11/19/2008 Agreement
DANNY L. KOLHAGE
CLERK,oF THE CIRCUIT C,oURT
DATE:
December 3, 2008
TO:
Peter Horton, Director
Airports
Pamela G. Han~
Deputy Clerk U
FROM:
At the November 19, 2008, Board of County Commissioner's meeting the Board granted
approval and authorized execution of the following:
vioan Agreement between Monroe County and the Sculpture Foundation to loan and
display a sculpture at the Key West International Airport for a period of one year at no cost to the
County. Enclosed is a duplicate originalfor your handling.
Resolution No. 353-2008 specifYing the areas the County intends to place under a
Conservation Easement at the Key West International Airport as part of the runway safety area
construction project to satisfY South Florida Water Management District permit requirements.
Enclosed is a certified copy of the subject Resolution.
Should you have any questions, please do not hesitate to contact this office.
cc: County Attorney
Finan(:e
File./'
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Artist Loan Al!reement
This agreement entered into this 19th day of November, 2008 by and between The
Sculptillfe Foundation (The Owner), whose secondary contact address is Gallery On
Greene:, 606 Greene St., Key West, Fl., 33040 and the Monroe County Board of County
Commissioners (The Client), whose address is 1100 Simonton St., Key West, Fl., 33040.
WHEREAS, the Artist has created a sculpture entitled "New Friends"; and
WHEREAS, the Client is the owner of the Key West International Airport; and
WHEREAS, the Client desires to obtain on loan and display the sculpture "New
Friends," a piece of art by J. Seward Johnson owned by The Sculpture Foundation; and
WHEREAS, the Artist is willing and able to provide such work of art.
Now, therefore The Client and The Owner agree as follows;
Section 1. Rights, Duties and Responsibilities of The Artist
1.01 The Owner shall convey to the Client the following Three-dimensional
work of art (the Artwork).
Description:
A bronze and aluminum sculpture titled "New Friends", consisting of seven (7)
life-scale figures and a buoy.
1.02 The Owner warrants, represents and covenants that:
a. The Artwork is a unique and original product of the Artists' creative
efforts.
b. The Artwork is free and clear of any claims.
1.03 The Owner have exclusive rights to the Artwork, including but not
limited to retention of the copyright of the artwork, reproduction rights
and all other reproduction rights in and to the artwork, subject, however to
such rights that are granted to the Client in Section 2.01 of this agreement.
1.04 The Owner shall be responsible for any loss or damage of the Artwork
except for such damage caused during installation if the installation is
negligently performed contrary to the installation directions pursuant to
Section 1.07 below.
1.05 The Owner shall correct any defects or materials for a period of one year
after date of delivery.
1.06 The Owner recognizes "time is of the essence" and shall perform this
agreement in such a manner and with sufficient equipment to complete the
artwork by the dates specified herein.
1.07 The Owner will supply the Client plans for the installation of the Artwork.
1.08 The Owner will maintain an insurance policy of at least $100,000.00 USD
or the value of the artwork, whichever is greater, covering all possible
damages during the Artwork rental, including but not limited to windstorm
damage.
Section 2. Rights, Duties and Responsibilities of The Client.
2.01 It is understood that The Sculpture Foundation, Inc. is the copyright owner
of the Work and shall retain copyright ownership of the Work, including the
<exclusive right to complete the limited edition. The Collector agrees to never
wntest the copyright of the Foundation and/or its successor(s), heir(s), and/or
assign(s) in the Work. It is understood that any photographic or other image,
iincluding any derivative, (collectively referred to as "Image(s)") of the Work may
not be used for any commercial purpose without prior written consent of the
Foundation. If the Collector desires to use an Image, a request must be submitted
in writing to the Foundation for approval. All approved images and use of the
Sculpture must show the following credit line:
"New Friends" by J. Seward Johnson <<J 2007 The Sculpture Foundation
(hereinafter referred to as "Credit Line").
The Foundation's consent is not required for non-commercial, two-dimensional
(such as photograph) uses of any Image. All non-commercial use by the
Exhibitor must include the Credit Line.
2.02 The Client shall credit the artwork as the product of Seward Johnson and
on loan from the and with copyright held by The Sculpture Foundation.
2.03 The Client shall pay for the installation cost ofthe Artwork.
2.04 The Client shall either store the shipping platform for use of the return of
the sculpture to the Owner or his designee or shall rebuild the platform at
the Client's cost in order to return the sculpture to the Owner.
2..05 The Client shall take possession of the sculpture and this agreement shall
become effective upon delivery.
Section 31, Compensation.
3.01 The Client shall pay no fee of any kind, whether for rental, preparation,
handling or reproduction rights, or any other purpose, to the Owner, but
shall provide the Owner with a display venue above the entrance to the
terminal form the commercial ramp as consideration under this
Agreement.
SectioEI 4. Term of Agreement
4.01 The Term of this Agreement is a one (I) year period beginning on
November 19, 2008, and ending on November 18, 2009, at the conclusion
of which, the Client shall return the sculpture to the Owner in the same
appearance and condition as when received, unless the agreement is
extended by written addendum executed by both parties. By signing
below, the Parties explicitly agree that the rules set forth in section
265.565, Florida Statutes, dealing with circumstances under which works
of art shall be treated as unclaimed property, do not apply.
Section 5. Termination of Agreement
5.01 This Agreement may be terminated prior to the expiration of the term of
the Agreement by either party, but if the Owner is the terminating party,
the Owner shall give to the Client sixty (60) days' prior written notice
during which time the Client shall return possession of the artwork to the
Owner. The Client likewise shall give no less than sixty (60) days' written
notice informing the Owner of the premature return of the Artwork.
5.02 Termination shall also occur should the sculpture at any time be removed
from the display pedestal without the Client's prior \\TItten consent.
Section 6. Right of Entry. At all time during the regular hours of Airport business, the
Owner or his designated representative shall have the right to enter the Airport for
the purpose of inspecting the artwork.
Section 7. Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts made and to be performed entirely within the State. Venue for any legal
al~tion which may arise out of or under this Agreement shall be in Monroe
County, Florida.
Section l~. Dispute Resolution. The parties agree that if a dispute arises between them
rdated this Agreement, neither shall be required to enter into any arbitration
proceeding.
a. Disputes Regarding Interpretation. The Parties agree that, in the event of a
dispute between them regarding interpretation of the Agreement, the Parties shall
attempt to resolve the dispute by means of a meet and confer session between
representatives of Client and Owner. If the issue or issues are not resolved to the
satisfaction of both Parties within thirty (30) days after the meet and confer
session, then either party shall have the right to terminate the Agreement upon ten
(10) business days' notice in writing to the other party.
b. Legal or Administrative Proceedings. In the event any administrative or
legal proceeding is instituted against either Client or Owner relating to the
formation, execution, performance, or breach of this Agreement, both parties
agree to participate, to the extent required by the other, in all proceedings,
hearings, processes, meetings, and other activities related to the substance of this
Agreement. Institution of any administrative or legal proceeding shall constitute
immediate termination of this Agreement and Client shall return the sculpture in
the same manner as specified in paragraph 2, above. Client agrees to forward
copies of all documents in its possession related to the matter which is the subject
of this Agreement to Owner at the time of filing any administrative or legal
proceeding.
c. Attorneys' Fees and Costs. In the event any administrative proceeding or
cause of action is initiated or defended by Client or Owner relative to the
,enforcement or interpretation of this Agreement, the prevailing party shall be
,entitled to an award of reasonable attorneys' fees, and court costs as an award
against the non-prevailing party. Mediation proceedings initiated and conducted
pursuant to this Agreement or as may be required by a court of competent
jurisdiction shall be conducted in accordance with the Florida Rules of Civil
Procedure and the usual and customary procedures required by the circuit court of
Monroe County and shall take place in Monroe County.
Section 9. Entire Agreement. The entire agreement between Client and Owner with
respect to the subject matter hereof is contained in this Agreement. This
Agreement supersedes all prior oral and written proposals and communications
between Client and Owner related to this Agreement. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto, their permitted
successors and assigns.
Section 10. Florida Government-In-The-Sunshine Law. The Owner agrees that,
unless specifically exempted or accepted by Florida law, the provisions of
Chapter 120, Florida Statutes, generally require full and public discussion of
matters to be voted upon by the Board of County Commissioners.
Section 11. Florida Public Records Law. Owner agrees that, unless specifically
exempted or accepted by Florida law or Rules and Regulations of The Florida
Bar, the provisions of Chapter 119, Florida Statutes, generally require public
a,ccess to all records and documents which may be made or received under this
Agreement.
Section 12. No Assignments. Neither party shall assign or subcontract its obligations
under this Agreement, except in writing and with the prior written approval of the
olther party, which approval shall be subject to such conditions and provisions as
the required signor may deem necessary. This paragraph shall be incorporated by
reference into any assignment or subcontract and any assignee or subcontractor
shall comply with all of the provisions of this Agreement. Unless expressly
provided for therein, such approval shall in no manner or event be deemed to
impose any additional obligation upon either party.
~
Section 13. Severability. If any term, covenant, condition or provision of this
Agreement shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions
of this Agreement shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be
enforceable to the fullest extent permitted by law unless the enforcement of the
remaining terms, covenants, conditions and provision of this Agreement would
prevent the accomplishment of the original intent of this Agreement. Client and
Owner agree to reform the Agreement to replace any stricken provision with a
valid provision that comes as close as possible to the intent of the stricken
provision.
Section 14. Captions. The captions set forth herein are for convenience of reference
only and shall not define, modifY, or limit any of the terms hereof.
SectioIII 15. Monroe County Ethics Provisions. Owner warrants that no person has
been employed, retained or otherwise had act on its behalf any former MONROE
COUNTY officer or employee in violation of Section 2 of 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 this provision client may, at its discretion,
Iterminate this Agreement without liability and may also, at its discretion, deduct
IfTom the sums owed under the Agreement, or otherwise recover, the full amount
of any fee, commission, percentage, gift or consideration paid to the former or
present COUNTY officer or employee. COUNTY employees and officers are
required to comply with the standards of conduct delineated in section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts,
doing business with one's agency, unauthorized compensation, and misuse of
public position, conflicting employment or contractual relationship, and
disclosure of certain information.
Section 16. Public Entity Crime Statement. Florida law provides that any 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, subcontractor, or consultant
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,
ti)r CATEGORY TWO for a period of thirty-six (36) months form the date of
being placed on the convicted vendor list. Artist warrants that neither Artist nor
any authorized agent has been named to the convicted vendor list.
Section 17. Anti-Kickback. Owner warrants that no person has been employed or
T<:tained to solicit or secure this Agreement upon any contract or understanding
for a commission, percentage, brokerage or contingent fee, and that no employee
or officer of Client has any interest, financially or otherwise, in this Agreement,
except as expressly stated herein. For breach or violation of this warranty, Client
shall have the right to annul this Agreement without liability or, in its discretion,
to deduct any sums to be paid by Client under this Agreement, or otherwise
recover, the full amount of such commission, percentage, brokerage or contingent
fee.
Section 18. Modifications and Amendments. This Agreement may not be modified in
any way without the express, written consent of both parties. Any and all
modifications and Amendments of the terms of this Agreement shall be in writing
and executed by the Board of County Commissioners for Monroe County and by
Owner in the same manner as this Agreement.
Section 19. Non-Discrimination. Owner and Client agree that there will be no
discrimination against any person, and it is expressly understood that upon a
determination by a court of competent jurisdiction that discrimination has
occurred, this Agreement automatically terminates without any further action on
the part of any party, effective the date of the court order. Artist and Client agree
to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: I)
Title VI of the Civil Rights Act of 1964 (PL 88-352), which prohibits
discrimination on the basis of race, color or national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC 991681-1683, and 1685-
1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC 9 794), which prohibits
dliscrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975,
as amended (42 USC 99 6101-6107) which prohibits discrimination on the basis
of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public
Health Service Act of 1912,99523 and 527 (42 USC 99 690dd-3 and 290ee-3),
as amended, relating to confidentiality of alcohol and drug abuse patent records;
8) Title VIII of the Civil Rights Act of 1968 (42 USC 99 3601 et seq.), as
amended, relating to nondiscrimination in the sale, rental or finance of housing; 9)
The Americans with Disabilities Act of 1990 (42 USC 99 1201), as maybe
amended from time to time, relating to nondiscrimination in employment on the
basis of disability; 10) Monroe County Code Chapter 13, Article VI, which
prohibits discrimination on the basis of race, color, sex, religion, national origin,
ancestry, sexual orientation, gender identity or expression, familial status or age;
and 11) any other nondiscrimination provisions in any Federal or state statutes
which may apply to the parties to, or the subject matter of, this Agreement.
Section .20. Authority. Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary action by each respective party. The Client, by executing this
Agreement warrants that the agreement has been approved by the Board of
County Commissioners of Monroe County, Florida. The Client's performance
and obligations under this contract is contingent upon an annual appropriation by
the Board of County Commissioners.
Section 21. No Personal Liability. No covenant or obligation contained in this
Agreement shall be deemed to be a covenant or obligation of any member,
officer, agent or employee of the Board of County Commissioners of Monroe
County in his or her individual capacity and no member, officer, agent or
employee of the Board of County Commissioners of Monroe County shall be
liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
Section 22. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original, all of
which taken together shall constitute one and the same instrument and Client and
Artist may execute this Agreement by signing any such counterpart.
Section 23. Notice Requirement. Any notices required or permitted to be sent under
this Agreement shall be in writing and shall be hand delivered or sent via certified
mail, return receipt requested, to the following addresses:
For Client:
County Administrator
Monroe County
1100 Simonton Street
Key West, FL 33040
With a copy to:
County Attorney
Monroe County
P.O. Box 1026
Key West, FL 33040
For Owner:
The Sculpture Foundation
2525 Michigan Ave. A-6
Santa Monica, Ca. 90404
With a copy to:
Gallery On Greene
606 Greene St.
Key West, Fl. 33040
Section 24. GOVERNMENTAL IMMUNITY: Nothing herein is intended to serve as
a waiver of sovereign immunity by Client nor shall anything included herein be
construed as consent to be sued by third parties in any matter arising out of this
Agreement or any other contract. Client is a political subdivision of the State of
Florida as defined in Chapter 768.28, Florida Statues, and agrees to be fully
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responsible for the acts and omissions of its agents or employees to the extent
permitted by law.
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/ Deputy Clerk Mayor/Chairman ~
STATE OF FLORIDA
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By:{j/V ~/
PauWSfoeke,
:The 'ulpture F oun tion
COUNTY OF MONROE
The foregoing instrument was acknowled e re
, 2008, by Paula Stoeke, who is perso known to me
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Notary Public
State of Florida at Large
My Commission Expire .
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