monroe County's performance and obligation to pay under this
agreement is contingent upon an annual appropriation by the BOCC. Pursuant to
Florida's Prompt Payment Act, upon receipt by County of an Invoice for each of three
(3) phases, and documentation to satisfY the Clerk that the appropriate phase has been
completed, payment shall be made for the following phases at the referenced rates:
l. Design Phase: 33.3% of total payment;
2. Materials: 33.3% of total when artists submits receipts for
materials and eligible costs equal to or greater than 33 .3% of the contract
total; and
3. Completion: 33.3% final payment due when installation is
deemed complete and contractual agreement specifications are verified by
the Monroe County Facilities Development Department.
Eligible costs and expenditures for the proiect and the total award include. but are not
limited to:
A. Artists design fee
B. Labor, materials, contracted services required for design of the project
C. Artists operating expenses related to the project
D. Travel related to this project, pursuant to statutory limitations
E. Transportation of the work to the site
F. legal costs directly related to the project
G. Liability costs of artist
Payment shall be made upon presentation of an invoice and documentation necessary to
support the completion of the work. Artist shall also provide release of liens if
applicable.
Final payment requests must be submitted no later than 60 days after the completion of
proj ect.
4. OWNERSHIP and RIGHTS. Upon the installation of the artwork, County shall
own the artwork and all rights related thereto fully and completely.
5. RECORDS. The Artist shall keep such records as are necessary to document the
performance of the agreement and give access to these records at the request of the
County, the State of Florida or authorized agents and representatives of said government
bodies. The Artist understands that it shall be responsible for repayment of any and all
audit exceptions which are identified by the Auditor General for the State of Florida, the
Clerk of Court for Monroe County, the Board of County Commissioners for Monroe
County, or their agents and representatives.
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6. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the
terms of this agreement shall be only amended in writing and approved by the Board of
County Commissioners for Monroe County.
7. IINDEPENDENT CONTRACTOR. At all times and for all purposes hereunder,
the Artist is an independent contractor and not an employee of the Board of County
Commissioners of Monroe County. No statement contained in this agreement shall be
constrUl~d as to find the Artist or any of its employees, contractors, servants or agents to
the employees of the Board of County Commissioners of Monroe County, and they shall
be entitled to none of the rights, privileges or benefits of employees of Monroe County.
8. COMPLIANCE WITH LAW. In carrying out its obligations under this
agreement, the Artist shall abide by all statutes, ordinances, rules and regulations
pertaining to or regulating the provisions of this agreement, including those now in effect
and hereafter adopted. Any violation of said statutes, ordinances, rules or regulations
shall constitute a material breach of this agreement and shall entitle the County to
terminate this agreement immediately upon delivery of written notice of termination to
the Artist.
Licensing and Permits. Contractor warrants that it shall have, prior to commencement of
work under this agreement and at all times during said work, all required licenses and
permits whether federal, state, County or City.
9. HOLD HARMLESSIINDEMNIFICATION. The Artist hereby agrees to
indemnify and hold harmless the BOCC, Florida Keys Council of the Arts, AIPP
Committee and any of its officers and employees from and against any and all claims,
liabilities, litigation, causes of action, damages, costs, expenses (including but not limited
to fees and expenses arising from any factual investigation, discovery or preparation for
litigation), and the payment of any and all of the foregoing or any demands, settlements
or judgments arising directly or indirectly under this agreement. The Artist shall
immediately give notice to the County of any suit, claim or action made against the
County that is related to the activity under this agreement, and will cooperate with the
County in the investigation arising as a result of any suit, action or claim related to this
agreement.
10. ANTI-DISCRIMINATION. The Artist agrees that they will not discriminate
against lmy of their employees or applicants for employment or against persons for any
benefit or service because of their race, color, religion, sex, national origin, or physical or
mental handicap where the handicap does not affect the ability of an individual to
perform in a position of employment, and to abide by all federal and state laws regarding
non-discrimination.
11. ANTI-KICKBACK. The Artist warrants that no person has been employed or
retained to solicit or secure this agreement upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, and that no employee or officer of
the County has any interest, financially or otherwise, in the said funded project, except
for general membership. For breach of violation of this warranty, the County shall have
the right to annul this agreement without liability or, in its discretion, to deduct from the
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agreement price or consideration, the full amount of such commission, percentage,
brokerage or contingent fee.
12. TERMINATION. This agreement shall terminate pursuant to Paragraph #1
Termination prior thereto shall occur whenever funds cannot be obtained or cannot be
continued at a level sufficient to allow for the continuation of this agreement pursuant to
the terms herein. In the event that funds cannot be continued at a level sufficient to allow
the continuation of this agreement pursuant to the terms specified herein, this agreement
may then be terminated immediately by written notice of termination delivered in person
or by mail to Artist. The County may terminate this agreement without cause upon
giving 90 days written notice of termination to Artist. The County shall not be obligated
to pay for any services or goods provided by Artist after Artist has received written notice
of termination.
13. TERMINATION FOR BREACH. The County may immediately terminate this
agreement for any breach of the terms contained herein. Such termination shall take
place immediately upon receipt of written notice of said termination. Any waiver of any
breach of covenants herein contained to be kept and performed by Artist shall not be
deemed or considered as a continuing waiver and shall not operate to bar or prevent the
County from declaring a forfeiture for any succeeding breach either of the same
conditions or of any other conditions.
14. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes any and all prior
agreem(:nts with respect to such subject matter between the County and the Artist.
15. CONSENT TO JURISDICTION. This agreement, its performance, and all
disputes arising hereunder, shall be governed by the laws of the State of Florida, and both
parties agree that the proper venue for any actions shall be in Monroe County.
16. ETHICS CLAUSE. Artist warrants that he has not employed, retained or
otherwise had act on his behalf any former County officer or employee in violation of
Section 2 or ordinance No. 10-1990 or any County officer or employee in violation of
Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the County
may, at its discretion terminate this agreement without liability and may also, at its
discretion, deduct from the agreement or purchase price, or otherwise recover, the full
amount of any fee, commission, percentage, gift, or consideration paid to the former or
present County officer or employee.
17. PUBLIC ENTITY CRIME STATEMENT. A person or affiliate who has been
placed on the convicted vendor list following a conviction for public entity crime may not
submit a bid on an agreement to provide any goods or services to a public entity, may not
submit a bid on an agreement with a public entity for the construction or repair of a
public building or public work, may not submit bids on leases of real property to public
entity, may not be awarded or perform work as a contractor, supplier, sub-contractor, or
consultaat under an agreement with any public entity, and may not transact business with
any public entity in excess of the threshold amount provided in Section 287.017, for
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CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list. Artist represents that Artist is not on the Convicted Vendor list.
18. AUTHORITY. Artist warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each of the
signatories for the Artist below that they are authorized to contract Artist's services.
19. LICENSING AND PERMITS. Artist warrants that he or she shall have, prior to
commencement of work under this agreement and at all time during said work, all
required licenses and permits whether federal, state, County or City.
20. JNSURANCE. Artist agrees that it maintains in force at its own expense a
liability insurance policy which will insure and indemnify the Artist and the County from
any suits, claims or actions brought by any person or persons and from all costs and
expenses of litigation brought against the Artist for such injuries to persons or damage to
property occurring during the agreement or thereafter that results from performance by
Artist of the obligations set forth in this agreement. At all times during the term of this
agreement and for one year after acceptance of the project, unless the requirement is
waived by the Monroe County Risk Manager, Artist shall maintain on file with the
County a certificate of insurance of the carriers showing that the aforesaid insurance
policy is in effect. All insurance policies must specify that they are not subject to
cancellation, non-renewal, material change or reduction in coverage unless a minimum of
thirty (30) days prior notification is !:liven to the County by the insurer.
Acceptance and/or approval of Artist's insurance shall not be construed as
relieving Artist from any liability or obligation assumed under this contract or imposed
bylaw.
The Monroe County Board of County Commissioners, its employees and officials
will be included as "Additional Insured" on all policies except worker's compensation.
Any deviations from these General Insurance Requirements must be requested in
writing on the County form titled "Request for Waiver of Insurance Requirements" and
must be approved by Monroe County Risk Management. The following coverages shall
be provided prior to commencement of work governed by this contract:
1. Workers Compensation if, and as required by Florida Statues.
2. General Liability Insurance. Coverage shall be maintained through out the
life of the contract and include, as a minimum:
· Premises Operations
· Projects and Completed Operations
· Blanket Contractual Liability
· Personal Injury Liability
· Expanded Definition of Property Damage
The minimum limits acceptable shall be:
$300,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$100,000 per Person
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$300,000 per Occurrence
$ 50,000 Property Damage
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made
policy, its provisions should include coverage for claims filed on or after the effective
date of this contract. In addition, the period for which claims may be reported should
extend for a minimum of twelve (12) months following the acceptance of work by the
County.
21. NOTICE. Any written notice to be given to either party under this agreement or
related hereto shall be addressed and delivered as follows:
For Artist
For Countv
Gene S. Tinnie
80 NW 51 st Street
Miami, FI. 33127-2114
Florida Keys Council ofthe Arts
1100 Simonton Street
Key West, FL 33040
And
County Attorney
P.O. Box 1026
Key West, FL 33041-1026
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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This Agreement is entered into as of the day and year first written above and is executed
in at least four original copies of which one is to be delivered to the Artist, one to
Facilities Development for use in the administration of the Contract, and the remainder to
the Owner.
Execution by the Artist must be by a person with authority to bind the entity.
Signature oethe person executing the document must be notarized and witnessed by
another oJflC-eI; of the entity, or by two other witnesses.
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STATE OF FLORIDA rTl~-< -<
COUNTYOF I'lian/- Dad't Z':;;;" ~
On this _~:2.. day of ,4l'r; I , 20g8",.hefure!l!e, Jh,,~ndersigned :~~ plllWc, . J
personally appeared &,,~ s: ;;"",-'2/ , Known to me to be the per~hose nariit!~'~bsctilled '-'1
above or who produced pi / "'l as IdentIfIcation, and acknowledged llliIt liefshe iiJhe : '?
person who executed the above contract with Monroe County for the artwork at The Nortl(KeyfJ;argo}iire '.';
Station #25 for the urpo s therein contained. ;>
Date If/a-r/og
.
(SEAL)
Attest: DANNy L. KOLHAGE, Clerk
BY:(~~L~_~~
Deputy Clerk 05. 1."1'
(Seal)
Attest:
By:
Print Name:
Title:
Date:
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l'v V commission expires:
",.~~~'~:~, BEVERLY A. HEPBURN
!~m~ ~~ Notary Public. State of F1o~da
~~ . . jMvCorrrnlssionExplesJan5, 2009
>'.J~ ,W Commission # DO 373923
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By: 1:1
M~/Chairman
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Dal~SSISTANT UNTY ATTORNEY ,r/o i"
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MAY-15-2008 11: 20l'l FROM. GENE TINNIE
3057514192
TO: 131il52953179
P.2/4
MONROE COUNT\'. FLORIDA
Request For Waiver
of
Insurance Requirements
RECETVErf\
MAY 2 7 2008 I
J
BY:
n is requested that the Insurance requirements. as speclftecl in the County's Schedule of
Insurance Requiremenlll be waived or modified on the foUowlng contract.
Conb'actor: G...A1e '). 11""....1i:"
Contract for: .ilxlirl-r ~ehil'ce(
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Address of Contractor:
Phone:
Scope ,)f Work:
Reason for Waiver:
Policies Waiver
will apply to:
Risk Mallllgement
Dati!:
Signature of Conb'actor:
County Administrator appeal:
Approved:
Not Approved:
Date:
Board of County Commissioners appal:
Approved:
Not Approved:
Meeting Date: