Amendment No.1 to Long-Term License AgreementZoZ--32"7CA(
AMENDMENT NO. 1 TO LONG-TERM LICENSE AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH AND DESIGN MIAMI II, LLC
THIS AMENDMENT NO. 1 TO LONG-TERM LICENSE AGREEMENT (this
"Amendment") is executed as of June 30, 2023 by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation (the "City" or "Licensor") and DESIGN MIAMI II, LLC, a Florida
limited liability company (the "Licensee"). The City and Licensee are sometimes herein referred
to as the "Parties" and each, a "Party."
RECITALS:
WHEREAS, the City and the Licensee entered into that certain Long -Term License
Agreement Development and Ground Lease Agreement with an Effective Date of October 26,
2017, (the "License Agreement") regarding the use by Licensee of a portion of the park now
known as Pride Park (the "Park"), located west of Convention Center Drive between 18th and
19th Street, as more fully described in Exhibit A to the License Agreement (the "Premises") to
hold its Design Miami Annual Show; and
WHEREAS, the term of the License Agreement is set to expire following the 2023 Annual
Show; and
WHEREAS, Licensee properly exercised its Right of First Refusal and Renewal to renew
the term for an additional five.years commencing in 2024 and ending following the 2028 Annual
Show; and
WHEREAS, the City and Lessee desire to amend the License Agreement to reflect certain
modifications negotiated by the Parties and approved by the Mayor and City Commission of the
City of Miami Beach on September 13, 2023 pursuant to Resolution 2023-32741.
NOW, THEREFORE, in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the
City and Licensee agree as follows:
Recitals; Effective Date.
The foregoing Recitals are true and correct and are incorporated herein by
reference. The paragraph headings of this Amendment are for convenience and reference only
and none of such headings shall limit or amplify the meaning, application or construction of any
of the provisions of this Amendment. Capitalized terms not defined herein shall have the
meanings assigned such terms in the License Agreement, as the context requires. The provisions
of this Amendment shall become Effective only upon the commencement of the Renewal Term
(as defined below).
2. Renewal Term; License Period.
a. The Term of the License Agreement is hereby extended for a five-year renewal
term (the "Renewal Term") which shall commence immediately following the conclusion of the
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2023 Annual Show and shall expire following the 2028 Annual Show. All references in the License
Agreement to the Term shall be deemed to include the Renewal Term.
b. Section 2.b of the License Agreement is hereby amended by inserting the following
at the end of the first paragraph:
"Notwithstanding the foregoing, during the Renewal Term, the License Period shall extend
for a maximum period of fifty (50) consecutive days (including load -in, event days and
load -out), and shall take place each year on or about the same dates (on or about October
30 through December 18 of each year), subject to adjustment of calendar dates on mutual
agreement of the City and Licensee. The Annual Show will take place on the last week in
November and/or the first week in December, based on the applicable calendar year, to
coincide with the annual Art Basel Miami Beach and Miami Beach Art Week event
schedule."
C. Subparagraph 2.b.i of the License Agreement is hereby amended by substituting
the date range "Oct. 28 to Dec. 21 with "October 30 to December 18" such change to become
effective for the 2024 Annual Show and subsequent Annual Shows during the Renewal Term.
d. Section 2 of the License Agreement is hereby amended by inserting the following
as new Section 2.j:
j. The City shall have the right to temporarily suspend or modify mobilization
and/or load -in and/or load -out of the Annual Show, with twenty-four (24) hours' written
notice to Licensee, if necessary, due to construction activity at the Miami Beach
Convention Center Hotel that impacts the use of Convention Center Drive and/or
surrounding thoroughfares (including 18th and 19th Streets), or due to inclement weather
conditions, in each case as determined by the Building Official and/or City Manager or
designee in his or her sole discretion."
e. Section 2 of the License Agreement is hereby amended by inserting the following
as new Section 2.k:
"k. The term of the license agreement between Art Basel U.S. Corp. currently
expires following the 2028 Art Basel Miami Beach Event. Based on the existing synergy between
the Art Basel Event and the Annual Show, if Art Basel U.S. Corp. renews its license agreement
to host the Art Basel Miami Beach Event at the Miami Beach Convention Center for additional
years beyond 2028, the City shall negotiate in good faith with Licensee to extend the term for an
additional renewal term not to exceed five (5) years on such terms as the Parties shall agree."
3. License Fee for 2024-2028 Annual Show; Per -Diem Fee; Holdover Fee.
a. The first paragraph of Section 4 of the License Agreement is amended by inserting
the following fee provision to apply for the for the 2024 Annual Show and subsequent Annual
Shows during the Renewal Term:
"The License Fee for the 2024 Annual Show shall be calculated by multiplying the License
Fee for the 2023 Annual show by fifty fifty-fourths (50/54ths) and then adjusting by the
greater of (x) three percent (3%) or (y) inflation measured by utilizing the United States
Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers; Miami -Fort -
Lauderdale (on an October 1 to September 30 fiscal year basis) subject to a cap of six
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percent (6%). The License Fee for each year thereafter shall be calculated by reference
to the License Fee for the immediately preceding annual show, subject to annual
adjustment by the greater of (x) three percent (3%) or (y) inflation measured by utilizing
the United States Bureau of Labor Statistics, Consumer Price Index for All Urban
Consumers; Miami -Fort -Lauderdale (on an October 1 to September 30 fiscal year basis)
subject to a cap of six percent (6%)."
For the avoidance of doubt, the License Fee for the 2023 Annual Show shall be calculated in
accordance with the formula in the Existing License.
b. Section 4 of the License Agreement is hereby amended by inserting the following
as new Subsection 4.iv:
" iv. If the License Period is extended by mutual agreement of the Parties, the
License Fee for the applicable Annual Show shall be increased by the amount determined by
multiplying (x) the per diem amount determined by dividing the applicable License Fee into fifty
(50) (the "Per Diem Rate") times (y) the number of additional days agreed to by the Parties."
C. Section 4 of the License Agreement is hereby amended by inserting the following
as new Subsection 4.v:
" V. If the Licensee holds over or refuses to surrender possession of the
Premises without the City's prior written consent at the expiration of the License Period, the City
shall have the right, in addition to all other rights and remedies available to it, to charge Licensee
a holdover fee equal to the amount determined by multiplying (x) 200% of the Per Diem Rate
times (y) the number of days in the holdover period."
4. Security Deposit and Utilities Security Deposit.
Section 6 of the License Agreement is hereby struck in its entirety and replaced by the
following:
6'6. Security Deposit; Utilities Security Deposit. Licensee shall pay to the Licensor, no
later than sixty (60) days prior to the first Move -In date of each Annual Show, the sum of
$40,000.00 (the "Security Deposit"), 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 Licensor 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 License, the Licensor may (but shall not be required to) use, apply or retain
all or any part of the Security Deposit for the payment of the License Fee or other sum in default,
or for the payment of any amount which Licensor may spend or become obligated to spend by
reason of Licensee's default, or to compensate Licensor for any other loss or damage which
Licensor may suffer by reason of Licensee's default. If any portion of said Security Deposit is so
used or applied before Licensee has vacated the Premises, Licensee shall, within five (5)
business days after written demand therefor, deposit cash with Licensor in an amount sufficient
to restore the Security Deposit to $40,000, and Licensee's failure to do so shall be an event of
default under this Lease. Licensor shall not be required to keep the Security Deposit separate
from its general funds, and Licensee shall not be entitled to interest on such Security Deposit. If
Licensee shall fully comply with and faithfully perform all of the terms, conditions, and covenants
of this Lease, the Security Deposit shall be credited toward the License Fee or any other
amounts due to the Licensor under this License. In addition, Licensee shall pay to Licensor the
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sum of $32,000.00 as a security deposit to cover the utility charges that may accrue during the
term of the usage of the premises (the "Utilities Security Deposit"). The Utilities Security Deposit
shall be paid in two, equal installments of $16,000 with the first installment to be paid by or before
the date that is thirty (30) days prior to the first load -in date of each Annual Show and the second
installment to be paid by or before December 15 of the applicable Annual Show year. For the
avoidance of doubt, neither the Security Deposit nor the Utilities Security Deposit shall be
deemed to constitute a limit on Licensee's liability to Licensor hereunder."
5. Food and Beverage/Concessions. Section 7 of the License Agreement is
hereby struck in its entirety and replaced by the following:
"7. Food and Beverage/Concessions. Unless expressly waived in writing by the City, with
respect to the sale of food and beverage at the Premises, the Licensee shall comply with any
exclusive product or sponsorship relationship applicable to the Premises including, but not limited
to, the City's sponsorship agreements with PepsiCo and Red Bull, with respect to product
exclusivity at the Premises or any other exclusive food and/or beverage product sponsorship or
similar relations that the City may enter prior to the expiration of the Term, provided, Licensee
shall not be bound to honor any such exclusive product or sponsor relationship of the City which
conflicts with Licensee's existing business relationships or Licensee's business relationships
arising hereafter but prior to City's notice to Licensee that City is bound by such exclusive product
or sponsor relationship. Subject to the foregoing, Licensee shall have the exclusive right to
provide food, beverage and catering services at the Premises, unless otherwise agreed to by the
parties for any given year."
6. Due Care in Use of Premises. Subparagraph iii in Section 9 of the License
Agreement is hereby struck in its entirety and replaced with the following:
" iii. In its use of the Premises, in no event shall Licensee cover or remove any
element of the Veteran's Plaza or any of the City's Art in Public Places works installed or
displayed at or in the vicinity of the Premises or the Park ("AIPP"). Licensee shall be responsible
to protect and not cause any damage to Veteran's Plaza or any AiPP works and to ensure proper
care is observed by Licensee's employees, contractors, participating galleries and their
employees and contractors, other invitees and guests, in collaboration with the Miami Beach
Convention Center Staff and City. Proper care includes, but is not limited to, securing the
perimeter surrounding the AiPP works of art and the Veteran's Plaza before load -in and load -
out. The Licensee is responsible for covering all costs associated with the repair of the Veteran's
Plaza and/or AiPP works of art resulting from damages occurring during the License Period,
including load -in or load -out."
7. Annual Meetinq with Palm View Residents. Section 17 of the License Agreement
is hereby struck in its entirety and replaced by the following:
"17. Annual Meeting with Palm View Residents. On or before September 1 of each
calendar year during the Term, Licensee, along with City staff, shall meet with representatives
of the Palm View Neighborhood Association to discuss any concerns the Palm View residents
may have concerning the Annual Show."
8. Benefits. Section 26 of the License Agreement is hereby struck in its entirety and
replaced by the following:
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"26. "Sponsorship Benefit and Public Benefit. The City of Miami Beach shall be
recognized as a Show Partner level sponsor of each Annual Show, and shall receive sponsorship
recognition comparable to other Brand Partners and Show Partners, which, at a minimum,
includes logo recognition in the annual Design Miami catalogue(s), and event website (with a
link to City's website). Licensee shall provide the City with a minimum of twenty (20)
complimentary VIP passes for each Annual Show, and at least twenty-five (25) additional
complimentary day passes for each Annual Show. Further, for each Annual Show, Licensee
shall provide Miami Beach residents with the opportunity, at least fifteen (15) days in advance of
each Annual Show, to purchase individual passes or tickets to the Annual Show at a discount of
at least fifty percent (50%) off regularly advertised ticket prices. The City shall provide Licensee
with various media channels/formats to promote the offer including but not limited to the City's
social media channels and newsletter(s). In addition to the foregoing, during each year of the
Term, the Licensee shall provide the additional public benefits specified below:
• Licensee shall host a one -day presentation at Miami Beach Senior High School on
architecture and design, or similar relevant topics germane to educating students on
Design Miami/ Art Show operations.
• Licensee shall make available to one (1) VIP pass for each resident of the Palm View
Historic District (each VIP pass allows for complimentary access to the Annual Show for
two (2) people).
• Palm View Historic District residents will be offered the ability to request Annual Show
tours with the Licensee Exhibitions team.
• Upon request, up to five (5) seats shall be reserved for residents of the Palm View
Historic District at Annual Show talks.
• Licensee shall offer residents of the Palm View Historic District, a tour of the Craig
Robins Collection in the Miami Design District, during pre -Annual Show periods.
• Licensee will offer, residents of the Palm View Historic District, an architectural tour of
the Miami Design District, during pre -Annual Show periods."
9. Inspector General Audit Rights. The following is inserted as new Section 38 of
the License Agreement:
"38. Inspector General Audit Rights.
a. Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform reviews,
audits, inspections and investigations on all City contracts, throughout the duration of said
contracts. This random audit is separate and distinct from any other audit performed by or on
behalf of the City.
b. The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records, contracts
and transactions. In addition, the Inspector General has the power to subpoena witnesses,
administer oaths, require the production of witnesses and monitor City projects and programs.
Monitoring of an existing City project or program may include a report concerning whether the
project is on time, within budget and in conformance with the contract documents and applicable
law. The Inspector General shall have the power to audit, investigate, monitor, oversee, inspect
and review operations, activities, performance and procurement process including but not limited
to project design, bid specifications, (bid/proposal) submittals, activities of the Contractor, its
officers, agents and employees, lobbyists, City staff and elected officials to ensure compliance
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with the Contract Documents and to detect fraud and corruption. Pursuant to Section 2-378 of
the City Code, the City is allocating a percentage of its overall annual contract expenditures to
fund the activities and operations of the Office of Inspector General.
C. Upon ten (10) days written notice to the Licensee, the Licensee shall make all
requested records and documents available to the Inspector General for inspection and copying.
The Inspector General is empowered to retain the services of independent private sector auditors
to audit, investigate, monitor, oversee, inspect and review operations activities, performance and
procurement process including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Licensee, its officers, agents and employees, lobbyists, City staff and
elected officials to ensure compliance with the contract documents and to detect fraud and
corruption.
d. The Inspector General shall have the right to inspect and copy all documents and
records in the Licensee's possession, custody or control which in the Inspector General's sole
judgment, pertain to performance of the contract, including, but not limited to original estimate
files, change order estimate files, worksheets, proposals and agreements from and with
successful subcontractors and suppliers, all project -related correspondence, memoranda,
instructions, financial documents, construction documents, (bid/proposal) and contract
documents, back -change documents, all documents and records which involve cash, trade or
volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel
records and supporting documentation for the aforesaid documents and records.
e. The Licensee shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance of this
contract, for examination, audit, or reproduction, until three (3) years after final payment under
this contract or for any longer period required by statute or by other clauses of this contract. In
addition:
i. If this contract is completely or partially terminated, the Contractor shall make available
records relating to the work terminated until three (3) years after any resulting final
termination settlement; and
ii. The Contractor shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this contract until such appeals,
litigation, or claims are finally resolved.
C. The provisions in this section shall apply to the Licensee, its officers, agents,
employees, subcontractors and suppliers. The Licensee shall incorporate the provisions in this
section in all subcontracts and all other agreements executed by the Licensee in connection with
the performance of this contract.
d. Nothing in this section shall impair any independent right to the City to conduct
audits or investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Licensee or third parties.
10. Successors. The terms, covenants, conditions and provisions contained in this
Amendment shall be binding upon and inure to the benefit of the City and Licensee, and their
respective heirs, representatives, successors and permitted assigns.
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11. Counterparts. This Amendment 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. Upon request by any party receiving an executed
counterpart by facsimile or PDF (by e-mail) to also receive an ink -signed original, the other party
shall provide original ink -signed signature pages as soon as practicable, but failure to do so shall
not affect the validity, enforceability, or binding effect of this Amendment.
12. Construction. This Amendment has been fully reviewed and negotiated by the
Parties and their respective counsel. Accordingly, this Amendment shall not be construed more
strictly against a Party by reason of its preparation by such Party's counsel.
13. Entire Amendment. This Amendment sets forth the entire agreement of the
parties with respect to the subject matter hereof. All prior or contemporaneous understandings
and discussions, whether written or verbal, regarding the subject matter hereof are entirely
superseded by this Amendment. Except as amended by the express provisions of this
Amendment, the terms and conditions of the License Agreement are hereby ratified and
confirmed by the Parties and shall remain in full force and effect. If there is any conflict between
the terms and conditions of the License Agreement and those set forth in this Amendment, the
terms and conditions in this Amendment shall govern.
(Signature pages to follow)
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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:
Ct 2�2�
Rap4el E. ranado, City Clerk
WITNESS:
By:
Print Name
WITNESS:
By:
Print Name
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LICE CI Y OF MI BEACH
Dan Gelber, Mayor
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
•���—� 9/1512023
City Attomey Date
LICENSEE/DESIGN MIAMI
DESIGN MIAMI II, LLC,
by Design Miami Inc., its managing partner
Jennifer Roberts
CEO
TOURISM AND CULTURE DEPARTMENT
DATE:
9/18/23
TO:
Mayor Dan Gelber
FROM:
Lissette Garcia Arro ante, Director Tourism and Cultur
PHONE:
786.618.4928
SUBJECT:
Amendment #1 to Long -Term License Agreement
between The City of Miami Beach and Design Miami
II, LLC
For:
Information Only
Review
Q
Signet re (Mayor Dan Gelber)
Other
Comments:
Attached hereto is Amendment #1 to Long -Term License Agreement
between The City of Miami Beach and Design Miami II, LLC. This
agreement has alreadybeen through the City Commission
noted in the Resolution Number below.
RESO No. 2023-32741
Commission Date: 911312023
The attached document has been form approved b. the
Department and now need to be signed by the Mayor and attested by
the Clerk.
Return to:
Vourism and Culture c/o Lisselte Garcia Arrogante
786.618.4928