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Y WEST MARATHON PLANTATION Y
500 Whitehead Street 3117 Overseas Highway 88770 Overseas fthway
Key West, Florida 33040 Marathon, Florida 300 Plantation Key„ Florida 3070
Monroe County Art in Public Places Donation Agreement
This AGREEMENT dated the 19th day of April, 2023, is entered
into by and between MONROE COUNTY, FLORIDA ("COUNTY") or ("BOCC"), a
political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key
West, Florida 33040, and BENJAMIN FAUQUENOT, ("ARTIST"), whose address is 42
Allamanda Avenue, Key West, Florida 33040.
WHEREAS, BENJAMIN FAUQUENOT, has submitted a proposal for a mural
depicting two (2) blue herons done in a `stained glass' style to be located on one of the
walls of the racquetball court at the Clarence S. Higgs Memorial Beach in Key West,
Monroe County, Florida; and
WHEREAS, ARTIST wishes to donate his artwork to Monroe County; and
WHEREAS, the BOCC desires to promote understanding and awareness of the
visual arts and to enrich the public environment for residents and visitors; and
WHEREAS, the BOCC desires to acquire public artwork to be installed, placed,
and/or located at the Clarence S. Higgs Memorial Beach in Key West, Monroe County,
Florida; and
WHEREAS, in conformity with Monroe County Board of County
Commissioners Resolution 152-2013, which establishes a gift policy for donation or
loans of works of art to Monroe County, the ARTIST and his artwork were recommended
for approval by the Art in Public Places Committee ("AIPP") to provide proposed public
artwork for this location.
NOW, THEREFORE, in consideration of the mutual covenants and payments
contained herein, the parties have entered into this agreement on the terms and conditions
as set forth below.
1. AGREEMENT PERIOD: This Agreement shall commence upon approval of the
Agreement by Monroe County and notification to the ARTIST of such approval and shall
terminate upon final completion of the Project which shall be sixty (60) days thereafter,
unless terminated earlier under Paragraphs 15 and 16 of this Agreement.
2. SCOPE OF AGREEMENT: The ARTIST shall perform all services, and provide
and furnish all supplies, materials, and equipment as necessary for transportation,
creation, and installation of artwork as follows:
Artwork: A Mural titled, "Two Blue Herons", as depicted in the ARTIST's Proposal
which is attached hereto as Exhibit A and made part of this Agreement.
ARTIST shall confer with and coordinate activities with John Allen, Director of
Parks & Beaches, in order to ensure that there is as much cooperation and
cohesiveness in the incorporation of the art in or around the structure so that there
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shall be the least amount of interference between the ARTIST and the public and
Monroe County employees.
All work performed under this Agreement shall be done in a professional manner.
County agrees to provide the ARTIST reasonable access to the site to prepare the
public artwork for managing the installation. ARTIST may not obstruct access to the
entrance to the project and ARTIST shall be responsible for securing the installation
site to protect the public from any hazards that may arise during preparation of the
site or installation of the public artwork.
All labor, supplies, materials and equipment under this agreement shall be provided at
the sole cost of the Artist.
Pursuant to Resolution 152-2013, ARTIST shall execute the Certification of the
installation of the artwork and a written Bill of Sale conveying the work to the
COUNTY attached as Exhibit B.
3. REPRESENTATIONS AND WARRANTIES. ARTIST represents and warrants
that the artwork, as fabricated and installed, will be free from defects in material and
workmanship which cause or accelerate deterioration of the artwork and that reasonable
maintenance of the artwork will not require procedures substantially in excess of those
described in the ARTIST's maintenance recommendations or proposal. The warranties
described in this Article shall survive for a period of five (5) years after final acceptance
of the artwork, with periodic required maintenance by the County, according to
instructions provided by the ARTIST. The County shall give written notice to the
ARTIST of any breach of this warranty during the five (5) year period. The ARTIST
shall, at no cost to the County, cure reasonably and promptly the breach of warranty by
means of repair, restoration,refurbishing, re-creation, or replacing the artwork.
ARTIST represents and warrants that ARTIST is the original and only creator of the
Artwork. ARTIST represents and warrants that ARTIST is the sole owner of the
Artwork. ARTIST further represents that ARTIST is the sole owner of any and all
copyrights and other intellectual rights pertaining to Artwork. ARTIST represents and
warrants that the Artwork is free and clear of any liens and that there are no outstanding
disputes in connection with property rights, intellectual property rights, or any other
rights in the Artwork or parts of the Artwork. ARTIST does hereby indemnify and hold
County harmless from and against any and all claims and liabilities that may arise as a
result of any breach of the foregoing representations and warranties.
ARTIST represents to COUNTY that ARTIST has the professional expertise, talent,
experience, and manpower to perform the services to be provided by ARTIST pursuant to
the terms of this Agreement.
All documents, plans, work products, materials, equipment, and tools belonging to
County will be furnished to County upon completion and/or termination of the
agreement,whichever occurs first.
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4. REPAIRS AND RESTORATION. The County reserves the right to determine
when and if repairs and restorations to the artwork will be made after final acceptance.
Repairs and restorations to the artwork occurring five (5) years after the County's final
acceptance of the artwork will be the responsibility and at the expense of the County.
County reserves the right to retain the services of Artist for any future repairs and/or
restorations of the artwork that may become necessary.
S. OWNERSHIP AND RIGHTS: Upon the installation of the artwork and
acceptance by the County, the County shall own the artwork and title to the artwork shall
pass to the County. The ARTIST's signature on this Agreement shall constitute and be
construed as the ARTIST's express waiver of rights as provided in 17 U.S.C. §106A, et.
al., to the extent that the artwork may be removed, adjusted, replaced, and/or relocated, as
deemed necessary by the County without obtaining a waiver or permission from the
ARTIST, and that modification to the artwork resulting from conservation or public
presentation involving lighting and placement is not prohibited modification or
considered alteration, distortion, or mutilation of the artwork. ARTIST agrees that the
County as owner of the building, structure, and/or property that includes the artwork may,
without the consent or permission of the ARTIST, make or authorize the making of
alterations and/or destruction of such building, structure, and/or property. ARTIST agrees
that where the artwork may be created or conceived in any fashion by more than one
author, the ARTIST's signature and waiver binds the entire group of authors/artists.
6. MAINTENANCE OF RECORDS: The ARTIST shall keep such books,
records, and documents directly pertinent to performance under this agreement with
generally accepted accounting principles consistently applied. Records shall be
retained for a period of seven (7) years from the termination of this Agreement or for a
period of three (3) years from the submission of the final expenditure report as per 2
C.F.R. §200.33, if applicable, whichever is greater. Each party to this Agreement or
their authorized representatives shall have reasonable and timely access to such records
of each other party to this Agreement for public records purposes during the term of the
Agreement and for seven (7)years following the termination of this Agreement.
For Public Records requirements see paragraph 24 below.
7. RIGHT TO AUDIT. Availability of Records. The records of the parties to this
Agreement relating to the Project, which shall include but not be limited to accounting
records (hard copy, as well as computer readable data if it can be made available;
subcontract files (including proposals of successful and unsuccessful bidders, bid recaps,
bidding instructions, bidders list, etc.); original estimates; estimating work sheets;
correspondence; change order files (including documentation covering negotiated
settlements); backcharge logs and supporting documentation; general ledger entries
detailing cash and trade discounts earned, insurance rebates and dividends; any other
supporting evidence deemed necessary by County or the Monroe County Office of the
Clerk of Court and Comptroller(hereinafter referred to as"County Clerk") to substantiate
charges related to this agreement, and all other agreements, sources of information and
matters that may in County's or the County Clerk's reasonable judgment have any
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bearing on or pertain to any matters, rights, duties or obligations under or covered by any
contract document (all foregoing hereinafter referred to as "Records") shall be open to
inspection and subject to audit and/or reproduction by County's representative and/or
agents or the County Clerk. County or County Clerk may also conduct verifications such
as, but not limited to, counting employees at the job site, witnessing the distribution of
payroll, verifying payroll computations, overhead computations, observing vendor and
supplier payments, miscellaneous allocations, special charges, verifying information and
amounts through interviews and written confirmations with employees, Subcontractors,
suppliers, and contractor's representatives. All records shall be kept for ten (10) years
after Final Completion of the Project. The County Clerk possesses the independent
authority to conduct an audit of Records, assets, and activities relating to this Project. If
any auditor employed by the Monroe County or County Clerk determines that monies
paid to CONTRACTOR pursuant to this Agreement were spent for purposes not
authorized by this Agreement or were wrongfully retained by the CONTRACTOR, the
CONTRACTOR shall repay the monies together with interest calculated pursuant to
Section 55.03, Fla. Stat., running from the date the monies were paid to CONTRACTOR.
The right to audit provisions survive the termination or expiration of this Agreement.
8. MODIFICATIONS AND AMENDMENTS: Any and all modifications of the
terms of this Agreement shall be only amended in writing and approved by the BOCC.
Extensions of time to complete any terms or conditions of this Agreement must be made
in writing and may be approved only by the BOCC, which said consent shall not be
unreasonably withheld.
9. ASSIGNMENT/SUBCONTRACT. ARTIST shall not assign or subcontract its
obligations under this Agreement to others, except in writing and with the prior written
approval of the Board of County Commissioners of Monroe County, which approval
shall be subject to such conditions and provisions as the Board 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 the Board.
10. INDEPENDENT ARTIST: 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
construed 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.
11. NON-WAIVER OF IMMUNITY: Notwithstanding the provisions of Sec. 768.28,
Florida Statutes, the participation of COUNTY and ARTIST 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 Agreement entered into by the
COUNTY be required to contain any provision for waiver.
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12. COMPLIANCE WITH LAW: In carrying out its obligations under this
agreement, the ARTIST shall abide by all laws of the Federal and State government,
statutes, ordinances, rules, and regulations pertaining to or regulating the provisions of
this agreement, including those now in effect and hereafter adopted. Compliance with all
laws includes, but is not limited to, the immigration laws of the Federal and State
government. 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.
13. HOLD HARMLESSIINDEMNIFICATION: The ARTIST hereby agrees to
indemnify and hold harmless the BOCC, AIPP Committee and Monroe County and any
of their 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. Artist will, at
Artist's own cost and expense, defend and protect the County against any and all such
claims or demands which may be claimed to have arisen as a result of or in connection
with the Artwork. This indemnification shall survive the termination or expiration of this
Agreement.
14. 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 or violation of this warranty, the County shall have
the right to annul this agreement without liability or, in its discretion, to deduct from the
agreement price or consideration, the full amount of such commission, percentage,
brokerage or contingent fee.
15. 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 and ARTIST may terminate this Agreement without
cause upon giving five (5) days' written notice of termination to the other party. The
County shall not be obligated to pay for any services or goods provided by ARTIST after
ARTIST has received written notice of termination.
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16. 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. For Contracts of any amount, if the County
determines that the Contractor/Consultant has submitted a false certification under
Section 287.135(5), Florida Statutes or has been placed on the Scrutinized Companies
that Boycott Israel List, or is engaged in a boycott of Israel, the County shall have the
option of (1) terminating the Agreement after it has given the Contractor/Consultant
written notice and an opportunity to demonstrate the agency's determination of false
certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or (2)
maintaining the Agreement if the conditions of Section 287.135(4), Florida Statutes, are
met.
17. 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 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 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.
18. 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, proposal, or reply on a contract to provide any goods or services to a public
entity, may not submit a bid, proposal, or reply on a contract 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 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, for CATEGORY TWO for a period of thirty-six (36)
months from the date of being placed on the convicted vendor list." ARTIST represents
that ARTIST is not on the Convicted Vendor list.
19. LICENSING AND PERMITS: ARTIST warrants that he 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. ARTIST shall
possess proper licenses to perform work in accordance with these specifications
throughout the term of this Agreement.
20. DISCLOSURE AND CONFLICT OF INTEREST. ARTIST represents that it, its
directors, principals and employees, presently have no interest and shall acquire no
interest, either direct or indirect, which would conflict in any manner with the
performance of services required by this contract, as provided in Sect. 112.311, et. seq.,
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Florida Statutes. COUNTY agrees that officers and employees of the COUNTY
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.
Upon execution of this contract, and thereafter as changes may require, the ARTIST shall
notify the COUNTY of any financial interest it may have in any and all programs in
Monroe County which the ARTIST sponsors, endorses, recommends, supervises, or
requires for counseling, assistance, evaluation, or treatment. This provision shall apply
whether or not such program is required by statute, as a condition of probation, or is
provided on a voluntary basis.
21. INSURANCE: 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 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 the
agreement and for one (1)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 the 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 given 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 by law.
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:
Workers' Compensation if, and as required by Florida Statutes. If the Artist has no
employees as defined by Florida Statutes and Regulations, the Artist shall submit a letter
stating that he or she is exempt from this requirement.
General Liability Insurance. Coverage shall be maintained throughout the life of the
contract and include, as a minimum:
• Premises Operations
• Products and Completed Operations
• Blanket Contractual Liability
• Personal Injury Liability
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• Expanded Definition of Property Damage
The minimum limits acceptable shall be:
$300,000 Combined Single Limit(CSL)
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.
23.NON-WAIVER OF IMMUNITY: Notwithstanding the provisions of Sec. 768.28,
Florida Statutes, the participation of COUNTY and ARTIST 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 Agreement entered into by the
COUNTY be required to contain any provision for waiver.
24. PUBLIC RECORDS COMPLIANCE: ARTIST must comply with Florida public
records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of
Article I of the Constitution of Florida. The County and ARTIST shall allow and permit
reasonable access to, and inspection of, all documents, records, papers, letters or other
"public record" materials in its possession or under its control subject to the provisions of
Chapter 119, Florida Statutes, and made or received by the County and ARTIST in
conjunction with this contract and related to contract performance. The County shall
have the right to unilaterally cancel this contract upon violation of this provision by the
ARTIST. Failure of the ARTIST to abide by the terms of this provision shall be deemed a
material breach of this contract and the County may enforce the terms of this provision in
the form of a court proceeding and shall, as a prevailing party, be entitled to
reimbursement of all attorney's fees and costs associated with that proceeding. This
provision shall survive any termination or expiration of the contract.
The ARTIST is encouraged to consult with its advisors about Florida Public Records
Law in order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the ARTIST is
required to:
(1) Keep and maintain public records that would be required by the County to
perform the service.
(2) Upon receipt from the County's custodian of records, provide the County
with a copy of the requested records or allow the records to be inspected
or copied within a reasonable time at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as
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authorized by law for the duration of the contract term and following
completion of the contract if the contractor does not transfer the records to
the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all
public records in possession of the ARTIST or keep and maintain public
records that would be required by the County to perform the service. If the
ARTIST transfers all public records to the County upon completion of the
contract, the ARTIST shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. If the ARTIST keeps and maintains public records upon
completion of the contract, the ARTIST shall meet all applicable
requirements for retaining public records. All records stored electronically
must be provided to the County, upon request from the County's custodian
of records, in a format that is compatible with the information technology
systems of the County.
(5) A request to inspect or copy public records relating to a County contract
must be made directly to the County, but if the County does not possess
the requested records, the County shall immediately notify the ARTIST of
the request, and the ARTIST must provide the records to the County or
allow the records to be inspected or copied within a reasonable time.
If the ARTIST does not comply with the County's request for records, the County shall
enforce the public records contract provisions in accordance with the contract,
notwithstanding the County's option and right to unilaterally cancel this contract upon
violation of this provision by the ARTIST. An ARTIST who fails to provide the public
records to the County or pursuant to a valid public records request within a reasonable
time may be subject to penalties under Section 119.10, Florida Statutes.
The ARTIST shall not transfer custody,release, alter, destroy or otherwise dispose of any
public records unless or otherwise provided in this provision or as otherwise provided by
law.
IF THE ARTIST HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
ARTIST'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, BRIAN BRADLEY AT PHONE NO. 305-292-3470,
BRADLEY-BRIAN(?u,MONROECOUNTY-FL.GOV, MONROE
COUNTY ATTORNEY'S OFFICE, 111112TH Street, SUITE 408, KEY
WEST, FL 33040.
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25.RISK OF LOSS: Risk of loss or damage to the artwork shall be borne by the
ARTIST until acceptance of the artwork by the County after receipt of the ARTIST
certification. The ARTIST shall carry insurance sufficient to cover the purchase price of
the artwork to cover risk of loss or damage to the artwork until final acceptance by the
County. The Artist shall take such measures as are reasonably necessary to protect the
artwork from loss or damage.
26.NONDISCRIMINATION: COUNTY and ARTIST 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. COUNTY or ARTIST agrees 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 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
ss. 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 s. 794), which
prohibits discrimination on the basis of disability; 4) The Age Discrimination Act of
1975, as amended (42 USC ss. 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, ss. 523 and 527 (42 USC ss.
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 s. 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 s. 12101 Note), as may be amended
from time to time, relating to nondiscrimination 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.
27.NO SOLICITATION/PAYMENT. COUNTY and ARTIST warrant that, in
respect to itself, it has neither employed nor retained any company or person, other than a
bona fide employee working solely for it, to solicit or secure this Agreement and that it
has not paid or agreed to pay any person, company, corporation, individual, or firm, other
than a bona fide employee working solely for it, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this
Agreement. For the breach or violation of the provision, the ARTIST agrees that the
COUNTY shall have the right to terminate this Agreement without liability and, at its
discretion, to offset from monies owed, or otherwise recover, the full amount of such fee,
commission,percentage, gift, or consideration.
Page 10 of 16
28.NO PLEDGE OF CREDIT: ARTIST shall not pledge the COUNTY'S credit or
make it a guarantor of payment or surety for any contract, debt, obligation, judgment,
lien, or any form of indebtedness. ARTIST further warrants and represents that it has no
obligation or indebtedness that would impair its ability to fulfill the terms of this contract.
29.TAXES: COUNTY is exempt from payment of Florida State Sales and Use taxes.
ARTIST shall not be exempted by virtue of the COUNTY'S exemption from paying sales
tax to its suppliers for materials used to fulfill its obligations under this contract, nor is
ARTIST authorized to use the COUNTY'S Tax Exemption Number in securing such
materials. ARTIST shall be responsible for any and all taxes, or payments of withholding,
related to services rendered under this Agreement.
30.NOTICE: All written correspondence to the COUNTY shall be dated and signed
by an authorized representative of the ARTIST. Any written notices or correspondence
required or permitted under this Agreement shall be sent by United States Mail, certified,
return receipt requested, postage pre-paid,or by courier with proof of delivery. The place
of giving Notice shall remain the same as set forth herein until changed in writing in the
manner provided in this paragraph. Notice is deemed received by ARTIST when hand
delivered by national courier with proof of delivery or by U.S. Mail upon verified receipt
or upon the date of refusal or non-acceptance of delivery. Notice shall be sent to the
following persons:
For ARTIST For County
Ben Fauquenot County Administrator
42 Alamanda Avenue 1100 Simonton Street
Key West, FL 33040 Key West, FL 33040
and
County Attorney
P.O. Box 1026
Key West, FL 33041-1026
31.AUTHORITY: ARTIST warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each parry
represents and warrants to the other that the execution, delivery, and performance of this
Agreement have been duly authorized by all necessary COUNTY and corporate action,
as required by law. Each party agrees that it has had ample opportunity to submit this
Contract to legal counsel of its choice and enters into this Agreement freely, voluntarily,
and with advice of counsel.
32. CLAIMS FOR FEDERAL OR STATE AID: ARTIST and COUNTY agree that
each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to
further the purpose of this Agreement; provided that all applications, requests, grant
proposals, and funding solicitations shall be approved by each party prior to submission.
Page 11 of 16
Any conditions imposed as a result of funding that affect the Project will be provided to
each party.
33.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 COUNTY, 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.
34. 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 COUNTY, except to the extent permitted by the Florida constitution, state
statute, and case law.
35.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 COUNTY and the ARTIST agree that neither the COUNTY nor the
ARTIST 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.
36.ATTESTATIONS: ARTIST agrees to execute such documents as the COUNTY
may reasonably require, to include, but not limited to, a Scrutinized Companies Affidavit,
Public Entity Crime Statement, an Ethics Statement, Non-Collusion Statement, a Drug-
Free Workplace Statement attached hereto as Exhibit C.
37.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
Monroe County in his or her individual capacity, and no member, officer, agent or
employee 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.
38. 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.
Page 12 of 16
39.AGREEMENTS WITH SUBCONTRACTORS: In the event that the ARTIST
subcontracts any or all of the work in this Project to any third party, the ARTIST
specifically agrees to identify the County as an additional insured on all insurance
policies required by the County. In addition, the ARTIST specifically agrees that all
agreements or contracts of any nature with its subcontractors shall include the County as
additional insured.
40. E-VERIFY SYSTEM: Beginning January 1, 2021, in accordance with Fla. Stat.,
Sec. 448.095, if applicable, the ARTIST and any subcontractor shall register with and
shall utilize the U.S. Department of Homeland Security's E-Verify system to verify the
work authorization status of all new employees hired by the ARTIST during the term of
the Contract and shall expressly require any subcontractors performing work or providing
services pursuant to the Contract to likewise utilize the U.S. Department of Homeland
Security's E-Verify system to verify the work authorization status of all new employees
hired by the subcontractor during the Contract term. Any subcontractor shall provide an
affidavit stating that the subcontractor does not employ, contract with, or subcontract
with an unauthorized alien. The ARTIST shall comply with and be subject to the
provisions of Fla. Stat., Sec. 448.095.
41. CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed
more strictly against one party than against another merely by virtue of the fact that it
may have been prepared by one of the parties, it being acknowledged that both the
ARTIST and the COUNTY have substantially and materially contributed to the
preparation thereof.
42.COVENANT OF NO INTEREST: COUNTY and ARTIST 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 only interest of
each is to perform and receive benefits as recited in this Agreement.
43.UNCONTROLLABLE CIRCUMSTANCEIFORCE MAJEURE: Any delay or
failure of either Party to perform its obligations under this Agreement will be excused to
the extent that the delay or failure was caused directly by an event beyond such Party's
control, without such Party's fault or negligence and that by its nature could not have
been foreseen by such Party or, if it could have been foreseen, was unavoidable: (a) acts
of God; (b) flood, fire, earthquake, explosion, tropical storm, hurricane or other declared
emergency in the geographic area of the Project; (c) war, invasion, hostilities (whether
war is declared or not), terrorist threats or acts, riot, or other civil unrest in the geographic
area of the Project; (d) government order or law in the geographic area of the Project; (e)
actions, embargoes, or blockades in effect on or after the date of this Agreement; (f)
action by any governmental authority prohibiting work in the geographic area of the
Project; (each, a "Uncontrollable Circumstance"). ARTIST'S financial inability to
perform, changes in cost or availability of materials, components, or services, market
conditions, or supplier actions or contract disputes will not excuse performance by
ARTIST under this Section. ARTIST shall give COUNTY written notice within seven
(7) days of any event or circumstance that is reasonably likely to result in an
Page 13 of 16
Uncontrollable Circumstance, and the anticipated duration of such Uncontrollable
Circumstance. ARTIST shall use all diligent efforts to end the Uncontrollable
Circumstance, ensure that the effects of any Uncontrollable Circumstance are minimized
and resume full performance under this Agreement. The COUNTY will not pay
additional cost as a result of an Uncontrollable Circumstance. The ARTIST may only
seek a no cost Change Order for such reasonable time as the County's Representative
may determine.
44.FURTHER ASSURANCES: The parties shall promptly execute all documents
reasonably required and take such other steps in addition to the execution of this
Agreement to effectuate the intent and purpose of this Agreement.
45.ADJUDICATION OF DISPUTES OR DISAGREEMENTS; MEDIATION:
COUNTY and ARTIST agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties. If
the issue or issues are still not resolved to the satisfaction of the parties, then any party
shall have the right to seek such relief or remedy as may be provided by this Agreement
or by Florida law. This Agreement is not subject to arbitration. This provision does not
negate or waive the provisions of Paragraphs 15 and 16 of this Agreement concerning
termination or cancellation.
The COUNTY and ARTIST 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.
46. GOVERNING LAVA, VENUE, AND INTERPRETATION: This Agreement shall
be governed by and construed in accordance with the laws of the State of Florida
applicable to Agreements made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the COUNTY and ARTIST agree that venue will lie in
the appropriate court or before the appropriate administrative body in Monroe County,
Florida. The Parties waive their rights to trial by jury.
47.ATTORNEY FEES AND COSTS: The COUNTY and ARTIST 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, at all levels of the court
system, and shall including in appellate proceedings.
48. 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 provisions of this Agreement, shall not be affected
Page 14 of 16
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 provisions of this
Agreement would prevent the accomplishment of the original intent of this Agreement.
The COUNTY and ARTIST 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.
49.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
agreements with respect to such subject matter between the COUNTY and the ARTIST.
50. 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 any authorized representative
of COUNTY and ARTIST hereto may execute this Agreement by signing any such
counterpart.
51.EFFECTIVE DATE: This Agreement shall become effective ("Effective Date")
upon the date this Agreement is approved by the BOCC.
[SIGNATURES ON NEXT PAGE]
Page 15 of 16
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed
on the day and date first above written,
n, by the ARTIST' must be by a person with authority to bind the entity.
of the person executing the document must be notarized and witnessed- by
'cer of the entity,or by two other witnesses.
BOARD OF COUNTY COMMISSIONERS
_'4.EVIN MADOK, CLERK OF NROE NTY, FLORIDA
By: By:
. .............
�seputV C','I,C..T..k� ayodc6i!�A V4 rman
D,AT
WITNESSES- ARTIST: BENJAMIN FAUQUENOT
Signature St Sign re
...............
Print Name Print Nam' k.
DATE. DATE-
Sign ,
.,Z"44
0 b tie,
Print Name ,
DATE: j Mr rTI
ao
STATE OF FLORIDA CZ)
COUNTY OF MONROE
The foregoing instrument was acknowledged before me by means of physica+
presence, or onli , notarization, this_Lq� day of 20,23,,* 5;
autborized person of
�61M " I I -
day
of
of
behalf of the om any.
7—
S
t Public-
12na u of otary
& Signa of' otary Public-State of Florida
ON r
I Ej,"N7.
'CIA
axne of Notary
PersomallyKnown OR Produced Id nfification
Type of Identification
Produced '" _..� � � � � �P0
Page 16 of 16
lbl�tll�il1 A
1 /
42 llarnda Ave
Key West,FL 33040
(707) 7 -7477
wallstarsdesign@gmaii.com
March 2 ,202
To Whom This May Concern,
I am writing to Monroe County Parks and Beaches, the County Commission,and the people of Monroe County for
consideration of a public artwork for permanent donation. My name is Benjamin Fauquenot. I am a local artist and
founder of Wall Stars Design, LLC. 1 am a muralist specializing in wildlife paintings with a stained glass aesthetic. My
current portfolio is available at Wall starsdesign.com.
I have been awarded the Anne McKee Artist Fund Grant for 2022 and am currently looking for a location for a public art
project. I am interested in installing an original aerosol art mural titled Two Blue Herons measuring 24'X14'.This work will
be completed in aerosol acrylic on concrete with a marine grade UV protestant clear coat.With your help the proposed
mural would be featured on the north east wall of the racquetball courts at Higgs Beach(facing White St)The mural will
feature two blue herons in my signature stained glass style with the intention of increasing awareness and conservation of
our native wildlife.
The project will be completed between May 1,2023 and June 1,2023.All paint and supplies will be paid for by the grant.
This project will require a hydraulic scissor lift to complete. I have completed extensive safety and fall prevention in my
previous employment as an electrician and am able to obtain insurance for this project should you require it.
As a project funded by the Anne McKee Artist Grant Foundation I am required to include recognition for them in this
project.A small plaque will be installed by the artist at the mural site providing such recognition.
Thank you for your time and consideration of this offer. Please feel free to contact me with any questions you may have.
Best regards,
Benjamin Fauquenot
Owner,Wall Stars Design
Artist: Benjamin Fauquenot
Title:Two Blue Herons
Size:2 `X1
Location: Higgs Beach Memorial Park, Racquetball Courts North Eastfacing all
Date: May 1,2 23®June 1, 20
Medium:Aerosol Acrylic on PaintedConcrete
Lifetime i to ce Cost: Every 5 years the mural should be lightly ssure washed and recoated with
marine grade clear c UJll protectant, We recommend e i illi Isar,currently estimated at
1 / gal. Estimated paintadd to recoat is 1 gallon of ai t. Estimated time to complete the maintenance
is 4 hours total.
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n�T
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EXHIBIT C
NON-COLLUSION AFFIDAVIT
1, aA1of the city of
accordin olawonqiy th, and under penalty Of pe&_,'Iepo�seand�say that ���
w' yw'a��J ' 'VwAJ'"J '4"'�al the project described in the notice for calling for
t1l nepr!p�oeseri�nggflhie�Propos for�tlie"W�Oject d�escri
proposals for:
and that I executed the said proposal with full authority to do so;
2. The prices in this proposal have been arrived at independently without collusion,
consultation,communication or agreement for the purpose of restricting competition,as to
any matter relating to such prices with any other proposer or with any competitor; and
3. Unless otherwise requiredby law,the prices which have been quoted in this proposal have
not been Imowingly disclosed by the proposer and will not knowingly be disclosed by the
proposer prior to proposal opening, directly or indirectly, to any other proposer or to any
competitor; and
4. No attempt has been made or will be made by the proposer to induce any other person,
partnership or corporation to submit, or not to submit, a proposal for the purpose of
restricting competition; and
5. The statements contained in tins affidavit are true and correct and made with full
knowled e that Monroe County relies upon the truffi of the statements contained in this
��c rs davit awarding contracts for said project.
ops o
(Sign*a oer) (Date
A
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was sworn to (or affirmed) and subscribed b f re me by means of[4/1
physical presence or o *ne notarization this_Z-
day of 2023,by
pe RHEA 0 M
4 Ica
Signature of Notary Public-State of Florida
2025
Assn
Personally Known OR Produced,Identification
Type of Identification
Produced
Page I of 6
LOBBYING AND CONFLICT OF INTEREST CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO. 010-1990
MONROE COUNTYs FLORIDA
ETHICS CLAUSE INN
j : 11-ii 'li P11
it
Vatrl
... warrants that he/she/it has not employed,retained or otherwise had act on his/her/its behalf
any fortner County officer or employee in violation of Section 2 of Ordinance No. 010-1990 or
any County officer or employee in violation of Section 3 of Ordinance No. 0 10-1990. For breach
or violation of this provision the County may, in its discretion, terminate this contract without
liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise
recover, the full amount of any fee, commission, percentage, git or consideration paid to the
'former County officer or employee".
(Sig�natj,�e)
Date:.
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing ins was sworn to (or affirmed) and subscribed be ore me by means of W
line notarization this ,1 day of 2023,by
_Z Si Not Public.-State of Florida
of,;Iorica
135216
0 a Assn. NaMe of
��%E otary
A2hd2k%1hWe*A%i
ROLANDO M GWA.
My Commission Expires:Ad4
Personally Known OR Produced Identification
Type of Identification DVI-
Produced
Page 2 of 6
DRUG-FREE WORKPLACE FORM
The-undersigned vendor in accordance with Florida�tatute, Sec. 287.087 hereby certifies that:
N�w
(Name'of Proposer)
1. Publishes a statement notifying employees that the -unlawful manufacture, distribution,
dispensing,possession,or use of a controlled substance is prohibited in the workplace and
specifying the actions that will be taken against employees for -violations of such
prohibition,
2. Informs employees about the dangers of drug abuse in the workplace, the business's policy
of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and
employee assistance programs, and the penalties that may be imposed upon employees for
drug abuse violations.
3. Gives each employee engaged in providing the commodities or contractual services that
are-under proposal a copy of the statement specified in subsection(1).
4. In the statement specified in subsection(1), notifies the employees that, as a condition of
working on the commodities or contractual services that are under proposal,the employee
will abide by the terms of the statement and will notify the employer of any conviction of,
or plea of guilty or nolo contendere to, any violation of Chapter 893 (Florida Statutes) or
of any controlled substance law of the United States or any state, for a violation occurring
in the workplace no later than five(5)days after such conviction,
5. Imposes a sanction on or requires the satisfactory participation in a drug abuse assistance
or rehabilitation program if such is available in the employee's community, for any
employee who is so convicted.
6. Makes a good faith effort to continue to maintain a drug-free workplace through
implementation of this section.
As the person authorized to sign the statement,I c that s firm complies fully with the above
requirements. at
P s �S' at�ure ..
0
............ pose
STATE OF FLORIDA Date
COUNTY OF MONROE
The foregoing instrument was sworn to (or affirmed) and subscribed be o e by means of 1Q1111
ph :cal prreence or o ne notarization this, Z.27-_ ay Of 2023,by
Z
ROLANDO m GGNZA 9i'ji raW_R loot ary Public-State of Florida
Notary Public State of orca
Commission
my Comm.Expires May 2T 2025
Boncec through Nattonai sotary ASsr.
Name otNot—ary—
My Commission Expires: � �" 20_157
Personally Known OR Produced Identification
Type of Identification
Produced,C2r1_0C_7__
Page 3 of 6
P'UBIJC 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,proposal,or reply on a contract to provide any goods or
services to a public entity, may not submit a bid, proposal, or reply on a contract with a public
enCity for the construction or repair of a public building or public work, may not submit bids on
leases of real property to a public entity, may not be awarded or perform work as a contractor,
supplier,subcontractor,or consultant-under a contract with any public entity,and may not transact
business with any public entity in excess of the threshold amount provided in Section 287.017,
Florida Statutes, for CATEGORY TWO for a period of thirty-six (36) months from the date of
being placed on the convicted vendor list."
I have read the above and state that neither
(Proposer's name)nor any Affiliate has been lac the eft7pvicted venVo- r- list within the last
thirty-six(36)months.
(Signature)
Date:
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was sworn to (or affirmed) and sub, ibed b9foore me by means of[Ly
physical preyence or[] qn1me notarization this d IV
ay of ?1-17-101, 2023,by
ROLANDO NZALEZ
Siiiafiu_?&�otary Public-State of Florida
M GO
State of Florida
& Notary Public
Commission HM 135216
INNS Y/1, �t
my Comm,Wires may 27,2025
eondea through National NotM Assn. e_ oTNNota_ry
My Commission Expires: V aA
Personally Known OR Produced Identification
Type of Identification L)a
Produced ar
Page 4 of 6
VENDOR CERTI141CATION REGARDING SCRUTINIZED COMPANIES LISTS
Project DeSeription(S):
Respondent Vendor Name:— rN
Vendor RR.
Vendor's Authorized Representative Name and Title:
Address: 1) a
n626,
city: State: L, zip: �53CAO
Phone T4urnberK--JM)MZ -I(All Email Address:w-a
Section 287.135, Florida Statutes prohibits a company froin bidding on, submitting a proposal for, or
entering into or renewing a contract for goods or services of any amount if, at the time of contracting or
renewal,the company is on the Scrutinized Companies that Boycott Israel List,created pursuant to Section
215.4725,Florida Statutes,or is engaged in a Boycott of Israel.
As the person authorized to sign on behalf of Respondent, I hereby certify that the company identified
above in the Section entitled"Respondent Vendor Name" is not listed on the Scrutinized Companies that
Boycott Israel List.
I understand that pursuant to Section 287.135,Florida Statutes,the submission of a false certification may
subject company to civil penalties,attorney's fees,and/or costs.I further understand that any contract with
the COUNTY may be terminated,at the option of the COUNTY,if the company is found to have submitted
a false certification or has been placed on the Scrutinized Companies that Boycott Israel List or engaged in
aboycott of Israel.
Certified B y who is authorized to sign
on behalf of the above en company.t
Authorized Si :e:
Print Name:
Title:
Note:The List are available at the following Department of Management Services Site:
on/convicted sus
pMded discriminator co m taints vendor listsX_—_p
Page 5 of 6
MONROE COUNTY,FLORIDA
REQUEST FOR WAIVER OF INSURANCE REQUIREMENTS
It is requested that the insurance requirements,as specified in the County's Schedule of Insurance
Requirements,be waived or modified on the following contract.
Corn tractorNendor: *k
Project or Service:
Contrac torte endor
Address&Phone#:
General Scope of Work:
Reason for Waiver or ANS2� !2 1Ar6.%-Q �rho—
Modification: gi
Ys -
I �and 0 A�
Policies Waiver or
Modification will apply to:
I gililii
of Corn tractorNendor:
Date: Approved— of Approved
Risk Management Signa
Date:—
County Achnimstrafor appeal:
Approved: Not Approved:
Date:
Board of County Commissioners appeal:
Approved- Not Approved:
Meeting Date:
Page 6 of 6