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Resolution 2023-32702 RESOLUTION NO. 2023-32702 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AMENDED AND RESTATED LETTER OF UNDERSTANDING(LOU) BETWEEN THE CITY OF MIAMI BEACH AND ART BASEL U.S. CORP. REVISING THE BOUNDARIES OF THE "ART BASEL ZONE" IN EXCHANGE FOR ADDITIONAL PUBLIC BENEFITS; AND FURTHER, AUTHORIZING THE ADMINISTRATION TO FINALIZE AND EXECUTE THE AMENDED AND RESTATED LOU. WHEREAS, Art Basel U.S. Corp. ("ABUSCo") established Art Basel Miami Beach ("ABMB") in 2000 as a sister event of Switzerland's Art Basel, founded in 1970, and highly regarded as the world's most prestigious art fair; and WHEREAS, over the last 20 years, ABMB has become the preeminent contemporary art fair in the western hemisphere, and an established destination for artists, galleries, collectors and visitors who are drawn to Miami Beach not only to visit the main fair, but also to be part of this cultural destination's satellite fairs and events surrounding the main fair; and WHEREAS, ABMB brings the international art world together, featuring over 200 leading galleries and more than 4,000 artists from five continents; and WHEREAS, numerous special events and activations take place concurrently in and around Miami Beach, during a period that has come to be known as Miami Beach Art Week; and WHEREAS, the number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center("MBCC")where ABMB is held, led ABUSCo to formally request in 2012 that the City designate a zone of exclusivity; and WHEREAS, on April 11, 2012, the Mayor and City Commission approved, via Resolution 2012-27884, a copy of which is attached as Exhibit A to the Memorandum accompanying this Resolution, establishment of the "Art Basel Zone" pursuant to the April 19, 2012 letter of understanding and the May 12, 2015 renewal (collectively, "the Original LOU")(copies of the April 19, 2012 and May 12, 2015 renewal are attached as Exhibit B and Exhibit C, respectively, to the Memorandum accompanying this Resolution); and WHEREAS, the Art Basel Zone was defined in the Original LOU as the area bounded by 23rd Street to the North; by Lincoln Lane South to the South; by Alton Road to the West; and by the Atlantic Ocean to the East; and WHEREAS, as with other"zones" created in connection with other large, periodic events like the World Cup, the Art Basel Zone was established for the purpose of protecting the Art Basel brand and avoiding market saturation and consumer confusion; and WHEREAS, pursuant to the Original LOU, prior to issuing a special event permit for the use of public property within the Art Basel Zone during ABMB, the City must obtain ABUSCo's prior approval; and WHEREAS, the Original LOU provides that special events held on private property and demonstrations, pickets, and free speech activities, as such terms are defined in the City of Miami 1 Beach Special Event Guidelines and Requirements, are exempt from the requirements in the Original LOU and, accordingly, do not require ABUSCo's approval; and WHEREAS, the Original LOU was coterminous with the then existing license agreement(s) for ABUSCo's use of the MBCC ("ABUSCo License") and included an evergreen clause such that the Original LOU would be automatically be extended and remain in force for each successive calendar year ABMB event, provided an ABUSCo License has been executed in relation to such respective calendar year; and WHEREAS, in December 2022, Art Basel Miami Beach celebrated its twentieth anniversary at the MBCC; and WHEREAS, ABMB's success has catapulted Miami Beach to being a leading international arts and culture destination in December and year-round; and WHEREAS, ABMB's international recognition has increased the interest in event activations during the week of the ABMB event, which is now known as Miami Beach Art Week; and WHEREAS, the number of requests for special event activations and temporary art installations in the immediate area of the MBCC where ABMB is held, continues to grow WHEREAS, ABUSCo has formally requested that the City expand the Art Basel Zone and has agreed to certain concessions in exchange for such modification; and WHEREAS, the Administration has negotiated an Amended and Restated Letter of Understanding pertaining to the Art Basel Zone, a copy of which is attached as Exhibit D to the Memorandum accompanying this Resolution (the "Amended and Restated LOU"); and WHEREAS, the contemplated Amended and Restated LOU includes the following key new terms and conditions: • The revised Art Basel Zone is bounded by 24th Street to the North; by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East; • The Art Basel Zone shall run concurrently with the ABMB event dates each year as set forth in the ABUSCo License; • As with the Original LOU, the Amended LOU includes an evergreen clause such that the term will be automatically extended based on amendments to extend the term pursuant to a new license agreement from time to time and allows either party to terminate the agreement for convenience upon 60 days' notice; • ABUSCo has agreed that it cannot condition approval of special event applications for activations in the Art Basel Zone on payment of a fee; • ABUSCo has agreed that it will not condition approval of special event applications for activations in the Art Basel Zone on sponsorships of ABMB; • ABUSCo has agreed not to require any special event permit applicant for events in the Lincoln Road Mall area to become a sponsor of ABMB or fay consideration as a condition of approval; • If ABUSCo does not have a binding commitment for an activation at Soundscape Park by or before August 30 of any year (except September 15 in 2023), the City may issue special event permits for this public space without ABUSCo's approval 2 subject to restrictions to protect Art Basel and its sponsors against ambush guerilla marketing events by competitors; • ABUSCo must provide discounted tickets to City residents (50% discount during a one-week pre-sale period in advance of the official public on-sale date and after such one-week period, a discount equivalent to the lowest published reduced right for seniors, students and others; • ABUSCo must make an annual donation of not less than $50,000 to the City's STEAM Plus program, or any other such similar educational, cultural or public program and/or the City's Art in Public Places Fund, as may be agreed to by the parties in writing on an annual basis WHEREAS, the Administration recommends that the Mayor and City Commission approve the Amended and Restated LOU and authorize the City Manager and City Clerk to execute the Amended and Restated LOU. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY. COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission approve the proposed Amended and Restated Letter of Understanding between the City of Miami Beach and Art Basel U.S. Corp. revising the boundaries of the "Art Basel Zone" in exchange for additional public benefits; and further, authorize the Administration to execute the Amended and Restated LOU. PASSED and ADOPTED this o2G day of li1ir , 2023. Dan Gelber, Mayor ATTEST: JUL-/-)1 282023 Rafael E. Granado, City Clerk APPROVED AS:TO • FORM&LANGUAGE &FOR EXECUTION • kINCORP4RAiEO; ' "7— j t—Z3 ,�j.. .` City Attorney p�� 3 Agenda Item C7 Z ' " Date 7-24-a3 MIAMI BEAC COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Aline T. Hudak, City Manag 1 11 DATE: July 26, 2023 „ s SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AMENDED AND RESTATED LETTER OF UNDERSTANDING (LOU) BETWEEN THE CITY OF MIAMI BEACH AND ART BASEL U.S. CORP. REVISING THE BOUNDARIES OF THE "ART BASEL ZONE" IN EXCHANGE FOR ADDITIONAL PUBLIC BENEFITS;AND FURTHER, AUTHORIZING THE ADMINISTRATION TO FINALIZE AND EXECUTE THE AMENDED AND RESTATED LOU. Recommendation The Administration recommends the approval of the Amended and Restated Letter of Understanding between the City of Miami Beach and Art Basel Miami Beach which revises the boundaries of the"Art Basel Zone". Background/History Art Basel U.S. Corp(ABUSCo)established Art Basel Miami Beach("ABMB")in 2000 as the sister event of Switzerland's Art Basel, founded in 1970, and highly regarded as the world's most prestigious art fair.Over the last 20 years,ABMB has becomethe preeminent contemporary art fair in the western hemisphere, and an established destination for artists, galleries, collectors and visitors who are drawn to Miami Beach not only to visit the main fair,but also to be part of this cultural destination's satellite fairs and events surrounding the main fair. ABMB brings the international art world together, featuring over 200 leading galleries and more than 4,000 artists from five continents. Numerous special events and activations take place concurrently in and around Miami Beach,during a period that has come to be known as Miami Beach Art Week. The number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center(MBCC)where ABMB is held, led Art Basel U.S.Corp(ABUSCo)to formally request in 2012 that the City designate a zone of exclusivity.On April 11,2012,the Mayor and City Commission approved,via Resolution 2012-27884 (Exhibit A),‘establishment of the "Art Basel Zone" pursuant to the April 19, 2012 letter of understanding and the May 12, 2015 renewal (collectively, the Original LOU)(copies of the April 19, 2012 and May 12, 2015 renewal are attached as Exhibit B and Exhibit C,respectively). The Art Basel Zone was defined in the 2012 LOU is bounded by 23rd Street to the north; by Lincoln Lane South to the south; by Alton Road to the west; and by the Atlantic Ocean to the east. As with other "zones" created in connection with large events like the World Cup, the Art Basel Zone was established for the purpose of protecting the Art Basel brand and avoiding market saturation and consumer confusion. In this regard, prior to issuing a special event permit for the use of public property within Commission Memorandum July 26, 2023 Page 2 of 3 the Art Basel Zone during ABM B,the City must obtain ABUSCo's prior approval. Pursuant to the procedure established in the existing LOU,the City must provide ABUSCo 30 days' prior notice and ABUSCo must provide approval or denial within 10 calendar days. The LOU provides that special events held on private property and demonstrations, pickets, and free speech activities, as such terms are defined in the City of Miami Beach Special Event Guidelines and Requirements are exempt from the requirements in the LOU and, accordingly, do NOT require ABUSCo's approval. The Original LOU was coterminous with the then existing license agreement(s) for ABUSCo's use of the Convention Center and included an evergreen clause such that the Original LOU would be automatically be extended and remain in force for each successive calendar year ABMB Event, provided an ABUSCo License Agreement has been executed in relation to such respective calendar year. Analysis In December 2022, Art Basel Miami Beach(ABMB) celebrated its twentieth anniversary at the Miami Beach Convention Center.The art fair's success has catapulted Miami Beach as a recognized international arts and culture destination in December; resulting in the week associated with ABMB is now known as Miami Beach Art Week. ABMB's international recognition has increased the interest in event activations during Art Week.The number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center (MBCC)where ABMB is held, continues to grow, leading to Art Basel US Corp (ABUSCo)to formally request the City to expand the Art Basel Zone from Lincoln Lane South to 16th Street to the South and from 23 Street to 24 Street to the North. The Administration has negotiated an Amended and Restated LOU,a copy of which is attached as Exhibit D,which includes the following new terms and conditions: a.)The revised Art Basel Zone is bounded by 24th Street to the North; by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East and is graphically depicted in Exhibit A, attached hereto and incorporated herein. b.)The Art Basel Zone shall run concurrently with the ABMB event dates each year as set forth in the license agreement between Global Spectrum,L.P.dba OVG360, as the agent of the City of Miami Beach and ABUSCo for the use of the Miami Beach Convention Center(ABUSCo License)and will expire after the ABMB event in 2026, subject to ABUSCo's right of first refusal and renewal to extend the term for the 2027 and 2028 Annual Shows. As with the Original LOU, the Amended and Restated LOU includes an evergreen clause such that the term will be automatically extended based on amendments of extension the term pursuant to a new license agreement from time to time. The Amended and Restated LOU also allows the City to terminate the agreement for convenience upon 60 days' prior notice c.)The procedure to effectuate ABUSCo's approval right remains largely unchanged. However, at the City's request, ABUSCo has agreed that it cannot condition its approval on payment of a fee to ABUSCo or any affiliate. d.)In addition, because the City deems that having one or more cultural activations in Soundscape Park during Art Week is of particular importance, ABUSCO has agreed that going forward it must provide written notice to the City by or before Commission Memorandum July 26, 2023 Page 3 of 3 August 30 of each calendar year(except for 2023, by September 15)to advise as to the status of binding commitments to activate Soundscape Park with cultural content during the ABMB Event Dates. If ABUSCo does not have a binding commitment for Soundscape Park by August 30 (except for 2023, by September 15), then the City shall be free to issue special event permits to third parties for cultural activations at Soundscape Park without ABUSCo's consent, subject to certain restrictions to protect Art Basel and its sponsors against ambush guerilla marketing events by competitors. Further, if ABUSCo confirms that a cultural activation has been programmed for Soundscape Park during the Annual Art Basel Zone Term for a particular calendar year but the activation does not occur as a result of any act or omission of ABUSCo or any ABMB sponsor,then Soundscape Park will thereafter be excluded from the Art Basel Zone for the remainder of the term of the Amended and Restated LOU and shall not be included in any Art Basel Zone established in any amendment or renewal of the Amended and Restated LOU e.) At the City's request, ABUSCo will not require that a special event permit applicant becomea sponsor of ABMB as a condition of approval fora special event permit within the Art Basel Zone. In addition, the City has prohibited ABUSCo from requiring any special event permit applicant for events in the Lincoln Road Mall area to become a sponsor of ABMB or pay consideration as a condition of approval.. In consideration of the establishment of the Art Basel Zone, in the Amended and Restated LOU, ABUSCo has agreed to provide, (a) discounted tickets to City of Miami Beach residents for the public portion of ABM B Events at the M BCC(i)at a fifty percent (50%) discount off the standard price for tickets purchased during a one-week pre-sale period in advance of the official public on-sale date, up to two (2) tickets per resident and (ii) following such one-week pre-sale period, at the lowest published reduced price offered to senior citizens, students and others, subject to a reduction in the number of tickets offered based on capacity constraints due to health and safety issues as determined in ABUSCo's reasonable discretion. ABUSCo has also agreed to make an annual donation of not less than $50,000.00 to the City's STEAM Plus program, or any other such similar educational, cultural or public program and/or the City's Art in Public Places Fund, as may be agreed to by the parties in writing on an annual basis Supporting Survey Data In the 2022 City of Miami Beach Resident Survey,86% of residents agreed that free or City sponsored art and cultural activities contribute to their quality of life in Miami Beach and 86% of residents agreed that Miami Beach Cultural Activities(such as art shows,film festivals, musicals, and live performances)contribute to the quality of life in Miami Beach. Conclusion The Administration recommends that the Mayor and City Commission accept the terms outlined in this Memorandum and favorably recommend approving the Amended and Restated Letter of Understanding pertaining to the Art Basel Zone. P RESOLUTION NO. ' A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AN AMENDED AND RESTATED LETTER OF UNDERSTANDING(LOU)BETWEEN THE CITY OF MIAMI BEACH AND ART BASEL U.S. CORP. REVISING THE BOUNDARIES OF THE "ART BASEL ZONE" IN EXCHANGE FOR ADDITIONAL PUBLIC BENEFITS; AND FURTHER, AUTHORIZING THE ADMINISTRATION TO FINALIZE AND EXECUTE THE AMENDED AND RESTATED LOU. WHEREAS, Art Basel U.S. Corp. ("ABUSCo") established Art Basel Miami Beach ("ABMB") in 2000 as a sister event of Switzerland's Art Basel, founded in 1970, and highly regarded as the world's most prestigious art fair; and WHEREAS, over the last 20 years, ABMB has become the preeminent contemporary art fair in the western hemisphere, and an established destination for artists, galleries, collectors and visitors who are drawn to Miami Beach not only to visit the main fair, but also to be part of this cultural destination's satellite fairs and events surrounding the main fair; and WHEREAS, ABMB brings the international art world together,featuring over 200 leading galleries and more than 4,000 artists from five continents; and WHEREAS, numerous special events and activations take place concurrently in and around Miami Beach, during a period that has come to be known as Miami Beach Art Week; and WHEREAS, the number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center("MBCC")where ABMB is held, led ABUSCo to formally request in 2012 that the City designate a zone of exclusivity; and WHEREAS, on April 11, 2012, the Mayor and City Commission approved, via Resolution 2012-27884, a copy of which is attached as Exhibit A to the Memorandum accompanying this Resolution, establishment of the "Art Basel Zone" pursuant to the April 19, 2012 letter of understanding and the May 12, 2015 renewal(collectively, "the Original LOU")(copies of the April 19, 2012 and May 12, 2015 renewal are attached as Exhibit B and Exhibit C, respectively,to the Memorandum accompanying this Resolution); and WHEREAS, the Art Basel Zone was defined in the Original LOU as the area bounded by 23rd Street to the North; by Lincoln Lane South to the South; by Alton Road to the West; and by the Atlantic Ocean to the East; and WHEREAS, as with other"zones" created in connection with other large, periodic events like the World Cup,the Art Basel Zone was established for the purpose of protecting the Art Basel brand and avoiding market saturation and consumer confusion; and WHEREAS, pursuant to the Original LOU, prior to issuing a special event permit for the use of public property within the Art Basel Zone during ABMB, the City must obtain ABUSCo's prior approval; and WHEREAS, the Original LOU provides that special events held on private property and demonstrations, pickets,and free speech activities, as such terms are defined in the City of Miami 1 Beach Special Event Guidelines and Requirements, are exempt from the requirements in the Original LOU and, accordingly, do not require ABUSCo's approval; and WHEREAS, the Original LOU was coterminous with the then existing license agreement(s) for ABUSCo's use of the MBCC ("ABUSCo License") and included an evergreen clause such that the Original LOU would be automatically be extended and remain in force for each successive calendar year ABMB event, provided an ABUSCo License has been executed in relation to such respective calendar year; and WHEREAS, in December 2022, Art Basel Miami Beach celebrated its twentieth anniversary at the MBCC;,and WHEREAS,ABMB's success has catapulted Miami Beach to being a leading international arts and culture destination in December and year-round; and WHEREAS, ABMB's international recognition has increased the interest in event activations during the week of the ABMB event, which is now known as Miami Beach Art Week; and WHEREAS, the number of requests for special event activations and temporary art installations in the immediate area of the MBCC where ABMB is held, continues to grow WHEREAS,ABUSCo has formally requested that the City expand the Art Basel Zone and has agreed to certain concessions in exchange for such modification; and , WHEREAS, the Administration has negotiated an Amended and Restated Letter of Understanding pertaining to the Art Basel Zone, a copy of which is attached as Exhibit D to the Memorandum accompanying this Resolution(the"Amended and Restated LOU"); and WHEREAS, the contemplated Amended and Restated LOU includes the following key new terms and conditions: • The revised Art Basel Zone is bounded by 24th Street to the North; by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East; • The Art Basel Zone shall run concurrently with the ABMB event dates each year as set forth in the ABUSCo License; • As with the Original LOU, the Amended LOU includes an evergreen clause such that the term will be automatically extended based on amendments to extend the term pursuant to a new license agreement from time to time and allows either party to terminate the agreement for convenience upon 60 days'notice; • ABUSCo has agreed that it cannot condition approval of special event applications for activations in the Art Basel Zone on payment of a fee; • ABUSCo has agreed that it will not condition approval of special event applications for activations in the Art Basel Zone on sponsorships of ABMB; • ABUSCo has agreed not to require any special event permit applicant for events in the Lincoln Road Mall area to become a sponsor of ABMB or fay consideration as a condition of approval; • If ABUSCo does not have a binding commitment for an activation at Soundscape Park by or before August 30 of any year(except September 15 in 2023), the City may issue special event permits for this public space without ABUSCo's approval 2 t a subject to restrictions to protect Art Basel and its sponsors against ambush guerilla marketing events by competitors; • ABUSCo must provide discounted tickets to City residents(50%discount during a one-week pre-sale period in advance of the official public on-sale date and after such one-week period,a discount equivalent to the lowest published reduced right for seniors, students and others; • ABUSCo must make an annual donation of not less than $50,000 to the City's STEAM Plus program, or any other such similar educational, cultural or public program and/or the City's Art in Public Places Fund, as may be agreed to by the parties in writing on an annual basis WHEREAS, the Administration recommends that the Mayor and City Commission approve the Amended and Restated LOU and authorize the City Manager and City Clerk to execute the Amended and Restated LOU. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission approve the proposed Amended and Restated Letter of Understanding between the City of Miami Beach and Art Basel U.S. Corp. revising the boundaries of the "Art Basel Zone" in exchange for additional public benefits; and further, authorize the Administration to execute the Amended and Restated LOU. PASSED and ADOPTED this day of , 2023. Dan Gelber, Mayor ATTEST: Rafael E. Granado, City Clerk APPROVED AS TO FORM&LANGUAGE FOR EXECUTION 7- j1-23 Clly Attorney ,o Date 3 MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive,Miami Beach,FL 33139,www.miamibeachfl.clov OFFICE OF THE CITY MANAGER Tel:305.673.7010,Fax:305.673.7782 July 26, 2023 Mr. Noah Horowitz, President Art Basel U.S. Corp. c/o Garber and Goodman 300 41st Street, Suite 214 Miami Beach, Florida 33140 Attention: Bob Goodman Email: bgoodman(a�garberandgoodman.com Re: Amended and Restated Letter of Understanding ("LOU")between the City of Miami Beach, Florida (the "City"), and Art Basel U.S. Corp. ("ABUSCo")regarding the "Art Basel Miami Beach" event held at the Miami Beach Convention Center (the "ABMB Event") Dear Mr. Horowitz: Reference is made to that certain LOU dated May 12, 2015 between the City and ABUSCo regarding the creation of a so-called "Art Basel Zone" pursuant to Resolution No. 2012-27884, a copy of which is attached hereto as Appendix A (the "Original LOU"). This LOU constitutes an amendment and restatement of the Original LOU made and entered into pursuant to Resolution No. 2023- to maintain and expand the Art Basel Zone (as defined below) subject to the terms and conditions set forth herein. Subject to ABUSCo's compliance with its contractual obligations pertaining to the holding of the annual ABMB Event at the Miami Beach Convention Center (the "MBCC"), including, without limitation, those set forth in that certain License Agreement between Global Spectrum,L.P.,d/b/a OVG360 and ABUSCo dated August 4, 2017, as the same may be amended or extended by a new license agreement from time to time (hereinafter, the "ABUSCo License"); and provided ABUSCo is in good standing and free of default(s)under such ABUSCo License,the parties agree as follows: 1. Pursuant to Resolution Nos. 2012-27884 and 2023- , the City has established an Art Basel Zone as follows: a.) The Art Basel Zone is bounded by 24th Street to the North;by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East and is graphically depicted in Exhibit A,attached hereto and incorporated herein (the"Art Basel Zone"). b.) The Art Basel Zone shall only be effective during, and will run concurrently with, the ABMB Event dates each year as set forth in the ABUSCo License (each year, the "Annual Art Basel Zone Term").The ABUSCo License will expire after the ABMB Event in 2026, subject to ABUSCo's right of first refusal and renewal to extend the term for the 2027 and 2028 Annual Shows, and as the parties may subsequently amend or extend the term pursuant to a new license agreement from time to time. c.) The City shall not issue a special event permit for the use of public property within the Art Basel Zone during the Annual Art Basel Zone Term without first obtaining the prior written consent of ABUSCo. Accordingly,the City shall provide ABUSCo with at least thirty (30) calendar days prior written notice prior to approving any special event applications received by the City for the use of public property within the Zone during the ABM B Event date(s)(each such notice,a"Request").ABUSCo shall have ten(10) calendar days from the date of the City's Request to approve or deny the Request,for any reason whatsoever; provided, however, that (i) ABUSCo's approval or denial of the Request must be in writing, (ii)ABUSCo cannot condition its approval on payment of a fee to ABUSCo or any affiliate and (iii) if a denial, ABUSCo must articulate the specific reason(s) therefor. In the event that ABUSCo fails to approve or deny a Request within such ten (10)calendar day period in accordance with the procedures set forth herein, then ABUSCo shall have waived its right to deny such Request, and the City may proceed with issuance of the special event permit for the event that was the subject of such Request as if approved by ABUSCo,and without any further notice and/or other obligation to ABUSCo. d.) Notwithstanding the establishment of the Art Basel Zone, and/or any other term or condition in this LOU, (i) special events held on private property and (ii) demonstrations, pickets, and free speech activities, as such terms are defined in the City of Miami Beach Special Event Guidelines and Requirements, and as same may be amended from time to time, shall be exemptfrom the requirements of this LOU and, accordingly,shall not require ABUSCo's approval.In addition,ABUSCo acknowledges and agrees that the City deems that having one or more cultural activations in Soundscape Park during Art Week is of particular importance. Accordingly,ABUSCo shall provide written notice to the City by or before August 30 of each calendar year (except for2023, by September 15)to advise as to the status of binding commitments, as evidenced by the submission of one or more special event applications, as applicable, to activate Soundscape Park with cultural content during the ABMB Event Dates. If ABUSCo does not have a binding com mitment for Soundscape Park by August 30 (exceptfor 2023, by September 15),then(a)by August 30 of each calendar year(except for 2023, by September 15) ABUSCo shall provide a list of its sponsors for the ABMB Event (the "ABMB Sponsors") and other major art fairs that are then competitors of Art Basel("Competitive Art Fairs")and(b)the City shall be free to issue special event permits to third parties for cultural activations at Soundscap Park without ABUSCo's consent, provided, the City shall not approve special event permits at Sounscape Park during the Art Basel Zone Term in respect of events produced or sponsored by any Competitive Art Fair or any competitor of any ABMB Sponsor. Further, if ABUSCo confirms that a cultural activation has been programmed for Soundscape Park during the Annual Art Basel Zone Term for a particular calendar year but the activation does not occur as a result of any act or omission of ABUSCo or any ABM B Sponsor,then Soundscape Park will thereafter be excluded from the Art Basel Zone for the remainder of the term of this LOU and shall not be included in any Art Basel Zone established in any amendment or renewal of this LOU. The foregoing provisions shall not be construed as precluding the City from presenting Requests for the use of Soundscape Park in accordance with the other provisions of this LOU prior to the August 30 (or September 15 in the case of 2023) deadline, and ABUSCo shall consider any such Request in good faith. 2 e.) ABUSCo shall not require that a special event permit applicant become a sponsor of the ABMB Event as a condition of its approval of a Request. f.) ABUSCo may not require that a special event applicant become a sponsor or affiliate of the ABMB Event or pay ABUSCo or any affiliate any fee or other consideration, directly or indirectly, as a condition of its approval of a Request to produce an event in the Lincoln Road Area. The "Lincoln Road Area" means the area bounded by Lincoln Lane to the North; by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East. 2. The City shall use reasonable commercial efforts to inform ABUSCo of any special event applications for use of public City-owned property outside the Art Basel Zone that the City may receive for the installation and/or display of art and/or art works during the term/duration of,the ABMB Event, provided any failure to provide such notice shall not constitute a breach of this LOU. 3. In consideration of the establishment of the Art Basel Zone, ABUSCo agrees to provide, during the term of this LOU,(a)discounted tickets to City of Miami Beach residents for the public portion of ABMB Events at the MBCC(i) at a fifty percent (50%) discount off the standard price for tickets purchased during a one-week pre-sale period in advance of the official public on-sale date, provided, each resident shall be entitled to a maximum of two (2) tickets and (ii) following such one-week pre-sale period, at the lowest published reduced price offered to senior citizens, students and others, subject to a reduction in the number of tickets offered based on capacity constraints due to health and safety issues as determined in ABUSCo's reasonable discretion (ABUSCo shall determine proof of residency in its reasonable discretion) and (b) an annual donation of not less than $50,000.00 to the City's STEAM Plus program, or any other such similar educational, cultural or public program and/or the City's Art in Public Places Fund, as may be agreed to by the parties in writing on an annual basis. 4. This LOU shall be valid and binding for the duration of the ABUSCo License Agreement, provided, if a new or amended ABUSCo license agreement is executed for the ABMB • Event for one or more additional calendar year(s),the term of this LOU shall be similarly extended so that it runs concurrently with the new or amended license agreement. For the sake of clarity and avoidance of doubt, this LOU and the Art Basel Zone shall automatical y be extended and remain in force for each successive calendar year of the ABM B Event, provided an ABUSCo license agreement has been executed in relation to each such ABMB Event. 5. The provisions of Section 2-378 of the City Code pertaining to the audit rights of the Office of the Inspector General are incorporated into this LOU by reference as if fully set forth herein. The City and ABUSCo shall each appoint a contract administrator, as may be modified from time to time,who shall monitor the parties' compliance with the terms of this LOU. Unless otherwise notified,the contract administrators for each party are as follows: For the City: Lissette Arrogante, Director Tourism and Culture Department City of Miami Beach 1700 Convention Center Drive 3 Miami Beach, Florida 33139 305-673-7577 For ABUSCo: Art Basel U.S.Corp. c/o MCH Swiss Exhibition(Basel)Ltd. Attention: Maureen Bruckmayr 4005 Basel, Switzerland +41 58 206 31 32 Facsimile +41 58 206 27 51 Telephone M aureen.Bruckmayr@artbasel.com Without limiting ABUSCo's indemnity obligations pursuant to the ABUSCo License Agreement, ABUSCo agrees to defend, indemnify and hold harmless the City, and its officials, directors, officers,employees,agents, contractors,servants,successors, and assigns, against any claims, causes of actions, costs, expenses, (including reasonable attomey's fees), liabilities, or damages arising out of or in connection with(a)any negligent act or omission, or intentional misconduct on the part of ABUSCo or any of its officials, directors, officers, employees, agents, contractors, servants,successors and assigns, in the performance of its obligations under this LOU and/or(b) the execution of this LOU and/or the establishment of the Art Basel Zone. The indemnification and hold harmless requirements in the preceding paragraph shall survive the termination or expiration of this LOU. This LOU may be terminated by either party,for convenience(and without cause),upon sixty(60) days'prior written notice to the other party,and shall automatically terminate upon the termination or expiration of the ABUSCo License Agreement. All written notices and communications required or permitted hereunder may be delivered personally to the respective representatives of ABUSCo and the City listed below, may be mailed by registered mail, postage prepaid (or air-mailed if addressed to an address outside of the city of dispatch) or may be provided via email (in a form that identifies the sender). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO ABUSCo: Art Basel U.S.Corp. c/o MCH Swiss Exhibition (Basel)Ltd 4005 Basel, Switzerland +41 58 206 31 32 Facsimile +41 58 206 27 51 Telephone, M aureen.Bruckmayraartbasel.com Attention: Maureen Bruckmayr With copy to: Art Basel U.S. Corp. c/o Garber and Goodman 300 41st Street, Suite,214 Miami Beach, Florida 33140 Attention Bob Goodman Email:bgoodman@garberandgoodman.com TO CITY: City of Miami Beach 1700 Convention Center Drive 4 Miami Beach, Florida 33139 Attn:Alina T. Hudak, City Manager (305)673-7010 Email:alinahudak(a?,miamibeachfl.gov With copy to: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: Rafael A. Paz, City Attorney (305)673-7370 Email: rafaelpazAmiamibeachfl.gov Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; if mailed to an address outside the city of dispatch on the seventh day following the date mailed, and if by email, upon confirmation of receipt by the recipient through an acknowledgment or a reply(other than an automated reply). This LOU shall be governed by,and construed in accordance with,the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this letter of understanding shall be Miami-Dade County, Florida, if in state court,and the U.S. District Court,Southern District of Florida, if in federal court. BY ENTERING INTO THIS LETTER OF UNDERSTANDING,CITY AND ABUSCO EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,THIS LETTER OF UNDERSTANDING. Neither party may assign this LOU. Neither this LOU,nor any of its terms, may be changed, modified,or otherwise amended except by an instrument in writing, signed by an authorized representative, which shall .be the City Manager or her designee (on behalf of the City), and the President and Head of Business & Management,Americas, or such other authorized parties (on behalf of ABUSCo). The City and ABUSCo acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to this letter of understanding. Nothing contained herein shall be construed as creating a partnership, joint venture or similar relationship between the City and ABUSCo. This LOU constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, understandings, negotiations and discussions both written and oral, between the parties hereto with respect to the transactions contemplated hereby. This LOU may be executed in counterparts and by electronic signature (e.g. via DocuSign, accompanied by the confirming e-signature certificate)and may be transmitted by facsimile copy or e-mailed PDF file, each of which when so executed and delivered shall be deemed to be an original and all of which,when taken together,shall constitute one and the same instrument. [BALANCE OF PAGE INTENTIONALLY BLANK.] 5 Please acknowledge ABUSCo's agreement to the above terms and conditions by executing this LOU in the space provided below. Upon execution by the City Manager(on behalf of the City), we will forward a fully executed copy to you for your records. Very truly yours, City of Miami Beach By: Alina T. Hudak City Manager ACKNOWLEDGED AND AGREED: Art Basel U.S. Corp. By: By: Noah Horowitz Maureen Bruckmayr President Head of Business & Management Americas 6 Exhibit A Art Basel Zone 7 • Resolutions -C7 Z MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Alina T. Hudak, City Manager DATE: July 26, 2023 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,APPROVING AN AMENDED AND RESTATED LETTER OF UNDERSTANDING (LOU) BETWEEN THE CITY OF MIAMI BEACH AND ART BASEL U.S. CORP. REVISING THE BOUNDARIES OF THE "ART BASEL ZONE" IN EXCHANGE FOR ADDITIONAL PUBLIC BENEFITS; AND FURTHER, AUTHORIZING THE ADMINISTRATION TO FINALIZE AND EXECUTE THE AMENDED AND RESTATED LOU. RECOMMENDATION The Administration recommends the approval of the Amended and Restated Letter of Understanding between the City of Miami Beach and Art Basel Miami Beach which revises the boundaries of the "Art Basel Zone". BACKGROUND/HISTORY Art Basel U.S. Corp (ABUSCo) established Art Basel Miami Beach ("ABMB") in 2000 as the sister event of Switzerland's Art Basel, founded in 1970, and highly regarded as the world's most prestigious art fair. Over the last 20 years, ABMB has become the preeminent contemporary art fair in the western hemisphere, and an established destination for artists, galleries, collectors and visitors who are drawn to Miami Beach not only to visit the main fair, but also to be part of this cultural destination's satellite fairs and events surrounding the main fair. ABMB brings the international art world together, featuring over 200 leading galleries and more than 4,000 artists from five continents. Numerous special events and activations take place concurrently in and around Miami Beach, during a period that has come to be known as Miami Beach Art Week. The number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center(MBCC)where ABMB is held, led Art Basel U.S. Corp (ABUSCo) to formally request in 2012 that the City designate a zone of exclusivity. On April 11, 2012, the Mayor and City Commission approved, via Resolution 2012-27884 (Exhibit A), establishment of the "Art Basel Zone" pursuant to the April 19, 2012 letter of understanding and the May 12, 2015 renewal (collectively, the Original LOU)(copies of the April 19, 2012 and May 12, 2015 renewal are attached as Exhibit B and Exhibit C, respectively). The Art Basel Zone was defined in the 2012 LOU is bounded by 23rd Street to the north; by Lincoln Lane South to the south; by Alton Road to the west; and by the Atlantic Ocean to the east. As with other"zones" created in connection Page 775 of 1588 with large events like the World Cup, the Art Basel Zone was established for the purpose of protecting the Art Basel brand and avoiding market saturation and consumer confusion. In this regard, prior to issuing a special event permit for the use of public property within the Art Basel Zone during ABMB, the City must obtain ABUSCo's prior approval. Pursuant to the procedure established in the existing LOU, the City must provide ABUSCo 30 days'prior notice and ABUSCo must provide approval or denial within 10 calendar days. The LOU provides that special events held on private property and demonstrations, pickets, and free speech activities, as such terms are defined in the City of Miami Beach Special Event Guidelines and Requirements are exempt from the requirements in the LOU and, accordingly, do NOT require ABUSCo's approval. The Original LOU was coterminous with the then existing license agreement(s) for ABUSCo's use of the Convention Center and included an evergreen clause such that the Original LOU would be automatically be extended and remain in force for each successive calendar year ABMB Event, provided an ABUSCo License Agreement has been executed in relation to such respective calendar year. ANALYSIS In December 2022,Art Basel Miami Beach(ABMB)celebrated its twentieth anniversary at the Miami Beach Convention Center. The art fair's success has catapulted Miami Beach as a recognized international arts and culture destination in December; resulting in the week associated with ABM B is now known as Miami Beach Art Week. ABMB's international recognition has increased the interest in event activations during Art Week. The number of requests for special event activations and temporary art installations in the immediate area of the Miami Beach Convention Center (MBCC) where ABMB is held, continues to grow, leading to Art Basel US Corp (ABUSCo) to formally request the City to expand the Art Basel Zone from Lincoln Lane South to 16th Street to the South ,and from 23 Street to 24 Street to the North. The Administration has negotiated an Amended and Restated LOU, a copy of which is attached as Exhibit D,which includes the following new terms and conditions: a.)The revised Art Basel Zone is bounded by 24th Street to the North; by 16th Street to the South; by Alton Road to the West; and by the Atlantic Ocean to the East and is graphically depicted in Exhibit A, attached hereto and incorporated herein. b.)The Art Basel Zone shall run concurrently with the ABMB event dates each year as set forth in the license agreement between Global Spectrum, L.P. dba OVG360, as the agent of the City of Miami Beach and ABUSCo for the use of the Miami Beach Convention Center(ABUSCo License)and will expire after the ABMB event in 2026, subject to ABUSCo's right of first refusal and renewal to extend the'term for the 2027 and 2028 Annual Shows. As with the Original LOU, the Amended and Restated LOU includes an evergreen clause such that the term will be automatically extended based on amendments of extension the term pursuant to a new license agreement from time to time. The Amended and Restated LOU also allows the City to terminate the agreement for convenience upon 60 days'prior notice c.)The procedure to effectuate ABUSCo's approval right remains largely unchanged. However, at the City's request, ABUSCo has agreed that it cannot condition its approval on payment of a fee to ABUSCo or any affiliate. d.)In addition, because the City deems that having one or more cultural activations in Soundscape Page 776 of 1588 Park during Art Week is of particular importance, ABUSCO has agreed that going forward it must provide written notice to the City by or before August 15 of each calendar year (except for 2023, by September 15) to advise as to the status of binding commitments to activate Soundscape Park with cultural content during the ABMB Event Dates. If ABUSCo does not have a binding commitment for Soundscape Park by August 15 (except for 2023, by September 15), then the City shall be free to issue special event permits to third parties for cultural activations at Soundscape Park without ABUSCo's consent, subject to certain restrictions to protect Art Basel and its sponsors against ambush guerilla marketing events by competitors. Further, if ABUSCo confirms that a cultural activation has been programmed for Soundscape Park during the Annual Art Basel Zone Term for a particular calendar year but the activation does not occur as a result of any act or omission of ABUSCo or any ABMB sponsor, then Soundscape Park will thereafter be excluded from the Art Basel Zone for the remainder of the term of the Amended and Restated LOU and shall not be included in any Art Basel Zone established in any amendment or renewal of the Amended and Restated LOU e.)At the City's request, ABUSCo has agreed that it will not condition approval of requests for special event permits within the Art Basel Zone on sponsorships of ABMB. In addition, the City has prohibited ABUSCo from requiring any special event permit applicant for events in the Lincoln Road Mall area to become a sponsor of ABMB or pay consideration as a condition of approval. In consideration of the establishment of the Art Basel Zone, in the Amended and Restated LOU, ABUSCo has agreed to provide, (a) discounted tickets to City of 'Miami Beach residents for the public portion of ABMB Events at the MBCC (i) at a fifty percent (50%) discount off the standard price for tickets purchased during a one-week pre-sale period in advance of the official public on-sale date, up to two (2)tickets per resident and(ii)following such one-week pre-sale period, at the lowest published reduced price offered to senior citizens, students and others, subject to a reduction in the number of tickets offered based on capacity constraints due to health and safety issues as determined 'in ABUSCo's• reasonable discretion. ABUSCo has also agreed to make an annual donation of not less than $50,000.00 to the City's STEAM Plus program, or any other such similar • educational, cultural or public program and/or the City's Art in Public Places Fund,as may be agreed to by the parties in writing on an annual basis SUPPORTING SURVEY DATA In the 2022 City of Miami Beach Resident Survey, 86% of residents agreed that free or City sponsored.art and cultural activities contribute to their quality of life in Miami Beach and 86% of residents agreed that Miami Beach Cultural Activities(such as art shows, film festivals, musicals, and live performances)contribute to the quality of life in Miami Beach. FINANCIAL INFORMATION N/A CONCLUSION • The Administration recommends that the Mayor and City Commission accept the terms outlined in this Memorandum and favorably recommend approving the Amended and Restated Letter of Understanding pertaining to the Art Basel Zone. Applicable Area South Beach Page 777 of 1588 Is this a"Residents Right Does this item utilize G.O. to Know" item. pursuant to Bond Funds? City Code Section 2-14? Yes No Strategic Connection Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality entertainment.destination. Legislative Tracking • Tourism and Culture ATTACHMENTS: Description. ' ❑ Exhibit A- Resolution 2012-27884 ❑ Exhibit B -2012 Letter of Understanding ❑ Exhibit C -2015 Letter of Understanding ❑ Exhibit D - Proposed Amended and Restated Letter of Understanding Page 778 of 1588 RESOLUTION NO. 2012-27884 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS COMMITTEE AND APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF AGREEMENT BETWEEN THE CITY AND MCH SWISS EXHIBITION LTD (MCH), OUTLINING TERMS AND CONDITIONS FOR USE OF CERTAIN PUBLIC PROPERTY DURING ART BASEL MIAMI BEACH, AND FOR THE ESTABLISHMENT OF AN "ART BASEL ZONE." WHEREAS, Art Basel 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-notch art; and WHEREAS, economists have estimated $400 million to $500 million annually in related economic impact as a result of ABMB; and WHEREAS, in the past, during the ABMB event, the City and ABMB have informally established a zone around the Convention Center area, to protect the ABMB brand and limit third party use of public property in this area, due to a growing number of requests for temporary art displays or for other uses of public property in the immediate area of the Convention Center, and WHEREAS, the City and ABMB would like to formally memorialize the establishment of an."Art Basel Zone" by amending the City's Special Event Requirements and Guidelines to establish such zone; and WHEREAS, at its regular meeting on March 1, 2012, the Finance and Citywide Projects Committee recommended approval of the first step in this process; that is, approval of a letter agreement between the City and MCH outlining terms and conditions for use of public property by MCH during the fair dates, and the City's consideration of the establishment of an "Art Basel Zone." Page 779-of 1588 NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the recommendation of the Finance and Citywide Projects Committee and approve and authorize the City Manager to execute a Letter of Agreement between the City and MCH Swiss Exhibition LTD (MCH), outlining terms and conditions for use of certain public property during Art Basel Miami Beach, and for the establishment of an "Art Basel Zone." PASSED AND ADOPTED this 11 st day of April, 2012. A t: AYOR t6o tlAikfr &: .........N,,, CITY.CLERKF ° ,, T:IAGENDA12012t4-11-12 ABMB Letter AGreement Reso.•.'• / ')•*C * INCORP•ORATED: %, .. 3 ow . APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION �,- 3 - 36 City ttom Page 780 of 1588 COMMISSION ITEM SUMMARY Condensed Title: • A Resolution accepting the recommendation of the Finance and Citywide Projects Committee approving and authorizing the City Manager to execute a Letter of Agreement between the City and MCH Swiss Exhibition Ltd (MCH),outlining terms and conditions for use of certain public property during Art Basel Miami.Beach,and the formal establishment of an"Art Basel Zone". Key Intended Outcome Supported: Increase community ratings of cultural activities. Supporting Data(Surveys,Environmental Scan,etc.):The 2009 Community Satisfaction Survey reported more than one-fifth of all resident respondents feel there are "too few°family friendly activities(24.6%)and cultural activities(24.1%). Additionally, on average,residents attended 10.61 cultural activities per year and 7.19 family friendly activities per year. Issue: Shall the City Commission authorize the City Manager to enter into a letter agreement with Art Basel Miami Beach and direct the Administration to include a.corresponding amendment in the City's Special Event Guidelines to reflect the Art Basel Zone? Item Summary/Recommendation:, As ABMB grew in popularity, so did the number of requests for temporary art displays or for use of public property in the immediate area of the convention center. The City and ABMB informally established an Art Basel Miami Beach Zone to protect the ABMB brand and limit third party use of public property in this area.At this time,the City and ABMB would like to formally memorialize the Art Basel Miami Beach Zone. In order to accomplish this, an amendment to the Special Event Guidelines is required. The Special Event Guidelines would need to be amended to establish an"Art Basel Zone" which, if such recommended amendment is approved by the Mayor and City Commission would include: The establishment of a zone,the effective term and duration of which is only intended to run concurrent with the actual ABMB Event dates for years 2011,2012,2013,and 2014,as same are set forth in the MCH License, and which zone is intended to be bounded by 23rd Street to the north;by Lincoln Lane South to the south;by Alton road to the west;and by the Atlantic Ocean to the east(hereinafter the Art Basel Zone). The Art Basel Zone, if approved, shall be established for the purpose of precluding the City from issuing a special event permit,for the use of public property within the Art Basel Zone during the term/duration that such Zone is in effect,without first obtaining the prior written consent of MCH. Notwithstanding the establishment of .the Art Basel Zone,(i)special events held on private property,and(ii)demonstrations,pickets,and free speech activities;as such terms are defined in the Guidelines,and as same may be amended from time to time,shall be EXEMPT from the requirements of this letter of understanding and,accordingly,shall NOT require MCH's approval. The City shall use reasonable commercial efforts to inform MCH of any special event applications for use of public City-owned property outside the.Art Basel Zone that the City may receive for the installation and/or display of art and/or art works during the term/duration of,the ABMB Event for,respectively years 2011,2012, 2013,and/or 2014. . . . Advisory Board Recommendation: The Finance and Citywide Projects Committee recommended in favor of the waiver at their March 1, 2012 meeting. Financial Information: Source of Amount Account Approved Funds: OBPI Total .Financial Impact Summary: N/A City Clerk's Office Legislative Tracking: Max Sklar, Ext.6116 Sign-Offs: Department Director Assistant City Manager City Manager --gpitax)P1 -. 11)).4(..0-/ itA., { Page 781 of 1588 AGENDA ITEM L lv\IAAAIBEACHDATE y -1Z m MIAMIBEACH City of Miami.Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Matti Herrera Bower and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager DATE: April 11, 2012 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJECTS COMMITTEE AND APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF AGREEMENT BETWEEN THE CITY AND MCH SWISS EXHIBITION LTD (MCH), OUTLINING TERMS AND CONDITIONS.FOR USE OF CERTAIN PUBLIC PROPERTY DURING ART BASEL. MIAMI BEACH, AND FOR THE ESTABLISHMENT OF AN "ART BASEL ZONE." ADMINISTRATION RECOMMENDATION As directed by the Finance and Citywide Projects Committee, the Administration recommends the approval of a letter agreement between the City of Miami Beach and Art Basel Miami Beach • outlining terms and conditions for use of public property by Art Basel Miami Beach and the formal establishment of an Art Basel Zone. BACKGROUND Art Basel 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. In just ten years, 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-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. As ABMB grew in popularity, so did the number of requests for temporary art displays or for use of public property in the immediate area of the convention center. The City and ABMB informally established an Art Basel Miami Beach Zone to protect the ABMB brand and limit third party use of public property in this area. The boundaries of the zone include 23rd Street to the north; Lincoln Lane South to the south; Alton road to the west; and the Atlantic Ocean to the east. At this time, the City and ABMB would like to formally memorialize the Art Basel Miami Beach Zone. In order to accomplish this, an amendment to the Special. Event Guidelines is required. The Special Event Guidelines would need to be amended to establish an "Art Basel Zone" which, if such recommended amendment is approved by the Mayor and City Commission would include: Page 782 of 1588 City Commission Memorandum Art Base/Miami Beach Letter Agreement April 11, 2012 Page 2 a.) The establishment of a zone, the effective term and duration of which is only intended to run concurrent with the actual ABMB Event dates for years 2011, 2012, 2013, and 2014, as same are set forth in the MCH License, and which zone is intended to be bounded by 23rd Street to the north; by Lincoln.Lane South to the south; by Alton road to the west; and by the Atlantic Ocean to the east (hereinafter the.Art Basel Zone). b.) The Art Basel Zone, if approved, shall be established for the purpose of precluding the City from issuing a special event permit, for the use of public property within the Art Basel Zone during the term/duration that such Zone is in effect, without first obtaining the prior written consent of MCH. Accordingly; the City shall provide MCH with at least thirty (30) calendar days prior written notice of any special event applications received by the City for the use of public property within the Zone during the ABMB Event date(s) (the City's Approval Request). MCH shall have ten (10) calendar days from the date of the City's Approval Request to approve or deny the Request. MCH's approval or denial of the Request must be in writing and, if a denial, must specifically set forth the reason(s) therefore. In the event that MCH fails to approve or deny a Request within the ten (10) day time period and, further, in accordance with the procedures set forth herein, then , MCH shall have waived its right to deny such Request, and the City may proceed with the event (that was the subject of such Request) as if approved by MCH, and without any further notice and/or other obligation to MCH. c.) Notwithstanding the establishment of the Art Basel Zone, and/or any other term or condition in this letter of understanding, (i) special events held on private property, and (ii) demonstrations, pickets, and free speech activities, as such terms are defined in the Guidelines, and as same may be amended from time to time, shall be EXEMPT from the requirements of this letter of understanding and, accordingly, shall NOT require MCH's approval. d.) The City shall use reasonable commercial efforts to inform MCH of any special event applications for use of public City-owned property outside the Art Basel Zone that the City may receive for the installation and/or display of art and/or art works during the term/duration of, the ABMB Event for, respectively years 2011, 2012, 2013, and/or 2014. e.) The City shall take into consideration the needs and requirements of the ABMB Event as plans for the City's proposed expansion and renovation of the MBCC are developed. The Finance and Citywide Projects Committee considered this matter at their March 1, 2012, meeting and recommended in favor of the letter agreement and the formal creation of the Art Basel Zone. The item is being presented to the Mayor and Commission for consideration as recommended by the Finance and Citywide Projects Committee. The Administration will include a corresponding amendment in the City's Special Event Guidelines to reflect the Art Basel Zone at the May 2012 City Commission Meeting if the attached Resolution'is approved. CONCLUSION As directed by the Finance and Citywide Projects Committee, the Administration recommends the approval of a letter agreement between the City of Miami Beach and Art Basel Miami Beach outlining terms and conditions for use of public property by Art Basel Miami Beach and the formal establishment of an Art Basel Zone. JMG/HMF/MAS Page 783 of 1588 0 MIAMIBEACH City of Miami Beach,1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov OFFICE OF THE CITY MANAGER Tel:305.673.7010,Fax:305.673.7782 January 24, 2012 Ms. Annette Schonholzer, Co-Director; ' MCH Swiss Exhibition(Basel) LTD Art Basel, Art Basel Miami Beach Messeplatz 10 , CH-4005 Basel, Switzerland • RE: Letter of Understanding between the Ci of Miami Beach, Flori tyL nd MCH Swiss Exhibition Ltd (MCH) regarding the-A ease, l eve• in Miami Beacl9 (or the ABMB Event). 1/ Dear Ms. Schanholzer: \ '- ---, � The following letter shall confirm the u e�stending between th --City and MCH regarding certain.terms pertaining to the ABMB Eve aThadditioQ• \consideration for MCH's contractual obligation to continue to hold the ABMB Event, which kes.pla,ce annually each Winter at the Miami Beach Convention CCenter(MBCC), for the/ ears 2011� ,2012, 2013, and 2014. l 1/ Subject to MCH's comRl`ance With its contractu I obligations pertaining to the holding of the ABMB Event at tho��B6C, an, iy cluding, without .jimitation, those set forth in that certain License Agreement bev�en,\Glo al-8 ectrum and/MCH Swiss Exhibition (Basel), LTD, dated November 28 2011 (herein er��the,MCH-L-ice•she), and provided MCH is good standing and free of def (s)u der�such -Ice se, the-City/agrees to take the following actions, in further support / e AB veiti t!^Thee\�City Administr do shall-recommend to the Mayor and Commission that the City's Speccia LEvents Requirements/nd Guidelines, in effect as of the execution date of this letter'�QQf tinderstanding i py the parties hereto (the Guidelines), be amended to establish an "ArrBasel\Zone" wt)ich, if such recommended amendment is approved by the Mayor and City orwissio , in their sole and reasonable discretion, shall accomplish the following: a.). The establishment of a zone, the effective term and duration of which is only intended to run concurrent with the actual ABMB Event dates for years 2011, 2012, 2013, and 2014, as same are set forth in the MCH License, and which zone is intended to be bounded by 23rd Street to the north; by Lincoln Lane South to the south; by Alton road to the west; and by the 'Atlantic Ocean to the east (hereinafter the Art Basel Zone). b.) The Art Basel Zone, if approved, shall be established for the purpose of precluding the City from issuing a special event permit, for the use of public property within the Art Basel Zone during the term/duration that such Zone is in effect, without first Page 784 of 1588 obtaining the prior written consent of MCH. Accordingly, the City shall provide MCH with at least thirty (30) calendar days prior written notice of any special event applications received by the City for the use of public property within the Zone during the ABMB Event date(s) (the City's Approval Request). MCH shall have ten (10) calendar days from the date of the City's Approval Request to approve or deny the Request. MCH's approval or denial of the Request must be in writing and, if a denial, must specifically set forth the reason(s) therefore. In the event that MCH fails to approve or deny a Request within the ten (10) day time period and, further, in accordance with the procedures set forth herein, then MCH shall have waived its right to deny such Request, and the City may proceed wit the event (that was the subject of such Request) as if approved by MCH, and ithOut any further notice and/or other obligation to MCH. c.) Notwithstanding the establishment of the Art Base/Zon a d/or any other term or condition in this letter of understanding, (i) spec! I events e1d on private property, and (ii) demonstrations, pickets, and free7s,pgtc activitiesk as such terms are defined in the Guidelines, and as same aiy'be amended from tik!1'to time, shall be EXEMPT from the requirements of this her of un erstanding and, ccor i gly, shall. NOT require MCH's approval. 2. The City shall use reasonable commercial effort to(nform MCH of any special event applications for use of public City\wned propertyquts de the Art Basel Zone that the City may receive for the install�bon-and/or display, of art,and/or art works during the term/duration of, the ABMB Event'f r, espectively years'20T1, 01.2, 2013, and/or 2014. 3. The City shall take into consideration he neds-a�ndtreq-u)rements of the ABMB Event as plans for the City's ,reposed expansion\and renovatioryof the MBCC are developed. \C 1/ In the event that any claim or ntroversy anseo with respect to this letter of understanding, MCH and the City here y'knowin ly,I and voluntar`il$wive their rights to assert any argument or defense alleging inadeq� teNor in ufficient conside tion. The City an s II eac ce \a oirt a contract administrator who shall monitor the parties' complia with the'term f thi a er of understanding. Unless otherwise notified, the contract admi i tr-tors for each •-rty\are as.ollowS: - For the-City: Max Sklar, Tourism and Cultural Development Director Tourism and Cultural Development Department • ity of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 305-673-7577 For MCH: Show Manager MCH Swiss Exhibition Basel (Ltd) Messeplatz 10 4005 Basel, Switzerland MCH agrees to defend, indemnify and hold harmless the City, and its officials, directors, Page 71i•5 of 1588 officers, employees, agents, contractors, servants, successors, and assigns, against any claims, causes of actions, costs, expenses, (including reasonable attorney's fees), liabilities, or damages arising out of or in connection with any negligent act or omission, or intentional misconduct on the part of MCH or any of its officials, directors, officers, employees, agents, contractors, servants, successors and assigns, in the performance of its obligations under this letter of understanding. The indemnification and hold harmless requirements in the preceding paragraph shall survive the termination or expiration of this letter of understanding. This letter of understanding may be terminated by either party, fornbnience (and without . cause), upon sixty (60) days prior written notice to the other party. All written notices and communications required or perm,itt9gd herreueder may be delivered personally to the respective representatives of MCH and)he ty listed\belpw or may be mailed by registered mail, postage prepaid (or air-mailed if addr s'se to an add s outside of the city of dispatch). Until changed by notice in writing, all such notices n' commications shall b a dressed as follows: TO MCH: Shoanager MCHCSwj s- hibition Bas (`td Messe ,latz$0 4005 Basel, Switzerlan TO CITY: City of Mia Beach • 1700 Conve a'ip_rICenter Drive Miami Beach, Florida 33139 ttn:-Max_Sk rr, Cultural Arts&Tourism Dev. Director 7— ------,:\ ..... (305)-673J000, Ext. 6116 Notices hereunder shallAe effective If,dslivered personally, on delivery; if mailed to an address in thdcity of\dispatch, on t e day follo ng the date mailed; and if mailed to an address outside the city of ispatch on the s v4nth daiffollowing the date.mailed. : ) This letter of undcrstandingaI)all be governed by, and construed in accordance with, the laws of the State of Florid botrfbstantive and remedial, without regard to principles of conflict of laws. The exclusive (enue for any litigation arising out of this letter of understanding,shall be Miami-Dade 'County, Flonda, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS LETTER OF UNDERSTANDINBG, CITY AND MCH EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS LETTER OF UNDERSTANDING. Neither party may assign this letter of understanding. Neither this letter of understanding, nor any of its terms, may be changed, modified, or otherwise amended except by an instrument in writing, signed by an authorized representative, which shall be the City Manager (on behalf of the City), and (on behalf of Page 78,y6 of 1588 MCH). The City and MCH acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to this letter of understanding. Nothing contained herein shall be construed as creating a partnership, joint venture or similar relationship between the City and MCH. Additionally, for purposes of this letter of understanding (or otherwise) no officer, director, employee, agent, or contractorof MCH shall be deemed to be an agent or employee of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any right generally afforded Classified or Unclassified employees' or be deemed entitled to Florida Worker's Compensation benefits as an employee of the City, or accumulation of sick or annual leave. If the aforestated meets with your approval, please acknowle�lge'••and execute same in the space provided below. Upon execution by the City Manager(onjiehalf of the City), we will forward a fully executed copy to you for your records. Very truly yours, / Raul J. Aguila Chief Deputy City Attorney - I have read this letter agreement and fully understanding same;agree;to be bound by the terms and conditions contained herein. MCH Swiss Exhibition (Basel) Ltd i:City of-Miami Beach i By: ! • • Jorge M. Gonzalez . - %City Manager • !- Date; Date i , • By: Date - .', i RJA/ed F:\INFOI$ALL\Max\TCD\Special Events\BASEL\Basel Letter Agreement_sept 2011.doc Page 7f7 of 1588 , • . • . , . . . • . P-___ MIAMIBEACH • . • • City of Miami Beach,1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov • OFFICE OF THE CITY MANAGER . • V Tel:305.673.7010,Fax:305.673.7782 . - • April.19,.2012 . - • Ms:Annette Schonholzer, Co-Director, . . . - MCH Swiss Exhibition (Basel) LTD . • Art Basel, Art Basel Miami Beach . Messeplatz 10 . • CH —4005 Basel, Switzerland . - ' RE: -Letter of Understanding between the City of Miami Beach, Florida (City), and MCH • Swiss Exhibition Ltd (MCH) regarding the Art Basel event in Miami Beach (or the ABMB. • Event). • V • . ' •- • •- Dear Ms. Schonholzer:.• - - . • - • -The following. letter. shall confirm the. understanding between the City and MCH. regarding • • . , certain terms pertaining to the ABMB Event, as additional consideration for MCH's contractual • . . .obligation to continue tp hold the ABMB Event, which lakes place annually each-winter at the . ' Miami Beach Convention Center(MBCC), for the Years 2011, 2012, 2013, and 2014. - Subject to MCH's compliance with its contractual obligations pertaining to the holding of the ABMB Event at the MBCC, and including, without limitation, those set forth in that certain License Agreement between Global Spectrum and MCH Swiss Exhibition (Basel), LTD, dated • . November 28, 2011 (hereinafter, the MCH License), and provided MCH is good standing and ••free of default(s) under such License, the City agrees to take the following actions, in further.� support of the ABMB Event: • . V • 1-. The City Administration shall recommend to.the Mayor and Commission that the City's .. . • • Special Events Requirements and Guidelines, in effect as of the execution date.of this . • letter of understanding by the parties.hereto (the Guidelines), be amended to establish • . an "Art Basel Zone" which, if such recommended amendment is approved by the Mayor . and City Commission, in their sole and reasonable discretion, shall accomplish the • following: V ' •.'. . V • • a.) The establishment of a zone, the effective term and duration of which is only . • intended to run concurrent with the actual ABMB Event dates for years 2011, 2012, 2013, and.2014, as same are set forth in. the MCH License, and which zone is . intended to be bounded by 23rd Street to the north; by Lincoln Lane South to the • south; by Alton road to the west;.and by the Atlantic Ocean to the.east (hereinafter • . the Art Basel Zone). V V b.) The Art Basel Zone, if approved, shall be established for the purpose of precluding .the City from issuing a-special event permit, for the use of public property within the • Art Basel Zone during the term/duration that such Zone is in effect, without first , Page 788 of 1588 I i • obtaining the prior written consent of MCH. Accordingly, the City shall provide MCH with at least thirty (30) calendar days prior written notice of any special event - applications received by the City for the use of public property within.the Zone during the ABMB Event date(s) (the City's Approval Request). MCH shall have ten (10) ' • calendar days from the date of the City's Approval Request to approve or deny the Request. MCH's approval or denial of the Request.must be in .writing and, if a denial, must.specifically set forth the reason(s) therefore. In the event that MCH fails ' to approve or deny a Request within the ten (10) day time period and, further, in • - accordance with the procedures set forth herein, then MCH shall have waived its right to deny such Request, and the City may proceed with the event (that was the . . = ' subject of such' Request) as if approved by MCH, and without any further notice . • and/or other obligation to MCH. c.) Notwithstanding the establishment of the Art Basel Zone, and/or any other term or . condition in this letter of understanding, .(i) special events held on private property, . .. • • and. (ii) demonstrations, pickets, and free speech activities, as such terms are . • defined in the Guidelines,.and as same may be amended.from time to time, shall be EXEMPT from the requirements of this letter of understanding and, accordingly, shall • NOT require MCH's approval. • . 2. The City shall use reasonable commercial efforts to inform MCH of any special event applications for use of public City-owned property outside the Art Basel. Zone that the • City may receive for the installation and/or display of art and/or art works during the term/duration of, the ABMB Event for, respectively years 2011, 2012, 2013, and/or 2014. . . . • ' • • 3. The City shall take into consideration the needs and requirements of the ABMB Event as plans for the City's proposed expansion and renovation of the MBCC are developed. . • . ' 'In the event that any claim or controversy arises 'with respect to this letter of understanding, • MCH and the City hereby knowingly and voluntarily waive their rights to assert any argument or • defense alleging inadequate or insufficient consideration. . The City and MCH 'shall each appoint a contract administrator who.shall monitor the parties' • . '. compliance with the terms.of this letter of understanding. Unless otherwise notified, the'contract • administrators for each party are as follows: • • For the City: . • - Max Sklar, Tourism and Cultural Development Director . • . Tourism and Cultural Development Department • • • City of Miami Beach ' 1700 Convention Center Drive . Miami Beach, Florida 33139 • • 305-673-7577 . • . For MCH: . - - • . . Show Manager . • - MCH Swiss Exhibition Basel (Ltd) . Messeplatz 10 • . • • . 4005 Basel, Switzerland • • Page 78W-of 1588 . • • MCH agrees to defend, indemnify and hold harmless ,the City, and its officials, directors, officers, employees, agents, contractors, servants, successors, and assigns, against any claims, causes of actions, costs, expenses, (including reasonable attorney's fees), liabilities, or damages arising out of or in connection with any negligent act or omission, or intentional misconduct on the part of MCH or any of its officials, directors, officers, employees, agents, contractors,,servants, successors and assigns, in the performance of its obligations under this • letter of understanding. The indemnification and hold harmless requirements in the preceding paragraph shall survive • the termination or expiration of this letter of understanding. This letter of understanding may be terminated by either party, for convenience (and without cause),`upon sixty (60) days prior written notice to the other party. All written notices and communications required or permitted hereunder may be delivered personally to the respective representatives of MCH and the City listed below or may be mailed by registered mail, postage prepaid (or air-mailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO MCH: Show Manager MCH Swiss Exhibition Basel (Ltd) Messeplatz 10 4005 Basel, Switzerland • • TO CITY: City of Miami Beach 1700 Convention Center Drive . Miami Beach, Florida 33139 • • Attn: Max Sklar, Cultural Arts &Tourism Dev. Director (305) 673-7000, Ext. 6116 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. • This letter of understanding shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this letter of understanding shall be • Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS LETTER OF UNDERSTANDINBG, CITY AND MCH EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS LETTER OF UNDERSTANDING. Neither party may assign this letter of understanding. Neither this letter of understanding, nor any of its terms, may be changed, modified, or otherwise amended except by an instrument in writing, signed by an authorized representative, Page 7903of 1588 • 1 which shall be the City Manager (on behalf of the City), and the Show Manager and one Co- Director(on behalf of MCH). The City and MCH acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to this letter of understanding. Nothing contained herein shall be construed as creating a partnership, joint venture or similar relationship between the City and MCH. Additionally, for purposes of this letter of understanding (or otherwise) no officer, director, _ employee, agent, or contractor of MCH shall be deemed to be an agent or employee of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinance of the • City, or any right generally afforded Classified or Unclassified employees' or be deemed entitled to Florida Worker's Compensation benefits as an employee of the City, or accumulation of sick or annual leave. If the aforestated meets with your approval, please acknowledge and execute same in the space provided below. Upon execution by the City Manager (on behalf of the City), we will forward a fully executed copy to you for your records. • Very truly yours, • Raul J. Aguila • Chief Deputy City Attorney I have read this letter agreement and fully understanding same, agree to be bound by the terms and conditions contained herein. MCH Swiss Exhibition (Basel) Ltd City of Miami Beach By: C By: • • io 494.. City 'anager i/ . 23 2O/Z In'-to Date I • By: itz444-e-A----fi t'CG� • APPROVED AS TO Apt 1 ,2.?, O/Z FORM&LANGUAGE Date &FOR CUTION RJA/ed 4 - L4'‘ L City m=`►� Date O • F:\INFO\SALL1Max\TCD\Special Events\BASEL\Basel Letter Agreement_sept 2011.doc • Page 7914of 1588 bola-a7r86l MIAMIBEACH City of Miami Reach,1700 Convention Center Drive,Miami Beath.Florida 33139.www.miamibeach0.gov OFFICE OF THE CITY MANAGER Tel:305.673.7010.Fax:305.673.7782 May 12,2015 Mr. Marc Spiegler,Director Art Basel US Corp. c/a Garber and Goodman 300 41°Street,Suite 214 Miami Beach, Florida 33140 Attention: Bob Goodman Email:baoodmant garberandaoodman.com CC: MCH Swiss Exhibition(Basel)LTD Art Basel,Art Basel Miami Beach Messeplatz 10 CH—4005 Basel, Switzerland RE: Letter of Understanding (LOU) between the City of Miami Beach, Florida (City), and Art Basel US Corp(ABUSCo)regarding the"Art Basel in Miami Beach"event held on Miami Beach(the ABMB Event). Dear Mr. Spiegler: The following LOU shall confirm the understanding between the City and ABUSCo regarding certain terms pertaining to the ABMB Event pursuant to Resolution No. 2012-27884 which established an"Art Basel Zone,"and a copy of which is attached hereto as Appendix A. Subject to ABUSCo's compliance with its contractual obligations pertaining to the holding of the annual ABMB Event at the Miami Beach Convention Center (MBCC), including, without limitation, those set forth in that certain License Agreement between Global Spectrum and ABUSCo., dated January 26,2015,and as may be amended or subsequent License Agreement executed from time to time(hereinafter, the ABUSCo License); and provided ABUSCo is good standing and free of default(s)under such License,the City agrees to take the following actions, in further support of the annual ABMB Event: 1. Pursuant to Resolution No. 2012-27884, the City's Special Events Requirements and Guidelines establish an"Art Basel Zone"which,accomplishes the following: a.) The establishment of a zone, the effective term and duration of which is only ;intended to run concurrent with the actual ABMB Event dates, as set forth in the ABUSCo License, and which zone is bounded by 23r4 Street to the north; by Lincoln Lane South to the south; by Alton road to the west; and by the Atlantic Ocean to the east(hereinafter the Art Basel Zone). Page 792 of 1588 b.) The Art Basel Zone is established for the purpose of precluding the City from issuing a special event permit,for the use of public property within the Art Basel Zone during - the term/duration that such Zone is in effect,without first obtaining the prior written • consent of ABUSCo.Accordingly,the City shall provide ABUSCo with at least thirty (30)calendar days prior written notice of any special event applications received by the City.for the use of public property within the Zone during the ABMB Event date(s) (the City's Approval,Request). ABUSCo shall have ten (10)calendar days from the date of the Citys Approval Request to approve or deny the Request ABUSCo's approval or denial of the Request must be in writing and,if a denial,must specifically set forth the reason(s)therefore.an the event that ABUSCo fails to approve or deny a Request within the ten (10)day time period and, further, in accordance with the procedures set forth herein,then ABUSCo shall have waived its right to deny such Request, and the City may proceed with the event (that was the subject of such Request) as if approved by ABUSCo, and without any further notice and/or other obligation to ABUSCo. c.) Notwithstanding the establishment of the.Art Basel Zone, and/or any other term or condition in this letter of understanding, (i)special events held on private property, and (ii) demonstrations, pickets, and free speech activities, as such terms are defined in the Guidelines,and as same may be amended from time to time, shall be EXEMPT from the requirements of this letter of understanding and,accordingly,shall, NOT require ABUSCo's approval. d.) The Art Basel Zone shall automatically sunset and terminate at the conclusion of the ABMB Event for calendar year 2015,without further action required by the parties, unless a new or amended ABUSCo License Agreement is executed for ABMB Event for following calendar year.,For the sake of clarity and avoidance of doubt this LOU and the Art Basel Zone shall automatically be extended and remain in force for each successive calendar year ABMB Event; provided an ABUSCo License_Agreement has been executed In relation to such respective calendar year: 2.. The City shall use reasonable commercial efforts to inform ABUSCo of any special event applications for use of public City-owned property Outside the Art Basel Zone that the City may receive for the installation and/or display of art and/or art works during the termlduration of,the ABMB Event. 3. The City shall use .reasonable commercial efforts 'to consider the needs and' requirements of the ABMB Event as plans for the City's proposed expansion and renovation of the MBCC are developed. • In the event that any claim or controversy arises with respect to this LOU,ABUSCo and the City hereby knowingly and voluntarily waive their rights to assert any argument or defense alleging inadequate or insufficient.consideration. The City and ABUSCo shall each appoint a contract administrator who shall monitor the parties' compliance with the terms of this LOU. Unless otherwise notified, the contract administrators foreach party are as follows: For the City: Max Sklar,Tourism and Cultural Development Director Tourism and Cultural Development Department City of Miami Beach 2 Page 793 of 1588 1700 Convention Center Drive Miami Beach,Florida 33139 305-673-7577 For ABUSCo: Art Basel US Corp. d o MCH Swiss Exhibition(Basel)Ltd. Attention:Maureen Bruckrnayr 4005 Basel,.Switzerland . • ` +41 58 206 31 32 Facsimile +41 58 206 27 51 Telephone Maureen.Bruckmayr@artbasei.com ABUSCo agrees to defend, indemnify and hold harmless the City, and its officials, directors, officers,employees,agents,contractors,servants,successors,and assigns,against any claims, causes of actions, costs, expenses, (including reasonable attorneys fees), liabilities, or damages arising out of or In connection with any negligent act or omission, or intentional misconduct on the part of ABUSCo or any of its officials,directors, officers,employees, agents, contractors, servants, successors and assigns, in the performance of its obligations under this LOU. The indemnification and hold harmless requirements in the preceding paragraph shall survive the termination or expiration of this LOU. - This letter of understanding may be terminated by either party, for convenience (and without cause),upon sixty(60)days prior written notice to the other party. All written notices and communications required or permitted hereunder may be delivered personally to the respective representatives of ABUSCo and the City listed below or may be mailed by registered mail, postage prepaid (or air-mailed if addressed to an address outside of the city of dispatch). Until changed,by notice in writing, all such notices and communications shall be addressed as follows: TO ABUSCo: Art Basel US Corp. c!o MCH Swiss Exhibition(Basel)Ltd 4005 Basel, Switzerland +41 58 206 31 32 Facsimile +41 58.206 27 51 Telephone Maureen.Bruckmavr@artbasel.com Attention:Maureen Bruckmayr With copy to: Art Basel US Corp. do Garber and Goodman 300 41 a Street,Suite,214 Miami Beach, Florida 33140 Attention:Bob Goodman Email:bgoodman@garberandgoodman.com 3 Page 794 of 1588 TO CITY: City of Miami Beach 1700 Convention Center Drive Miami Beach,Florida 33139 Attn: Max Sklar, Tourism, Culture, and Economic Development Director (305)673-7000, Ext.6116 Email:maxsklar@miamibeachfl.gov Notices hereunder shall be effective: If delivered personally,on delivery; if mailed to an address in the city of dispatch,on the day following the date mailed;and if mailed to an address outside the city of dispatch on the seventh day following.the date mailed. This letter of understanding shall be governed by, and construed in accordance with,the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this letter of understanding shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS LETTER OF UNDERSTANDING, CITY AND ABUSCO EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL . BY JURY OF ANY CIVIL LITIGATION RELATED TO,OR ARISING OUT OF,THIS LETTER OF UNDERSTANDING. Neither party may assign this letter of understanding. Neither this letter of understanding, nor any of its terms, may be changed, modified, or otherwise amended except by an instrument in writing, signed by an authorized representative, which shall be the City Manager (on behalf of the City), and Show Manager and Director(on behalf of ABUSCo). The City and ABUSCo acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to this letter of understanding. Nothing contained herein shall be construed as creating a partnership, joint venture or similar relationship between the City and ABUSCo. Additionally, for purposes of this letter of understanding (or otherwise) no officer, director, employee, agent, or contractor of ABUSCo shall be deemed to be an agent or employee of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any 'right generally afforded Classified or Unclassified employees' or be deemed entitled to Florida Worker's Compensation benefits as an employee of the City, or accumulation of sick or annual leave. If the aforestated meets with your approval, please acknowledge and execute same in the space provided below. Upon execution by the City Manager (on behalf of the City), we will forward'a fully executed copy to you for your records. Very truly yours, a. Raul J.Aguila i" City Attorney 4 Page 795 of 1588 I have read this letter agreement and fully understanding same,agree to be bound by the terms and conditions contained herein. Art Basel US Corp. City of Miami Beach 1 .44ello arc Spiegl J "my L .o ales Director,Art Basel • Man-ger .,,P 4 ZG t. ( uy e Z O D/c Date / Date By:. la4441114-' WarCA/lar.een Bru ayr General Manager TIlitit I?) a 015 APPROVED AS TO E Date FORM&- &FOR D(ECUTION RJA/ed 04.01S'.�� ( Lb15 waling OW F:UNF015ALL1Max1TCD1Speclal EventsIBASEL1Art Basel Letter Agreement 2015.doc 5 Page 796'of 1588