RESOLUTION NO. 2010-43

A RESOLUTION OF THE VILLAGE OF PINECREST, , AUTHORIZING THE MAYOR TO EXECUTE AN IMAGE USE AGREEMENT WITH ART 800, LLC FOR USE OF THE "FLOWER POT" IMAGE FOR THE VILLAGE'S GOING GREEN INITIATIVE; PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, world-famous artist Romero Brito donated the "Flower Pot" to the Village and it is located at the entrance of the Pinecrest Community Center; and

WHEREAS, the Village wishes to use the image of the "Flower Pot" as the logo for Pinecrest's going green initiative;

NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF PINECREST, FLORIDA AS FOLLOWS:

Section I. That the Village Council hereby authorizes the Mayor to execute the attached Image Use Agreement with Art 800, LLC for the use of the "Flower Pot" image to promote the Village's going green initiative.

Section 2. This resolution shall take effect immediately upon adoption.

PASSED AND ADOPTED this 13th day of July, 2010.

Attest:

uido uanzo, Jr., CMC Village /erk

Village Attorney

Moved by: Councilmember Ross Second by: Councilmember Cutler

Vote: Councilmembers Cutler, Harter, Ross, and Mayor Lerner voting Yes IMAGE USE AGREEMENT

THIS IMAGE USE AGREEMENT (hereinafter the "Agreement") is entered into this day of , 2010 (the "Effective Date"), by and between Art 800, LLC., a Florida limited liability company, with its principal office at 818 , Beach, Florida 33139 ("Licensor"), and the Village of Pinecrest, Florida ("Licensee").

Recitals

WHEREAS, Licensor is authorized to grant licenses to third parties for the use of certain images created by Romero Britto (the "Artist") and for the use of his biographical information and portrait in connection with said uses. Licensee desires to obtain a license for the use of a certain image created by the Artist, herein described as the "Flower Pot Image," upon the terms and conditions set forth in this Agreement. A copy of the Flower Pot Image is attached to this Agreement as Exhibit A; and

WHEREAS, Licensee desires to use the Flower Pot Image on certain materials, as specified herein, in connection with the promotion of its Going Green Initiative, including a Green Advisory Council, a Green Action Plan, an Earth Day festival, and a recycling program for Licensee's parks, community center and municipal center (collectively, the "Going Green Initiative").

NOW THEREFORE, in consideration of the mutual covenants of the parties hereto, it is agreed by Licensor and Licensee as follows:

Terms

1. Grant of License; Description of License.

(a) Licensor hereby grants to Licensee a non-exclusive license to use the Flower Pot Image on (i) printed and electronic notifications, advertisements and presentations by Licensee relating to the Going Green Initiative; (ii) recycling materials, posters and bags labeled as "Village of Pinecrest Recycles;" (iii) bags and t-shirts distributed by Licensee in connection with programs and events related to the Going Green Initiative; and (iv) recycling bins to be placed at Licensee's municipal center, community center and parks (collectively, the "Licensed Uses" and the "Licensed Materials" respectively), and to use the Artist's portrait and biographical information, which portrait and information will be provided to Licensee upon request, in connection with the promotion of the Going Green Initiative for the purpose of identifying the Artist as the artist/creator of the Flower Pot Image (the "License"). Licensed Materials shall not be distributed, except as provided for in this Paragraph 1(a). Licensee acknowledges and agrees that the Licensed Materials are for promotional use only, in connection with the Going Green Initiative, and in no event shall the Licensed Materials be offered for resale. Licensee's reproduction of the Flower Pot Image will involve exhibition and/or integration of the Flower Pot Image on or in the Licensed Materials. It is understood and agreed that the Flower Pot

1 Image may be licensed by Licensor to third parties for uses other than the Licensed Uses.

(b) Licensee may not alter the Flower Pot Image in any way without Licensor's permission except for size alterations of the total Flower Pot Image necessary for the particular Licensed Material, subject to Licensor's pre-approval of a prototype or proof of the particular Licensed Material in accordance with Section 6(a) below..

(c) All items of Licensed Materials must be clearly marked with "Copyright Romero Britto." In addition, unless Licensor's prior written consent is obtained the term "www.britto.com" shall be marked on all items of Licensed Materials near the copyright symbol whenever possible.

2. Term. Subject to the provisions of this Section and Section 9, the "Term" of this Agreement shall commence on the Effective Date and shall be concurrent with the term of the current Mayor of the Village of Pinecrest, Mayor Cindy Lerner, and shall expire on Mayor Cindy Lerner's last day in office as the Mayor of the Village of Pinecrest. In no event, however, shall the Term of this Agreement exceed ten (10) years from the Effective Date. Licensee acknowledges that it has no right to renew this Agreement at the end of the Term.

3. No Assignment or Sublicense. This Agreement may not be assigned or sublicensed by Licensee without the prior written consent of Licensor, and any assignments or sublicenses without the written approval of Licensor are void and have no force or effect. Any attempt by Licensee to assign any rights under this Agreement in violation of this Paragraph 3 shall be grounds for immediate termination of this Agreement by Licensor.

4. No Ownership Interest. The License created by this Agreement does not grant to Licensee any ownership interest in the Flower Pot Image or any portion thereof or any images contained in the Flower Pot Image. The License merely grants to Licensee the License to use the Flower Pot Image upon the terms and conditions set forth in this Agreement. Licensee acknowledges that Licensor is the sole and exclusive owner of the Flower Pot Image and related intellectual property and retains all moral, common law and Federal copyrights, trademarks, service marks and any and all other proprietary rights in the Flower Pot Image and related intellectual property and any and all adaptations, treatments, uses and derivative works thereof, including but not limited to registration rights with respect thereto and good will associated therewith. Licensee shall not register the Flower Pot Image or related intellectual property in any venue unless so directed and in accordance with the directions of Licensor. Licensee acknowledges that the goodwill associated with the Flower Pot Image constitutes a valuable property right and the Licensee agrees that it will use its best efforts to preserve the goodwill associated with the Flower Pot Image. Licensee acknowledges that Licensor reservation of all ownership rights in the Flower Pot Image includes the right to use, reproduce, prepare derivative works of or based on, distribute or sell the Flower Pot Image

2 to unrelated third parties. Licensee will adhere to any and all quality standards and usage guidelines established by Licensor from time to time in connection with the License granted hereunder in order to protect, preserve and enhance the Flower Pot Image and the goodwill appurtaining thereto.

5. Licensor Approval; Quality Control.

In order to maintain the reputation and image of the Licensor, it is essential for Licensor to control the quality of the Licensed Materials as follows:

(a) Licensor shall have the right to review the quality of the Licensed Materials to insure the proper use of the Flower Pot Image. Such review shall include, but is not limited, to pre-approval of a proof or prototype of each type of item of the Licensed Materials prior to its initial use or manufacture. Licensee shall deliver a sample item of Licensed Materials to Alina M. Shriver or Caroline R. Cardenas at Licensor's address for approval, and Licensor will provide written approval or disapproval, in its sole discretion, within thirty (30) business days following receipt of the proof or prototype of the item. If the item is disapproved, Licensor shall describe the reason(s) for the disapproval and the parties shall work together to modify the item in order that Licensor may provide approval therefor.

(b) All sales are expressly excluded from this Agreement. A violation of this provision, shall be grounds for immediate termination of this Agreement by Licensor.

6. Representations and Warranties of Licensee. Licensee represents and warrants as follows:

(a) Licensee shall refrain from engaging in any activities that would adversely affect the reputation of the Licensor and/or the Artist.

(b) Licensee shall hold Licensor harmless from any and all claims, suits, actions, costs and/or fees incurred by Licensor which were caused by the actions or omissions of Licensee.

(c) Upon the expiration or termination of this Agreement, Licensee shall immediately cease any and all reproduction, distribution and use of the Flower Pot Image and the Licensed Materials, except for rec cin bins and other items for which the Licensee receives the consent of Licensor, which consent shall not be unreasonably withheld. Any other Licensed Materials remaining in the possession of Licensee following the expiration or termination of this Agreement shall be immediately destroyed and Licensee shall provide Licensor with written confirmation of same within twenty (20) days from the expiration or termination of this Agreement..

(e) Licensee has the full legal right and authority to enter into this Agreement and to undertake the actions to be performed under this Agreement.

3 M The Licensed Materials shall at all times be of high quality in contents and workmanship.

7. Representations and Warranties of Licensor. Licensor represents and warrants as follows:

(a) Licensor is a limited liability company duly organized and validly existing in good standing under the laws of the State of Florida. Licensor has the full legal right and authority to enter into this Agreement and to undertake the actions to be performed under this Agreement.

(b) Licensor has the authority to grant to the Licensee the License created by this Agreement and that grant of the License to Licensee will not violate the rights of any third party with respect to the Flower Pot Image.

8. Termination, Remedies.

(a) Termination by Licensor Upon Notice - No Opportunity to Cure. Licensee will have materially breached this Agreement and Licensor may, at its option, terminate this Agreement, without affording Licensee any opportunity to cure the breach, effective immediately upon Licensee's receipt of notice (which, whether sent by certified mail, registered mail, fax, overnight courier or personal physical delivery, will be deemed to have been received by Licensee upon delivery or first attempted delivery of the notice to Licensee) upon the occurrence of any of the following events:

(i) Licensor and Licensee agree in writing to terminate this Agreement;

(ii) Licensor becomes aware that Licensee has committed any act or become involved in any situation or occurrence which, brings Licensor or the Artist into public disrepute, scandal or ridicule, or shocks or offends the community, or reflects unfavorably upon Licensor or the Artist;

(iii) Licensee uses the Flower Pot Image in a manner not authorized by this Agreement;

(iv) Licensee purports to transfer any rights or obligations under this Agreement to any third party in violation of the terms of this Agreement; or

(v) Licensee conducts any sales of the Licensed Materials.

(b) Termination - 10 Days to Cure. Except as provided above, each party hereto will have ten (10) business days after its receipt from the other party of a written Notice of Termination to remedy any default under this Agreement not specified in the preceding section, including but not limited to the representations and warranties set forth herein. If the breaching party has not cured the default within that time (or, if appropriate, the breaching party has not initiated action to cure the default within that time) or any longer period

4 that applicable law may require, this Agreement will terminate immediately upon expiration of the ten day period, or any longer period required by applicable law.

(c) Licensee acknowledges that a breach by it of any of its agreements contained herein will cause irreparable harm or damage to Licensor, the monetary amount of which would be difficult, if not impossible, to ascertain. Licensee therefore agrees that Licensor and its successors and assigns shall have the right to seek and obtain the remedy of specific performance and/or injunction with respect to any proven violation of any provision of this Agreement, without limiting any other remedy available at law or in equity available to a party in the event of a violation of this Agreement by Licensee. In the event of an actual or threatened breach by Licensee or other persons of any of the provisions set forth in this Agreement, Licensor and its successors and assigns shall be entitled to an injunction restraining Licensee and such other persons from undertaking or continuing the prohibited conduct.

Each party hereto understand and agrees that the remedies provided herein are non-exclusive and cumulative.

9. Notices. Any notice required or permitted to be given under this Agreement shall be in writing; shall be delivered to the other party personally, by certified mail (and return receipt requested, postage prepaid), by a nationally recognized overnight delivery service or by facsimile transmission; and, will be effective on the date that delivery is documented to have been first attempted.

If to Licensor: Art 800, LLC Attn: 818 Lincoln Road Miami Beach, Florida 33139

With copy to: Robert M. Einhorn, Esq. Zarco, Einhorn, Salkowski & Brito, P.A. 100 S.E. 2nd Street, 27th Floor Miami, Florida 33131

If to Licensee: Village of Pinecrest

Attn: Village Manager

12645 Pinecrest Parkway - Pinecrest, Florida 33156

5 With copy to:

or to such other address as either party notifies such other party.

10. Miscellaneous Provisions.

(a) NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS CREATING A JOINT VENTURE OR PARTNERSHIP BETWEEN THE PARTIES. NEITHER PARTY TO THIS AGREEMENT IS AN EMPLOYEE, AGENT, SERVANT, PARTNER OR JOINT VENTURER OF THE OTHER, MEANING THAT, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, NO PARTY TO THIS AGREEMENT HAS THE AUTHORITY, IMPLIED, APPARENT OR EXPRESSED, TO LAWFULLY BIND THE OTHER WITH RESPECT TO ANY MATTER.

(b) Neither the Licensor nor the Licensee, including their employees, is authorized to release any information regarding the terms of this Agreement or any other financial or confidential information without the prior written consent of the other party, except as required by Florida or federal law.

(c) This Agreement contains the entire understanding of Licensee and Licensor and supersedes any previous written and verbal agreements regarding the same.

(d) No modifications, alterations, amendments, or waivers of any provision of this Agreement shall be binding unless such modification, alteration, amendment, or waiver is in writing and signed by Licensor.

(e) This Agreement shall be governed by the laws of the State of Florida.

(f) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, permitted assigns, and legal representatives. This provision shall not be construed to affect the provision elsewhere in this Agreement restricting assignments.

(g) If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys' and paralegal fees, costs and expenses, including fees and costs at the appellate level, in addition to any other relief to which it may be entitled.

(h) Any litigation arising under, out of, or in connection with this Agreement; any breach of this Agreement; the relations between the parties; and, any and all disputes between the parties, whether sounding in contract,

6 tort, or otherwise, shall be instituted exclusively in a court of competent jurisdiction in Miami-Dade County, Florida.

(i) The parties encourage the prompt and equitable settlement of all disputes arising from or in relation to this Agreement. The parties agree to negotiate their differences directly and in good faith for a period of thirty (30) days after receiving notification of the existence of a dispute. If the dispute is not resolved within thirty (30) days, the parties agree to submit their dispute to mediation in accordance with the Commercial or International Mediation Rules of the American Arbitration Association or International Centre for Dispute Resolution, as applicable ("AAA"), as amended and in force as of the date the dispute is brought to the AAA. The place of mediation shall be in Miami-Dade County, Florida. The language to be used in the mediation shall be English. In the event that the dispute or controversy has not been settled by mediation within thirty (30) days, any of the parties may thereafter institute litigation as provided for in this Agreement. Notwithstanding the foregoing, Licensor shall have the right to immediately commence litigation to seek declaratory, temporary, preliminary and/or permanent injunctive relief to enforce the provisions of this Agreement as to Licensee's use of the Flower Pot Image, Licensee's use of the Licensed Materials, or the Licensed Uses.

(j) All parties hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of this Agreement, and in connection with allegations of state or federal statutory violations, fraud, misrepresentation or similar causes of action or any legal action initiated for the recovery of damages for any claims arising out of this Agreement.

IN WITNESS WHEREOF, Licensor and Licensee execute this Agreement.

LICENSOR LICENSEE

ART 800, LLC The Village of Pinecrest, Florida

By: By: Authorized Representative Duly Authorized Name: Cindy Lerner Title: Mayor

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