2016-29576 Reso RESOLUTION NO. 2016-29576
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE A LICENSE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, GLOBAL SPECTRUM, L.P. D/B/A
SPECTRA VENUE MANAGEMENT, AND ART BASEL U.S. CORP., FOR
USE OF THE MIAMI BEACH CONVENTION CENTER FOR THE 2016 ART
BASEL SHOW.
WHEREAS, Art Basel in Miami Beach (ABMB) was established in 2000 as the sister
event of Switzerland's Art Basel, the world's most prestigious art fair for the past 42 years; and
WHEREAS, ABMB has become the preeminent contemporary art fair in the western
hemisphere and an established destination for artists, galleries, collectors, museum groups,
and other individuals interested in top quality art; and
WHEREAS, economists have estimated $400 million to $500 million annually in related
economic impact as a result of ABMB; and
WHEREAS, ABMB generates thousands of hotel room nights annually within the City of
Miami Beach, including 3,338 rooms on the peak night of the show during the 2014 Art Basel
show; and
WHEREAS, based on ABMB's room night confirmations, the City Commission
designated ABMB as a Marquee Event pursuant to the Miami Beach Convention Center
("MBCC") Booking Policy; and
WHEREAS, throughout 2016, the City and ABMB have met on a regular basis to assess
the progress of the MBCC Renovation Project, and to work through the various complexities
associated with reasonably accommodating the December, 2016 Art Basel show while the
MBCC is under construction; and
WHEREAS,"the Administration, ABMB and Global Spectrum, L.P. have negotiated the
License Agreement, attached as Exhibit "A" to the Commission Memorandum accompanying
this Resolution, to delineate the parties' respective rights and responsibilities with respect to the
use of the MBCC for the 2016 Event, including the City's maximum liability in the event of
material impacts to the use of the MBCC as a result of the MBCC construction.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approve and
authorize the City Manager and City Clerk to execute a License Agreement between the City of
Miami Beach, Global Spectrum, L.P. D/B/A Spectra Venue Management, and Art Basel U.S.
Corp., for use of the Miami Beach Convention Center for the 2016 Art Basel Show.
PASSED AND ADOPTED this 21 day of September, 2016.
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City Attorney RIW D
Resolutions -C7 A
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: September 27, 2016
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE A LICENSE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, GLOBAL SPECTRUM, L.P. D/B/A
SPECTRA VENUE MANAGEMENT, AND ART BASEL U.S. CORP., FOR USE OF
THE MIAMI BEACH CONVENTION CENTER FOR THE 2016 ART BASEL
SHOW.
RECOMMENDATION
The Administration recommends the approval of the attached License Agreement between the City of
Miami Beach, Global Spectrum, L.P. d/b/a Spectra Venue Management, and Art Basel U.S. Corp.
outlining terms and conditions for use of the Miami Beach Convention Center.
ANALYSIS
Art Basel in Miami Beach (ABMB) was established in 2000 as the sister event of Switzerland's
Art Basel, the world's most prestigious art fair.Although it was scheduled to launch in December
2001, the unfortunate events of September 11, 2001 delayed the inaugural event until 2002.
ABMB quickly became the preeminent contemporary art fair in the western hemisphere, and an
established destination for artists, galleries, collectors, museum groups and other individuals
interested in top-notch art. Each year, ABMB spends millions of dollars producing the fair and
economists have estimated $400 million to $500 million in related economic impact as a result
of the fair.
Messe Schweiz is the Swiss exhibition group that manages, operates and promotes Art Basel
and Art Basel in Miami Beach. On January 1, 2013, MCH formed a United States corporation in
the State of Florida by the name of Art Basel U.S. Corp. that is a wholly owned subsidiary of
MCH and acts as the new organizer of ABMB.
As set forth in the Miami Beach Convention Center(MBCC) Construction Booking Policy, due to
the construction of the MBCC Renovation Project, the MBCC is generally only booking "2 Hall"
shows at the MBCC during the construction period. However, in view of ABMB's importance to
the City of Miami Beach,ABMB is the sole exception to the 2 Hall booking policy, as the City has
agreed to accommodate ABMB as a "4 Hall" show, and has structured the phasing of the
construction work at the MBCC, at considerable cost and effort, to make available all four halls
Page 13 of 692
to ABMB during construction.
Throughout 2016, the City and ABMB have met on a regular basis to assess the progress of
the MBCC Renovation Project, and to work through the various complexities associated with
reasonably accommodating the December, 2016 ABMB show while the MBCC is under
construction. For this reason, negotiating agreed-upon terms and conditions for use of the
Convention Center for the 2016 Art Basel show has taken longer than expected.
Spectra, as manager of the MBCC and agent for the City, is generally authorized to enter into
agreements on behalf of the City (Owner) for use of space within the MBCC. This year, in view
of the specific terms that needed to be addressed in the License Agreement with respect to the
construction of the MBCC, the City is expressly included as a party to the License Agreement.
The proposed negotiated License Agreement, attached as Exhibit "A" to this Commission
Memorandum, addresses potential impacts from the construction and each party's
responsibilities, and the City's maximum liability, for impacts that may arise from construction, if
any. Specifically, City's maximum liability under the Agreement is limited to the refund of the
License Fee, the refund of certain "Other Costs and Expenses" paid by Licensee pursuant to
the Agreement, and an additional maximum not-to-exceed amount of $300,000. The
Administration submits that, given the amounts the City is spending to reasonably accommodate
the entire Art Basel show during construction, the foregoing limitation of liability, and the other
terms and conditions of the License Agreement, represents a fair allocation of risk between the
parties.
CONCLUSION
The Administration recommends the approval of the attached License Agreement between the
City of Miami Beach, Global Spectrum, L.P. d/b/a Spectra Venue Management, and Art Basel
U.S. Corp. outlining terms and conditions for use of the Miami Beach Convention Center for the
2016 Art Basel show.
KEY INTENDED OUTCOMES SUPPORTED
Maximize The Miami Beach Brand As A World Class Destination
Legislative Tracking
Tourism, Culture, and Economic Development
ATTACHMENTS:
Description
❑ Art Basel Resolution
❑ Art Basel License Agreement
Page 14 of 692
2016 MIAMI BEACH CONVENTION CENTER
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is made and entered into this day of September, 2016 (the "Effective
Date"),by and between Global Spectrum, L.P., d/b/a Spectra Venue Management, a Delaware limited partnership, having an office at
1901 Convention Center Drive, Miami Beach, Florida 33139, as agent on behalf of City of Miami Beach Florida ("Licensor"), and Art
Basel U.S. Corp, a Florida corporation, having an address at 1111 Brickell Ave, Ste. 1700, Miami, FL 33131, C/O MCH Swiss
Exhibition (Basel) Ltd. P.O. Box, CH-4005 Basel, Switzerland ("Licensee"), and the City of Miami Beach, Florida, a municipal
corporation, having an address at 1700 Convention Center Drive, Miami Beach, Florida ("Owner")(collectively referred to as"Parties",
or singularly as a"Party", as the case may be).
RECITALS
WHEREAS, the Owner owns the Miami Beach Convention Center, located in Miami Beach, Florida (the "Center"),
and has engaged Licensor to manage and operate the Center on the Owner's behalf as their exclusive agent;
WHEREAS, Licensor is authorized to enter into agreements on behalf of the Owner for use of space within the
Center;
WHEREAS, Licensee is in the process of planning the organization, operation and production of the international art
show titled Art Basel in Miami Beach, which is scheduled to be conducted during the period of November 30 -
December 4,2016(the"Show");
WHEREAS,the Center is undergoing construction in connection with that certain capital project of the Owner referred
to as the"Miami Beach Convention Center Renovation and Expansion Project"(the"Renovation Project");
WHEREAS, notwithstanding the progress of the Renovation Project, Licensee desires to license the Premises (as
defined herein)within the Center to serve as the primary venue for the production and operation of the Show during
the License Period(as defined herein);
WHEREAS,Licensor desires,and herein agrees, to license the Premises to the Licensee for the term of the License
Period, under and subject to the terms and conditions set forth within this Agreement.
AGREEMENT
NOW, THEREFORE, INTENDING TO BE LEGALLY BOUND, AND IN CONSIDERATION OF THE MUTUAL COVENANTS
AND PROMISES CONTAINED IN THIS AGREEMENT, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,THE PARTIES HERETO AGREE AS FOLLOWS:
SECTION I. SPECIFIC TERMS OF LICENSE
A. PREMISES, LICENSE PERIOD/TERM,AND LICENSE FEE
PREMISES: LICENSE PERIOD: LICENSE FEE:
Subject to Section 11.22 of this As further detailed below, and unless stated otherwise As further detailed below, and subject to
Agreement, and as further within this Agreement, the "License Period" shall begin at specified adjustments (if any) contained
detailed in Appendix A, the 12:01AM (EST) on Thursday, November 17, 2016 and within Section II of this Agreement,
"Premises" shall constitute the conclude at 11:59PM (EST)on Friday, December 9,2016. including termination, the total "License
below described portions of the Please note that although Thursday, November 24, 2016 Fee"for the full use and enjoyment of the
-Center(both Primary and Other). is Thanksgiving Day, the Center will remain open and Premises (both Primary and Other),
accessible to the Licensee and its agents employees, including applicable Florida state and
contractors and exhibitors. municipal sales and use tax, is US
$338,976.00, which shall be paid by the
Licensee in accordance_ with Section I.D
of this Agreement.
Page 17 of 692
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PRIMARY: License Fee Rate & Florida Sales Tax:
$79,200.00 based on 40,000 NSF,
The Premises shall include full Move-In: 11/17 (12:01AM) [Thurs.] — 11/29/2016 versus NSF rate ($1.98), whichever is
use and enjoyment of the entirety [Tues.] greater, per hall. ($.70 up to 6 days and
of Halls A, B, C, and D of the • SHOW: 11/30 [Wed.]—12/4/2016[Sun.] S.08 each additional day); plus
Center, as further described and Move-Out: 12/5[Mon.]—12/9/2016(11:59 P.M.)[Fri.] $22,176.00 for 7% Florida State Rental
depicted in Appendix A as Sales Tax.
attached hereto.
Total License Fee of. US$338,976.00.
Number of Days=23 Days
11/24/2016 at no charge
Total Number of Days=22
OTHER:
The Premises shall also include • Move-In: 11/17 (12:01AM) [Thurs.] — 11/29/2016 Included in License Fee.
the areas ancillary to Primary [Tues.]
Premises within the Center, as . SHOW: 11/30 [Wed."—12/4/2016[Sun.]
further described and depicted in Move-Out: 12/5[Mon.]—9/2016(11:59 P.M.)[Fri.]
Appendix A hereto
B. OFFICIAL NAME OF THE SHOW: Art Basel in Miami Beach •
C. EXPECTED ATTENDANCE AT SHOW: The expected guest attendance at the Show is estimated to be 77,000
persons.
D. PAYMENT OF LICENSE FEE:
i. Payment of the License Fee by the Licensee to Licensor shall be made in three (3)deposits, in the amounts and
by the due dates as detailed in the Payment Schedule below in Section I.D.ii., subject to termination and/or
adjustments as set forth herein or in Section II hereof.
ii. Payment Schedule:
Amount of Deposit Due Date of Deposit
E. CANOE
LLATIO Initial Deposit $ 183,398.00 Date of execution of Agreement
N OF
SHOW Final Deposit $155,578.00 10/17/2016[by 5:00PM (EST)]
BY LICENSEE:
i. In the event of a cancellation by Licensee of the Show(except as may be authorized by subsections 16, 18, 19
or 22 of Section II of this Agreement), Licensor shall not be required to refund any deposit amounts made(in
accordance with Section I.D.above)through the date of cancellation by the Licensee. Additionally,the parties
further agree that such deposit amount shall constitute cancellation fees, and not a penalty of any kind. The
remedies set forth in this section are in addition to,and not in lieu of,any other rights or remedies Licensor may
have,at law or in equity,in the event of a breach or cancellation of this Agreement by Licensee. Licensor and
Owner agree that Licensee shall not be liable under any circumstances to Licensor or Owner for any indirect,
special, punitive or consequential damages, or loss of revenue or profits, arising in connection with this
Agreement, in excess of the total aggregate liability set forth in Section II.12.C.
F. SPECIAL PROVISIONS AND CONDITIONS:
i. Initial Meeting Room Set-Up: Licensor shall provide a complimentary one-time set-up of equipment to
include tables, chairs, podium, and risers will be provided in the meeting rooms based on available
inventory. Any changes, re-sets or additional equipment will be charged at the prevailing rates per the Event
Guide.
ii. Air Conditioning:Air conditioning will be provided by the Licensor in all the Halls and the Meeting Quadrant
of the Premises during show days only. If air conditioning is required in the Meeting Quadrant during non-
show days in the Hall,Licensee shall be charged at the rate of$190.00 per hour,or$1,500.00 per day.
iii. Stagehand Labor: Stagehand labor at prevailing rates required for technical AN needs relating to sound,
lights and microphone hook-up. All stagehand labor estimates must be paid prior to the Show.
iv. Box Office:
a) Ticketing: Licensee will be charged box office fees as follows:$5,000.00 minimum or 3%of gross, •
whichever is greater; plus twenty one (21)credit card terminals at$110.00 each,four(4)of which
Page 18 of 692
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will be used for catalog sales; plus 5240.00 per phone line for each terminal used for catalog sales;
and one (1) terminal installed at the off-site marshalling yard (which must be wirelessly operated);
plus charge for all credit card sales(Box Office and catalog)at 3.5%of gross.
v. Right of First Refusal and Renewal: Notwithstanding any other provision contained within this Agreement,
provided that Licensee has at all times fully complied with its obligations under this Agreement, and subject
to the terms of this paragraph,Licensee shall have the Right of First Refusal and Renewal to hold the Show
at the Center on the specific dates set forth below (the "2017 Dates") in the year 2017, subject to the
progress of construction at the Center and its availability as a result thereof. "Right of First Refusal and
Renewal" shall mean the right, before any other licensee or potential licensee, to use the Center for the
Show on the 2017 Dates(as defined herein), on the same or similar financial terms as contained within this
Agreement. The "2017 Dates" are November 20, 2017 through December 15, 2017. In order to exercise
the Right of First Refusal and Renewal, Licensee must give written notice to the Licensor and Owner by no
later than December 9,2016, after which the Licensee, Licensor and Owner shall negotiate, in good faith,to
enter into a license agreement for the 2017 Dates in a form acceptable to all Parties prior to February 23,
2017, or another mutually agreed upon date (the "Right of First Refusal Period"). Upon written request by
Licensee any time prior to December 9, 2016, Licensor shall issue to Licensee a draft of the proposed
license agreement for the 2017 Dates. In the event Licensee fails to give written notice exercising the Right
of First Refusal and Renewal by December 9, 2016, Licensee's Right of first Refusal and Renewal shall be
null and void, and Licensor shall be free to license the Center to any third party on the 2017 Dates, in its
discretion.Failure to enter into a license agreement for the 2017 Dates prior to February 23, 2017 shall not
constitute a failure to properly exercise this Right of First Refusal and Renewal. Unless the Licensee
affirmatively waives the aforementioned Right of First Refusal and Renewal by written notice to the Licensor,
the Licensor may not conduct any negotiations or discussions whatsoever with any other possible or
potential licensees during the Right of First Refusal Period for(or during)the 2017 Dates.
vi. Use of P-Lot Event Area for 2017 Dates: Licensee shall have the right, in its sole and absolute discretion,to
use the portion of the surface parking lot identified as the"P-lot Event Area"in Appendix B attached hereto,
subject to and contingent upon Licensee's delivery to Licensor and Owner of written notice of its intent to
use the P-lot Event Area no later than June 1, 2017 due to a Material Impact (as defined in Section 11.22
below) that cannot reasonably be resolved prior to Licensee's load-in commencing on November, 2017.
Licensee acknowledges that Owner has otherwise entered into a license agreement with another event
organizer, Design Miami, LLC with respect to the use of the P-lot Event Area for the period coinciding with
the 2017 Dates, and further acknowledges that if Licensee does not exercise its right to use the P-Lot Event
Area by June 1, 2017,Licensee shall waive any right to use of the P-Lot Event Area.
vii. Competing Event Protection Clause: Licensor agrees that it will not lease or license any portion of the
Center, Premises or surrounding spaces and facilities to any Competing Event for the period commencing
30 days before Licensee's first show day, and concluding 30 days after Lessee's last show day (the
"Protection Period"). A "Competing Event" is hereby defined as an art fair or any other similar commercial
art event. The determination of whether or not an event is a "Competing Event" shall be within the
reasonable discretion of the Licensee, and shall be based upon the product lines in the proposed event's
show.The Licensor and Licensee further agree that the event show titled"Design Miami"shall not constitute •
a Competing Event for purposes of this subsection.
G. MISCELLANEOUS PROVISIONS:
i. RECITALS. The recitals set forth above are true and correct in all respects and are incorporated herein by
this reference.
ii. SECTION II TERMS AND CONDITIONS, APPENDIXES AND EXHIBITS CONSTITUENT PARTS OF THE
AGREEMENT.
a) Unless specified otherwise,the terms of Section I of this Agreement are subject to Section II of this
Agreement[Terms and Conditions]attached hereto following the signature page.The Parties agree
that Section II of this Agreement is hereby incorporated into this Agreement, and form an integral
part of this Agreement.
b) Further, the Parties hereby agree that each Appendix or Exhibit referred to in this Agreement or
attached hereto is hereby incorporated by reference in this Agreement as if such Appendix(es)or
Exhibit(s) were set out in full in the text of this Agreement, and form an integral part of this
Agreement.
iii. ENTIRE AGREEMENT.The Parties hereby agree that this Agreement is the entire agreement between the
parties. This Agreement cannot be amended or modified, unless agreed to in writing by all Parties.
iv. GUARANTY. Owner shall cause for Licensor,as agent of the Owner,to perform its obligations hereunder in
accordance with the terms of this Agreement.
v. REMEDIES. The rights and remedies provided by this Agreement are cumulative, and the use of any one
right or remedy by any party hereto shall not preclude or constitute a waiver of its right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights and remedies a party may
have by law,statute,or otherwise.
Page 19 of 692
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vi. COUNTERPARTS. This Agreement may be executed in one or more counterparts and by electronic or
facsimile signature,which signature shall be effective as if original signatures were exchanged, and all such
counterparts shall constitute a single instrument.
[SIGNATURE PAGE TO FOLLOW]
Page 20 of 692
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IN WITNESS WHEREOF,the undersigned have duly executed this Agreement by their authorized representatives on the date
set forth below.
LICENSOR: LICENSEE:
GLOBAL SPECTRUM, L.P., ART BASEL U.S.CORP.
d/b/a SPECTRA VENUE MANAGEMENT
By: By:
Name: Matt Hollander Name: Rene Kamm •
Title:General Manager Title: President
Date: Date:
OWNER:
CITY OF MIAMI BEACH
By: By:
Name:Jimmy L. Morales Name: Noah Horowitz
Title:City Manager Title: Director Americas
Date: Date:
APPROVED AS TO
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Page 21 of 692
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SECTION II. TERMS AND CONDITIONS
1. Grant of License;Premises. Subject to the terms and conditions herein set forth including,without limitation,Section 11.22, Licensor hereby grants
to Licensee the right and license to use the Premises as described in Section I.A and depicted in Appendix A(attached hereto),for the limited purpose of
holding the Show described within this Agreement, and not for any other purpose. Except as provided in Section 11.22 below, Licensee shall not have
access rights or privileges in or to any other part of the Center besides the Premises, except for the privilege of ingress and egress through the public
corridors identified in Appendix A,on a non-exclusive basis,as necessary to utilize the Premises.
2. Dates of Use;License Period;Term. Unless this Agreement is earlier terminated pursuant to the provisions hereof,Licensor grants to Licensee the
right to use the Premises for the Show during the License Period,the date(s)and time(s)of which are set forth in detail in Section I.A. The'Term"of this
Agreement shall begin on the date and time in which this Agreement is executed by the Parties,and shall end upon expiration of the License Period as
indicated in Section I.A above.The Term may not be extended by Licensee due to the schedule for construction of the Renovation Project. In the event
the.Term is extended pursuant to the preceding sentence, Licensee shall be responsible for any additional fees and costs required by Licensor in .
connection therewith.
3. Duties of Licensor. Except as may be otherwise specified in Section I.F above or Section 11.5.D, Licensor shall, at the sole cost and expense of
Licensee,provide(or cause to be provided),any and all personnel as may be required by Licensor(in its sole discretion)to properly staff the Center for the
Show and for the proper and safe presentation of the Show,including without limitation personnel to crowd control,first aid (EMT), fire personnel, badge
checkers,supervisors,janitorial staff,telecommunications staff,internet technology staff,box office staff,ticket takers,concession and catering staff and
other necessary support services customarily provided by Licensor for a like event, as applicable, and additional items, equipment, personnel and
services (such as telephone, internet and other services and utilities)which Licensee requests to be provided in connection with the Show and which
•
Licensor is reasonably able to provide,all of which shall be subject to the approval of Licensor. It is understood by Licensee that services,labor and
equipment will be provided only to the extent of existing available inventory and in consideration of other Center events and activities. •
4. Non-Refundable Deposit. A non-refundable initial deposit in the amount set forth in Section I.D is due and payable to Licensor according to the
payment schedule set forth in Section I.D. Such deposit shall be credited to the License Fee and reimbursable expenses described below. Licensee
shall not be entitled to the payment of any interest whatsoever on the deposit paid to Licensor.This deposit is non-refundable without regard to whether
Licensee makes use of the Premises. If the deposit(or any portion thereof)is not paid on or before the due date(s)specified in Section I.D, Licensor
may terminate this Agreement, in its sole discretion, by providing written notice of termination to Licensee. Any such termination shall be in addition to
any other right or remedy available to Licensor at law or in equity arising out such breach by Licensee, including Licensor's right to recover damages.
Notwithstanding anything to the contrary within this Agreement,the foregoing is subject to subsections 16, 18, 19 or 22 of Section 11 of this Agreement.
5. License Fee;Other Costs and Expenses.
A. License Fee: In consideration of the license granted hereunder, Licensee agrees to pay to Licensor the License Fee, as detailed
and set forth In Section I.A above.The License Fee shall be paid by Licensee in accordance with the terms set forth in Section I.D of this Agreement.
B. Other Costs and Expenses: In addition,unless otherwise set forth in Section I.F above,the Licensee agrees to reimburse Licensor
for any and all costs incurred by Licensor directly in connection with Licensee's use of the Premises, including,without limitation,costs incurred for the
provision of the items,services and personnel described in Section 11.3 above pursuant to the MBCC Event Guide or otherwise requested by Licensee
(the"Other Costs and Expenses"),;all such costs shall be paid by Licensee prior to the Show,in accordance with the MBCC Event Guide and estimates
provided by Licensor and approved by Licensee. Unless otherwise provided for within this Agreement, any Other Costs and Expenses relating to
changes in the Show requirements shall,unless otherwise agreed by Licensor, be billed to Licensee as part of the final settlement,provided;however,
that Licensor shall notify Licensee of any Other Costs and Expenses in excess of$5,000 per expense on or before such Other Costs and Expenses are
incurred.
C. In the event Licensee fails to remit payment when due of any amounts(whether License Fee or Other Costs and Expenses),interest
shall accrue on such overdue amounts at the rate of 0.5% per month (6% per annum, non-compounded), or the maximum rate permitted by law,
whichever is less. Unless otherwise agreed by Licensor,payments shall be made by money order,wire transfer,or certified check.
D. As part of the costs set forth In Section 11.5.B, Licensee shall be responsible for expenses for fire inspections and fire watch
• personnel in the amount of$77,000. Owner shall be responsible for all expenses in excess of$77,000 for fire watch personnel that may be required by
agencies having jurisdiction.
6. Delay of Possession.
A. In the event Licensor Is not able to tender possession of the Premises to Licensee because of any delay arising from a Material
Impact(as defined in Section 11.22),then as long as such Inability continues,the License Fee shall be reduced in accordance with the formula set forth In
this Section 1I.6.A, and further subject to the terms set forth in Section 11.22. For purposes of the pro-ratable reduction in this Section I1.6.A, in the
following formula, "X"shall represent the number of calendar days the Licensor is not able to tender possession of the Premises to Licensee and"y"
shall represent the percentage of the License Fee to be reimbursed to the Licensee by the Licensor:
(i) If"X"equals more than six(6)hours but less than 24 hours,then"Y"equals 5%of the License Fee;
(ii) If"X"equals more than 1 calendar day but less than 3 calendar days,then"Y"equals 10%of the License Fee;
(iii)If"X"equals 3 calendar days,then"Y"equals 50%of the License Fee;
(iv)If"X"equals 4 or more calendar days but less than 7 calendar days,then"Y"equals 75%;and
(v) If"X"equals 7 cr more calendar days,then°Y"equals 100%.
If Licensor delays in tendering possession of the Premises by 7 calendar days or more,such delay shall also be subject to cancellation or termination as
set forth in Section 18.
B. Should Licensee fall to vacate and surrender the Premises at the end of the License Period, Licensee shall pay to the Licensor
$500.00 per hall, per hour for use and occupancy for that portion of the Premises that has not been vacated and surrendered. Further,the Licensor
may,as a bailee,and using reasonable care,remove and store all goods and chattels at the sole expense of the Licensee and may dispose of any such
property if, after the expiration of 15 calendar days after the end of the License Period, the Licensee has failed to remove the property from the
Page 22 of 692
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possession of the Licensor,upon prior written notice. The Licensor shall not be liable to the Licensee on account of so removing,storing,or disposing of
any property as provided by this subsection and Licensee shall save and hold Licensor harmless from any liability from another licensee who is
prevented from occupying their licensed portion of the Premises due to the holding over of the Licensee.
7. Food and Beverage.Licensor shall have the exclusive right to provide food and beverage services in connection with the Show at the Center,acting
through the Center's contracted food and beverage provider, Centerplate("F&B Provider"). No other Individual or organization is permitted to bring food
or beverage products into the Center without the express written consent of Licensor.
Notwithstanding anything to the contrary herein contained, the parties agree that F&B Provider shall also release its exclusivity with respect to catering
services for the Event;provided,however,that this release shall not preclude F&B Provider from providing services at Art Basel should F&B Provider be
selected by Art Basel as its food and beverage(F&B)service provider. Should Licensee elect to use outside food&beverage services, F&B Provider
may still provide F&B services to ancillary Art Basel events,such as Net Jets and UBS,but only if requested by the promoter/producer of the events.In
releasing its exclusivity for Licensee,F&B Provider shall incur no costs and shall be entitled to collect ten percent(10%)of gross receipts from Licensee
derived from the use of any replacement F&B Provider(or such other lump sum fee as may otherwise be agreed upon in writing between F&B Provider
and the Licensee). In addition, Licensor shall be entitled to collect ten percent(10%)of gross receipts from Licensee(or such other lump sum fee as
may otherwise be agreed upon in writing).
8. Show Requirements. Licensee shall provide to Licensor all necessary set-up instructions(personnel,equipment,utilities,layout,etc.)for the Show
no later than sixty(60)days prior to the commencement of the License Period(or,if this Agreement is executed and delivered less than sixty(60)days
from the commencement of the License Period,then immediately upon execution hereof). Such Instructions shall include a copy of a full and complete
floor plan for any planned exhibition at the Show. If such instructions are not provided to Licensor by such date, or if changes are made to such
instructions after they have been provided to Licensor and Licensor incurs additional costs or expenses as a result of such changes,Licensee shall be
responsible for such additional costs and expenses at Licensor's prevailing rates, and shall be included as part of the Other Costs and Expenses
described in Section 11.6.B above. No set-up of any exhibits may begin without proof of approval of such floor plan by the Fire Marshal of the City or
County in which the Center is located,as applicable,and by the Licensor.
9. Advertising and Promotion. Licensee shall have the right to publicize the Show prior to execution of this Agreement by Licensor. Licensee
warrants that all advertising of the Show will be accurate and truthful,and will include accurate Information of the times and ticket prices(if applicable)of the
Show. All advertising of the Event shall be subject to the prior written approval of Licensor(which shall not be unreasonably withheld). All advertising
materials associated with the Show shall use the official name of the Center. Licensor shall remove all advertising from video monitors located
throughout the Center, and shall provide Licensee with the right to use the Center's video monitors during the License Period for its own promotional
purposes and/or for sponsor advertising, subject to Licensor's prior written approval, which shall not be unreasonably withheld. Licensor shall retain
control and use of all other advertising displays located throughout the Center. Licensee shall not interfere with, block, remove or otherwise disturb
advertising or promotions within or about the Center without the prior written consent of Licensor. Signs containing commercial or sponsored advertising
messages must be approved in advance In writing by Licensor. Licensor agrees that,during the License Period,it will not print or display advertising or
promotional materials for any other fine art show or event. Licensee agrees to open the Event to the public(provided such persons have valid tickets or
are otherwise properly authorized by Licensee)in accordance with advertised times and in compliance with Center policies. •
10. Licenses: Permits. Licensee shall secure prior to commencement of the License Period, with the Licensor's and the Owner's reasonable
cooperation and assistance(at Licensee's expense),all licenses,permits and approvals that may be required In connection with the use of the Premises
for the Show,Including without limitation those required by ordinances,rules and/or regulations of governmental authorities,and all licenses required by
any performing arts societies such as ASCAP or BMI for music or other copyrighted works to be utilized or displayed at the Show; provided, however,
Licensee shall not be required to secure any permits for the general occupancy of the Center,or any music licenses from SESAC(each of which has
previously been secured by Licensor or the Owner). Licensee shall defend, indemnify and hold harmless Licensor and the Owner from any and all
claims,fees,expenses, costs or damages, including reasonable attorneys'fees and court costs,suffered or incurred by such parties In connection with
any breach of this paragraph. The requirement of Owner's reasonable cooperation and assistance shall be limited to Owner's role in its proprietary
capacity as the owner of the Center,and shall not apply to or be otherwise be construed to limit any action that may be taken by Owner in its regulatory
capacity through any agencies having jurisdiction over the Center or the conduct of activities within the Center or the Show(i.e., Building Department,
Fire Department,Police Department,etc.).
11. Insurance.
A. Coverage. Licensee shall obtain,at its own cost and expense,with insurance companies currently rated A VIII or better by Best's
Key Rating Guide,commercial general liability Insurance that insures all operations of Licensee contemplated by this Agreement. Such insurance shall
name Global Spectrum. L.P.and the City of Miami Beach as additional Insureds. Such insurance shall be written with a limit of at least One Million
Dollars($1,000,000) per occurrence combined single limit for bodily Injury, property damage and personal injury. Licensee shall also maintain, at its
own cost and expense,with insurance companies currently rated A VIII or better by Best's Key Rating Guide,commercial automobile liability insurance,
including coverage for the operation of owned,leased,hired and non-owned vehicles, in the minimum amount of One Million Dollars($1,000,000)per
accident(PI and PD combined single limit). Such commercial general liability insurance shall be primary to and not contributory with any Insurance
coverage or self-insured program of Licensor and Licensee and their insurance shall have no right of recovery or subrogation against the Licensor.
Licensee shall also maintain,at its own cost and expense, workers' compensation insurance in respect of all employees and any borrowed, leased or
other person to whom such compensation may be payable by Licensee.
B. Certificates. Certificates evidencing insurance required pursuant to this Section 11 shall be provided to Licensor not less than thirty
(30)days prior to commencement of the License Period, provided that if this Agreement is executed and delivered less than thirty(30)days prior to the
License Period,the certificates shall be provided immediately upon execution of this Agreement. The policies shall also provide,and the certificate shall
so note, that the coverage may not be canceled or that a major change in coverage may not be implemented without at least thirty(30)days'prior
written notice given to Licensor.
12. Indemnity; Limitation on Liability.
•
A. Indemnification.
(i) Licensee hereby agrees to indemnify, defend, and hold harmless Licensor and the Owner and their respective officials,officers,
directors, agents, employees, successors and assigns from and against any and all claims, damages, expenses, costs (Including, without
limitation,reasonable attorneys'fees)and liabilities(collectively,"Claims")arising or alleged to arise from(I)any breach of this Agreement by
Licensee, (II) any alleged or actual violation or Infringement by Licensee or its employees, agents or contractors of any copyright or other
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Intellectual property right of a third party in connection with the Show or activities occurring at the Show, (iii) the use or occupancy of the
Center by Licensee, its employees, agents, contractors, exhibitors, invitees, guests or patrons, and (iv) the acts or omissions, or violation of
any applicable law, rule, regulation or order, of or by Licensee or any of its employees, agents, contractors, exhibitors, invitees, guests or
patrons. Notwithstanding the foregoing, the obligations of Licensee in this subparagraph shall not apply to the extent the Claims or Costs
arise out of the gross negligence or intentional misconduct of Licensor or Owner, or their respective officials, officers, directors, agents,
employees,or successors.
(ii) Solely to the extent and limits permitted by Florida Statute 768.28 and the limitations therein, and without waiving any rights or
defenses thereunder,and further subject to the limitation set forth in Section 11.12.C, Owner hereby agrees to indemnify, defend, and hold
harmless Licensee and their respective officials,officers,directors,agents,employees, successors and assigns from and against any and all
Claims arising or alleged to arise from (i) any breach of this Agreement by Licensor or Owner, (ii) any alleged or actual violation or
infringement by Licensor or Owner or their respective employees,agents or contractors of any copyright or other intellectual property right of a
third party in connection with the Show or activities occurring at the Show, and (iii)the acts or omissions, or violation of any applicable law,
rule, regulation or order,of or by Licensor or Owner or any of their respective employees, agents, contractors, exhibitors, invitees,guests or
patrons. Notwithstanding the foregoing, the obligations of Licensor or Owner in this subparagraph shall not apply to the extent the Claims or
Costs arise out of the gross negligence or intentional misconduct of Licensee, or its officials, officers, directors, agents, employees, or
successors.
B. Condition of Premises. Subject to Section 11.22 and any other warranties or representations made within this Agreement, Licensee
understands and agrees that the Premises shall be delivered by Licensor to Licensee"AS IS,""WHERE IS"and "WITH ANY AND ALL FAULTS"and
without warranty,express or implied,as to the merchantability or fitness for the use thereof for any particular purpose,provided,however, that Licensor
and Owner expressly represent to Licensee that the Premises or any portion thereof shall(1)comply with all applicable laws and regulations,including,
without limitation, the ADA and local zoning codes and ordinances(or has obtained valid variances or exceptions),or(2) be subject to any conditions
imposed by regulatory agencies having jurisdiction over the Center(provided,however,that such conditions are not considered a Material Impact).
C. Limitation on Liability. The Parties recognize the relative risks and benefits of holding the Event at the Center during the
construction of the Renovation Project,and desire to enter into this Agreement only if in so doing each Party can place a limit on its liability for any cause
of action for any claims, losses, costs or damages due to an alleged breach of this Agreement by any other Party. Accordingly, Owner and Licensor
agree that the total aggregate liability of the Licensee for any claims,damages,expenses or losses arising out of this Agreement shall be limited to the
fees identified in Section 11.5. Licensee agrees that the total aggregate liability of the Owner and Licensor (collectively) for any claims, damages,
expenses or losses arising out of this Agreement, shall be limited to the refund of the License Fee, the refund of Other Costs and Expenses paid by
Licensee that are uncommitted and/or cancelable, and an additional maximum not-to-exceed amount of$300,000. The Parties intend for the limitation
of liability set forth herein to apply to the maximum extent permitted by law,and notwithstanding any other provision of this Agreement to the contrary.
(i)Subject to Section 11.22 of this Agreement, Licensor and Owner shall not be liable under any circumstances to Licensee or to Its
officers, employees, agents, licensees, sponsors, exhibitors, contractors, or any other person claiming through Licensee, for any Indirect,
special, punitive or consequential damages,or loss of revenue or profits,arising in connection with this Agreement,even if Licensor has been
advised of the possibility of such damages. Furthermore, Licensor and Owner shall not be responsible or liable for any injury or death to
person or loss or damage to property sustained by Licensee, its officers, employees,agents, licensees, sponsors, exhibitors,contractors,or
any other person claiming through Licensee,resulting from any condition,accident or occurrence in or upon the Premises,unless such injury,
loss or damage is due to the gross negligence or intentional misconduct of Licensor, Owner, or their respective officials, officers,directors,
agents, employees, or successors. The maximum aggregate liability of Licensor and Owner for all claims, damages, expenses or losses
arising out of this Agreement,including,without limitation,claims,damages,expenses or losses relating to a Material Impact(s)(as defined in
Section 11.22.6, or otherwise with respect to the Renovation Project and the corresponding construction activity at the Center, shall be as
specified in this Section 11.12.0 and Section 11.22 of this Agreement.
(ii)Unless specifically provided for within this Agreement,Licensee shall not be liable under any circumstances to Licensor or Owner
or to their respective officers, employees, agents, licensees, sponsors, exhibitors, or contractors for any indirect, special, punitive or
consequential damages,or loss of revenue or profits, arising in connection with this Agreement, even if Licensee has been advised of the
possibility of such damages. Furthermore, Licensee shall not be responsible or liable for any injury or death to person or loss or damage to
property sustained by Licensor,Owner, or its officers, employees, agents, licensees, sponsors, exhibitors, contractors,or any other person
claiming through Licensor or Owner,resulting from any condition,accident or occurrence in or upon the Premises, unless such injury,loss or
damage is due to the gross negligence or intentional misconduct of Licensee or its respective officials,officers,directors,agents,employees,
or successors. The maximum aggregate liability of Licensee for any and all claims, damages, expenses or losses arising out of this
Agreement shall be as specified In this Section 11.12.0.
(iii) Nothing contained in this subsection, or elsewhere in this Agreement, is in any way Intended to be a waiver of the limitation
placed upon Owner's liability,as set forth in Section 768.28,Florida Statutes.
D. Survival. The provisions of this Section 11.12 shall survive any expiration or termination of this Agreement for one(1)year from the
date of this Agreement.
13. Compliance With Laws and Rules of the Premises:Taxes. The Parties shall fully abide by,conform to and comply with,and shall cause every
person under its direction or control who is connected with the performance of any aspect of this Agreement to fully abide by, conform to and comply
with all applicable laws, rules,regulations and ordinances of the United States of America, the State of Florida,the County of Miami-Dade,the City of
Miami Beach and their respective agencies,as well as(in the case of the Licensee)all rules,regulations and policies of Licensor for the use,occupancy
and operation of the Premises. Licensee agrees to pay promptly all taxes assessed on its activities at the Center hereunder,including applicable sales tax
on the licensing of the Premises.Licensor acknowledges that all applicable sales and use tax on the licensing of the Premises has already been included in
calculation of the License Fee,as detailed in Section IA above.
14. Use of the Premises.
A. Duty of Care; Return of Premises. Licensee shall use the Premises In a safe and careful manner. Licensee agrees not to do or
allow to be done any act which shall mar, deface or injure any part of the Premises, nor shall Licensee change or rearrange any equipment or other
property on the Premises without Licenser's prior written approval. Upon expiration of the Term,Licensee shall deliver up to Licensor the Premises In as
good condition and repair and In the condition received at the beginning of the License Period,excepting usual wear and tear. Prior to expiration of the
Term, Licensee shall remove from the Center any and all property, goods, or other effects belonging to, or brought into the Center by, Licensee, its
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employees, agents, contractors, representatives, guests or invitees. If Licensee fails to do so, Licensor may store or cause to be stored any such
property at Licensee's expense. Alternatively, Licensor may deem such property to be abandoned and sell such property in such a manner and to such
an extent as is permitted by applicable law,and apply the proceeds of such sale(s)in a manner determined by Licensor in its sole discretion.
B. Licensor Access and Control. Licensee shall, and shall cause its employees,agents and exhibitors and contractors to,follow any
and all rules, regulations and policies of the Center,including any instructions of Licensor's representatives regarding Licensee's use and occupancy of
the Center. In licensing the use of the Premises to Licensee, it is understood that Licensor does not relinquish the right to control the management
thereof and to enforce all necessary rules and regulations. Licensor shall at all times have the right to limit the number of people attending the Show,for
the purpose of ensuring the safety of people and property at the Premises.
C. Disorderly Conduct. Licensor reserves the right at all times to refuse admission to or to cause to be removed from the Show,the
Premises and/or the Center any disorderly person, including Licensee's employees, agents, contractors,exhibitors,guests and invitees,as determined
by Licensor in its sole discretion, and in the event of the exercise of such authority, Licensee hereby waives any and all claims for damages against
Licensor and the Owner on account thereof.
D. Broadcasting. Licensee shall not televise or broadcast the Show or any part thereof live without the prior written approval of
Licensor(which may be withheld in Licensor's reasonable discretion, and may be conditioned on Licensee paying an additional fee for the privilege to
broadcast the Show,or Licensee procuring additional insurance to cover such broadcasting activities).
E. Drayage. The Licensor and the Owner and their respective officials, officers, directors, agents, employees, successors and
contracted service providers will not be responsible for the acceptance of any and all drayage,to include:crates,packages,equipment and/or any other
chattels, before, during or after the licensed Term of the Agreement All drayage must be delivered and accepted by an authorized official, officer,
director, agent, employee and/or General Service Contractor on or after the first day Licensee takes possession of the licensed area(s) outlined in
Section I.of the Agreement.Drayage delivered to the Center beyond the licensed Term will be deemed undeliverable and returned to the original origin.
15. Tickets/Box Office.
A. Generally. Unless otherwise agreed to in writing,Licensor shall provide all ticket and/or box office services for Licensee in connection
with the Show. Unless specified otherwise in Section I.F above, as consideration for the performance of such duties by Licensor, Licensee shall pay
Licensor any additional fees described in Section I,F.iv above in accordance with Section 11.5.8(Other Costs and Expenses). Further, Licensor shall have
complete control over the box office,which will sell tickets to the Show only on the days of the Show,unless prior arrangements have been agreed to in II
writing by the Parties hereto,
B. Ticket Proceeds. Licensor shall have complete and sole custody and control of any and all monies received from the sale of tickets. All
such funds shall be the rightful property of Licensor for the purposes of applying same toward payment of any balance for Other Costs and Expenses due or
to become due to Licensor,in accordance with the terms and conditions of this Agreement. The balance shall be remitted to Licensee immediately following
the Show.
C. Sale of Tickets. Licensee agrees that all tickets to the Show shall be sold at the prices as advertised by Licensee and that any
changes in ticket prices shall require the prior approval of Licensor. Licensee shall be responsible for all check and credit card service charges and
other similar fees, charges and expenses incurred in connection with the sale of tickets for the Show. Licensee shall be responsible for the credit
worthiness of its guests and patrons,and shall cover and be responsible for any invalid or fraudulent checks,checks returned due to insufficient funds or
for any other reason,credit card penalties and similar or related penalties,fees,charges and/or expenses incurred by Licensor in connection herewith.
Licensee will not permit tickets or passes to be sold or distributed in excess of the maximum capacity of the Premises,as determined by Licensor in its
sole discretion.
D. Taxes. Licensee shall be responsible for filing of any required federal, state or local tax or information returns and the payment of all
sales,admission,excise and other taxes due,if any,in connection with the Show or admissions thereto. Licensor shall have the right(but not the obligation)
to collect and/or withhold any such taxes or business license fees due in connection with ticket sales,and to remit such taxes directly to the proper authority
or agency.
16. Cancellation of Show by Licensee. In the event of a cancellation by Licensee of the Show(except as may be authorized by Section I.E above,or
subsections 18, 19 and 22 of this Section II), no deposit refund shall be made. Additionally, and unless indicated otherwise in Section I.E above or
elsewhere within this Agreement, Licensee shall be obligated to pay the full amount of the License Fees contemplated to be due hereunder had the Show
actually occurred. The parties agree that Licensor will be damaged by any such cancellation,and that the exact amount of such damages would be either
impossible or inconvenient to prove,and that the amounts set forth in the preceding sentence are a reasonable estimate of the amount of such damages.
The Parties further agree that such amount shall constitute a cancellation fee,and not a penalty of any kind.The remedies set forth In this subsection are In
addition to,and not in lieu of,any other rights or remedies Licensor may have,at law or In equity,in the event of a breach or cancellation of this Agreement
by Licensee. Licensee shall not be liable under any circumstances to Licensor or Owner or to or to their respective officers, employees, agents,
licensees, sponsors, exhibitors, or contractors for any indirect, special, punitive or consequential damages, or loss of revenue or profits, arising in
connection with its cancellation of this Agreement,in excess of the total aggregate liability set forth In Section 11.12.C.
17. Coat Checkroom. Unless otherwise agreed by Licensor in writing,Licensor reserves the exclusive right to operate,or contract for the operation of
a coat checkroom.
18. Termination. Either party may terminate this Agreement in the event the other party falls to perform any of its material obligations under this
Agreement, and such failure has not been cured within fifteen (15)days (or 5 days In the event of a payment default) after the date on which the
breaching party receives written notice describing such breach in reasonable detail except as provided in Section 11.22. Notwithstanding the foregoing,
In the event Licensee fails to provide the insurance certificate required herein by the date due hereunder,or if Licensor may suffer irreparable harm as a
result of the breach by Licensee, Licensor shall not be required to wait any period of time before terminating this Agreement or pursuing any remedies
hereunder or under applicable law. Any termination of this Agreement shall not prejudice any other right or remedy available to the non-breaching party
at law or in equity. In the event Licensor and/or Owner terminates this Agreement due to a material breach or default by Licensee, Licensor and/or
Owner may retain as damages any License fees paid by Licensee under this Agreement(Including the Initial Deposit),without prejudice to any other
legal rights or remedies Licensor may have. Similarly, In the event Licensee terminates this Agreement due to a material breach or default by the
Licensor or Owner or pursuant to Section 11.22, Licensor shall return the full amount of any and all fees, costs or expenses paid to the Licensor or
Owner,which shall include,without limitation,the License Fee,and any advance payments for Other Costs and Expenses pursuant to Section 11.5.
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19. Force Majeure. Should Licensee be unable to take possession of the Premises, present the Show or to perform its obligations hereunder, when
such failure,directly or indirectly, is caused by or in any manner arises from an Event of Force Majeure(defined herein), then the Parties shall not have
any liability under the Agreement and Licensee, as its sole remedy and relief, shall receive a refund of any uncommitted or cancelable advance
payments,including,without limitation,the Initial and Final Deposit,less any expenses directly incurred by Licensor in preparing for the Show(but not to
Include general costs and expenses related to the Renovation Project). The term "Event of Force Majeure"shall mean any and all acts of God,strikes,
lock-outs: acts of the public enemy, laws, rules and regulations of governmental or quasi-governmental entities, wars or warlike action, arrest or other
restraint of government(civil or military),blockades,insurrections,riots,terrorism or terrorist threats,epidemics,earthquakes,hurricanes,storms,floods,
washouts, fire or other casualty,civil disturbances, explosions, threats of bombs or similar interruptions,confiscation or seizure by any government or
public authority,nuclear reaction,radioactive contamination,accidents,or any other causes,whether of the kind herein enumerated or otherwise that are
not reasonably within the control or caused by the party claiming the right to delay the performance on account of such occurrence;provided,however,
in no circumstances shall the monetary inability of a party to perform any obligation contained in this Agreement be construed to be an Event of Force
Majeure. Upon removal or cessation of the Event of Force Majeure,the parties'respective rights and obligations hereunder shall be reinstated for any
and all subsequent sessions of the Show remaining in the Term(if any);provided;however,that the declaration and notice of an Event of Force Majeure
and subsequent cessation of the cause of such Event of Force Majeure shall not require Licensee to move forward with the Show if, in Licensee's
reasonable belief, it will result in significantly diminished attendance and/or cancellations or cause Licensee an unduly burdensome financial Impact.
The parties hereto agree and acknowledge that entering into this Agreement while an Event of Force Majeure is existing or foreseeable, is not an
affirmative waiver of such party's right to subsequently declare an Event of Force Majeure for substantially the same or other reasons and causes: As
set forth more fully in Section 11.23 below,the Parties expressly acknowledge and agree that the occurrence of Zika virus transmissions within the City of
Miami Beach,Florida shall not constitute an Event of Force Majeure under this Agreement.
20. Non-Discrimination/Americans With Disability Act. Licensee agrees not to discriminate against any employee or applicant for employment to
be employed in the performance of or in relation to this Agreement,with respect to the hire,tenure,terms,conditions or privileges of employment,or any
other matter directly or indirectly related to such employment,whether on account of race, marital status,color, religion,national origin,ancestry, age,
sex,sexual orientations or handicap except where based on a bona-fide occupational qualification. With respect to the Show,Licensee recognizes that it
is subject to the provisions of Title III of the Americans With Disabilities Act,as amended("ADA"). To the extent that Licensee reconfigures,modifies,alters,
rearranges, or otherwise prepares or"sets up"the Premises or any other portion of the Center in order to accommodate the Show, Licensee shall be
responsible for ensuring that such areas comply (and continue to comply throughout the License Period)in all respects with the ADA, including without
limitation with regard to accessibility, usability,and configuration. Licensee shall be solely responsible for providing auxiliary aids or any modification of the
Premises or other portions of the Center that may be required in order to accommodate the Show, and for ensuring that the policies, practices, and
procedures it applies in connection with the Show are in full compliance with the ADA.
21. Miscellaneous.
•
A. Entire Agreement; Amendments; Governing Law. This Agreement represents the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes any and all prior understandings,written or oral,among the parties hereto. This Agreement may
only be modified or amended by a subsequent written agreement signed by an authorized representative of Licensor and by Licensee. This Agreement
shall be governed by the laws of the State of Florida applicable to contracts made and to be performed in such state,without regard to conflicts of laws
principles.
B. NOT USED. •
•
C. WAIVER OF JURY TRIAL. AS PART OF THE CONSIDERATION FOR ENTERING INTO THIS AGREEMENT, EACH PARTY
HERETO HEREBY WAIVE THEIR RIGHTS TO TRIAL BY JURY.
D. Notices. Notices by Licensor and Licensee to each other shall be deemed duly given if(i)delivered personally with a signed receipt •
evidencing such delivery, (ii)transmitted by telecopier with confirmation of transmission,(iii)mailed by certified mail, return receipt requested, postage
prepaid,or(iii)delivered by duly recognized air courier service to the addresses indicated in the opening paragraph hereof.
All notices sent to Licensor shall be sent to the attention of General Manager at Global Spectrum, 1901 Convention Center Drive,
Miami Beach,Florida 33139(Fax:305-673-7435;Email:matt_hollander @miamibeachconvention.com)and also to Global Spectrum,3601 S.
Broad Street,Philadelphia,Pennsylvania Attn:General Counsel,Fax 215-952-5651 and City of Miami Beach, 1700 Convention Center Drive,
Miami Beach,Florida 33139 Attn: Max Sklar, Fax 305-673-7063.
All notices sent to Licensee shall be sent to the following:
Art Basel U.S.Corp.
C/O MCH Swiss Exhibition(Basel)Ltd.
Messeplatz 10,CH-4005 Basel,Switzerland
Attention:Maureen Bruckmayr,Head of Business and Management,Americas
Fax at 011-41-58-206-31-32
Art Basel U.S.Corp.
C/O MCH Swiss Exhibition(Basel)Ltd.
Messeplatz 10,CH-4005 Basel,Switzerland
Attention: Noah Horowitz,Director Americas
Fax at 011-41-58-206-31-32
E. Assignment. This Agreement shall not be assigned nor shall Licensee's right to use the Premises be sublicensed by Licensee
without the prior written consent of Licensor in each instance,which may be withheld in Licensor's sole discretion. Licensor may assign this Agreement
at any time to any party Including,without limitation,any successor owner or operator of the Premises.
F. No Agency. The relationship between Licensor and Licensee is that of independent contractors and not agents or employees.
Under no circumstances shall this license be considered a contract of partnership or joint venture. Neither party shall be liable for any of the debts,
accounts,obligations or other liabilities of the other party,its agents or employees,and neither party shall have any authority to obligate or bind the other
party in any manner except as may be expressly provided herein.
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G. Waivers. No waiver shall be effective unless in writing and executed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver in respect of any subsequent breach or default, whether of similar or dissimilar nature, unless expressly so stated in
writing.
H. Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions
hereof,and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.
I. Effectiveness of Agreement. This Agreement will not be effective or binding upon a party hereto until it has been executed and
delivered by each party hereto.
J. Rules and Regulations. The Rules and Regulations as contained in the Event Guide on the Effective Date of this Agreement are
hereby incorporated into this Agreement.
K. Complimentary Space. Allowance of a 5% cap of the total net square footage utilized available for verified and approved
complimentary booths: Approved complimentary booths would typically include not-for-profit organizations, educational exhibitors,or other community
service-oriented displays generating no direct or indirect revenues or expense to the Show Management/Licensee.
L. Licensee outside United States of Amer•ca. The Licensee hereby represents,warrants and covenants that(a)Licensee and any of
its owners,affiliates,officers,directors,employees and agents involved in providing services under this Agreement,will comply with all applicable anti-
corruption laws in connection with the Show, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act and any other applicable
jurisdiction; (b) in carrying out its responsibilities under the Agreement, neither the Licensee nor any of its owners, affiliates, officers, directors,
employees or agents will offer,promise or give anything of value,directly or indirectly,to(i)any Govemment Official in order to influence official action or
otherwise obtain an improper business advantage, (ii) any other person while knowing that all or any portion of the money or thing of value will be
offered or given to a Government Official or(iii)any other person in order to induce them to perform their work duties disloyally or otherwise improperly;
(c)neither the Licensee nor any of its owners or affiliates is directly or indirectly owned or controlled, in whole or in part,by any Government'Entity or
Government Official and no owner,partner,officer,director or employee of the Licensee or of any parent or subsidiary company of the Licensee is or will
become a Government Official during the term of this Agreement; and (d) no government is investigating or has in the past five years conducted,
initiated or threatened any investigation of the Licensee or any of its owners, affiliates, officers, directors or employees for alleged violation of anti-
corruption
laws. "Government Entity"means a national government, political subdivision thereof,or local jurisdiction therein,an instrumentality, board,
commission, court or agency, whether civilian or military, or any of the above, however constituted, a government-owned or government-controlled
association,organization, business or enterprise, a political party. The term "Government Entities"also includes public international organizations, i.e.
organizations whose members are countries,or territories,governments of countries or territories,other public international organizations or any mixture
of the foregoing. "Government Official"means any public or elected official or officer, employee(regardless of rank), or person acting on behalf of a
national,provincial,or local government, including a department,agency, instrumentality, state-owned or state-controlled company,public international
organization (such as the United Nations or World Bank), or political party, party official or any candidate for political office. Officers, employees
(regardless of rank), or persons acting on behalf of an entity that is financed in large measure through public appropriations, is widely perceived to be
performing government functions,or has its key officers and directors appointed by a government should also be considered"Government Officials."
•
22. Material Impacts to Licensee's Show Due to Construction Activity at the Center.
A. Licensee hereby acknowledges that the Center is undergoing construction In connection with that certain capital project of the Owner referred
•
to as the"Miami Beach Convention Center Renovation and Expansion Project"(the"Renovation Project"). Licensee acknowledges that the
construction of the Renovation Project has required the Owner to make numerous temporary adjustments to the entry, egress,loading,and
circulation spaces in and around the Center that may include, but may not be limited to,the creation of temporary partitions/passages within or
around portions of the Premises that may occur within or adjacent to areas of active construction,the relocation of entry or eating doors,the
reconfiguration of loading docks, and other temporary adjustments to the movement of people and freight through the Center and Premises,
Licensor and Owner have worked,and agree to continue to work,with Licensee to make available as much of the Center as possible for the
Show,and have agreed to deliver the Premises to Licensee on November 17,2016,in accordance with the parameters identified in Section
I.A of this Agreement(the definition of Premises)and detailed in Appendix A.The parameters identified in Section I.A(Premises)and detailed
in Appendix A are intended to permit Licensee's full use and occupancy of the Premises during the Renovation Project,and is subject only to
any conditions that may be imposed by regulatory agencies having jurisdiction(including,without limitation, "fire watch" or other conditions
required by agencies having jurisdiction); provided, however, that if any conditions Imposed by regulatory agencies causes a delay in
possession of the Premises or reduces the footprint of the Premises as identified in Appendix A, such conditions shall remain subject to
remedies pursuant to the terms of Sections 11.6,11.12 and 11.22 of this Agreement.
B. As used in this Agreement,a"Material Impact"on Licensee's use of the Premises(or any portion thereof)shall mean any construction activity
(including,without limitation, any and all activities ancillary to any construction activity)related to the Center or Renovation Project that(1)
renders the Premises (or any portion thereof) inaccessible or precludes the safe ingress/egress therefrom such that a regulatory agency
having jurisdiction would require closure of the Premises (or any portion thereof); or (2) renders the Premises (or any portion thereof)
uninhabitable or unfit,in whole or In a for p rt,fo use for its intended purposes for the Show;or(3)causes a material diminution of Licensee's use
and enjoyment of the Premises and continues for a period of more than 2 hours following notice from Licensee's General Manager(or other
designees identified in advance of the License Period)to Licensor's General Manager(including nuisances that singly or collectively rise to the
level of such a material diminution);or(4)causes the cessation or interruption of utilities at(or within)the Premises or any portion thereof;or
(5)reduces the footprint available to Licensee,as described and depicted in Appendix A;or(6)causes any type of delay in possession of the
Premises by the Licensee;or(7)otherwise fails to reasonably satisfy the requirements of Appendix A(or the Hybrid Plans attached thereto)
and directly or indirectly causes a reduction in any of Licensee's planned revenue-generating activities in connection with the Show(each of
Section I1.22.B(1)through 11.22.B(8)shall constitute a"Material Impact"for purposes of this Agreement).
C. Licensor shall keep Licensee timely informed of any and all Renovation Project developments which Licensor determines may have a Material
Impact on Licensee's use and enjoyment of the Premises(or any portion thereof),including any proposed changes to the Hybrid Plan,which
must be communicated to License in writing. Licensee shall notify Licensor and Owner of any concerns It may have with respect to any
Renovation Project developments as soon as possible following receipt thereof. Owner shall use diligent, good-faith efforts to mitigate or
otherwise rectify any Material Impact on Licensee's use of the Premises or any portion thereof. If,despite such efforts, Licensee determines
(In good faith)that the Renovation Project Is expected to cause a Material Impact on Licensee's use of the Premises(or any portions thereof),
Licensee's exclusive remedies for any Material Impact(s)shall be as follows:
a. (i) Licensor shall refund to Licensee the License Fee for the Premises on a pro rata basis as set forth herein. If the Material Impact
Page 27 of 692
11
involves a delay in possession of Premises,then the refund shall be based on Section 11.6 of this Agreement. If the Material Impact
implicates the partial interruption of the use of the Center during the License Period, the pro rata adjustment shall be based on the
following formula:
License Fee x sq.ft.of area affected by a Material Impact x number of days of Material Impact
sq.ft.of Premises License Period
provided; however, that notwithstanding the above formula, in the event that a Material Impact(or a combination of Material
Impacts)causes the complete interruption of the use of the Center during the License Period which exceeds seven(7)days in
duration,then the entire License Fee shall be refunded to Licensee.
(ii) Owner shall also compensate Licensee for any reductions in fees received by Licensee from its Show exhibitors and/or
sponsors as a result of, a Material Impact, loss of revenues, loss of anticipated profits, lost business opportunities, or other costs,
expenses, damages, or losses, including,without limitation, expenses relating to any relocation of any portion of the Show to any
alternative venue identified by Licensee, up to, but not to exceed,the total aggregate liability set forth in Section 11.12.C. Licensee
shall provide Owner with reasonable supporting documentation sufficient to corroborate any claim for compensation hereunder, up
to the maximum not-to-exceed aggregate liability set forth in Section I1.12.C.
b. In the event Licensee elects, due to a Material Impact, to cancel or terminate the Show, Licensee may also terminate this
Agreement by providing written notice to Licensor(such notice must be 2 days in advance if the cancellation or termination is during
the period before the License Period). In the event of termination pursuant to this Section II.22.C.b, Licensor shall return any
advance Licensee Fee deposit(s), as well as any Other Costs and Expenses paid by Licensee that are uncommitted and/or
cancelable, and Owner shall further compensate Licensee for any costs or expenses it incurred prior to the date of termination,
which includes,without limitation,loss of revenues,loss of anticipated profits,lost business opportunities,loss of reputation or other
costs,expenses,damages,or losses in connection with the Show,subject to the total aggregate liability set forth In Section 11.12.C.
D. Except as specified in this Section 11.22 and the limitations of liability provisions set forth in Section 11.12, in no event shall Licensor or Owner
have or owe any obligation to Licensee relating to or arising from Material Impacts to Licensee's use of the Premises, or otherwise with
respect to any matters involving the construction of the Renovation Project and Licensee's use of the Premises.Provided Licensor and Owner
deliver the Premises in accordance with Appendix A, and comply with the terms and conditions set forth in this Section 11.22, Licensor and
Owner shall be deemed to have satisfied their obligations under the Agreement to deliver the Premises to Licensee for the Show.
23. Zika Virus Transmission Disclosure. The Parties acknowledge that, as of the date of this Agreement, local transmissions of the Zika virus
have been reported in a 1.5 square mile area within the City that includes the area in and around the Premises. Although the City, Miami-
Dade County, and the State of Florida have undertaken mosquito control and/or other prevention and educational efforts, the City cannot
make any guarantees with respect thereto. Licensee shall have access to the same general information that the City provides to the general
public with regard to transmission risks and prevention efforts. The City encourages Licensee to post relevant public health-related
Information on its website and if possible,other marketing channels,for the benefit of its guests and patrons. For purposes of this Agreement,
"Material Impacts"as defined in Section 11.22 are solely intended to address matters relating to the condition and/or delivery of the Premises in
view of the construction activity in and around the Premises. Accordingly, in no event shall Zika virus transmissions constitute a "Material
Impact"or an"Event of Force Majeure"under this Agreement.
•
Page 28 of 692
12
ATTACHED APPENDIXES AND EXHIBITS
•
•
•
•
•
•
Page 29 of 692
13
Appendix A
The Premises shall consist of the following described portions of the Miami Beach Convention
Center and ancillary areas, the approximate locations and details of which are generally
depicted in the "Hybrid Plans" attached as part of Exhibit A hereto:
1. Exhibit Halls A, B, C, D and Concourse Areas
• Concrete or temporary floor with approximately 90 foot-wide slab area to provide for an
approximate 4-1/2"transition from the higher elevation of the new floors in Halls A & B to
the existing floors in Halls C&D;
• Existing and publically accessible center pod with 2nd and 3rd level east-west connector
bridge;
• Temporary restroom along the north boundary for Exhibit Hall A, as well as the south
boundary for Exhibit Hall B. ;
• New or temporary restrooms in East Concourse;
• North boundary of the Exhibit halls A and D will contain the existing temporary hurricane
wall; and
• Access to Halls A-D from West Concourse (areas remain in existing condition) and East
Concourse areas (as specified in Items #4 through 6 below) so as to permit safe public
access to the Exhibition Halls A through D and other areas of the Convention Center
from Washington Avenue and Convention Center Drive.
• One existing kitchen to remain (on either the East or West side of the Convention
Center)
2. North Loading Dock
• Functional loading dock for loading/unloading purposes only, with access into Halls A
and D;
• Egress corridors through the north loading dock areas with fire-rated enclosure to
Washington Ave from Hall A and to Convention Center Drive from Hall D, with any such
changes thereto as may be required by Miami Beach Fire Department at its sole
discretion;
• No container storage in North Loading Dock area, unless otherwise approved by the
Miami Beach Fire Department at its sole discretion; and
• The North Loading dock will have temporary lighting and temporary ventilation (with no
sprinkler system, fire alarm system, telecommunication system, security cameras,
elevators and/or escalators).
3. South Loading Dock in existing condition
4. East Concourse: Level 1
• Temporary finishes in public circulation areas (exposed concrete finish only);
• Functional restrooms and stairs;
• Escalators installed but not operational;
Page 30 of 692
• 2 elevators operational, either user-operated or manually operated by City-provided
personnel; and
• Weathertight enclosure at existing building façade, with facade containing existing or
temporary enclosure materials. {!
5. East Concourse: Level 2
• East meeting rooms with temporary finishes (no aesthetic elements to be provided);
• Large southeast meeting room in basic "shell" condition;
• Escalators installed but not operational;
• Glass handrails or temporary handrails installed;
• Temporary finishes in public circulation areas (no permanent carpet);
• Functional restrooms and stairs;
• 2 elevators operational, either user-operated or manually operated by City-provided
personnel; and
• MEP rooms needed to support event will be functional.
6. East Concourse Level 3
• Pre-function areas with temporary finishes (no aesthetic elements provided);
• Meeting rooms not available;
• Restrooms not available;
• Escalators installed but not operational; and
• 1 Elevator operational, either user-operated or manually operated by City-provided
personnel.
7. P-lot and Convention Center Drive
• P-lot fenced,
• The area within the P-lot depicted in Appendix B as Parking Area 1 available for valet
use on public show days, with the exception that twenty (20) parking spaces within
Parking Area 1 shall be reserved for and made available to MBCC Renovation Project
personnel; and
• MOT Plan has been approved ("Approved MOT").
8. Exterior and Perimeter
• Perimeter of the MBCC a clean and open Convention Center Drive, Washington
Avenue, 18th Street, and 19th Street;
• The East Concourse will be accessible from Washington Avenue through permanent
and temporary stairs and ramps. In addition, the existing sidewalk along Washington
Ave will be restored to allow for pedestrian access; and
• The Approved MOT allows for normal vehicular traffic exterior along Convention Center
Drive in existing condition; exterior along Washington Avenue in a hybrid condition with
temporary partitions and existing exterior doors and windows; exterior along north side
of MBCC will not be available with the exception of the north east loading dock entrance
Page 31 of 692
to be used during the event; exterior along south of MBCC in a hybrid condition with
temporary partitions.
9. Aesthetic Conditions
Owner's obligation is to provide the Premises with interiors sufficient for occupancy or for
temporary use, i.e. with temporary partitions to protect uncompleted areas, exposed
concrete flooring, and other similar temporary measures if required to protect or enclose
areas that remain uncompleted. City will have no obligation to provide the Premises in
any particular aesthetic condition, except with respect to temporary restroom trailer
facilities, which shall be of a mutually-agreed upon quality.
10. MEP Conditions
Owner shall provide at the East Concourse and Exhibit Halls A & B temporary or
permanent HVAC, security systems or guards (if necessary), sprinkler systems or fire
watch personnel or related measures, mechanical, electrical, plumbing, lighting,
accessibility, telecommunications system, audio system , Wi-Fi and cellular phone
service-readiness (with wireless access points provided by third-party vendor of Spectra)
and life safety systems sufficient to meet conditions or requirements of authorities having
jurisdiction for occupancy/use by the public.
Licensee acknowledges that the Hybrid Plans have been developed with the input of Licensee
over the course of many months and, in view of the dynamic nature of construction activity at
the MBCC, the exact configurations and/or details identified in the Hybrid Plans may be subject
to change, and that Licensee's sole remedy with respect to any claims or damages for any such
changes shall be limited to those changes that constitute "Material Impacts" as defined in
Section 11.22 of the Agreement, and as subject to the limitation of liability set forth in Section
11.12 of the Agreement.
Page 32 of 692
Appendix B
P-LOT SITE PLAN
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