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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 Page 1 of 9 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. Page 2 of 9 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 Page 3 of 9 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 Page 4 of 9 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; Page 8 of 9 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 Approximate Dimensions: 8'HX6'WX5'D ,, ~ ~~ ~~ i t ' , ~~ r r - ~~ ~ n ,, •~~ ~~ ,~ ~h {, r` ~ f ~~} +, p., ;,~~ ~ C,, '3 .,, ~,,; ~~~ ~~~ ~~'' t. ~ ~, { ~ r,~,, ,~ SFr 3~' ~. .. ~ d`5~:.~ i, `~~~ aU~ S~ ~~;°~ ~ y P' ~ tai ~ ~~~ ' ~ + e ~ ~ ~+ ;, r ~ ~. r. „~~ ~ 'r ~~~.. ~~ i r ri ~rr ~ f ~~ 4~ ~~+yi ' :`. + .4 1~ ~{ 4~~~ Ar ~ s ~ ~:~ a v~ %~ "fir': fir ,~ ~``p,;f~ ~ rtlsr r;r„~ tI,,C` r .' ~`~~ ~ . ~; ,, r ,, ~' i!``~ .+' ~~', . _> ~~, r1 ':' {"~ }. h, . ~; { "~ `~ Notes: • May Change Girl • Could Put Turtle They Traditionally