Item 8AAGENDA ITEM # 8A
SEPTEMBER 24, 2007
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Request from Atlantic Beach Public Arts Commission, Inc. to
Release $45,000 for Art
SUBMITTED BY: Jim Hanson, '
DATE: September 17, 2007
BACKGROUND: The City of Atlantic Beach currently has budgeted $45,000 in the
Convention Development Tax Fund for public art. The Atlantic Beach
Public Arts Commission, Inc. made a request to the Commission at the
regulaz meeting on August 27, 2007 to authorize release of those funds for
the purchase of a sculpture to be placed at the five points intersection. A
copy of an agreement between the Atlantic Beach Public Arts Commission
and the City of Jacksonville was included with their request.
Mayor Wolfson noted that there were several sections in the agreement
with Jacksonville that did not accurately reflect Atlantic Beach's
understanding of who would own and maintain the sculpture after
installation. At that time, the Mayor asked that the item be deferred so
that the staff could work with the Public Arts Commission to make
corrections to the documents and otherwise have it ready for approval.
The request for deferral was unanimously approved.
While city staff, the city attorney and representatives from the Public Arts
Commission have been in discussions over the last several weeks about
the provisions of the agreements that should be changed, we have been
advised that they will not be able to complete the revisions with the City
of Jacksonville prior to the Commission meeting on 9/24/07.
BUDGET: Funds in the amount of $45,000 aze budgeted in the current FY 06-07
fiscal yeaz which will end on September 30~'. Funding for this project will
lapse at that time unless further action is taken by the city commission.
RECOMMENDATION: The City Commission should decide whether or not to release the funds
subject to amendments to the agreement between the City of Jacksonville
and the Public Arts Commission and adoption of a sepazate agreement
between the City of Atlantic Beach and the Public Arts Commission. If
the final decision is deferred until after September 30`I', than any funding
after that date would require a separate action to amend the budget.
ATTACHMENT: 1) E-mail from Alan Jensen to Jim Hanson dated 9/8/07 recommending
various amendments to art related agreements.
AGENDA ITEM # 8A
SEPTEMBER 24, 2007
Hanson, Jim
From: Alan Jensen [alan@ajensenlaw.com]
Sent: Saturday, September 08, 2007 10:39 AM
To: Hanson, Jim
Cc: wgaspaul@bellsouth.net
Subject: COJ Agreement with ABPAC,Inc.
Jim: In reviewing all the documents I have been provided regarding the above matters, I will address 3 areas of
concern, as follows:
1. Agreement dated 5/2/07 between artist Visbal and ABPAC:
a. This agreement refers to the client as "City of Atlantic Beach, Florida," but is signed by the chairman
of ABPAC. First it must be made clear to the artist that the City is NOT a party to this agreement, and also since
ABPAC is incorporated, it would seem appropriate for an officer of the corporation to sign the agreement. I am
not familiar with the corporate set up of ABPAC, but normally there would be a president, secretary, etc.
b. This agreement also imposes certain obligations on the City, and this needs to be corrected and
changed. It may be advisable to revise this agreement so that the City is contracting with the artist, or have an
assignment clause where the agreement is assigned to the City.
c. While not specifically addressed in the agreement, it should be made abundantly clear that the City
will have sole ownership of the final product once it is finished, delivered and installed to the City's satisfaction.
2. Agreement dated 5/ /07 between COJ and ABPAC:
a. Jim's concerns set forth in his 8/28/07 a-mail to Paul and copied to me:
(1) I agree with the necessity of changing the termination date in par.2 on pg.1 and par.8 on pg.2
to 9/30/08. Even the artist estimates delivery date to be March/April of 2008.
(2) I agree with the concern with the costs exceeding $95,000, which is the combined total
amount to be contributed by COJ and the City. This is in par. 7 on pg.2 and needs to be addressed to satisfy the
concern as expressed in Jim's a-mail.
(3) The operation and maintenance and other responsibilities set forth in par. 11 and 12 on pg.3
of the agreement will be the City's responsibilties, as per Jim's a-mail, and thus a change to the agreement on as
assignment of the agreement to the City will be necessary to clarify and satisfy this concern.
(4) Insurance required per par.12 on pg.3 as per Jim's a-mail needs to be addressed and
changed to City.
(5) I agree that if the City is to own the sculpture, then COJ's "sole" remedy of taking possession
of the sculpture, as set forth in par.16 on pg.3, must be changed.
(6) Finalty, I agree that since the City will own the sculpture, there is no need for any reference to
real estate taxes as in par.17 on pg.4, since there will be no real estate taxes, and insurance is addressed in (4)
above.
b. Additional concerns 1 have with COJ agreement:
(1} Par.3 on pg.1 should be clarified to specifically state the COJ will also NOT have any
ownership interest in the sculpture.
(2) Par.4 on pg.1 should state that ABPAC "shall" comply with all laws, not use its best efforts to
comply.
(3) Par.5 on pg.2 references a "draw schedule" for the COJ funds of $50,000, but I thought the
money had already been paid to ABPAC. if so, this paragraph should be eliminated.
(4) Par.19 8~ 20 on pg.4 gives COJ the right to terminate the agreement at any time for any (or
no) reason whatsoever. This cannot be in any agreement if the City is to contribute $45,000, unless there is
assurance that this amount will be returned to the City, and which assurance must be secured in some fashion.
Some sort of performance or other bond could be used, but they are expensive.
(5) Par.26 on pg.5 should clarify that venue for litigation is in a "state" court of competent
jurisdiction.
9/17/2007
AGENDA ITEM # 8A
SEPTEMBER 24, 2007
(6) I don't have the letter from Tracy Parsons to Art Graham dated 1/16/07 which is made a part
of the agreement by Exhibit A, and obviously I will have to review that letter as well.
I am not sure how this entire scenario came to be, but it seems more appropriate that the artist contract with
the City, and then if COJ is contributing $50,000 to the cost of the sculpture, there should be an Interlocal
Agreement between COJ and the City. Any responsibilities of ABPAC could be set forth either in separate
agreements or by making ABPAC a third party to either of the 2 agreements.
Please contact me with any questions or to discuss further. Alan
ALAN C. JENSEN, ESQUIRE
935 North Third Street
P.O. Box 50457
Jacksonville Beach, FL 32240-0457
(904) 246-2500
(904) 246-9960 FAX
Alan@AJensenLaw.com
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