07/20/2005 Agreement
Monroe County Art in Public Places Award Aereement
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This AGREEMENT dated the 20 day of -:h: I Y 200S, is entered into
by and between the BOARD OF COUNTY COMMISSIONERS FOR MONROE
COUNTY, hereinafter "County," and Terry Thommes, hereinafter "Artist,"
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WHEREAS, the Art in Public Places Ordinance #022-2001, codified at
MCC ~2-322(A), provides for an appropriation of 1 % of the construction costs for new
construction exceeding $500,000 and renovations exceeding $100,000; and
WHEREAS, the Ordinance establishes an Arts in Public Places
(AIPP) Committee to advise the County Commission regarding art to be
acquired and installed in each public construction project subject to the AIPP
allocation; and
WHEREAS, the AIPP Committee has selected and recommended
to the BOCC one or more artists for this proj ect; and
WHEREAS, the Board of County Commissioners of Monroe County
have determined that it is in the interest of the promoting the understanding and
awareness of the visual arts to contract for the creation and installation of artwork in
Freeman Justice Center Building, Key West, Florida.
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 is for the period _July 20, 2005
through 60 days subsequent to date of issuance of Certificate of Occupancy or Certificate
of Completion for building. This agreement shall remain in effect for the stated period
unless one party gives to the other written notification of termination pursuant to and in
compliance with paragraphs 7, 12 and 13 below. All work for which AIPP funds are to be
expended must be completed by the stated termination date.
2. SCOPE OF AGREEMENT. The Artist shall provide
3 sets of etched bronze panels for public-access elevator doors on three floors: lobby,
and two floors above lobby.
$5,500 per door or $11,000 per set
$33,000 total
Artist shall confer with and coordinate activities with the construction contractor on the
job in order to insure that there is as much cooperation and cohesiveness in the
incorporation of the art into the building under construction, and so that there shall be the
least amount of interference between the Artist and the Contractor.
3. AMOUNT OF AGREEMENT AND PAYMENT. The County shall
provide an amount not to exceed $_33,000 for materials and services used to
create and install the project. The Board of County Commissioners assumes no
liability to fund this agreement for an amount in excess of this award. Monroe
County's performance and obligation to pay under this agreement is contingent
upon an annual appropriation by the BOCC. Pursuant to Florida's Prompt
Payment Act, upon receipt by County of an invoice for each of three (3)
phases, and documentation to satisfy the Clerk that the appropriate phase has
been completed, payment shall be made for the following phases at the
referenced rates:
1) Design Phase: 33.3% oftotal payment;
2) Materials: 33.3% of total when artists submits receipts for materials
and eligible costs equal to or greater than 33-1/3% of the contract total; and
3) Completion: 33.3% final payment due when installation is deemed
complete and contractual agreement specifications are verified by the Monroe
County Purchasing Department.
Eligible costs and expenditures for the proiect and the total award include. but
are not limited to:
A. Artists design fee
B. Labor, materials, contracted services required for production and
installation
C. Artists operating expenses related to the project
D. Travel related to this project, pursuant to statutory limitations
E. Transportation of the work to the site
F. Installation to the site
G. Permits and fees necessary for the installation (applicable for exterior
projects which also require HARC review)
H. Legal costs directly related to the project
I. Liability costs of artist
Payment shall be made upon presentation of an invoice and documentation necessary to
support the completion of the work. Artist shall also provide a release of liens if
applicable.
Final payment requests must be submitted no later than 60 days after the completion of
project
4. OWNERSHIP and RIGHTS. Upon the installation of the artwork, County shall own
the artwork and all rights related thereto fully and completely.
5. RECORDS. The Artist shall keep such records as are necessary to document the
performance of the agreement and give access to these records at the request of the
County, the State of Florida or authorized agents and representatives of said
government bodies. The Artist understands that it shall be responsible for repayment
of any and all audit exceptions which are identified by the Auditor General for the
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State of Florida, the Clerk of Court for Monroe County, the Board of County
Commissioners for Monroe County, or their agents and representatives.
6. MODIFICATIONS AND AMENDMENTS. Any and all modifications of the terms
of this agreement shall be only amended in writing and approved by the Board of County
Commissioners for Monroe County.
7. INDEPENDENT CONTRACTOR. 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.
8. COMPLIANCE WITH LAW. In carrying out its obligations under this agreement,
the Artist shall abide by all statutes, ordinances, rules and regulations pertaining to or
regulating the provisions of this agreement, including those now in effect and hereafter
adopted. 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 oftermination to the Artist.
Licensing and Permits. Contractor warrants that it 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.
9. HOLD HARMLESS/INDEMNIFICATION. The Artist hereby agrees to indemnify
and hold harmless the BOCC Florida Keys Council of the Arts, AIPP Committee and any
of its 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.
10. ANTI-DISCRIMINATION. The Artist agrees that they will not discriminate against
any of their employees or applicants for employment or against persons for any benefit or
service because of their race, color, religion, sex, national origin, or physical or mental
handicap where the handicap does not affect the ability of an individual to perform in a
position of employment, and to abide by all federal and state laws regarding non-
discrimination.
11. 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
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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.
12. TERMINATION. This agreement shall terminate pursuant to Paragraph
#l.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 may terminate this agreement without cause upon
giving 90 days written notice of termination to Artist. The County shall not be obligated
to pay for any services or goods provided by Artist after Artist has received written notice
of termination.
13. 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.
14. 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.
15. CONSENT TO JURISDICTION. This agreement, its performance, and all disputes
arising hereunder, shall be governed by the laws of the State of Florida, and both parties
agree that the proper venue for any actions shall be in Momoe County.
16. 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 or 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.
17. 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 on an agreement to provide any goods or services to a public entity, may not
submit a bid on a 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, sub-contractor, or
consultant under a 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
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CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list. Artist represents that Artist is not on the Convicted Vendor list.
18. AUTHORITY: Artist warrants that it is authorized by law to engage in the
performance of the activities encompassed by the project herein described. Each of the
signatories for the Artist below that they are authorized to contract Artist's services.
19. LICENSING AND PERMITS: Artist warrants that he or she 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.
20. 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
of litigation brought against the Artist for such injuries to persons or damage to property
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 this agreement
and for one 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:
1. Workers Compensation if, and as required by Florida Statutes.
2. General Liability Insurance. Coverage shall be maintained through out the life
of the contract and include, as a minimum:
* Premises Operations
* Products and Completed Operations
* Blanket contractual Liability
* Personal Injury Liability
* Expanded Definition of Property Damage
The minimum limits acceptable shall be:
$300,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$100,000 per Person
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$300,000 per Occurrence
$ 50,000 Property Damage
An Occurrence Form policy is preferred. 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.
21. NOTICE. Any written notice to be given to either party under this agreement or
related hereto shall be addressed and delivered as follows:
For Artist
Florida Keys Council of the Arts,
1100 Simonton Street, Key West, FL 33040
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Mr. Terry Thommes
Thommes Studio
6185 SW Gaines Avenue
Stuart, FL 34997
For County:
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and
County Attorney
P.O. Box 1026
Key West, FL 33041-1026
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
e~~~~ay and year first above written.
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fb:(~10\;~"'('; BOARD OF COUNTY
~~:,~~S'Si9~~S ATTEST: DANNY L. KOLHAGE, CLERK OF MONROE
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Deputy Clerk
By:L~# );n ~MJ
Mayor/Chairman
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