Preferred Parking Lot Premises Use Agreement for "Design Miami/" Show 2016, - aq.co7
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PREFERRED PARKING LOT
PREMISES USE AGREEMENT FOR"DESIGN MIAMI/" SHOW
This Premises Use Agreement (this "License") made this 9 day of SFPTeMSM2016
(Effective Date), by and between the CITY OF MIAMI BEACH, a Florida municipal
corporation, whose address is 1700 Convention Center Drive, Miami Beach, Florida 33139
("City" or "Licensor"), and DESIGN MIAMI II, LLC, a Florida limited liability company whose
address is 3841 NE 2nd Avenue, Suite 400, Miami, Florida 33137 ("Licensee") (each, a "Party"
or collectively the "Parties").
WHEREAS, Licensee wishes to use a portion of the City parking lot known as the
"Preferred Parking Lot" and described more fully in Section 1 and depicted in Exhibit A hereto
(the "Premises"), for the purpose of producing the "Design Miami!" show (the "Event") in
conjunction with the Art Basel Miami Beach show at the Miami Beach Convention Center
(MBCC); and
WHEREAS, the Premises was identified as the most compatible space, as it provides for
synergy between Licensee's Event and Art Basel Miami Beach; and
WHEREAS, Licensee seeks to use the Premises for the Event from October 17, 2016
through December 15, 2016; and
WHEREAS, the Parties desire to enter into this License based on the terms and
conditions set forth herein with respect to the 2016 Event.
NOW, THEREFORE, in consideration of the mutual covenants herein exchanged, the
Parties agree as follows:
1) Premises. The Premises shall consist of an area equal to approximately 250
spaces in the City's Preferred Parking Lot, as further delineated in Exhibit A hereto. The main
"P-Lot Set-Up Area" is approximately 400'-0" x 245'-0" in area, and the "Unloading and
Material Lay-down/Storage" area is approximately 105'-0" x 245'-0" in area.
2) Term. Licensee shall have the right to use the Premises on the following dates:
Licensee may use the General "P-Lot Set-Up Area" as shaded blue in attached Exhibit A on the
following dates and for the purposes indicated:
October 17, 2016—November 28, 2016 Move-In
November 29,2016—December 4, 2016 Show Days
December 5, 2016—December 15, 2016 Move-Out
Licensee may use the "Unloading and Material Lay-down/Storage Area" as shaded yellow in
attached Exhibit A on the following dates and for the purposes indicated:
November 21, 2016—November 28, 2016 Move-In
November 29,2016—December 4, 2016 Show Days
December 5, 2016—December 11, 2016 Move-Out
3) Use. Licensee shall have the right to use the Premises for the Event, which is a
furniture design show for galleries which present curated exhibitions of museum-quality
furniture, lighting, and objects d'art. Licensee's proposed use(s) of the Premises for the Event
shall permit exhibit space; passenger loading zones; space for valet ramping for the City's
contracted valet operator; and additional storage.
Licensee agrees that Licensee and its employees, contractors, agents, representatives and invitees (to
the extent applicable) shall comply with each of the following terms and conditions during use of
the Premises:
a. Licensee may install fencing at the perimeter of the Premises at its sole cost and expense,
subject to complying with all City and Miami-Dade County requirements including,
without limitation, permitting requirements.
b. Licensee shall be required to move any construction trailers required by City at its sole cost
and expense, subject to complying with all City and Miami-Dade County requirements
including, without limitation, permitting requirements.
c. Licensee may install temporary tents and tent structures and other equipment necessary for
the Event, subject to complying with all City and Miami-Dade County requirements
including, without limitation, permitting requirements. All installations and improvements
shall be further subject to current applicable building codes, and shall comply with all
applicable City, County, State and Federal Laws.
d. Subject to paragraph (e) below, (i) Licensee acknowledges that it has inspected the Premises
and that it is satisfied that the Premises have the capacity and capability to accommodate the
use contemplated under this License, and (ii) Licensee accepts the Premises in its "AS-IS"
condition and with all faults. Licensee shall abide by all applicable federal, state, and local
laws, rules and regulations in its use of the Premises.
e. City shall provide, and Licensee hereby accepts, the Premises, with its existing water
service connections in the locations indicated on Exhibit A to this License, and Licensee
has satisfied itself that there is sufficient pressure to support its water service needs with
respect to its use of the Premises. City shall also (i) provide the Premises with all required
electrical service connections and/or electric generators (and if City provides electric
generators, then City shall also provide all required electrical service using such generators
at no cost to Licensee or otherwise reimburse Licensee for all required electrical service
provided by generators), or (ii) alternatively, reimburse Licensee for 100% of Licensee's
costs in obtaining all required electric service connections and/or electric generators
(including Licensee's costs in obtaining electrical service from such generators) for
Licensee's use of the Premises. Except as otherwise agreed to by the Parties herein,
Licensee acknowledges and agrees that the City shall not be responsible for providing any
services, utilities, equipment or any other items to Licensee for its use of the Premises.
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f. At the end of the Event date, as set forth in the "Term" in Section 2 hereof, Licensee shall
clean and restore the Premises to the same condition provided to Licensee prior to the first
Move-In date of the Event, including, without limitation, restoring all asphalt and other
surfaces to their original (or better) condition. Licensee shall be solely responsible for
clean up and restoration costs incurred by the City if Licensee's clean up or restoration is not
satisfactory,as determined in City's reasonable discretion.
4) Rental.
a. Licensee agrees to pay rent for the Event in the total amount of$107,000.00
(including applicable sales tax). Rental payment for 2016 will be made as
follows:
• 50% on or before October 17, 2016; and
• balance (50%) on or before November 29, 2016,
b. The cost of relocating up to 450 parking spaces to the 17th Street Parking
Garage is $107 per space for the period from October 17, 2016 — December
15, 2016 for employees/laborers of Clark Construction and its subcontractors.
Licensee and the City agree that (i) each Party shall pay 50% of the cost of
such relocation, for up to five (5) weeks of relocation, and (ii) Licensee shall
be responsible for 100% of the cost of such relocation for any period after five
(5) weeks.
c. Licensee shall also be responsible for all costs associated with moving any
and all construction trailers, as approved and authorized by the City's
Construction Manager for the Miami Beach Renovation Project, Clark
Construction Group, and shall return the construction trailers to the location
identified by Clark Construction no later than December 15, 2016.
d. Licensee shall also be responsible for all costs associated with the removal,
installation, storage and signage for the fencing at the Premises.
e. Licensee shall also be solely responsible for the payment of any and all taxes
and/or assessments including, without limitation real estate taxes, which may
be levied against the Premises as a result of Licensee's actions and operations
thereon.
5) Protection Clause. In consideration for Licensee's agreement to hold the Event
on the Premises, the City agrees that, for the term of this License, it will not license the Premises
to third parties for the purpose of holding a furniture design show, for thirty (30) days
immediately prior to, and the thirty (30) days immediately after, the Event dates (including
Move-In and Move-Out dates). This Protection Clause would not, however, prohibit or preclude
the City and/or the City's manager at the Convention Center, from allowing the use of the
Preferred Parking Lot for load-in, staging, and load-out of a Miami Beach Convention Center
show/event which is either a furniture design show, or has a furniture design component.
6) Security. At all times during the term of this License, Licensee shall be solely
responsible for the security of all goods, property, equipment, materials and any other items that
it or its contractors, agents, or other representatives bring onto the Premises. Licensee shall also
be solely responsible for the security of its employees, contractors, agents, representatives,
invitees and other guests on the Premises. Licensee is satisfied that it has made appropriate
arrangements for the care and custody of all goods, property, equipment, materials and other
items that Licensee brings on the Premises, and agrees that the City shall have no obligation or
responsibility whatsoever in connection therewith unless due to the gross negligence or willful
misconduct of the City.
7) Responsibility for Clean-Up of Public Areas. At all times during its use of the
Premises, Licensee shall be solely responsible for the necessary housekeeping services to
properly maintain the Premises in a neat and orderly manner. Licensee shall maintain the order
and cleanliness of the Premises on a daily basis, and shall be responsible for the removal of trash,
rubbish, and garbage. If required by the City, Licensee shall provide, at its own expense, trash
receptacles throughout the Premises in an amount sufficient to maintain the cleanliness of the
area. Licensee shall also instruct and monitor its employees and contractors to assure that trash,
rubbish, and garbage are immediately picked up on the Premises.
8) Services to be Provided by the City's Parking Department. The City's
Parking Department shall remove all signs on the Premises prior to the first Move-In date for
each year of the Event. Licensee shall have the right to bag all parking meters on Meridian
Avenue between 18th and 19th Streets commencing on October 17, 2016 (the first Move-In date)
and ending on December 15, 2016 (the final Move-Out date).
9) Right of First Refusal. Provided that Licensee has at all times fully complied
with its obligations under this License, and subject to the terms of this paragraph, Licensee shall
have the Right of First Refusal and Renewal to use the Premises for the 2017 Event, from
October 23, 2017 through December 21, 2017 (the "2017 Dates"), subject to Section 10 below.
"Right of First Refusal and Renewal" shall mean the right, before any other licensee or potential
licensee, to use the Premises for the Event on the 2017 Dates, on the same or similar terms as
contained within this License. In order to exercise the Right of First Refusal and Renewal,
Licensee must give written notice to the City by no later than December 15, 2016, after which
the Licensee and the City shall enter into a license agreement for the 2017 Dates in substantially
the form of this License, with such changes that may be negotiated by the Parties in good faith.
In the event Licensee fails to give written notice exercising the Right of First Refusal and
Renewal by December 15, 2016, Licensee's Right of First Refusal and Renewal shall be null and
void, and Licensor shall be free to license the Premises to any third party on the 2017 Dates, in
its discretion.
10) MBCC Project Construction Interruption. Notwithstanding Section 9 or any
other provision of this License to the contrary, in the event the City determines that due to the
progress of construction activity at the Miami Beach Convention Center during 2017, the City
needs to either (a) utilize the Premises for such construction or (b) make the Premises available
to accommodate Art Basel in the event that portions of the Miami Beach Convention Center are
not available for use by Art Basel for its 2017 event due to construction delays, then the City
shall provide Licensee with notice of termination of the license agreement to be entered into
between the Parties pursuant to Section 9 (if any) for the 2017 Event not later than June 1, 2017,
and the license agreement for the 2017 Event shall be null and void. In the event the City
terminates the license agreement for the 2017 Event pursuant to this Section 10, the City shall
have no obligation to identify any alternative accommodations for Licensee, or any monetary
obligation or liability to Licensee whatsoever, and Licensee hereby accepts all risks with respect
thereto.
Licensee acknowledges and agrees that it shall not have any claim, demand, or cause of action of
whatever kind or nature, against the City, its officials, employees, agents, and/or contractors,
including, without limitation, claims for interference in business or damages for business
interruption, due to such closure for the reasons set forth above in this Section 10. If possible,
the City will use reasonable efforts to provide Licensee with one (1) year notice.
11) Indemnification. Licensee shall indemnify, defend and hold the City, its
officers, employees, contractors, and agents, harmless from and against any and all claims or
causes of action (whether groundless or otherwise) by or on behalf of any persons, firm or
corporation, for personal injury, property damage, or other occurring upon the Premises
occasioned in whole or in part by any of the following:
a. an act of omission on the part of Licensee or any officer, employee,
contractor, agent, invitee, guest, or assignee of Licensee;
b. any misuse, neglect, or unlawful use of the Premises by Licensee or any
officer, employee, contractor, agent, guest, invitee, or assignee of Licensee;
and/or
c. any breach, violation, or nonperformance of any undertaking by Licensee
under this License.
Licensee agrees to pay, and shall pay, for all damage to the Premises caused by Licensee or any
employee, contractor, agent, guest, invitee, or assignee of Licensee.
12) Insurance. This License shall not be effective, nor shall Licensee take possession
of the Premises, until all insurance required under this section has been obtained and such
insurance has been approved by the City's Risk Manager. Licensee shall maintain and carry
insurance sufficient to cover the operations and activities to be carried out on the Premises,
including the following minimum insurance:
1) General Liability, in the amount of $1,000,000.00. A certified copy of Licensee's
Insurance Policy must be filed and approved by the Risk Manager prior to
commencement. The CITY OF MIAMI BEACH, FLORIDA must be named as an
Additional Insured.
2) Workers' Compensation & Employers Liability, as required pursuant to Florida
Statutes. A certified copy of Licensee's Insurance Policy must be filed and approved
by the Risk Manager prior to commencement.
3) Automobile Insurance, in the amount of $1,000,000.00. A certified copy of
Licensee's Insurance Policy must be filed and approved by the Risk Manager prior to
commencement. THE CITY OF MIAMI BEACH, FLORIDA must be named as an
Additional Insured.
4) All-Risks Property and Casualty Insurance, written at a minimum of 80% of
replacement cost value and with replacement cost endorsement, covering the non-
permanent structures and floor coverings owned by Licensee.
5) Liquor Legal Liability Insurance, with policy limits of$2,000,000.00 per occurrence,
naming the CITY OF MIAMI BEACH, FLORIDA, as an additional insured, either as
an endorsement to Licensee's General Liability policy or as a separate policy.
Licensee shall provide the City with evidence of this insurance prior to selling or
serving alcoholic beverages at or from the Premises. If Licensee fails to obtain or to
continue this coverage, Licensee shall immediately discontinue selling and serving
alcoholic beverages from the Premises. Licensee may also satisfy this requirement by
ensuring that a third party selling and serving such beverages maintains such
insurance.
All insurance policies must be issued by companies authorized to do business under the laws of
the State of Florida. The companies must be rated no less than `B+" as to management and not
less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick,New Jersey, or its equivalent.
13) Default and Termination. The following actions (a) through (e) shall constitute
an event of default by Licensee:
a. If Licensee abandons or vacates the Premises during any of the dates provided
for its use of the Premises hereunder, other than as consistent with moving in
or out;
b. If Licensee fails to timely pay any amount due, as required by this License;
c. If Licensee fails to discharge or bond off any lien filed on the Premises, within
five (5) days of written notice from Licensor; or
d. If Licensee fails to perform in accordance with any of the other terms and
conditions herein contained and such default is not cured within ten (10) days
after written notice from Licensor; or
e. If Licensee fails to comply with the insurance requirements in Section 12
hereof and such default is not cured within twenty-four (24) hours of verbal or
written notice from the City.
In the event of a default by Licensee, and where such default is not cured within the applicable
period, the City may terminate this Agreement without further notice to Licensee. Licensee shall
immediately surrender possession of the Premises, as well as removing any personal property
and equipment therefrom. Any personal property and equipment not so removed shall be
removed and stored at Licensee's expense.
Additionally, in the event of a termination hereunder, the City may also pursue any and all
remedies, whether at law or equity, available to seek redress for such default.
14) Bankruptcy and Insolvency. If Licensee is adjudicated bankrupt or makes an
assignment for the benefits of creditors, the City shall have the right to immediately terminate
this Agreement and re-enter the Premises without notice or demand.
15) Sublicense and Assignment. Licensee shall not sublicense the Premises or any
part thereof, nor assign this License, without obtaining the City Manager's prior written
approval, which approval may be given, if at all, at his/her sole and absolute discretion. Nothing
herein shall prohibit Licensee from contracting with exhibitors, sponsors and concessions for the
Event.
16) Permits and Licenses. Licensee shall be solely responsible for obtaining, at its
sole cost and expense, any and all permits and licenses necessary for its use of, and operations
on, the Premises. Licensee must obtain a City Special Event Permit, which includes building,
structural, and electrical permits. Issuance of such Special Event Permit shall be subject to and
contingent upon Licensee meeting all the requirements and conditions of the City's
administrative rules and guidelines for special events, as same may be amended from time to
time.
17) City's Right of Entry. The City, or its authorized agent or agents, shall have the
right, but not the obligation, to enter upon all or any part of the Premises at all reasonable times
for the purpose of inspecting same, preventing waste, making such repairs as the City may
consider necessary, and for the purpose of preventing fire, and/or addressing other life safety
issues. However, the City agrees that, whenever reasonably possible, the City shall provide
notice to Licensee, unless the need to enter the Premises is an emergency, as deemed by the City,
in its sole discretion, which if not immediately addressed could cause property damage, loss of
life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the
City to do any work that under any provisions of this Agreement Licensee may be required to
perform, and the performance thereof by the City shall not constitute a waiver of the Licensee's
default.
18) Security Deposit. Following execution of this License by the Parties hereto, and
in no event later than sixty (60) days prior to the first Move-In date of the Event, Licensee shall
pay to City the sum of Five Thousand Dollars ($5,000), as security for the faithful performance
by Licensee of the terms, conditions and covenants of this License. In the event of Licensee's
default of a term, condition and/or covenant of this License, the City shall be entitled to retain
such Security Deposit. In the event that Licensee shall fully comply with all of the terms,
conditions, and covenants of this Lease, the Security Deposit shall be returned to Licensee,
without interest, at the end of the Term.
19) Sponsorship. The City of Miami Beach will be recognized as a sponsor of the
Event. As such, the City will receive recognition (logo in catalogue, logo on the Design Miami/
website with link to the City website). In addition, the City will receive recognition in the
Design Miami/ Basel catalogue.
20) Complimentary City Tickets. Licensee agrees to provide the City with a
minimum of ten (10) complimentary VIP passes, and an additional twenty-five (25)
complimentary day passes for the Event.
21) Resident Tickets. Licensee shall provide City residents with at least fifteen
percent (15%) discount on individual day passes. The City will provide Licensee with avenues
to promote the offer(i.e. City website and newsletters).
22) Mutual Acknowledgement. Both Parties acknowledge that use of the Premises
reduces parking inventory and the availability of public parking for attendees of the Event.
23) Notices. All notices shall be sent to the Parties at the following addresses:
Licensor: City of Miami Beach
City Manager's Office
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: City Manager
and
City of Miami Beach
Parking Department
1755 Meridian Avenue, Suite 200
Miami Beach, FL 33139
Attn: Director
and
Tourism and Cultural Development Department
1755 Meridian Avenue, Suite 500
Miami Beach, FL 33139
Attn: Director
Licensee: Design Miami II, LLC
3 841 NE 2nd Avenue
Suite 400
Miami, FL 33137
Attention: Craig Robins
With copies to: Design Miami II, LLC
3841 NE 2nd Avenue
Suite 400
Miami, FL 33137
Attention: Jen Roberts
And to: Design Miami II, LLC
3841 NE 2nd Avenue
Suite 400
Miami, FL 33137
Attention: geet44Attte.14. 01647 w DA-�-e�aGGtil..
Licensee and Licensor may change such address at any time upon giving the other Party written
notification. All notices under this License must be in writing and shall be deemed to be served
when delivered to the address of the addressee. All notices served by mail shall be registered
mail, return receipt requested. Licensee may designate additional persons for notification of
default.
24) Force Majeure. City does not guarantee the uninterrupted use of the Premises, as
the use of the Premises may be suspended or delayed by reason of "force majeure" as defined
herein. No Party will be liable or responsible to the other Party for any delay, damage, loss,
failure, or inability to perform caused by "force majeure" if notice is provided to the other Party
within ten (10) days of the date on which such Party gains actual knowledge of the event of
"force majeure" that such Party is unable to perform. The term "force majeure", as used in this
subsection, means the following: an act of God, strike, war, public rioting, terrorism, unusual
tidal activity affecting the use of the Premises, fire, hurricane, explosions, epidemics,
earthquakes, floods, civil disturbances, and any other similar cause which is not reasonably
within the control of the Party whose performance is to be excused, and by which the exercise of
due diligence could not be reasonably prevented or overcome.
25) Waiver. No waiver by Licensor any time of any of the terms or conditions of this
License shall be deemed at any time thereafter a waiver of the same or any other term or
conditions hereof.
26) Severability. If any term or provision of this License or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this License, or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this License shall be valid and be enforceable for the fullest extent permitted by
law.
27) Governing Law/Venue. This License shall be governed by and construed in
accordance with the law of the State of Florida. This License shall be enforceable in Miami-
Dade County, Florida, and if legal action is necessary by either Party with respect to the
enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement
of same shall lie in Miami-Dade County, Florida. By entering into this License, Licensee and
Licensor expressly waive any rights either Party may have to a trial by jury of any civil litigation
related to, or arising out of, this License.
28) Limitation of Liability. City desires to enter into this License only if in doing so
the City can place a limit on the City's liability for cause of action for money damages due to an
alleged breach by the City of this License, including but not limited to a delay or failure to
provide the Premises to Licensee, so that the liability of the City for any such breaches never
exceeds the aggregate total sum of$10,000. Licensee hereby expresses its willingness to enter
into this License with Licensee's recovery from the City for any damage action for all matters
arising under this License to be limited to a maximum aggregate total amount of $10,000.
Accordingly, and notwithstanding any other term or condition of this License, Licensee hereby
agrees that the City shall not be liable to Licensee for damages in an aggregate total amount in
excess of$10,000, for any action or claim for breach of contract or otherwise arising out of the
performance or nonperformance of any obligations imposed upon the City by this License.
Nothing contained in this paragraph or elsewhere in this License is in any way intended to be a
waiver of the limitation placed upon the City's liability as set forth in Florida Statutes, Section
768.28.
IN WITNESS WHEREOF, the Parties hereto have caused this License to be executed by their
appropriate officials, as of the date first entered above.
ATTEST: L IBC, NSO CITY OF MIA/19/..re, H
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DESIGN MIAMI II, LLC, by Design Miami,
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