Item E27
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: November 19.2008 Division: Engineering
Bulk Item: Yes ~ No - Department: Facilities Development
Staff Contact Person/Phone #: Ann Riger X4439
AGENDA ITEM WORDING: Approval to rescind the contract of June 18, 2008 awarded to
Leonardo Nierman to display a 12' tall sculpture at the Freeman Justice Center, and approval of a
revised contract.
ITEM BACKGROUND: The County will obtain, free of charge, a 12' tall sculpture titled "The Flame
of Wisdom". 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: On June 18, 2008, the BOCC approved of an
Agreement with Leonardo Nierman to display the sculpture at the Freeman Justice Center.
CONTRACT/AGREEMENT CHANGES: The name of the sculpture was changed from "Eternal
Flight" to "The Flame of Wisdom" . The third paragraph". . . the Client is in the final stages of
construction. . ." is changed to ". . . the Client has completed the final stages of construction. . . "The term
of the agreement is revised from June 18,2008 - June 17,2010, to October 15,2008 - October 14,
2010. The term "reproductions" in paragraph 2.01 was changed to "images". The description of a cube
shaped pedestal in paragraph 1.01 is deleted, and in paragraph 1.04 the term "Foundation" was deleted.
STAFF RECOMMENDATIONS: Approval as stated above.
TOTAL COST: Estimated $1.500.00 BUDGETED: Yes_ No X_
Funding available
COST TO COUNTY: Same SOURCE OF FUNDS: 304. Art in Public Places
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REVENUE PRODUCING: Yes_ No X AMOUNT PER MONm_ Year
-
APPROVED BY: County Atty _ OMBlPurchasing _ Risk Management _
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: -1-8tf57Qs lohS'Jor--
Contract Purpose/Description: Expiration Date: r'"1~. 10/1'1/;0.,.---
Otain, on loan, a sculpture for display at the Freeman Justice Center.
Contract Manager: Ann Riger X4549 Facilities DevellStop #1
(Name) 7!!J (Ext. ) (Department/Stop #)
If I J1ki If f l.//oY'
for BOCC meeting on 1 11/1 ~ II::>.IY Agenda Deadline:~
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CONTRACT COSTS
Total Dollar Value of Contract: $ 0.00 Current Year Portion: $ 0.00
Budgeted? YesD NoD Account Codes: - - - -
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Grant: $ N/A - - - -
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County Match: $ N/A - - - -
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- - - -
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ADDITIONAL COSTS
Estimated Ongoing Costs: $~yr For:
(Not included in dollar value above) (eg. maintenance, utilities, ianitorial, salaries, etc.)
CONTRACT REVIEW
..
Changes Date Out
i!~ Needed ~
Division Director I # r YesD No
Risk Manag1ent~ U&.a:s YesO Nor{
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O.M.B.lPurcha: ing l/-Lj .0'"( YesD No _
County Attorney q~ YesO Nol/:}' ~/__ ~ ~
Comments: ::Do AJo7 dt2~ ~ ~L-J... ~ ~ ~ ~
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OMB Form Revised 2/27/01 Mep #2
Agreement @ij
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This agreement entered into this ~h day of ~r, by and between Leonardo Nierman,
Avenue Reforma 16B, San Angel, DF, Mexico 01000 ( The Artist) and the Board of
County Commissioners of Monroe County, Florida (The Client).
WHEREAS, the Artist has created a sculpture entitled "The Flame of Wisdom;" and
WHEREAS, the Client has completed 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 "The Flame of
Wisdom," 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 "The Flame of Wisdom", measuring 12 feet tall.
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 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 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 images 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.
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 October
15,2008, and ending on October 14,2010, 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.
Section 6. Right of Entry. At all time 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.
a. Disputes Regarding Interpretation. The Parties agree that, in the event of a
dispute between them regarding interpretation of the Agreement, the Parties shall attempt
to resolve the dispute by means of a meet and confer session between representatives of
Client and 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.
b. 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.
c. 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.
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 accepted by Florida law, the provisions of Chapter 120, Florida
Statutes, generally require full and public discussion of matters to be voted upon by the
Board of County Commissioners.
Section 11. Florida Public Records Law. Artist agrees that, unless specifically
exempted or accepted by Florida law or Rules and Regulations of The Florida Bar, the
provisions of Chapter 119, Florida Statutes, generally require public 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 allof 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.
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 form the date of being placed on the convicted vendor list. Artist warrants
that neither Artist nor any authorized agent has been named to the convicted vendor list.
Section 17. Anti- Kickback. 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 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,
i
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 SS168l-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 handicaps; 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 patent records; 8)
Title VIII of the Civil Rights Act of 1968 (42 USC SS 3601 et seq.), as amended, relating
to nondiscrimination in the sale, rental or finance of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC SS 1201), as maybe amended from time to time,
relating to nondiscrimination in employment on the basis of disability; 10) Monroe
County Code Chapter 13, Article VI, which prohibits discrimination on the basis of race,
color, sex, religion, national origin, ancestry, sexual orientation, gender identity or
expression, familial status or age; and 11) any other nondiscrimination provisions in any
Federal or state statutes which may apply to the parties to, or the subject matter of, this
Agreement.
Section 20, Authority, Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized by all
necessary action by each respective party. The Client, by executing this Agreement
warrants that the agreement has been approved by the Board of County Commissioners
of Monroe County, Florida. The Client's performance and obligations under this contract
is contingent upon an annual appropriation by the Board of County Commissioners. The
execution, delivery, and performance of this Agreement by Michael Lash has 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 Person Liability, No covenant or obligation contained in this
Agreement shall be deemed to be a covenant or obligation of any member, officer, agent
or employee of the Board of County Commissioners of Monroe County in his or her
individual capacity and no member, officer, agent or employee of the Board of County
Commissioners of Monroe County shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this
Agreement.
Section 22, Execution in Counterparts, This Agreement may be executed in any
number of counterparts, each of which shall be regarded as an original, all of which taken
together shall constitute one and the same instrument and Client and Artist may execute
this Agreement by signing any such counterpart.
!
Section 23, Notice Requirement. Any notices required or permitted to be sent under
this Agreement shall be in writing and shall be hand delivered or sent via certified mail,
return receipt requested, to the following addresses:
For CLIENT: County Administrator
Monroe County
1100 Simonton Street
Key West, FL 33040
With a copy to:
County Attorney
Monroe County
P.O. Box 1026
Key West, FL 33040
For ARTIST: Michael L. Lash
4529 N. Bernard St.
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 political subdivision of the State of Florida as defined in
Chapter 768.28, Florida Statues, 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:
Deputy Clerk Mayor/Chairman
LEO~ARDO NIERM~
By:
Mic ael Lash
MONROE COUNTY ATTORNEY
PPROVED AS T RM:
I
NATllEENE W CASSEL
ASSISTAN~~NTY ATTORNEy
Date /() 0 ~
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