Addendum NO.1 Professional Service Agreement between CMB & FWY Studios, LLCDocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
�oZ�—�z5�k
TOURISM AND CULTURE DEPARTMENT
DATE: 1 1 /28/2023 000usi red by: _
TO: Alina Hudak, City Manager lit ,a . N, ,Sc W,,t
Marcia Monserrat, Chief of Staff
I FROM: I Lissette G. Arrogante, Director, Tourism and Culture I
C SUBJECT: I Addendum to PSA - Purchase of Starchild FWY Sculpts W
For:
Information Only
Review & Approval
X City Manager's Signature
Deputy City Manager's Signature
Other
Comments:
Re: Addendum to the Professional Services Agreement between the City of
Miami Beach and FWY STUDIOS, LLC.
On February 22, 2023, the Mayor and City Commission adopted Resolution No.
2023-32506, in part, accepting the recommendation of the Art in Public Places
Committee and the Cultural Arts Council to purchase the Starchild sculpture
from FWY Studios, Inc., in a total amount not -to -exceed $170,000.00, with the
intent that the work will remain permanently installed at its current location at
Henry Liebman Square, 41 st Street and Pine Tree Drive, Miami Beach.
Artist has agreed to perform any maintenance and/or repairs which, in the
Contract Administrator's discretion, may be needed within the two (2) year
period from the date the City purchases the Artwork. The City and Artist agree
to an Addendum (No. 1) to the Professional Services Agreement dated August
5, 2022 between the City of Miami Beach and FWY STUDIOS, LLC.
Funding has been made available in a General Fund Citywide account shown
below.
Attached:
1. Addendum No. 1 to the PSA dated August 5, 2022 between the CMB and
FWY STUDIOS, LLC.
2. Reso No. 2023-32506
Return to:
® Betty BricenoRey es@miamibeachfLgov
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
MIAMIBEACH
N/A Addendum to PSA between the City of Miami Beach and FWY STUDIOS, LLC.
Tourism & Culture: Betty Briceno, Ext. 26127
Lissette Garcia Arrogante Marcia Monserrat VVIL"VQ
Type 1—Contract, amendment, change order or task order resulting from a procurement -issued competitive solicitation.
Type 2 — Other contract, amendment, change order or task order not resulting from a procurement -issued competitive solicitation.
Type 3 — Independent Contractor Agreement (ICA) /
Professional Services Agreement (PSA)
Type 6 —Tenant Agreement
Type 4 — Grant agreements with the City as the recipient
Type 7 — Inter -governmental agency agreement
Type 5 — Grant agreements with the City as the grantor
X
Other: Addendum to Professional Services Agreement
Re: Addendum to the Professional Services Agreement doted August S, 2022 between the City of Miami Beach and FWY STUDIOS, LLC.
On February 22, 2023, the Mayor and City Commission adopted Resolution No. 2023-32506, in part, accepting the recommendation of the
Art in Public Places Committee and the Cultural Arts Council to purchase the Starchild sculpture from FWY Studios, Inc., in a total amount
not -to -exceed $170,000.00, with the intent that the work will remain permanently installed at its current location at Henry Liebman Square,
41st Street and Pine Tree Drive, Miami Beach.
Artist has agreed to perform any maintenance and/or repairs which, in the Contract Administrator's discretion, may be needed within the
two (2) year period from the date the City purchases the Artwork. The City and Artist agree to an Addendum (No. 1) to the Professional
Services Agreement dated August 5, 2022 between the City of Miami Beach and FWY STUDIOS, LLC.
Funding has been made available in a General Fund Citywide account shown below.
Attached:
1. Addendum No. 1 to the PSA dated August 5, 2022 between the CMB and FWY STUDIOS, LLC.
2. Reso No. 2023-32506
N/A
Grant Funded: Yes X No State Federal Other:
1
1 $170,000
011-9322-000353-90-400-592-00-00-00-
Yes I x No
1. For contracts longer than five years, contact the Procurement Department. 2. Attach any supporting explanation needed. 3. Budget approval
indicates approval for current fiscal year only. Future years are subject to City Commission approval of annual adopted operating budget.
City Commission Approved:
X
I Yes
No I
Resolution No.: CC Agenda Item No.:
CC Meeting Date:
2023-32506
C7 X
02/22/2023
If no, explain why CC approval is not required:
Legal Form Approved: X I Yes No I If no, explain below why form approval is not necessary:
DocuSi ned b
Procurement:
N/A
r nts
N/A
Budget:
Tameka Otto Stewrt
In m c ology:
N/A
Risk Management:
Marc Chevalier
a acilities:
BcsE
N/A
Human Resources:
N/A Other:
N/A
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
BEACH
ADDENDUM NO. 1
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
FWY STUDIOS, LLC
FOR
A TEMPORARY PUBLIC ART INSTALLATION AS PART OF ON STAGE!
MIAMI BEACH CULTURAL PROGRAMMING
This Addendum No. 1 (the "Addendum") to the Professional Services Agreement (the
"Agreement"), dated August 5, 2022, by and between the City of Miami Beach, Florida (the "City"),
a municipal corporation duly organized and existing under the laws of the State of Florida, and
FWY STUDIOS, LLC, a California limited liability company, whose address is 333 South Spring
Street, #G2, Los Angeles, CA 90013 (the "Artist").
RECITALS
WHEREAS, on August 5, 2022, the City and Artist executed the Agreement to fund the
production of a temporary public artwork entitled Starchild (2022), (the "Artwork") as part of Miami
Beach OnStagel arts and culture program; and
WHEREAS, Starchild is a 50-foot tall bright orange metal sculpture depicting the main
character in FriendsWithYou's newest body of work, a longform conceptual project in which the
artists are renaming the Earth to "Ocean" as a means to unify the planet; and
WHEREAS, the City installed the Artwork at Henry Liebman Square, 41" Street and Pine
Drive, where it has since remained; and
WHEREAS, following discussion by the Art in Public Places Committee and Cultural
Affairs Council (the "Committees"), the Committees recommended that the City acquire the
Artwork as part of the City of Miami Beach Art in Public Places Collection in a not -to -exceed
amount of $170,000; and
WHEREAS, there is $170,000 available in the City of Miami Beach Cultural Arts Council
fund to finance the purchase of Starchild; and
WHEREAS, on February 22, 2023, the Mayor and City Commission adopted Resolution
No. 2023-32506, in part, accepting the recommendation of the Art in Public Places Committee
and the Cultural Arts Council to purchase the Starchild sculpture from FWY Studios, Inc., in a total
amount not -to -exceed $170,000.00, with the intent that the work will remain permanently installed
at its current location at Henry Liebman Square, 41st Street and Pine Tree Drive, Miami Beach,
Florida 33140; and
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
WHEREAS, Artist has agreed to perform any maintenance and/or repairs which, in the
Contract Administrator's discretion, may be needed within the two (2) year period from the date
the City purchases the Artwork.
THEREFORE, in consideration of the mutual promises and conditions contained herein,
and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the
City and Artist hereby agree to an Addendum to this Agreement as follows:
1. ABOVE RECITALS
The above recitals are true and correct and are incorporated as part of this Addendum.
2. MODIFICATIONS
The Agreement is hereby amended (deleted items StFusk through and inserted items
underlined) as follows:
A. Section 3 Term
The term of this Agreement ("Term") shall commence upon execution of this Agreement by all
parties hereto (the Effective Date set forth on p. 1 hereof), and shall expire ante the AFtwel:k
has been depstalled fFen; the Site two (2) years from the date the Artwork is purchased by
the City.
B. EXHIBIT A
COMPENSATION AND SCHEDULE OF PAYMENTS
City shall pay FWY Studios, LLC. the total sum of
Four Hundred Twenty Thousand Dollars and No Cents ($420,000) for
the Work contemplated in this Agreement, which sum shall represent the total compensation
to FWY Studios, LLC. No other amount shall be paid to Contractor (including for
reimbursable expenses).
6. Payment #6: One Hundred Seventy Thousand Dollars and No Cents ($170,000) to be issued
upon receipt of maintenance and/or conservation documents and executed Bill of Sale in the
form attached hereto as Exhibit "C" at which point title to the Artwork shall pass to the City. All
documentation related to the design, fabrication and installation of the Project including,
without limitation "as built" documents shall be turned over to the Contract Administrator and
become the exclusive property of the City. The City shall be free to exhibit and/or reproduce
these documents if it deems necessary, in its sole and absolute discretion.
C. EXHIBIT B
ARTIST'S WARRANTIES
1. Artist warrants to the City that (a) the Proiect being commissioned is the original product of
Artist's own creative efforts: and (b) the Proiect is original, or in other words, an edition of one
(1). and shall in no way be duplicated, copied, and/or otherwise replicated by Artist with respect
to any future commissioned public or private projects.
2. Artist warrants and represents that it owns all title and interest in the Artwork,
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
3. Artist warrants to the City that reasonable maintenance of the Project will not require any
extraordinary procedures or efforts.
4. Artist warrants to the City that it shall deliver the Protect to the City free and clear of any
liens from any source whatsoever.
5. All copyrights, trademarks service marks, logos and other images related to the Artwork (if
any), and any right to commercially exploit the same (all of the foregoing, collectively and
individually, the "Intellectual Property") shall be the exclusive property of Artist. Artist may apply
to register any mark or copyright which depicts, is derived from, represents, duplicates, or is
related to the Artist and/or the Artwork.
Notwithstanding the above or any other term or condition of this Agreement, Artist hereby
grants to City a non-exclusive, perpetual, irrevocable, and royalty -free license to reproduce,
make, print and/or publish photographic filmed or videotaped reproductions, and other two-
dimensional likenesses, of the Artwork (including, without limitation, any proposals for the
Artwork) for any non-commercial public promotional purpose, or any other purpose that
promotes or identifies the Artwork as being located within the within the City or as part of its
Art in Public Places Program, including tourism -related promotional or collateral materials with
respect thereto, as determined solely by the City, in its discretion, for the entire term of the
copyright. In furtherance of the foregoing_ irrevocable non-exclusive license, Artist hereby
waives any rights, including moral rights that Artist may have to object to City's depiction of
the Artwork as being located within the City, in any promotional or collateral materials of the
City. It is understood that either of the parties to this Agreement may permit photographic,
filmed videotaped or other reproductions of the Artwork to appear in newspapers, magazines,
periodicals, books, motion picture films, videotaped films, and/or any other media.
Notwithstanding anything to the contrary herein any reproduction of the Artwork for
commercial purposes (including on merchandise or in commercial advertising for third party
products) shall be subiect to the Artist's advance written approval. In connection with any such
reproduction and publication by a third party, that party shall be solely responsible for arranging
any consent and/or credit with Artist and the City shall have no liability to Artist andior to third
parties as a result of any failure by third parties to obtain authorization by Artist, or give credit
to Artist for such third part,tyuses.
6. Artist warrants to the City that the Artwork is free from defective or inferior materials and
workmanship for two (2) years after the date of final written acceptance by the City, including
any defects or qualities causing or accelerating deterioration. If within two (2) years the City
finds the Artwork in need of repair, such repairs will be made promptly and satisfactorily by the
Artist and at no expense to the City. During the warranty period, if damages are caused by
events of Force Majeure including but not limited to vandalism or environmental conditions
that are not a result of the artwork application the City would be responsible for repairs.
Following this two year warranty period the work will be maintained as other works in the
collection. All repairs and restorations shall be made in accordance with recognized principles
of conservation. The date of final written acceptance of the artwork is noted as November 28,
2022.
7. If Artist fails to remedy any failure, defect, or damage within a reasonable time after receipt
of notice from City, the City shall have the right to replace, repair, or otherwise remedy the
failure defect, or damage at the Artist's expense.
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
8. Artist with respect to all warranties express or implied, shall:
a. Obtain all warranties that would be given in normal commercial practice;
b. Re uire_ afl_warranties to be, executed in writing, for the benefit of the City, if directed
ay the Contract Administrator% and
c. Enforce all warranties for the benefit of the City, if directed by the Contract
Administrator,
9. All of the far oq ing warranties and representations shall survive the expiration or termination
of this Agreement.
D. Subsection (A)(1) of Exhibit A (Scope of Services) is hereby deleted in its entirety.
RATIFICATION
Except as amended herein; all other terms and conditions of the Agreement shall
remain unchanged and in full force and effect. In the event there is a conflict
between the provisions of this Addendum and the Agreement, the provisions of this
Addendum shall govern.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
IN WITNESS WHEREOF, the Parttesne•eto nave executed this Agreement this
2023
CITY OF MIAMI BEACH
By:
Alina k, City Man3g
ATTEST
Rafael E Grarado'City lerk
0 5 2023
Date
FOR ARTIST;, --
By:
FkAN Studios, L C
ATTEST.
Print Name
Date
APPROVED AS TO
FORM & LANGUAGE
& F R EX7TION
City Attorney Date
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
RESOLUTION NO. 2023-32506
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE ART IN PUBLIC PLACES COMMITTEE
AND THE CULTURAL ARTS COUNCIL TO PURCHASE THE
STARCHILO SCULPTURE FROM FWY STUDIOS, INC., IN A TOTAL
AMOUNT NOT -TO -EXCEED $170,000.00, WITH THE INTENT THAT
THE WORK WILL REMAIN PERMANENTLY INSTALLED AT ITS
CURRENT LOCATION AT HENRY LIEBMAN SQUARE (WEST 41ST
STREET AND PINE TREE DRIVE); AND FURTHER DIRECTING THE
PUBLIC WORKS DEPARTMENT TO TAKE THE STEPS NECESSARY
TO REMOVE AND RELOCATE THE 5G UTILITY POLE LOCATED IN
THE VICINITY OF "STARCHILD" SCULPTURE (IF POSSIBLE), SO AS
TO NOT OBSTRUCT THE VIEWS OF THE SCULPTURE.
WHEREAS, FriendsWithYou, an art collaboration of Samuel Borkson and Arturo
Sandoval 111, produced StarChild (2022), the "Sculpture") as a temporary public art
installation for Miami Beach OnStage! arts and culture program; and
WHEREAS, Starchild is a 50-foot tall bright orange metal sculpture depicting the
main character in FriendsWithYou's newest body of work, a longform conceptual project
in which the artists are renaming the Earth to "Ocean" as a means to unify the planet;
and
WHEREAS, the City installed the Sculpture at Henry Liebman Square, 41 st Street
and Pine Drive, where it has since remained; and
WHEREAS, following discussion by the Art in Public Places Committee and
Cultural Affairs Council (the "Committees"), the Committees recommended that the City
acquire the Sculpture as part of the City of Miami Beach Art in Public Places Collection
in a not -to -exceed amount of $170,000; and
WHEREAS, there is $170,000 available in the City of Miami Beach Cultural Arts
Council fund to finance the purchase of StarChild; and
WHEREAS, furthermore, there is a 5G utility pole in the vicinity of the Sculpture,
which poses an aesthetic threat to the artwork and may obstruct view of the Sculpture
from certain viewpoints; and
WHEREAS, if technically feasible, the 5G utility pole should be relocated to a
nearby location that will not compromise the public's ability to view the artwork; and
WHEREAS, initial estimates from the City's Public Works department suggest
that removing and relocating the 5G utility pole is a 6-9 month -long project, that will cost
between $50,000-$60,000; and
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
WHEREAS, in an event that the removal and relocation of the 5G utility pole
exceeds $75,000, the Mayor and City Commission authorize the City Administration to
place this item directly on the Finance and Economic Resiliency Committee's agenda
for discussion and further action.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and
City Commission hereby accept the recommendation of the Art in Public Places
Committee and the Cultural Arts Council to purchase the "StarChild" sculpture from
FWY Studios, Inc., in a total amount not -to -exceed $170,000.00, with the intent that
the work will remain permanently installed at its current location at Henry Liebman
Square (West 41st Street and Pine Tree Drive); and further, direct the Public Works
Department to take the steps necessary to remove and relocate the 5G utility pole
located in the vicinity of "Star Child" sculpture (if possible), so as to not obstruct the
views of the sculpture.
PASSED AND ADOPTED this
ATTEST:
71 MAR - 1 20?3
Rafael E. Granado, City Clerk
day of F`e `r "y 2023.
Dan Gelber, Mayor
(Sponsored by Commissioner Alex J. Fernandez)
iINCORPRAIEO; s
4=
2
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
cuy wttomrr� oats
DocuSign Envelope lD:5478308F-80B6-4635-A338-C6AF13249811
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael A. Paz, City Attorney
DATE: February 22, 2023
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE ART IN PUBLIC PLACES COMMITTEE AND THE CULTURAL ARTS
COUNCIL TO PURCHASE THE STARCHILD SCULPTURE FROM FWY
STUDIOS, INC., INA TOTAL AMOUNT NOT -TO -EXCEED $170,000.00, WITH
THE INTENT THAT THE WORK WILL REMAIN PERMANENTLY
INSTALLED AT ITS CURRENT LOCATION AT HENRY LIEBMAN SQUARE,
41ST STREET AND PINE TREE DRIVE, MIAMI BEACH, FLORIDA 33140;
AND FURTHER DIRECTING THE PUBLIC WORKS DEPARTMENT TO
TAKE THE STEPS NECESSARY TO REMOVE AND RELOCATE THE 5G
UTILITY POLE LOCATED IN THE VICINITY OF "STARCHILD"
SCULPTURE, IF POSSIBLE, SO AS TO NOT OBSTRUCT THE VIEWS OF
THE SCULPTURE.
ANALYSIS
Pursuant to the request of Commissioner Alex Femandez, the above -referenced Resolution is
submitted for consideration by the Mayor and City Commission at the February 22, 2023
Commission meeting.
SUPPORTING SURVEY DATA
N/A
f� I: L•LZ�i Q�11�3•L�.I�L�I►J
The fiscal impact of this measure is $170,000.
Is this a "Residents Right Does this item utilize G.O.
WKnow" item, pursuant to Bond Fund
Cat Code Section 2-14?-
No No
legislative Tracking
Office of the City Attorney
Page 363 of 1109
DocuSign Envelope ID: 5478308F-80B6-4635-A338-C6AF13249811
Sponsor
Commissioner Alex Fernandez
ATTACHMENTS:
Description
D Resolution
Page 364 of 1109