Item 8BAGENDA ITEM # 8B
AUGUST 27, 2007
._. ~.~.,TIC BEACH PUBLIC ART'S COMMISSION,INC.
August 20, 2007
Mr. Jim Hanson
City of Atlantic Beach
800 Seminole Road
Atlantic Beach, Florida 32233
Dear Mr. Hanson,
This is a request to have the funds released for the public art sculpture, "In Search Of
Atlantis", of which the artist rendering is enclosed. The funds, in the amount of
$45,000.00, have been budgeted for the past two years and have been taken from the "bed
tax" account. This is a bronze sculpture by the very talented artist, Kristen Visbal of New
Hampshire. Also enclosed is a copy of the contract from Ms. Visbal along with an
insurance policy with all the necessary coverage.
Jacksonville City Councilman, Art Graham, knowing the importance of art in public
places and following the lead of Jacksonville's "Art In Public Places Program", has
generously donated $50,000.00 toward this project, of which a copy of the check and
contract are enclosed.
As you are aware, arts and culture have successfully spurred the revitalization of many
cities across America, attracting tourists and positively impacting learning and literacy
while all along enhancing our quality of life. By adding this wonderful work of art,
Atlantic Beach once again has shown why this is such a dynamic little city by the sea to
live.
Since ly,
~~~
racie W. Parsons
Chairman
TRACIE PARSONS EZAY COLEMAN ~. $H EPA RD BRYAN PEGGY CORN ELIUS MAA RTEN VAN DE GUCHTE ELOBIN $H EPH ERD ALICE DART LAND PAUL PARSONS ALLISON HALL
1970 MIPAULA COU[iT 'ATLANTIC BEACH, FL 32233 904.247.1473
AGENDA ITEM # 8B
AUGUST 27, 2007
AGREEMENT
BETWEEN
CITY OF JACKSONVILLE
AND
ATLANTIC BEACH PUBLIC ARTS COMMISSION, INC.
TI3IS AGREEMENT ("Agreement") is made and entered into this day of May
2007, and is by and between the CITY OF JACKSONVILLE, a municipal corporation and
political subdivision of the State of Florida ("COJ") and the ATLANTIC BEACH PUBLIC
ARTS COMMISSION, INC., a Florida not-for-profit corporation ("ABPAC").
WITNESSETH:
WHEREAS, COJ has made funds available to ABPAC to provide funding for a portion
of the costs to: (i) purchase a sculpture entitled In Search of Atlantis by Kristen Visbal; (ii)
prepare the site for installation of the sculpture; and (iii) install the sculpture, all as more
particularly described in Exhibit A hereto ("Sculpture"). The sculpture is to be located on the
western end of the 300 block of Plaza Drive in Fraiser Park, at the five way stop, across the street
from the fire department and City Hall, Atlantic Beach, Florida 32233, which property is owned
by the City of Atlantic Beach and dedicated for public use ("Premises"); and
WHEREAS, funds in the amount of $50,000.00 shall be provided by COJ in accordance
with §106.315, Ordi~zance Code of City of Jacksonville ("Ordinance Code"), copy of which is
attached hereto and made a part hereof as Exhibit B (the "COJ Appropriation"); and
WHEREAS, it is in COJ's best interest to provide the COJ Appropriation to assist in the
acquisition of the Sculpture; now therefore
IN CONSIDERATION of the mutual promises contained herein and for other good and
sufficient consideration, the parties agree that:
1. .Incorporation of Recitals. The above stated recitals are true and correct and, by
this reference, are incorporated herein and made a part hereof.
2. Effective Date. This Agreement shall become effective on the day and year first
written above and shall continue in full force until installation of the Sculpture is complete, but
in no event beyond September 30, 2007, unless terminated earlier as provided in this Agreement.
3. Assistance with Purchasing Sculpture. COJ shall provide the COJ
Appropriation to ABPAC in accordance with the provisions of this Agreement; provided
however, COJ will not maintain, repair, or support the Sculpture during construction or at any
time thereafter.
4. ABPAC Compliance. ABPAC shall use its best efforts to comply with all
federal, state, and local laws, rules, regulations, and ordinances in connection with the
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AGENDA ITEM # 8B
AUGUST 27, 2007
acquisition and installation of the Sculpture. ABPAC shall also comply with bond covenants and
restrictions of COJ, as more specifically set forth in Section 11 of this Agreement, with respect to
ABPAC's receipt of the COJ Appropriation under this Agreement.
5. Payment on Draw or Reimbursement Basis. COJ's Appropriation for the
Sculpture pursuant to this Agreement shall be on a "draw for work done" basis or on a "cost for
reimbursement" basis. Payments will be made within forty-five (45) days after ABPAC's
submittal to COJ of documentation, including bills, invoices and other documents satisfactory to
COJ's General Accounting Division, to justify withdrawal or reimbursement payment to
ABPAC.
6. COJ Representative. Pursuant to § 106.315(a)(2)(i), Ordinance Code, COJ's
Department of Parks, Recreation, Entertainment and Conservation shall be responsible for
overseeing, administering, and implementing this Agreement. COJ shall by subsequent written
notice advise ABPAC of the contact person in the Department of Parks, Recreation,
Entertainment and Conservation.
7. Accounting/Report. ABPAC shall provide the Department of Parks, Recreation,
Entertainment and Conservation and the Council Auditor with a full accounting/report. Such
accounting/report shall be in a form approved by the Council Auditor and shall include, but not
be limited to, copies of all invoices and checks. Such accounting/report shall be submitted
within thirty (30) days after the day and year first above written and shall continue at thirty (30)
day intervals until the funds are spent in their entirety or this Agreement expires or otherwise
terminates, whichever occurs first. In connection with the obligations set forth in Sections 5 and
7 of this Agreement, the parties agree that COJ Appropriation shall be applied to the cost of the
acquisition and installation of the Sculpture, which total cost is in excess of $115,000.00.
Notwithstanding anything to the contrary in this Agreement, at any time during the term of this
Agreement and for a period of two (2) years thereafter, the Council Auditor shall have the right
to audit ABPAC's records with respect to all matters related to this Agreement.
8. Returned Unspent COJ Funds. Any unspent funds from COJ Appropriation
existing on September 30, 2007 shall lapse and revert to COJ. In such event, ABPAC shall
immediately return the any such funds remaining in its possession to COJ without further notice
or demand.
9. Maximum Indebtedness. COJ shall be indebted under this Agreement to the
maximum amount of $50,000.00.
10. Indemnification. ABPAC shall hold harmless, indemnify and defend COJ, its
officers, employees and elected officials against any claim, action, loss, damage, injury, liability,
cost and expense, of whatever kind or nature (including, but not by way of limitation attorneys
fees, expert witness fees and court costs) arising out of injury (whether mental or corporeal) to
persons, including death, or damage to property, arising out of or incidental to any negligent act
or omission of the ABPAC in its performance under this Agreement.
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AGENDA ITEM # 8B
AUGUST 27, 2007
11. ABPAC Operations. ABPAC shall, at no additional cost or expense to COJ,
operate and maintain the Premises as a public museum and such Premises shall be open and
available to all residents and visitors to COJ of Jacksonville, with no discrimination on the basis
of race, creed, color, sex, religion, national. origin, marital status, age, disability or residence.
Provided however, in the event that ABPAC ceases to operate in the foregoing manner, then COJ
shall give notice of such default and if ABPAC does not cure such default then, and in such
event, COJ's sole remedy shall be as set forth in Section 16.
12. ABPAC Responsibilities. ABPAC, or its designated successors or assigns, shall
be solely responsible for all maintenance and repairs to the Sculpture at no additional cost to COJ
including, but not limited to:
(a) ABPAC shall maintain and keep the Sculpture in good repair and shall
provide all required maintenance and repair of whatsoever kind of nature.
(b) ABPAC, without limiting its liability hereunder, agrees to procure, keep
and maintain adequate insurance types, including, but not limited to fire insurance, and in
coverage amounts, as required by COJ's Risk Management Division. During the installation of
the Sculpture, ABPAC will require any contractor to carry and maintain all risk builders' risk
insurance equal to the replacement cost value of the project which at no time will be less than the
amount stated in Section 9 of this Agreement, naming COJ as an additional insured. Upon
installation of the Sculpture, ABPAC will maintain all risk property insurance at replacement
cost value, which at no time will be less than the contribution as defined in Section 9 of this
Agreement.
13. Non-Waiver. The waiver, by either party, of any breach of this Agreement, by
the other party, shall not be construed as a waiver of any subsequent breach of duty or covenant
imposed by this Agreement.
14. Right of Entry. COJ, at reasonable times, has the right to enter into and upon the
portion of the Premises for the purposes of viewing the same and for the purpose of verifying
compliance by ABPAC of its obligations under this Agreement.
15. COJ Default. Except as otherwise provided in this Agreement, if COJ shall
neglect or fail to perfol-m or observe any requirement or violate any provision of this Agreement
and such default shall continue for a period of thirty (30) days after written notice thereof is
given by the ABPAC to COJ, then ABPAC may immediately, or at any time thereafter and
without further notice or demand, terminate this Agreement without prejudice to any remedy
which might otherwise be used by the ABPAC to recover for any breach of COJ's covenants
herein contained.
16. ABPAC Default. If the ABPAC shall neglect or fail to perform or observe any
requirement or violate any provision of this Agreement and such default shall continue for a
period of thirty (30) days after written notice thereof is given by. COJ to the ABPAC, then COJ
may, immediately, or at any time thereafter, and without further notice or demand, terminate this
Agreement. Upon such termination COJ may, as its sole remedy, take possession of the
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AGENDA ITEM # 8B
AUGUST 27, 2007
Sculpture and upon taking possession of such Sculpture all ABPAC's obligations and
responsibilities under this Agreement shall terminate and be of no further force or effect. Upon
such termination, ABPAC shall cooperate with COJ to provide such documentation as is
necessary or convenient to evidence the transfer of title to the Sculpture to COJ.
17. Taxes/Insurance Premiums. The ABPAC shall pay all real estate taxes and
other taxes and fire insurance premiums on the Premises. ABPAC shall not be liable to carry fire
insurance on the person or property of COJ or any other person or property which may now or
hereafter be placed in the Premises.
18. Notices. All notices permitted or required under this Agreement shall be by
certified mail, return receipt requested, by hand delivery with a signed acknowledgement of
receipt, or by facsimile transmission with a transmission acknowledgement indicating the
transmission was completed:
As to COJ:
City of Jacksonville
Department of Parks; Recreation
Entertainment & Conservation
851 North Market Street
Jacksonville, Florida 32202
Attn:
As to the ABPAC:
Atlantic Beach Public Arts Commission, Inc.
1970 Mipaula Court
Atlantic Beach, Florida 32233
Attn: Paul Parsons
19. Termination for Convenience. COJ shall have the absolute right to terminate
this Agreement without cause upon giving thirty (30) days advance written notice to the
ABPAC.
20. Actions of Mayor and Corporation Secretary. The Mayor and Corporation
Secretary shall have the authority to terminate this Agreement under any circumstances in which
COJ has a legal right to terminate this Agreement in accordance with the provisions hereof.
21. Construction of Agreement Terms. The parties agree that they have had
meaningful discussion and/or negotiations of the provisions, terms and conditions contained in
this Agreement. Therefore, doubtful or ambiguous provisions, if any, contained in this
Agreement, shall not be construed against the party who physically prepared this Agreement.
The rule commonly referred to as "Fortius Contra Proferentium " shall not be applied to this
Agreement or any interpretation thereof.
22. Entire Agreement. This Agreement represents the entire agreement by and
between the parties concerning the receipt and expenditures of the funds specified herein. No
agreement, statement, representation, course of action or course of statement, representation,
course of action or course of conduct by either of the parties hereto, or by their authorized
representatives, shall be binding if it is not in writing and contained in this Agreement. This
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AGENDA ITEM # 8B
AUGUST 27, 2007
Agreement may be amended by written instrument signed by the parties or their lawfully
authorized representatives.
23. Severability. If any section, paragraph, sentence or other part of this Agreement
is declared to be unenforceable or unlawful by a court of competent jurisdiction, then, in such
event, such section, paragraph, sentence or other part shall be severed from this Agreement and
shall not affect other terms and conditions herein.
24. Section/Paragraph Headings. All section/paragraph headings herein are
provided for convenience only and shall not be used in the interpretation or construction of the
Agreement.
25. Exhibits. All exhibits which are attached hereto are incorporated into this
Agreement as if fully set forth herein.
26. Governing Law/Venue. This Agreement shall be governed by the law of the
State of Florida. Venue for litigation of this Agreement shall be in a court of competent
jurisdiction in Jacksonville, Florida.
27. Survival of Provisions. The provisions of Sections 7, 8, 10, 11, 12, 14, and 17
shall survive the termination of this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Page 5 of 9
AGENDA ITEM # 8B
AUGUST 27, 2007
IN WITNESS WHEREOF, the parties, by and through their lawfully authorized
representatives have executed this Agreement on the day and year first above written.
ATTEST:
By:
Neill W. McArthur, Jr.
Corporation Secretary
ATTEST:
Signature
Type/Print Name
Title
CITY OF JACKSONVILLE
By:
John Peyton, Mayor
ATLANTIC BEACH PUBLIC ARTS
COMMISSION, INC.
By:
Signature
Type/Print Name
Title
In compliance with the Charter of the City of Jacksonville, I do hereby certify that there
is an unexpended, unencumbered, and unimpounded balance in the appropriation sufficient to
cover the foregoing Agreement, and provision has been made for the payment of the monies
provided therein to be paid.
Director of Administration and Finance
Form Approved:
Office of General Counsel
By:
R. William Crowe, Assistant General Counsel
G:\Gov't Operations\WCrowe\PREC\ABPAC\ABPAB.agt.fina1.050307.doc
Page 6 of 9
AGENDA ITEM # 8B
AUGUST 27, 2007
EXHIBIT A
TO
AGREEMENT
BETWEEN
CITY OF JACKSONVILLE
AND
ATLANTIC BEACH PUBLIC ARTS COMMISSION, INC.
Exhibit A consists of two (2) pages attached hereto. Page one is that certain letter dated January
16, 2007 from Tracie Parsons to the Honorable Arthur Graham, which describes the project that
is the subject of the Agreement. Page two is a drawing of the sculpture In Search of Atlantis by
Kristen Visbal.
Page 7 of 9
AGENDA ITEM # 8B
AUGUST 27, 2007
EXHIBIT B
TO
AGREEMENT
BETWEEN
CITY OF JACKSONVILLE
AND
ATLANTIC BEACH PUBLIC ARTS COMMISSION, INC.
Section 106.315, O~~dinance Code of the City of Jacksonville:
Sec. 106.315. District Council expenditures.
City funds ("funds"), which may from time to time be appropriated to District Council accounts
for various projects ("project(s)" defined herein to be any operating or capital expenditure of city
funds"), shall be governed by this Code Section's requirements for the expenditure of said funds.
Furthermore, all balances remaining in district accounts (which includes the 1988 Bond
Accounts, the Renaissance Bonds, the Ft. George Funds, the Saratoga Funds and Renaissance
Park Maintenance Funds) as of October 1,2000, may also be expended in accordance with the
guidelines in this Section. The balances in the District Bond Accounts, as shown in Exhibit A,
shall be utilized for recreation or public works capital outlay and shall be available to the
appropriate district for the next ten fiscal years. T'he ordinance appropriating funds to District
Council accounts shall define the project (i.e. operating or capital) and specify the permitted
use(s) of the funds (e.g. recreational and/or other uses) and shall specify theterm of the
appropriation. Upon the expiration of the term, unexpended or unencumbered funds shall lapse
into the Special Council Reserve Account. Except for projects undertaken by the city, all
expenditures of funds shall be restricted to an organization ("organization" defined herein to be a
legal entity making a contribution, whether monetary or otherwise, to the project) whose project
is both open to the public and located upon public property ("public property" defined herein to
include property leased to the city). In addition, uses of the funds shall be subject to the
following requirements:
(a) District Council funds of $100,000 or less shall be expended in accordance with the
following procedures:
(1) The District Council Member shall prepare a letter which provides funds to an organization
or city department in an amount certain and describes the purpose of the project and the public
benefits of the project and the contributions of the organization. A copy of the letter shall be
delivered to the Mayor.
(2) Based upon the letter, the Mayor is directed to process the request as follows:
(i) Assign the project to the appropriate city department for project oversight and/or
implementation;
(ii) Prepare and process the appropriate budget and/or accounting and purchasing entries; and
(iii) If the project is to be performed by an organization the Mayor shall prepare and execute a
contract for the project requiring the organization to:
1. Complete the project in a time certain;
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AGENDA ITEM # 8B
AUGUST 27, 2007
2. Provide project accounting/reporting back to the oversight department and council auditor's
office;
3. Comply with all applicable bond covenants/restrictions, ordinances, laws and regulations;
4. Return unused funds to the District Council Fund;
5. Provide for release of city funds to the organization on a draw for work done or cost
reimbursement basis; and
6. Such other contract provisions as maybe deemed appropriate or necessary by the Mayor.
(b) District council expenditures up to $100,000 shall be exempt from compliance with Chapter
122, Part 6 (Capital Improvement Program).
(c) District Council expenditures in excess of $100,000 shall, in addition to complying with the
requirements of subsection (a) of this Section, require the District Council Member to obtain
City Council approval as evidenced by an ordinance appropriating the District Council Funds to
a specific project.
(Ord. 1999-786-E, § 1.3(g); Ord. 2000-1065-E, § 1; Ord. 2000-1211-E, § 1; Ord. 2006-185-E, §
3)
Page 9 of 9
AGENDA ITEM # 8B
AUGUST 27, 2007
In Sea~~ ch Of ~ltlanrr~s~
Young Girl On Green Sea Turtle
With Turtle Grass
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Notes:
• May Change Girl
• Could Put Turtle
They Traditionally