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Item C32 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 18. 2008 Division: Engineering Bulk Item: Yes ---X- No Department: Facilities Development Staff Contact PersonlPhone #: Jeny Barnett X4416 AGENDA ITEM WORDING: Approval of an Agreement with Leonardo Nierman to display a 12' tall sculpture titled "Eternal Flight" at the Freeman Justice Center. ITEM BACKGROUND: The County will obtain, free of charge, a 12' tall sculpture titled "Eternal Flight" situated on a cube shaped pedestal measuring 4' on each side. The County shall pay for the installation of the sculpture and provide premiere vantage of display of the sculpture at the Freeman Justice Center. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval as stated above. TOTAL COST: Installation TBD BUDGETED: Yes -X- No_ COST TO COUNTY: Same SOURCE OF FUNDS: 304. Art in Public Places REVENUE PRODUCING: Yes No X AMOUNT PER MONTH_ Year APPROVED BY: County Atty ~ OMBlPurchasing _ Risk Management l~Y DOCUMENTATION: Included X Not Required_ DISPosmON: AGENDA ITEM # Revised 11/06 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Leonardo Nierman Contract #_ Effective Date: Expiration Date: 06/18/08 June 17,2010 at the Freeman Justice Center. Contract Manager: Ann Riger (Name) X4549 (Ext. ) Facilities DeveVSto #1 (Department/Stop #) for BOCC meetin on 061l8/08 enda Deadline: 06/03/08 CONTRACT COSTS Total Dollar Value of Contract: $ 0.00 Budgeted? YesO No 0 Account Codes: Grant: $ N/ A County Match: $ N/ A Current Year Portion: $ 0.00 - - - - ----- - - - - ----- - - - - ----- - - - - ----- ADDmONAL COSTS Estimated Ongoing Costs: $ !yr For: (Not included in dollar value above) (C2. maintenance, utilities,' . . salaries, etc.) CONTRACT REVIEW Changes Date In Needed Division Director ?~:s -o,&, YesO NoD RiSk~ b-V-oy YesDNoQ' . .' 1 - ~~.B.!Purc~~ fp-'/-dt YesO Nd~ ~' County Attorney t;7ftJoK YesONoE( ~ ~ Date Out Comments: OMB Form Revised W7/0 1 MCP #2 Agreement This agreement entered into this _ day of , 2008, by and between Leonardo Nierman, Avenue Reforma 16B, San Angel, OF, Mexico 01000 (The Artist) and the Board of County Commissioners of Monroe County, Florida (The Client). WHEREAS, the Artist has created a sculpture entitled "Eternal Flight;" and WHEREAS, the Client is in the final stages of construction of a new courthouse known as the Freeman Justice Center; and WHEREAS, the Client desires to obtain on loan and display the sculpture "Eternal Flight," a piece of art by the Artist; and WHEREAS, the Artist is willing and able to provide such work of art. Now, therefore The Client and The Artist agree as follows; Section 1. Rights, Duties and Responsibilities of The Artist 1.01 The Artist shall convey to the Client the following Three- dimensional work of art (the Artwork). Description: A stainless steel sculpture titled "Eternal Flight", measuring 12 feet tall situated on a cube shaped pedestal measuring 4 foot on each side. 1.02 The Artist warrants, represents and covenants that: a. The Artwork is a unique and original product of the Artists' creative efforts. b. The Artwork is one of an edition of three facsimile sculptures. c. The Artwork is free and clear of any claims. 1.03 The Artist shall have exclusive rights to the Artwork, including but not limited to retention of the copyright of the artwork, reproduction rights and all other reproduction rights in and to the Eternal Flight 1 artwork, subject, however to such rights that are granted to the Client in Section 2.01 of this agreement. 1.04 The Artist shall be responsible for any loss or damage of the Artwork except for such damage caused during installation if the installation is negligently performed contrary to the installation directions to be provided by FOUNDATION pursuant to Section 1.07 below. 1.05 The Artist shall correct any defects or materials for a period of one year after date of delivery. 1.06 The Artist recognizes "time is of the essence" and shall perform this agreement in such a manner and with sufficient equipment to complete the artwork by the dates specified herein. 1.07 The Artist will supply the Client plans for the installation of the Artwork. 1.08 The Artist will maintain an insurance policy of at least $100,000.00 USD or the value of the artwork, whichever is greater, covering all possible damages during the Artwork rental, including but not limited to windstorm damage. Section 2. Rights, Duties and Responsibilities of The Client. 2.01 Notwithstanding the provisions of section 1.03 above, the Artist grants permission to The Client to make photographs of the Artwork which may be utilized solely in advertising, catalogues, brochures, programs, media publicity and other non-commercial purposes. The Artist also grants permission for the Client, its employees and contracted agents to utilize photographs for fundraising efforts, promotion of tourism, and sales and marketing brochures for the County. The Client agrees to use any and all photographs in a tasteful manner consistent with the Artists' reputation and professional standing. It is understood that any and all reproductions of the sculpture, in full or in detail, will contain an appropriate credit. 2.02 The Client shall credit the artwork as the product of Leonardo Nierman. 2.03 The Client shall pay for the installation cost of the Artwork. Eternal Flight 2 2.04 The Client shall either store the shipping platform for use of the return of the sculpture to the Artist or his designee or shall rebuild the platform at the Client's cost in order to return the sculpture to the Artist. 2.05 The Client shall take possession of the sculpture and this agreement shall become effective upon delivery and after shipping charges have been paid by Artist or a third party. Section 3, Compensation. 3.01 The Client shall pay no fee of any kind, whether for rental, preparation, handling or reproduction rights, or any other purpose, to the Artist, but shall provide the Artist with the premiere vantage of display of the sculpture at the Freeman Justice Center, Key West, Florida, as consideration under this Agreement. Section 4. Term of Agreement 4.01 The term of this Agreement is a two (2) year period beginning on June 18, 2008, and ending on_June 17, 2010, at the conclusion of which, the Client shall return the sculpture to the Artist in the same appearance and condition as when received, unless the agreement is extended by written addendum executed by both parties. By signing below, the Parties explicitly agree that the rules set forth in section 265.565, Florida Statutes, dealing with circumstances under which works of art shall be treated as unclaimed property, do not apply. Section 5. Termination of Agreement 5.01 This Agreement may be terminated prior to the expiration of the term of the Agreement by either party, but if the Artist is the terminating party, the Artist shall give to the Client sixty (60) days' prior written notice during which time the Client shall return possession of the artwork to the Artist. The Client likewise shall give no less than sixty (60) days' written notice informing the Artist of the premature return of the Artwork. 5.02 Termination shall also occur should the sculpture at any time be removed from the display pedestal without the Client's prior written consent. Eternal Flight 3 Section 6. Right Of Entry. At all times during the regular hours of Court business, the Artist or his designated representative shall have the right to enter the Freeman Justice Center for the purpose of inspecting the artwork. Section 7. Governing Law And Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely within the State. Venue for any legal action which may arise out of or under this Agreement shall be in Monroe County, Florida. Section 8. Dispute Resolution. The parties agree that if a dispute arises between them related this Agreement, neither shall be required to enter into any arbitration proceeding. ~ Disputes Regarding Interpretation. The Parties agree that, in the event of a dispute between them regarding interpretation of the Agreement, the Parties shall attempt to resolve the dispute by means of a meet and confer session between representatives of Client and Artist. If the issue or issues are not resolved to the satisfaction of both Parties within thirty (30) days after the meet and confer session, then either party shall have the right to terminate the Agreement upon ten (10) business days' notice in writing to the other party. ~ Legal or Administrative Proceedings. In the event any administrative or legal proceeding is instituted against either Client or Artist relating to the formation, execution, performance, or breach of this Agreement, both parties agree to participate, to the extent required by the other, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement. Institution of any administrative or legal proceeding shall constitute immediate termination of this Agreement and Client shall return the sculpture in the same manner as specified in paragraph 2, above. Client agrees to forward copies of all documents in its possession related to the matter which is the subject of this Agreement to Artist at the time of filing any administrative or legal proceeding. ~ Attorneys' Fees and Costs. In the event any administrative proceeding or cause of action is initiated or defended by Client or Artist relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees, and court costs as an award against the non-prevailing party. Mediation proceedings initiated and conducted pursuant to this Agreement or as may be required by a court of competent jurisdiction shall be conducted in accordance with the Florida Rules of Civil Procedure and the usual and customary procedures required by the circuit court of Monroe County and shall take place in Monroe County. Eternal Flight 4 Section 9. Entire Agreement. The entire agreement between Client and Artist with respect to the subject matter hereof is contained in this Agreement. This Agreement supersedes all prior oral and written proposals and communications between Client and Artist related to this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their permitted successors and assigns. Section 10. Florida Government-In-The-Sunshine Law. The Artist agrees that, unless specifically exempted or excepted by Florida law, the provisions of Chapter 120, Florida Statutes, generally require full and public discussion of matters to be voted upon by the by the Board of County Commissioners. Section 11. Florida Public Records Law. Artist agrees that, unless specifically exempted or excepted by Florida law or Rules and Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require public access to all records and documents which may be made or received under this Agreement. Section 12. No Assignments. Neither party shall assign or subcontract its obligations under this Agreement, except in writing and with the prior written approval of the other party, which approval shall be subject to such conditions and provisions as the required signor may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement. Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any additional obligation upon either party. Section 13. Severability. If any term, covenant, condition or provision of this Agreement shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provision of this Agreement would prevent the accomplishment of the original intent of this Agreement. Client and 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. Section 14. Captions. The captions set forth herein are for convenience of reference only and shall not define, modify, or limit any of the terms hereof. Eternal Flight 5 Section 15. Monroe County Ethics Provisions. Artist warrants that it has not employed, retained or otherwise had act on its behalf any former MONROE COUNTY officer or employee in violation of Section 2 of Ordinance No. 10-1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10 1990. For breach or violation of this provision Client may, at its discretion, terminate this Agreement without liability and may also, at its discretion, deduct from the sums owed under the Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former or present COUNTY officer or employee. COUNTY employees and officers are required to comply with the standards of conduct delineated in section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business with one's agency, unauthorized compensation, and misuse of public position, conflicting employment or contractual relationship, and disclosure of certain information. Section 16. Public Entity Crime Statement. Florida law provides that any person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on an agreement to provide any goods or services to a public entity, may not submit a bid on an agreement with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under an agreement with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on the convicted vendor list. Artist warrants the neither Artist nor any authorized agent has been named to the convicted vendor list. Section 17. Anti-Kickback. Artist warrants that no person has been employed or retained to solicit or secure this Agreement upon any contract or understanding for a commission, percentage, brokerage or contingent fee, and that no employee or officer of Client has any interest, financially or otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this warranty, Client shall have the right to annul this Agreement without liability or, in its discretion, to deduct any sums to be paid by Client under this Agreement, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. Section 18. Modifications And Amendments. This Agreement may not be modified in any way without the express, written consent of both parties. Any and all modifications and Amendments of the terms of this Agreement shall be in writing and executed by the Board of County Eternal Flight 6 Commissioners for Monroe County and by Artist in the same manner as this Agreement. Section 19. Non-Discrimination. Artist and Client agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. Artist and Client agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 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 99 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 9 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC 99 6101-6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, 99 523 and 527 (42 USC 99 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC 99 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC 99 1201), as maybe amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Section 20. Authority. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary action by each respective party. The Client, by executing this Agreement warrants that the agreement has been approved by the Board of County Commissioners of Monroe County, Florida. The Client's performance and obligations under this contract is contingent upon annual appropriation by the Board of County Commissioners. The execution, delivery, and performance of this Agreement by Michael Lash has Eternal Flight 7 been duly authorized by Leonardo Nierman. This Agreement constitutes a legally valid and binding obligation, enforceable against Leonardo Nierman in accordance with its terms and conditions. Section 21. No Personal Liability. No covenant or obligation contained in this Agreement shall be deemed to be a covenant or obligation of any member, officer, agent or employee of the Board of County Commissioners of Monroe County in his or her individual capacity and no member, officer, agent or employee of the Board of County Commissioners of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. Section 22. Execution In Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and Client and Artist may execute this Agreement by signing any such counterpart. Section 23. Notice Requirement. Any notices required or permitted to be sent under this Agreement shall be in writing and shall be hand delivered or sent via certified mail, return receipt requested, to the following addresses: For CLIENT: County Administrator Monroe County _ 1100 Simonton Street Key West, FL 33040 With a copy to: County Attorney Monroe County PO Box 1026 Key West, FL 33040 Michael L. Lash 4529 N. Bernard St. For ARTIST: Chicago, IL 60625 Section 24. GOVERNMENTAL IMMUNITY: Nothing herein is intended to serve as a waiver of sovereign immunity by Client nor shall anything included herein be construed as consent to be sued by third parties in any matter arising out of this Agreement or any other contract. Client is a Eternal Flight 8 political subdivision of the State of Florida as defined in Chapter 768.28, Florida Statutes, and agrees to be fully responsible for the acts and omissions of its agents or employees to the extent permitted by law. IN WITNESS THEREOF, each party has caused this agreement to be executed on the date first indicated above. ATTEST: DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY: BY: Mario Di Gennaro, Mayor Deputy Clerk LEONARDO NIERMAN BY: Michael Lash Eternal Flight 9