2015-29241 Reso RESOLUTION NO. 2015-29241
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A TERMINATION AND RELEASE
AGREEMENT ("TERMINATION AGREEMENT") BY AND BETWEEN THE
CITY OF MIAMI BEACH ("CITY") AND BRIAN TOLLE ("ARTIST").
WHEREAS, on March 2005, with direction from the City Administration, the Art in Public
Places (AiPP) Committee embarked on commissioning an internationally recognized artist that
would create an original work of art in conjunction with the re-design and renovation of Collins
Park; and
WHEREAS, on September 6, 2006, the City Commission adopted Resolution No. 2006-
26317, authorizing the Mayor and City Clerk to execute a contract with the artist, Brian Tolle, in
an amount not to exceed $250,000, for the design, creation, and installation of the aforestated
work of art; and
WHEREAS, on January 16, 2008, the City Commission adopted Resolution No. 2008-
26739, which appropriated an additional $109,920 related to increased material costs, and other
additional increases related to unavoidable costs due to project implementation delays. This
approval brought the total project cost to $359,920; and
WHEREAS, in 2014, based on various issues relating to the condition of the Work and
complaints from residents with regard to public health and safety issues in connection with
improper use of the Work by members of the general public, the City, through a professional
conservator, de-installed the Work from the Site, and the Work was thereafter placed it in a
storage facility at the Miami Beach Convention Center("MBCC"); and
WHEREAS, the Art in Public Places Committee has reviewed the various issues relating
to the Work on several occasions, and has concluded that even if the condition issues (i.e.
relating to removal of graffiti) were resolved satisfactorily, there is no suitable alternative site
within the City that would satisfactorily address the public health and safety issues surrounding
the Work; and
WHEREAS, in view of the upcoming renovation and expansion of the Miami Beach
Convention Center, the City needs to remove the Work from its current temporary location at the
MBCC, and either incur significant costs for on-going storage of the Work on an indefinite basis,
or dispose of the Work consistent with the City's agreement with the Artist;
WHEREAS, the parties desire to resolve their remaining disputes relating to the
Commission Agreement and the Work, and in doing so, each party has compromised its
respective positions in good faith.
WHEREAS, the proposed Termination and Release Agreement is attached as Exhibit
"A" to the December 9, 2015 Commission Memorandum accompanying this Resolution.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA that the Mayor and City
Commission hereby approve and authorize the Mayor and City Clerk to execute a Termination
and Release Agreement ("Termination Agreement") by and between the City of Miami Beach
("City") and `Brian Tolle ("Artist").
PASSED and ADOPTED this 9th day of December, 2015.
,/, -/-4?":
PHILIP LEV fi . 1� 07;
,-OR
ATTESTED BY: -/ /
}
RAF. E L . G RANA I ���� .�,i��- K
T:\AGENDA\2015\October\TCE!` s),,�`um\Bag554 -��i�'eso 2015_16.doc
0.47*.....** N, it* '.. ..(
tI +.01,1,..„ • k •
i *:INCORP ORATED. G
��,,t'9/0 • APPROVED AS TO
hip ,.. 26 . FORM&LANGUAGE
h ::, ..� &FOR EXEC[JflON
Lc2 -
CftyAttom47"'
Re Date
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Approving A Termination And
Release Agreement ("Termination Agreement") By And Between The City Of Miami Beach ("City") And Brian Tolle
("Artist").
Key Intended Outcome Supported:
N/A
Supporting Data (Surveys, Environmental Scan, etc N/A
Item Summary/Recommendation:
In March 2005, with direction from the City Administration, the Art in Public Places (AiPP) Committee embarked on
commissioning an original work of art in conjunction with the re-design and renovation of Collins Park.The objective was for
the commissioned work to be interactive and within the project budget of $250,000. On September 6, 2006, the City
Commission adopted Resolution No. 2006-26317 approving the selection of a public art commission for Collins Park,
entitled "Maze", as recommended by the AiPP Committee and the Neighborhoods/Community Affairs Committee; further
authorizing the Mayor and the City Clerk to execute a contract with the artist, Brian Tolle, in the amount of$250,000, for
design, creation and installation of the aforestated work of art. Subsequently, the City Commission adopted Resolution No.
2008-26739, which appropriated an additional $109,920 related to increased material costs, and other additional increases
related to unavoidable costs due to project implementation delays.This approval brought the total project cost to$359,920.
The work encountered a number of issues that the parties tried over the years to address. Among the issues were
problems with the powder coating that was soluble, and thus graffiti could not be removed without damaging the installation.
Both the City and the Artist have disputed the issues and have been unable to resolve the claims. Separate and apart from r`
being vandalized by graffiti, the work was also damaged by segways and bicycles that attempted to ride through the piece.
Homeless were regularly sleeping in the artwork and defecating in the pieces, which created safety concerns for the public
since the sculpture is interactive and the artwork was intended for visitors to walk through its labyrinth-like structure.
This then elicited complaints from the neighborhood and the City was unable to patrol it frequently enough to prevent these
problems. Based on these issues and the ongoing dispute with the artist,the City de-installed the work. The Administration
and AiPP Committee discussed alternate locations for the work, but were unable to identify another location that would not
have the same social issues. On February 25, 2014, the City notified Artist that the artwork was going to be de-installed,
under the supervision of Rosa Lowinger&Associates and Museo Vault, museum-trained staff of experienced art handlers
and fine art movers. The work was then stored at the Miami Beach Convention Center.
In light of the upcoming renovation and expansion of the Miami Beach Convention Center, the City needs to remove the
Work from its current temporary location at the MBCC, and either incurs significant costs for on-going storage of the Work
on an indefinite basis, or dispose of the Work consistent with the City's agreement with the Artist. Therefore, the
Administration believes it is in the best interest of the City to dispose of the work. Both parties have since agreed, in an
effort to resolve the dispute,to the attached Termination and Release Agreement.
The Bass Museum has generously agreed to fund and donate the purchase of a new work of art by an international artist
for the park. Although the original project was not successful for a variety of reason, city staff was able to identify a
replacement at no cost to the City.
Advisory Board Recommendation:
N/A
Financial Information:
Source of . Funds: Amount Account
1
OBPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Max Sklar
Sign-Offs:
D ."men/.irector Assist t 'ty Manager City Manager
T:WGE 'A\20 . •ecember\TCED\Tolle erminaf n\Tolle Termination Summ.doc ii
AGENDA ITEM R.--1
.MIAMI BEACH _
DATE f 2 q J s
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov
COMMISSI)N MEMORANDUM
TO: Mayor Philip Levine and Members o! the City Co'l mission
FROM: Jimmy L. Morales, City Manager _ •
DATE: December 9, 2015
SUBJECT: A RESOLUTION OF THE MAYOR .` D CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPRO ING A TERMINATION AND RELEASE
AGREEMENT("TERMINATION AGREEMENT") BY AND BETWEEN THE CITY
OF MIAMI BEACH ("CITY")AND BRIAN TOLLE ("ARTIST").
ADMINISTRATION RECOMMENDATION
Adopt the resolution and approve the termination and release agreement.
BACKGROUND
In March 2005, with direction from the City Administration, the Art in Public Places (AiPP)
Committee embarked on commissioning an original work of art in conjunction with the re-
design and renovation of Collins Park. The objective was for the commissioned work to be
interactive and within the project budget of$250,000.
On September 6, 2006,the City Commission adopted Resolution No.2006-26317 approving
the selection of a public art commission for Collins Park, entitled "Maze", as recommended
by the AiPP Committee and the Neighborhoods/Community Affairs Committee; further
authorizing the Mayor and the City Clerk to execute a contract with the artist, Brian Tolle, in
the amount of$250,000,for design, creation and installation of the aforestated work of art;
and further approving funds, in an amount not to exceed $250,000. Subsequently, the City
Commission adopted Resolution No. 2008-26739, which appropriated an additional
$109,920 related to increased material costs, and other additional increases related to
unavoidable costs due to project implementation delays. This approval brought the total
project cost to $359,920.
The work encountered a number of issues that the parties tried over the years to address.
Among the issues were problems with the powder coating that was soluble, and thus graffiti
could not be removed without damaging the installation. Both the City and the Artist have
disputed the issues and have been unable to resolve the claims. Separate and apart from
being vandalized by graffiti, the work was also damaged by segways and bicycles that
attempted to ride through the piece. Homeless were regularly sleeping in the artwork and
defecating in the pieces,which created safety concerns for the public since the sculpture is
interactive and the artwork was intended for visitors to walk through its labyrinth-like
structure.
This then elicited complaints from the neighborhood and the City was unable to patrol it
frequently enough to prevent these problems. Based on these issues and the ongoing
dispute with the artist, the City de-installed the work. The Administration and AiPP
Committee discussed alternate locations for the work, but were unable to identify another
location that would not have the same social issues.
r
Brian Tolle Termination and Release Agreement
City Commission Meeting
December 9, 2015
Page 2 of 2
On February 25, 2014, the City notified Artist that the artwork was going to be de-installed,
under the supervision of Rosa Lowinger&Associates and Museo Vault, museum-trained
staff of experienced art handlers and fine art movers. The work was then stored at the
Miami Beach Convention Center.
In light of the upcoming renovation and expansion of the Miami Beach Convention Center,
the City needs to remove the Work from its current temporary location at the MBCC, and
either incurs significant costs for on-going storage of the Work on an indefinite basis, or
dispose of the Work consistent with the City's agreement with the Artist. Therefore, the
Administration believes it is in the best interest of the City to dispose of the work.
Both parties have since agreed, in an effort to resolve the dispute, to the attached
Termination and Release Agreement. Both parties mutually release each other of all claims
and of any further rights or obligations under the Commission Agreement. This resolution is
consistent with the original Commission Agreement, which specifies in Article 8, that if the
artwork is to be removed from the Site, City shall offer the Artists the option of removing the
artwork at no charge to the Artist provided the Artist move or transport the artwork at his sole
cost and expense.
Once a settlement was reached with the Artist, the City and the Bass Museum began
discussions to find a replacement artwork for Collins Park. The Bass Museum has
generously agreed to fund and donate the purchase of a new work of art by an international
artist for the park. The donation will be considered by the AiPP Committee and Historic
Preservation Board in December and will be brought before the City Commission for
consideration in January. Although the original project was not successful for a variety of
reason, city staff was able to identify a replacement at no cost to the City.
CONCLUSION
The City Administration recommends the City Commission adopt the resolution and approve
the at che, Termination and Release Agreement.
JLM/ B `/
T:WGENDA '4,5\December\TCED\Tolle Termination\Tolle Termination Memo.doc
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement ("Termination Agreement") is entered
into as of July , 2015, by and between the City of Miami Beach ("City") and Brian
Tolle("Artist"). City and Artist are hereinafter together referred to as the"Parties."
I.
RECITALS
A. In 2008, the Parties entered into an Agreement between City of Miami
Beach,Florida and Brian Tolle,Artist,For Commissioned Artwork at Collins Park, dated
January 16, 2008 (the "Commission Agreement") for the creation and installation of an
original work of art, subsequently entitled Tempest(the"Work").
B. In 2010, the Work was installed in Collins Park, located at 2100 Collins
Avenue,Miami Beach,Florida(the"Site").
C. In 2014,based on various issues relating to the condition of the Work, the
City engaged a professional conservator who supervised the de-installation of the Work
from the Site, and the Work was thereafter placed it in a storage facility at the Miami
Beach Convention Center(the"Storage Facility").
D. The parties desire to resolve their remaining disputes relating to the Commission
Agreement and the Work, and in doing so, each party has compromised its respective
positions in good faith.
E. By this Termination Agreement, the City and the Artist, in consideration
of the mutual covenants contained herein,agree as follows:
II.
AGREEMENT
1. Definitions. All capitalized terms used herein that are not otherwise
defined herein shall have the respective meanings ascribed to them in the Commission
Agreement.
2. Termination. In consideration for the mutual release set forth herein and
the return of the Work to the Artist as set forth in paragraph 3 below, the Commission
Agreement shall terminate as of October 31, 2015 (the"Termination Date").
3. Return/Disposition of the Work.
a. The City will make the Work available to the Artist or his designee for
inspection at the Storage Facility, provided such inspection must take place no later than
October 31 , 2015, at a mutually-agreeable date and time during the
City's regular business hours.
{00024380:1} - 1 -
b. Within fifteen (15) calendar days following the inspection performed
pursuant to Section 3(a) above, the Artist shall inform the City of whether the Artist
proposes to retake possession of the Work with no purchase required therefor; provided,
however, that the Artist shall make all arrangements for, and pay all of the costs of,
packing, removing and shipping or other transportation of the Work from the Storage
Facility to its destination, at no expense to the City whatsoever("Notice of Proposal").
c. If the City Commission, at its sole and absolute discretion, approves this
Termination Agreement,the Artist must make all arrangements to coordinate the removal
of the Work, and must complete the removal of the Work from the Storage Facility no
later than thirty(30) calendar days following the City Commission's receipt of the Notice
of Proposal.
d. If, on the other hand, the Artist elects not to retake possession of the
Work,the Artist shall so inform the City in his Notice of Proposal and, following the City
Commission's approval, if any, of this Termination Agreement and the execution by the
Parties thereof, the City may thereafter arrange for the disposition, sale or destruction of
the Work at its sole discretion and Artist waives and relinquishes all rights with respect
thereto. In such event, without limiting any other intellectual property rights the Artist
may have in and to the Work, the Artist may refabricate the Work for a new site, subject
to the credit line set forth in Section 3(e)below.
e. In the event the Work is restored, resold, and/or displayed at a new
location, or in the event a similar Work is refabricated for a new site, Artist agrees to
provide the City with the following credit line: "This work was originally commissioned
by the City of Miami Beach Art in Public Places."
f. Time is of the essence in the performance of Artist's obligations under this
Termination Agreement. If Artist fails to perform the inspection within the time period
specified in Section 3(a), or fails to provide the City with the Notice of Proposal within
the time period specified in Section 3(b), or fails to remove the Work within the time
period specified in Section 3(c), then Artist's failure to strictly comply with the foregoing
deadlines shall be deemed a conclusive waiver of Artist's right to inspect and/or retake
possession of the Work. Artist's failure to act within the time periods specified in this
Termination Agreement shall constitute a waiver and/or relinquishment of all rights
specified herein or otherwise with respect to the disposition of the Work, and City may
thereafter either retain possession of the Work, or sell, dispose or destroy the Work at its
sole discretion.
4. Mutual Release of All Claims
a. In consideration of this Termination Agreement, Artist hereby releases the
City, and its respective officers, commissioners, employees, agents, units, instrumentalities,
successors and assigns (the "City Released Parties") from and against, and also waives and
relinquishes any and all rights to, all claims, direct and indirect costs, damages, liability,
interest, disputes or causes of action of whatever nature or kind it has or may have, whether
{00024380:1} -2 -
known or unknown, against the City Released Parties arising out of or relating to the
Commission Agreement,the Work and/or the condition or use thereof.
b. In consideration of this Termination Agreement, the City hereby releases the
Artist and his employees, agents, successors and assigns (the "Artist Released Parties") from
and against, and also waives and relinquishes any and all rights to, all claims, direct and
indirect costs, damages, liability, interest, disputes or causes of action of whatever nature or
kind it has or may have, whether known or unknown, against the Artist Released Parties
arising out of or relating to the Commission Agreement,the Work and/or the condition or use
thereof.
5. Continuing Obligations/Release. The Parties acknowledge and agree (A)
neither party shall have any further rights or obligations under the Commission
Agreement from and after the Termination Date.
6. Miscellaneous Provisions.
(a) Severability. If any provision of this Termination Agreement is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to
be effective.
(b) Governing Law. This Termination Agreement shall be governed and
interpreted by the laws of the State of Florida, without regard to conflicts of law rules.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action
is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade
County,Florida. Artist irrevocably submits itself to the original and exclusive jurisdiction
and venue of the Circuit Court of Miami-Dade County, Florida, with regard to any
controversy in any way relating to the award, execution or performance of this
Termination Agreement.
(c) WAIVER OF JURY TRIAL. BY ENTERING INTO THIS
TERMINATION AGREEMENT, THE CITY AND ARTIST EXPRESSLY WAIVE
ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY
CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE TERMINATION
AGREEMENT, THE COMMISSION AGREEMENT OR THE WORK.
(d) Entire Agreement, Amendments. This Termination Agreement constitutes
the entire agreement between the Parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties, and there are no warranties, representations or
other agreements between the Parties in connection with the subject matter hereof except
as set forth specifically herein or contemplated hereby. No supplement, modification or
waiver of this Termination Agreement shall be binding unless executed in writing by the
Party to be bound thereby.
{00024380:1}
-3 -
(e) The parties accept the terms of this Termination and Release Agreement,
and have agreed to its terms solely for their own convenience, without admitting any
liability with respect thereto.
7. City Commission Approval. This Termination Agreement is subject to
and contingent upon approval by the Mayor and City Commission of the City of Miami
Beach,Florida,at its sole and absolute discussion.
IN WITNESS WHEREOF, each of the Parties has caused this Termination
Agreement to be signed and delivered by its duly authorized officer as of the date first
written above.
CITY OF MIAMI BEACH,FLORIDA
By:
Jimmy L.Morales
City Manager
Approved for form and legal sufficiency
By: (9a,. r(,..
City Attorney (Lpe
BRIAN TOLLE
//
By:
August 28,2015
B an Tol
Artist
{00024380:1} -4