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2007-26705 ResoRESOLUTION NO. 2007-26705 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A VIDEO AND AUDIO SYSTEM AGREEMENT WITH NEW WORLD SYMPHONY, INC., A FLORIDA NOT FOR PROFIT CORPORATION, (NWS); SAID AGREEMENT PERTAINING TO THE MANAGEMENT, OPERATION, SCHEDULING, AND CONTENT OF PROGRAMMING OF THAT CERTAIN VIDEO SYSTEM (FORMERLY REFERRED TO AS THE "SCREEN" IN THE NWS DEVELOPMENT AND LEASE AGREEMENTS) INTENDED TO BE BUILT AND INTEGRATED ON TO THE EXTERIOR OF THE PROPOSED NWS FACILITY (THE BUILDING), AND THE NWS AND CITY AUDIO SYSTEMS, TO BE INSTALLED, RESPECTIVELY, WITHIN THE NWS'S IMPROVEMENTS, AND WITHIN THE PARK PROJECT AND THE GARAGE. WHEREAS, on January 5, 2004, the City and NWS executed a Lease Agreement and a Development Agreement (the Agreements) for a portion of the surface parking lot bounded by Drexel Avenue to the east; North Lincoln Lane to the south; 17th Street to the north; and Pennsylvania Avenue to the west, regarding the Project formerly referred to as "Soundspace" and now referred to as the "New World Symphony Campus Expansion Project," which provides for the design, development and construction of a not to exceed 50,000 square foot educational performance and Internet broadcast facility; a public parking garage (the Garage); and certain other public streetscape improvements, including a park (the Park); and WHEREAS, pursuant to the Agreements, the Developer's improvements are to include a large outdoor audio and visual presentation system on the exterior of the facility (the NWS Video and Audio System); and WHEREAS, early concept drawings envisioned a physical projection screen attached to the east side of the Building; however, as the final plans evolved, it was determined that the most effective system would be to use the east facade of the Building as the projection surface, or "Video Wall", which will be visible from Washington Avenue, Lincoln Road, and 17th Street; and WHEREAS, additionally, plans call for the Park and Garage to have an audio system to be owned by the City (the City Audio System), which may be used in conjunction with or independent of the NWS Video and Audio System; and WHEREAS, Section 6.2 of the Lease Agreement requires NWS to collaborate with the City and other arts organizations with respect to their access and use of the NWS Video and Audio System; and WHEREAS, the Agreements further provide that, prior to issuance of the building permit forthe NWS Campus Expansion Project, the City and NWS shall negotiate a use agreement for the management and operation, including, without limitation, the scheduling and content of programming, for the Video and Audio System; and WHEREAS, City staff has been working with NWS to develop the terms for said use agreement (hereinafter referred to as the Video and Audio System Agreement and/or the Agreement); and WHEREAS, since the projection equipment will likely be located in the Park, and since the design and construction of the Park will not occur concurrent with the construction of NWS's Project, the parties acknowledge that many issues involving the operation of the Video and Audio System cannot be addressed with finality and certainty at this time; and WHEREAS, the parties intend for the Agreement to be a flexible document that shall have to be amended from time to time, in order to accommodate any future changes in circumstances at the time NWS's Project and the Park are completed, and the Video and Audio System is physically in place; and WHEREAS, at the October 17, 2007 City Commission Meeting, the Administration presented an item containing draft terms and conditions for the management, operation, scheduling and programming of the video and audio systems, and requested authorization for the Administration to continue negotiating terms with NWS pertaining to the Video and Audio System Agreement; and WHEREAS, pursuant to the recommendation of the City Manager, the City Commission determined to schedule a special meeting specifically to address the aforestated Agreement, as well as certain other concerns regarding the NWS Project in general (including construction staging and the impact to parking on the area's businesses; solving NWS' parking requirement issue caused by the delay of the 420 Lincoln Road Project; and the design process and future management of the Park); and WHEREAS, the City Commission also appointed Commissioner Richard Steinberg as the City's liaison to participate in the negotiations toward finalizing the Agreement; and WHEREAS, subsequent to further meetings with NWS, the parties have agreed to certain key terms and conditions pertaining to the management, operation, scheduling and content of programming of the video and audio systems, and the City Administration would hereby recommend that the Mayor and City Commission approve and authorize the Mayor and City Clerk to execute the attached Video and Audio System Agreement. 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 approve and authorize the Mayor and City Clerk to execute a Video and Audio System Agreement with New World Symphony, In., a Florida Not for Profit Corporation (NWS); said Agreement pertaining to the management, operation, scheduling, and content of programming of that certain video system (formerly referred to as the "Screen" in the NWS Development and Lease Agreements) intended to be built and integrated on to the exterior of the proposed NWS facility (the Building), and the NWS and City Audio Systems, to be installed, respectively, within the NWS's improvements, and within the Park Project and the Garage. PASSED and ADOPTED this 21St d~ A ST: ROBERT PARCHER, CITY CLERK T:WGENDA\2007\nov0707\Regular\NWS Screen Use Agreement Reso.doc APPRO~JED A81'O FORM ~ LANGUAGE COMMISSION ITEM SUMMARY Condensed Title: A Resolution of the Mayor and City Commission authorizing the Mayor and City Clerk to execute a Video and Audio System Agreement with the New World Symphony (NWS or Developer), said Agreement pertaining to the management, operation, scheduling and content of programming of that certain Video System (formerly referred to as the "Screen" in the NWS Development and Lease Agreements), intended to be built and integrated onto the exterior of the proposed NWS facility (the Building), and the NWS and City Audio Systems, to be installed respectively, within the NWS (Developer's) improvements and within the Park Project and the Garage. Key Intended Outcome Supported: Increase community ratings of cultural activities. .Supporting Data (Surveys, Environmental Scan, etc.): According to the 2007 survey, having more cultural activities is ranked by residents as one of the changes that will make Miami Beach a better place to live, work, play and visit. Issue: Should the City authorize the execution of a Video and Audio System Agreement between the City and NWS? Item Summary/Recommendation: Pursuant to the Development and Lease Agreement, between the City and NWS, dated January 5, 2004, (Agreement), the NWS's improvements are to include a large outdoor audio and visual presentation system on the exterior of the facility (Video and Audio System). Plans also call for the Park and Garage to have an audio system (City Audio System) in place to be owned by the City, which may be used in conjunction with or independent of the NWS's Video and Audio System. Section 6.2 of the Lease Agreement requires NWS to collaborate with the City and other arts organizations with respect to their access and use of the Video and Audio System in accordance with the Soundspace Impact Statement section of the Agreement. The Agreement further provides that prior to issuance of the building permit, the Parties shall negotiate a use agreement for the management and operation, including, without limitation, the scheduling and content of programming, for the Video System. To this end and in light of NWS progress with the permitting process, City staff has been working with NWS to develop the terms for such use agreement. It should be noted that since the projection equipment will likely be located in the Park and since the design and construction of the Park will not occur concurrent with NWS's Project, that the Parties acknowledge that many issues involving the operation of the Video and Audio systems contemplated by the Agreement cannot be addressed with finality and certainty at this time. Consequently, the proposed terms which address the management, operation, scheduling and content of programming of the video and audio systems, are only general in nature and are intended to be refined and/or modified once the Video and Audio systems are in place and operational. In the meantime, the Administration recommends approving the Agreement in its current form and authorizing its execution, in order to allow NWS to proceed in obtaining its final building permit, pending satisfaction of any and all other outstanding requirements pursuant to the Development and Lease Agreements. Board Recommendation: Financial Information: Source of Amount Account Funds: ~ OBPI Total Financial Impact Summary: Kent Bonde Clerk's Office Legislative Tracking: Sign-Offs: ~velopment Coordinator ~~ P~stant City Manager / ~ _ n City~lAanager T:WG ~ MIAMIBEACH Agreement Summ1.doc AGENDA ITEM ~'"~ I DATE It-Z1-y7 m MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachFl.gov COMMISSION MEMORANDUM TO: Mayo avid erme nd Members of the City Commission FROM: ~rg M. Gonzalez, City Manager DATE: November 21, 2007 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A VIDEO AND AUDIO SYSTEM AGREEMENT WITH NEW WORLD SYMPHONY, INC., A FLORIDA NOT FOR PROFIT CORPORATION, ("NWS"); SAID AGREEMENT PERTAINING TO THE MANAGEMENT, OPERATION, SCHEDULING, AND CONTENT OF PROGRAMMING OF THAT CERTAIN VIDEO SYSTEM (FORMERLY REFERRED TO AS THE "SCREEN" IN THE NWS DEVELOPMENT AND LEASE AGREEMENTS) INTENDED TO BE BUILT AND INTEGRATED ON TO THE EXTERIOR OF THE PROPOSED NWS FACILITY (THE BUILDING), AND THE NWS AND CITY AUDIO SYSTEMS, TO BE INSTALLED, RESPECTIVELY, WITHIN THE NWS'S IMPROVEMENTS AND WITHIN THE PARK PROJECT AND THE GARAGE. ANALYSIS On January 5, 2004, the City and NWS -executed a Lease Agreement and a corresponding Development Agreement (the Agreement) for a portion of the surface parking lot bounded by Drexel Avenue to the east, North Lincoln Lane to the south, 17tH Street to the north and Pennsylvania Avenue to the west, to build its project (formerly referred to as "Soundspace" and now referred to as the "New World Symphony Campus Expansion Project"), which provides for the design, development and construction of a not to exceed 50,000 square foot educational performance and Internet broadcast facility, a public parking garage, and certain other public streetscape improvements, including a park. Pursuant to the Agreement, the Developer's improvements are to include a large outdoor audio and visual presentation system on the exterior of the facility (collectively, the NWS Video and Audio System). Early concept drawings envisioned a physical projection screen attached to the. east side of the Building. However, as the final plans evolved, it was determined that the most effective system would be to use the east facade of the building as the projection surface or "Video Wall", which will be visible from Washington Avenue, Lincoln Road and 17~' Street. In addition, plans also call for the Park and Garage to have an audio system (City Audio System) in place to be owned by the City, which may be, used in conjunction with or independent of the NWS's Video and Audio System. Both systems will have secondary control panels, one within the Park and the other in the Campus Expansion Project so, that they may be operated interchangeably as needed. City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 2 of 8 Section 6.2 of the Lease Agreement (Attachment "A") and Section 23.6 of the Development Agreement (Attachment "B"), require NWS to collaborate with the City and other arts organizations with respect to their access and use of the NWS Video and Audio System, in accordance with the Soundspace Impact Statement section of the Agreement (included as Attachment "C"). The Agreement further provides that prior to issuance of the building permit, the Parties shall negotiate a Use Agreement for the management and operation, including, without limitation, the scheduling and content of programming, for the Video and Audio System. To this end, and in light of NWS progress with the permitting process, City staff has been working with NWS to develop the terms for said Use Agreement. It should be noted that since the projection equipment will likely be located in the Park, and since the design and construction of the Park will not occur concurrent with NWS's Project, that the Parties acknowledge that many issues involving the operation of the Video and Audio Systems contemplated by the Agreement cannot be addressed with finality and certainty at this time. The Parties intend for the Use Agreement to be a flexible document that shall have to be amended from time to time in order to accommodate any future changes in circumstances at the time NWS' Project and the Park are completed, and the video and audio equipment is physically in place. SUMMARY OF AGREEMENT TERMS At the October 17, 2007 Commission Meeting, the Administration presented an item containing draft terms and conditions for the management, operation, scheduling and programming of the Video and Audio Systems, and requesting authorization for the City Administration to continue negotiating terms with NWS pertaining to the Use Agreement. Pursuant to the recommendation of the City Manager, the City Commission determined to schedule a special meting specifically to address the Use Agreement, as well as certain other concerns regarding the NWS Project in general, (including construction staging and the impact to parking on the area's businesses; solving NWS' parking requirement issue caused by the delay of the 420 Lincoln Road Project; and the design process and future management of the Park). The Commission also appointed Commissioner Richard Steinberg as the City's liaison to participate in the negotiations toward finalizing the Use Agreement. Subsequent to further meetings with NWS to finalize the Use Agreement (hereinafter referred to as the Video and Audio System Agreement and/or the Agreement), the following summary includes the key terms and provisions for the management, operation, scheduling and content of programming of the Video and Audio Systems that have been agreed to between the Administration and NWS and which are reflected in attached Agreement, (Attachment "D"): Concept - At the time of execution of this Agreement, the video program is anticipated to be accomplished using image projection, and the audio program using a system of speakers and amplifiers. Actual system and equipment are not yet designed, and may depend upon or utilize technologies and processes developed in the future. Video System - The video system may include one or more video projectors or other components to be located within the Park Project Zone and City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 3 of 8 the Campus Expansion Zone, to project and display professional- quality works of art and musical and other cultural performances on the surface of the east wall at the northern end of the Building (that portion of the Building's wall, the "Video Wall"). The Video System and the NWS Audio System shall be operated, maintained, repaired and replaced at NWS's sole cost and expense. City Audio System - This refers to systems, facilities, components and equipment, that are intended to be owned and used by the City, either independent of or in conjunction with the Video System and/or the NWS Audio System, for producing and amplifying sound within the Park and/or the Garage. It is contemplated that the City Audio System will be situated within the Park or upon other City-owned property. The City shall be solely responsible for the cost of maintaining, repairing and replacing all portions of the City Audio System, and when the City Audio System is being used independently, the City shall be responsible for providing appropriate technical personnel to maintain and operate the City Audio System. Cultural Programming - This refers to high-quality musical and other cultural performances and works of art, and specifically excludes: (a) commercial content, except that commercial or private sponsors of or donors to certain programs may be recognized appropriately, in a manner similar to that used by public radio and public television (e.g. no corporate logos or other onscreen "bubbles" during presentation; logos in credits before or after the display only); (b) governmental, administrative or similar public-interest use, except for certain use(s) by the City in the event of emergency; (c) content that is solely promotional in nature, such as advertising of upcoming cultural performances or publicity regarding the arts available in the City of Miami Beach, except that programming such as the narration of art or cultural exhibits or festivals would be permitted; (d) political content of any nature. Cultural Programming shall meet the NWS Standards (as defined in Section 6.1 herein) or, as to a City Use and/or Uses (as hereinafter defined in the Agreement), (the City Standards). Ownership of the System - The NWS Video System and the- NWS Audio System shall be the private property of NWS, and the City Audio System shall be the property of the City. Notwithstanding any use or frequency of use of the NWS Video System by the City or other NWS-approved parties, the Parties agree that the NWS Video System and the NWS Audio System are not and shall not be or become dedicated to the public, are not and shall not be or become public property City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 4 of 8 and shall remain the private property of NWS. In the event this Agreement terminates for any reason other than termination of the Lease, the NWS Video System and the NWS Audio System shall continue to be the private property of NWS until the Lease terminates. However, upon termination of the Lease, whether by passage of time or otherwise, the NWS Video System and NWS Audio System shall become the sole property of the City. Schedule - The Video System may be used seven (7) evenings a week, weather permitting, between sunset and midnight, although the NWS Audio System and the City Audio System may be, but shall not be obligated to be, in operation at any time. Notwithstanding anything contained in the Agreement, the Video and Audio System shall be operated in accordance with all applicable codes, regulations, laws and ordinances including, without limitation, the City's zoning and land use ordinances, and the City's Noise Ordinance, as same may be amended from time to time. Selection of NWS- Approved 3rd Party Programming - NWS and the City shall jointly develop procedures and time frames for coordinating use of the Systems and keeping the Parties apprised of: (a) NWS' anticipated schedule of use of the NWS Video System, either alone or in conjunction with the City Audio System, by NWS and NWS-approved third party users;, and (b) the City's anticipated schedule of use of the City Audio System and the City's desired use of the NWS Video System (either alone, or in conjunction with the City Audio System). Such procedures and timeframes shall provide for a reasonable dispersion of dates/days for City Use throughout a calendar year and, at a minimum must provide for no less than ten (10) weekend days for City Use during the NWS published "season" (which, as of the date hereof, runs from September to May). Notwithstanding anything to contrary herein, City use for the City Audio System shall have first priority over use by NWS or any third party, and NWS Cultural Programming for the City Audio System shall have priority of use over that of any third party. NWS shall have the sole and exclusive right and discretion to identify, select and schedule the content of all NWS and third party video programming and to use and display that programming on the Video System, including the exclusive rights: (i) to establish and apply such cultural and artistic criteria and standards of quality for content as it deems appropriate to be presented on the Video System ("NWS Standards"); (ii) to set the business terms of use of the Video System by others, as further described below; (iii) to establish a procedure for selecting and inviting artists and performers to create video and performance presentations; and (iv) in the event NWS makes a public call for submission of proposals for Cultural Programming, NWS shall (a) City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 5 of 8 be entitled to accept or reject for any reason whatsoever any and every submission or proposal or request to display a presentation or schedule programming for the NWS Video System, (b) determine an appropriate procedure to address potential questions as to whether a submission of proposed programming is or is not qualified and/or selected, and (c) provide to all respondents to such call the NWS Standards for NWS' selection of submissions for programming and the procedures in connection therewith. The decisions made by NWS pursuant to this Section, including but not limited to decisions made following implementation of procedures in connection with a public call described above, shall be exclusive and final on all issues, and the City shall bear no liability for such decisions made by NWS. City's Use of the Video System - Throughout the term of this Agreement, the City shall be entitled to use the NWS Video System to display Cultural Programming that meets City Standards for no fewer than 120 hours, per calendar year; provided, however, that the aforestated hours for City use (whether said hours are less or more than the 120 hour minimum) shall be programmed in such a manner so that they will not exceed a maximum of sixty (60) calendar days per year (throughout the term of this Agreement). Notwithstanding the preceding, this provision shall not be construed and/or interpreted by the Parties to mean that the City's annual minimum hourly use, once commenced, must be accomplished within sixty (60) consecutive calendar days from such commencement. The City shall not be entitled to "roll over" or "carry forward" any unused time for a City use(s) from a prior calendar year, such that, in the event, during any calendar year no City use(s) of the Video System occurs for any reason, then City shall be deemed to have waived its right or entitlement to the benefit of the City use(s) that otherwise could have occurred during the prior calendar year(s). The City shall have the sole and exclusive right and discretion to identify, select and schedule the content of all video cultural programming for the City Use(s) of the Video System, and shall not be subject to the NWS Standards. The City and NWS shall consult and work together and may look to the NWS Standards as a guide in establishing appropriate cultural and artistic criteria and standards of quality for content for the City's identification and selection of Cultural Programming for use of the NWS Video System by the City ("City Standards"). City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 6 of 8 City's Use During An Emergency - The City may be permitted to utilize the Video System in cases of extreme public emergency, for the limited purpose of broadcasting vital public information which is intended to assist and/or inform residents and visitors of Miami Beach during such time, particularly when other modes of communication may otherwise be unavailable or rendered ineffective. The term "extreme public emergency" shall be defined as (i) a severe major weather event and/or natural disaster which poses an immediate and extreme threat to the City of Miami Beach and which may include (most notably) a pending hurricane, dangerous floods, tornado, extensive and uncontrolled fire, and/or earthquake; (ii) an act or acts of terrorism which either occurs in the City of Miami Beach, or immediately proximate to the City (for example, the Port of Miami, Miami International Airport, or other areas, whether in the City of Miami or Miami-Dade County, that are within the immediate vicinity of the City of Miami Beach); or (iii) any other act or event which results in the declaration of a national state of emergency, national disaster, and/or state of war. The City's decision to use, and its use or attempted use of, the NWS Video System shall be at the City's sole cost and expense, and the City shall bear all risks and liability in connection therewith, both as to NWS and to third parties. Operation and Maintenance - NWS shall have the sole right and discretion to establish all charges, costs and fees it will assess third parties for the use, if any, of the NWS Video System and for the services of technical personnel, including Qualified Technicians. Determination of charges, costs and fees (including a usage fee) will take into consideration and include but not be limited to the costs for labor, utilities, technical support, wear and tear on the equipment, any special equipment or technical needs, administrative costs and the actual costs of maintaining and operating the NWS Video System. However, subject to the provisions of Section 12 herein, the City and NWS agree that neither shall charge the other a usage fee or any costs for normal utilities or wear and tear on their respective Systems' equipment. In addition, in the event and to the extent that NWS or NWS-approved third parties are already using and are financially responsible for labor, utilities, technical support (including Qualified Technicians) in connection with their use of the NWS Video System, (excluding the projection of the Building Icon), and there is a City Use, either before, or after such NWS or NWS-approved third party use on the same evening (and said City use does not require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users), then there shall be no additional cost to the City for the City Use. On any evening where the only scheduled use of the NWS Video System is projection of the Building Icon or similar use (i.e. another "video art" projection) and the City wishes to use the Video System that evening, and such City Use does not City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 7 of 8 Cost and Charges For Use of NWS Video System - require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users, then there shall be no additional cost to the City for the City Use. The City will pay for any necessary labor and technical support (including Qualified Technicians), if they are required for the aforestated particular City Use, only to the extent that such costs are in excess of any labor (including Qualified Technicians) that may be necessary for projection of the Building Icon. NWS will work with the City to minimize or eliminate any of the foregoing costs to the City. NWS shall have the sole right and discretion to establish all charges, costs and fees it will assess third parties for the use, if any, of the NWS Video System and for the services of technical personnel, including Qualified Technicians. Determination of charges, costs and fees (including a usage fee) will take into consideration and include but not be limited to the costs for labor, utilities, technical support, wear and tear on the equipment, any special equipment or technical needs, administrative costs and the actual costs of maintaining and operating the NWS Video System. However, subject to the provisions of Section 12 of the Agreement, the City and NWS agree that neither shall charge the other a usage fee or any costs for normal utilities or wear and tear on their respective Systems equipment. In addition, in the event and to the extent that NWS or NWS-approved third parties are already using and are financially responsible for labor, utilities, technical support (including Qualified Technicians) in connection with their use of the NWS Video System, including projection of the Building Icon, and there is City Use, either before, during, or after such NWS or NWS-approved third party use, NWS will eliminate any of the foregoing costs to the City. Maintenance and Service of the Systems - Except as set forth in Sections 8, 10, 11 and 12 of the Agreement, (a) NWS shall be solely responsible for acquiring, operating, maintaining, repairing and replacing the NWS Video System and the NWS Audio System and for all of the costs incurred in connection therewith; and (b) the City (should the City decide, in its sole discretion, to construct the City Audio System) shall be solely responsible for acquiring, installing, operating, maintaining, repairing and replacing all portions of the City Audio System, and for all of the costs incurred in connection therewith. City Commission Memorandum November 21, 2007 New World Symphony -Proposed Video and Audio Use Agreement Page 8 of 8 Arbitration of Disputes - The Parties hereby acknowledge and agree that if the City or NWS asserts that a dispute has arisen between the Parties under this Agreement, then any and all such disputes shall be addressed in the manner provided in Article 22 ("Arbitration") of the Development Agreement, which Article (for purposes of addressing disputes between the Parties pursuant to this Agreement) shall survive termina#ion and/or earlier expiration of the Development Agreement. Term - The term of the Agreement shall begin upon issuance of the final Certificate of Occupancy (CO) for the Campus Expansion Building and shall expire upon the expiration and/or other termination of the Lease or at such earlier time as the Parties may agree in writing. CONCLUSION As noted earlier, these terms are general in nature and will likely be refined and/or modified once the Video and Audio Systems are in place an operational. In the meantime the Administration recommends approving the Agreement in its current form and authorizing its execution, in order to allow NWS to proceed in obtaining its final building permit for the Project, pending satisfaction of any and all other outstanding requirements pursuant to the Development and Lease Agreements between the City and NWS. Attachments T:~Agenda\2007\Nov 21\Consent\NWS Screen Use Mem.doc ATTACHMENT A performances and events, education, interactive cultural experiences, office and administrative use related to the uses of the Premises, meetings, rehearsals, recording, multi-media activities, broadcasts, and appurtenant uses at Tenant's option, including but not limited to cafeterias for Tenant's students and staff and Landlord's employees, snack or coffee bars or similar facilities serving food and beverages, gift shops selling merchandise as would customarily be found in gift shops in similar facilities, practice rooms, performance halls, museum, meeting rooms, recording and broadcast facilities, outdoor and indoor video screens, soundstages, classrooms, libraries, and such other uses as may be contemplated in connection with providing Public Benefits. Tenant reserves the right to close or restrict access to any portion of the Premises which are customarily restricted in similar facilities (such as but not limited to office, administrative and maintenance areas, or areas subject to subleases or licenses to use a portion of the Premises pursuant to this Lease), or for reasons of public safety, or in connection with Alterations undertaken in accordance with the provisions of this Lease, or to such extent as may, in the reasonable opinion of Tenant's counsel, be legally necessary to prevent a dedication thereof or the accrual of prescriptive rights to any Person or Persons. (c) Character and Operation of the Premises. The parties recognize and acknowledge that the manner in which the Premises are developed, operated and maintained are matters of critical concern to the City by reason of its public educational and cultural mission, and Tenant hereby agrees to develop, operate and maintain the Premises and all other property and equipment located thereon which are owned, leased or maintained by Tenant in a manner consistent with other comparable first class projects of similar age and in good order, condition, repair and appearance, in compliance with Article 13, and in order to provide the Public Benefits as described on Exhibit C. To accomplish this result, Tenant shall establish such reasonable rules and regulations governing the use and operation of the Premises by Subtenants and the public as Tenant shall deem necessary or desirable in order to comply with Article 13 and assure the level of quality and character of operation of the Premises required herein, and it will use all reasonable efforts to enforce such rules and regulations. '``Section 6.2 Operations. Tenant will bear sole responsibility for operating and maintaining the Premises and shall retain all income derived therefrom. Similarly, the Landlord shall be solely responsible for operating and maintaining the Garage, the City Hall Parking Expansion, the Adjacent Property, and the Park (if applicable), and shall retain all income derived therefrom. Tenant will collaborate with the City and other arts organizations with respect to their use of the Screen in accordance with the Public Benefits set forth on Exhibit C. Prior to the issuance of the Building Permit, the Parties shall negotiate an agreement for the management and operation, including, without limitation, the scheduling and content of programming, for the Screen.. The Parties agree that there shall be no commercial advertising permitted for display on the Screen. 21 ATTACHMENT 6 metered, Owner shall pay the cost of such utilities directly to the authority or utility providing the same. The cost of repair and maintenance of all utility systems serving the Garage shall be the sole responsibility of Owner. Section 23.4 Park. Owner may develop the Park or, in the alternative, another similar public amenity, including but not limited to, a pedestrian boulevard or promenade, utilizing all or a portion of the Adjacent Property, all at the sole cost and expense of Owner. In the event Owner does develop the Park, or other similar public amenity, Owner shall strive to operate and maintain the Park or other public amenity at a municipal standard of quality that will ensure its preservation as a unique and special natural resource for use and enjoyment by all residents of and visitors to the City and to the Project. Owner will use reasonable efforts to advise Developer as to the design and configuration of the Park or other public amenity, which shall be, subject to the review and approval by the City of the proposed location, amenities, layout, design and construction schedule. Section 23.5 Additional Consideration. Developer, in consideration of Owner's approval of the dollar ($1.00) per year that under the Ground Lease and Owner's other significant financial contributions, and in recognition of Owner's cooperation and other contributions to the success of the Project, agrees to provide each Lease Year during the Lease Term the additional benefits to Owner and to the City as described on Exhibit E attached hereto and made a part hereof. Section 23.6 The Screen. Developer shall design, construct and thereafter maintain the Screen, as defined in the Ground Lease, at its sole cost and expense. The Parties shall define their respective programming and operational responsibilities with respect to the Screen in an exhibit to the Ground Lease in accordance with Section 6.2 of the Ground Lease. The Parties agree that there shall be no commercial advertising permitted for display on the Screen. ARTICLE 24 INVESTIGATIONS, ETC. To the extent required by Requirements, Developer shall cooperate fully and faithfully with any investigation, audit or inquiry conducted by any Governmental Authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by a Governmental Authority that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry. In addition, Developer shall promptly report in writing to the City Attorney of the City of Miami Beach, Florida, any solicitation, of which Developer's officers or directors have knowledge, of money, goods, requests for future employment or other benefit or thing of value, by or on behalf of any employee of Owner, City or -47- ATTACHMENT C EXHIBIT C Soundspace Impact Statement R~vis~d Aupust 2003 The creation and operation of Soundspace will provide significant benefits to the City of Miami Beach and its citizens. As described below, the returns to Miami Beach. in terms of revenues, jobs, publicity, education, culture, and business opportunities will far outweigh its investment in land, additional parking and, should it be realized, the costs of creating and operating a surrounding park. Soundspace will also provide the New V'Jorld Symphony with unique opportunities to expand its educational and cultural activities to benefit every citizen of Miami Beach. The most significant of these opportunities include: Soundspace Smart Card Corresponding with the opening of Soundspace, the link with residents of Miami Beach and the cultural community will be a "Smart Card". Working together, the City of Miarni Beach and NWS will create a redemption and distribution system forthese cards. All cardholders will have frequent, discounted access to selected Soundspace presentations and other Miami Beach cultural venues. The Smart Card program will be publicized prominently in the opening season of Soundspace in hopes that it would become a new and efficient way to promote and track increased attendance for NWS and other Miami Beach cultural organizations. NWS currently presents. and will continue to present over 16 free concerts and 36 paid- admission concerts annually. Soundspace will allow NWS to expand its offerings to the public, including the development of a series of short presentations. ranging,from 15 to 20 minutes to as long as an hour, that will combine local live music making,with electronic transmissions from all major music centers in this country and around the world. Internet2 also makes it possible to broadcast musical events from other parts of the world that would not necessarily use NWS fellows and coaches. Assuming each presentation could be repeated eight times per weekend over ten weekends of the season. this totals 80 new events in the inaugural season of Soundspace. NWS might charge $5 per adult admission to these presentations, but they would be free to Smart Card holders, providing Miami Beach residents up to $280,000 in value annually. Each Smart Card will also hold $50 of value that can be applied for discounts to select ticketed Soundspace offerings. Given the current population, this puts $4.9 million directly into the hands of Miami Beach residents. NWS will work with the appropriate City of Miami Beach departments to incorporate similar discounts to other select cultural organizations to enhance the value of the Srnart Card for a citywide marketing effort with trackable annual performance measures. NWS in the Schools NWS currently offers mentoring opportunities to students in Miami Beach schools with programs such as the Music Mentor Program. In-School Performances and Instrumental Coaching Sessions. Area elementary and middle schools often host In-School Performances while NW S fellows frequently coach students at Miami Beach Senior High. The use of Internet2 by NWS in master classes and concert settings provides students with greater accessibility to artists and composers around the world. In preparation for the opening of Soundspace, NWS proposes to meetwith representatives of every Miami Beach school to develop customized educational programs for the benefit of their students. Using the worldwide reach of Internet2, Soundspace will provide Miami Beach students with greater access to artists and teachers from around the world. Skill- based instrumental training, broader work in the social context of artistic activity, and exposure to cutting edge technology will stimulate the imaginations of each and every student in the Miami Beach school system. These activities will take place in Soundspace as well as in the individual schools. The commitment of NWS resources for these programs will exceed $250,000 annually. Vldeo Programming for Park NWS is prepared to provide regular video programming for the park throughout the year. This programming will take many formats, from broadcasting entire NWS concerts and portions of concerts, to special events and other creative video presentations. Programming for the park will also feature other cultural organizations. local io international, and can include anything from dance to film to other forms of musical and visual art presentation. The commitment of NWS resources for this programming wilt be at least $200,000 annually. The City of Miami Beach will work with NWS to develop specific seasonal events programming by other Miami Beach cultural organizations, at their expense, particularly for the summer season, whether or not such programming actually includes NWS. Concerts for the City With the opening of Soundspace, NWS would be pleased to provide at least one full orchestra concert annually for the direct benefit of the City of Miami Beach. W hether this takes the form of a holiday concert for Miami Beach residents, a special concert for City employees, or is part of a major joint promotional and/or fundraising event for Miami Beach's cultural arts program(s), the possibilities are endless. Based on fees NWS commands for performances while on tour, each such concert is worth at least $50,000 to the City. Bridge Tender House As currently envisioned, the Bridge Tender House is to serve as a central place for the public to obtain information about, andlor purchase tickets to events being held by Miami Beach-based cultural organizations. NWS' architect will explore options for locating the Bridge Tender House on or near the development site. Regardless of the selected location, NWS will provide the necessary professional staff to operate the Bridge Tender House during regular opening hours, to be mutually decided upon with the City. NWS will work with the City and other cultural organizations to identify a corps of volunteers that could serve as additional support staff. Assuming the Bridge Tender House is open from noon to midnight seven says a week, two full-time positions would be valued at $70,000 to $80,000 annually. inclusive of benefits. All other operating expenses of the Bridge Tender House -utilities, maintenance. insurance, etc. -will remain the City's responsibility. Leveraging NWS Investment in its Technology Infrastructure There are multiple opportunities for the City to utilize NWS' planned technology infrastructure in ways that would directly benefit the City and its employees. These opportunities could include: • Using Soundspace as a venue for City employees to participate in remote seminars or other professional development sessions at least two to four times annually without the payment of any rental fee (direct out-of-pocket costs incurred in connection with such uses shall be paid by the City). An example of this might be having the City's Fire and Police Departments participate in training courses provided by the federal Department of Homeland Security without the City having to incur the expense of sending personnel to another city. Another example would be providing broader participation to City employees at conferences around the country, again without the cost of travel. hotels and per diem for each person. These opportunities will be subject to the scheduling needs of NWS. Since these are opportunities that must be explored, their value cannot be quantified at the present time. • Using Soundspace as an enhancement to the Convention Center and incorporating it into the Convention Center's marketing materials as appropriate. Clients desiring or requiring sophisticated Internet and video capabilities will have the opportunity to rent Soundspace. This will increase opportunities for the Convention Center to attract more business that either might go elsewhere, or require significantly higher costs for equipment rental. The value to the city can be measured in terms of additional convention business. • Upgrading the City's IT infrastructure capacity at far less than market value. NWS could make available to the City the extremely high bandwidth capacity planned for Soundspace. This capacity will be measured inmulti-gigabits. possibly at the OC12 or higher level. This will provide an opportunity for the City to link its IT system to the Internet via NWS' connection. While there would still be investment by the City for its own equipment and making the connections to NWS, the bandwidth costs will be a fraction of what they otherwise would be if the City were to purchase the same capacity on its own. At current costs. this capacity is easily valued in excess of $100,000 annually. Soundspace will also provide other direct and indirect benefits to the City of Miami Beach. These include: Economic Impact • NWS will invest a minimum of $40 million in the construction of Soundspace. The construction phase will generate additional jobs and income for the local community. NWS will partner with the City of Miami Beach to explore. develop, purchase, and maintain appropriate RIMS II Multipliers from the US Department ofCommerce, Bureau of Economic Analysis in order to calculate the annual impact this project will have on the local economy. • Using published multiplier statistics for estimating economic value based on local spending, NWS' current operating expenditures of $7.3 million supports close to 300 full-time equivalent jobs in the Miami-Dade County region generating personal income of nearly $7 million, and over $300,000 in direct local govemment revenue each year. Much of this impact accrues directly to Miami Beach. Once constructed, Soundspace will increase NWS' operating budget by close to $2 million annually, creating over 75 new jobs and nearly $2 million in personal income for Miami-Dade and increasing govemment revenues proportionately. These figures do not include the impact of audience ancillary spending. which is discussed below. • NWS already brings over 20,000 visitors to Miami Beach each year to experience live concerts. W hile a certain amount of concert activity will shift from the Lincoln Theatre to Soundspace, overall concert activity will increase. NWS expects the new facility to have a positive affect on concert attendance, by drawing more local residents and an increased number of visitors. To be designed by aworld-renowned architect, the facility itself will become a destination for many people. According to the "2001 Profile of Visitors to Greater Miami and the Beaches," published by the Greater Miami Convention and Visitors Bureau, South Beach ranks as the #1 destination for all visitors to South Florida. Using statistics published by the GMCVB, a modest increase of 10,000 visitors could generate in excess of $2 million in additional visitor spending on lodging, meals, transportation, entertainment and shopping per year, more than half of which would likely be spent directly on Miami Beach. American's for the Arts June 2002 publication "Arts 8~ Economic Prosperity" identified cultural tourists as being far more lucrative to local markets than traditional tourists -they spend nearly 40% more, are more inclined to use hotels and stay longer, and are more likely to shop. Using these figures, the 10,000 additional visitors cited above could generate significantly more additional visitor spending than as calculated using GMCVB statistics. ~... The national American's for the Arts study cited above was based on in-depth market research in 91 communities nationwide, including Miami-Dade County. According to the Miami-Dade County Cultural Affairs Council, the 128 Miami-Dade based, non-profit cultural organizations generate economic activity -including the value of voluntary services and capital expenditures - of $2.69 for each dollar they spend. Using this multiplier, Soundspace should generate nearly $100 million in economic activity during its construction and first year of operation and over $5 million annually thereafter. While recognizing that Miami Beach is already swell-established tourist destination, it is instructive to note that the activities of the Guggenheim Museum in Bilbao generated a tour•fold increase in direct tourist expenditures, area GDP and jobs for the Basque Country in 1997, the year the facility opened, and this increased level of economic impact has been sustained each succeeding year. Bilbao has now become a major tourist destination. Given the number of visitors to South Florida and the percentage that cite South Beach as their #1 destination, even a modest increase in the number of visitors to South Florida will provide substantial and direct benefds to the economy of Miami Beach. It is not difficult to argue that South Beach will see its share of domestic and international visitors increase substantially more than cited above once a signature building is constructed. • If a park is constructed to surround a Soundspace fitted with a giant exterior screen, the local economy will receive a further boost, as park activities and screen broadcasts will draw more and more people to the northern edge of the Art Deco District, directly benefiting the merchants and restaurants in the Lincoln Road area. Publicity The work of an internationally recognized architect designing a signature building should generate articles in the top 50 American and the top 100 international daily newspapers, as well as coverage by all major feature. news, travel, and lifestyle magazines. With each national and international article about Soundspace, Miami Beach will increase its market penetration. This coverage will begin with the announcement of the architect and continue for at least a decade after completion of the building. Press coverage for new music presentation formats will be equally powerful with major musical figures joining New World fellows and guest artists through Internet2 transmissions. Examples of cultural marketing enhancing city and/or regional tourism include the Philadelphia Art Museum, MassMOCA, Boston Museum of Fine Art, and the Guggenheim Museum in Bilbao. Spain. Culture Existing and new Miami Beach arts organizations will have the opportunity to use Soundspace, thereby expanding and enriching their cultural activities. 1~he Lincoln Theatre wilt also become a more accessible venue for other arts organizations. contributing to the City's reputation as a major arts-friendly community. By shifting certain concert activity to Soundspace, NWS will free up prime dates within the calendar for use by other arts organizations. NWS regularly limits or turns away dozens of organizations each year, from the Miami Symphony Orchestra. the Miami Film Festival and the Florida Philharmonic, to many independent organizations. who at present cannot get some or all of the dates they want due to NWS activities. NWS would be pleased to work with the City of Miami Beach to offer reduced rental rates at the Lincoln Theatre for small or emerging arts organizations as part of the City's cultural facilities management program. Business The City of Miami Beach and the Convention Center will have access to Soundspace for an agreed number of events per year. No other city government or convention center will have access to media as powerful as Intemet2. NWS. the City. the Convention Center, and the Greater Miami Convention 8 Visitors Bureau can work together to market the destination bringing leaders in all fields to selected events in the Soundspace facility. Convention related events could be staged each year to promote the Center to potential clients and/or add value to the conventions that choose Miami Beach. The first use allows the Convention Center to increase its visibility without the cost of staff travel. The second addresses the ever increasing demand for high speed, high quality communications, branding the Miami Beach Convention Center one of the most unique in America. NWS will collaborate with the City of Miami Beach, Convention Center, and the Greater Miami Convention & Visitors Bureau to create a strategic business plan to incorporate Soundspace into future convention proposals. Summary NWS will invest at least $40 million in the building and development of Soundspace, and increase its operating budget by an estimated $2 million annually. Rapid improvement in technology will require steady high-cost capital and operating investment. Standard economic analysis demonstrates that the impact these investments will have on the local economy will be significant. This commitment of resources by a cultural institution is unprecedented in Miami Beach. If NWS is to make the most of this opportunity going forward, we need the City of Miami Beach to be a full contributing partner. The returns to Miami Beach, in terms of revenues, jobs, publicity, education, culture, and business opportunities will far outweigh its investment in land. additional parking and, should it be realized, the costs of creating and operating a surrounding park. ATTACHMENT D VIDEO AND AUDIO SYSTEM AGREEMENT THIS VIDEO AND AUDIO SYSTEM AGREEMENT (the "Agreement") is made by and between the New World Symphony, a Florida not-for-profit corporation ("NWS"), having its principal office at 541 Lincoln Road, Miami Beach, Florida 33139, and the City of Miami Beach (the "City"), a municipal corporation duly organized and existing under the laws of the State of Florida, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida 33139. RECITALS A. The City and NWS entered into an Agreement of Lease ("Lease") dated as of January 5, 2004, pursuant to which_Owner leased to NWS certain real property described in Exhibit "A" attached hereto and made a part hereof (the "Land"). B. Concurrently therewith, the City and NWS also entered into a Development Agreement dated as of January 5, 2004, as amended by that certain First Addendum to Development Agreement dated February 20, 2007 (collectively, the "Development Agreement"). setting forth, among other things, the Owner's and NWS's respective responsibilities and agreement . to coordinate and cooperate in the planning, scheduling and approval of the development, design and construction of (i) Developer's Improvements, including a performance, educational and Internet broadcast facility (the "Building"), together with certain related amenities, facilities and other infrastructure improvements located on and adjacent to the Land ; (ii) a public municipal parking garage to k}e designed, developed and constructed by NWS on the City's behalf and operated by the City at its sole cost and expense on City-owned property adjacent to the Land (the "Garage"); and (iii) a Park Project owned by the City, to be located adjacent to the Land. C. All capitalized terms used herein but not defined specifically herein shall have the definitions ascribed to them in the Lease or Development Agreement as amended, as applicable. D. The Building is intended to feature an external video system displaying musical and other cultural performances and works of art, which program is conceived as a videographic element of the Building itself. The Park Project is intended to feature an external audio system capable of complementing and working in tandem with the video system. Section 6.2 of the Lease and Section 23.6 of the Development Agreement require the City and NWS to negotiate an agreement for the management, operation, scheduling and content of programming of the external video and audio systems intended to be built and integrated into the Developer's Improvements and the adjacent Park Project. NOW THEREFORE, it is hereby mutually covenanted and agreed by and between the Parties hereto that this Agreement is made in consideration of the terms, covenants and conditions hereinafter set forth. 1. Concept of the Park Project and Park Project Design. The First Addendum to Development Agreement ("First Addendum"), dated February 20, 2007, states, among other things, that the design of the Park Project will not be submitted to or approved by the City until some indeterminate time in the future; that the completion of the design, construction and development of the Park Project is integral to the design, construction and development of the Project; and that even after the Park Project's design is approved by the City, the City may elect not to proceed with the Park Project. In addition, the design of the Project has not been finalized; selection of the NWS Video and Audio Systems (as hereinafter defined) has not yet occurred; and it is not known, nor can it be projected with any reasonable certainty, what the actual costs will be of purchasing, operating, maintaining, repairing or replacing any of the or all of the components of such Video or Audio Systems. As a consequence, the Parties acknowledge that many issues concerning the Project, the Park Project, and the use, management, operation, scheduling and content of programming of the video and audio systems contemplated by the Lease and the Development Agreement cannot be addressed with finality and certainty at the time this Agreement is executed. The Parties intend for this Agreement to be a flexible document that can be amended from time to time to in order to accommodate and reflect then-current circumstances and future changes in circumstances, to identify the systems actually selected; to address more specifically certain issues regarding the selected systems and their use and operation as those issues arise; to take into account changes in technology and to reflect the status and progress of the development, design and operation of the Project, the Park Project; and the video and audio systems. Consequently, this Agreement outlines, to the extent possible at this time, certain general terms and provisions for the use, management, operation, scheduling and content of programming of the NWS Video System, the NWS Audio System and the City Audio System (all as hereinafter defined below). References to all of the NWS Video System, City Audio System and the NWS Audio System, if applicable, may be referred to at times as the "Systems." 2. Concept of the Video and Audio Systems. At the time of execution of this Agreement, the video program is anticipated to be accomplished using image projection, and the audio program using a system of speakers and amplifiers. However, the actual Systems or equipment or means of production and transmission of visual and auditory effects are not yet designed, and may depend upon or utilize technologies and processes developed in the future. Therefore, the Parties agree that references in this Agreement to the "NWS Video System" or the "City Audio System" or the "NWS Audio System" shall include existing and future technologies or systems or equipment. 2_1 Additional Definitions. For purposes of this Agreement, the following definitions shall apply: "NWS Video System" -shall refer to the system, facilities, components and equipment owned by NWS and used to project and display professional-quality works of art and musical and other cultural performances, which systems, facilities, components and equipment are intended to include but not be limited to one or more video projectors or other components to be located within the Park Project Zone and/or the Symphony Campus Zone, to project images on the surface of the east wall at the northern end of the Building (that portion of the Building's wall, the "Video Wall"). However, it is also contemplated that there shall be two sets of operating controls for the NWS Video System, one within the Park Project and the other within the Symphony Campus Zone. The term "Screen" as used in the Lease and the Development Agreement does not specify any certain type of facility or system or equipment, and is deemed to be subsumed or replaced by the terms "Video Wall" and the "NWS Video System" contemplated in this Agreement. The Video Wall shall be included in the definition of the NWS Video System as appropriate. So long as the Lease remains in force, the NWS Video System and the NWS Audio System (as hereinafter defined) shall be and shall remain the private property of NWS, and shall be operated, maintained, repaired and replaced at NWS's sole cost and expense, but upon termination of the Lease, whether by passage of time or otherwise, the NWS Video System and NWS Audio System shall become the sole property of the City. "NWS Audio System" -shall refer to the systems, facilities, components and equipment which are intended to be used by NWS for its own purposes, either independent of or in conjunction with the NWS Video System, and/or independent of or in conjunction with the NWS Video System and the City Audio System (as hereinafter defined). It is anticipated that the NWS Audio System (including its operating controls) shall be situated in the Building or other areas within the Symphony Campus Zone. The NWS Audio System is not and shall not be part of the City Audio System (as hereinafter defined) or the NWS Video System. "City Audio System" -shall refer to systems, facilities, components and equipment owned by the City and used for producing and amplifying sound within the Park Project Zone, either independent of or in conjunction with the NWS Video System and/or the NWS Audio System. Although it is anticipated that the City may wish to use the City Audio System in the Garage, the Parties do not intend for NWS to have any rights or responsibilities in connection with such use, or any operation, maintenance, repair or replacement of any equipment pertaining to such use in the Garage. Therefore, for the purposes of this Agreement, any use of the City's Audio System in the Garage and any portions of the City Audio System used solely for or in the Garage shall be specifically excluded from the purview of the rights and obligations of NWS set forth herein, and the City shall have all obligations and responsibilities in connection therewith. It is contemplated that the City Audio System will be situated within the Park Project Zone or upon other City-owned property. However, it is also contemplated that there may be two sets of its operating controls, one within the Park Project Zone and the other within the Symphony Campus Zone. Nothwithstanding anything to the contrary herein, nothing in this Agreement shall be construed as a contractually binding obligation on behalf of the City to construct, maintain, repair, or replace the City Audio System. "Cultural Programming" -shall refer to high-quality works of art and musical and other cultural performances, and specifically .excludes: (a) commercial content, except that commercial or private sponsors of or donors to certain programs may be recognized appropriately, in a manner similar to that used by public radio and public television (e.g. no corporate logos or other onscreen "bubbles" during presentation; logos in credits before or after the display only); (b) governmental, administrative or similar public- interest use, notices and information except for certain use(s) by the City in the event of emergency, as set forth in Section 8 herein; (c) content that is promotional in nature, such as (but not limited to) advertising of upcoming cultural performances or publicity regarding the arts available in the City of Miami Beach, except that, by example, programming such as "A Walk Through the Bass Museum" or a video exhibition with narration of an art or cultural exhibit or festival shall be allowed; and/or (d) political content of any nature. Cultural Programming shall meet the NWS Standards (as defined in Section 6.1 herein), or, as to a City Use and/or Uses (as hereinafter defined), the City Standards (as defined in Section 6.2 herein). "Qualified Technician" -shall mean a technician approved by NWS as meeting the standards and qualifications established by NWS for all technicians who operate the Systems, as further described in Section 10 herein. 2.2 Location and Selection of System Components. The locations and selection of components of the NWS Video System and the NWS Audio System and their appearance and process of installation shall be determined solely by NWS in its sole discretion during the process of developing and refining the Project Design, as set forth in the Development Agreement, subject to the requirements of the Design Review Board. The locations and selection of components of the City Audio System and their appearance and process of installation shall be determined during the process of developing and refining the Park Project Design, as set forth in the Development Agreement. 3. Ownership of the Systems. The NWS Video System and the NWS Audio System shall be the private property of NWS, and the City Audio System shall be the property of the City. Notwithstanding any use or frequency of use of the NWS Video System by the City or other NWS-approved parties, the Parties agree that the NWS Video System and the NWS Audio System are not and shall not be or become dedicated to the public, are not and shall not be or become public property and shall remain the private property of NWS. In the event this Agreement terminates for any reason other than termination of the Lease, the NWS Video System and the NWS Audio System shall continue to be the private property of NWS until the Lease terminates. However, upon termination of the Lease, whether by passage of time or otherwise, the NWS Video System and NWS Audio System shall become the sole property of the City. 4. Use of the NWS Video System. NWS intends to commission a major work of video art (the "Building Icon," as hereinafter defined), which will be the centerpiece of the NWS Video System; display of this work of video art shall be the primary ongoing use of the NWS Video System. This video art will be not only an important videographic element of the Building itself, it will operate as an invitation to the public to experience the singular architecture of NWS' home, and it is anticipated that this work will become an iconic symbol of the Symphony and the Building to the local, national and international communities ("Building Icon"). In addition to display of the Building Icon, the NWS Video System shall be limited to Cultural Programming, except for the emergency use described in Section 8 below, or, without any obligation on the part of NWS, as the Parties may agree from time to time. No third party shall have any entitlement whatsoever to use the NWS Video System or the NWS Audio System, except the City, as set forth herein. Notwithstanding anything contained in this Section 4 or the Agreement, planned display of the Building Icon shall not be the sole grounds for declining to schedule any particular City Use. 5. General Outline of Anticipated Video Cultural Programming. Subject to the other terms and conditions set forth herein, the following outline describes in general terms the contemplated Cultural Programming for the NWS Video System: 5_1 Display of the Building Icon will provide visitors with an expanded experience of the Building and its architecture and will constitute the primary ongoing use of the NWS Video System. 5_2 NWS will use the NWS Video System to display both live and pre- recorded performances of certain of its concerts held inside the Building. 4 5.3 NWS intends to work with local, national and international well- established visual arts organizations to identify and select artists to create video art works for potential display on the NWS Video System on a short- or long-term basis. 5_4 The NWS Video System may be used seven (7) evenings a week, weather permitting. To maintain the quality and integrity of the NWS Video System, and in consideration of local residents and businesses, the NWS Video System shall only be operated between sunset and midnight, although the NWS Audio System and the City Audio System may be, but shall not be obligated to be, in operation at any time. Notwithstanding anything contained in this Agreement, the Systems shall be operated in accordance with all applicable local, State and federal laws, codes, regulations and ordinances including, without limitation, the City's zoning and land use ordinances and the City's Noise Ordinance, as any of the foregoing may be amended from time to time. In the event that any changes to any of the foregoing laws, codes, regulations and ordinances may prohibit the intended use of the NWS Video System, NWS and the City shall utilize their best efforts to revise this Agreement to the extent necessary to comply with the applicable changes in laws, regulations and ordinances. 6. Selection of Programming. 6.1 By NWS and NWS-Approved Users. At all times NWS shall have the sole and exclusive right and discretion to identify, select and schedule the content of all NWS' and NWS-approved users' Cultural Programming and to use and display that programming on the NWS Video System, all as it sees fit, including the exclusive rights: (i) to establish and apply such cultural and artistic criteria and standards of quality for content as it deems appropriate to be presented on the NWS Video System ("NWS Standards"); (ii) to set the business terms of use of the NWS Video System by others, as further described below; (iii) to establish a procedure for selecting and inviting artists and performers to create video and performance presentations; and (iv) in the event NWS makes a public call for submission of proposals for Cultural Programming, NWS shall (a) be entitled to accept or reject for any reason whatsoever any and every submission or proposal or request to display a presentation or schedule programming for the NWS Video System; (b) determine an appropriate procedure to address potential questions as to whether a submission of proposed programming is or is not qualified and/or selected; and (c) provide to all respondents to such call the NWS Standards for NWS' selection of submissions for programming and the procedures in connection therewith. The decisions made by NWS pursuant to this Section, including but not limited to decisions made following implementation of procedures in connection with a public call described above, shall be exclusive and final on all issues, and the City shall bear no liability for such decisions made by NWS. The provisions of this Section 6.1 shall not apply to a City Use (or Uses) of the NWS Video System, which shall not be subject to the NWS Standards, but rather to programming standards to be developed by the City, at its sole discretion (the City Standards, as hereinafter defined). 6_2 By the City. Subject to the provisions of Section 7, the City shall have the sole and exclusive right and discretion to identify, select and schedule the content of Cultural Programming that meets the "City Standards" (as defined below), and to use and display that programming on the NWS Video System. The City and NWS shall consult and work together, and may look to the NWS Standards as a guide, in establishing appropriate cultural and artistic criteria and standards of quality for content for the City's identification and selection of Cultural Programming for use of the NWS Video System (which criteria, when established, shall be referred to as the "City Standards"). Although the City Standards may not be entirely consistent with the NWS Standards, they shall be designed to reasonably ensure that the City's Cultural Programming for the NWS Video System is of the highest cultural and artistic quality available to the City. Nothwithstanding anyting contained herein, the City shall have sole discretion to determine the City Standards. The City shall bear all responsibility and liability for the establishment and application of City Standards in all events, and NWS shall have no liability whatsoever to the City or any third party in connection therewith. 7. City Use of NWS Video Svstem for Cultural Programming; Throughout the term of this Agreement, the City shall be entitled to use the NWS Video System to display Cultural Programming that meets City Standards for no fewer than 120 hours, per calendar year; provided, however, that the aforestated hours for City use (whether said hours are less or more than the 120 hour minimum) shall be programmed in such a manner so that they will not exceed a maximum of sixty (60) calendar days per year (throughout the term of this Agreement). Nowithstanding the preceding, this provision shall not be construed and/or interpreted by the Parties to mean that the City's annual minimum hourly use, once commenced, must be accomplished within sixty (60) consecutive calendar days from such commencement. The foregoing instance(s) of use by the City shall be referred to as, individually, a "City Use," and collectively, the "City Uses", and shall be scheduled in accordance with NWS's anticipated scheduling needs and priorities, and as further described in Section 9 herein. 7_1 Notwithstanding anything to the contrary herein, at all times NWS's presentation of Cultural Programming on the NWS Video System and, (if approved by the City as part of the scheduling process in Section 9), NWS's presentation of cultural programming on the NWS Video System in conjunction with the City Audio System, shall have first priority over use by the City or NWS approved third parties. Similarly, the City's Use and/or Uses of the NWS Video System to present Cultural Programming shall have priority of use over that of NWS-approved third parties. 7_2 The City shall not be entitled to "roll over" or "carry forward" any unused occasions for a City Use(s) from a prior calendar year, so that in the event, for any reason whatsoever, there occur fewer than the 120 hours of minimum City Use, of the NWS Video System during a calendar year (in the manner further prescribed in the first paragraph ~ of this Section 7), the City shall be deemed to have waived its right or entitlement to the unused opportunities for City Use, and the next calendar year the City shall again be entitled no less than the 120 hour minimum for City Use. 8. City Use of NWS Video Svstem for Emergency Use. In cases of "extreme public emergency" (as hereinafter defined), and subject to the limitations described herein, NWS will cooperate with the City in making the NWS Video System available to the City for the sole and limited purpose of displaying vital public safety information to the residents and visitors of Miami Beach, which use shall be limited to those periods immediately before, during, and immediately after an extreme public emergency (as hereinafter defined), and depending on the specific circumstances and conditions at the time of the particular emergency. 8_1 The term "extreme public emergency" shall be defined as (i) a severe major weather event and/or natural disaster which poses an immediate and extreme threat to the City of Miami Beach and which may include (most notably) a pending hurricane, dangerous floods, tornado, extensive and uncontrolled fire, and/or earthquake; (ii) an act or acts of terrorism which either occurs in the City of Miami 6 Beach, or immediately proximate to the City (for example, the Port of Miami, Miami International Airport, or other areas, whether in the City of Miami or Miami-Dade County, that are within the immediate vicinity of the City of Miami Beach); or (iii) any other act or event which results in the declaration of a national state of emergency, national disaster, and/or state of war. 8_2 The City's decision to use, and its use or attempted use of, the NWS Video System pursuant to this Section 8 shall be at the City's sole cost and expense, and the City shall bear all risks and liability in connection therewith, both as to NWS and to third parties. 8_3 In the event the City uses the NWS Video System for an extreme public emergency, (a) NWS shall have no liability whatsoever to the City or any third party in connection with the City's decisions or actions; (b) NWS shall have no obligation whatsoever (i) to provide the City or any third party with any particular technical, mechanical or other equipment, or support personnel, including Qualified Technician(s); (ii) to bear any risk in connection with the City's use or attempted use of the NWS Video System; (iii) to ensure or attempt to ensure that the NWS Video System and/or the NWS Audio System or any other equipment is or will be operable, or that there will be any source of power to operate the foregoing (including there being no obligation to provide emergency power or generator(s)); and (c) the City's use or attempted use of the NWS Video System and/or NWS Audio System shall not endanger or injure the personal safety of any NWS personnel, students or independent contractors, including Qualified Technician(s), or endanger or injure the Developer's Improvements, including the NWS Video System and NWS Audio System. 8_4 NWS is entitled to exercise its sole discretion in establishing and implementing its own policies and procedures pertaining to the health and safety of people and its property in situations deemed by NWS to be emergencies, whether or not a particular situation is deemed by the City or other third party to be an extreme public emergency, and NWS shall give the City reasonable oral notice of its intent to implement any such policies and procedures. Such NWS policies and procedures may include, but shall not be limited to, closing the Building, removing all or part of certain components of the NWS Video System and the NWS Audio System from their customary locations to places of greater safety, cutting or reducing power to any components or systems or to all or part of the Developer's Improvements (including the NWS Video System and the NWS Audio System), or evacuating some or all personnel, including Qualified Technician(s), from Developer's Improvements and/or the area and/or Miami Beach. 9. Scheduling of Programming. NWS and the City shall jointly develop procedures and time frames for coordinating use of the Systems and keeping the Parties apprised of: (a) NWS' anticipated schedule of use of the NWS Video System, either alone or in conjunction with the City Audio System, by NWS and NWS-approved third party users; and (b) the City's anticipated schedule of use of the City Audio System and the City's desired use of the NWS Video System (either alone, or in conjunction with the City Audio System). Such procedures and timeframes shall provide for a reasonable dispersion of dates/days for City Use throughout a calendar year and, at a minimum must provide for no less than ten (10) weekend days for City Use during the NWS published "season" (which, as of the date hereof, run(s) from September to May). Notwithstanding anything to contrary herein, City use for the City Audio System shall have first priority over use by NWS or any third party, and NWS Cultural Programming for the City Audio System shall have priority of use over that of any third party. 10. Qualified Technicians. NWS shall have the right and discretion to establish the standards and qualifications for all technicians who may operate the Systems (each, a "Qualified Technician"), and to verify that each technician meets such standards and qualifications. In connection with programming by NWS and NWS-approved third parties, NWS will be responsible for providing Qualified Technicians to operate the NWS Video System, and in the event, but only in the event that the City Audio System is used by NWS. and NWS- approved third parties in conjunction with the NWS Video System, to operate the City Audio System. All uses of the NWS Video System by all NWS-approved third parties shall be conditioned upon their engaging and compensating Qualified Technicians to operate the NWS Video System. The City shall be required by NWS to engage a Qualified Technician to opeate the NWS Video System, but, in accordance with Section 11 herein, the City may or may not be required to compensate NWS for the Qualified Techinician. NWS will provide all necessary system specifications for display on the NWS Video System to all approved users as needed, but will not provide nor have any obligation to provide additional or special equipment or design or videography services to any users, including the City. Notwithstanding the foregoing, the City shall have the right to operate and authorize operation of the City Audio System independent from and without any prior approval or oversight by NWS. 11. Costs and Charges for Use of the NWS Video System. NWS shall have the sole right and discretion to establish all charges, costs and fees it will assess third parties for the use, if any, of the NWS Video System and for the services of technical personnel, including Qualified Technicians. Determination of charges, costs and fees (including a usage fee) will take into consideration and include but not be limited to the costs for labor, utilities, technical support, wear and tear on the equipment, any special equipment or technical needs, administrative costs and the actual costs of maintaining and operating the NWS Video System. However, subject to the provisions of Section 12 herein, the City and NWS agree that neither shall charge the other a usage fee or any costs for normal utilities or wear and tear on their respective Systems' equipment. In addition, in the event and to the extent that NWS or NWS-approved third parties are already using and are financially responsible for labor, utilities, technical support (including Qualified Technicians) in connection with their use of the NWS Video System, (excluding the projection of the.Building Icon), and there is a City Use, either before, or after such NWS or NWS-approved third party use on the same evening (and said City use does not require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users), then there shall be no additional cost to the City for the City Use. On any evening where the only scheduled use of the NWS Video System is projection of the Building Icon or similar use (i.e. another "video art" projection) and the City wishes to use the Video System that evening, and such City Use does not require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users, then there shall be no additional cost to the City for the City Use. The City will pay for any necessary labor and technical support (including Qualified Technicians), if they are required for the aforestated particular City Use, only to the extent that such costs are in excess of any labor (including Qualified Technicians) that may be necessary for projection of the Building Icon. NWS will work with the City to mimimize or eliminate any of the foregoing costs to the City. 12. Maintenance and Service of the Svstems. Except as set forth in Sections 8, 10, 11 and this Section 12, (a) NWS shall be solely responsible for acquiring, operating, maintaining, repairing and replacing the NWS Video System and the NWS Audio System and for all of the costs incurred in connection therewith; and (b) the City (should the City decide, in its sole discretion, to construct the City Audio System) shall be solely responsible for acquiring, installing, operating, maintaining, repairing and replacing all portions of the City Audio System, and for all of the costs incurred in connection therewith. 13. Term. The term of this Agreement shall begin upon issuance of the final Certificate of Occupancy (CO) for the Building, and shall expire and automatically terminate upon the expiration and/or other termination of the Lease, or at such earlier time as the Parties may mutually agree to in writing, with such termination (in that event) to be effective as of the date of termination set forth in the written notice terminating this Agreement. 14. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire Agreement between NWS and City with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings. This Agreement may not be modified or amended in any manner except by an instrument in writing signed by a duly authorized officer or representative of both NWS and City. It is anticipated that this Agreement may be modified from time to time as circumstances may warrant. 15. Notices. All notices from the City to NWS shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt, or hand delivered, to the User at the following address: New World Symphony ATTN: Chief Financial Officer 541 Lincoln Road Miami Beach, FL 33139 All notices from NWS to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested, or hand delivered, to the City at the following addresses: City of Miami Beach ATTN: 1700 Convention Center Drive Miami Beach, FL 33139 NWS and City may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing unless specifically stated to the contrary herein. 16. Relationship of the Parties. It is expressly understood and acknowledged that it is not the intention or purpose of this Agreement to create, nor shall the same be construed as creating, any type of partnership, relationship or joint venture. 17. Arbitration of Disgutes. The Parties hereby acknowledge and agree that if the City or NWS asserts that a dispute has arisen between the Parties under this Agreement, then any and all such disputes shall be addressed in the manner provided in Article 22 ("Arbitration") of the Development Agreement, which Article (for purposes of addressing disputes between the Parties pursuant to this Agreement) shall survivie termination and/or earlier expiration of the Development Agreement. 18. Governing Law and Exclusive Venue. This Agreement 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 Agreement 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 AGREEMENT, CITY AND NWS EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 19. Miscellaneous 19.1 Modifications. This Agreement cannot be changed, amended or modified except by agreement in writing executed by all parties hereto. 19.2 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 19.3 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 19.4 Severability. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall remain in full force and effect. 19.5 No Waiver. No waiver of any covenant or condition of this Agreement by either party shall be deemed to imply or constitute a waiver in the future of the same covenant or condition or of any other covenant or condition of this Agreement. 19.6 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. signatures on following two pages] F:~attoWGUR~AGREEMNT~NWS -Video and Audio System Use Agr (Final 11-08-07).doc 10 IN WITNESS WHEREOF, the City, by its duly authorized representatives, hereby executes this Video and Audio System Agreement on the date written below. ATTEST: City Clerk Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) APPROVED AS TO FORM 8~ LANGUAGE CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: Mayor The foregoing instrument was acknowledged before me this day of , by , as Mayor, and , as City Clerk of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal corporation. They are personally known to me o produced valid Florida driver's licenses as identification. My commission expires: Notary Public, State of Florida Print Name: ~ FO CUTION ....-_, ~,r.... ~~ ~ n `~ r) ~ ii IN WITNESS WHEREOF, NWS, by its duly authorized representative, hereby executes this External Video and Audio System Use Agreement on the date written below. ATTEST: Secretary THE NEW WORLD SYMPHONY, INC., anot- for-profit corporation By: Howard Herring, President and CEO Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , by Howard Herring, as President and CEO, and as Secretary, of THE NEW WORLD SYMPHONY, snot-for-profit Florida corporation, on behalf of such corporation. They are personally known to me or produced valid Florida driver's licenses as identification. My commission expires: Notary Public, State of Florida Print Name: 12