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HomeMy WebLinkAboutSubmittal-Sam Dubbin-Letter in Opposition to proposed Agreement RE Ultra Music FestivalD V 1 LP KRA. ETZ June 26, 2019 VIA EMAIL Hon. Mayor Francis Suarez and City Commissioners Ken Russell, Willy Gort, Keon Hardemon , Joe Carollo, and Manolo Reyes 3500 Pan American Way Miami, Florida Submitted into the public record for item(s) REA on 07/25/2019 City Clerk SAML7FLJ DUBBIN, PA. DIRECT (305) 357-9004 sd u b bi n ®d u bbi nkravetz.. oom Re: Downtown Miami Residents' Opposition to Proposed Agreement by the City of Miami for Ultra Music Festival in Bayfront Park; Resolution No. 6097 Scheduled for June 27, 2019 Dear All: This law firm represents the following residents of 50 Biscayne Boulevard and 200 Biscayne Boulevard Way in Downtown Miami: Itai Benosh, Joy Prevor, Ken Schwartz, Victor Gadino, Santiago Peredo, Carmine Sorrentino, Rebecca Yu, Barry Duceman, Arlene Ramsingh, Luz Saldarriaga, and Pete Ellis, the 50 Biscayne Condominium Association, Inc. ("Association"), and the Downtown Neighbors Alliance, Inc. ("DNA")("Downtown Residents"). The Downtown Residents oppose the proposed resolution (No. 6097) for the City of Miami to allow Ultra Music Festival ("Ultra") to return to Bayfront Park ("Park"), and in particular under the proposed agreement which allows Ultra to occupy the Park for at least 30 days per year, and for an indefinite period of time. Less than a year ago, this Commission properly, and unanimously, rejected a proposal that would have generated twice as much net revenue for the City as the current proposal. It is difficult to understand how any Commissioner would now run the risk of causing massive harm to the residents' health and property, and personally violating the Charter, by voting to allow Ultra back into Bayfront Park. I. Summar . As each of you are well aware, a vote to return Ultra to Bayfront Park would cause massive disruption, interfere with residents' quiet enjoyment of their homes, harm the health and property of thousands of Downtown residents, and threaten injury to hundreds of businesses as well. As such, the Ultra festival is a legal nuisance which the City cannot properly authorize. Approval of the Resolution is not only terrible policy for the City, it would, to a certainty, open the door to lengthy litigation and potentially catastrophic financial liability.( This letter addresses some, but not all, of the reasons approval of the proposed Ultra agreement would be illegal, and the Downtown residents reserve the right to raise any and all issues in the event of litigation. 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 TELEPHONE (305) 371-4700 • FAX (305) 371-4701 ��1� S��a1-S► ►I big—1 QST �A�os;-�o„ -b prop��eo�gr�a- (1,E: U�ril�r«Fes -� Submitted into the public record for item(s)REA on 07/25/2017 City Clerk . Mayor and City of Miami Commissioners June 26, 2019 In addition, the Proposed Ultra Agreement would violate Sections 29-A, 29-13, and 3(f)(iii) of the City of Miami Charter, which require competitive bidding, independent appraisals, and a return to the City of fair market value, as a precondition for the City to lease or convey any interest in Bayfront Park to a private entity. Under the current proposal, the Commissioners are being asked to indulge in the legal fiction that the Ultra Agreement is a "revocable at will license" instead of a lease or conveyance of an interest in land governed by the Charter. However, decisions of the Third District Court of Appeal, described below, make it clear that the agreement is neither a license, nor "revocable at will." That case law is binding on this Commission. In prior years, the Administration justified the circumvention of the Charter's protections by relying on Section 18-85(a) of the City Code to avoid competitive bidding, and requiring a four -fifth's vote. Although the Downtown residents also rejected that fiction, the City Administration has gone one step further down the wrong road to give Ultra a deal that obliterates the protections afforded to all residents under the City Charter. Now, due to the obvious public controversy over returning Ultra to Bayfront Park, and after last year's unanimous voted of disapproval, the Administration has — without any explanation — decided the Ultra agreement can be approved by a simple majority vote. To underscore the absurdity of the current proposal, the "revocable at will license" that the Administration says can be approved by the City Commission to bind the City to an open- ended agreement with Ultra based on a simple majority vote of the Commission, can only be terminated by the City with a unanimous vote of all five commissioners. The proposal is nothing more than a sham to negate the public's protections in the City Charter, and which every Commissioner should reject. The City Charter, adopted by the voters, is the City's fundamental governing document, its Constitution. It imposes rigorous requirements on the Commission's ability to lease or convey an interest in public land and public waterfront property, to protect the residents' right of access to public spaces and the waterfront, and to protect taxpayers by requiring private lessees to pay true, independently appraised fair market value to occupy and use public property for private gain The Charter protections are in place to prevent the City's public parks and waterfront spaces from becoming expedient sources of money for everyday projects. The proposal now before the Commission threatens the very civic harms the Charter exists to prevent, and creates a dangerous precedent that puts other parks and public lands at risk. 11. The Ultra Music Festival Would Harm Residents' Health, Quiet Enjoyment, and Property, and Constitute a Legal Nuisance. Approval of Ultra would subject the City to immediate, costly and potentially financially devastating litigation by residents. It is well-known to each Commissioner that the Ultra Festival in 2012-2018 caused catastrophic levels of noise and negative impacts on the Downtown residents. These highly negative impacts were documented in a scientific survey, Page 2 of 18 DUBBIN & KRAVEI'Z, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Mayor and City of Miami Commissioners June 26, 2019 Submitted into the public record for items) REA on 07/25/2019 City Clerk and in testimonials from the experiences of Downtown residents, placed into the Commission record. They are summarized below. Under Florida law, "fa]nything that annoys or disturbs enjoyment of private property rights, including excessive noise, is a legal nuisance and may be restrained." Town of Surfside v. County Line Land Co., 340 So.2d 1287, 1289 (Fla. 3d DCA 1977). Moreover, the City Commission can not authorize activities that constitute a legal nuisance. "An activity can constitute a judicially abatable nuisance notwithstanding full compliance with either legislation or administrative rule." Lake Hamilton Lakeshore Owners Assn, Inc., v. Neidlinger, 182 So.3d 738, 741 (Fla. 3d DCA 2015). A. BAC Sound Study. The management of the 50 Biscayne Condominium Association commissioned a sound survey by the sound engineering firm of Brooks Acoustics Corporation ("BAC"), which was conducted before, during and after the 2018 Ultra Music Festival on March 23, 24, and 25, 2018 at several locations at the 50 Biscayne building, including the pool deck and common rooms (10"' floor), several management offices, Unit 2802 dining room and balcony, and the roof on the 55`x' floor. The full results of the Study were provided to the City Commission on May 24 and June 20, 2018, and are attached to this letter. The study concluded: During the time that the Ultra Music Festival was operating, the rhythmic, thumping bass and drum sounds from the venue at Bayfront Park were plainly audible, distinctly noticeable, and highly intrusive above the ambient background. The sound survey show that the musical devices in use at the Ultra Music Festival events generated and emitted sound that can and did "disturb the quiet, comfort, or repose of persons in any dwelling, hotel, or other type of residence. (P. 1) In addition, the BAC survey reached several detailed conclusions documenting adverse effects of the Ultra sound on residents' health and property, such as: The objective data show that the disruptive nature of these significantly intrusive bass sounds can disturb the peace, quiet and comfort, and consequently seriously degrade the quality of life, and cause negative health effects for residents. (Page 2) The bass content intrusion greatly exceeds the criteria of 15 dB, known to result n widespread complaints. It also represents an over 150 fold increase in sound intensity in the bass frequency range above the background levels. This intrusion is like having a boom box in your living room for the entire day and evening. (Page 9) The A -weighted Ultra event sound level on the pool deck was 96 dBA. This is a level known to cause hearing damage. The overall intrusion level was 96 dBA — Page 3 of 18 DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 57 dBA = 39 dBA. This intrusion also greatly exceeds the criteria of 15 dB, known to result in widespread complaints. This intrusion is like having a power saw operating in your living room for the entire day and evening. (Page 9) "These test results that the sound levels produced by the Ultra event are high enough and persist long enough to cause hearing damage for residents located at the Associations common elements, including the pool deck and on private property at the 50 Biscayne Condominium. " (Page 14) These high measured sound levels consistently exceed the WHO health criteria of 70 dBA, which indicates the likelihood that the Ultra noise will produce other negative health effects, related to hypertension and ischemic heart disease, among other adverse outcomes. (Page 14) The noise induced vibration of windows and blinds and other building features such as light fixtures caused rattling to be noticeable. A comparison with criteria developed by NASA for the potential damage to housing structures due to rocket takeoffs show that the Ultra event can cause levels of noise which exceed the NASA guidelines. According to the NASA criteria, these high levels of noise are likely to vibrate nearby buildings, causing minor damage to the fixtures, finishes and possibly the structure. This was confirmed by observations that the building was perceptibly vibrating during the Ultra event. Exhibit 1(Bold type supplied). B. Downtown Residents Reported Experiences Between 2012 and 2018. The following experiences of several Downtown residents were placed into the City Commission's record on June 20, 2018: -- The noise caused our windows and other fixtures to vibrate and rattle for hours every day, and made living in our home unbearable due to the constant noise, thumping, and vibrations that resulted in sleep deprivation, anxiety, and general exhaustion. -- Living in our apartment during those two weeks, which included six full days of vibrating cacophony that on most days lasted until midnight, was especially unbearable and caused a high level of sleep deprivation, anxiety, and exhaustion. -- I'm a freelance illustrator and I work out of my apartment. I found it impossible to concentrate on my work with the constant pounding beat, screaming DJs and endless vibration of my windows. In fact, everything in my apartment was vibrating the entire three days. I had to ask my doctor if I could increase my blood pressure medication, because my head was pounding and my entire body felt stressed Page 4 of 18 DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Mayor and City of Miami Commissioners June 26, 2019 Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk -- The streets were overcrowded with groups of ruckus drunk partygoers or stoned looking zombies with vacant eyes. I just didn't feel safe. It was very unpleasant and very ugly! -- [E]veryday I can see the destruction to the park's trees and bushes from all the public urination. In just 15 minutes from the pool level of 50 Biscayne I witnessed a dozen guys urinating on a row of bushes because they didn't want to wait on the bathroom lines.... Those very bushes now look almost dead. -- The volume of the music generated during Ultra causes a continual stressful environment in our home. Throughout its duration, we are subjected to the full sonic blast of the concert. The sound permeates our living space and, as a result, our home becomes virtually uninhabitable. The volume generated by the multitude of speakers on the concert's seven sound stages is unbearable and makes it impossible to focus on any activity — whether it be work or play.... -- The noise generated by the actual concert would seem bad enough but the anxiety and stress cause by that event is heightened by the racket generated during the three weeks required to transform Bayfront Park into a concert venue and the two weeks needed after the event to tear the stages back own. That work, both day and night, produces a lot of loud construction noise which adversely impacts daily life and frequently results in loss of sleep. -- Prior to the concert, we are subjected to frequent "sound checks," which occur intermittently without waming and are loud enough to startle. -- The noise generated by the three-day Ultra concert, along with that generated during weeks of setting up/tearing down the concert's stages, has a deleterious effect on the quality of our life and has the potential to damage our physical and mental health due to the accompanying loss of sleep, anxiety, and stress. -- Prisoner at my home for 3 days: The only times I can leave my apartment is to walk my dogs (which I have no other choice!). When doing so, I needed to request company of a 50 Biscayne guard, only because there are weirdos floating around everywhere (wish you had seen "The Revenant" men). The sad thing is that they usually don't leave immediately after Ultra ends, they are left roaming our streets for approximately 2 weeks later. -- Loud noise: It comes from everywhere, through my windows and walls. The music is so loud my windows shake consistently, caused panic attacks on my pinscher with an aftermath of almost 2 weeks after Ultra ends. Page 5 of IS DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for items) RE.4 on _ 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 -- Sick -making urine smell: For weeks after Ultra ends there is a terrible urine smell in the area where the latrines are located. The terrible smell is impregnated and you can't walk close to it without getting nausea. Great for the tourists! -- My property value has decreased 18% which is prohibiting me from selling and I have become increasingly frustrated with the lack of respect and consideration for the great community we have built in Downtown. C. Excessive Noise From Ultra Constitutes A Legal Nuisance Which Cannot Be Legislatively Authorized. 1. Florida Courts will enjoin the operation of a nuisance that interferes with residents' health, and quiet enjoyment of their homes and property. Under Florida law, "[a]nything that annoys or disturbs enjoyment of private property rights, including excessive noise, is a legal nuisance and may be restrained." For nearly a century, the Florida courts have recognized their responsibility to protect residents from being subjected to excessive levels of noise by outside sources, be they governmental or private activities. In Bartlett v. Moats, 120 Fla. 61 (1935), for example, the Florida Supreme Court upheld an injunction against the very same kind of outdoor entertainment that Ultra inflicts on Downtown residents. The court enjoined an "open air dance pavilion" that was located in the middle of a residential neighborhood, with loud music and dancing long into the night. The defendant began operating "an open air dance pavilion at which a large number of patrons congregated to dance and drink, with music from a band or orchestra, beginning at 9 pm and continuing until 1 and 2 o'clock the next morning." The court's description of the illegal nuisance in Bartlett could well have been written about Ultra: The noise made by the orchestra, patrons, dancers, and cars is continuous from the time the orchestra begins to play until it stops (from 9 pm to 1 or 2 am) and can be heard plainly in the homes of the plaintiffs to such an extent that it seriously affects the comfort of the plaintiffs in their homes and prevents plaintiffs from sleeping at the time when it is customary for them to retire. The establishment and maintenance of the said ballroom and dance pavilion greatly depreciates the value of the plaintiffs' homes for residential purposes and prevents the sale thereof at their real value. Id., at 64. The Court added: That mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party Page 6 of IS DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07125/2019 . City Clerk Mayor and City of Miami Commissioners June 26, 2019 subjected to it to the preventive remedy of the court of equity is thoroughly established. Id., at 67. The Florida courts' long-standing protection of the sanctity of residents' right to quiet enjoyment is rooted in United States Supreme Court precedent. As recently as 1989, the Supreme Court held: Despite respondent's protestations to the contrary, it can no longer be doubted that government "ha[s] a substantial interest in protecting its citizens from unwelcome noise. . . . This interest is perhaps at its greatest when government seeks to protect "the well-being tranquility, and privacy of the home," ... but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets and parks from excessive noise. Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989). In City of Miami v. City of Coral Gables, 233 So.2d 7 (Fla_ 3d DCA 1997), the Third District Court of Appeal held that courts can and should restrain a nuisance caused by a neighboring property owner. The Court affirmed the trial court's injunction against a City of Miami incinerator that caused tangible harm to nearby Coral Gables residents, and held: `This court recognizes that the law of private nuisance is bottomed on the fundamental rule that every person should use his own property as not to injure that of another `Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property, or which renders its ordinary use or occupation physically uncomfortable, is a `nuisance' and may be restrained.' 233 So.2d at 9, quoting Jones v. Trawick, 75 So.2d 785 (F1a.1953). The harms inflicted on the injured residents from the smoke, ash, and smells from the incinerator in City of Miami v. City of Coral Gables, are clearly analogous to the harms inflicted by Ultra's excessive noise levels: The record on appeal contains testimony from citizens participating in this law suit as to smoke, odors, ash and soot falling on their properties. They further testified as to the inconvenience of being awakened by noxious smells from the smoke and burning garbage being emitted by the incinerator. The evidence shows that ashes and other particulate matter fell upon their persons and property, and Page 7 of 18 DUBBIN & KRAVSCz, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk Mayor and City of Miami Commissioners June 26, 2019 some expressed having experienced physical discomfort therefrom. The numerous tests conducted, treated infra, graphically demonstrated the degree of severity with which this incinerator was violating their property rights or their persons. We commend the chancellor when he stated in his final judgment: `This court will not stand idly by while citizens are required to endure the existence of a nuisance until such time as those responsible for remedying it discharge their responsibilities. `* * * (The Court finds) that the operation of the City of Miami's incinerator No. 2, located in Coconut Grove constitutes both a public and private nuisance; and that continued operation of the incinerator would constitute a continuing nuisance to the plaintiffs.' Id., at 10. Similarly, in Lee v. Florida Public Utilities Co., 145 So.2d 299 (Fla. Is' DCA 1962), the First District Court of Appeal held the following evidence of smoke and noise pollution "made out a prima facie case of nuisance:" The fumes from the fuel used to power these units are emitted from the openings in the top of the boxcars through relatively short smoke stacks. The noise resulting from the operation of these mobile units is so intense that plaintiff is unable to transact business with his customers in a normal fashion, for in order to communicate it is necessary that they shout at each other in order to be heard. The noise is .so loud that plaintiff and his family are unable to sleep at nights, which condition has had an adverse effect upon their health. At certain periods of the day and night the odors from the fumes exhausted by the mobile units become extremely strong and highly noxious. The operation of the generating units causes the surrounding land to vibrate in such a marked degree as to shake the .springs of the beds on which plaintiff and his family sleep, as well as rattle the windows in the house and the dishes in the cupboard. 145 So.2d at 300-01 (Emphasis supplied). 2. The City Commission may not authorize activities that constitute a legal nuisance. Under Florida law, the City Commission does not have the legal authority to approve an activity such as Ultra that would create a nuisance to City residents. As the courts have repeatedly held: "An activity can constitute a judicially abatable nuisance notwithstanding full compliance with either legislation or administrative rule." Lake Hamilton Lakeshore Owners Ass'n, Inc., v. Neidlinger, 182 So.3d 738, 741 (Fla. 3d DCA 2015)("enjoining commercial airport tours that generated noise levels up to 100-110 dB, in lake surrounded by homes, "which Page 8 of 18 DUBBIN & KRAVETz, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (30S) 371-4700 Submitted into the public record for item(s) REA on 07125/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 noise levels are extreme and create an unreasonable loss of enjoyment for numerous residents" around the lake.); Ervin v. Alvarez, 752 So.2d 1261 (Fla. 2d DCA 2000)(noise created by defendant's chickens constituted a nuisance and would be enjoined even if defendant limited the number of chickens in compliance with the county ordinance). The Third DCA, in State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658, 662 (Fla. 3d DCA 1974)(on rehearing) agreed that "a given activity may constitute a judicially abatable nuisance notwithstanding its compliance with a municipal ordinance." In short, no vote of this body — not 3-2, not 4-1, and not 5-0 — may override the residents' rights under Florida law to be protected against a legal nuisance such as Ultra. If the Commission votes to approve the Ultra agreement, knowing it will allow for sound at levels that cause harm to the health, quiet enjoyment, emotional well-being, and property of the Residents and others who live Downtown, litigation will surely and immediately ensue. III. Approval of the Ultra Agreement Would Violate the City Charter The Proposed Ultra Agreement is also illegal because it would violate Sections 29-A, 29- B, and 3(f)(iii) of the City of Miami Charter. Those provisions require competitive bidding, independent appraisals, and a return to the City of fair market value, as a precondition for the City to lease or convey any interest in Bayfront Park to a private entity. Unfortunately, the City has never complied with these requirements of the Charter, and the current proposal ignores and violates the Charter as well. A. Governing Charter Provisions. Charter Sections 29-A and 29-13, and 3(f)(111) prohibit the Commission from voting in favor of the Proposed Ultra Agreement without first following these Charter requirements. The proposed Ultra agreement plainly violates all of these provisions. Any vote by the Commission purporting to approve the agreement is void. Any Commissioner voting "yes" would violate the Charter. 1. Charter Section 29. Charter Section 29-A(b) provides: Sales and leases of real property; prohibition. Except as otherwise provided in this section, there shall he no sale, conveyance, or disposition of any interest, including any leasehold, in real property owned by the city, the department of off- street parking, or the downtown development authority, unless there has been prior public notice and a prior opportunity given to the public to compete for said real property or interest. Any such sale, conveyance, or disposition shall be conditioned upon compliance with this section.... Further, no right, title, or interest shall vest in the transferee of such property unless the sale, conveyance, or disposition is made to the highest responsible bidder ... . Page 9 of 18 DUBBIN & KRAVEtZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on, 07/25/2017 , City Clerk Mayor and City of Miami Commissioners June 26, 2019 Charter Section 29-B of the Charter also requires competitive bidding, and imposes the additional requirement that any lease of public land return fair market value to the city. It is worded carefully to prohibit the Commission from `favorably considering" any transaction that does not return fair market value to the city, and that does not result from competitive bidding: Notwithstanding any provision to the contrary contained in this Charter of the City Code, and except as provided below, the city commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed sale or lease. The city commission is also prohibited from favorably considering any sale or lease of city -owned property unless (a) there shall have been, prior to the date of the city commission's consideration of such sale or lease, an advertisement soliciting proposals for said sale or lease published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees .... 2. Charter Section 3(f)(iii). In addition, Section 3(f)(iii) of the Charter governs disposition of the city's waterfront property, which obviously includes Bayfront Park. It requires observance of all other Charter provisions, as well as "reasonable public access to the water and reasonable public use of the property," "a fair return to the city based on two independent appraisals," and observance of all Code procurement requirements. If these requirements are not satisfied, the agreement would have to be approved in a referendum. Section 3(f)(iii) provides: See. 3. Powers. The City of Miami shall have power to: (a)—(e) – [Reserved] (f) Acquisition and disposition of property and services: (iii) To lease or contract with entities for the management of any of the city's waterfront property, but only in compliance with the other requirements of this charter and on the condition that: (A) the terms of the contract allow reasonable public access to the water and reasonable public use of the property, and comply with the other charter waterfront setback and view -corridor requirements; and Page 10 of 18 DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 (13) the terms of the contract result in a fair return to the city based on two independent appraisals; and (C) the use is authorized under the then -existing master plan of the city; (D) the procurement methods prescribed by ordinances are observed; (E) the contract does not exceed five years and does not contain an automatic renewal or termination penalty. Any such lease or management agreement or proposed extension of modification of an existing such lease or management agreement which does not comply with each of the above conditions shall not be valid unless it has first been approved by a majority ofthe voters ofthe city. Needless to say, the City has not followed the requirements of any of the applicable Charter provisions in connection with the Ultra agreement. The proposed agreement does not allow reasonable public access to the water or reasonable public use of the property, and does not result in a fair return to the City based on two independent appraisals. Further, in direct violation of Section 3(f)(iii)(E), the proposed agreement would automatically renew. The only way the City could approve the proposal consistent with Section 3(1)(iii) would be to first hold a referendum in which a majority of the voters approved the measure. That has not been proposed by the City or by Ultra. 2. It is a Legal Fiction that Proposed Ultra Agreement is a "Revocable at Will License" and Not a Lease or Interest in Land Subject to Charter Sections 29-A 29-13, and 3(f)(iii). The Proposed Ultra Agreement is subject to the requirements of the Charter because it constitutes a lease of, or a conveyance of an interest in, public waterfront land. In order to avoid the Charter requirements, the Administration has taken the position that the current proposal is a "revocable at will license," not a lease or interest in City Iand. The proposed agreement included in the City Commission's agenda packet is titled "Revocable License Agreement," and uses that phrase liberally, even self-consciously, throughout the document. However, no "magic words" can transform this agreement into something it is not. As the Third DCA held in a similar case: Of course, the mere fact that an agreement is entitled a "license" or contains a conclusory provision that the parties have a relationship of licensor and licensee, is not determinative. Rather, the proper characterization of the agreement is discerned by the actual terms, conditions, rights and obligations expressly set forth in the agreement." Ryan v. National Marine Mfrs. Assn, 103 So.3d 1001, 1005 and note 5 (Fla. 3d DCA 2012), citing Jabour v. Toppino, 293 So.2d 123 (Fla. 3d DCA 1974); and Napoleon v. Glass, 229 So.2d Page 11 of 18 DUBBIN & KRAVETL, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 883 (Fla. 3d DCA 1969). The fiction the Administration is attempting to employ has been firmly rejected by the Third DCA, which controls legal precedents in Miami -Dade County. In Homestead -Miami Speedway, LLC v. City of Miami, 828 So.2d 411 (Fla. 3d DCA 2002), rejected this fiction and held an almost identical arrangement for motor racing over a three-day period in Bayfront Park was a lease and not a "license." The Court held that the City's attempt to enter into such an agreement without following the Charter's competitive bidding, appraisal, and fair market rent requirements was void. That decision is binding on this Commission, which would violate the City Charter to approve the current Ultra proposal. In Homestead Speedway, the Court invalidated an agreement between the City and Raceworks, LLC to allow auto racing in Bayfront Park for three days each year, because the City failed to follow the Charter requirements. It held: "We affirm the trial court's determination that the agreement was a lease, not a license, and as such should have been competitively bid as required by the City Charter." 828 Sold at 413. The Court elaborated: The original agreement between the City and Raceworks was not a license because a license is revocable at will and cannot be assigned.... The agreement at issue here was assignable and could not be revoked without notice of default and the opportunity to cure. Additionally, Raceworks was given the exclusive use of Bayfront Park for at least three days each year for fifteen years. Since the agreement between the City and Raceworks was a lease, it fell within the purview of section 3(f)(iii) and section 29-A(D) of the City Charter.... The agreement at issue here gave Raceworks in effect a sub -lease for Bayfront Park, part of the City's interest in waterfront property. Thus, the original agreement to hold races in Bayfront Park should have been the result of competitive bids. The trial court therefore correctly held that the city was required to follow competitive bid procedures and that any contract for the use of the City's waterfront property entered into without complying with those procedures was void. Homestead Speedway, 828 So.2d at 412-13 (Emphasis supplied).2 Under the Homestead Speedway case, the fact that Ultra would have the right to control a massive defined area in Bayfront Park for over thirty (30) days, with the express right to "close the park to the public" for 14 days, and the right to receive notice and a right to cure for any possible termination effort by the City for cause and over 300 days notice and a unanimous 5-0 The Charter provisions at issue in Homestead Speedway, Sections 29-A and 3(f)(iii), are materially identical to the Charter provisions applicable today. Page 12 of 18 DUBBIN & KRAvETz, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Mayor and City of Miami Commissioners June 26, 2019 Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk vote to terminate without cause, makes any argument that the Proposed Ultra Agreement is a "terminable at will license" and not a lease or interest in City property utterly specious. Exclusivity. The lessee in Homestead Speedway had the right of exclusive use of the Park for three (3) days each year. Under Section 2.16 of the Proposed Ultra Agreement, the "Use Period" for Ultra is thirty (30) days each year, and Ultra has exclusive use of the Park for at least fourteen (14) days each year: 2.16. USE PERIOD means the Thirty (30) day period inclusive of load in and load out and ancillary preparations and removals. In no event will the entire Property be closed to the public for more than fourteen (14) days. (Emphasis supplied). Section 3.2 of the proposed agreement repeats that "In no event will the entire property be closed to the public for more than fourteen (14) days. If three days of exclusive use in Homestead Speedway is sufficient exclusivity to eliminate the argument that the agreement there was a mere "license," it is nonsensical for the Administration to pretend 14 days of exclusivity, or the 30 days of practical exclusivity for Ultra, is a mere license and not a lease or interest in the land under the Charter as the Third DCA held in Homestead Speedway. Notably, while the proposed Ultra agreement contains several misleading headings professing to make it "non-exclusive," the provisions in fact allow Ultra to completely control the Property and exclude the public at its will. The substantive provisions, which any court will scrutinize despite the misleading heading, makes it clear that Ultra's possession will indeed be exclusive for the fourteen or thirty days covered: 4,11 Non -Exclusivity: This Agreement confers no exclusive possession of the Property, provided, however, the City agrees not to enter into another License or Use Agreement on this Property that would interfere with Licensee's ability to operate for the Permitted Uses on the Property according to the terms of this Agreement. The City agrees not to use or permit others to use the Property under the control of the City during the Use Period except as mutually agreed by the City and Licensee. Licensee recognizes and agrees that the Property is a public site and during the entirety of the Use Period, the Licensee will cooperate with the City to maximize public access to the Property. This will not be construed to prevent the Licensee from restricting access to the Event. Page 13 of 18 DUBBIN & KRAvETz, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk . Mayor and City of Miami Commissioners June 26, 2019 (Emphasis supplied). There can be no serious argument that insofar as the public's right of access to Bayfront Park during the Ultra events, Ultra is in complete control.3 Revocable at Will. The agreement in Homestead Speedway was not a "revocable at will license" because it could not be revoked without notice of default and an opportunity for the lessee to cure any defect. Section 3.4.1 of the Proposed Ultra Agreement is identical. In order for the City to terminate with cause, it must provide Ultra with written notice of any "material breach" and an opportunity over a thirty day period to cure the breach before it can terminate. Under Homestead Speedway, this means the Ultra agreement is not terminable at will. Even more egregious when considering the Administration's argument is that in order for the City to terminate the Proposed Ultra Agreement without cause, Section 3.4.2 requires 305 days notice and a unanimous vote. It even specifies that "rive of the five Commissioners must vote in favor of termination." The 305 day notice period clearly contravenes the Third DCA holding in Homestead Speedway. And the "unanimous," "five of the five commissioners" requirement is nothing short of absurd. If the City can become obligated to Ultra with a 3-2 vote, but can only terminate with a unanimous vote of all five commissioners, it is not "terminable at will." The. Third DCA in Homestead Speedway cited other Florida appellate decisions which held that agreements to allow the use of public property similar to the Proposed Ultra Agreement are considered "leases" of, or interests in public property, such that competitive bidding laws applied. See Outdoor Media of Pensacola, Inc. v. Santa Rosa County, 554 So.2d 613 (Fla. 1st DCA 1989) (county's granting exclusive right to use right of way was a lease subject to competitive bidding procedures); Randall Indus., Inc. v. Lee County, 307 So.2d 499 (Fla. 2d DCA 1975) (license agreement which gave taxi company exclusive use of airport parking spaces was a lease which required competitive bidding).4 In Outdoor Media, Santa Rosa County granted a sign company "an exclusive right to use county rights of way for placing signs paid for by" the company's customers which included a plate naming the sponsor. A competitor sued on the ground that state law required counties to hold competitive bidding before selling or leasing any real or personal property. The court cited Florida Supreme Court precedent that "defined a lease as `a conveyance by the owner of an estate to another of a portion of his interest in the land for a term less than his own [which passes] a present interest in the land for the period specified."' 554 So.2d at 615, quoting DeVore v. Lee, 158 Fla. 608, 30 So.2d 924, 925 (1947). The agreement also provides in some sections that the City will have "access" to the Property during the Use Period, but it is clear that the City's "rights" in that regard are only to "inspect the property" or to ensure that Ultra is complying with its obligations, as a "licensee." See, e.g., Section 31. The City's "access" for these purposes does not obviate Ultra's exclusivity. 4 These parenthetical quotes are directly from the Third District's decision in Homestead Speedway, 828 So.2d at 413. Page 14 of 18 DUBBIN til KRAVETZ, LLP 1200 ANASTASIA AVENUE . SUITE 300 • CORAL GABLES, FLORIDA 33134 . TELEPHONE (305) 371-4700 Submitted into the public record for items) rREA on 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 The court in Outdoor Media also quoted Black's Law Dictionary, and found the billboard transaction met the traditional definition of a lease rather than a license: A lease is defined in Black's Law Dictionary § 829 (51h ed. 1979) as a Contract for exclusive possession of lands or tenements for determinate period. Contract for possession and profits of lands and tenements either for life, or for certain period of time, or during the pleasure of the parties... Conveyance of interest in real property for specified period or at will. Conveyance or grant of estate in real property for limited term with conditions attached. 554 So.2d at 615. In contrast, it cited Black's definition of "license:" "A license is not a contract between the state and the licensee, but is a mere personal permit. License, with respect to real property, is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, licensee any title, interest, or estate in such property." Id., at 615. Based on these definitions, the court in Outdoor Media held that the County's grant of an exclusive right to the advertising company to place signs on county rights of way for a three year period, at a fixed price, and with the right to renew for an additional three year period, was a lease, not a license: This right under the agreement comports with the generally accepted definition of a lease as contemplated by the Supreme Court in DeVore, and by Black's Law Dictionary. That is, by agreement the county has passed a portion of its interest in the rights of way for a specified period, in that [the advertising company] is authorized to use county land for the placing of signs. In other words, [the company] has been granted more than a privilege to go on the land. Instead, it has been granted use of a portion of the land for the duration of the agreement. Id., at 615 (Emphasis supplied). The Third District in Homestead Speedway, and the First District in Outdoor Media, also cited Randall Indus_, Inc., v. Lee County, 307 So.2d 499, 501 (Fla. 2d DCA 1975). In Randall, the Second DCA held the county's grant of an exclusive right to use certain parking areas at the airport for a taxicab and limousine stand, which was called a "license agreement and space lease," nevertheless constituted a lease of county property that was subject to the competitive bidding requirements of state law. In Ryan v. National Marine Mfrs. Assn, 103 So.3d 1001 (Fla_ 3d DCA 2012), the Third District analyzed an agreement by the City of Miami Beach allowing the national trade association for the recreational boating industry (NMMA) to use a City -owned, private parking lot to park several trailer tractors during the international boat show. It held the agreement conveyed a "controlling interest in real property" for purposes of a state lav providing that a Page 15 of 18 DUBBIN & KRAV=, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s)__ REA on 07/25/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 person with such an interest is not liable for damages when a trespasser is injured on that property when under the influence of alcohol. In Ryan, even though the document was entitled "Temporary License and Use Agreement," the Third District held the following elements compelled the conclusion that the agreement fit the textbook definition of a "lease" rather than a "license," such that the grantee/lessee had "a controlling interest in real property." It cited the following factors: ■ The agreement describes a particular piece of property, which is identified by exact address and is described as "the Premises." ■ The agreement is for a set term beginning on a date certain and ending on a date certain, referred to as "the Term" of the Agreement. ■ The parties agreed "this agreement constitutes a month -to month agreement" ■ NMMA was required to pay a "security deposit" at the time of execution of the agreement. ■ NMMA was required to "quit and deliver the Premises ... at the end of the term ■ NMMA agreed "that it will occupy and maintain the premises in a good condition" and "will not commit, or suffer to be committed, any waste of or on the Premises." ■ NMMA agreed that it "will not assign this Agreement, or any interest therein, and "may not sublease without the prior written agreement" of the City. ■ NMMA was required to "properly maintain" and "be responsible" for all automobiles on the Premises at all times during the Agreement. ■ NMMA agreed that the City "shall have the right to enter upon the Premises at such times and at such places during reasonable business hours, for the purpose of inspecting the Premises, or for any reason whatsoever." ■ NMMA was required to provide a minimum of one million dollars in liability and personal property insurance coverage "related to NMMA's possession of the Premises." ■ In the event NMMA failed to perform any of the terms and conditions of the Agreement, the City was required to give NMMA a five-day written notice to cure a default. In light of these provisions, the Third DCA concluded that the grantee/lessee had a far more extensive interest than the Black's Law Dictionary definition of a license. "It is clear from these provisions that NMMA was given far more than a revocable permission or privilege to enter upon the property." The Court concluded: "The Agreement far more closely approaches the Black's Law Dictionary definition of a "lease," i.e. "[a] contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration." 103 So.3d at 1004-05. As the Commissioners can readily observe from the Agenda materials, virtually all of the elements cited by the Third District in Ryan to hold that the City of Miami Beach had conveyed a controlling interest in land, and not a mere license to NMMA, are found in the Proposed Ultra Agreement. Page 16 of 18 DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) RE.4 on 07125/2019 City Clerk Mayor and City of Miami Commissioners June 26, 2019 In short, there is no credible argument that the Proposed Ultra Agreement is a "revocable at will license" when the Third District held the agreement in Homestead Speedway was a lease, or a conveyance of the City's interest in Bayfront Park, nor is there any credible argument that Sections 29 and 3(f)(iii) of the Charter do not apply. B. The City Administration's Inconsistency Regarding the Procedure for Approving Ultra Belies the Impropriety of the Ultra Proposal. As noted above, the City Administration has been inconsistent in its position about the process for considering Ultra's desire for the Bayfront Park location for its festival. In prior years, the Administration justified ignoring the Charter requirements relying on Section 18-85(a) of the City Code to avoid competitive bidding, and requiring a four -fifth's vote. Today, after this Commission unanimously rejected Ultra in Bayfront Park only a few months ago, the Administration is now suggesting approval is possible with a smaller majority, only three votes. While the Administration has not explained the discrepancy, in reality the matter is controlled by the Charter. After the 2014-2018 Ultra agreement expired, and the City Manager proposed a new agreement with Ultra for 2019 and beyond, the Administration took the position that the Charter didn't apply, but that the proposed new Ultra agreement could be approved by a four-fifths vote under Code Section 18-85(a). The Downtown Residents argued the Charter, not Section 18-85, controlled, but the City administration attempted to proceed under the four-fifths vote provision of Section 18-85. On July 18, 2018, the City Manager's Inter -Office Memorandum and the Clerk's Notice of Public Hearing cited the four-fifths vote requirement for the resolution to approve the proposed 2019 Ultra agreement. The Manager's Memorandum stated: The BPMT respectfully requests your approval and action of the Miami City Commission by a 4/5ths affirmative vote, after an advertised public hearing ratifying, approving, and confirming the City Manager's (and the Bayfront Park Management Trust's Executive Director) recommendation, and finding that competitive bidding/negotiation methods are not practicable or advantageous to the City of Miami ("City"), pursuant to Section 18-85(a) of the Code of the City of Miami, waiving the requirements for said procedures; authorizing the City Manager to enter into a Use Agreement, in substantially the attached form, with the BPMT and Event Entertainment Group, Inc., a Florida for profit corporation, subject to City Commission approval. Similarly, the Clerk's Notice of Public Hearing stated that the Commission would consider a resolution Page 17 of 18 DUBBIN & KRAVEw, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Mayor and City of Miami Commissioners June 26, 2019 by a four -fifth's affirmative vote after an advertised public hearing, ratifying, confirming, and approving the City Manager's recommendation and written findings, pursuant to Section 18-85 of the Code of the City of Miami, Florida, as amended; waiving the requirements for competitive sealed bidding methods as not being practicable or advantageous to the City of Miami ... to enter into a Bayfront Park Use Agreement with Event Ente3rtainment Group, Inc. ("User) for the presentation of an annual Ultra Music Festival, ... . Nevertheless, the Administration evidently takes the position that the current Ultra proposal can be approved by a simple majority vote. It has not explained the discrepancy between its past position and its current position, which in either event is irrelevant because the City must comply with the Charter in order to allow Ultra to lease Bayfront Park for its festival. Conclusion. The proposal should be defeated on policy and legal grounds. Approval will invite costly and protracted litigation, which would also threaten substantial financial risk for the City. If the Commission votes to return Ultra to Bayfront Park on the terms proposed, it would result in massive disruption, destruction of residents' quiet enjoyment of their homes, and cause substantial injuries to the health and property of the residents — a legal nuisance which Florida and U.S. Supreme Court cases hold can and should be enjoined by the courts. A vote of approval would also violate Sections 29 and 3(f)(iii) of the City Charter, and undermine the protection of public lands which City residents have demanded in the fundamental, bedrock law of the City. cc: Emilio Gonzalez, City Manager Victoria Mendez, City Attorney Todd B. Hannon, City Clerk Respectfully, aMk QA. Samuel J. Dub in, P.A. J Dubbin & Kravetz, LLP Page 18 of 18 DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk . EXHIBIT 1 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk D RING Brooks Acoustics Corporation CH 49 N. Federal Hwy Pompano Beach, FL 33062 754.229.1450 Mr. Itai Benosh 21 May 2018 Board Member and Treasurer PJ2018-1252-1-01 50 Biscayne Condominium Association, Inc. Treasurer, Downtown Neighbors Alliance, Inc. 50 Biscayne Boulevard Miami, FL 33132 Subject: Ultra Music Festival Sound Survey Tests Dear Mr. Benosh: As requested, Brooks Acoustics Corporation (BAC) has conducted an acoustical engineering sound survey to measure the sound levels that are emitted by the Ultra Music Festival (Ultra) located at Bayfront Park near the 50 Biscayne Condominium and other residential buildings that are part of the Downtown Neighbors Alliance. Sound monitoring was conducted before, during and after the Ultra events, from the evening of Thursday, March 22, 2018 to the morning of Tuesday March 27, 2018. The Ultra event was open to the public from Friday, March 23 to Sunday, March 25. However, considerable activity occurred in Bayfront Park and the surrounding area for many days before and after, including construction of the stages, sound tests and tear down of the festival equipment afterward. For this study, continuous sound monitoring at three (3) separate outdoor locations was conducted in the 50 Biscayne residential building. These included the Pool Deck (10th floor), the Unit 2802 balcony, and the Roof (55th floor). In addition, short term tests at various indoor locations were conducted during the Ultra Festival operating hours, and also when the Festival was not operating for direct comparison. These included the Pool Deck informal party room, Unit 2802 dining room, and several management offices. A focus of the testing was to measure broadband sound, in particular the low frequency (bass, thumping) sounds that are emitted by the multiple electronic dance music (EDM) disk jockeys (DJs) at the Festival. During the entire time that the Ultra Music Festival was operating, the rhythmic, thumping bass and drum sounds from the venue at Bayfront Park were plainly audible, distinctly noticeable and highly intrusive above the ambient background. The sound survey results show that the musical devices in use at the Ultra Music Festival events generated and emitted sound that can and did "disturb the quiet, comfort or repose of persons in any dwelling, hotel or other type of residence." BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 2 Importantly, the objective sound measurements obtained during this survey demonstrated that the low frequency rhythmic bass and drum thumping sounds generated by the Ultra events constitute a substantial intrusion which penetrates well above the ambient background. The objective data show that the disruptive nature of these significantly intrusive bass sounds can disturb the peace, quiet and comfort, and consequently seriously degrade the quality of life, and cause negative health effects for residents, and minor vibration induced damage to the buildings in the proximity of the Ultra events. The sound survey tests are summarized herein Sound Level Standards Communitv Noise Standards Many communities have determined that excessive noise is detrimental to the quality of life of their citizens. Therefore, they have enacted standards which protect the health, safety and welfare of their community with regard to noise. An example of such a standard is given by the World Health Organization (WHO).' The sound level limits in the WHO guidelines have also been adopted by many communities in the United States. The WHO guidelines state that to protect a majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and outdoor living areas should not exceed 55 dB LAeq (55 dBA average level) for a steady continuous noise. At night, sound pressure levels at the outside facades of the living spaces should not exceed 45 dB LAeq (45 dBA average level) and 60 dB LAmax (60 dBA maximum), so that people may sleep with bedroom windows open. In addition, standard criteria have been developed for the design and practice of outdoor concert venues.2 These criteria state that to minimize the impact on outdoor concert neighbors the occasional sound interference from the concert should not exceed the ambient background sound level by more than 5 dB. If this difference exceeds 15 dB, then the concert facility will be generally audible with widespread complaints. Hearing Conservation Standards The US Centers for Disease Control (CDC) through the National Institute for Occupational Safety and Health (NIOSH) has developed standards for limiting noise exposure that can cause hearing damage. The NIOSH recommended exposure limit (REL) for occupational noise exposure is 85 decibels, A -weighted, as an 8 -hour time -weighted average [85 dBA as an 8 -hr TWA].3 It is well known that hearing damage is a cumulative effect that occurs for exposure to high sound levels over a period of time. The level of the sound exposure is related to the amount of time before damage occurs. The higher the level, the shorter the time before damage. According to NIOSH, the amount of time is cut in half for every 3 dB increase in sound level. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Brooks Acoustics Corporation 49 N. Federal Hwy Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 3 Health Effects Standards • Y L High levels of noise are known to be biological stressors. Numerous studies show that additional negative health effects can be caused by the high noise levels produced by the Ultra events. These -0 = LU U negative effects include sleep deprivation, hypertension, cardio -vascular disease, and other adverse a outcomes .a, s v v o B o The sound levels which can cause these negative effects are generally less than those which cause' N hearing damage, but greater than those that cause annoyance. There is sufficient evidence to show o that continuous sound levels above 70 dBA can cause hypertension and ischemic heart disease. -0 0 : v C Noise Induced Vibration Standards Ln ° Criteria were developed by NASA to assess the potential of noise induced damage to housing structures due to rocket takeoffs.6 These criteria compare measured noise levels to a set of criteria curves to determine the vibration induced in housing structures ranging from windows to walls to floors. Noise induced vibration can range from annoying rattles to levels which may cause minor damage to buildings. Intrusiveness and Acceptability Standards Many recent studies using the science of soundscape analysis have been conducted. These have determined that what people find acceptable in terms of sound depends on the context of that sound to their living situation, and the meaning that it may have to their lives.' If people think that a given sound is appropriate to the context and provides meaning, then it is considered to enhance their well- being and be acceptable. If not then the sound is out of place and it will be considered intrusive. For example, a hand-held electric drill or saw (-100 dBA) is considered acceptable on a construction site, but not in a quiet restaurant dining room. A normal conversation nearby (-65 dBA) is considered acceptable in a coffee shop, but not in a library. Generally speaking, activities which produce high levels of sound that are out of place to the context which they are in will be considered intrusive, and will likely cause annoyance. Guidelines for community noise / edited by Birgitta Berglund, Thomas Lindvall & Dietrich H. Schwela. Geneva: World Health Organization. 1999. 2 Hot topics in noise. (Interdisciplinary Hot Topics) ASA 141st Meeting, Chicago, June 2001, J. Acoust. Soc. Am. 109 (5, pt. 2), 2424.2000 3 US Dept. of Health and Human Services (NIOSH) Publication No. 98-126.1998 4 Noise Exposure and Public Health, Willy Passchier-Vermeer and Wim F. Passchier, Environmental Health Perspectives Vol 108, Supplement I, March 2000 5 Babisch. Stress hormones in the research on cardiovascular effects of noise. Noise Health 5:1-11.2003. 6 Hubbard & Shepherd. J. Acoust. Soc. Am. 89 (6).1991 & NASA TM -83288 ' Brooks, Schulte-Fortkamp, Voigt & Case. Exploring Our Sonic Environment through Soundscape Research & Theory. Acoustics Today. Winter 2014. Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 4 So the tests conducted on between 22 March and 27 March had a focus to determine whether or not generated sounds from the Ultra events were contained sufficiently within Bayfront Park such that v they would not disturb the quiet, comfort or repose of persons in any dwelling, hotel or other .� W type of residence. u These tests had a purpose to determine the level of noise intrusion created by the Ultra events. v = °� Recent advances in technology have enabled the measurement of the noise intrusion of outdoor v N entertainment events on communities. This capability is discussed in detail in the Data Analysis 'o N section of the report, below. cu c Further, the tests also were conducted to determine if the Ultra events could cause adverse hearing N 0 v o or health outcomes. Sound survey test procedure A sound survey was conducted at locations in the 50 Biscayne Condominium building, directly across Biscayne Boulevard from the Ultra event site between the evening of Thursday, 22 March 2018 and the morning of 27 March 2018. The surrounding area includes residential uses. These surveys were conducted by Bennett Brooks of BAC. Field measurements of sound levels were performed in accordance with the requirements of accepted standard methods of environmental sound measurement. Two types of sound survey tests were conducted. Continuous long term sound tests were conducted using sound level analyzers which were installed at three (3) locations for this survey. The long term tests measured and logged the sound level characteristics and the recorded the sound at those locations for periods of time which ranged from about 3'/2 to 4'h days during the Ultra event. The other type of tests were short term sound surveys at mobile locations at and around the 50 Biscayne Condominium. For those short term tests, a handheld sound analyzer was transported to each of four (4) locations and mounted on a tripod. Sound test records at these location were made for time periods which ranged from about 2 to 60 minutes. The long term and short term sound survey test positions were selected at locations in the 50 Biscayne building near the Ultra event venue which fairly represent the baseline and event sound with respect to nearby residences. All of the test locations were on the east side of the building facing Bayfront Park, the venue for the Ultra events. The long term survey test positions were located as follows: L1. On the balcony of Unit 2802 L2. On the roof (55th floor) L3. On the pool deck near the informal party room Brooks Acoustics Corporation 49 N. Federal HIM Pompano Beach, FL 33062 BAC PJ2018-1252-L01 - 50 Biscayne - Ultra sound survey Page 5 The long term survey test positions bracket the various levels in the building where residents live. The pool deck on the 10th floor represents the residents on the lower levels just below and above that height. The position on the Unit 2802 balcony represents the mid-level residents, and the roof position represents the residents on the upper levels. The short term survey test positions were located as follows: 1. In the living / dining room of Unit 2802 2. In the Management offices of the building (Blanca's office) 3. In the Management offices of the building (Tish's office) 4. In the informal party room All test locations directly faced the Ultra event venue. Short term Position 1 (Unit 2802 living / dining room) and Position 4 (informal party room) were directly adjacent to the corresponding long term survey locations, for a direct comparison between the outdoor and indoor noise exposure from the Ultra event. The microphone height at each test position was 5.3 feet. Photographs of the 50 Biscayne building, showing its relation to the Bayfront Park site of the Ultra events, and of the test site and survey positions are given in Figure 1. The sound tests were conducted between the evening of Thursday, 22 March 2018 and the morning of 27 March 2018. The temperature at 4:12 pm, 23 March 2018 was 71 degrees F, with a relative humidity of 37%. The wind was variable at 0 to 3 mph at each outdoor (long term test) microphone location. The sky condition was partly cloudy. The temperature at 12:55 pm, 24 March 2018 was 72 degrees F, with a relative humidity of 45%. The sky condition was partly cloudy. Temperatures at the indoor locations generally ranged from 71 to 80 degrees F. Microphone windscreens were used to minimize the effects of wind on the test. Wind conditions were monitored using an anemometer. The wind was calm or light, and within acceptable speeds at the microphone locations during the test surveys. The wind speed started to increase on 24 March, so two of the long term test monitors were relocated to avoid the wind. About 2 pm, 24 March long term test Monitor 1 on the Unit 2802 balcony was moved from the balcony rail to a position closer to the wall. The wind speed at that time was about 4 to 7 mph at the rail, and about 0 to 2 mph closer to the wall. About 12 pm, 24 March long term test Monitor 3 on the pool deck balcony was moved from the balcony rail on the northeast corner to a position closer to the east wall (Monitor 3A). The wind speed at that time was about 8 to 11 mph at the rail, and about 1 to 4 mph closer to the wall. Brooks Acoustics Corporation 49 N. Federal HIM Pompano Beach. FL 33062 • Y v " W U .- UJ D U v N o� 0 E N v Ln QJ o E -0 O U 3 ai c N " O BAC PJ2010-1252-LO i — 50 Biscayne —Ultra sound surrey Page 6 Long term test Monitor 2 on the roof remained at its position throughout the survey. The wind speed at 3 pm, 24 March was about 1 to 5 mph at the microphone location. U U UJ The long term test field acoustic measurement systems were digital (Type 1) integrating logging C sound level analyzers (Rion NL -52). These systems had microphones which were mounted on a tripod and wired to the sound analyzer placed in a weather tight, locked box. These systems o E N 4-1 were used to record sound levels and the sound waveforms at the long term test positions. .S °� L, N N O The short term test field acoustic measurement system was a digital (Type 1) integrating E - logging sound level analyzer (Norsonic Nor140). The hand-held analyzer system was mounted° ° on a tripod and was transported to each field survey test position in sequence. This system was used to record the sound levels and the sound waveforms at the short term test positions. The field acoustic measurement systems were calibrated with equipment directly traceable to the U.S. National Institute for Standards and Technology (NIST). The nominal accuracy for these measurement systems is ± 1.5 dB. Calibration certificates for these instruments are available upon request. The acoustic measurement systems were field calibrated before and after the sound test surveys to confirm accuracy and proper data acquisition. A listing of the test instrument components is given in Table 1. The acoustics measurement test protocol for the each instrument system was set to ANSI standard A -weighting (human hearing) and Z -weighting (unweighted) for frequency, with slow and fast time weighting. The short term test periods were about 2 to 60 minutes in duration. The long term test periods were from about 3 % to 4 % days in duration. The internal clock of each analyzer was synchronized with the NIST atomic clock to within a tolerance of 1 second. During these tests, the test instruments continuously recorded the sound level every second and computed the energy average level. Also, the instrument stored statistical and spectral acoustic parameters for the test period, updating those values every second. During the sound test survey, observation logs and notes were written identifying test procedures and also significant sound generating events and sources. Also, during this test survey, weather conditions were documented and include: temperature, relative humidity, wind speed and direction, and sky cover. Acoustical test equipment operating parameters were recorded by the measurement systems. Data analysis In this analysis, measured sound levels are given in terms of standard decibels, or "dB". These sound levels were both unweighted (linear) and also A -weighted. Sound level measurements which apply A -weighting are designated by the symbol "dBA". A -weighting mimics human hearing and removes much of the low frequency (bass) part of the sound signal. Further, sound temporal (time history), statistical and spectral information were analyzed. Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach, FL 33062 BAC PJ2018-1252-1-01 — 50 Biscayne — Ultra sound survey Page 7 Time history analysis Detailed sound test results for each baseline ambient sound survey are given in the form of a Time History Chart, which shows the change in sound level over time for each test record. U LLI >- Time history analysis of sound data can be very helpful for understanding the character of theQ u tested acoustical environment. Simply stated, the sound level time history indicates the sound a level that is measured at any given moment of time during the test period. In this analysis, the o = o sound time history for the test is represented by a chart showing how the measured sound levels := U 14 varied with time. A steady sound such as a constant fan will appear to be more of a flat line on v o N the chart, while variable sounds such as passing vehicles will appear as a series of peaks and E "a"- o valleys on the chart. U v, v o Statistical analysis Measured sound survey data are presented in terms of statistically derived sound level parameters, in order to quantify the background sound level at the property. For a particular test period, sound levels may fluctuate due to the variation of sound source signals which are received at that location. In the case of these sound surveys, sound level fluctuations occurred due to variations in the Ultra event music sources, and also during times when the music was not present, to nearby or distant machinery, road traffic and aircraft. Also, an analysis was conducted to provide statistically derived acoustic data quantities, in a similar way for each short term test record. These statistical quantities are useful for characterizing environmental sound in terms of its steadiness, or variation with time. An example of a statistically derived quantity is the Lol level, also called the L1 level. This is the sound pressure level that is exceeded 1 percent of the time over the duration of the data sample period. The Loi level is defined as the intrusion sound level. Another example of a statistically derived quantity is the Lso level, also called the L90 level. This is the sound pressure level that is exceeded 90 percent of the time over the duration of the data sample period. The Lso level is defined as the ambient background sound level. Note that the L1 intrusion level represents the noise levels near the peaks, while the L90 background level represents the sound levels near the valleys over the survey period. Standard design criteria for outdoor entertainment facilities dictate that the noise intrusion on communities be measured by the difference between the occasional noise interference level, which occurs 1 percent of the time (1-1), and the background ambient sound level (1-90). For the criteria of L1 minus 1-90, the following results may be expected: L1 — L90 less than 5 dB: Facility rarely audible with minimal complaints. L1 — L90 between 5 and 15 dB: Facility sometimes audible with significant complaints. L1 — L90 greater than 15 dB: Facility generally audible with widespread complaints. Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach. FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 8 These objectively defined criteria may be applied to the measured data to determine the intrusion of v the noise generated by the Ultra Event.q u U W Spectral analysis — 1/3 Octave Bands v rn Included in this report are spectral sound data. These data are the result of a spectral analysis o E N of the measured sound. In this analysis, the measured sound of the test record is divided into - N bands, known as 1/3 octave bands, which range from low frequency (bass) to high frequency Y 2 (treble) sounds. The sound levels associated with each of these frequency bands can be shown o 0 on a spectrum chart ranging from low pitch on the left to high pitch on the right, similar to the ; v C: arrangement of a piano keyboard. `" ` ° The Ultra Event music program material was rich in percussion and bass low frequency content. Therefore, a spectral analysis is useful in identifying the low frequency content of the sound survey test data. Based on hearing science, music production practices and loudspeaker design standards, the range of frequencies for bass content can be determined. For the purposes of this study analysis, the bass content of each test record is defined as the sum of the sound energy in the 1/3 octave bands from 40 Hz to 125 Hz inclusive. Further, the statistical criteria which determine the degree of noise intrusion (based on L1 — L90), as described above, were applied to both the overall (A -weighted) sound level and to the low frequency (bass) content of the sound from the Ultra Festival. Sound survey analysis The sound survey results are given by presenting the test data in the form of summary tables, time history charts and spectral charts, which all include sound frequency and statistical analyses of the data. Test Summary Tables A summary of the sound survey test data is given in Table 2. The sound level data are shown for each test position, along with observations made during the test record. The data for the short term test position is given in Table 2a. This table shows the L1 noise intrusion levels for each test, which are characterized as the LA1, A -weighted intrusion level and the L1 -Bass, bass content intrusion level. During the Ultra event at 11:25 pm on 3/24 the sound levels for the test at Position 1, inside the Unit 2802 living / dining room, were measured. The background sound level was measured at 1:50 pm on 3/23, before the event started that day. Brooks Acoustics Corporation 49 N. Federal Hwy Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 9 The bass content (1 -1 -Bass) sound level due to the Ultra event was 91 dB. This music level was significantly higher than the L90 background bass content level, which was 48 dB. These data aj indicate that the bass intrusion at this location was extremely high at 43 dB. u W >- This bass content intrusion greatly exceeds the criteria of 15 dB, known to result in widespread C'L complaints. It also represents an over 150 fold increase in sound intensity in the bass frequency s o, range above the background levels. This intrusion is like having a boom box car in your living room o E N for the entire day and evening. }' Ln L N O _O The A -weighted overall intrusion level was 64 dBA — 32 dBA = 32 dB. This intrusion also greatly a c exceeds the criteria of 15 dB, known to result in widespread complaints.° Ln a In L O Similar results are seen for the long term test locations on the Pool Deck, Position 3 (NE comer) and Position 3A (E side). One hour averages were compared for this outdoor location. The Ultra event sound levels were taken on 3/24 at from 11 pm to 12 midnight. The background sound levels were taken after the event had closed on 3/26 during the same hour of the day. The Ultra bass sound level was extremely high at 118 dB. The bass intrusion was 49 dB. The A -weighted Ultra event sound level on the pool deck was 96 dBA. This is a level known to cause hearing damage. The overall intrusion level was 96 dBA — 57 dBA = 39 dB. This intrusion also greatly exceeds the criteria of 15 dB, known to result in widespread complaints. This intrusion is like having a power saw operating in your living room for the entire day and evening. Similar results are shown for the long term test locations, in Tables 2b, 2c and 2d. The magnitude of the Ultra event music bass intrusion was very significant, from 40 to 49 dB. The magnitude of the Ultra event music A -weighted intrusion level was also very significant, from 31 to 42 dB. The test results from these tests consistently show high levels of noise intrusion to the nearby residents, which can "disturb the quiet, comfort or repose of persons in any dwelling". Time history charts Time history charts were analyzed. These charts show how the sound levels varied with each moment in time over the noise survey test periods. Unit 2802 balcony The sound level time history charts are attached for long term survey tests conducted at Position 1, located on the Unit 2802 balcony representing the residents on the mid-level floors. This chart shows the bass content (40 to 125 Hz) which was measured, analyzed and recorded hourly. The calculated statistical bass content levels are shown, including the L1 -Bass intrusion levels and the L90 -Bass ambient background level. The L1 -Bass intrusion levels were calculated for each hour. The L90 -Bass ambient level was calculated as an average of the measured L90 levels for the hours when music was not playing. Brooks Acoustics Corporation 49 N. Federal Hwy Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 10 The first chart shows the measured bass content data from 10 pm on Thursday, 3/22 to 2 pm on Saturday, 3/24. The second chart shows the measured bass content data from 2 pm on Saturday, a) 3/24 to 10 am on Monday, 3/26. W ;, �I U Note that when the music was being played at the Ultra event the measured L1 -Bass sound levels C are much higher than they are when there is no music. The lower levels represent the sound of road o N traffic and other activities in the area., � � N The highest level L1 bass content on the Unit 2802 balcony caused by the Ultra event on Friday 3/23 ° was for the hour between 11 pm and 12 midnight, at 96 dB. This can be compared with the average E o 0 L90 bass ambient background level of 64 dB. This constitutes an intrusion of 32 dB.�, Q o The highest level L1 bass content on the Unit 2802 balcony caused by the Ultra event on Saturday 3/24 was for the hour between 5 pm and 6 pm, at 100 dB. The highest level L1 bass content caused by the Ultra event on Sunday 3/25 was for the hour between 8 and 9 pm, at 104 dB. This can be compared with the average L90 bass ambient background level of 65 dB. Note that the background level is consistent between the days, within 1 dB. The intrusion of 104 dB compared to 65 dB background constitutes an intrusion of 39 dB on the Unit 2802 balcony. Similar results are shown for the A -weighted time history data for Unit 2802. Roof The sound level time history chart is attached for the long term survey tests conducted at Position 2, located on the building roof and representing the residents on the upper floors. This chart shows the measured bass content (40 to 125 Hz). The highest level L1 bass content on the roof caused by the Ultra event was on Saturday 3/24 for the hour between 10 pm and 11 pm, at 108 dB. This can be compared with the average L90 bass ambient background level of 68 dB. The intrusion of 108 dB compared to 65 dB background constitutes an intrusion of 43 dB. Similar results are shown for the A -weighted time history data for the roof. Pool Deck The sound level time history charts are attached for long term survey tests conducted at Position 3, located on the pool deck and representing the residents on the lower floors. This chart shows the measured bass content (40 to 125 Hz). The highest level L1 bass content on the pool deck caused by the Ultra event on Friday 3/23 was for the hour between 10 and 11 pm, at 115 dB. This can be compared with the average L90 bass ambient background level of 71 dB. This constitutes an intrusion of 44 dB. The highest level L1 bass content on the pool deck caused by the Ultra event on Saturday 3/24 was for the hours between 10 pm and 12 midnight, at 118 dB. The highest level L1 bass content caused Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach, FL 33062 BAC PJ2018-1252-1-01 — 50 Biscayne — Ultra sound survey Page 11 by the Ultra event on Sunday 3/25 was for the hour between 10 and 11 pm, also at 118 dB. This can be compared with the average L90 bass ambient background level of 72 dB. The intrusion of 118 dB compared to 72 dB background constitutes an intrusion of 46 dB. Similar results are shown for the A -weighted time history data for the pool deck. = z v Q U These time history data confirm the statistical analyses of the test records shown in the summary c, tables, discussed above. A trend is noted that the closer the test location is to ground level, the higher o E N the measured sound data. C: � N � O N Spectrum charts -0 o Spectral analyses were conducted for selected test records taken during this sound survey, to -0 � N o v L � o illustrate the dominance of the bass heavy Ultra event music on the test data. Spectral analysis results — inside the building A comparison was made of the measured sound levels, both with and without the Ultra Festival operating, at the test location inside the 50 Biscayne building in the Unit 2802 living room and dining room area. The sound comparison is shown graphically in spectrum Comparison Chart 1, attached. Note on the spectrum comparison chart that the solid red line representing the Ultra intrusion sound levels, was significantly higher than the dotted green line representing the background sound levels. Importantly, the low frequency (bass) sound levels of the Ultra event were the highest levels that were measured. The bass content 1 -1 -Bass Ultra music level was 91 dB. This music level was significantly higher than the L90 background bass content level, which was 48 dB. These data indicate that the bass intrusion at this location was extremely high at 43 dB. This bass content intrusion greatly exceeds the criteria of 15 dB, known to result in widespread complaints. It also represents an over 150 fold increase in sound intensity in the bass frequency range above the background levels. The A -weighted overall intrusion level was 64 dBA — 32 dBA = 32 dB. This intrusion also greatly exceeds the criteria of 15 dB, known to result in widespread complaints. Furthermore, these high sound levels inside a residence are very likely to cause negative health effects, including at the least sleep deprivation and potentially cardio -vascular events and other stress induced damage. (See References 1, 4 & 5 above) Brooks Acoustics Corporation 49 N. Federal HIM Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 12 Spectral analysis results — outside the building • ,� L An analysis of sound levels at an outdoor survey location, the Pool Deck, was done both with and L' W v ; BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 13 by 3 dB. This means that a person on the balcony will receive the maximum noise dose in a period v of 4 hours, after which hearing damage can occur. W 3 U The measured 8 -hour time -weighted -average (8 -hr TWA) on the Unit 2802 balcony for Saturday 3/24 v was 91.5 dBA. This exceeds the recommended hearing protection limit by 6 dB. This means that a .5 2 person on the balcony will receive the maximum noise dose in a period of 2 hours, after which hearing 15 N damage can occur. o N The measured 8 -hour time -weighted -average (8 -hr TWA) on the Unit 2802 balcony for Sunday 3/25 E o 0 was 93.1 dBA. This exceeds the recommended hearing protection limit by over 8 dB. This means Ln = v o that a person on the balcony will receive the maximum noise dose in a period of a little over 1 '/4 hour, after which hearing damage can occur. Similar results were found at the other test locations. With regard to negative health outcomes, the Ultra event sound levels are consistently higher than the WHO recommended guidelines for adverse health effects. As the TWA data above indicate, the sound levels at all common element and private property outdoor locations in 50 Biscayne building are well above the WHO 70 dBA threshold. Vibration damage During the short term sound tests, the noise induced vibration of windows and blinds and other building features such as light fixtures caused rattling to be noticeable. A comparison with criteria developed by NASA for the potential damage to housing structures due to rocket takeoffs show that the Ultra event can cause levels of noise which exceed the NASA guidelines. This noise induced vibration, can not only be annoying, but can also can cause minor building damage. The comparison between Ultra event test data measured on the pool deck and the NASA noise induced vibration criteria is shown in Comparison Graph 3, attached. The L1 sound level significantly exceeds the NASA criteria for noise induced floor vibration. A high level of noise energy is needed to move housing floor elements, and the Ultra event noise exceeds those levels. According to the NASA criteria, these high levels of noise are likely to vibrate nearby buildings, causing minor damage to the fixtures, finishes and possibly the structure. This was confirmed by observations in the building that it was perceptibly vibrating during the Ultra event. Comparison with sound level standards Standard community noise guidelines state that daytime noise levels should not exceed 55 dBA and that nighttime noise levels should not exceed 45 dBA for resident comfort. Exceeding these levels will likely induce annoyance in the majority of people. Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach, FL 33062 BAC PJ2018-1252-L01 — 50 Biscayne — Ultra sound survey Page 14 The noise levels from the Ultra events greatly exceed these annoyance guidelines, by as much as 50 dBA at night. This ensures that the nearby population will be highly annoyed by the Ultra event. • Y The standard design criteria for outdoor entertainment facilities dictate that the noise intrusion ct U on communities be measured by the difference between the occasional noise interference level, � which occurs 1 percent of the time (L1), and the background ambient sound level (L90). a v a, For the criteria of L1 minus L90, the following results may be expected: o E N E L1 — L90 less than 5 dB: Facility rarely audible with minimal complaints. N L1 — L90 between 5 and 15 dB: Facility sometimes audible with significant complaints. L1 — L90 greater than 15 dB: Facility generally audible with widespread complaints. N U o The differences between the Ultra event L1 A -weighted noise levels and the background sound levels are as high as 42 dBA. Therefore, the Ultra event noise levels significantly exceeded the background sound levels, by much more than 15 dB, and would be expected to be deeply intrusive and generate widespread complaints. The measured bass content in the Ultra event noise (L1) ranging from 96 to 118 dB significantly exceeded the background sound levels, by almost 50 dB. The sound level data for the inside of a resident unit show similar high noise intrusion exceedance levels as were measured on the unit balcony. A similar example of this type of inappropriate, out of context intrusion would be running a power saw and a boom box car simultaneously in the living room or bedroom of one's home continuously. Based on this objective analysis the event noise would be expected to be deeply intrusive and generate widespread complaints, with a major negative impact on the surrounding community. A comparison of the sound levels emitted by the Ultra events with standard hearing conservation criteria show that the Ultra sound levels are dangerous and can damage hearing. Time weighted average (8 -hr TWA) levels are in the 93 dBA range on the pool deck and resident balconies. At this level hearing damage can occur after exposure to the noise for about 1 % hours. These test results show that the sound levels produced by the Ultra event are high enough and persist long enough to cause hearing damage for residents located at the Associations common elements, including the pool deck and on private property at the 50 Biscayne Condominium. These high measured sound levels consistently exceed the WHO health criteria of 70 dBA, which indicates the likelihood that the Ultra noise will produce other negative health effects, related to hypertension and ischemic heart disease, among other adverse outcomes. With regard to the NASA noise induced vibration criteria, the Ultra generated sound levels are consistently higher than the levels which can cause vibration to occur in building floors. These high levels of noise are likely to vibrate nearby buildings, causing minor damage to the fixtures, finishes and possibly the structure. Brooks Acoustics Corporation 49 N. Federal HM Pompano Beach, FL 33062 BAC PJ2018-1252-1-01 — 50 Biscayne — Ultra sound survey Page 15 Sound survey results summary The sound survey results show that the sounds of musical devices at the Ultra Events significantly intrude on the ambient background which otherwise exists at those residences. Therefore, the Ultra event noise will disturb the peace, quiet and comfort of the neighboring inhabitants in the nearby residential dwellings. Importantly, the survey data demonstrated that the low frequency rhythmic bass and drum thumping sounds generated by the Ultra event constitute a substantial intrusion which penetrates well above the ambient background. The disruptive nature of these significantly intrusive bass sounds are likely to be highly annoying and can seriously degrade the quality of life for residents in the proximity of the Ultra Music Festival. Negative health effects are likely outcomes for nearby residents of the Ultra events, based on an evaluation of Ultra event sound levels, hearing damage criteria and other health criteria. Finally, physical damage to nearby buildings can be caused by the noise induced vibrations generated by the Ultra noise emissions. Please contact me if you have any questions about these findings. Very truly yours, BROOKS ACOUSTICS CORPORATION ....O IyN Bennett M. Brooks, PE, FASA, INCE President9 ; No. 17401 r r �'c� ��C�Ns��'��� Attachments SS�oNAL Eat' Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Brooks Acoustics Corporation 49 N. Federal HIM Pompano Beach, FL 33062 Submitted into the public record for item(s) REA on 07/25/2019. City Clerk . BAC Project Letter LR2018-1252-L01 Figure 1 front A. - Figure 1 - 1. View of 50 Biscayne Condominium building from Bayfront Park amphitheater, one of the Ultra Music Festival stages. Figure Figure 1 - 2. View of 50 Biscayne Condominium building from bay, after festival during removal of Ultra equipment, showing outside test locations. Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk BAC Project Letter LR2018-1252-L01 Figure 1 a,b Figure 1, a. Long Term Test Position L1 - Unit 2802 balcony. Several Ultra Music Festival stages visible in Bayfront Park. 1) 2) Figure 1, b. Long Term Test Position L1 - Unit 2802 balcony. Microphone mounted on tripod, with analyzer in locked box. 1) original position 2) modified position. Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk 2) modified position. BAC Project Letter LR2018-1252-L01 Figure 1 c,d Figure 1, c. Short Term Test Position 1 - Unit 2802 dining room. Analyzer on tripod. Long term monitor visible on balcony. Figure 1, d. Short Term Test Position 1 - Unit 2802 dining room. Ultra Festival main stage visible below. Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk BAC Project Letter LR2018-1252-1-01 Figure 1 e,f I Figure 1, e. Long Term Test Position L2 - building roof (55th floor). Figure 1, f. Long Term Test Position L2 - building roof. submitted into the public record for items) REA on 07/25/2019 City Clerk BAC Project Letter LR2018-1252-L01 Figure 1 g,h Figure 1, g. Long Term Test Position L2 - building roof. View of Ultra main stage and other stages. Afternoon performance lightly attended. Figure 1, h. Long Term Test Position L2 - building roof. View of Ultra Festival additional stages. Afternoon performance lightly attended. Submitted into the public record for items) REA on 07/25/2019 City Clerk BAC Project Letter LI?201 U-12--01 Figure 1 i -j Figure 1, i. Long Term Test Position L3 - Pool Deck (10th floor). Original location at northeast corner. View of Ultra Festival additional stages during set up. Figure 1, j. Long Term Test Position L3A - Pool Deck (10th floor). Modified location in middle of informal party room balcony. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk BAC Project Letter 1-132018-1252-1-01 Figure 1 k,l Figure 1, k. Short Term Test Position 4 - Informal party room (10th floor pool deck). Analyzer on tripod. Long term monitor visible on balcony. Ultra main stage visible. Figure 1, I. Short Term Test Position 4 - Informal party room (10th floor pool deck). Analyzer on tripod. Submitted into the public record for item(s) REA on 07/25/2019. City Clerk BAC Project Letter LR2018-1252-L01 Figure 1 m,n Figure 1, m. View of Ultra Festival stages from Long Term Position L3 (Pool Deck 10th floor). Evening performance heavily attended. Figure 1, n. View of Ultra Festival stages from Long Term Position L3 (Pool Deck 10th floor). Evening performance heavily attended. BAC Proiect Letter PJ2018-1252-L01 50 Biscayne Ultra Noise Survey Miami, FL Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Table 1 ACOUSTIC INSTRUMENTATION SYSTEMS Noise Survey — 22 to 27 March 2018 Data Acquisition Equipment 1. Norsonic Instruments - Digital Precision Sound Level Analyzer — Class 1 Model NOR140, S/N 1403462* - Microphone - Model 1225, S/N 98505* - Acoustical Calibrator - Model 1251, S/N 32064* 2. Rion - Digital Precision Sound Level Analyzer — Class 1 Model NL -52, S/N 00375623 [Position L1]* - Microphone - Model UC -59, S/N 11098 - Preamplifier - Model NH -25, S/N 65750 - Digital Precision Sound Level Analyzer — Class 1 Model NL -52, S/N 00331834 [Position L2]* - Microphone - Model UC -59, S/N 05046 - Preamplifier - Model NH -25, S/N 21785 - Digital Precision Sound Level Analyzer — Class 1 Model NL -52, S/N 00921170 [Position L3]* - Microphone - Model UC -59, S/N 04202 - Preamplifier - Model NH -25, S/N 21212 - Digital Precision Sound Level Analyzer — Class 1 Model NL -52, S/N 00843243 [Position L3A]* - Microphone - Model UC -59, S/N 06881 - Preamplifier - Model NH -25, S/N 43257 3. Extech Instruments - Mini Thermo -Anemometer — Model 45158, S/N 13260 Laboratory Playback and Analysis Equipment 1. Norsonic Instruments - NorXfer Analyzer Software, ver. 6.0 2. Lenovo - Computer workstation with USB & SD interfaces 3. Microsoft - Excel 2013 Spreadsheet Program 4. Brooks Acoustics - BAC Proprietary Data Analysis Software *Note: Certificates of Calibration available upon request. Table 1 BAC Project Letter PJ2018-1252-1-01 50 Biscayne Ultra Noise Survey Miami Beach, FL Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk Table 2a Summary -- Measured Sound Data - 50 Biscayne Condominium Ultra Event Noise Survey 22-27 March 2018 Short Term Test Periods Test Position Date Location L1 -Bass* Observations 1 3/24/2018 Unit 2802 dining / living room 91 Music at Ultra Events Residence interior 1 3/23/2018 Unit 2802 dining / living room Residence interior 3 3/24/2018 Pool deck 11:00 PM NE corner - outdoors LA90=32 LBass90=48 Ambient background sound Music shut down before event 118 Music at Ultra Events 3A 3/26/2018 Pool deck LA90=57 LBass90=69 Ambient background sound 11:00 PM E side - outdoors Music shut down after event Notes: L- Bass is sum of 40 to 125 Hz 1/3 Octave Band unweighted levels Ambient background sound level applies L90 metric Table 2a BAC Project Letter PJ2018-1252-1-01 50 Biscayne Ultra Noise Survey Miami Beach, FL Test Position Date L1 3/23/2018 L1 3/23/2018 Location Unit 2802 balcony Residence balcony Unit 2802 balcony Residence balcony Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk Table 2b Summary -- Measured Sound Data - 50 Biscayne Condominium Ultra Event Noise Survey 22-27 March 2018 Long Term Test Periods Ll -Bass* 112 Observations Music at Ultra Events LA90=64 LBass90=68 Ambient background sound Music shut down after event L1 3/24-26 Unit 2802 balcony 114 Music at Ultra Events Residence balcony L1 3/24-26 Unit 2802 balcony LA90=65 LBass90=72 Ambient background sound Residence balcony Music shut down after event Notes: L- Bass is sum of 40 to 125 Hz 1/3 Octave Band unweighted levels Ambient background sound level applies L90 metric Table 2b Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk BAC Project Letter PJ2018-1252-1-01 Table 2c 50 Biscayne Ultra Noise Survey Miami Beach, FL Test Position Date L2 3/22-27 L2 3/22-27 Notes: Table 2c Summary -- Measured Sound Data - 50 Biscayne Condominium Ultra Event Noise Survey 22-27 March 2018 Long Term Test Periods Location L1 -Bass' Observations Roof 108 Music at Ultra Events E side Roof LA90=62 LBass90=68 Ambient background sound E side Music shut down after event L- Bass is sum of 40 to 125 Hz 1/3 Octave Band unweighted levels Ambient background sound level applies L90 metric BAC Project Letter PJ2018-1 50 Biscayne Ultra Noise Survey Miami Beach, FL 1 Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk Table 2d Summary -- Measured Sound Data - 50 Biscayne Condominium Ultra Event Noise Survey 22-27 March 2018 Long Term Test Periods Test Position Date Location L1 -Bass* Observations L3 3/23/2018 Pool deck 115 Music at Ultra Events NE corner L3 3/23/2018 Pool deck NE corner DA 3/24-27 Pool deck E side LA90=63 LBass90=71 Ambient background sound Music shut down after event 119 Music at Ultra Events L3A 3/24-27 Pool deck LA90=62 LBass90=72 Ambient background sound E side Music shut down after event Notes: L- Bass is sum of 40 to 125 Hz 1/3 Octave Band unweighted levels Ambient background sound level applies L90 metric Table 2d Submitted into the public record for item(s) REA on 07/25/2019 City Clerk BAC Proiect Letter PJ2018-1252-1-01 Table 3 50 Biscayne Ultra Noise Survey Miami Beach, FL Table 3 Summary -- Measured Sound Data - 50 Biscayne Condominium Ultra Event Noise Survey hearing damage asessment 22-27 March 2018 8 -hour Time Weighted Average sound levels (LAeq 8 -hr TWA) During Ultra Festival operation Test Position Date Location LAeq 8 -hr TWA Exposure time before hearing damage L1 3/23/2018 Unit 2802 balcony 88 4 hours L1 3/24/2018 Unit 2802 balcony 91 2 hours L1 3/25/2018 Unit 2802 balcony 93 1 hour 16 minutes L2 3/23/2018 Roof 83 12 hours 42 minutes L2 3/24/2018 Roof 85 8 hours L2 3/25/2018 Roof 84 10 hours 5 minutes L3 3/23/2018 Pool deck 89 3 hours 10 minutes L3A 3/24/2018 Pool deck 93 1 hour 16 minutes L3A 3/25/2018 Pool deck 93 1 hour 16 minutes *Note - Per NIOSH criteria 50 Biscayne Ultra Noise Survey Miami, FL 120 110 100 Sound Pressure Level 90 L1 8 L90 Bass (40-125 Hz) 80 in dB re: 20 NPa 70 60 BAC Time Ultra Music Festival Noise Survey Residence Unit 2802 Balcony Low Frequency (BASS) Sound Levels Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk . Date: 22 Marl 8 Time: 10:00 PM Position: L1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O_ _ N_ (h N N M M M M M M M M M CJ N N N N N N N N N N N N M CJ CJ M CJ CJ CJ CJ CJ CJ CJ CJ CJ CJ N N N N N N N N N N M fh f0 f0 M 8 f) 8 M M N N N N N N N N N N N N N N M 8 i'5M 8 fQ fQ fQ CQ,)8 N N N N 8 CJ CJ CJ M C\7 CJ CJ CJ CJ CJ C\7 CJ CJ CJ CJ M C-5 8 8 LTH2O18-0322 Pos L1 L -bass (40 - 125 START TIME (data for following hour) co D n v 0 co' r CD C CD e N O_ 9D N CA N 0 Ultra Music Festival J-- A + - —_G Music with heavy bass Drop in music BASS SOUND LEVELS bass levels when music is shed r 40 to 125 Hz down - 1-1 _, - _ peak tobaseline = L1 - L90 t 112dB-68d6 44 decibels no music ( ) f f t t Music off - _ - Music off ........... ............................ -- — 1 t Friday fi Saturday 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O_ _ N_ (h N N M M M M M M M M M CJ N N N N N N N N N N N N M CJ CJ M CJ CJ CJ CJ CJ CJ CJ CJ CJ CJ N N N N N N N N N N M fh f0 f0 M 8 f) 8 M M N N N N N N N N N N N N N N M 8 i'5M 8 fQ fQ fQ CQ,)8 N N N N 8 CJ CJ CJ M C\7 CJ CJ CJ CJ CJ C\7 CJ CJ CJ CJ M C-5 8 8 LTH2O18-0322 Pos L1 L -bass (40 - 125 START TIME (data for following hour) co D n v 0 co' r CD C CD e N O_ 9D N CA N 0 Submitted into the public record for item(s) REA on _ 07/25/2019 City Clerk , 50 Biscayne 00 Ultra Music Festival Noise Survey Ultra Noise Survey Residence Unit 2802 Balcony Date: 24 Mar 18 Miami, FL Low Frequency (BASS) Sound Levels Time: 2:00 PM Position: L1 120Ti Ultra Music Festival 1 - — Drop in music 110 bass levels when Music with heavy bass L � _ _ music is shut dOYi� � _ Monday Sunday _ with Lh...� _ _ _ to baseline bass 1I peak + j L1 - L90 - 100 114d6-72dB Sound = 42 decibels + BASS SOUND LEVELS � + � t _ Pressure 40 to 125 Hz Level 90 Ll 8 L90 1� 1 �� Bass (40-125 Hz) in dB 80 or L90 (no music) t _ re: 20 NPa � r � Music off Music off 70 -•-- }. -f -- -+ - t _- - {III- } _ i_ � __ f - _ --F. _ _ _ f _ - _ ��j 60 O O O O O O O O O O 0 0 0 0 0 0 0 0 0 0 O 0 O O O O O O 0 0 0 0 0 0 O O O O O O O O O O O O O O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O N M N N N N O N M W M 10 n co Oi O N M f0 n O 0) O N M O N M f0 n O O) N N N N M M M M M M U) M U) M f0 f0 f0 f0 W W to f0 f0 N N N N N N N N N N N N N N N N M M M M M M M M M M N N N N N N N N N N N N N M M M C� M M M M M M M M M M M M M ('7 ���� M M M M M START TIME (data for following hour) BAC Time Histo LTH2O18-0324 Pos L1 L -bass 40 - 125 Hz). D n —23. r CD CD L � � � � Monday Sunday O_ QD N N O co n 3 m 2 0 2 N O 00 O N A N r r Q m N A O N vt N 50 Biscayne Ultra Noise Survey Miami, FL 110 100 90 A -weighted Sound Pressure 60 Level LAI 8 LA90 in dB 70 re: 20 NPa 60 Ultra Music Festival Noise Survey Residence Unit 2802 Balcony A -weighted Sound Levels Submitted into the public record for item(s) RE.4 on 07/25/2019 JI City Clerk ' Date: 22 Mar 18 Time: 10:00 PM Position: L1 Ultra Music Festival +A -WEIGHTED SOUND * 1 Drop in music LEVELS sound levels Music �_ _ when music is LAI -- j t - 1 - shut down — + - peak to baseline i = LAI - LA90 1 + 96 dBA - 64 dBA t = 32 decibels J1 - - -I� LA90 - — T (no music) �47 Music off Music off + Friday I Saturday 50 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N N m N O N m't ill (O n O m _O _ _N f2 0 (O r n O m O N N N N m N O N m "t iA W n W O _O - N_ M i'7 i`') m m m m m m m m .4 N CNM M M M th M M M C'5 C'N N N N N N N N N N N N N N 5 i;5N N N N f7 i'7 i`9 i`� i'7 i`5 i`9 i`') f7 i`5 i`5 i`5 i39 f7 i`9 i`� i`') f7 START TIME (data for following hour) EIAC Time History LTH2O18-0322 Pos L1 A -weighted levels. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 50 Biscayne Ultra Music Festival Noise Survey Ultra Noise Survey Residence Unit 2802 Balcony Date: 24 Mar 18 Miami, FL A -weighted Sound Levels Time: 2:00 PM Position: L1 120 Ultra Music Festival - - A -WEIGHTED SOUND 110 LEVELS - — — - - - LA1 --� - Muslc - - - -$77 Drop in music t {-r -- -- } - sound levels when T- Music I �.-} music is shut down _ 100 peak to baseline = LA1 - LA90 A -weighted _ t { 104 dBA - 65 dBA Sound -� t fi - i-- L t- — - = 39 decibels Pressure 90 Level LA1 & LA90- t - + I I in dB 80 re: 20 NPa i 1 LA90 _ T j r r r� +_ (no music) 70 L +- Music off JSn, Music off77 t 7- 7 AL Saturday }; _ y --- 6C 60 O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O_O O ON ON N N N ON N N N N N N ON OON ON ael ON) OOO OO -el OfO O�C46 66 aej OOOOOOOO1OOOOO O OO OOO ah O OO OO L __ N (O LO RC1 RC1 LO 0 RC1 RC1 RC1 RC1 RC1 RC1 0 RC1 LO N N N N N N N N N N START TIME (data for following hour) BAC Time History LTH2O18-0324 Pos L1 A -weighted levels. Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk . 50 Biscayne Ultra Music Festival Noise Survey Ultra Noise Survey Roof - near center facing Bayfront Park Date: 22 Mar 18 Miami, FL Low Frequency (BASS) Sound Levels Time: 9:00 PM Position: L2 120c witBASS LEVELSvy Drop in music 110 125 Hz Ll 100 Sound 40 decibels Pressure Level 90 _ Lt & L90 Bass (40-125 Hz) 80 in dB re: 20 NPa 70 60 _ O O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 C' 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 .. ... ... "CD .... ... ... M � c) u� n rn �M u2 n rn — r> — r> u� i. rn — r> u� n rn — r> — r> u) n rn � r> u� n rn � r> N N fh M C, C7 C7 — — — N N 't 't - - - — — — — — N N Ln Ln Ln W) W) — — — — — N N CD CG CD CD CD N N 1` n n n n N N N N N N N M M M M M M M N N N N N��"t"t"t�'t N N N N N �A Ln U-) Ln Ln LO LO N N N N C-4 CD CD CD CD CD CD N N N N N N N M M M M M N N N N N N N M M M M M N N N N N N N M M M M� N N N N N N N M M CO) M N N N N N N M M in M M M c h M M M M M M M M M M c h M M M M c h f h c h M M c h f h M M M M CQ' M START TIME (data for following hour) BAC Time Histo LTH2O18-0322 Pos L1 L -bass 40 - 125 Hz). � 1jjr=M== heavy _ • �.29 - 1 NNS IN 1 11OD ' .IIIC�illl music ICA 'INY'�I � � 1 i I _ � �� 1111 � 1II 1 11 111 1 1 i►�►l��I 1. ��111 111 1111,1 ..��1 111 111 1►1 1111 1111111/ �Ii11/111 NII 11111.11 „11!1.1/,/11111 1 1� i 1%��1�1 it 11►�11i 1 ; l! ;11111 �!��' 1 'I Ilii iii iliiiliiii Nil 11� I 1 1 1 i 1 �11� � n 1 1�1 1 11 111 11 Iln 1 1� 1 1 - 1 11 Bill n 1 0 CD M „� 1 i�l� JIINco Submitted into the public record for item(s) REA on 07/25/2019 • City Clerk . .50 Biscayne Ultra Noise Survey Miami, FL 110 -- Ultra Music Festival Noise Survey Roof - near center facing Bayfront Park A -weighted Sound Levels Date: 22 Mar 18 Time: 9:00 PM Position: L2 Ultra Music Festival00 MEMBER U-mmons-aial5711 A -WEIGHTED SOUND 100 LEVELS Drop in mi isic r , . to baseline � 11 90 ,1111 11 1 A -weighted 111 1 1►,/,1 � ! 1 �� �1 11 decibels �■■G■Gi■■■■■■i��■1■■l■■i■■iini i■G 1 1 ■ Sound Illl 11 N - � ill N11 i1 Pressure 80 1 ME Level uu� i 1 1 1 �1 '� 111 11 LA1 & LA90 ►� , �1' � 1 1 NI Illlllll�ln ;1/ 1 1 1 111 � 1 1 11 '11'►� 111111 �1 11 , . /�i►.:1�:�� •� ':IiN in dB 70 - 1111�� 11 11 111,11111..1111111111111111 ,��1 1 1/111111 1111 101,1111111 ill i11111�0►.:11111/IIIIIIIIIIIII�II�IIIIN� 1111 INIIIIIIIIINIII 111' IIIINIIIII 111111 11111 1111111111111111 1 re: 20 NPa �� 1111111 1 1 !1, 60 " 50 O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O r M � fh LO r, Oi ; M LO r, Oi � M r M W) f- Oi r M LO n Oi - M- M LO r, Oi - M LO n Oi - M- M LO N N M M M M M - - N N N N lCY ll7 N N f0 CO f0 N. 0- M V) fl- M- M- M 0 r, M f0 f0 N N n ti n r, f� N N N N N N N M M M M M M M N N N N N N N N N N lCY 1l7 ll� ll� ll� N N N N N N M M M M M N N N N N N N M f`5 M M M N N N N N N N M in <h N N f0 f0 f0 f0 f0 f0 f0 N N N N N M M N N N N N N N M M fh M M M fh M fh fh fh M fh M M M M fh M M M <h <h f`, M M fh M fh M M M START TIME (data for following hour) BAC Time Histo LTH2O18-0322 Pos L2 A -weighted. CO D n v —0. r CD CD ��e��l►�q 11 1 � 111 �■■G■Gi■■■■■■i��■1■■l■■i■■iini i■G 1 1 ■ N O J N C71 N O J CO 1 y O N O O O W N N O y D m M OL 50 Biscayne Ultra Noise Survey Miami, FL 130 120 110 Sound Pressure 100 Level L1 8 L90 90 Bass (40-125 Hz) in dB 80 re: 20 NPa 70 60 o O O O o 0 0 o O O O o 0 o O O o o O O o o O O O O o o O O O o o O o 0 0 o O o 0 0 0 0 o O o 0 0 o O o o O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N a f0 OD O N O N f0 OD O N f0 OD O N O N f0 OD O N f0 OD O N O N f0 OD N N to to to O LO N N O O O O O N N n n n n n r r r r r r r r r r r r r r a a a a s N N N N N u� u� u� 47 47 47 u� N N N N N f0 f0 (O (O f0 W (O N N N N N N N N N N N N M M N N N N N N N N N fh fh m N N N N N N N fh N fh ch c� ch ch ch Cl) c� ch ch ch ch c� c�+ ch ch c� c� ch M M Ultra Music Festival Noise Survey Pool Deck - E side middle of informal party room (10th floor) Low Frequency (BASS) Sound Levels Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk . Date: 24 Mair 18 Time: 12:00 PM Position: 1-3-A START TIME (data for following hour) VBAC Time History LTH2O18-0322 Pos L3A L -bass (40 - 125 H D n M io CID e N O OD N N i O Music ME heavy music is do -Ll sNJ - L90 NOON PEI IM) loss in I i i INo 47 decibels moll Elm Kim I .............. ..... .. ... . 'OM rBA7SSSOUND SS SOL qw, wo wie!OAMVj ji, MW LEVELS I i 6 r, r. , OVA I 40 to 125 Hz Ll Ok NONE= NOON on monq OP001 ==M=M ME golmomm milm 0 0 01 I SMENIN I E:Iv� START TIME (data for following hour) VBAC Time History LTH2O18-0322 Pos L3A L -bass (40 - 125 H D n M io CID e N O OD N N i O 50 Biscayne Ultra Noise Survey Miami, FL 110 100 90 A -weighted Sound Pressure 80 Level LA1 & LA90 in dB 70 re: 20 NPa 60 50 Ultra Music Festival Noise Survey Pool Deck - E side middle of informal party room (10th floor) A -weighted Sound Levels Submitted into the public record for item(s) REA on 07/25/2019 City Clerk . Date: 24 Mar 18 Time: 12:00 PM Position: 1-3-A 0 0 0 0 0 0 0 0 0 o O o O o 0 o O o o O o O o O O o O o o O o 0 0 o O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N (O OD O N O N It 10 W O N It 10 W O N O N V (0 00 O N It (0 00 O N O N It (0 CO r r r r N N N (f) LO (f) � r r r r r N N (O (O (O (O (O r r r r r N N n n n � n It It It It It It N N N N N M) (n W) N N N N N N (O (O (O (O (0 (0 (0 N N N N N N N N N N N f� (h fh M M N N N N N N N (h c) M N N N N NN N M M M (+5 in (h an (h in in (+s Z;5 in in (h (h (+5 0 M (h 0 (h START TIME (data for following hour) JBAC Time History LTH2O18-0322 D n v 13. r m C CD N CD CCA N r O m D n 3 y rJ ..z r 2 N _O 00 O W N N 0 N r D D to A 50 Biscayne Ultra Music Festival Sound Survey - Comparison Ultra Noise Survey Ultra Event compared with background Miami, Ft_ Unit 2802 - Living / Dining Room Unit 2802 LA1 = 64 w/Ultra Unit 2802 LA90 = 32 Background Submitted into the public record for item(s) REA _ on 07/25/2019. City Clerk . Date: 23/24 Mar 2018' Time: various Position: 1 100 Unit 2802 Living/Dining PdB Difference between the RED w/ Ultra Event (3/24 11:2and GREEN curves is the 90 L1 = 64 dBA noise intrusion due to Bass (40 -125 Hz) = 91 ULTRA EVENT 80 Unweighted ._ (linear) Bass content frequency range 70 40 Hz to 125 Hz bands L1 & L90— - Sound - - Ultra Event intrusions 60 Noise levels above background Pressure 32 dBA 0000 11� Bass (40 -125 Hz) 43 d6 Level 50 in dB ♦„ - - - -- -- re: re: 20 NPa - - �- 40 Unit 2802 Living/Dining Room z 30 Background (3/23 1:50 pm) L90 = 32 dBA Bass (40 -125 Hz) = 48 d8 20 16 Hz 32 Hz 63 Hz 125 Hz 250 Hz 500 Hz 1000 Hz 2000 Hz 4000 Hz 8000 Hz 1/3 Octave Band Center Frequency in Hertz BAC Graph 20180324 Comparison 1 L1 Intrusion & L90 Background Ultra Event spectrum peal = 90 dB at 40 Hz I D 0 G) v N _O co O w N A 0 O 3 D d N� O 7 50 Biscayne Ultra Music Festival Sound Survey - Comparison Ultra Noise Survey Ultra Event compared with background Miami, FL Pool Deck - outdoor Pool Deck LA1 = 96 w/Ultra Pool Deck LA90 = 57 Background 120 110 50 Submitted into the public record for items) REA on 07/25/2019. City Clerk Date: 24/26 Mar 2018 Time: 23:00 Position: 3a 100 Unweighted (linear) 90 L1 & L90 — Sound 80 Pressure w/ Ultra Event (3/24 11 pm) and GREEN curves is the Level 70 in dB - re: 20 NPa L1 = 96 dBA noise intrusion due to 60 50 Submitted into the public record for items) REA on 07/25/2019. City Clerk Date: 24/26 Mar 2018 Time: 23:00 Position: 3a 40 - 16 Hz BAC Graph 20180324 Comparison 2 32 Hz 63 Hz 125 Hz 250 Hz 500 Hz 1000 Hz 2000 Hz 4000 Hz 8000 Hz 1/3 Octave Band Center Frequency in Hertz L1 Intrusion & L90 Background Ultra Event spectrum Deak = 113 d6 at 50 Hz Pool Deck Difference between the RED — — w/ Ultra Event (3/24 11 pm) and GREEN curves is the - L1 = 96 dBA noise intrusion due to Bass (40 -125 Hz) = 118 dB ULTRA EVENT Ultra Event intrusions 4111 Mott W#1 Noise levels above background - — 39 dBA Bass (40 -125 Hz) 49 dB Bass content '00 - frequency range ? i 40 Hz to 125 Hz bands Pool Deck Background (3/26 11 pm) L90 = 57 dBA Bass (40 -125 Hz) = 69 dB 40 - 16 Hz BAC Graph 20180324 Comparison 2 32 Hz 63 Hz 125 Hz 250 Hz 500 Hz 1000 Hz 2000 Hz 4000 Hz 8000 Hz 1/3 Octave Band Center Frequency in Hertz L1 Intrusion & L90 Background Ultra Event spectrum Deak = 113 d6 at 50 Hz ) Biscayne Ultra Music Festival Sound Survey - Comparison Itra Noise Survey Ultra Event compared with NASA Noise Induced vibration Criteria iami, FL Pool Deck - outdoor Pool Deck LA1 = 96 dBA w/Ultra Unweighted (linear) L1 Sound Pressure Level in dB re: 20 NPa 120 110 100 90 80 70 60 50 40 13 Hz Submitted into the public record for item(s) RE.4 on 07/25/2019 , City Clerk Date: 24 Mar 2018 Time: 23:00 Position: 3A 25 Hz 50 Hz 1/3 Octave Band Center Frequency in Hertz BAC Graph 20180324 NASA Comparison 3 L1 sound levels U 100 Hz = 113dBat50Hz m m -o C N 0 m N CA N r O J D 0 m v N 0 OD 0 w Z D U) D 0 0 B v m to 0 W Ultra Event low frequency anoisesignificantly exceedsNASA floor vibration crit Floors + Walls , + Windows NASA Criteria for perceptible Noise Induced Vibration per TM -83288 25 Hz 50 Hz 1/3 Octave Band Center Frequency in Hertz BAC Graph 20180324 NASA Comparison 3 L1 sound levels U 100 Hz = 113dBat50Hz m m -o C N 0 m N CA N r O J D 0 m v N 0 OD 0 w Z D U) D 0 0 B v m to 0 W Submitted into the public record for item(s) REA on 07{2512019 City Clerk EXHIBIT 2 %« Filing # 85995398 E -Filed 03/06/2019 11:37:38 PM I, BRICKELL HOMEOWNERS ASSOCIATION, INC., a Florida non-profit corporation and CHRISTOPHER B. MULLIN, a citizen of the City of Miami, Florida Plaintiffs, V. CITY OF MIAMI, a Florida Municipal Corporation Defendant. Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk IN THE CIRCUIT COURT OF THE 1 ITH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO: EMERGENCY COMPLAINT FOR DECLARATORY RELIEF Jurisdiction and Request for Expedited Relief 1. This is a civil action seeking expedited declaratory relief pursuant to Florida Statutes Sections 86.011 and 86.111. 2. All conditions precedent to the bringing of this action have either been performed by Plaintiffs or have otherwise occurred. 3. Pursuant to Florida Statute Section 86.111, and based upon the facts set forth below, Plaintiffs request an accelerated hearing on this matter, with this action being given priority over ,► r Submitted into the public record for item(s) REA on 07/25/2019, City Clerk other pending actions. Parties 4. Plaintiff BRICKELL HOMEOWNERS ASSOCIATION, INC. is a Florida non-profit corporation that represents the interests of over 35,000 citizens that reside in the Brickell area of Miami, and is duly registered as a neighborhood association with the City of Miami. Plaintiff CHRISTOPHER B. MULLIN is a citizen of, and resides in, and is a registered voter in the City of Miami, Florida. 5. Defendant CITY OF MIAMI (the "City") is a Florida municipal corporation in Miami - Dade County, Florida where venue resides. The City is a governmental entity and "a public institution designed to promote the common interests of the inhabitants in their organized capacity as a local government," and "[i]ts objects are governmental, not commercial," it was "[c]reated for public purposes only." Miami Water Works Local No. 654 v City of Miami, 26 So. 2d 194, 197 (Fla. 1946). Nature of Action 6. This is an action challenging whether the City can lease certain environmentally sensitive public park land to a for-profit corporation without complying with the competitive bidding process contained in Section 29-B of the City's Charter_ Copies of City of Miami Resolution R- 18-0523 18-0523 and the License Agreement executed on February 27, 2019 (the "Agreement") are attached hereto as Exhibits A and Exhibit B, respectively. 2 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Factual Allegations 7. The City operates under its own Charter (the "Charter"). The Charter enables the City to "conduct municipal government, perform municipal functions and render municipal services and may exercise any power for municipal purposes, except when expressly prohibited by law." Sec. 3, Charter. 8. Section 29-B of the Charter governs the lease or sale of municipal property. That section provides that: Notwithstanding any provision to the contrary contained in this Charter or the City Code, and except as provided below, the city commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed sale or lease. The city commission is also prohibited from favorably considering any sale or lease of city -owned property unless (a) there shall have been, prior to the date of the city commission's consideration of such sale or lease, an advertisement soliciting proposals for said sale or Iease published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth (1/.) page and the headline in the advertisement to be in a type no smaller than 18 -point and, (b) except as provided below, there shall have been at least three (3) written proposals received from prospective purchasers or lessees; however, if there are less than three (3) such proposals received and if the guaranteed return under the proposal whose acceptance is being considered is equal to fair market value the city commission determines that the contemplated sale or lease will be in the city's best interest then, subject to the approval of a majority of the votes cast by the electorate at a referendum, the sale or lease may be consummated. 9. Subpart A of the Charter of the City of Miami is the Citizens' Bill of Rights, which provides, in pertinent part: Remedies for violations. Residents of the City shall have standing to bring legal actions to enforce the City Charter, the Citizens' Bill of Rights, and Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk the Miami -Dade County Citizens' Bill of Rights as applied to the City. Such actions shall be filed in Miami -Dade County Circuit Court pursuant to its general equity jurisdiction and, if successful, the plaintiff shall be entitled to recover costs, but not attorney's fees, as fixed by the court. Any public official, or employee who is found by the court to have willfully violated this section shall forthwith forfeit his or her office or employment. Subpart A, paragraph C of the CHARTER (Emphasis supplied). The City's Scheme to Avoid the Important Public Protection of Competitive Bidding 10. The City presently owns, and at all times material hereto has owned, certain real property located on Virginia Key, an environmentally sensitive barrier island which is managed by the Virginia Key Beach Park Trust pursuant to Section 38-230 of the City of Miami Code of Ordinances. 11. On November 15, 2018, the City approved Resolution R-18-0523, the purported effect of which is to approve the City entering into an agreement with ULTRA to allow ULTRA to conduct an electronic music festival on Virginia Key. 12. Resolution R-18-0523 approves a scheme to avoid the important public protections of competitive bidding by calling the agreement with ULTRA a license, rather than a lease, when in fact the terms of the arrangement clearly constitute a lease under Florida law, which lease is subject to the competitive bidding protections of Section 29-B of the City's Charter. 13. On February 27, 2019 the City entered into a 33 page License Agreement with EVENT ENTERTAINMENT GROUP, INC. ("ULTRA"). 14. ULTRA is planning on conducting its festival on Virginia Key on March 29, 30 and 31, 2019. 4 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk 15. The court in Outdoor Media of Pensacola, Inc. v Santa Rosa County, 554 So. 2d 613, 615 (Fla. 3d DCA 1989) outlined Florida law concerning the distinction between licenses and leases as follows: The question in this case is whether the agreement between Community Sign Service and Santa Rosa County was a lease or a license. In DeVore v. Lee, 158 Fla, 609, 30 So.2d 924 925 1947), the court defined a lease as "a conveyance by the owner of an estate to another of a portion of his interest therein for a term less than his own [which] passes a present interest in the land for the period specified." A lease is defined in Black's Law Dictionary 829 (5th ed. 1979), as a - .. . Contract for exclusive possession of lands or tenements for determinate period. Contract for possession and profits of lands and tenements either for life, or for certain period of timed or during the pleasure of the parties. . . . Conveyance of interest in real property for specified period or at will. Conveyance or grant of estate in real property for limited term with conditions attached. Black's also defines a "license" variously as [aj permit, granted by an appropriate governmental body, generally for a consideration, to a person, firm, or corporation to pursue some occupation or to carry on some business subject to regulation under the police power. A license is not a contract between the state and the licensee, but is a mere personal permit. License with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, licensee any title, interest, or estate in such property. Black's Law Dictionary 829 (5th ed. 1979). See also 51 Am.Jur.2d, Licenses and Permits & 1 (1970)--"A license is in the nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license." 16. The rights under the Agreement granted to ULTRA comport with the generally accepted definition of a lease under Florida law. ULTRA has been "given far more than a revocable permission or privilege to enter upon the property." See Ryan v. Wat7 Marine Mfrs. Assn, 103 So. 3d 1001, 1004 (Fla. 3d DCA 2012). 17. Florida Courts have indicated that in interpreting an agreement, "the interpretation of the contracts should be consistent with reason, probability, and practical aspects of the transaction," 5 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk and "the contract should be considered as a whole, not in its isolated parts." Blackshear Mfg. Co. v Fralick, 102 So. 753, 754 (Fla. 1925). 18. Florida law is settled that "A license ... is generally revocable at the pleasure of the grantor . . . . " Dupont v Whiteside, 721 So. 2d 1259, 1263 (Fla. 5th DCA 1998) citing Dance v. Tatum, 629 So. 2d 127 (Fla. 1993) ("[a] license may generally be revoked at the pleasure of the grantor...") citing Seaboard Air Line Ry. v Dorsey, 149 So. 759, 760 (Fla. 1932). See also Devlin v. Phoenix, Inc., 471 So. 2d 93, 95 (Fla. 5th DCA 1985) ("The distinctive characteristic of a license is that it ... is, in its very nature, necessarily revocable at will.") 19. The Agreement is not revocable at the pleasure of the City of 1VIiianu. Rather, the right to terminate the Agreement is extremely limited and can only be done under two carefully defined circumstances: (i) for cause pursuant to Section 3.4.1 after giving 20 days notice of breach and an opportunity to cure; or (ii) without cause `upon at least three hundred and five (305) days prior notice to the next subsequent Event." 20. That the Agreement is not revocable by the City at will is proven res ipsa loquitor and beyond doubt by the fact that the City is powerless to revoke the Agreement without cause and stop ULTRA from conducting, its festival on Mr inia Key on March 29, 30 and 31, 2019 under any circumstances as of the date this lawsuit was filed. As such it is impossible for the City to argue the Agreement is at its pleasure. 21. Further, the City's limited rights to terminate the Agreement is fiuther limited by the language in Section 3.5 of the Agreement: 3.5 Reasonable Efforts. For purposes of this Agreement, the parties shall use commercially reasonable efforts to assist and facilitate future productions to take place on the Property. 31 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk As such, even the right to terminate "upon at least three hundred and five (305) days prior notice to the next subsequent Event" is subject to a requirement that the City has used "commercially reasonable efforts" to ensure that the Agreement remains in force. This further proves the Agreement is not revocable at will. 22. While the Agreement makes vague and generic statements that it is non-exclusive, the express and specific language of the Agreement makes clear that it provides ULTRA with exclusive use of the leased premises. In Homestead -Miami Speedway, LLC v. City of Miami (828 So.2d 411, 413 (3d DCA 2002) the court cited "exclusive use of Bayfront Park for at least three days each year" as a factor in finding that a license agreement was in fact a lease agreement. The specific language of the Agreement goes far beyond that found in the License Agreement at issue in Homestead --Miami Speedway, LLC v City of Miami by providing exclusivity to ULTRA not only vis a vis the City of Miami, but also vis a vis third parties and competing music festivals. 23. The City of Miami is expressly restricted from accessing the demised property during the 35 day "Use Period" in which ULTRA has exclusive use of the Property, except for five carefully limited circumstances that involve ULTRA failing to perform its obligations and the City accessing the property to cure an obligation ULTRA has failed to perform after notice and a ten day period to cure. 24. The Agreement also contains numerous provisions that also grant ULTRA exclusivity vis a vis third parties, including the following excerpts in the following Sections: 4.10 ... the City agrees not to enter into another License or Use Agreement on this Property that would interfere with Licensee's ability to operate for the Permitted Uses on the Il Submitted into the public record .or itern(s)REA on 07/25/2019 City Clerk Property according to the terms of this Agreement. The City agrees not to use or permit others to use the Property under the control of the City during the Use Period except as usually agreed by the City and Licensee. Licensee recognizes and agrees that the Property is a public site and during the entirely of the Use Period, the Licensee will cooperate with e City to maximize public access to the Property. This will not be construed to prevent the Licensee from restricting access to the Event. 4.11 The Event shall be the only multi -day multi -stage music festival to be produced at, and utilizing, the entire Property. The City shall not authorize or make the Property available to another producer of a multi -day, multi -stage music festival or similar music -based event, with over 30,000 patrons expected per day, during the Use Period for each year in which the Event takes place, and including sixty (60) days before Licensee's first Event day and sixty (60) days after the Use Period, for the term of this Agreement. The City acknowledges and agrees that the restrictions described in this Section are reasonably necessary to protect the legitimate business interest of Licensee. 4.14 After the Event, the Licensee shall use commercially reasonable efforts to prioritize the removal of fencing and barricades on the Property, subject to safety and other requirements, in order to ensure maximum public use of the Property. The exclusivity granted to ULTRA under the Agreement against third parties goes far beyond that which was granted in the License Agreement at issue in Homestead -Miami Speedway, LLC V. City Of Midmi. 25. Another factor examined in Homestead Miami Speedway, LLC v City of Miami was the assignability of rights under the agreement. Again, while the Agreement contains vague and generic assertions that the rights of ULTRA under the Agreement are not assignable, it contains specific and express language in Section 3.1 stating that ULTRA can: grant to third parties the right to sell, use or display any goods or products on, to, or from the Property. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk This right to grant third parties the use of and access to, the demised property could not be broader or less restricted, and it is hard to imagine an activity that would not be permitted to be assigned to a third party by ULTRA. This language also goes far beyond the grant of rights contained in the License Agreement at issue in Homestead -Miami Speedway, LLC v City of Miami. 26. Further, as in the License Agreement at issue in Homestead -Miami Speedway, LLC v City of Miami, there is no prohibition whatsoever on ULTRA assigning the Agreement without the City's approval under a myriad of methods, including but not limited to selling a controlling corporate interest in ULTRA to another parry, or merging with another entity. 27. The Agreement contains almost identical terms as set forth in the License Agreement deemed by the Third DCA to be a lease in Homestead -Miami Speedway, LLC v. City of Miami. And it contains similar disclaimers that it is not a "lease" and is a similar effort by the City to enter into a lease agreement while avoiding the public protections of competitive bidding in Section 29-B of its Charter. The City tried to disguise the Agreement as a license rather than what it really is- a lease ... just like it did in Homestead -Miami Speedway, LLC v. City of Miami. COUNTI Violation of Section 29-B of the City Charter 28. Plaintiffs repeat and reallege the foregoing paragraphs 1 to 27 as if fully set forth herein. 29. This is a count for declaratory judgment pursuant to Florida Statute § 86.011. 30. There is an actual, bona fide, practical, and present need for a declaratory relief and a continuing controversy between the parties regarding Section 29-B of the City Charter. E Submitted into the public record for item(s) REA on 07/25/2019 City Clerk , 31, Plaintiffs are in doubt as to their rights, privileges, immunities, and obligations under Section 29-B of the City Charter. 32. Section 29-B of the City Charter provides that whenever the City desires to lease or sell City property, it is required to institute competitive bidding. 33. The Agreement violated Section 29-B because it constitutes a lease and the City did not undertake the required competitive bidding process. RELIEF REQUESTED WHEREFORE, Plaintiffs pray that the Court enter judgment against Defendant City of Miami, awarding Plaintiffs all appropriate relief; including the following: (i) A declaration that the City must strictly comply with the requirements of Section 29- B of the City Charter, (ii) Costs, including attorneys' fees, to the extent permitted by law; (iii) Such other and further relief as the Court may deem just and proper. Respectfully submitted, /djw/ David I Winker, Esq., B.C.S Fla. Bar. No. 73148 David I Winker, PA 2222 SW 17'x' St Miami, F133145 305-801-8700 dwinker@dwrlc.com 10 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk EXHIBIT A RESOLUTION Submitted into the public record for item(s) REA on 07/25/2019. City Clerk Cky Commission Needng Wnutes November 15, 2019 PHA RESOLUTION 5067 A RESOLUTION OF THE MIAMI COMMISSION, WITH Department of Real ATTACHMENT(S), BY A FOUR-FIFTHS (415fHS) AFFIRMATIVE Estate and Asset VOTE AFTER AN ADVERTISED PUBLIC HEARING, RATIFYING, Management CONFIRMING, AND APPROVING THE CITY MANAGER'S Ruisseb � r,. RECOMMENDATION AND WRITTEN FINDING, ATTACHED AND INCORPORATED AS EXHIBIT -A,- PURSUANT TO SECTION 18- 85(A) OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED; WAIVING THE REQUIREMENTS FOR COMPETITIVE SEALED BIDDING METHODS AS NOT BEING PRACTICABLE OR ADVANTAGEOUS TO THE CITY OF MIAMI TO ENTER INTO A REVOCABLE LICENSE AGREEMENT WITH EVENT ENTERTAINMENT GROUP, INC. ("LICENSEE-) FOR THE PRESENTATION OF AN ANNUAL ULTRA MUSIC FESTIVAL AT THE MARINE STADIUM SITE AND VIRGINIA KEY BEACH SITE ON THE TERMS AND CONDITIONS, INCLUDING USE FEE, USE PERIOD, AND OTHER TERMS SET FORTH IN THE REVOCABLE LICENSE AGREEMENT; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE THE REVOCABLE LICENSE AGREEMENT WITH THE USER FOR THE ULTRA MUSIC FESTIVAL, IN SUBSTANTIALLY THE ATTACHED FORM, SUBJECT TO REVIEW AND APPROVAL BY THE CITY ATTORNEY. ENACTMENT NUMBER: R-16-0523 � , r 1Abilf�t Ta � Aa�s�<` 3 6E�CQ�NDEFIr.- n�//�+.,���,,�,�(��►�,j1, __ NA1rS Ruisseb � r,. Note for the Record For additional minutes referencing )tear PH.4, please see "Public Comment Period for Regular Items) and "End of Consent Agenda. " Chair Hardemon: PH.4. Daniel Rorenberg (Director): PH.4. Good afternoon, Commissioners. Daniel Rotenberg; with Department of Real Estate & Asset Management PH.4 is a resolution of the Miami Commission, approving City Manager's recommendation, allowing the City• of .Miami to enter into Revocable License Agreement with Event Entertainment the Annual Ultra Music Festival. Commissioner Carollo: Which music festival? Mr. Rotenberg. Ultra. Chair Hardemon: Was there a presentation or anything, besides what you just read into the record that needed to be made? Sir, you're recognized. Miguel De Grandy: Thank)*u, sir. Mr. Chairman, Commissioners, for the record, my name is Miguel De Grandy, and along with my partner, Richard Perez, we represent Event Entertainment Group. Commissioners, the Ultra Music Festival is, without question, the most important electronic music event in the world. Commissioner Corolla: I'm glad you clarified that it's electronic music event. Submitted into the public record for item(s) REA on 07/25/2019. City Clerk EXHIBIT B LICENSE AGREEMENT Submitted into the public record for item(s) REA on 07/25/2019 City Clerk REVOCABLE LICENSE AGREEMENT THIS REVOCABLE LICENSEAGREEMENT hereinafter referred to as this "Agreement," made this T" day of February 2019, by and between the CITY OF MIAMI, a municipal corporation, with offices at 3500 Pan American Drive, Miami, Florida 33133, hereinafter referred to as the "City," and EVENT ENTERTAINMENT GROUP, INC., a Florida for-profit corporation, with offices located at 201 S. Biscayne Blvd., Suite 800, Miami, Florida 33131, hereinafter referred to as "Licensee" (collectively, the "Parties"). RECITALS WHEREAS, the City is the owner of certain real property throughout Virginia Key, including but not limited to 3501, 3801, 3861 Rickenbacker Causeway and 4020 Virginia Beach Drive, Miami, FL 33149; and WHEREAS, the Virginia Key Beach Park Trust is a limited agency and instrumentality of the City with responsibility to oversee and manage the Historic Virginia Key Beach Park, located at 4020 Virginia Beach Drive, Miami, FL 33149, subject to City Commission approval; and WHEREAS, Licensee hosts an annual electronic music festival ("Ultra Music Festival"); and WHEREAS, Licensee wishes to use the Property (as defined in Section 2.11) for the purpose of producing the Ultra Music Festival and with the 2019 production being scheduled to be produced on March 29, 30 and 31, 2019; and WHEREAS, formal action by the City of Miami City Commission is required to authorize and accept this Agreement, and is a condition precedent to this Agreement's legal efficacy and validity; NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the receipt and sufficiency of which is acknowledged by the parties, the City hereby grants unto Licensee the privilege of entry upon and use of the Property, for the production of the Event and for uses incidental thereto, on the terms and conditions set forth in this Agreement. 1. RECITALS: The above Recitals are true and correct and hereby incorporated into and made a part of this Agreement. 2. DEFINITIONS: When used in this Agreement, the following terms shall have the specified meanings: 2.1 ADDITIONAL CHARGES have the meaning given to such term in Section 7.4 and as outlined in Exhibit C, attached and incorporated hereto. 2.2 AGREEMENT has the meaning given to such term in the preamble to this Agreement. 2.3 CITY means the City of Miami. 2.4 CITY COMMSSION is the local legislative body of the City of Miami who has ultimate control of the PROPERTY and the events held therein. 2.5 EFFECTIVE DATE has the meaning given to it in Section 3.3. 2.6 EVENT means the Ultra Music Festival, to take place at the Property on the Friday through Sunday on either one (1) of the last three (3) weekends of March or the first weekend of April during the Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Term as described herein with operating hours of 2:00 p.m. on Friday to 2:00 a.m. on Saturday; 2:00 p.m. on Saturday to 2:00 a.m. on Sunday; and 2:00 p.m. on Sunday to 2:00 a.m. on Monday. The hours described herein are firm unless an amendment thereto is mutually agreed upon by the Parties. 2.7 INDEMNITEES mean the City, the Virginia Key Beach Park Trust, and all the City's and the Virginia Key Beach Park Trusfs respective members, officials, officers, agents, assigns, successors, personnel, and employees. 2.8 LIABILITIES means all losses, costs, penalties, fines, damages, claims, expenses (including attorney's fees, interest, and costs), and liabilities. 2.9 PERMITTED USES has the meaning given to it in Section 3.1. 2.10 PREMISES means the entire Property, as defined in Section 2.11 and depicted in Exhibits A-1, A-2, and A-3, and such open spaces that may be required by the Licensee for the Event, and other such facilities of the Property as may be authorized by the City. Premises does not include the use of the physical stadium structure known as the Ralph Middleton Munroe Miami Marine Stadium. 2.11 PROPERTY collectively refers to the event space surrounding, but specifically excluding, Ralph Middleton Munroe Miami Marine Stadium, located generally at 3501 Rickenbacker Causeway, Miami, FL 33149, as shown on the attached Exhibit A-1; the land adjacent to Arthur I. Lamb Road, located generally at 3801 Rickenbacker Causeway, Miami, FL 331349, as shown on the attached Exhibit A-2; and the event and parking space operated by the Historic Virginia Key Beach Park Trust, located generally at 4020 Virginia Beach Drive, Miami, FL 33149, as shown on the attached Exhibit A-3. 2.12 TICKET SURCHARGE means the fees to be paid in accordance with the ticket surcharge rates expressly provided in Section 53-1 of the Code of the City of Miami, Florida, as amended. 2.13 USE FEE means the sum of Two Million Dollars ($2,000,000.00), that the Licensee shall pay the City for each yearly Event produced at the Property and Premises. The Use Fee shall be increased annually by Three percent (36/6) commencing upon the production of the third (3rd) Event and such Use Fee includes the Ticket Surcharge. Such Use Fee is more particularly described in Section 7 herein. 2.14 USE PERIOD means the Thirty -Five (35) day period inclusive of load in and load out and ancillary preparations and removals, as applicable, that begins at approximately 7:00 a.m., Eighteen (18) days prior to each Event, and ends at 11:59 p.m., Fourteen (14) days after the conclusion of each Event. These dates are subject to mutual agreement of the parties on an annual basis, as more particularly set forth in Section 3.2. 2.15 LICENSEE has the meaning given to such term in the preamble to this Agreement. 3. EVENT AND USE PERIOD: 3.1 Purpose: The Property shall be used and occupied by the Licensee solely for the purposes of producing the Event and for undertaking any and all uses ancillary and incidental thereto, selling, using or displaying any goods and/or products related to the Event, and to grant to third parties the right to sell, use or display any goods or products on, to, or from the Property (collectively the "Permitted Uses"). Licensee may request written consent from the City Manager or their designee to use the Property for other allowed uses but shall not be authorized until Licensee has received the written Submitted into the public record for items) REA on 07/25/2019. City Clerk consent of the City Manager or their designee, which consent may not be unreasonably conditioned, withheld or delayed Unless otherwise expressly and specifically provided hereunder, Licensee shall be solely responsible for the production, coordination and management of the Event, at its sole cost and expense. This Agreement solely authorizes Licensee to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. The Parties hereby agree that, the provisions of this Agreement do not constitute a lease or confer any leasehold rights or estate. The rights of Licensee hereunder are not those of a tenant, but merely authorization to do certain acts of a temporary character on the Property and to use the Property, subject to the terms of this Agreement. The City retains dominion, possession and control of the Property. Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this Agreement, its use of the Property, or by virtue of any expenditure of fonds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City Manager or his/her designee. 3.2 Event Use Period The Event will, at the option of Licensee, take place at the Property on the Friday through Sunday on either one of the last three (3) weekends of March or first weekend of April, or other date mutually agreed upon by the Licensee and City Manager, for each Event year. The specific weekend for the Event shall be designated by Licensee and City in conjunction with the notice Licensee is required to deliver to the City pursuant to Section 9.4 described herein. The dates for the Event in 2019 are March 29, 30, and 31. Licensee and City shall use commercially reasonable efforts to coordinate the Use Period in a manner that does not conflict with other major events on the Property. Without limiting the foregoing, the Event date selected (and corresponding Use Period) shall not conflict with the dates afforded to National Marine Manufacturer's Association's CWMMA") use period per the revocable license agreement between NMMA and the City originally approved by Resolution No. R-15-0009. The operating hours of the for the Event days shall be: from 2:00 p.m. on Friday to 2:00 a.m. on Saturday; 2:00 pm. on Saturday to 2:00 am. on Sunday; and 2:00 p.m. on Sunday to 2:00 a.m. on Monday. The aforementioned times shall be fixed and apply to the Event throughout the Term of this Agreement. Licensee will occupy the Property for no more than thirty-five (35) days including load in to load out. Set-up for the Event will begin at the commencement of the Use Period and tear -down will terminate no later than the end of the Use Period each year. Any use of the word "day" or "days" throughout this Agreement shall mean calendar days, unless specifically stated otherwise. 3.3 Term: There is no stated or expressed term for this Agreement. As a revocable license, it has an indefinite term and may be terminated or revoked for convenience at the will of the City Manager and as otherwise provided in this Agreement. The Effective Date of this Agreement is the execution date of the Agreement by the last of the Parties and shall continue until terminated by any means available in this Agreement. Licensee acknowledges that this is a revocable license agreement authorizing a specific use for a limited time per year, subject to various other limitations specified herein; and that it does not convey, pledge, hypothecate, or confer any right, title or interest in any City -owned real property. 3.4 Termination 3.4.1 With Cause: Each party agrees to abide by every term and condition of this Agreement. If either party materially breaches the terms, restrictions or conditions of this Agreement, then the nonbreaching party shall give the breaching party twenty (20) days written notice within which to cease such violation or correct such deficiencies. Upon the breaching party's failure to do so, the nonbreaching party may cancel this Agreement upon giving ten (10) days written notice to the breaching party and thereafter the Agreement shall be Submitted into the public record for item(s) REA on _ 07/25/2019 , City Clerk automatically canceled without the necessity for further action by the nonbreaching party. Termination for cause shall include, without limitation, any one of the following acts or omissions: (a) Failure to pay any payment or any portion thereof within ten (10) days of due date; (b) Failure to carry insurance as required in this Agreement; or (c) Failure to comply with any material terms or conditions of this Agreement, including, but not limited to, conditions expressly set forth in Sections 5, 6 and 13. 3.4.2 Without Cause: Licensee or City may, at its option and without the other party's consent, terminate this Agreement upon at least three hundred and five (305) days' notice prior to the next subsequent Event. In the event of such termination by Licensee, the provisions of Section 9 (with respect to the Damage & Security Deposit) shall be applicable to all other obligations and duties shall be applicable. 3.5 Reasonable Efforts: For purposes of this Agreement, the Parties shall use commercially reasonable efforts to assist and facilitate future productions of the Event to take place on the Property. 4. PREMSES: 4.1 Restroom Facilities: Licensee hereby agrees to provide adequate portable restroom facilities, which shall be open and operational during the Use Period. 4.2 Control of Access: Licensee hereby agrees that the staff and management of the City, in consultation with the Miami Police Department and Licensee, have complete control as to when gates to Events are opened. Licensee hereby agrees to respond to any reasonable City request during the Use Period of the Event. 4.3 Sound Checks: Licensee hereby agrees that there will be no sound checks before 12:00 noon or after 2:00 a.m. on any weekday (Monday through Friday). 4.4 Light Checks- The City hereby agrees that Licensee shall be permitted to conduct light checks on the eve of; and prior to, each Event day. 4.5 Sound Level: Licensee's Event may not exceed a maximum level of One Hundred Ten (110) decibels measured 60 feet away from each stage. Failure to cure each incident of sound level non-compliance within five (5) minutes of notification by a City designee will result in a fee o€$1,000.00 per each incident. Each incident shall constitute a separate event of non-compliance. Licensee shall provide onsite personnel to monitor the sound level at all times during the Event, at Licensee's sole cost and expense. 4.6 Time of Event: Licensee hereby agrees the Event must end by 2:00 am. on each day of the Event. Licensee shall pay a time overage fee of $1,000.00 for every single minute, or a fraction thereof, if the Event continues beyond 2:00 a.m. This overage fee is in addition to all other fees and costs for which Licensee is responsible under this Agreement. Each minute shall constitute a separate event of non- compliance Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 4.7 Alcohol Wrist Band Policy: Licensee hereby agrees that if alcoholic beverages are vended at the Event, Licensee will use alcohol wrist -banding staff to ensure consumers of alcohol are of the appropriate legal drinking age. Licensee or Licensee's concessionaire shall obtain all required permits required by law. Failure to comply with this rule, whether by the concessionaire or their representative, may result in the immediate cancellation of alcohol sales and breach of this Agreement, as determined by the City Manager or City Manager's designee. 4.8 Dispensine of Alcoholic and Non-alcoholic Beverages: 4.8.1 Licensee shall not sell beverages, alcoholic or non-alcoholic, in glass or polystyrene foam containers of any size. Additionally, Licensee shall use reasonable good faith efforts to minimize the use of plastic products near environmentally sensitive areas. 4.8.2 Licensee hereby agrees to dispense a maximum of two (2) alcoholic beverages per person at time of purchase. 4.8.3 Licensee hereby agrees that sales of alcoholic beverages will stop sixty (60) minutes prior to the end of the Event. Sales of non-alcoholic beverages shall not be subject to this restriction. 4.8.4 Licensee is responsible to secure all governmental permits and approvals required by applicable laws and regulations for the sale and dispensation of alcoholic beverages. All required liquor permits shall be filed with the City Manager at least ten (10) days before the commencement of the Event. 4.9 tensor's Signage and Banner Placement: City hereby agrees that Licensee may place signage and banners in the Property during the Use Period subject to the approval of the City's Director of Real Estate and Asset Management and such approval may not be unreasonably withheld, delayed or conditioned. Licensee shall ensure that all signage and banners are permitted and comply with City and County Sign and Zoning Regulations. Licensee shall secure all required permits and approvals for such signage and banners and shall remove all signage and banners prior to the end of the Use Period. 4.10 Non -Exclusivity: This Agreement confers no exclusive possession of the Property, provided however, the City agrees not to enter into another License or Use Agreement on this Property that would interfere with Licensee's ability to operate for the Permitted Uses on the Property according to the terms of this Agreement. The City agrees not to use or permit others to use the Property under the control of the City during the Use Period except as mutually agreed by the City and Licensee. Licensee recognizes and agrees that the Property is a public site and during the entirety of the Use Period, the Licensee will cooperate with the City to maximize public access to the Property. This will not be construed to prevent the Licensee from restricting access to the Event. 4.11 Exclusivity The Event shall be the only multi -day multi -stage music festival to be produced at, and utilizing, the entire Property. The City shall not authorize or make the Property available to another producer of a multi -day multi -stage music festival or similar music -based event, with over 30,000 patrons expected per day, during the Use Period for each year in which the Event takes place, and including sixty (60) days before Licensee's first Event day and sixty (60) days after the Use Period, for the term of this Agreement. The City acknowledges and agrees that the restrictions described in this Section are reasonably necessary to protect the legitimate business interests of Licensee. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 4.12 Limited Use The City agrees that it will not license any individual portion of the Property to any multi -day multi -stage music festival or similar music -based event, with over 30,000 patrons expected per day, for the Use Period and including sixty (60) days before Licensee's first Event day and concluding sixty (60) days after the Use Period, for the term of this Agreement. The City acknowledges and agrees that the restrictions described in this Section are reasonably necessary to protect the legitimate business interests of Licensee. 4.13 Improvements: Licensee shall not make any permanent improvements or erect any permanent structures whatsoever to or on the Property without the prior written approval of the City, which may be refused or conditioned in the City's sole discretion. As of the Effective Date and throughout the Use Period, all buildings and permanent improvements thereon are vested in the City. Furthermore, title to permanent improvements and all alterations made in or to the Property, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion, become the property of the City and shall remain with the Property. Licensee shall leave the Premises in a condition equal to or better than provided prior to each Event, as further detailed in Section 5 below. 4.14 Third -Party Agreements: The City agrees to make reasonable efforts, at no cost to the City and subject to existing agreements, to assist Licensee in obtaining access or use agreements with third party operators and with other operators on City -owned property for use by the Licensee during and in support of the Event. Licensee is responsible to, and shall be required to safeguard, maintain, protect and preserve the egress, ingress and access of all neighboring businesses and users existing as of the Effective Date of this Agreement to the extent such entities are affected by the Licensee's use of the Property including, without limitation, the Virginia Key Outdoor Center, the Rusty Pelican, the Miami Rowing Club, Atlantica at Bayside Hut, Key Biscayne Marine Station, the adjacent marinas, Miami Seaquarium, and the Miami -Dade County Water and Sewer Department facility. Licensee will be additionally responsible for negotiating any agreements or arrangements with such third parties, to the extent not otherwise expressly prohibited herein. Additionally, Licensee shall preserve the egress, ingress, and access of neighboring businesses and users entering into a lease, license, or other agreement or permit with the City to use any portion of the Property after the Effective Date of this Agreement, and the Licensee shall enter into good faith negotiations with the City to minimize any monetary impact to those third -party entities. After the Event, Licensee shall use commercially reasonable efforts to prioritize the removal of fencing and barricades on the Property, subject to safety and other requirements, in order to ensure maximum public use of the Property. The Licensee understands and accepts the City's current Exclusive Concession Agreement, approved by Resolution R- 15-0227, with Eventstar Structures, Corp. ("Eventstar") and shall use Eventstar for any tent structures intended to be placed on the Marine Stadium Area shown on Exhibit A-1, subject to the term and limitations contained in such agreement. The Parties understand and agree that stages used for the Event are separate and apart from tent structures. Licensee shall, in good faith, endeavor to use vendors that are minority-owned, Certified Small Business Enterprises, local, and/or which otherwise provide benefits to historically underprivileged areastpopulations within the City of Miami. Licensee's failure to comply with this provision shall not constitute a material breach of this Agreement, nor shall the City be entitled to any audit rights respecting Licensee's vendor selection practices. 4.15 Traffic Management Plan On December 20, 2018 for the 2019 Event, and thereafter One Hundred and Twenty (120) days prior to each Event, Licensee shall prepare and submit to the City Manager for City's review and Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk written approval, a traffic management plan setting forth the operational strategies for managing event -generated and background traffic on the day(s) of the Event within the Property and general region to ensure safe means of access to the site and to minimize traffic disruptions on Rickenbacker Causeway. As to the 2019 Event, the City acknowledges receipt of Licensee's preliminary Traffic Management Plan on December 20, 2018. The City shall not unreasonably delay, condition and/or deny such approval. The Licensee will work with the police departments of Key Biscayne, Miami, and Miami -Dade County in order to receive and consider their input on traffic management. Licensee shall also hire, at its sole cost and expense, traffic management experts to consult with Licensee and the City concerning the proper traffic management strategies. The traffic management plan must (1) indicate how traffic, parking, and pedestrian operations will be managed on the day(s) of the Event, (2) coordinate and mitigate transportation impacts, and (3) adapt to traffic demand scenarios, demand management plan, and contingencies. At a minimum, the traffic management plan shall include: (1) Traffic flow route planning, inclusive of the consideration of a dedicated lane for traffic coming to or from Key Biscayne during the Event; (2) Site access and parking planning, inclusive of the limitation of on-site parking to "VIP" guests, Licensee's officials, or public safety personnel; (3) Pedestrian access planning; (4) Traffic control planning; (5) travel demand management and transit service planning, inclusive of the use of ferries, water taxis, ride -sharing programs, and/or shuttle bus services; (6) Incident management and traveler information planning; and (7) Access routes and planning for those business referenced in Section 4.14, and other nearby businesses on Virginia Key impacted by the Event. 4.16 Environmental Management and Remediation Plan; Wildlife Plan Sixty (60) days prior to each Event, Licensee shall prepare and submit to the City Manager for City's review and written approval, an Environmental Management and Remediation Plan setting forth the preventative measures that will be undertaken by Licensee to avoid damage to, or contamination of, environmentally sensitive habitat, vegetation, or preserved areas. Such plan shall also identify environmental mitigation and remediation activities so as to minimize any actual or potential adverse impacts and to provide adequate protection to such areas. Licensee shall also hire an environmental expert and consultant to ensure compliance with the various environmental responsibilities of Licensee set forth in this Agreement. In the event of a dispute between the Licensee and City as to Licensee's compliance with Licensee's various environmental responsibilities, such dispute shall be resolved by the third party environmental expert and consultant mutually agreed to by the City Manager or designee and Licensee and paid for at the Licensee's sole cost and expense. The City shall not unreasonably delay, condition and/or deny such approval. The Environmental Management and Remediation Plan must: (1) disallow any access, by fencing and barricading, to the Historic Commodore Ralph Middleton Munroe Marine Stadium; and (2) disallow any access, by utilizing appropriate fencing, to the prohibited areas on Exhibit D, including potentially racetrack level fencing. Licensee shall include a separate Wildlife Management Plan and Remediation Plan, as an independent section within the Environmental Plan, or presented concurrently by Licensee to the City Manager as a separate plan, at the option of the Licensee, addressing all measures to avoid impacting all wildlife, including both aquatic (marine) and land wildlife, and measures taken to safeguard such wildlife that could be impacted by the Event. The Wildlife Management Plan will be prepared by a recognized wildlife expert. Licensee's wildlife expert and consultant will also to ensure compliance with the various wildlife measures of Licensee set forth in this Agreement. In the event of a dispute between the -Licensee and City as to Licensee's compliance with Licensee's various wildlife responsibilities, such dispute shall be resolved by the third -party wildlife expert and consultant mutually agreed to by the City Manager or designee and Licensee and paid for at the Licensee's sole cost and expense. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Licensee shall have, at its sole cost and expense, the qualified staff necessary to supervise and monitor the protection of sensitive environmental areas and wildlife throughout the Use Period and Event. The requirements of such onsite staff shall be specified in the Environmental Management and Wildlife Management plans and shall be subject to the City's review and approval. Together with the Environmental Management and Remediation Plan and Wildlife Management and Remediation Plan, and at the option of the City Manager, Licensee shall be required to submit to the City an Environmental Surety Bond in an amount determined by the City Manager using, and based on, commercially reasonable standards when factoring Licensee's damage and security deposit, insurance coverage limits, and past payment history, among other factors, to guarantee compliance with all environmental requirements expressly provided for in this Agreement, including, but not limited to, compliance with all environmental laws. To the extent applicable, the form of the Bond shall be approved by the City Manager or the Risk Manager as the Manager's designee and by the City Attorney as to legal form. Prior to the Event scheduled for the year 2019, Licensee shall provide to the City, at Licensee's sole cost and expense, an Environmental and Wildlife report detailing and setting forth a baseline study and assessment of the Event's anticipated effects on the local environment and wildlife. Notwithstanding any language contained herein to the contrary, if Licensee has knowledge of any changes to the Environmental Management and Remediation Plan that are materially different from the plan submitted for the immediately preceding Event, Licensee shall provide the updated Environmental Management and Remediation Plan a minimum of One Hundred and Twenty (120) days prior to the subsequent Event date. 4.17 Safety and Security Plan On December 20, 2018 for the 2019 Event, and thereafter One Hundred and Twenty (120) days prior to each Event, Licensee shall prepare and make available to the City Manager for City's review and written approval, a Safety and Security Plan setting forth the various efforts to be undertaken by Licensee to ensure the safety and security of the patrons of the Event. The City shall not unreasonably delay, condition and/or deny such approval. The Safety and Security Plan shall include, without limitation: (1) a mass evacuation plan, (2) stage locations, (3) fencing locations, (4) security and emergency operations personnel requirements, (5) emergency vehicle access routes, (6) communications plan, and (7) any other necessary safety and security components required by the City's Police and Fire departments. 5. CONDITION OF PRENIISES AND REQUIRED RENOVATIONS: 5.1 Licensee has inspected, or has been given the opportunity to inspect, the Premises, prior to execution of this Agreement, and accepts it in its present condition and agrees to restore and return the same in the pre -load -in condition. The City shall maintain the Property on a year-round basis and shall be responsible for replacing and restoring elements on the Property which are damaged (unrelated to Licensee's use). Specifically, Licensee agrees that it shall replace or restore to their original condition, any and all components of the Property, including but not limited to infrastructure, electrical or fiber-optic cables lines, grass or trees, including necessary irrigation, if any, and decorative and play structures, which are damaged due to the Event. All replacement or restoration shall be in a manner satisfactory to the City, in the City's sole discretion. 5.2 Licensee shall repair and make the Property available for public use immediately after the Use Period. Licensee shall complete all restoration no later than June 1 following each Event, annually. Licensee shall make a qualified representative available (for whom the City shall retain approval Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk rights provided that the City make the Property available to Licensee to undertake such repairs and restoration and provided that the City does not cause or contribute to any delays in the repairs or restoration) to review, discuss and implement a course of action as a result of damages to the Property in accordance with the terms mentioned in Section 9, Damage & Security Deposit. Should Licensee fail to complete the Property's restoration by June 1 following each Event annually, the City Manager shall, subject to the foregoing, have the sole option to elect to begin deducting $10,000.00 per day from the $250,000.00 Damage & Security Deposit for each day the restoration remains incomplete. Licensee understands that if the Property is not cleared of any and all production equipment, including electronics, supplies, and personal property by the expiration of the Use Period following notification to Licensee and, unless it has made other written arrangements with the City Manager or designee, a $10,000.00 per day fee may be imposed until the Premises has been cleared. 53 The Parties acknowledge that Licensee upon occasion shall have the right, but not the obligation, to make certain temporary renovations to the Property in order to produce the Event, with such temporary renovations occurring at Licensee's sole cost and expense. The City shall not have any obligation to Licensee, financial, contractual or otherwise, arising out of temporary renovations. Any temporary renovations shall be performed in a manner acceptable to the City and shall minimize impacts to visitors of the Property. 5.4 Licensee acknowledges that it will not access or use the Ralph Middleton Munroe Miami Marine Stadium, unless and until the Stadium has been restored, and then only after the City Manager provides written authorization, subject to all additional terms or restrictions imposed in the sole discretion of the City. 5.5 Licensee will use reasonable efforts to maintain the Property and surrounding areas clean from any waste during the Use Period, including, for example, the implementation of environmentally sensitive turbidity control measures. Historically designated areas or environmentally sensitive habitat, vegetation, or preserved areas, including, but not limited to, the areas specifically designated on the attached Exhibits D-1, D-2, and D-3, shall not be damaged or disturbed by Licensee. Licensee shall further take appropriate measures to protect environmentally sensitive areas of the Premises, including those specifically identified in Exhibit .E, such measures being detailed in the Environmental Management and Remediation Plan. 5.6 Licensee acknowledges and accepts that it will not access or use the Virginia Key Beach Park Trust's offices or identified historic buildings and sensitive areas on the Historic Virginia Key Beach Park, attached an incorporated herein as Exhibits D-1, D-2, and D-3. Usage of such buildings on the Virginia Key Beach Park is subject to the written approval of the City Manager or his designee. 6. COMPLIANCE WITH PERMITS AND LAWS: 6.1 Licensee represents and warrants that during the term of this Agreement, in connection with the Event, it will obtain and maintain all required permits and approvals. The City will assist Licensee in obtaining permit(s) from governmental agencies including the Police and Fire Departments of the City of Miami. Police Department and Fire Department manpower and equipment requirements shall be determined by the respective Department and presented to Licensee at least ten (10) business days prior to the Event. 6.2 Licensee represents and warrants that during the term of this Agreement, it will not use or employ the Premises, or any other City owned property, to handle, transport, store or dispose of any hazardous materials and that it will not conduct any activity on the Premises or other City -owned property in violation of any applicable environmental laws. Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk 6.3 Licensee represents and covenants that it will comply, and require its concessionaires to comply, with all applicable laws, codes and ordinances, including, but not limited to, the Americans with Disabilities Act ("ADA"), the Florida Building Code, all laws prohibiting discrimination, planning, zoning, traffic, environmental laws, and regulations. 6.4 Licensee represents and warrants that it is aware of the restrictions contained in Sections 22-180 through 22-185 of the Code of the City of Miami entitled "Handbills" and that it will comply with all of the requirements therein with respect to the distribution of commercial handbills. Should Licensee fail to comply, it shall be responsible for the payment of any fine the City may impose upon the City. Payment for fines imposed must be made within ten (10) days of receipt thereof. 6.5 Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, permits, approvals, ordinances, rules, and regulations (collectively sometimes referred to as: "law" or "laws") is a condition of this Agreement, and Licensee, and any of its employees, agents or performers, shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 7. USE FEE: 7.1 The Use Fee that is hereby agreed to by Licensee, to be paid by Licensee to the City is Two Million Dollars ($2,000,000.00) for each Event that occurs on the Property under the terms of this Agreement, subject to an increase of Three percent (30/6) annually commencing upon the production of the third (3d) Event, such increase applying yearly to each Event thereafter through the termination of this Agreement. 7.2 The Use Fee includes the Ticket Surcharge as defined in Section 2 of this Agreement. The Use Fee is an unconditional and absolute payment due the City regardless of any ticket shortfalls, reductions in ticket sales, ticket price or sale fluctuations, or the number of tickets sold by the Licensee for the Event. The Use Fee is due as a net payment to the City without any deductions made for service charges, utilities, taxes, allowable offsets, Additional Charges as described herein, and any similar credits. The Ticket Surcharge as described herein and outlined in Section 53-1 of the Code of the City of Miami, as amended, shall be applicable to all Event tickets sold, as well as complimentary tickets in excess of 3,000. In the event the Ticket Surcharge due to the City in accordance with Code Section 53-1 exceeds the Use Fee, the City shall be entitled to the greater of the Ticket Surcharge or the Use Fee. Notwithstanding any language to the contrary, under no circumstances will the City ever receive less than the Use Fee. For example, if the Ticket Surcharge in effect at any time would result in Ticket Surcharge collections of $2,700,000 (based on tickets sold and complimentary tickets in excess of 3,000) for an Event, and the Use Fee payable to the City under Section 7.1 for that Event is $2,000,000, then Licensee would pay the City $2,700,000 in full satisfaction of Licensee's obligations under both Sections 7.1 and 10.1. 7.3 In consideration of the use of the Property, Licensee shall be responsible for all costs and expenditures associated with the production of the Event, and Licensee shall compensate the City by payment of the Use Fee as defined in this Agreement. The Use Fee shall include fees for use of the Premises on load -in and load -out days and Event Days, the Ticket Surcharge and fees for use of the Property. 7.4 The Use Fee shall cover all fees associated with the use of the Property by Licensee. The Use Fee is for the temporary use of the Property, as specified in this Agreement, and does not include any services provided by the City, and specifically excludes Additional Charges, which may be incurred by Licensee, such as agreed-upon clean-up services, police, fire -rescue, utilities, Submitted into the public record for item(s) REA on 07/25/2019 City Clerk sanitation, landscaping, and other charges set forth in Exhibit C ("Additional Charges"). The final cost of any Additional Charges shall be determined by the City upon presentation of invoices to Licensee following a prior estimate by the City of the various service providers, as applicable. 7.5 Under no circumstances will the City be liable for any costs or expenses incurred by Licensee under this Agreement or as a result of its operations or related activities beyond those that are expressly and specifically set forth in this Agreement. Licensee shall be responsible for all costs involved in the production of the Event, including without limitation: all BMI and ASCAP copyright and license fees, any intellectual property fees, all staffing and all charges for police, fire rescue, inspectors, building and/or assembly permits, security, insurance, all utilities, supplies, equipment rental, ticket surcharge, all applicable taxes, including State of Florida Sales and Use Tax, any other governmental levies and impositions imposed by law, and other services. Licensee may engage any vendor(s) it elects to contract with, and Licensee is not required to use City -approved vendors, except as otherwise specifically provided by law or in this Agreement. The preceding sentence does not apply to service furnished by City employees. 7.6 The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Property, to which Licensee may be entitled hereunder, when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of the City Manager desirable or necessary to be made or due to difficulty in obtaining supplies or labor, or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence, and to the extent that substantial repairs, alterations, improvements and/or construction is contemplated or scheduled to occur during the Use Period, Licensee shall be promptly notified by the City of such scheduled repairs, alterations, improvements and/or construction. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall this Agreement or any of Licensee's obligations hereunder be affected or reduced thereby. S. TERMS OF PAYMENT: 8.1 Licensee shall submit to the City, by wire transfer, cashier's check, or money order, by March 86 every year the Event will take place, and in any event no later than 5:00 pm., two (2) days prior to the commencement of the Use Period, the Use Fee, and any estimated additional charges, and Licensee shall have fully and timely replenished the Damage 8t Security Deposit by the dates outlined herein. 8.2 All amounts due to the City in excess of the Use Fee or in excess of the estimated Additional Charges, including all pass-through costs, shall be remitted to the City the later of (i) thirty (30) days following the conclusion of the Event or (ii) ten (10) days after Licensee's receipt of such invoice(s). 8.3 If any installment of the Use Fee or any other undisputed sum due from Licensee shall not be received by the City on the date such undisputed sum is due, Licensee shall pay to the City an interest rate equal to five percent (5%) per annum of such overdue amount. If the undisputed sum due is not received by the City within fifteen (15) days after the date on which such undisputed sum is due, the Five percent (5%) interest rate will be replaced with an interest rate equal to Eleven and One Half (11.5%) per annum of such overdue amount The Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by Licensee. Acceptance of such late charge by the City shall not constitute a waiver of Submitted into the public record for item(s) REA on 07/25/2019 City Clerk the Licensee's default with respect to such overdue amount, nor prevent the City from exercising any of its other rights and remedies granted hereunder or at law or in equity. The terms of this Section shall not apply to any charges which are the subject of a good faith dispute which are controverted in writing, setting forth with reasonable specificity all pertinent details by the party seeking to avoid payment, within ten (10) days of the due date. 9. DAMAGE & SECURITY DEPOSIT: DATE DESIGNATIONS: 9.1 The Damage & Security Deposit shall be in the amount of Two Hundred and Fifty Thousand dollars ($250,000.00) and shall be subject to the applicable terms of this Agreement. The Damage & Security Deposit is intended to secure performance of all of Licensee's obligations hereunder, including but not limited to the repair and restoration of the Property after the Event. In addition, the Damage & Security Deposit is intended to secure Licensee's request for future dates through the end of the term of this Agreement. 9.2 A joint inspection of the Premises by the parties will be made within Two (2) business days after the completion of each Event and/or upon the expiration of the Use Period, wherein the short-term and long -terra repairs to the Property will be identified. The Damage & Security Deposit will be held by the City until such time as all the repairs are completed or it is depleted by Licensee's failure to complete the restoration within the allotted time. The Damage & Security Deposit shall also be applied toward payment of any fees, liens, costs or other assessments against the Property or the City for activities and operations of Licensee directly resulting from or related to the Event. In the event the amount necessary to repair the damages or satisfy Licensee's obligations hereunder exceeds the Damage & Security Deposit, then Licensee agrees to pay the balance to the City within Ten (10) business days of the City's written request. 9.3 Nothing in this Agreement shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Property nor as giving the Licensee the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any liens against the City's interest in the Property. If any liens shall at any time be filed against the Property, the Licensee shall initiate steps to cause it to be discharged of record within thirty (30) days after the date that it has notice of its filing. Licensee's failure to comply with this Section shall be a material breach of this Agreement by the City Manager for cause. 9.4 Licensee further agrees to inform the City by July I of every subsequent Event year, of the requested dates on which the Event shall be scheduled, or otherwise shall inform the City of its intentions not to produce the Event during the Use Period for the subsequent dates for the immediately following year. If Licensee does not affirm its intention of not holding the Event, the Damage & Security Deposit will be held to secure performance of all Licensee's obligations. Licensee's failure to inform the City of Licensee's intention to not hold the Event by the above - stated deadlines, shall be deemed an affirmation by Licensee of its intention to continue to use the Property so long as the License is in effect. Cancellation of the Event after Licensee's affirmation to the City of its intention to use the Property shall result in forfeiture of the Damage & Security Deposit. 9.5 Similarly, in the event the Damage & Security Deposit falls below $250,000.00 after Licensee completes all necessary repairs to the Property, Licensee shall timely and fully replenish up to the full amount of $250,000.00 within Ten (10) business days of the City's written request. 9.6 If Licensee fails to remove any personal property, equipment and fixtures from the Property within Twenty -Four (24) days following the close of the Use Period and notification by the City to Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Licensee and following Licensee's failure to remove such personal property, equipment and fixtures from the Property, then said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability shall remove the same and Licensee shall reimburse the City for all costs associated with such removal and disposal within Ten (10) business days following such removal. Licensee will be liable for any costs, including removal and/or storage, incurred by the City for Licensee's failure to timely remove personal property, equipment and fixtures from the Property. 9.7 Licensee shall not be entitled to receive any interest on the Damage & Security Deposit As this Agreement is a license, the Parties stipulate that Chapter 83, Florida Statutes, does not apply to the Damage & Security Deposit, and this is not a lease agreement. 10. TICKETS: 10.1 Ticket Surcharge: For purposes of this Agreement, the City acknowledges and agrees that all applicable ricket surcharges as stated in Section 53-1, of the Code of the City of Miami, as may be amended, that are due to the City are inclusive in the Use Fee, unless the total Ticket Surcharge due to the City under such Code Section 53-1 exceeds the Use Fee. Licensee shall pay to City all Ticket Surcharge fees to the extent that they exceed the Use Fee, as provided in Sections 7.1 and 7.2 herein. Licensee agrees to pay all applicable taxes, merchant, and service charges related to tickets. 10.2 Complimentary Tickets: Subject to those terms set forth in Section 7, Licensee shall have right to distribute up to 3000 complimentary tickets per each Event day for promotional use without payment of a ticket surcharge. Complimentary tickets distributed by the Licensee in excess of 3000 per each Event day shall have a face value of not less than the highest priced general admission ricket of each Event year for purposes of calculating and remitting the ticket surcharge. 10.3 Ticket Policy: 10.3.1 Licensee agrees that all ticketed events in the Property, to include the Event will be audited by the City Manager's designee relating to tickets sold by Licensee. There will be no exceptions. 10.3.2 Licensee agrees to submit a valid ticket manifest prior to the opening of the gates. There will be no exceptions. The City Manager's designee will report compliance or lack of compliance to the City prior to the gates being opened on day of the Event. 10.3.3 Failure to provide a valid ticket manifest may result in a non-compliance fee as outlined below. The fee will be assessed on all tickets counted by the City, including complimentary tickets. Fees shall be assessed as follows: 1,000 to 9,999 tickets - $1,000.00 non- compliance fee; 10,000 to 19,999 tickets - $2,000.00 non-compliance fee; and 20,000 + tickets - $3,000.00 non-compliance fee 10.4 Ticket Scanning: In the event that Licensee employs a ticket scanning method (including barcode, RFID and other scanning technologies), City ticket scanning personnel will not tear tickets in half and a drop count will not be used. Additionally, Licensee shall provide sufficient back-up scanners in the event of any scanner malfunction. In the event of a complete scanner failure, the City may use alternative methods to maintain accurate counts of patrons attending the Event Licensee will provide the City with a laptop loaded with a ticketing program that will track the scanned tickets making it possible to know how many patrons are in the facility at any time. In the event that the show's tickets are Submitted into the public record for item(s) REA on 07/25/2019. City Clerk sold out, the City and Licensee agree that ticket counting staff will not be required. 10.5 Ca aci : The total capacity for the Event shall not exceed 60,000 persons per day. 11. ADVERTISING: All advertising for Event must state: (i) Miami, FL; Historic Virginia Key Beach Park & Miami Marine Stadium, (ii) Miami, FL; Marine Stadium & Virginia Key Beach Park or (iii) Miami, FL; Virginia Key, or some other derivative specifically acknowledging the City of Miami and using commercially reasonable efforts to specify the use of Miami Marine Stadium and Historic Virginia Key Beach Park. Licensee shall not permit any signs or advertising matter to be placed upon the exterior of the Property without having first obtained the written approval of the City Manager or their designee, which approval may not be unreasonably withheld, delayed or conditioned. Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approval from all governmental authorities having jurisdiction and must comply with all applicable requirements set forth in the Sign Regulations in the City of Miami Code and Zoning Ordinance and the Miami -Dade County Sign Code, as applicable. Upon the end of each Use Period, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other item permitted hereunder from the Property. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having entered into this Agreement. 12. FOOD & ARTS & MERCHANDISE LOCATIONS: Not later than sixty (60) days prior to the Use Period, the Licensee shall make available to the City, for the City Manager's approval, which approval shall not be unreasonably withheld, delayed or conditioned, a preliminary site plan setting forth the location of Licensee's installations and equipment on the Property, including, without restriction, the location of the Licensee's tents, ticket box office, concession and food stands, and vans. Final Site Plan shall be due to the City not later than thirty (30) days prior to the Use Period. The City Manager, or his designee, shall approve or disapprove, which disapproval shall state the reasons within five (5) business days after its, receWL The City and the City's Fire Department reserve the right to remove or revise the location of booths for the Event to the extent necessary for public health, safety and security during the Event. 13. SECURITY: Licensee shall provide, at Licensee's cost, all necessary perimeter/t shirt event security and police officers to be determined by the City of Miami Police Department and the City, including, but not limited to, an on- site special response team on site throughout the duration of the Event. In addition, the City may require extra fencing or security if it deems it necessary. The Licensee shall maintain access for City of Miami emergency vehicles on the Property at all times. 14. PARKING To the extent Licensee will not be utilizing the portions of the Property constituting parking lots for staging, production, logistics or related purposes, and to the extent such parking lots are not needed to mitigate traffic or for other logistical reasons, all in the sole and absolute discretion of Licensee, then the City may allow public parking at such parking lots, the City shall conduct such parking operations at its sole expense, and the City shall retain one hundred percent (100%) of all parking revenues collected. The portion of the Property identified in Exhibit A-2 as Arthur Lamb Road Area will be used for parking. If the maximum available parking provided on the Arthur Lamb Road Area is insufficient under applicable law, or otherwise insufficient for Licensee's purposes, Licensee shall be responsible for obtaining additional parking required Submitted into the public record for item(s) REA on 07/25/2015 , City Clerk at its sole cost and expense. All public parking on the Property shall be operated by the City or the City's designee. 15. INSURANCE: Licensee shall obtain and maintain in force for the Use Period, insurance policies and coverages, as may be reasonably amended from time to time by the City's Director of Risk Management or designee using commercially reasonable standards, and as set forth on Exhibits B-1 and B-2 (B -I is for the Licensee.; B-2 is for the caterer), which is attached hereto and made a part of this Agreement The City and the Virginia Key Beach Park Trust shall be named "Additional Insured" on all policies. Any questions regarding insurance should be directed to the City. Licensee shall furnish all required insurance certificates no later than ten (10) days prior to the commencement of the Use Period. 16. INDEMNIFICATION: Licensee agrees to indemnify, defend (at its own cost and expense}, covenant not to sue, and hold harmless the City, their respective officers, officials, employees, personnel, volunteers, agents, assigns, representatives, and successors, and the Virginia Key Beach Park Trust, their respective officers, officials, employees, personnel, volunteers, agents, assigns, representatives, and successors (hereinafter collectively referred to as the "Indemnitees") from and against all Liabilities to the extent arising out of, resulting from, or in connection with (i) the Event (including any claims or liabilities asserted by YMD Records, LLC d/b/a Rapture Electronic Music Festival and/or its affiliates claiming usage or contractual rights to any or all of the Premises for other events, and while Licensee controverts any Liability with respect to such matters it will Indemnify the Indemnitees pursuant to this Section 16), the use of the Premises and/or performance of any renovation to the Premises (including, but not limited to, the granting of this Agreement}, (ii) the performance or non-performance of this Agreement, whether it is, or is alleged to be, directly or indirectly caused, in whole or in part; by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them (except for the intentional, criminal or wrongful acts, or gross negligence or willful misconduct committed by such IndemniteesX (iii) the use of any products sold, advertised, provided, or otherwise distributed by Licensee to users, invitees, guests, employees, agents, the general .public, or any other individual or (iv) the failure of Licensee to comply with any of the provisions contained herein, or to conform to statutes, ordinances, or other rules, conditions of approval, permits or regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement, including, without limitation all actions and omissions by the Licensee taken as a result of or in connection with this Agreement This Indemnification shall cover liabilities in tort, liabilities in contract, liabilities alleging statutory or regulatory violations including, but not limited to claims resulting from noise, light, nuisance, traffic, and/or liabilities derived from any other actions or omissions alleged to impact the quiet enjoyment of residents, tenants, or commercial entities in the surrounding neighborhoods, or otherwise who reside within Five (5) miles of the Property. Licensee expressly agrees that this indemnification shall include all employees/personnel of the City, on and off-duty police officers, fire, and other emergency/medical service employees/personnel renderingservices or support in connection with the Event In addition, Licensee expressly agrees to indemnify, covenant not to sue, and hold harmless the Indemnitees, or any of them, from and against all Liabilities which may be asserted by an employee or former employee of Licensee, or any of its contractors, subcontractors, agents, representatives, concessionaires, vendors, invitees, guests, or consultants as provided above, for which Licensee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. This Indemnification provision shall survive the expiration, termination, or cancellation of this Agreement and shall continue in effect until the expiration of the corresponding statute of limitations or the tolling thereof. The word Liabilities used in this Section includes claims and actions relative to the Liabilities. Granting of this Agreement is freely acknowledged by the Licensee as good and sufficient independent consideration for this Indemnification. To the extent that Licensee undertakes any indemnification obligations under this Section 16, and notwithstanding any provision herein to the contrary, Licensee shall have its choice of counsel for a defense and control resolution of the claim(s) provided the Indemnitees are not required to admit any liability or to make any payments. Submitted into the public record for item(s) REA on 07/25/2019, City Clerk 17. RISK OF LOSS: Except as set forth in the following sentence, the Indemnitees as described above, assume no responsibility whatsoever for any person or property that enters the Premises as a result of, or in connection with, the Event. In consideration of the execution of this Agreement by the City, Licensee releases the Indemnitees from any and all liability for any loss, injury, death, theft, damage or destruction to any persons or property to include, without Iimitation, those described above in Section 16 Indemnification, which may occur in or about the Premises and which loss, injury, theft, damage or destruction to any persons or property arises from Licensee's negligent acts or omissions. To the extent allowed by Florida Statute 768.28, Licensee does not release the City for any and all liability to the extent such liability is determined to be due to the intentional or willful misconduct or gross negligence of the City. 18. DEFAULT PROVISION: In the event Licensee shall fail to comply with any material term and condition of this Agreement or shall fail to perform any of the material terms and conditions contained herein, then the City, at its sole option and in addition to all other rights and legal remedies available to it by law, upon written notice to Licensee, may cancel and terminate this Agreement [after providing Licensee with written notice of any material breach by Licensee and after allowing Licensee an opportunity of Twenty (20) days to cure such material breach or default] and all payments made by Licensee pursuant to this Agreement, shall be retained by the City. Licensee shall have no recourse against the City or Virginia Key Beach Park Trust from the provisions of this Section. 19. AWARD OF AGREEMENT: Licensee represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon the award of this Agreement. 20. PUBLIC RECORDS: Licensee understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable taws. Licensee's failure or refusal to comply with the provisions of this section shall result in the City's immediate cancelation of this Agreement. Licensee acknowledges that this termination is not subject to cure provisions contained elsewhere in this Agreement. IF THE LICENSEE HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE LICENSEE'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS BY PHONE AT 305- 416-1883; BY EMAIL AT PUBLICRECORDS@a,MIAMIGOV.COM; OR IN PERSON AT 444 SW 2ND AVENUE, 9TH FLOOR, MIAMI, FLORIDA 33130, 21. NON-DISCR OVATION: Licensee shall not discriminate against any persons on account of race, color, sex, sexual orientation, gender, religion, creed, ancestry, national origin, age, disability, or marital status in the use of the Premises. 22. AUTHORIZED PERSONNEL: The City shall have authorized representatives with decision making authority, reasonably available at all 23. 24. 25. 26. 27. Submitted into the public record for item(s) nE.4 on 07/25/2019 City Clerk reasonable times throughout the Use Period for consultation with Licensee, as requested. AUTHORITY TO EXECUTE AGREEMENT: Each party represents to the other that it has the power to enter into this Agreement and that the consent of no other person or entity is required in connection therewith, except as otherwise provided, and this Agreement constitutes a valid and binding obligation of each parry in accordance with the terns hereof. This Agreement is subject to the separate review and approval of the Miami City Commission as an express condition precedent to its validity. RELATIONSHIP OF PARTIES.- This ARTIES: This Agreement shall not be deemed or construed to create any landlord tenant relationship, leasehold estate, rights of exclusive occupancy and possession of the Property and Premises during the Use Period, or agency relationship, partnership, or joint venture between the City and Licensee. The City is not a guarantor of any debt, default or miscarriage of the Licensee. The City enters into this Agreement with Licensee to provide Licensee with a limited use of the Property for the Event, and does so in a proprietary sense as landowner, not in its regulatory capacity. Any approvals herein shall not be considered approvals or waivers of any applicable laws, or otherwise relieve Licensee of any obligation it may have at law to submit applications with any department of the City or any other governmental authority having jurisdiction. NOTICES: Notices required under this Agreement shall be deemed to be given when hand -delivered (with receipt therefore) or mailed by registered or certified mail, postage prepaid, return receipt requested. AS TO LICENSEE: General Counsel Event Entertainment Group, Inc. 201 S. Biscayne Blvd., #800 Miami, Florida 33131 WITH A COPY TO: City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 AS TO THE CITY: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 WITH A COPY TO: Director of Real Estate &. Asset Management City of Miami 444 SW 2nd Avenue, 3'd Floor Miami, Florida 33130 GOVERNING LAW/VENUE: ATTORNEYS FEES: This Agreement shall be construed according to the laws of the State of Florida and venue for any and all claims or controversies that may arise as a result of this Agreement shall be heard in a court of competent jurisdiction in Miami: -Dade County, Florida. Each party shall bear their own respective attorney's fees. CONFLICT OF INTEREST: Licensee is aware of the conflict of interest laws of the City of Miami (Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida (Code of Miami -Dade County, Florida, Section 2- 11.1) and of the State of Florida (as set forth in Florida Statutes) and agrees it will fully comply in all respects with the terms of said laws and any future amendments. Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk 28. FORCE MAJEURE: The Parties shall not be liable to the other and shall excuse the other from their respective obligations hereunder for any failure to perform their respective obligations where such failure is caused by Force Majeure, which is defined herein as any event whereby the Property, or any portion thereof, shall be destroyed or damaged, as a result of any event beyond human control, including but not limited to acts of national security, national emergency, acts of God, war, act or threats of terrorism, domestic government regulations, strikes (other than strikes of Licensee's employees), fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any occurrence which makes it illegal or impossible for Licensee to perform its obligations under this Agreement. 29. ASSIGNMENT: The City has relied on the extensive and unique reputation and experience of Licensee in granting this License_ The License is personal to the Licensee. Licensee shall not sell, grant, confer, or assign this License or any part thereof to any other party, person, or entity. The License granted by this License is personal to the Licensee. Any assignment of this License contrary to the foregoing provision, whether voluntary or involuntary, shall be void and shall confer no right upon such assignee, shall constitute a default under this License, and shall result in an automatic revocation of the License and the forfeiture of the rights of Licensee hereunder following notification to Licensee. 30. SEVERABILM It is the express intent of the Parties that this Agreement constitutes a license and not a lease. To further this intent, the Parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) ifany provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the Parties intent for this Agreement to serve as a license, should any provision, section, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, section, paragraph, sentence, word or phrase shall be deemed modified to the minimum extent necessary to accomplish the intent of this Agreement to the maximum extent allowable without violating any applicable laws; or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 31. AMENDMENTS No alterations, amendments or modifications hereof shall be valid unless executed by an instrument in writing by the Parties with the same formality as this License. Neither this License, nor any term hereof, can be changed, modified, or abandoned, in whole or in part, except by an instrument in writing, and no prior or subsequent oral agreement shall have any validity whatsoever. Notwithstanding any language to the contrary, the City Manager is authorized to administratively execute non -substantive or operational amendments, not involving material terms, to this License without the necessity of further action by the City Commission. 32. CITY ACCESS Submitted into the public record for item(s) REA on 07/25/2019. City Clerk The City and its authorized representative(s) shall at all times have access to the Property. The City will maintain a complete set of keys to the Property. Licensee, at its sole cost and expense, may duplicate or change key locks to the Property but not until fust receiving written approval from the City Manager for such work. In the event Licensee changes key locks as approved by the City Manager, Licensee, at its sole cost and expense, must also provide to the City a copy or copies of said keys, if more than one copy is required. The City shall have access to and entry into the Property at any time to: (a) inspect the Property; (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days of such notice, and without the City waiving any legal rights or remedies; (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations; (d) to show the Property to prospective purchasers, tenants or others; and (e) for other purposes as may be deemed necessary by the City Manager or his/her authorized designee in the furtherance of the City's corporate purpose. The City shall not be liable for any Ioss, cost or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspections or the failure to do so shall not operate to impose upon the City any Iiability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 33. INDEPENDENT AUDITOR GENERAL -ACCESS TO DOCUMENTS The City of Miami has established the Office of the independent Auditor General ("IAG"), to provide the City Commission with independent oversight of audit and analytical functions of the City. The IAG shall have the power to audit, and to make copies of or extracts from all records (in whatever form they may be kept, whether written, electronic, or other) relating to or pertaining to the Event and this Agreement but only to the extent necessary to ensure compliance with the terms expressly set forth in this Agreement. The IAG shall only have access to Licensee's records to the minimum extent required to ensure such compliance, and such records shall not include Licensee's internal financial and accounting records unrelated to the Event and this Agreement. Any information deemed to be confidential, proprietary, or a trade secret under Florida law, but integral to completing audit procedures, will be timely made available for review but will be excluded from the audit work papers. Licensee shall, at all times during the term of this Agreement and for a period of five (5) years after the termination of this Agreement, maintain such records, together with such supporting or underlying documents and materials available in a location within Miami -Dade County, Florida as may be requested by the City. Nothing in this Section shall impair any independent right of the City of Miami, pursuant to applicable laws and regulations, to conduct audits or investigate its activities. The provisions ofthis Section are neither intended nor shall they be construed to impose any liability on the City of Miami by the Licensee or third parties. (SIGNATURE PAGE FOLLOWS) Submitted into the public record for item(s)_ RE.4 on 07/25/2019 City Clerk . IN WITNESS WHEREOF, the parties hereto have individually and through their proper corporate official executed this Agreement, this the day and year first written. ATTEST: Todd B. Hannon City Clerk "CITY" CITY OF MIAMI A Florida Municipal Corporation Gonzalez, P. Approved as to Legal Form Approved as to Ir. A d Correctness by:\ r Requirements by: J ictoria ndez, Ann -Marie S as City Attorneys irector of k Aproved as to Business Terms: aniei Rotenberg Director of Real Estate & Asset Management f2 --- above & print name below SI� l �lw-f- Witnjee/ss, sign above & pri,nt name below / ! /Li1Ge-/ (` ,,e l "LICENSEE" EVE E AIN OUP, INC. Steven A. McCord Chief Financial Officer Submitted into the public record for items) REA on 07/25/2019 City Clerk . EXHIBIT A-1 PR( r E TY — MARINE STADH M AREA Generally located on or around 3801 Rickenbacker Causeway Miami, FL 33149 (subject to existing Leases, Licenses, and any other City Agreements) 4 i .f and , i4 rrn arca cion I i n es are approximate and subject to a Cor -n a I survey Submitted into the public record for item(s) REA on 07/25/2019 City Clerk . EXHIBIT A-2 PROPERTY — ARTHUR LAMB ROAD AREA Generally located on or around 3801 Rickenbacker Causeway Miami, FL 33149 (subject to existing Leases, Licenses, and any other City Agreements) Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk . EXHIBIT A-3 PROPERTY — HISTORIC VIRGINIA KEY BEACH PARK TRUST AREA Generally Iocated on or around 4020 Virginia Beach Drive, Miami, FL 33149 *Sizes and demarcation lines are approximate and subject to a formal survey Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk EXIIZBTT B INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -EVENT ENTERTAINMENT GROUP, INC. I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $2,000,000 Personal and Advertising injury $1,000,000 Damage to Rented Premises $1,000,000 B. Endorsements Required City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement Explosion, Collapse and Underground Hazards Terrorism Coverage Included Liquor Liability Included Waiver of Subrogation II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured III. Worker's Compensation Submitted into the public record for item(s) REA on 07/25/2019. City Clerk Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Policy/Excess Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured Coverage is excess over all applicable liability policies contained herein including terrorism and liquor liability. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk EXHIBIT B-2 INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -EVENT ENTERTAINMENT GROUP, INC. (CATERING COMPANY) Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $2,000,000 Personal and Advertising Injury $1,000,000 Damage to Rented Premises $50,000 B. Endorsements Required City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured Contingent and Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement Explosion, Collapse and Underground Hazards Terrorism Coverage Included Waiver of Subrogation II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured III. Worker's Compensation Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $10,000,000 Aggregate $10,000,000 City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured Coverage is excess over all applicable Iiability policies contained herein including liquor liability. V. Liquor Liability Limits of Liability Each Occurrence $1,000,000 Aggregate $1,000,000 City of Miami, Virginia Key Beach Park Trust, and each of the respective instrumentalities, Members, Partners, Affiliates, each of their respective Officers, Directors, Shareholders, Employees, Volunteers, Agents and Representatives and the Army Corp of Engineers listed as an additional insured The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A=' as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldw:ck, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk EXHIBIT C ADDITIONAL CHARGES (TO THE EXTENT APPLICABLE) 1. City of Miami Police personnel and equipment 2. City of Miami Fire Rescue personnel and equipment 3. Light Pole, Benches, Bike Racks Removal/Reinstall 4. Chain Link Fence Removal S. Solid Waste Downtown 6. Solid Waste Trash Hauling 7. Overtime Fees 8. Taxes 9. Electricians (to the extent provided by the City) 10. Drums/oil containers and/or disposal fees 11. Fiber Optic and/or WIFI costs 12. Utilities (electrical, water, sewer, etc.) 13. Qualified staff required for environmental management, remediation, or supervision (unless otherwise provided by Licensee at its sole cost) 14. Financial commitments to nearby third party businesses, as applicable, to account for the financial impact on such third party businesses to the extent affected by the Event Submitted into the public record for item(s) REA on _ 07/25/2019 City Clerk . EXHIBIT D-1 HISTORIC VIRGINIA KEY BEACH PARK HIST9RIC BUILDINGS AND SENSITIVE AREAS Historic facilities and elements off-limits to Ultra Music Festival event use area: • Historic Concession Stand Building • Historic Carousel Amusement Ride • Historic Mini Train and Railroad Amusement ride • Virginia Key Beach Park Trust Administrative Building Print #1SOM126 Krstmc V K Beach Park Harte; NaSn s Virginia Key Beach Park Trust � Key : zs.r.�ss-so.ss�2oo �, (� order No. 52076 I Aerial Ptwlogra,�.lm 954.5 0044 Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk EXHIBIT D-2 HISTORIC VIRGINIA KEY BEACH PARK HISTORIC BUILDINGS AND SENSITIVE AREAS Sensitive Natural Areas off-limits to festival area and interaction: • Natural pond and surrounding protected vegetation • Mangrove wetland • Protected coastal dune areas • Mature native trees and vegetation • Hardwood Hammock • Army Corps of Engineers 1135 Ecosystem Restoration Area Prmttnaa925W Wginia Key Beach Park Trust Historic I funs Key Beach Park �15Jt8 t.u.orc 26a96e36�D.Is7xoo Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk EXHIBIT D-3 HISTORIC VIRGINIA KEY BEACH PARK HISTORIC BUILDINGS AND SENSITIVE AREAS Historic Virginia Key Beach Park's two (2) children's' playground areas: • Boundless Playground • Railroad Playground P t*ISOM126 OOM Virginia Key Beach Park Trust Historic Vwgm Key Beach Park t, &M M 6M �.tsm8 ftMrWft. IM. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Pft /180825127 oem Virginia Kray Beach Park Trust l �s at W Ia Key 8eadr Park wA. wr as rM -M 0018 Dian NM GMM *Aad Pftwwap hr. W.W"Ma i4 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk EXHIBIT E ENVIRONMENTALLY SENSITIVE AREAS FOLLOWING THE ARMY CORPS OF ENGINEERS SECTION 1135 ECOSYSTEM RESTORATION PROJECT The above image is included as an Exhibit to this Agreement for the purpose of identifying various environmentally -sensitive areas throughout the Historic Virginia Key Beach Park to be considered and protected during the Use Period for each Ultra Event Ultra shall review the various sensitive areas in preparation of the Environmental Management and Remediation Plan. Pedestrians pathways and limited vehicular paths between them and throughout the property may be utilized by park visitors and maintenance vehicles to the extent the sensitive areas are not adversely affected. The Historic Virginia Key Beach Park Trust ("Trust") has reviewed the site plan provided for the 2019 Event, and has determined the 2019 site plan adheres to the above exhibit. Legend Red Wetlands 1 "11v"• Tropical Hardwood Hammock Blue Pond w/ Wetlands Orange Dune/Coastal Strand The above image is included as an Exhibit to this Agreement for the purpose of identifying various environmentally -sensitive areas throughout the Historic Virginia Key Beach Park to be considered and protected during the Use Period for each Ultra Event Ultra shall review the various sensitive areas in preparation of the Environmental Management and Remediation Plan. Pedestrians pathways and limited vehicular paths between them and throughout the property may be utilized by park visitors and maintenance vehicles to the extent the sensitive areas are not adversely affected. The Historic Virginia Key Beach Park Trust ("Trust") has reviewed the site plan provided for the 2019 Event, and has determined the 2019 site plan adheres to the above exhibit. IL Submitted into the public record for item(s) REA on 07/25/2019 City Clerk IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA N CASE NO.: 2019 -006750 -CA -0I = �� SECTION: CA02 JUDGE: Rodolfo Ruiz ,> Brickell Homeowners Association, Inc. et al Plaintiff(s) / Petitioner(s) VS. City of Miami Defendant(s) / Respondent(s) ORDER DENYING PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY INJUNCTION This CAUSE came before the Court for hearing on March 15, 2019, on PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY INJUNCTION and EVENT ENTERTAINMENT GROUP, INC.'S ("EEG") MOTION TO BE ADDED AS A DEFENDANT OR, ALTERNATIVELY, TO INTERVENE. The Court having considered both Motions, as well as the argument of counsel, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows: 1. EEG's Motion to be Added As a Defendant or, Alternatively, to Intervene is GRANTED. EEG is joined as a full party Defendant under Chapter 86 of the Florida Statutes for the reasons stated on the record. 2. Plaintiffs' Motion for Temporary Injunction is DENIED for the reasons stated on the record, attached hereto as Exhibit "A." L Submitted into the public record for item(s) REA on 07/25/2019 City Clerk CaseNo: 2019 -006750 -CA -01 Page 2 of 2 DONE and ORDERED in Chambers at Miami -Dade County, Florida on this 22nd day of March, 2019. 2011. -2019 I 1 :38 A 2019 -006750 -CA -01 03-22-2019 11:38 AM Hon. Rodolfo Ruiz CIRCUIT COURT JUDGE Electronically Signed by Rodolfo Ruiz No Further Judicial Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Copies Furnished To: Bamaby Min, Email: bmin@miamigov.com Christopher A. Green, Esq., Email : cagreen@miamigov.com David J Winker, Email: dwinker@dwrlc.com David J Winker, Email: davidjwinker@gmail.com David Winker, Esq., Email: dwinker@dwric.com John A. Greco, Esq., Email: jagreco@miamigov.com Mario M. Ruiz, Email: aromero@mcdonaldhopkins.com Mario M. Ruiz, Email: mruiz@mcdonaldhopkins.com Raquel A Rodriguez, Email: rrodriguez@mcdonaldhopkins.com Raquel A Rodriguez, Email: Idiaz@mcdonaldhopkins.com Scott D. Ponce, Email: sponce@hklaw.com Crnff n Pnnrrn Fmnil - ncfnrlinnrlhlrinlu rrnm 1 VVVIt V. I \/111/V .VV/11 Victoria Mendez, Esq., Email : vmendez@miamigov.com Submitted into the public record for item(s) REA on 07/25/2019 City Clerk EXHIBIT "A" 1 K Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk Page 1 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY. FLORIDA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRICKELL HOMEOWNERS ASSOCIATION INC., AND CHRISTOPHER B. MULLIN, Plaintiffs, VS. CITY OF MIAMI, Defendant. Submitted into the public record for item(s) REA on 07/25/2019 City Clerk CASE NO:19-6750 CA 02 ) HEARING RE: The above -entitled cause came on for Hearing before the Honorable Rodolfo Ruiz at the Miami -Dade County Courthouse, 73 West Flagler Street, Room 6-3, Miami, Florida 33130, on March 15th, 2019, scheduled to begin at 2:00 p.m., commencing at 2:10 p.m. until 4:40 p.m. Veritext Legal Solutions 800-726-7007 305-376-8800 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES Appearing on behalf of the Plaintiff DAVID J. WINKER, ESQ. DAVID J. WINKER, P.A. 2222 S.W. 17th Street Miami, Florida 33145 Appearing on behalf of the Defendant RAQUEL RODRIGUEZ, ESQ. MCDONALD HOPKINS, LLC. 200 South Biscayne Boulevard Suite 2600 Miami, Florida 33131 Appearing on behalf of EEG SCOTT D. PONCE, ESQ. HOLLAND & KNIGHT, LLP. 701 Brickell Avenue Suite 3000 Miami, Florida 33131 Rnn_7*)4_7nn7 Veritext Legal Solutions Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 2 1nS_z7,< QRnn Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 3 1 (The following is an excerpt of the proceedings:) 2 THE COURT: As I stated earlier, the Court would 3 like nothing more than to systematically go through 4 everything in a written order, but I will do my best 5 to do so here today, due in large part to the thorough 6 briefing provided by all sides. And I have had the 7 chance to obviously read all the cases that have been 6 cited. 9 Just referencing back to where we are before we 10 proceed, the Court has already ruled as to the 11 homeowner's association standing issue. So we have 12 taken care of that, which means that there are really 13 two silos of rulings that remain. The first is 14 whether or not the individual plaintiff has standing 15 under the City charter to go forward with this 16 lawsuit. And if we go past that phase of the 17 analysis, then we move into whether the motion for . 18 19 20 21 22 23 24 25 temporary injunction should be granters, which again turns on whether the elements of 1.610 have been met in this case. And I don't mean to get into it, but I will note obviously that in the event the Court were to grant the injunction, you guys understand that we referenced the bond, we will deal with that if we need to, but I know that that is in everyone's pleadings. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 4 1 So to speak on the standing issue, the Court has 2 had an opportunity to carefully read the portions of 3 the amendments to the charter that have been cited in 4 Plaintiff counsel's moving papers. The Court has 5 compared those to some of the language analyzed in the 6 case of Herbits v. City of Miami. At the end of the 7 day, the language that is being relied on to provide 8 standing, to be clear, that is the standing to bring 9 this case because there has been a purported violation 10 of the charter, specifically the absence of utilizing 11 29-B and seeking a license in an inappropriate 12 fashion. 13 The language that is being used to bring this 14 suit is very, very, very brief. It's very silent on a 15 number of very salient issues, notably the concerns 16 that have been raised regarding'an injury. I think 17 that without question, injury is not even mentioned 18 nor does the plain language of the provisions in that 19 portion of the charter contemplated, we are talking 20 again, this is the Citizens" Bills of Rights. 21 The Court is very sensitive to the pronouncements 22 of the mayor and the commission and what they were 23 hoping to accomplish but we are bound by what actually 24 was ultimately passed. What is the language that 25 governs the limits of a citizen's ability to bring Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 5 1 these types of suits or presumably expands the ability 2 to do so, which is what we've heard a multiple of 3 times the commission was at one point trying to do. 4 The reality is that the commission, and what is 5 passed, and what we are interpreting, makes no mention 6 of lowering the injury requirement. It has nothing in 7 it, speaking as to at least lowering from special 8 injury to just ordinary injury, which is what was 9 ultimately upheld in Herbits. And that discussion in 10 Herbits really doesn't apply here because the language 11 is just so different here. It's so silent on this 12 idea of the injury analysis being lowered or changed. 13 And to me, that is something that is really fatal to 14 allow a citizen to bring these types of actions 15 without pleading any sort of injury. 16 At the end of the day, it's a two -fold issue. 17 One, if they wanted to seek to lower from special 18 injury to injury, they should have spoken on that. 19 They did not, and therefore I haven't seen anything in 20 that, that intended to do that or the plain meaning of 21 it, contemplated that. 22 Second, the argument that somehow injury is 23 presumed or that injury is in fact it's a per se 24 injury when we don't purportedly follow the procedures 25 and we don't need to be explicit in lowering that, Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 6 that runs afoul of, and we cited it, plenty of binding Supreme Court case law that dictates that standing must come with injury and there must be a causal relationship to that injury. I don't think that there is any argument that can be made that the pleadings are entirely silent on injury here. And I understand why because the theory that has been advanced is that the injury is automatically in existence the minute the City deviates from standard procedures as governed by the charter. Again, that interpretation is not supported by case law, at least no case that's on the books today. Maybe one day the law will be pushed in that direction. But as we stand here today, the injury requirement and its inextricable connection to standing remains the law of Florida, remains the law of the United States. The Court is not in a position to look at a statute or a charter amendment that is silent on that burden and somehow assume that they intended to overwrite it. I think that that would quite frankly be a complete rewrite of what was ultimately tasked. It is completely a derogation of the plain meaning, and I think when we look at Herbits we know just how serious it is, how important it is to explicitly reference the lowering of an injury requirement. Because Herbits went to great lengths to discuss whether or not this was even permissible, understanding just how much case law'', we have that governs the need to have a special injury. They were able to do it. They were able to bless the lowering of the injury requirement. We don't even have that here. 25 So I don't think that the statute, quite frankly, Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 7 1 accomplishes whatever the intent may have been because 2 it never excised the issue of special injury to lower 3 to injury. And it certainly did not, and I 4 respectfully cannot eliminate an injury requirement. 5 So to me, there is just no basis to bring this action, 6 from a standing perspective, because opinions are 7 truly silent as to any injury whatsoever, let alone a 8 special injury, and no case law would support a 9 reading that simply, breaching some part of the 10 charter automatically creates injury so as to not have 11 to plead it. That is just not in the case law. 12 The Court does not believe that there is standing 13 for this citizen with the current iteration of the 14 pleadings, with the current drafts that I see before 1 G me Thcro i a "- rl ==A4- r a71-4afi ori i:nr 1J lll..i • L11CiLG .Lp 11V �/i l:: {1l..L ill ia��4li Glll...11V pGiVipi.L a.. VI L.Vi 16 injury, definitely nothing for special injury. And a 17 charter that is completely silent on this, cannot be 18 used as a vehicle to lower injury requirement or 19 abrogate it. 20 Again, I want to be cautious in that I don't 21 believe I need to answer the question as so whether 22 the statute could do it. I am Just pointing out, it 23 doesn't, by any meaning, it does not because in lower 24 injury requirements, it doesn't need to eliminate 25 special injury. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Page 8 _ 1 If that is what the City wanted to do, the City 2 needed to explicitly reference dropping the special 3 injury threshold. And if they really thought they 4 could somehow eliminate the injury, as an injury has 5 always been interpreted as a gateway to standing, the d k�1Ly may aLLeHIVL Lo UQ LnaL. CUL 1 WUUlu VC116ULU a 7 guess, looking at our Supreme Court case law, that 8 that would improperly and perhaps even 9 unconstitutionally eliminate injury as a gateway issue 10 when it comes to bringing these types of actions. 11 So again, I don't necessarily need to reach all 12 of the flaws other than to say that this charter 13 provision, in its silence, speaks volumes about the 14 inability to re -calibrate injury requirements under 15 Florida Law. 16 Now, because the Court is cognizant of a 17 potential appeal,.and because I know that, as 18 Mr. Winker has indicated, this is something that he 19 feels strongly about, it is only appropriate that I 20 make rulings on the alternative regarding the 1.610. 21 So if my Third District believes that Herbits has 22 conferred standing by virtue of just the simple 23 language in the charter, and he gets to issue the 24 injunction, I will proceed now to go through 1.610 25 elements. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 9 The Court does not believe that the elements necessary to satisfy the injunction requested have been met under Florida Law. I already have indicated the injury issue, which is the lack of irreparable harm, is apparent on the face of the complaint and the motion, in that it is completely silent on indicating any injury. And I do not believe irreparable harm can be established, nor do I think case law supports a reading that irreparable harm is automatically, just like injury, established when someone alleges that a city has not complied with their charter documents. But really, to me, connected with that and hand in hand with that is the potential likelihood of success on a merits prong. The Court is not persuaded after carefully analyzing both the Homestead Raceway case, which has been one of the key cases discussed, and looking at the Third District's analysis of the lease versus license argument in that case, that this case is not readily distinguishable from the Homestead issue; I believe it is. I understand that I have been presented with some language that is somewhat similar but there are notable, in my view, notable differences in the license agreement in this case number that prevent it 800-726-7007 Veritext Legal Solutions 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 10 1 from being interpreted or rendered or turned into a 2 lease; number one, exclusivity. 3 The Court has looked through all the provisions 4 and I do not find that there is exclusivity concerns. 5 There are different ways to get there. We can get 6 there through the parking. We can get there through. 7 City access, paragraph 32. We can get there through 8 control of access in 4.2. Parking, for the record, is 9 section 14. 10 But really, if you break it down, the reality is 11 that this is not exclusive in that other beach goers 12 are able to use the property during the time that the 13 festival is ongoing. When you look at all these 14 provisions 4.2, 4.10, 4.12, 4.14 and 4.32, the Court 15 is persuaded that the plain language of this license 16 prevents there from being any concern regarding 17 exclusivity. I do not believe that the license 18 agreement provides exclusivity. And to me it's pretty 19 clear that the City access portion in and of itself 20 does a very clear job of noting the City and 21 representatives always having access to the property 22 23 24 25 and the ability for ingress and egress; access and entry has been maintained. So I am not concerned that we have the same type of exclusivity issue. The next thing is assignability. I do not find 800-726-7007 Veritext Legal Solutions 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 11 1 the license agreement is assignable. We have 2 discussed this quite a bit but the reality is the 3 simple fact that we may have*the use of the property 4 by food trucks and other type of businesses that are 5 all ancillary and incidental to the provision of this 6 music festival by EEG, that does not somehow turn this 7 into an assignable issue. It's not. 8 We know that the City manager must approve 9 anything that remotely deviates from the event's 10 definition. And to me, that means that we don't have, 11 simply because we are allowing other folks to use the 12 property under the cruise of its authorized means and 13 connect it to the event, doesn't turn this into some 14 assignable contract. I don't believe that that's a 15 problem here. I don't believe that we have an 16 assignability issue at all. So again, it does not 17 provide exclusivity and it's not assignable. 18 I think that by the plain language, we haven't 19 spent too much time discussing it, but throughout the 20 license agreement, it makes it very clear that we are 21 not conveying any real property rights to the 22 licensee. And when we look at Keane and the cases 23 that we cited, it is pretty clear to me what we are 24 looking for when we are trying to determine if we have 25 a lease versus a license; we look at that real Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Page 12 1 property interest analysis. 2 There is nothing in this license agreement that 3 gives me cause for concern that it is somehow 4 conveying real property rights to EEG, there is simply 5 not. It goes to great lengths, it takes great pains 6 in explaining that over -and over again. But even as 7 Mr. Winker said, he did point it out correctly, that 8 we should not be simply looking at titles and the 9 repeated defense and interpretation by repeating over 10 and over again, we are a license, we are not a lease. 11 I look at the mechanics behind it, not just the 12 way that you're using the terms, and I don't see any 13 conveyances just like I don't see exclusivity, and I 14 don't see assignability. 15 The last issue is whether this is revocable. I 16 believe it is. And that really turns on the footnote 17 that we discussed in Keane. It discusses the idea 18 that we have to have that revocability provision to 19 make it clear we have truly a license as opposed to a 20 lease. And I understand the position that has been 21 advanced by Plaintiff about this certainly being 22 revocable, 4.2020 and that there is a concern there is 23 this truly revocability as we see in case law. 24 Keane makes it clear or Third District makes it 25 clear that our exception point is applicable here. We Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Submitted into the public record for item(s) REA on 07/25/2019 . City Clerk Page 13 already have these things erected. We've spent time and money, we have a specific cite. So this does fall under, I believe it's Dean that is cited from the Supreme Court from 183, it falls under that provision that allows this revocability to have a little bit of a clause there that conditions it. And so I find this revocable by the City. It isn't fatal that these preconditions, these notice provisions are inserted, given that it falls under the exception discussed in Keane. In light of the fact that we are missing all those key components that are traditionally under case law transferred or transferred what is otherwise called a license to a lease, the Court does not find, despite Mr. Winker's faith that he is going to win on this one, he may very well be right on this one, I just don't see it. I don't see enough there to feel comfortable about the likelihood of success on the merits. I find enough of a distinguishing factor, which was Homestead, which I think is your best case by far. There is a lot of similarities, I am not saying there aren't, but I think what I pointed out are key distinctions that make it distinguishable and takes us out of the lease world and keep us in the world of licenses. 800-726-7007 Veritext Legal Solutions 305-376-8800 Submitted into the public record for item(s) RE.4 on 07/25/2019 City Clerk Page 14 1 Again, the exclusivity, assignability, conveyance 2 and revocable analysis I did, would eliminate the 3 success of likelihood on the merits. To me, that 4 irreparable harm is probably where we can end. Once 5 you are missing one factor, your ability to get an 6 injunction is done. 7 I would say that I think that we have much closer 8 echo points on public interest than we had some sort 9 of a tilt. For me to say here that there isn't a 10 strong public interest in making sure that City 11 officials do things the right way and that we are 12 going to put that as way behind the need to preserve 13 financial incentives for the City and the use of 14 business, it's important, but I think they are pretty 15 close in consideration. I quite frankly don't believe 16 this is one public interest outweighing the other. 17 Both teams have quite a bit of public interest to 18 make sure we do these things the legal, right way. 19 And then we also jeopardize the economic engine, the 20 development of African American memorials in Virginia 21 Key and all the other amazing things that flow, which 22 I don't think that Counsel has disputed that, but flow 23 from a license like this and bringing all these event - 24 goers to the City of Miami. But I think it's a closer 25 call. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 15 1 To me, the one that is the easiest and quite 2 frankly, the one that is fatal as far as 1.610 is 3 concerned, is that dual element of likelihood of 4 success combined with irreparable harm. 5 Now, the Court, I want to point out because it 6 was raised earlier, I have addressed standing but it's 7 important to note that there was an argument raised 8 about whether or not Herbits did or did not apply 9 because the City is different from the County. I 10 haven't really spoken on that. I do believe that it 11 is a distinction without difference, and that may be a 12 very relevant analysis for the Third District. They 13 may not even get so far as to talk about injury and 14 special injury because they may add to the analysis 15 upon review that the City cannot engage in the special 16 injury carve -outs that the County did, right? 17 The reality is that the City didn't do anything. 18 They stayed silent on it anyway. Whether they wanted 19 to speak on it or not, the fact they didn't, means to 20 me, I don't think it's part of my analysis, I just 21 want to point it out because it's been raised by EEG. 22 I don't think we need to really go there because at 23 the end of the day we don't have a situation where for 24 instance, the City said we are going to do the same 25 thing as the County in Herbits. We are going to do Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 16 1 the, the special injury we are going to lower it. We 2 would have a fight over whether the City could ever do 3 that. They never did it anyway, so why do we need to 4 talk about it? It's not an issue. 5 The bottom line is, they decided to stay silent, 6 and I think that's fatal to their analysis to try to 7 lower the injury requirement. Whether it was to try 8 to eliminate it, which I don't think is permitted and 9 whether or not they tried to drop it, which I think 10 would have been had they spoken on the issue and they 11 did not. And the plain meaning is all we are going to 12 be focusing on because it's not ambiguous in any way 13 shape or form. 14 If there is silence, it does not mean that the 15 language is somehow confusing. And when you take a 16 whole City, Citizen's Bill of Rights in perspective, 17 it's very clear to me that despite the best 18 intentions, that language does not confer the standing 19 that I believe Mr. Winker thinks he has. And that may 20 be a battle, obviously, that will continue on when it 21 comes to irreparable harm. 22 So for all the foregoing reasons, and I have 23 given two alternate basis, standing has been 24 addressed, the 1.610 has been addressed, the Motion 25 for Temporary Injunction will be denied. Obviously, Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 , City Clerk Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 17 1 this doesn't resolve the case. We have motions to 2 dismiss pending. We will deal with that in due course 3 but the emergency nature of this hearing because of 4 the timing, I was sensitive to it and I wanted to 5 facilitate the ability for a swift appeal in case you 6 wanted to go and get up there, Mr. Winker. 7 I don't want to waste anybody's time because even 8 rendering an order wastes time, and I am not going to 9 do that to you as citizens or the folks in the 10 homeowner's association. 11 UNIDENTIFIED MALE: We the people. 12 THE COURT: We the people, I hear you. 13 UNIDENTIFIED MALE: We are going to the polls. 14 THE COURT: You know, as Mr. Winker said, and he 15 was right in the beginning, he said that's often what 16 people say, if you don't like it, go to the polls. 17 But there is something to be said about his argument 18 in fighting for you all that he does strongly believe 19 that not only is there, and I said, a strong public 20 purpose, this kind of action, which I think is well - 21 taken. 22 I know that you had referenced 57.105 here. 23 There is no 57.105 here as far as I am concerned 24 because I think he had a right to bring this and seek 25 redress and I understand his theory completely. I J Veritext Legal Solutions I 800-726-7007 305-376-8800 submitted into the public record for items) RE.4 on 07/25/2019 City Clerk Page 18 1 just know the law has not gotten us there yet but 2 through his efforts, he may get you guys there, you 3 never know. 4 UNIDENTIFIED MALE: The City bypassed the 5 process. 6 THE COURT: And he's done a great job of 7 illustrating that. The issue is, I think finding case 8 law makes it difficult for me. 9 UNIDENTIFIED MALE: Otherwise, we wouldn't have 10 that event in Virginia Key. 11 THE COURT: The battle is not over, okay? 12 UNIDENTIFIED MALE: It's not over. 13 THE COURT: It's not over and we will see what 14 happens when this is taken up by your competent 15 counsel. But for today's purposes, the injunction 16 that has been sought, I do not believe is legally 17 appropriate or supported by case law that we've 18 discussed today. 19 Is there anything else I may have missed that I 20 didn't address, Mr. Winker? Please tell me so I can 21 make a good record. 22 MR. WINKER: No. 23 THE COURT: I covered it all? 24 MR. WINKER: Thank you, so much, your Honor. 25 THE COURT: No, thank you. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 19 1 MR. WINKER: I appreciate your patience. 2 THE COURT: Thank you for getting in here quickly 3 so I could get this done for you all. 4 On EEG and the City's side, anything I may have 5 missed? We've talked a lot, I tried to summarize as 6 much I could without the benefit of me rendering 7 something in writing. Did I miss anything you wanted, S a pronouncement on a ruling? 9 MR. PONCE: Not from our perspective, your Honor. 10 THE COURT: Is the City also in agreement that 11 we've covered all the key bases? Obviously, we need 12 not respond but we denied it, I don't think there is 13 anything else that was raised. 14 MR. PONCE: Yes, your Honor. 15 THE COURT: So what I think is the easiest thing 16 to do, and we have a very good court reporter you may 17 want to plug where I started before the recess and 18 that way we have a clean breaking point she can find. 19 Print it. I will argue that the easiest thing to do 20 is attach it as Exhibit A to an order that says for 21 the reasons stated on the record, the motion is denied 22 and let's file that thing and I'll do it on our new 23 Court Map just to get something that Mr. Winker, that 24 we can get in the record so he can seek any relief he 25 needs to seek. Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 800-726-7007 Page 20 Thank you everyone, have a wonderful week. MS. RODRIGUEZ: Thank you for your finding. (End of excerpt.) Veritext Legal Solutions 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Submitted into the public record for item(s) RE -4 on 07/25/2019 City Clerk Page 21 REPORTER'S CERTIFICATE I, Avonne White, a Notary Public and Reporter for the State of Florida, do hereby certify that the foregoing is a true and accurate transcript of the proceedings as taken stenographically by and before me at the time, place, and on the date herein before forth. I DO FURTHER CERTIFY that I am neither a relative, nor employee, nor attorney, nor counsel of any of the parties to this action, and that I am neither a relative nor employee of such attorney or counsel, and that I am not financially interested in the action. Notary Public State of Florida Commission No.: PF956220 Commission Expires: February 1, 2020 22 23 24 25 Veritext Legal Solutions 800-726-7007 [& - bring] 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 22 & 4:40 1:18 alternate 16:23 alternative 8:20 amazing 14:21 automatically 6:9 7:10 9:9 avenue 2:12 & 2:125 0 57.105 17,22,23 ambiguous 16:12 amendment 6:20 amendments 4:3 american 14:20 avonne 21:2 02 1:7 b b 1 6-3 1:16 b 1:5 4:11 back 3:9 1 21:18 7 701 2:12 1.610 3:19 8:24 analysis 3:17 5:12 bases 19:11 15:216:24 73 1:16 9:1812:114:2 basis 7:516:23 1.610. 8:20 15:12,14,20 16:6 battle 16:20 18:11 8 11th 1:1 analyzed 4:5 beach 10:11 14 10:9 83 13:4 analyzing 9:16 beginning 17:15 15th 1:17 a ancillary 11:5 behalf 2:2,6,10 ability4:25 5:1 17th 2:4 answer 7:21 believe 7:12,219:1 19-6750 1:7 10:2214:517:5 able 6:24,2410:12 anybody's 17:7 anyway 15:1816:3 9:7,2110:1711:14 11:1512:1613:3 2 abrogate 7:19 g nt 9:5 apparent 14:15 15:1016:19 200 2:8 absence 4:10 appeal 8:1717:5 17:1818:16 2019 1:1 2020 21:18 access 10:7,8,19,21 appearances 2:1 believes 8:21 10:22 appearing 2:2,6,10 benefit 19:6 2222 2:4 ... ... , aT%T%IId ahln i �•�S - - - 2600 2:8 29 4:11 2:00 1:18 2:10 1:18 i 3 3000 2:13 32 10:7 33130 1:17 33131 2:9,13 33145 2:4 3357 21:15 13:7 14:10,13,24 4 4.10 10:14 4.12 10:14 4.14 10:14 4.2 10:14 4.2. 10:8 4.2020 12:22 4.32 10:14 800-726-7007 [bringing - drafts] accompusn 4:.Z3 accomplishes 7:1 accurate 21:4 action 7:517:20 21:10,12 actions 5:14 8:10 add 15:14 address 18:20 addressed 15:6 16:24,24 advanced 6:812:21 afoul 6:1 african 14:20 agreement 9:25 10:18 11:1,20 12:2 19:10 alleges 9:10 allow 5:14 allowing 11:11 allows 13:5 apply 5:10 15:8 appreciate 19:1 appropriate 8:19 18:17 approve 11:8 argue 19:19 argument 5:22 6:5 9:19 15:7 17:17 assignability 10:25 11:16 12:1414:1 assignable 11:1,7 11:14,17 association 1:5 3:11 17:10 assume 6:21 attach 19:20 attempt 8:6 attorney 21:9,11 authorized 11:12 Veritext Legal Solutions best 3:4 13:20 16:17 bill 16:16 bills 4:20 binding 6:1 biscayne 2:8 bit 11:2 13:5 14:17 bless 6:24 bond 3:24 books 6:13 bottom 16:5 boulevard 2:8 bound 4:23 breaching 7:9 break 10:10 breaking 19:18 brickell 1:4 2:12 brief 4:14 briefing 3:6 bring 4:8,13,25 5:14 7:5 17:24 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019. City Clerk Page 23 bringing 8:10 city 1:9 3:15 4:6 connected 9:12 deal 3:24 17:2 14:23 6:9 8:1,1,6 9:11 connection 6:16 dean 13:3 burden 6:21 10:7,19,20 11:8 consideration decided 16:5 business 14:14 13:7 14:10,13,24 14:15 defendant 1:10 2:6 businesses 11:4 15:9,15,17,2416:2 contemplated 4:19 defense 12:9 11VTAQQPd 1 R•d IA -1A 1 R -d 19.10 5.21 definiteb 7.16 c ca 1:7 calibrate 8:14 call 14:25 called 13:14 care 3:12 carefully 4:2 9:15 carve 15:16 case 1:7 3:20 4:6,9 6:2,13,13,24 7:8,11 8:7 9:8116,19,19,25 12:23 13:12,20 17:1,5 18:7,17 cases 3:7 9:17 11:22 causal 6:3 cause 1:14 12:3 cautious 7:20 certainly 7:3 12:21 certificate 21:1 certify 21:3,8 chance 3:7 changed 5:12 charter 3:15 4:3,10 4:19 6:11,20 7:10 7:17 8:12,23 9:11 christopher 1:5 circuit 1:1,1 cite 13:2 cited 3:8 4:3 6:1 11:23 13:3 citizen 5:14 7:13 citizen's 4:2516:16 citizens 4:2017:9 800-726-7007 city's 19:4 clause 13:6 clean 19:18 clear 4:8 10:19,20 11:20,23 12:19,24 12:25 16:17 close 14:15 closer 14:7,24 cognizant 8:16 combined 15:4 come 6:3 comes 8:10 16:21 comfortable 13:18 commencing 1:18 commission 4:22 5:3,4'21:17,18 compared 4:5 competent 18:14 complaint 9:5 complete 6:23 completely 6:24 7:17 9:6 17:25 compiled 9:11 components 13:12 concern 10:1612:3 12:22 concerned 10:23 15:3 17:23 concerns 4:1510:4 conditions 13:6 confer 16:18 conferred 8:22 confusing 16:15 connect 11:13 continue 16:20 contract 11:14 control 10:8 conveyance 14:1 conveyances 12:13 conveying 11:21 12:4 correctly 12:7 counsel 14:22 18:15 21:9,11 counsel's 4:4 county 1:2,1515:9 15:16,25 course 17:2 court 1:13:2,2,10 3:22 4:1,4,216:2 6:19 7:12 8:7,16 9:1,15 10:3,1413:4 13:14 15:5 17:12 17:14 18:6,11,13 18:23,25 19:2,10 19:15,16,23 courthouse 1:16 covered 18:23 19:11 creates 7:10 current 7:13,14 d d 2:11 dade 1:2,15 date 21:6 david 2:3,3 day 4:7 5:16 6:14 15:23 Veritext Legal Solutions definition 11:10 denied 16:2519:12 19:21 derogation 6:24 despite 13:15 16:17 determine 11:24 development 14:20 deviates 6:1011:9 dictates 6:2 difference 15:11 differences 9:24 different 5:1110:5 15:9 difficult 18:8 direction 6:15 discuss 6:24 discussed 9:17 11:2 12:1713:9 18:18 discusses 12:17 discussing 11:19 discussion 5:9 dismiss 17:2 disputed 14:22 distinction 15:11 distinctions 13:23 distinguishable 9:20 13:23 distinguishing 13:19 district 8:2112:24 15:12 district's 9:18 documents 9:11 drafts 7:14 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk [drop - injunction] drop 16:9 dropping 8:2 dual 15:3 due 3:5 17:2 e earlier 3:215:6 easiest 15:119:15 19:19 echo 14:8 economic 14:19 eeg 2:1011:612:4 15:2119:4 efforts 18:2 egress 10:22 element 15:3 elements 3:19 8:25 9:1 eliminate 7:4,24 8:4,914:2 16:8 emergency 17:3 employee 21:9,11 engage 15:15 engine 14:19 entirely 6:6 entitled 1:14 entry 10:23 erected 13:1 esq 2:3,7,11 established 9:8,10 event 3:22 11:13 14:23 18:10 event's 11:9 everyone's 3:25 exception 12:25 13:9 excerpt 3:120:3 excised 7:2 exclusive 10:11 exclusivity 10:2,4 10:17,18,2411:17 12:13 14:1 exhibit 19:20 existence 6:9 expands 5:1 expires 21:18 explaining 12:6 explicit 5:25 explicitly 6:24 8:2 f face 9:5 facilitate 17:5 fact 5:23 11:3 13:1115:19 factor 13:19 14:5 faith 13:15 fall 13:2 falls 13:4,9 far 13:2115:2.13 17:23 fashion 4:12 fatal 5:13 13:7 15:2 16:6 february 21:18 feel 13:17 feels 8:19 festival 10:13 11:6 fP956220 21:17 fight 16:2 fighting 17:18 file 19:22 financial 14:13 financially 21:12 find 10:4,2513:6 13:14,1919:18 finding 18:7 20:2 first 3:13 Hagler 1:16 flaws 8:12 florida 1:2,17 2:4,9 2:13 6:17 8:15 9:3 21:3,16 flow 14:21,22 focusing 16:12 fold 5:16 folks 11:1117:9 follow 5:24 following 3:1 food 11:4 footnote 12:16 foregoing 16:22 21:3 form 16:13 forth 21:6 forward 3:15 frankly 6:22,25 14:15 15:2 further 21:8 g gateway 8:5,9 getting 19:2 given 13:916:23 gives 12:3 go 3:3,15,16 8:24 15:2217:6,16 goers 10:1114:24 goes 12:5 going 13:15 14:12 15:24,25 16:1,11 17:8,13 good 18:21 19:16 gotten 18:1 governed 6:10 governs 4:25 6:24 grant 3:22 granted 3:18 great 6:2412:5,5 18:6 guess 8:7 guise 11:12 guys 3:23 18:2 Submitted into the public record for item(s) REA on 07/25/2019. City Clerk Page 24 h hand 9:12,13 happens 18:14 harm 9:5,7,914:4 15:416:21 hear 17:12 heard 5:2 hearing 1:13,14 17:3 herbits 4:6 5:9,10 6:24,24 8:2115:8 15:25 holland 2:12 homeowner's 3:11 17:10 homeowners 1:4 homestead 9:16,20 13:20 honor 18:2419:9 19:14 honorable 1:15 hoping 4:23 honkins 2:7 I Idea 5:1212:17 illustrating 18:7 important 6:24 14:14 15:7 improperly 8:8 Inability 8:14 Inappropriate 4:11 Incentives 14:13 Incidental 11:5 Indicated 8:18 9:3 Indicating 9:6 Individual 3:14 inextricable 6:16 Ingress 10:22 Injunction 3:18,23 8:24 9:214:6 16:25 Veritext Legal Solutions 800-726-7007 305-376-8800 [injunction - outs] 18:15 injury 4:16,17 5:6 5:8,8,12)15,18,18 5:22,23,24 6:3,4,7 6:8,15,24,24,24 7:2 7:3,4,7,8,10,16,16 7:18,24,25 8:3,4,4 8:9,14 9:4,7,10 15:13,14,16 16:1,7 inserted 13:8 Instance 15:24 Intended 5:20 6:21 Intent 7:1 intentions 16:18 interest 12:114:8 14:10,16,17 Interested 21:12 interpretation 6:12 12:9 Interpreted 8:5 10:1 interpreting 5:5 Irreparable 9:4,7,9 14:4 15:416:21 issue 3:11 4:1 5:16 7:2 8:9,23 9:4,20 10:24 11:7,16 12:15 16:4,10 18:7 issues 4:15 Iteration 7:13 key 9:1713:12,23 14:21 18:1019:11 kind 17:20 knight 2'.12 know 3:25 6:24 8:17 11:8 17:14,22 18:1,3 1 lack 9:4 language 4:5,7,13 4:18,24 5:10 8:23 9:23 10:15 11:18 16:15,18 large 3:5 law 6:2,13,14,17,17 6:24 7:8,118:7,15 9:3,8 12:23 13:13 18:1,8,17 lawsuit 3:16 lease 9:18 10:2 11:25 12:10,20 13:14,24 legal 14:18 legally 18:16 lengths 6:2412:5 license 4:119:19,25 10:15,17 11:1,20 11:25 12:2,10,19 13:14 14:23 licensee 11:22 looked 10:3 looking 8:7 9:17 11:24 12:8 lot 13:2119:5 lower 5:17 7:2,18 7:23 16:1,7 lowered 5:12 lowering 5:6,7,25 6:24,24 In maintained 10:23 making 14:10 male 17:11,1318:4 18:9,12 manager 11:8 map 19:23 march 1:17 mayor 4:22 mcdonald 2:7 mean 3:21 16:14 meaning 5:20 6:24 7:23 16:11 means 3:12 11:10 11:12 15:19 mechanics 12:11 memorials 14:20 mention 5:5 mentioned 4:17 merits 9:1413:19 14:3 Submitted into the public record for item(s) REA on 07/2 2019 City Clerk Page 25 move 3:17 moving 4:4 Mullin 1:5 multiple 5:2 music 11:6 n nature 17:3 necessarily 8:11 necessary 9:2 need 3:24 5:25 6:24 7:21,24 8:11 14:12 15:22 16:3 19:11 needed 8:2 needs 19:25 neither 21:8,10 never 7:216:3 18:3 new 19:22 notable 9:24,24 notably 4:15 notary 21:2,16 note 3:21 15:7 notice 13:8 noting 10:20 number 4:15 9:25 10:2 0 obviously 3:7,22 16:20,25 19:11 officials 14:11 okay 18:11 J 2:3,3 Jeopardize 14:19 job 10:2018:6 judicial 1:1 k keane 11:2212:17 12:24 13:10 keep 13:24 licenses 15:15 light 13:11 likelihood 9:13 13:18 14:3 15:3 limits 4:25 line 16:5 little 13:5 Ilc 2:7 Up 2:12 look 6:19,2410:13 11:22,25 12:11 mei j:ly y:3 miaml 1:2,9,15,16 2:4,9,13 4:6 14:24 minute 6:9 missed 18:1919:5 missing 13:1114:5 money 13:2 motion 3:17 9:6 16:24 19:21 motions 17:1 once 14:4 ongoing 10:13 opinions 7:6 opportunity 4:2 opposed 12:19 order 3:4 17:8 19:20 ordinary 5:8 outs 15:16 Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk [outweighing - rodriguez] Page 26 outweighing 14:16 points 14:8 21:16 relationship 6:4 overwrite 6:22 polls 17:13,16 ponce 2:1119:9,14 portion 4:1910:19 purported 4:9 purportedly 5:24 purpose 17:20 relative 21:9,11 relevant 15:12 relied 4:7 p p.a. 2:3 p.m. 1 :18,18,18 :18,12:5 Portions 4:2 purposes 18:15 relief 19:24 pains position 6:1912:20 pushed 6:14 remain 3:13 4:4 potential 8:17 9:13 put 14:12 remains 6:17,17 papers paragraph 10:7 Preconditions 13:8 q remotely 11:9 question 4:17 7:21 parking 10:6,8 Presented 9:22 rendered 10:1 part 3:5 7:9 15:20 Preserve 14:12 quickly 19:2 rendering 17:8 parties 21:10 presumably 5:1 quite 6:22,2511:2 19:6 passed 4:24 5:5 Presumed 5:23 14:15,17 15:1 repeated 12:9 patience 19:1 pretty 10:1811:23 repeating 12:9 pending 17:2 14:14 r reporter 19:16 people 17:11,12,16 prevent 9:25 raceway 9:16 21:2 prevents 10:16 raised 4:16 15:6,7 reporter's 21:1 purr I3,luic V.GY permitted 16:8 perspective 7:6 16:16 19:9 persuaded 9:15 10:15 phase 3:16 place 21:6 plain 4:18 5:20 6:24 10:15 11:18 16:11 plaintiff 2:2 3:14 4:4 12:21 plaintiffs 1:6 plead 7:11 pleading 5:15 7:15 pleadings 3:25 6:6 7:14 please 18:20 plenty 6:1 plug 19:17 point 5:312:7,25 15:5,21 19:18 pointed 13:22 pointing 7:22 800-726-7007 [room - unidentified] print 19:19 probably 14:4 problem 11:15 procedures 5:24 6:10 proceed 3:10 8:24 proceedings 3:1 21:4 process 18:5 prong 9:14 pronouncement 19:8 pronouncements 4:21 property 10:12,21 11:3,12,2112:1,4 provide 4:711:17 provided 3:6 provides 10:18 provision 8:1311:5 12:18 13:4 provisions 4:18 10:3,14 13:8 public 14:8,10,16 14:17 17:19 21:2 15:21 19:13 raquel 2:7 reach 8:11 read 3:7 4:2 readily 9:20 reading 7:9 9:9 real 11:21,25 12:4 reality 5:410:10 11:2 15:17 really 3:12 5:10,13 8:3 9:12 10:10 12:1615:10,22 reasons 16:22 19:21 recess 19:17 record 10:818:21 19:21,24 redress 17:25 reference 6:24 8:2 referenced 3:23 17:22 referencing 3:9 regarding 4:16 8:2010:16 Veritext Legal Solutions representatives 10:21 requested 9:2 requirement 5:6 6:16,24,24 7:4,15 7:18 16:7 requirements 7:24 8:14 resolve 17:1 respectfully 7:4 respond 19:12 review 15:15 revocability 12:18 12:23 13:5 revocable 12:15,22 13:714:2 rewrite 6:23 right 13:1614:11 14:18 15:1617:15 17:24 rights 4:2011:21 12:4 16:16 rodolfo 1:15 rodriguez 2:7 20:2 305-376-8800 Submitted into the public record for item(s) REA on _ 07/25/2019 City Clerk Page 27 room 1:16 � 1 situation 15:23 1 summarize 19:5 1 thorough 3:5 raiz 1:15 • ruled 3:10 ruling 19:8 rulings 3:13 8:20 runs 6:1 s s.w. 2:4 salient 4:15 satisfied 7:15 satisfy 9:2 saying 13:22 says 19:20 scheduled 1:17 scott 2:11 se 5:23 second 5:22 section 10:9 see 7:14 12:12,13 12:14,23 13:17,17 18:13 seek 5:17 17:24 19:24,25 seeking 4:11 seen 5:19 sensitive 4:2117:4 serious 6:24 shape 16:13 side 19:4 sides 3:6 signature 21:15 silence 8:1316:14 silent 4:14 5:116:6 6:20 7:7,17 9:6 15:18 16:5 silos 3:13 similar 9:23 similarities 13:21 simple 8:2211:3 simply 7:911:11 12:4,8 800-726-7007 somewhat 9:23 sort 5:15 14:8 sought 18:16 south 2:8 speak 4:115:19 speaking 5:7 speaks 8:13 special 5:7,17 6:24 7:2,8,16,25 8:2 15:14,15 16:1 specific 13:2 specifically 4:10 spent 11:1913:1 spoken 5:1815:10 16:10 stand 6:15 standard 6:10 standing 3:11,14 4:1,8,8 6:2,17 7:6 7:12 8:5,2215:6 16:18,23 started 19:17 state 21:3,16 stated 3:2 19:21 states 6:18 statute 6:20,25 7:22 stay 16:5 stayed 15:18 stenographically 21:5 street 1:16 2:4 strong 14:1017:19 strongly 8:1917:18 success 9:1313:18 14:3 15:4 suit 4:14 suite 2:8,13 suits 5:1 support 7:8 supported 6:12 18:17 supports 9:8 supreme 6:2 8:7 13:4 sure 14:10,18 swift 17:5 systematically 3:3 t take 16:15 taken 3:1217:21 18:14 21:5 takes 12:513:24 talk 15:13 16:4 talked 19:5 talking 4:19 tasked 6:23 teams 14:17 tell 18:20 temporary 3:18 16:25 terms 12:12 thank 18:24,25 19:2 20:1,2 theory 6:7 17:25 thing 10:2515:25 19:15,19,22 things 13:114:11 14:18,21 think 4:16 6:5,22 6:24,25 9:8 11:18 13:20,22 14:7,14 14:22,24 15:20,22 16:6,8,9 17:20,24 18:7 19:12,15 thinks 16:19 third 8:219:18 12:24 15:12 Veritext Legal Solutions thought 8:3 threshold 8:3 tilt 14:9 time 10:12 11:19 13:117:7,8 21:5 times 5:3 timing 17:4 titles 12:8 today 3:5 6:13,15 18:18 today's 18:15 traditionally 13:12 transcript 21:4 transferred 13:13 13:13 tried 16:9 19:5 trucks 11:4 true 21:4 truly 7:7 12:19,23 try 16:6,7 trying 5:311:24 turn 11:6,13 turned 10:1 turns 3:19 12:16 two 3:13 5:1616:23 type 10:24 11:4 tomes 5:1.14 8:10 u ultimately 4:24 5:9 6:23 unconstitutionally 8:9 understand 3:23 6:7 9:2212:20 17:25 understanding 6:24 unidentified 17:11 17:13 18:4,9,12 305-376-8800 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk [united - written] united 6:18 winker's 13:15 upheld 5:9 wonderful 20:1 use 10:1211:3,11 world 13:24,25 14:13 writing 19:7 utilizing 4:10 written 3:4 v v 4:6 vehicle 7:18 venture 8:6 versus 9:1811:25 view 9:24 violation 4:9 virginia 14:20 18:10 virtue 8:22 volumes 8:13 vs 1:8 w want 7:2015:5,21 17:7 19:17 wanted 5:17 8:1 15:18 17:4,6 19:7 waste 17:7 wastes 17:8 way 12:12 14:11,12 14:18 16:12 19:18 ways 10:5 we've 5:2 13:1 18:17 19:5,11 week 20:1 went 6:24 west 1:16 whatsoever 7:7 white 21:2 win 13:15 winker 2:3,3 8:18 12:7 16:19 17:6,14 18:20,22,24 19:1 19:23 Submitted into the public record for item(s) REA on 07/25/2019 City Clerk Page 28 Veritext Legal Solutions 800-726-7007 305-376-8800 Submitted into the public record for items) RE.4 on 07/25/2019 City Clerk