R24-140 1 RESOLUTION NO. R24-140
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, APPROVING A MURAL LICENSE AGREEMENT WITH
5 JAMES KENT MCMILLAN JR. FOR A PUBLIC ART MURAL ON 1105 N.
6 FEDERAL HIGHWAY; PROVIDING AN EFFECTIVE DATE;AND FOR ALL OTHER
7 PURPOSES.
8
9 WHEREAS, on February 15, 2022, the Boynton Beach City Commission adopted mural
10 guidelines for art in public places ("Mural Guidelines") throughout the City; and
11 WHEREAS, James Kent McMillan Jr. ("Licensor") is the owner of the Property located at
12 1105 N. Federal Highway, Boynton Beach, FL; and
13 WHEREAS, the City desires to create a public art mural ("Mural") on the south facade of
14 the building located on the Property ("Building") in order to beautify the area and create a more
15 aesthetically pleasing environment; and
16 WHEREAS, the City will hire an artist to design and install the Mural on the Building in
17 accordance with the Mural Guidelines; and
18 WHEREAS, Licensor desires to grant the City a license to create the mural as described
19 herein, subject to the terms and conditions set forth in the Agreement; and
20 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in
21 the best interests of the citizens and residents of the City to approve a Mural License Agreement
22 with James Kent McMillan Jr. for a Public Art Mural on 1105 N. Federal Highway.
23
24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
25 BEACH, FLORIDA, THAT:
26 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
27 being true and correct and are hereby made a specific part of this Resolution upon adoption.
28 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
29 approve a Mural License Agreement, between James Kent McMillan Jr., and the City for a Public
30 Art Mural on 1105 N. Federal Highway (the "Agreement"), in form and substance similar to that
31 attached as "Exhibit A." •
32 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby
33 authorizes the Mayor to execute two (2) originals of the Agreement and such other related
34 documents as may be necessary to accomplish the purpose of this Resolution.
35 SECTION 4. One fully-executed original of the Agreement shall be retained by the City
36 Clerk as a public record of the City. The other original of the fully executed Agreement shall be
37 provided to Gail Mootz to forward to the Licensor.
38 SECTION 5. This Resolution shall take effect in accordance with law.
39
40 PASSED AND ADOPTED this 8th day of July 2024.
41 CITY OF BOYNTON BEACH, FLORIDA
42 YES NO
43 Mayor—Ty Penserga ✓
44
45 Vice Mayor—Aimee Kelley
46
47 Commissioner—Angela Cruz
48
49 Commissioner—Woodrow L. Hay
50
51 Commissioner—Thomas Turkin
52
53 VOTE 6.0
54 A T:
55 �1 c
56 11„� i — G ,- 411111"..
57 Mayl_- l Jesus, MP•, MMC Ty P�s- •F
58 City - Mayor/
59
APPROVED AS TO FORM:
61 (Corporate Seal) Q��.•••••••.4.7-4,%%
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64
1N ,ZO : S Shawna G. Lamb
65 •'••. 1g ;' City Attorney
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MURAL LICENSE AGREEMENT
(1105 North Federal Highway)
THIS MURAL LICENSE AGREEMENT ("Agreement") is made by and between the
CITY OF BOYNTON BEACH, with an address of 100 East Ocean Ave., Boynton Beach, FL
33435 (hereafter known as"City" or"Licensee")and James Kent McMillan Jr, an individual with
an address of 1301 SW 27th Ave, Boynton Beach, FL 33426 (hereinafter known as
"Licensor"Xeach a"Party" and collectively the"Parties").
WHEREAS, on February 15, 2022, the Boynton Beach City Commission adopted mural
guidelines for art in public places ("Mural Guidelines")throughout the City; and
WHEREAS, Licensor is the owner of the Property located at 1105 N. Federal Highway,
Boynton Beach, FL, as further described in Exhibit"A"("Property"); and
WHEREAS, Licensee desires to create a public art mural ("Mural") on the south facade
of the building located on the Property("Building")in order to beautify the area and create a more
aesthetically pleasing environment; and
WHEREAS, the City will hire an artist to design and install the Mural on the Building in
accordance with the Mural Guidelines;
WHEREAS, Licensor desires to grant to Licensee a license to create the mural as
described herein, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of this Agreement and other good and valuable
consideration, receipt and sufficiency of which is hereby mutually acknowledged, the Parties
resolve and agree as follows:
1. Grant of License. Licensor grants to Licensee a license to enter upon the Property to access
the Property to create a Mural on the southern facade of the Building. Other than for the
purposes expressly provided for in this Agreement, City may not use the Property for any
other purpose whatsoever,unless authorized by Licensor. This Agreement is merely a right
to access and use and shall not be deemed to grant City any estate or interest in the Property.
2. Authority.Licensor represents and warrants to Licensee that Licensor owns fee simple title
to the Property, and that it has good and lawful right to grant this license. Licensor hereby
grants this license subject only to comprehensive land use plans, zoning, restrictions,
prohibitions, and other requirements imposed by governmental authority.
3. City's Obligations.
1. Within 90 days after full execution of this Agreement by the Parties,the City shall paint
the entire south façade of the building. City of Boynton Beach must give Licensor a
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1105 North Federal Highway Mural License Agreement
5.17.24
time schedule of the work to be performed. City of Boynton Beach must give Licensor
a minimum of 48 hours notice before commencement of work.
2. City shall timely take all actions necessary to obtain appropriate approvals and to
procure, contract for, and construct and/or install the Mural.
3. City shall utilize paint and supplies that are weather resistant and are intended to
withstand the weather for a minimum of five (5) years, and a maximum of ten (10)
years.
4. Installation. The Mural shall be completed in a good and workmanlike manner in
compliance with all applicable federal, state and local laws, rules and regulations,
including,but not limited to, the City's Mural Guidelines. All of Licensee's work to create
the Mural shall be performed at Licensee's sole cost and expense and shall not
unreasonably disturb Licensor and Licensor's tenants, guests, and patrons. Installation of
the Mural is conditioned upon Licensee obtaining all necessary approvals. Licensee shall
complete the installation of the Mural by September 30,2024. Licensee shall give Licensor
24 hours' notice before Craig McInnes starts work on the painting of the Mural. The Artist
to paint the Mural will be Craig McInnis of Craig McInnis Studios Inc., 3950 Georgia Ave
Unit C, West Palm Beach, FL 33406, contracted by the Licensee to paint the Mural, shall
provide liability insurance and list the Licensor as additional insured on his insurance
policy and provide a copy to Licensor prior to this Mural License Agreement being signed.
Any employees, contractors, subcontractors, agents, or volunteers of Craig McInnis
Studios, Inc. that participate in the painting of the Mural shall sign a release agreement
releasing both Licensor and Licensee from any liability related to the painting activity.City
of Boynton Beach must provide a copy of release of liability to the Licensor for approval
prior to signing this agreement. Release of liability must have a clause that states, "All
employees,contractors, subcontractors, agents, or volunteers that are not covered by Craig
McInnis Studios, Inc. liability insurance policy must work from the ground and shall not
be allowed to stand on ladders, scaffolding, or lifts."
5. Term. This Agreement shall become effective upon its execution by all Parties. This
Agreement shall remain effective until the Parties 'obligations under this Agreement have
been satisfied, unless earlier terminated as provided in this Agreement. It is the intent of
the Parties that the Mural will remain on the Property for a minimum of five(5)years and
a maximum of ten (10) years from completion. Should any Party fail to perform its
respective obligations under this Agreement may be terminated by written notice to the
defaulting Party from the other Party. This Agreement is expressly conditioned upon the
availability of funds lawfully appropriated and available for the purposes and project
identified in this Agreement. The City may, with or without cause, terminate this
Agreement at any time by providing Licensor with written notice of the termination date.
In the event funds to finance or maintain the Mural pursuant to this Agreement become
unavailable, the City may terminate this Agreement upon no less than twenty-four (24)
hours 'notice to the Licensor. It shall be the responsibility of the Licensor to inform
subsequent owners and lessees of the provisions of this Agreement.
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1105 North Federal Highway Mural License Agreement
5.17.24
6. Restoration of Property. At the expiration or earlier termination of this Agreement,it shall
be Licensor's responsibility to repaint the wall and remove the Mural, if so desired.
7. Title to the Completed Mural. Title to the completed physical Mural shall vest in the
Licensee.
8. Ownership and Use of Instruments of Service. Licensee shall obtain from the Mural artist
the right to grant to the Licensor a non-exclusive, perpetual, royalty-free license to make
presentations of the Murals in progress and/or to photograph or otherwise reproduce
faithful images of the Murals in progress for presentational and non-commercial purposes.
Presentation of the Murals in progress to Licensor's officials/employees and/or the public
may be conducted by the Licensor without specific approval of Licensee.
9. Repair/Modification/Deaccession. Licensor may not repair,modify,remove,paint over or
deaccession the Mural at any time without the prior written authorization of Licensee. If
any acts of GOD, vandalism and/or any other damage occurs to the building structure at
1105 N. Federal Highway, Boynton Beach, 33435 that causes Licensor to do repairs to
south facing wall, Licensor shall provide the Licensee with written notice of the Mural
damage and provide fifteen (15) days for Licensee to evaluate the damage and advise
Licensor if City desires to undertake restoration of the Mural. If Licensor desires to restore
the Mural,the Parties will agree upon a reasonable time for such work to be completed. If
Licensee does not desire to restore the mural, or if Licensee fails to respond in 15 days,
Licensor may repair the damage to the building and the south facing wall and take any
actions Licensor deems necessary to repair, remove,modify,paint over,or deaccession the
Mural. Licensor is not responsible for restoring the Mural back to its original form. If the
damage to the south facing wall allows water intrusion into the building and/or is damaged
to the point that it is a safety risk or liability risk to the Licensor, then Licensor may do
whatever is necessary to secure south facing wall from water intrusion and/or make safe
without any written notice to Licensee. Licensor must give written notice to the City of
Boynton Beach of the damage to the Mural in a timely manner once Licensor has secured
the south facing wall from water intrusion and/or unsafe conditions.
10. Governing Law/Venue. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida. Venue for the resolution of any dispute related to the
Agreement shall be a court of competent jurisdiction exclusively in Palm Beach County,
Florida. Each signatory warrants that they have authority to execute this Agreement. To
ENCOURAGE PROMPT AND EQUITABLE RESOLUTION OF ANY LITIGATION, EACH PARTY
HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATED TO THIS
AGREEMENT.
11. Sovereign Immunity. Nothing in this Agreement shall be deemed to affect the rights,
privileges and sovereign immunities of the City of Boynton Beach as set forth in Section
768.28, Florida Statutes. This clause shall survive the expiration or termination of this
Agreement.
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1105 North Federal Highway Mural License Agreement
5.17.24
12. Assignment. This Agreement may not be assigned or transferred by Licensor without the
prior written consent of the City.
13. No General Obligation. Nothing contained in this Agreement shall constitute or create a
lien or be construed or deemed to constitute or create a lien, either legal or equitable, on
any of the City's revenues or funds. No person shall ever have the right to compel any
exercise of the ad valorem taxing power of the City to make the payments herein provided
against any property of the City, nor shall this Agreement constitute a charge, lien or
encumbrance, either legal or equitable, upon any property or funds of the City, except as
expressly herein provided.
14. No Third Party Rights. This Agreement is solely for the benefit of the City and the
Licensor, and no third party shall be deemed to have any rights hereunder.
15. Independent Contractor. Licensor is an independent contractor of City, and nothing in this
Agreement shall constitute or create a partnership,joint venture, or any other relationship
between the Parties. Neither Licensor nor its agents shall act as officers, employees, or
agents of City.Licensor shall not have the right to bind City to any obligation not expressly
undertaken by City under this Agreement.
16. Regulatory Capacity. Notwithstanding the fact that City is a municipal corporation with
certain regulatory authority, City's performance under this Agreement is as a Party to this
Agreement and not in its regulatory capacity. If City exercises its regulatory authority, the
exercise of such authority and the enforcement of applicable law shall have occurred
pursuant to City's regulatory authority as a governmental body separate and apart from this
Agreement and shall not be attributable in any manner to City as a Party to this Agreement.
17. Waiver. It is hereby agreed to by the Parties that no waiver of breach of any of the
covenants or provisions of this Agreement shall be construed to be a waiver of any
succeeding breach of the same or any covenant.
18. Severability. If any part of this Agreement is found to be unenforceable by any court of
competent jurisdiction, that part shall be deemed severed from this Agreement and the
balance of this Agreement shall remain in full force and effect.
19. Joint Preparation. This Agreement has been jointly prepared by the Parties and shall not be
construed more strictly against either Party.
20. Counterparts and Multiple Originals. This Agreement may be executed in multiple
originals, and may be executed in counterparts,whether signed physically or electronically,
each of which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
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1105 North Federal Highway Mural License Agreement
5.17.24
4. •
21. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
hereto and supersedes all prior understandings, if any. There are no other oral or written
promises, conditions, representations, understanding or terms of any kind as conditions of
inducement to the execution hereof and none have been relied upon by either Party. Any
subsequent conditions, representations, warranties or agreements shall not be valid and
binding upon the Parties unless they are in writing and signed by both Parties and executed
in the same manner as this instrument.
(SIGNATURES ON FOLLOWING PAGE)
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1105 North Federal Highway Mural License Agreement
5.17.24
IN WITNESS WHEREOF,the parties hereto have caused this Mural License Agreement to
be executed by their duly authorized agents and representatives of all the formalities required by
law on the day and year last written below.
LICENSOR
By:
Date: ///2- y
LICENSEE
CITY OF BOYNTON BEACH
AT ST:
0
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By: ,
A.. _ _in _..fry., - ayor
City Cle k
Dated: , _ 4 , 2024
City Attorney's Office
Approved as to form and I gality.
By: AG!wfria Otil[/I7t
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1105 North Federal Highway Mural License Agreement
5.17.24
Exhibit A
Property
LAKE ADD TO BOYNTON LTS 2 & 3 BLK A& 21-45-43, 20 FT STRIP OF GOV LT 3 LYG
NOF& ADJTOLT3
PCN: 08-43-45-21-32-008-0020
Commonly known as: 1105 N. Federal Highway, Boynton Beach, FL
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1105 North Federal Highway Mural License Agreement
5.17.24