Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
10/19/2022 Agreement
p�`q COURp®C Kevin Madok, cpA �•... .... .� Clerk of the Circuit Court& Comptroller—Monroe County, Florida October 31, 2022 TO: Ricliard Strickland Director of Airports A Belli Leto, Deputy Director & Administration Pamela G. Hancoc , � '. S October 19'h BOCC Meeting Attached are electronic copies of the following items for your liandling: 7 Sculpture Loan Agreement with Tlie Seward Jolinson Atelier, Inc. for (lie public display of tlic sculpture work of art titled "New Friends" (a/k/a the Happy Family) at Key`Vest International Airport. V8 2nd Amendiiient to I ease Agreement with Marathon Hangar Development, Inc. exercising a ten-year renewal option on a land lease at Florida Keys Maratlion International Airport and adjustiiig(lie annual rent payment in accordance with fair market value appraisal. Should you have any questions please feel free to contact nie at (305) 292-3.5.50. cc: County Attorney Finance File KEY WEST MARATHON PLANTATION KEY 500 Whitehead Street 3117 Overseas Highway 88770 Overseas Highway Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070 SCULPTURE LOAN AGREEMENT This Sculpture Loan Agreement(the"Agreement")is made this 19th day of October, 2022 (the "Effective Date") by The Seward Johnson Atelier, Inc. ("TSJA"), a New Jersey nonprofit corporation with an address of 14 Fairgrounds Road, Hamilton,NJ 08619 and the Monroe County Board of County Commissioners ("Exhibitor") with an address of 1100 Simonton St., Key West, FL 33040 (TSJA and Exhibitor shall each be referred to herein as a"Parry"or, collectively, as the "Parties"). WHEREAS, TSJA is a nonprofit corporation organized and operated for charitable and educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, whose mission is to promote the appreciation of, and education about, sculpture and public art in general,primarily through the creation, maintenance, sale,and public placement of J. Seward Johnson's artwork; and WHEREAS, TSJA desires to loan a certain sculpture work of art titled "New Friends", owned by or loaned to TSJA,to Exhibitor in accordance with the terms of this Agreement; and WHEREAS, New Friends has been on display at the Key West International since 2008 and Exhibitor has requested that New Friends remain on loan to Exhibitor for public display and education in furtherance of TSJA's charitable and educational mission and in accordance with the terms of this Agreement: and WHEREAS, Exhibitor is in the design stage of a new concourse construction project at Key West International Airport; and WHEREAS, the construction site of the new terminal encompasses the current exhibition site of the New Friends sculpture; and WHEREAS,the parties agree the construction of the new concourse presents an opportune time to perform restoration work on the New Friends sculpture; and WHEREAS, the parties agree that the most efficient way to restore, safekeep and prepare the New Friends sculpture for exhibition once construction has been completed is by placing the sculpture in a storage container accessible to the restoration artists at the Key West International Airport. NOW THEREFORE,in consideration of the mutual covenants contained herein, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the Parties, intending to be legally bound, agree as follows: 1. Definitions. (a) Exhibit Site. The term"Exhibit Site"shall mean the following location: Key West International Airport. 1 (b) Exhibition. The term "Exhibition" shall mean Exhibitor's exhibition currently underway at the Exhibit Site. (c) Loan. The term "Loan" shall mean the loan of the Loaned Sculpture(s), as such term is defined herein. (d) Loan Period. The term"Loan Period"shall mean the period from the date on which the Loaned Sculpture(s) listed in Exhibit A are packed and/or crated for transportation to the Exhibitor pursuant to Section 8(a) of this Agreement through the date that the Loaned Sculpture(s) are either retrieved by or returned to TSJA pursuant to Section 8(a) of this Agreement. (e) Loaned Scul WI`C s The term "Loaned Sculpture(s)" shall mean the sculpture(s) owned by or loaned to TSJA which are loaned to Exhibitor in accordance with the terms of this Agreement and listed in Exhibit A, including, if any, related frames, pedestals, bases, installation structures, background material crating, packaging and/or any other items supplied by TSJA in connection with any Loaned Sculpture. 2. Term. The term of this Agreement (the "Initial Term") shall be from the Effective Date until October 31, 2026 (the "Initial Term"). The term of this Agreement may be extended for one (1)year beyond the Initial Terill upoIl the mutual written agreement of the Parties(the Initial Term and any such renewal periods shall be collectively referred to as the "Terns"). During the term of this Agreement the Loaned Sculpture shall be placed in a commercial shipping container for restoration and storage during the new concourse A construction project. Once construction is complete, tentatively scheduled for October 2024, the Loaned Sculpture shall be exhibited in accordance with section 4 of finis Agreement: 3. Termination. Except as otherwise provided in Sections 7(f) and 10(a)(8) of this Agreement, this Agreement may be terminated by either Party at any time upon thirty (30) days' written notice to the other Party. 4. Purpose of Loan. Exhibitor agrees to use and publicly display the Loaned Sculpture(s) in furtherance of TSJA's charitable and educational purposes. (a) Public Dismay: Exhibitor covenants and represents that the Loaned Sculpture(s) will be on continuous public display during the Exhibition at the Exhibit Site, which is customarily open and accessible to the public for a minimum period of thirty (30) hours each week. (b) Admission of Public.. During the Exhibition, Exhibitor will admit the public to the Exhibit Site in accordance with the terms of this Agreement without discrimination or segregation on the basis of race, religious creed, skin color, national origin, ancestry, physical or mental disability,medical condition, marital status, gender, age, or sexual orientation. 5. Intellectual Property Reproduction; Photography Limitations. (a) ..ortnliance With Law. Exhibitor agrees to observe and comply with all copyright, trademark,and other intellectual property laws and regulations, all moral rights including,without 2 limitation, attribution rights, any rights under 17 U.S.C. §106(a), and all rights of privacy and publicity (individually and collectively "I.P. Rights"), relating to the Loaned Sculpture(s), and not to infringe or violate any I.P. Rights. Exhibitor agrees never to contest the copyright(s) of TSJA and its successors, heirs, and/or assigns in and to the Loaned Sculpture(s) created by J. Seward Johnson, Jr. (the "Johnson Sculpture(s)"). (b) Reproductions Prohibited. Exhibitor may not make or use any reproduction of the Loaned Sculpture(s), including, but not limited to, two-dimensional images or photographs depicting the Loaned Sculpture(s), for any commercial purpose without TSJA's prior written consent. (c) Authorized Images. Exhibitor may publicly display, reproduce and distribute photographic reproductions of the Johnson Sculpture(s) for the sole purpose of promoting and marketing the Exhibition ("Authorized Images"). Copies of all Exhibitor materials containing Authorized Images shall be provided to TSJA in a timely manner for its records. All Authorized Images must show the appropriate notice as provided below in Section 5(d). All of Exhibitor's rights to use Authorized Images provided herein shall cease on the earliest of: (1) the close of the Exhibition;(2)the date that any Johnson Sculpture(s)is withdrawn or replaced pursuant to Section 6 of this Agreement; or(3) the date of termination of this Agreement pursuant to Section 3. (d) Copyright. (1) Copyright notice for Loaned Sculpture(s). Unless otherwise instructed by TSJA, the following copyright notice must appear on any and all signage not provided by TSJA displayed in connection with the Loaned Sculpture(s): "©2007 The Seward Johnson Atelier,Inc." (2) Credit line for Authorized Images. The following credit line shall appear adjacent to each Authorized Image: "New Friends by J. Seward Johnson, Jr., On Loan From The Seward Johnson Atelier, Inc." (3) Copyright notice for uses of Authorized Images. Unless otherwise instructed by TSJA, in addition to the credit line required by Section 5(d)(2) above, the following copyright notice shall appear adjacent to individual Authorized Images in which TSJA owns the copyright: "The images contained herein are © [include the most recent publication date for any Authorized Image used], The Seward Johnson Atelier, Inc.,except where otherwise noted, and are used with permission of The Seward Johnson Atelier,Inc. All rights reserved." In the event TSJA advises Exhibitor that TSJA is not the copyright owner of the Authorized Image,the notice above must be modified as necessary based upon the Authorized Images used. In such situations, TSJA shall provide the required notice, for use with the Authorized Image. (e) Non-Johnson Sculpture(s). Unless otherwise specifically stated in writing by TSJA, TSJA grants no rights to Exhibitor in and to any Loaned Sculpture(s) that is not a Johnson Sculpture(s) (the "Non-Johnson Sculpture(s)"), other than the right to publicly display the Non- Johnson Sculpture(s)pursuant to the terms of this Agreement. No rights to make any commercial, non-commercial, editorial, or journalistic reproduction of any Non-Johnson Sculpture(s) is provided or implied by this Agreement. 3 6. Withdrawal and Substitution. (a) Withdrawal. While it is the intention of TSJA to permit the Loaned Sculpture(s) listed in Exhibit A to remain available to Exhibitor for the full duration of the Loan Period, TSJA also expressly reserves the right in its sole discretion and upon thirty (30) days' written notice to Exhibitor to withdraw any Loancd Sculpturc(s) listcd in Exhibit A at any time without liability to TSJA. (b) Substitution. If TSJA withdraws a Loaned Sculpture(s), TSJA may, and without any liability to TSJA, substitute any other Loaned Sculpture owned by TSJA in its place (the "Substitute Sculpture"), which Substitute Sculpture shall then be deemed a Loaned Sculpture. TSJA will provide a Substitute Sculpture that is mutually agreeable to the Parties and shall propose a method of installation of the Substitute Sculpture that must be mutually acceptable to the Parties. In the event a mutually agreeable Substitute Sculpture and method of installation cannot be agreed upon by the Parties, either Party may terminate this agreement pursuant to Section 3 of this Agreement. (c) Costs. All installation, de-installation and transportation costs associated with the withdrawal and substitution of any Loaned Sculpture(s) will be paid for by TSJA when such withdrawal or substitution is initiated by 'TSJA. 'TSJA will not be responsible for any costs to Exhibitor beyond those specifically provided for herein, including any incidental or consequential damages to Exhibitor associated with Withdrawal and/or Substitution under this provision. 7. Storage, restoration,Care and Safekeeping. (a) Sto__ ca — Prior to commencing the construction phase of the new concourse A construction project,Exhibitor will place the Loaned Sculpture in a commercial shipping container located at the Key West International Airport in accordance_with,subµsections (c), (e)_and (g)_o;l" this section 7.. (b) Restoration — During the storage period, TSJA shall contract and provide for the restoration services required for the Loaned Sculpture and pay for all costs associated with the restoration. TSJA shall coordinate the restoration services with Exhibitor in order to ensure access to the commercial shipping container wherein the Loaned Sculpture is stored. (c) Standard of Care. Exhibitor will at all times during the Loan Period (twenty-four (24) hour, seven (7) day basis), handle and care for the Loaned Sculpture(s) in accordance with the highest standards for and best practices concerning the treatment and protection of artworks of a similar nature and value adopted and/or used by major art institutions that regularly handle and care for art of the same nature and value as the Loaned Sculpture(s),taking into account the specific nature and value of the Loaned Sculpture(s), its/their materials, the fragility of the Loaned Sculpture(s),and the other unique properties of the Loaned Sculpture(s)as works of art. Exhibitor will check the condition of the Loaned Sculpture(s) a minimum of one (1) time per month for the duration of the Loan Period. 4 (d) Security. Exhibitor will protect the Loaned Sculpture(s)from fire,theft,acts of the public, vandalism, and mishandling, and otherwise provide a safe and secure environment in all respects during the Loan Period. Exhibitor shall be responsible for retrieving and keeping in custody any Loaned Sculpture(s) in the case of theft. In the event of an emergency that impacts the Loaned Sculpture(s) in any way, Exhibitor shall immediately notify TSJA by telephone and provide written notice within three (3) business days. (e) Installation: De-installation. Exhibitor will consult with TSJA for the proper method to de-install and install the Loaned Sculpture(s) at the Exhibit Site to avoid damage to the Loaned Sculptures. Exhibitor will provide professional installation expertise, manpower, and equipment for installation/de-installation. All costs associated with installation and de-installation, excluding transportation costs under Section 8(a) herein, shall be the responsibility of Exhibitor, including damage to the Loaned Sculptures that has not been caused by exposure of the Loaned Sculptures to the elements. (f) Siting/Withdrawal of Sculptures. Siting of any Loaned Sculpture(s) at the Exhibit Site shall be at a location visible to all arriving passengers, as determined by the Director of Airports, and within a transparent enclosure to ensure the safekeeping of the Loaned Sculpture. All costs associated with moving, relocating, re-siting, and/or withdrawal of any Loaned Sculpture(s) will be paid for by the Party that initiated the moving, relocating, re-siting and/or withdrawal. The Parties agree that the cost associated with the moving,relocating,re-siting and/or withdrawal of the Loaned Sculpture for the concourse construction project at the Key West International Airport will be the responsibility of the Exhibitor. Any moving,relocating,re-sitting of the Loaned Sculpture(s) from the original installation location to a different site ("New Location") shall be subject to the mutual agreement of the Parties. If the Parties cannot agree to the New Location, either Party may terminate this agreement pursuant to Section 3 of this Agreement. (g) Han In every instance, Exhibitor warrants that the Loaned Sculpture(s) will be handled only by trained staff and/or recognized fine art handlers under competent supervision. The Loaned Sculpture(s) must not be handled except as expressly permitted in this Agreement. (h) spect'ion. At all times during the Loan Period and upon reasonable notice to Exhibitor, TSJA and/or its representatives will have the right to access, inspect, and view the Loaned Sculpture(s). Any such access, inspection or review by TSJA and/or its representatives will at all times be in accordance with and comply with airport security requirements. If at any time during the Loan Period TSJA identifies any damage to the Loaned Sculpture(s), TSJA may, in its sole discretion, require immediate remedial measures, remove the damaged Loaned Sculpture(s), and/or immediately terminate this Agreement, without any liability or further obligation to Exhibitor. (i) No Waiver. TSJA's approval, review, supervision of, or attendance at, Exhibitor's facilities, or of any packing, installation, removal, and/or other handling of the Loaned Sculpture(s), will not in any way make TSJA liable or responsible for any such activity or events, or waive or diminish any of Exhibitor's obligations and responsibilities under this Agreement or at law. 5 8. Transportation. (a) Sly.in�. Upon expiration or termination of this Loan Agreement, TSJA shall be responsible for providing professional and secure transportation for the Loaned Sculpture(s). In no event will Exhibitor hire or select any transportation provider or packing services or implement any transportation or packing measure without TSJA's prior written consent. 9. Damage or Loss. (a) Report. Exhibitor shall immediately notify TSJA by telephone and provide written notice within three (3) business days of any damage to or loss or deterioration of, or endangerment to, any of the Loaned Sculpture(s) during the Loan Period. (b) Mites In the event of any damage, loss,deterioration, or endangerment to the Loaned Sculpture(s), and without limiting any other provision in the Agreement, Exhibitor shall take any reasonable actions TSJA may require to secure and protect the Loaned Sculpture(s) from further damage, loss, deterioration, or endangerment that occurs during the Loan Period. (c) .�,x,�enses. Exhibitor agrees to pay all reimbursable travel expenses of TSJA representatives and/or employees incurred and relating to any loss or damage to any Loaned Sculpture(s)occurring during the Loan Period. Travel expenses shall be reimbursed in accordance with Monroe County Code Chapter 2, section 2-106 through section 2-118.Exhibitor will be solely responsible for all costs of mitigation and conservation necessitated by any damage, loss, deterioration, or endangerment that occurs during the Doan Period. 10. Insurance; Liability for Damage or Loss. (a) Insurance Require!nents,. Exhibitor shall maintain thefollowing insurance (the "Exhibitor Policies") for the duration of the Loan Period and while the Loaned Sculpture(s) are in transit to and from the Exhibit Site: (1) "wall to wall" insurance for the full value of the Loaned Sculpture(s); and (2) general liability insurance in the amount of$2,000,000 for any claims for damage or destruction of property,bodily injury, or death arising out the Exhibition which comply with the following requirements: (1) Valuation. Exhibitor must insure the Loaned Sculpture(s) fully for the current market value(s), as indicated on L,xhibit A of this Agreement(the "Stated Value(s)"), each of which Exhibitor agrees represents a fair, reasonable, and accurate value for the Loaned Sculpture(s). TSJA will have the right to solicit new valuations to determine the Stated Value(s) of the Loaned Sculpture(s),as TSJA deems appropriate in its reasonable discretion. Promptly after receipt of TSJA's written request(s),which includes requests via e-email, Exhibitor must take any and all necessary steps to ensure that the insurance coverage hereunder is increased accordingly by increasing the Stated Value(s) of the Loaned Sculpture(s) on all Exhibitor Policies. (2) As Their Interest May Appear (ATIMA). Upon approval by Exhibitor's insurer, TSJA will be identified as "ATIMA" on the Exhibitor's property coverage. If Exhibitor 6 receives any insurance proceeds in respect to the Loaned Sculpture(s), Exhibitor will only receive and hold such proceeds in trust for TSJA and will promptly deliver all such proceeds to TSJA. (3) Severability. The Exhibitor Policies must provide for coverage independent from, and regardless of, any defenses the issuer(s) of the Exhibitor Policies (the "Insurer(s)")may have against Exhibitor or any other insured. The Exhibitor Policies must provide that coverage under such policies cannot be invalidated or prejudiced by Exhibitor's actions. To the extent that any Exhibitor Policies also provide coverage for Exhibitor's legal liability to TSJA,such insurance must provide for severability of interests, and must not include any exclusion that would preclude suits between insureds and/or between insureds and loss payees. (4) Partial and Total Loss. If the Loaned Sculpture(s)are damaged,the amount of loss will be the costs and expense of restoration, with such restoration services to be provided by TSJA, plus the diminution in value. The diminution in value will be measured by taking the greater of the current market value of the Loaned Sculpture(s) immediately before the damage occurred or the Stated Value(s)of the Loaned Sculpture(s)and subtracting the current market value after restoration as determined by an appraiser acceptable to both parties. If any of the Loaned Sculpture(s) is/are lost (including, without limitation, stolen) or destroyed, the proceeds from the Exhibitor Policies must be paid directly to TSJA in an amount equal to the greater of the current market value of the Loaned Sculpture(s) at the time of the loss or the Stated Value(s). (5) Other Insurance. If TSJA elects to maintain its own insurance coverage, such coverage will in all events be secondary and noncontributory to the coverage provided by Exhibitor,and will not release Exhibitor from,or waive or diminish,any of Exhibitor's obligations or liabilities under this Agreement. (6) Repurchase Right. If any Loaned Sculpture(s) is/are lost (including, without limitation, stolen) and then recovered after TSJA has been reimbursed by the Insurer(s), the Insurer may offer TSJA the option to exchange the insurance proceeds,less any costs necessary to restore the Loaned Sculpture(s), for the recovered Loaned Sculpture(s). In support of TSJA's Repurchase Right, Exhibitor will use its best efforts to cause the Insurer(s) to return the Loaned Sculpture(s)to TSJA, and to ensure that TSJA retains all title thereto. (7) Notice. Exhibitor shall provide or cause the Insurer(s) to provide at least ninety(90)days prior written notice of cancellation,intent not to renew, or any substantive change in any of the terms or rate of the Exhibitor Policies ("Revision to Insurance Coverage"). After receipt of notice of any Revision to Insurance Coverage,TSJA may,at its sole discretion,terminate this Agreement without liability to Exhibitor. (b) endorsements, Certificate of Insurance Exhibitor agrees to notify its Insurer(s) of the terms of this Agreement,and to obtain from its Insurer(s) an endorsement including any of the provisions of this Section 10 of this Agreement not already included in the terms of the Exhibitor Policies. In addition, Exhibitor will obtain and provide TSJA with a certificate of insurance naming TSJA as a named insured or additional insured and,in either event,loss payee,in a manner satisfactory to TSJA. Exhibitor agrees to deliver such certificate and endorsement(if applicable), along with a copy of the provisions of the Exhibitor Policies pertaining to: (1) all risks coverage; 7 (2) exclusions; (3) severability; (4) arbitration; (5) treatment of other insurance; (6) repurchase right(right to exchange proceeds); and(7) lenders priority of payment to TSJA, no fewer than ten (10) business days prior to the commencement of the Loan Period. At TSJA's request, Exhibitor will also deliver a copy of the terms of the Exhibitor Policies. (c) Deductibles. Exhibitor agrees to pay any and all deductibles relating to the Exhibitor Policies. Such deductibles rnay riot exceed art arnount approved by TSJA. (d) Disposition of Damaged Artwork. Notwithstanding any other term or provision of this Agreement, in the event of any partial damage to the Loaned Sculpture(s) during the Loan Period, TSJA will, in all events, have the right to retain the Loaned Sculpture(s) and title thereto, and will not have any obligation to transfer the Loaned Sculpture(s) to Exhibitor or its Insurer(s). If there is total damage to any of the Loaned Sculpture(s) during the Loan Period, and if Exhibitor itself pays TSJA for the loss under the provisions of this Agreement,then TSJA will have the right to retain the Loaned Sculpture(s) and title thereto, and will not have any obligation to transfer the Loaned Sculpture(s) to Exhibitor, even if the Loaned Sculpture(s) are worthless. If there is total damage to the Loaned Sculpture(s) during the Loan Period, and if the Insurer(s) pay TSJA in full for the loss,Exhibitor will nevertheless support TSJA's Repurchase Rights and use its best efforts to cause the Insurer(s) to return the Loaned Sculpture(s) to TSJA, and to ensure that TSJA retains all title thereto, even if the Loaned Sculpture(s) are worthless. If Exhibitor is unable to cause the Insurer(s) to return the Loaned Sculpture(s) to TSJA despite Exhibitor's best efforts, then Exhibitor will continue to use its best efforts to ensure that the Insurer(s) dispose of the Loaned Sculpture(s) in consultation with TSJA and in a manner respectful of TSJA's wishes. Notwithstanding any other term or provisions of this Agreement, retention by TSJA of the Loaned Sculpture(s) and/or title thereto will in no way affect any right of TSJA under this Agreement. (e) Exhibitor's Liability Beyond Insurance; Duty to Indemnify. To the extent set forth in F.S. 768.28, Exhibitor agrees to assume liability, and to fully reimburse and indemnify TSJA for any and all loss, daniage and/or destruction relating to the Loaned Sculpture(s), or to any part of the Loaned Sculpture(s), during the Loan Period, where such loss, damage, and/or destruction is: (1)not fully covered(including all expenses required of TSJA)under the terms of the Exhibitor Policies for any reason; and (2) the result of or caused directly or indirectly by any negligent, wrongful or intentional act, omission or error of, or other failure to meet any term(s) or special standard(s) of care set forth in this Agreement, of Exhibitor or anyone on its behalf or any of its employees,agents,officers,directors,representatives,or contractors. This obligation to reimburse and indemnify TSJA extends,without limitation,to any shortfall in insurance that results from any instance in which the Exhibitor Policies do not or cannot meet the insurance or indemnity related terms of this Agreement. (f) No Waiver. Exhibitor's failure to provide any information, certificates, or policies required by this Agreement, including without limitation, either a certificate of insurance or an endorsement establishing that all of the insurance requirements set forth herein have been met, and/or TSJA's acceptance of any policy or certificate of insurance not in compliance with the requirements of this Agreement will not in any event be or be deemed to be,or constitute,a waiver by TSJA of any of the requirements of this Agreement or of Exhibitor's covenants, liabilities, or obligations under this Agreement. 8 11. Return and/or Removal of Loaned Sculpture(s). (a) Return. Exhibitor agrees to make the Loaned Sculpture(s) available for return to TSJA: (1) no later than one (1) week after the end of the Exhibition; or(2) within five (5) days of receipt of a notice of termination from TSJA if this Agreement is terminated under Section 3, Section 7(f), Section 10(a)(7) or as otherwise provided under this Agreement. Exhibitor will not have any right to retain the Loaned Sculpture(s) after the end of the Exhibition under any circumstances. (b) Release by Exhibitor. Exhibitor will only release the Loaned Sculpture(s) to, and take instructions concerning the Loaned Sculpture(s) from, TSJA or its duly authorized agent. In the case of an agent acting on TSJA's behalf, Exhibitor must not act without reliable written proof of the agent's authorization from TSJA. 12. Responsibility. (a) No Liability ors Warranty. Unless otherwise specifically stated in this Agreement, TSJA will bear no expense relating to the lending of the Loaned Sculpture(s) to Exhibitor. TSJA does not make (and hereby expressly disclaims) any warranties or representations (express or implied), including to Exhibitor or otherwise, in respect of the Loaned Sculpture(s), or any right in the Loaned Sculpture(s), including, but not limited to, title, quiet enjoyment, or authenticity. (b) lndeii.ilication.. To the extent permitted by law, Exhibitor agrees to and will release, indemnify, and defend TSJA and its trustees, directors, officers, employees, contractors, representatives, and agents from and against all costs, losses, taxes, assessments, demands, fees, and expenses (including attorneys' fees and costs), claims, damages, suits, actions and/or proceedings, threatened against or suffered by Exhibitor or TSJA or their respective trustees, directors, officers, employees, or agents, and relating to or arising out of. any breach or failure to perform by Exhibitor under this Agreement; any act or omission by or on behalf of Exhibitor or any director, officer, employee, agent, contractor, representative, or invitee of Exhibitor ("Exhibitor's Agents"); any prohibited use of I.P. Rights by Exhibitor or Exhibitor's Agents not consistent with this Agreement; and/or the lending of the Loaned Sculpture(s) to Exhibitor, including, without limitation, the transportation, possession, preservation, reproduction, and/or display of the Loaned Sculpture(s), and the return of the Loaned Sculpture(s)to TSJA. 13. Ownership. Exhibitor will at all times recognize only TSJA as the legal owner of the Loaned Sculpture(s), other than those Loaned Sculpture(s) on loan to TSJA as reflected on Exhibit A, and will not recognize nor entertain any competing claims by any third party in respect of the Loaned Sculpture(s), including those Loaned Sculpture(s) on loan to TSJA as reflected on Exhibit A. Exhibitor agrees never to contest TSJA's and/or its successors', heirs', and/or assigns' title in the Loaned Sculpture(s). If Exhibitor becomes aware of any claims or circumstances that may give rise to a claim in respect of the Loaned Sculpture(s), including those Loaned Sculpture(s) on loan to TSJA as reflected on Exhibit A,it will immediately inform TSJA and take such reasonable steps as TSJA may require (including the immediate removal of the Loaned Sculpture(s) from the Exhibit Site), at Exhibitor's sole cost and expense. Exhibitor hereby waives any and all interest 9 and claim in the Loaned Sculpture(s), and agrees not to in any way encumber, claim or assert, or cause or allow any other party to claim or assert, any interest of any kind in the Loaned Sculpture(s). 14. Fees. This Agreement is for the renewal of an existing Loan and therefore no fee shall be charged by TSJA to Exhibitor. 15. Assignment. Exhibitor may not, at any time, assign or transfer its rights under this Agreement. TSJA may assign all or any portion of its rights under this Agreement to any third party without the prior written consent of Exhibitor. 16. Taxes. Exhibitor agrees to be fully responsible for(and to promptly pay)any and all levies, liens, taxes (including, but not limited to, personal property, taxes, and/or GST, VAT, or similar taxes) and/or all other assessments of any kind or nature relating to the Loan, including, but not limited to,the transportation, possession, presence, and/or display of the Loaned Sculpture(s). 17. Storage. If necessary, the Loaned Sculpture(s) will be professionally packed and stored securely at the Exhibit Site in Exhibitor's on-site secure storage and shall remain packed until such time as required for installation and exhibition. All crate and packing materials used in transporting and packing the Loaned Sculpture(s) must be stored and preserved during the Loan Period by Exhibitor. Any lost or damaged crate and/or packaging materials will be replaced at Exhibitor's expense. 18. Conservation; Alteration. Exhibitor agrees not to perform any invasive examination or inspection of the Loaned Sculpture(s),and not to conserve, repair, alter,modit' , unmat, unfram , remat or reframe, remove or add any base or pedestal to the Loaned Sculpture(s), restore the Loaned Sculpture(s) or any part of the Loaned Sculpture(s), disassemble any part of the Loaned Sculpture(s), substitute or replace any glass or other cover of the Loaned Sculpture(s), or consent to or permit any of the foregoing without the express prior written consent of TSJA. Hanging or mounting devices existing on the Loaned Sculpture(s) may not be removed or repositioned from the Loaned Sculpture(s), nor may any other devices be attached, without TSJA's prior written consent. 19. Public Access. TSJA and Exhibitor shall allow and permit reasonable access to, and inspection of, all documents,papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the TSJA and Exhibitor in conjunction with this Agreement; and Exhibitor shall have the right to unilaterally cancel this Agreement upon violation of this provision by TSJA. 20. Applicable Law; Exclusive Jurisdiction; Venue and Removal. (a) Applicable Law. This Agreement and all disputes relating to or arising out of this Agreement(including insurance disputes, unless prohibited by the insurance laws and regulations applicable to the Exhibitor Policies) will be governed by and construed in accordance with the laws of the State of Florida. 10 (b) .Jurisdiction• "venue and removal. All disputes and matters arising under, in connection with, or incidental to this Agreement and/or the Loaned Sculpture(s), including, but not limited to, any dispute involving insurance proceeds, will be litigated, if at all, in and before the appropriate court or before the appropriate administrative body. (c) TSJA and Exhibitor agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 21. Miscellaneous. (a) Notices. All notices under this Agreement shall be given to each Party at the address listed below and shall be deemed to have been duly given when addressed as specified below and deposited postage paid in the United States mail. If to TSJA: If to Exhibitor: The Seward Johnson Atelier, Inc. Key West International Airport 60 Sculptors Way 3491 S. Atlantic Blvd. Hamilton, NJ 08619 Key West, FL 33040 Attn: Program Officer Attn: Director (b) Counterparts, This Agreement may be executed in counterparts, each of which shall constitute an original and both of which shall constitute the same instrument. (c) Survival. The terms and conditions of Sections 3, 5, 7, 8, 9, 10, 11, 12, 13, 16, 19, 20, and 21 shall survive the termination of this Agreement. (d) Entire A reernent�Modification and Waiver. This Agreement contains the entire understanding of the Parties and shall be binding upon the heirs, successors, and assigns of the Parties. Any amendment or modification of this Agreement shall be in writing and signed by both Parties. The failure of either Party to insist upon strict performance of the Agreement shall not be construed as a waiver of any subsequent breach of non-performance. (e) Joint 'Venture. Nothing in this Agreement will be deemed to create a joint venture, partnership, lease, or principal-agent, employer-employee, or any similar relationship or arrangement, between Exhibitor and TSJA. (f) Compliance with laws and lie wlations. Exhibitor shall adhere to all federal and state laws and regulations applicable to its obligations and responsibilities under this Agreement. 22. Severability. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and 11 provisions of this Agreement, shall not be affected thereby; and each remaining terns, 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 provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. TSJA and Exhibitor 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. 23. Attorney's Fees and Costs. TSJA and Exhibitor agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement,the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. 24. Nondiscrimination. The parties 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. The parties 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: 1) Title VII of the Civil Rights Act of 1964 (PL 88-352), which prohibit discrimination in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC § 794), which prohibits discrimination on the basis ofhandicaps;4)-The Age Discrimination Act of 1975,as amended(42-- USC §§ 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 91616),as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, §§ 523 and 527 (42 USC §§ 690dd-3 and 290ee-3),as amended,relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC §§ 12101), as amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 14, Article II, 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. 25. Covenant of No Interest. TSJA and Exhibitor covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that the only interest of each is to perform and receive benefits as recited in this Agreement. 12 26. Code of Ethics. Exhibitor agrees that officers and employees of the Exhibitor recognize and will be required to comply with the standards of conduct for public officers and employees as 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; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 27. Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes,the participation of the Exhibitor and TSJA in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage,nor shall any contract entered into by the Exhibitor be required to contain any provision for waiver. 28, Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the Exhibitor,when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 29. Legal Obligations and Responsibilities: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to,nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to,nor shall it be construed as,authorizing the delegation of the constitutional or statutory duties of the Exhibitor, except to the extent permitted by the Florida constitution, state statute, and case law. 30. Non-Reliance by Non-Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the Exhibitor and TSJA agree that neither the Exhibitor nor TSJA or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 31. No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Exhibitor in his or her individual capacity, and no member, officer, agent or employee of Exhibitor shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 13 32® Section Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 33. Mutual Review.This agreement has been carefully reviewed by TSJA and the Exhibitor, therefore this agreement is not to be construed against either party on the basis of authorship and Exhibitor execute this Agreement by their duly authorized agents as of the BOARD OF COUNTY COMMISSIONERS N' KEVIN MADOK,CLERK OF MONROE COUNTY,FLORIDA A-, By By- ...... ......... As Deputy Clerk .......................................................... Mayor Rice NROE COOMY NrTOFINEY THE SEWARD JOHNSON ATELIER,INC. PIOVE FORM �A SStuP' NTY ATMRNEY ® vioAQ e: ynn — lmeLosa AN� Da* Title: Program Officer-Collection, Exhibidoffg-dnd-magemenr Exhibit A.- Loaned Sculpture(s) .......... ....................... .... 14 EXHIBIT A Loaned Sculpture(s) Artist and Sculnture Stated Value On Loan to TSJA J. Seward Johnson, Jr.New Friends(I) $350,000 No Exhibit A AC40RL>® DATE(MM/DDNYYY) EVIDENCE OF PROPERTY INSURANCE 1 05/09/2022 THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE ADDITIONAL INTEREST NAMED BELOW.THIS EVIDENCE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE ADDITIONAL INTEREST. AGENCY I PHONE COMPANY Marsh USA Inc. ®� See Attached Participation Schedule 1560 Sawgrass Corporate Pkvvy,Suite 300 Sunnse,FL 33323 CN101724837--PROP-22-23 PROP FAX E-MAIL A/C No): ADDRESS: CODE: SUB CODE: AGCU ENCY INSURED LOAN NUMBER POLICY NUMBER Monroe County See Attached Board of County Commissioners 1111 12th St.,Suite 408 EFFECTIVE DATE EXPIRATION DATE Key West,FL 33040 05101QO22 05/01/2023 T RMINATED IF CHECKED THIS REPLACES PRIOR EVIDENCE DATED: PROPERTYINFORMATION LOCATION/DESCRIPTION Re:3491 S Roosevelt Road Key West Florida 33040. Building Value$2,471,052 Personal Property Value:$155,600 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS EVIDENCE OF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. COVERAGE INFORMATION PERILS INSURED I I BASIC BROAD X SPECIAL COVERAGE/PERILS/FORMS AMOUNT OF INSURANCE DEDUCTIBLF. All risk of direct physical loss or damage,except as otherwise excluded,including Earthquake,Flood,and Boiler and SEE ATTACHED SEE ATTACHED and Machinery,and excluding Terrorism,subject to policy sublimits,terms conditions and exclusions TOTAL INSURABLE VALUE 266,958,616 EARTHQUAKE.$5,000,000 per occ/annual aggregate FLOOD:$10,000,000 per occurrence/annual aggregate NAMED WINDSTORM:$10,000,000 per occurrence Other deductibles may apply per policy terms and conditions. REMARKS(including Special Conditions APPROVED BY RISK MANAGEMENT BY,- DATE 10/4/2022 WAIVER N/A—YES— CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. ADDITIONAL INTEREST ATL004093395.31 NAME AND ADDRESS ADDITIONAL INSURED LENDER'S LOSS PAYABLE LOSS PAYEE MORTGAGEE Key West Airport LOAN d 3491 S Roosevelt Blvd Key West,FL 33040 AUTHORIZED REPRESENTATIVE ACORD 27( 0161 3) 01 3- 016 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD