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Resolution 2018-30509 RESOLUTION NO. 2018-30509 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 4 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND A NATIONAL SALUTE TO AMERICA'S HEROES, LLC, WITH RESPECT TO THE 2019 AIR AND SEA SHOW EVENT SCHEDULED TO TAKE PLACE ON MAY 24, 2019 THROUGH MAY 26, 2019 ("2019 ANNUAL SHOW"); WHICH AMENDMENT NO. 4 SPECIFIES THE TERMS AND CONDITIONS FOR THE ACTIVATION AND CITY'S SPONSORSHIP OF THE 2019 ANNUAL SHOW (AND EACH ANNUAL SHOW FOR THE REMAINDER OF THE TERM), INCLUDING CITY'S PAYMENT OF A MAXIMUM CONTRIBUTION OF $350,000 FOR EVENT-RELATED PUBLIC SERVICES, AND CITY'S WAIVER OF SPECIAL EVENT PERMIT FEES, USER FEES, VEHICLE ACCESS PASSES AND SQUARE FOOTAGE FEES IN THE TOTAL AMOUNT OF $154,062. WHEREAS, on or about February 1, 2016, the City and A National Salute to America's Heroes, LLC, a for-profit entity of the State of Florida ("Producer'), executed an Agreement with respect to the production of an annual Air & Sea show event (each, an "Event" or "Annual Show") subject to the terms and conditions therein; and WHEREAS, on April 26, 2017, the Mayor and City Commission adopted Resolution No. 2017-29848, authorizing Amendment No. 1 to the Agreement, to waive special event permit fees for the 2017 Annual Show; and WHEREAS, on October 18, 2017, the Mayor and City Commission approved Amendment No. 2 to the Agreement, which amendment delineated the terms and conditions for the 2018 Annual Show activation, and City's waiver of special event permit fees in the amount of approximately $154,000 and contribution for Event-related Public Services (Police, Fire, Ocean Rescue and Sanitation, in the maximum amount not-to-exceed $350,000; and WHEREAS, on February 14, 2018, the Mayor and City Commission authorized additional funding to the Producer in the maximum not-to-exceed amount of $250,000, for the production of a concert to take place during the 2018 Annual Show, which was subsequently memorialized in Amendment No. 3 to the Agreement, dated March 29, 2018; and WHEREAS, on July 2, 2018, the Mayor and City Commission directed the Administration to negotiate revisions to the agreement for the 2019 Annual Show activation, and further specified that no City funding would be provided for any concert that may be produced in conjunction with the 2019 Annual Show, if any; and WHEREAS, the proposed Amendment No. 4, attached as an exhibit to the Commission Memorandum accompanying this Resolution, delineates the terms and conditions for the activation and City's sponsorship of the 2019 Annual Show (and each annual show for the remainder of the term) to take place May 24-26, 2019 including City's payment of a maximum not-to-exceed amount of $350,000 for Event-related Public Services, as well as City's waiver of special event permit fees estimated to total $154.062. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute Amendment No. 4 to the Agreement between the City of Miami Beach, Florida and A National Salute To America's Heroes, LLC, with respect to the 2019 Air and Sea Show event scheduled to take place on May 24, 2019 through May 26, 2019 ("2019 Annual Show"); which Amendment No. 4 specifies the terms and conditions for the activation and City's sponsorship of the 2019 Annual Show (and each annual show for the remainder of the term), including City's payment of a maximum contribution of $350,000 for Event-related Public Services, and City's waiver of special event permit fees, user fees, vehicle access passes and square footage fees total amount of$154,062. PASSED and ADOPTED this 12'h day of September, 2018. res .) yor Dan Gelber ATTEST: /dC1 4iLtilY Rafael E. Granado, City Clerk Wa"k' Ill - 1 BF FORM ORM & .._.. & W.\t,.. \P. "" "" ..'9 &FOR EXECUI ION pe „ORP GRATED; * • IN0City A omey Rflp Date Or 26'” \ �.'Y Jo's-505-o y AMENDMENT NO. 4 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND A NATIONAL SALUTE TO AMERICA'S HEROES, LLC This Amendment No. 4 (Amendment) to the Agreement dated February 1, 2016, by and between the City of Miami Beach, Florida ("City"), and A National Salute to America's Heroes, LLC, a Florida limited liability company (the "Applicant" or "Producer"), is entered into this day of September, 2018. RECITALS WHEREAS, on or about February 1, 2016, the City and the Producer, a for-profit entity of the State of Florida, executed an Agreement with respect to the production of an annual Air&Sea show event (each, an "Event" or"Annual Show") subject to the terms and conditions therein; and WHEREAS, Amendment No. 1 to the Agreement was approved by the Mayor and City Commission on April 26, 2017, via Resolution No. 2017-29848, and provided for the waiver of special event permit fees for the 2017 Annual Show; and WHEREAS, Amendment No. 2 to the Agreement was approved by the Mayor and City Commission on October 18, 2017, delineated the terms for the 2018 Annual Show activation; and WHEREAS, Amendment No. 3 to the Agreement, entered into on March 29, 2018, set forth the terms for a concert to take place during the 2018 Annual Show; and WHEREAS, on July 2, 2018, the Mayor and the City Commission directed the Administration to negotiate revisions to the agreement for the 2019 Annual Show activation, and further specified that no City funding would be provided for any concert that may be produced in conjunction with the Annual Show, if any; and WHEREAS, this Amendment No. 4 is intended to delineate the terms for the activation of the 21019 Annual Show, and any subsequent Annual Show for the remainder of the Agreement's term, if any. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and Producer hereby agree to this Amendment No. 4, as follows: I. ABOVE RECITALS. The above recitals are true and correct and are incorporated as part of this Amendment No. 4. II. MODIFICATIONS. A. Subject to the Producer's compliance with the City's special event permitting requirements, including any approvals, permit conditions or requirements of any regulatory agencies having jurisdiction (including,without limitation,the City's Fire Department, Public Works Department, or Building Department) ("Agencies Having Jurisdiction"), and further subject to the City approval process provided for in the Agreement (including Section 4 thereof) as amended herein, the City agrees to the following programmatic scope of activation related to the Annual Show: 1. Notwithstanding any provision to the contrary in the Agreement, the "Event Site" for the Annual Show shall mean the area east of the eastern boundary of the sidewalks along Ocean Drive, from 10th Street to 14th Place, limited by the waterline. For the Annual Show, the Producer agrees to not activate or use the areas east of the eastern boundary of the sidewalks along Ocean Drive, from 5th Street through the southern end of 10th Street, and the area east of the eastern boundary of the sidewalks along Ocean Drive on 151h Street (and such areas shall not be included as part of the Event Site for the Annual Show). 2. Notwithstanding any provision to the contrary in the Agreement, City agrees that it will not hold any other special event east of the eastern boundary of the sidewalks along Ocean Drive, from 5'h to 15'h Street, during the Event Period for the Annual Show, with the exception of(a)City of Miami Beach's activation of an event between 6th Street and 7th Street in conjunction with a local radio station, which event may take place from the Friday before Memorial Day through Memorial Day, and which may consist of a booth with a live broadcast of music (between 10:00 a.m. and 5 p.m.), local radio talent, positive beach safety messaging about Memorial Day Weekend, and other "fun" or "upbeat" activities; (b) up to three (3) activations for City-sponsored cultural programming, which mutually agreed-upon programming may take place each day of the Annual Show, at mutually agreed-upon designated areas between 5th Street and 6th Street; and (c) the City's Parks & Recreation Department programming for mutually-agreed upon activities for children, at a mutually agreed-upon designated area between 10'h Street and le Street, provided that such City children's programming does not conflict with Producer's sponsorships for the Annual Show. City shall provide Producer with details of the final cultural and children's programming line-up, if any, including a description of the programming, the location and scheduled hours thereof, no later than ninety (90) days prior to the first day of the Annual Show. Producer agrees to provide information highlighting the cultural programming on its website. Except as specified herein, nothing herein shall limit City's approval of special events taking place anywhere within the City of Miami Beach during Memorial Day Weekend. 3. The Restricted Event Area for the Annual Show,as such Restricted Event Area is defined in Section 2(n)of the Agreement, may include a ticketed area and concert stage as part of the Annual Show, with live music performances from 4 p.m. to 9 p.m. on Saturday and/or Sunday of each Memorial Day Weekend, and which concert may be followed by a fireworks display on Saturday and/or Sunday of each Memorial Day Weekend, formally 2 concluding at 9:30 p.m. each night. Subject to mutual agreement between the City and Producer, the live performances between 4 p.m.and 6 p.m. may include City-sponsored cultural programming. As any concert produced as part of the Annual Show would be taking place on public property pursuant to a City special event permit, the City Manager shall have the right to approve the elements of any concert activation, including the artist line-up and other concert programming, to ensure any such concert promotes a safe environment and is of high quality, professional, and suitable for as wide an audience as possible (including audiences of all ages). Producer shall submit its proposed concert programming elements, including the proposed artist line-up, to the City for its approval no later than ninety(90) days prior to the Annual Show. The City Manager' shall either approve or reject any specific concert programming elements within ten (10) business days of Producer's submission. If the City Manager has not objected to any concert element within ten (10) business days following Producer's written submission of the proposed concert elements, such elements shall be deemed approved. 4. If the Producer proceeds with a concert event as part of the Annual Show, the Producer shall complete its breakdown and load-out of the concert stage and related structures, not later than 120 hours following conclusion of the Annual Show. For the Annual Show, the Parties anticipate the concert stage and related structures will be generally located between 10th Street and 11'h Street. All other facilities or structures shall be removed in accordance with Section 9(b) of the Agreement. 5. Subject to any limitations required by any Agencies Having Jurisdiction (including U.S. Coast Guard or Marine Patrol), Producer's proposed powerboat and jetski demonstrations in the ocean shall begin no earlier than 10:00 a.m. and shall end no later than 4:00 p.m. on each Saturday and Sunday of the Annual Show. 6. The Lummus Park portion of the Event Site may include, among other corporate sponsor components to be submitted along with the Producer's Event Site Plan, an interactive athletic venue, featuring an "extreme sports" exhibition, and athletic/cross-fit style obstacle course. a. Producer, as part of its Special Event Permit Application, shall include a safety plan, a risk management plan, and details concerning the qualifications and experience of the third party vendors that will be involved in the production of any of the foregoing athletic activities. b. All persons participating in any "extreme sports" or athletic activity shall be required, as a condition of their participation in such activities, to execute a waiver and release of liability in favor of the Producer and the City of Miami Beach, in a form acceptable to the City. c. A"military display village" area, featuring all branches of the U.S. Armed Forces, sponsor tents and related activations, which may be located to the east side sidewalk of Ocean Drive, from 10th Street to 14th Street, within the Producer's Event Site Plan. d. If the Producer successfully makes arrangements with respect to broadcasting any portion of the Annual Show, the City Manager's prior 3 written approval shall be required with respect to any use of the City's name or logo as part of the broadcast. e. On mutual agreement of the City Manager and the Producer, the programming for the Annual Show may include a designated "children's water zone,"for children-focused activities, provided, however, that in the event the City and Producer mutually agree to proceed with any such children's activities, the City, through its Parks and Recreation Department, shall be responsible for activities involving the direct supervision of children. 7. The Producer shall exercise its best efforts to work with veteran's groups, including the Salute 365 Foundation, a 501(c)3 not-for-profit, and others, to incorporate, as part of the programming approved pursuant to Section II.A hereof for the Annual Show, charitable components to benefit veteran groups. As part of the activation of the Annual Show, Producer shall include a diversity programming component. By way of example, such programming may include a historical exhibit that highlights the role African-Americans have played in the U.S. Armed Forces. 8. Notwithstanding the timelines set forth in Sections 4, 5 and 6 of the Agreement with respect to the submission to the City of its proposed Event Site Plan, Public Safety Plan, and MOT Plan (collectively, the"Event Plans")for the Annual Show, Producer shall provide the City with its preliminary Event Plans, and any other deliverable contemplated in Section 4, 5 and 6 of the Agreement, within 120 days prior to the commencement of the Event Period for the Annual Show, to provide the City and Agencies Having Jurisdiction with the opportunity to review and comment on the Producer's preliminary Event Plans. With respect to the MOT Ran, the City shall, no later than December 1 of the year immediately prior to the year of the Event, provide Producer with additional guidance as to specific items the City expects to be included in the preliminary MOT Plan. 9. The Producer shall submit its final Event Plans, and any other deliverables contemplated in Sections 4, 5 and 6 of the Agreement, no later than 60 days prior to the commencement of the Event Period for the Annual Show. 10. As part of its Event Site Plan for the Annual Show, Producer agrees that its placement of Mobi-mats shall, in addition to accommodating ingress/egress to the Restricted Event Area, also accommodate the needs of persons with disabilities at the Event Site(sufficient to permit persons with disabilities to view the activities at the Annual Show). 11. Any changes to the scope of the activation set forth in Section II.A herein, including changes to the footprint of the Annual Show, hours of operation, days of use, or programming uses, shall require the City Commission's prior approval. B. City Permit Fee Waivers. 1. City hereby waives the following City of Miami Beach Special Event Permit fees for the Annual Show, up to the amounts stated herein: 4 Application Fee $ 250.00 Permit Fee $ 500.00 Square Footage Fee (estimate) $ 97,931.76 Vehicle Access Passes $ 3750.00 (for up to 25 vehicles) User Fees $ 51,630.00 Total Fees Waived $ 154,061.76* *The foregoing waivers do not include, and Producer shall remain responsible for, any applicable Building Department fees (which are not waivable), or the contractual displacement fee due to the City's exclusive beachfront concessionaire, Boucher Brothers,for the Producer's use of beach areas otherwise exclusively assigned to the Boucher Brothers as exclusive concession areas. City agrees to waive its portion of the Boucher Brothers displacement fee that would be due to the City as a concession fee. Moreover, if prior to the Annual Show, the City Commission amends the City's Special Event Guidelines and approves any adjustment to any of the foregoing fees, the total fees waived above shall be adjusted accordingly. 2. With respect to any other Annual Shows, if any, the City agrees to waive the City's Special Event Application Fee, Permit Fee, User Fee, Square Footage Fee, and Vehicle Access Charges (for up to 25 vehicles), provided the scope of the activation for any future Annual Show is limited to the scope as provided in Section II.A herein. To the extent Producer requests an expansion of the Annual Show beyond the scope set forth in Section II.A, Producer shall be solely responsible for all permit fees corresponding to the Producer-requested changes. C. Notwithstanding any provision to the contrary in the Agreement, and except as specified in Section II.F.1 below, the City's responsibility for the costs and expenses for personnel, staffing or services for public safety, Police, Fire, Ocean Rescue, Sanitation(trash removal, debris clean-up, recycling, and post-event sand sifting outside of the Restricted Event Area), sod, landscaping or irrigation line replacement, emergency management, or any ancillary services related to any of the foregoing for each Annual Show (collectively, the "Event-Related Public Services"), shall be limited to the not-to-exceed amount of $350,000 (City's Maximum Contribution), with such annual funding to be subject to and contingent upon a budget appropriation by the City Commission, at its sole discretion. D. Producer further acknowledges and agrees that the City's approval of the activation for the Annual Show as provided herein is expressly contingent upon, and in reliance of, the limitations set forth in Section II.A with respect to the City's Maximum Contribution, as mutually agreed upon herein for the Annual Show. 5 E. Except as specified with respect to City's costs and expenses as set forth in Sections II.B, II.0 and II.F.1 of this Amendment No. 4, and notwithstanding any provision to the contrary in the Agreement, as amended, the Producer shall be solely responsible for all costs and expenses relating to its activation, operation and production of the Annual Show, including, without limitation, all costs that are the responsibility of the Producer(or "Applicant") as provided in the Agreement (including, without limitation, temporary public sanitary facilities required under Section 8(a) of the Agreement, the clean-up costs attributable to Applicant under Section 8(b) of the Agreement, privately-contracted security to provide public safety within the Restricted Event Area, in accordance with Section 5 of the Agreement, any parking spaces approved for use pursuant to Section 7 of the Agreement, and any other item that is the express responsibility of the Applicant under the Agreement); all fees that are not waived in Section II.B above or that are in excess of the amounts specified in Section ILB above, and all costs and expenses related to the Event-Related Public Services in excess of the City's Maximum Contribution as provided in Section II.F.2(i.e., other than costs arising pursuant to Section II.F.1)(each such cost or expense, individually and collectively, hereinafter referred to as the "Producer's Expenses"). F. The City's anticipated Event-Related Public Services for each Annual Show are estimated to be less than $350,000, based on the costs incurred for Event-Related Public Services for the 2017 Annual Show and 2018 Annual Show. Producer further acknowledges that this amount is merely an estimate and is subject to change, as the Producer has not yet submitted, and the City has not reviewed, the proposed final Event Plans for the Annual Show. 1. As provided in the Agreement, and as public safety-related matters lie within the sole and absolute discretion of the City,the City Manager's determination as to the level of staffing or personnel required for any of the Event-Related Public Services shall be final and binding upon the Producer. To the extent that the City anticipates, at any time prior to the Annual Show, that due to the City's then-prevailing assessment of general risks or threat levels, additional Police, Fire or Ocean Rescue personnel is required for the Annual Show, such that the expenses for the Event-Related Public Services on account of such Police, Fire, Ocean Rescue, or Emergency Management personnel may exceed the City's Maximum Contribution, then the City shall be responsible for the cost of such additional Police, Fire, or Ocean Rescue costs, notwithstanding the City's Maximum Contribution. Except as specified in this Section II.F.1, in no event shall the City be responsible, or have or owe any liability or obligation to the Producer for any of the Producer's Expenses, or for any amount in excess of the City's Maximum Contribution, and the process set forth below in Section II.F.2 through II.F.6 shall govern with respect to the costs for Event-Related Public Services. 2. Following the City's review of the Producer's submission of the preliminary or final Event Plans based upon Section II.A hereto, to the extent the City anticipates that the expenses for Event-Related Public Services may exceed the City's Maximum Contribution for reasons related to specific proposed items in the Producer's preliminary or final Event Plans (which vary the scope of the Event Plans based upon Section II. A hereto (including, by way of example, a proposed expansion of the footprint, extended hours, or additional days for the Annual Show), or due to other scope changes outside of the scope set forth in Section II.A which are 6 requested by the Producer, then in such event, the City shall provide the Producer with notice, via email to mickey©mdmgroup.com, of the City's updated estimate for the Event-Related Public Services, and the portion in excess of the City's Maximum Contribution for which the Producer shall be solely responsible for, as part of the Producer's Expenses ("Notice of Estimate"). 3. The Producer shall have the option, within fifteen (15) calendar days following the City's delivery to Producer of a Notice of Estimate, to either (i) provide a written response to the City confirming that the Producer accepts the amounts identified as Producer's Expenses as set forth in the Notice of Estimate; or(H) submit modified Event Plans to the City for its review, with proposed reductions to the scope of the activation of the Annual Show (such as reductions with respect to its footprint, hours of operation, or programmatic plan), as may be necessary for the corresponding Event-Related Public Services for the Annual Show, as modified, to be implemented within the City's Maximum Contribution (hereinafter, the "Modified Event Plan"). If Producer accepts its responsibility for expenses identified as Producer's Expenses pursuant to Section II.F.3(i), Producer shall pay the City, within sixty(60) days prior to that year's Annual Show, a deposit consisting of fifty percent (50%) of the amounts identified as Producer's Expenses in the Notice of Estimate (the "Deposit"). 4. If the Producer submits a proposed Modified Event Plan for the Annual Show pursuant to Section II.F.3 above, and if the City Manager is amenable in principle to the proposed Modified Event Plan (subject to review and approval by any Agencies Having Jurisdiction), then the City shall provide the Producer with an updated Notice of Estimate with respect to the corresponding Event-Related Public Services for the proposed Modified Event Plan, within fourteen (14) days of Producer's submission to the City of the proposed Modified Event Plan, to permit Producer to review the City's updated estimate of expenses related thereto, in accordance with the process set forth in this Section II.F. 5. Within ten (10) business days following the Producer's submission of the preliminary Event Plans, as referenced in Section II.A9 herein, the City shall provide Producer with an updated Notice of Estimate and shall follow the process set forth in this Section II.F with respect to expenses for Event-Related Public Services. If, for the reasons specified pursuant to Section II.F.2 hereof, the City provides the Producer with a Notice of Estimate based on the preliminary Event Plan, and the Producer fails to respond to any Notice of Estimate within fifteen (15)calendar days following City's delivery to Producer of a Notice of Estimate, or otherwise fails to satisfy any of the requirements in Section II.F.3 above, within the timeframe set forth therein (i.e., by either declining to accept responsibility for the Producer's Expenses in the Notice of Estimate, or submit the Deposit, or by declining to submit a Modified Event Plan within the City's Maximum Contribution), then in such event, the Administration shall report on the foregoing status to the City Commission at the next available City Commission meeting (with email notice to the Producer thereof), to provide the City Commission with the opportunity to determine, at the City Commission's sole and absolute discretion, whether an additional appropriation in excess of the City's Maximum Contribution may be made, subject to and contingent upon funding availability, or whether, pursuant to this subsection, Producer can make the payment within fifteen (15) days thereafter, failing which the Annual Show may be cancelled for lack of sufficient funding. In the 7 event the Annual Show is cancelled pursuant to this subsection, then neither the City nor Producer shall have or owe any obligation or liability whatsoever to each other. For the avoidance of doubt, this Section II.F.5 shall be strictly limited to a Notice of Estimate based on Producer's submission of its preliminary Event Plans, if provided by the City within the timeframe set forth herein. 6. Within ten (10) days following the Producer's submission of its final Event Plans, as referenced in Section II.A.9 herein, the City shall provide Producer with an updated Notice of Estimate, if such proposed final Event Plans include any Producer-requested scope changes to the activation approved pursuant to Section II.A herein. If the Producer fails to respond to any such Notice of Estimate within fifteen (15) calendar days following City's delivery to Producer of the Notice of Estimate, or otherwise fails to satisfy any of the requirements in Section II.F.3 above with respect to such Notice of Estimate, then the Producer-requested scope changes shall be deemed abandoned, and the proposed modifications shall not be approved. 7. The City shall provide the Producer with the final accounting (settlement) for the actual costs and expenses for the Event-Related Public Services (less the amount of the City's Maximum Contribution and the Deposit, if any) within thirty (30)days after the conclusion of the Annual Show("Settlement"). Producer shall have the right to request all supporting documentation with respect to charges being billed to Producer under this Agreement. City's invoices shall include a breakdown of charges. The Producer shall pay any amounts in excess of the City's Maximum Contribution (and Deposit, if any)that are the responsibility of the Producer, as provided herein, within thirty(30) days of receipt of the Settlement. Any remaining balance of the Deposit, if any, after crediting all amounts that may be due to the City hereunder, shall be refunded to the Producer within thirty (30) days of Producer's receipt of the Settlement. If the Producer fails to pay any undisputed amounts due to the City hereunder within sixty (60) days following City's delivery to Producer of the Settlement charges, then the Agreement, as amended, shall be automatically terminated, and neither the City nor Producer shall have or owe any obligation or liability whatsoever to each other. G. With respect to the bonds the Producer is required to submit pursuant to Section 18 of the Agreement, the penal sum of the bond for the Annual Show shall be in the amount of $20,000. H. For the avoidance of doubt, the provisions of this Amendment No. 4, and all of the subsections thereof, are expressly intended to replace, and supersede, the provisions of the Agreement, as previously amended,with respect to the reimbursement of expenses. Accordingly, the City and the Producer agree that the provisions as outlined in Sections II.0 through II.F of this Amendment No. 4 shall govern the parties' obligations with respect to expenses for the Annual Show. In addition, subject to and contingent upon a funding appropriation by the City Commission, at its sole and absolute discretion, and provided the City does not exercise its right of termination pursuant to Section II.J of this Amendment, the provisions of Sections II.A through II.H herein shall apply to any subsequent Annual Show, if any. 8 I. The City shall, on commercially reasonable notice, have the right during normal business hours, at the expense of the City, to inspect (but not copy) the Producer's books and records and make any examination or audit of the Producer's records with respect to the Annual Show, including records relating to the financial performance of the Annual Show. The rights set forth herein shall be limited to inspection and audit only, to permit the Producer to maintain the confidentiality of its trade secret information (including business plans and confidential financial records). Trade secret information of the Producer shall be maintained in confidence by the City. J. As City's Maximum Contribution, as set forth in Section II.C, is subject to and contingent upon an annual funding appropriation by the City Commission, Section 20(a) of the Agreement is deleted in its entirety and replaced with the following termination for convenience rights in favor of the City: Prior to the September 151h of each year preceding the next Annual Show, the City Commission, at its sole and absolute discretion, may terminate this Agreement for its convenience upon written notice to the Producer. The only method for any such cancellation of the Agreement for the City's convenience shall be by motion approved by the City Commission, prior to the September 15'h of each year preceding the next Annual Show. The Producer shall be given fourteen (14) days advance notice (via email to mickevamdmgroup.com) of the City Commission meeting at which such cancellation shall be determined. If City elects to terminate this Agreement for its convenience prior to the expiration of the Term, the City shall not produce or permit another Air & Sea Show on the City's beach for two (2) calendar years after the year the last Event is produced by the Producer. K. Force Majeure. Should City be unable to tender possession of the Event Site to Licensee, or should Event Producer otherwise be unable to take possession of the Event Site, or present the Annual Show or to perform its obligations hereunder, when such failure, directly or indirectly, is caused by or in any manner arises from an Event of Force Majeure (defined herein), then neither Party shall have any liability under the Agreement. The term "Event of Force Majeure"shall mean any and all acts of God, strikes, lock-outs,acts of the public enemy, laws, rules and regulations of governmental or quasi-governmental entities, wars or warlike action, arrest or other restraint of government(civil or military), blockades, insurrections, riots, terrorism or terrorist threats, epidemics, earthquakes, hurricanes, storms, floods, washouts, fire or other casualty, civil disturbances, explosions, threats of bombs or similar interruptions, confiscation or seizure by any government or public authority, nuclear reaction, radioactive contamination, accidents, or any other causes, whether of the kind herein enumerated or otherwise that are not reasonably within the control or caused by the party claiming the right to delay the performance on account of such occurrence. The period of an Event of Force Majeure, and the suspension of obligations hereunder, shall extend to and include any period of time required to implement emergency preparations in advance of the Event of Force Majeure, the Event of Force Majeure itself, and the period of time following the Event of Force Majeure that may be required to restore the Event Site and/or remediate any delay, damage, loss, failure or inability to perform as a consequence of the Event of Force Majeure. Upon 9 removal or cessation of the Event of Force Majeure, the parties' respective rights and obligations hereunder shall be reinstated; provided; however, that the declaration and notice of an Event of Force Majeure and subsequent cessation of the cause of such Event of Force Majeure shall not require the Event Producer to move forward with the Annual Show if, in its reasonable belief, it will result in significantly diminished attendance and/or cancellations or cause Event Producer an unduly burdensome financial impact. L. Sponsorship Recognition. In consideration for the City's contribution to each Annual Show, with a contract value of up to $504,061 each year, the City shall receive sponsorship recognition on all media or promotional platforms related to the Annual Show, and other sponsorship benefits, similar to the sponsorship package offered to other sponsors providing financial or other support comparable to the City's contribution herein. Such sponsorship will include 20 VIP tickets for all events for the Mayor, Commissioners and appointed officials, in addition to the following: 1. Print and Media Recognition. The City will receive the following sponsorship recognition in any and all print and media purchased by the Producer to promote the Event including a. City logo or line listing (as appropriate, as determined by Producer) will appear with logos or line listings of all major sponsors in one full-page advertisement running the weekend of the Annual Show in a newspaper publication of major circulation such as The Miami Herald. b. City will receive recognition (logo or line-listing as appropriate, as determined by Producer) in select print advertising in local and national publications. City will receive recognition (logo or line-listing as appropriate, as determined by Producer) in select print promotional materials distributed to local, national and international media. c.City will have the opportunity to produce press releases promoting its participation in the Event. All approved press releases shall be housed on the Producer's website in the press room. d. City will receive sponsorship recognition on any billboards promoting the Event. e. City will receive sponsorship recognition on Event staging, should the Producer produce a concert as part of the Event. f. City will receive sponsorship during live commentaries where sponsors are recognized at the Event. 2. Electronic Recognition. The City shall receive the following electronic sponsorship recognition: A. City logo (or line listing, as appropriate,as determined by the Producer)will appear on the the Producer's website, with a link to the City's website: 10 • B. City will receive the following recognition on the Producer's Mobile App, if any is created for the Event. • Recognition (logo or line listing, as appropriate, as determined by the Producer)on the sponsor acknowledgement page. • Ads or other mobile packages may be purchased separately. C. Any logo recognition and link will remain on the Producer website from the Effective Date of this Agreement until July 31, 2019. 3. Concert Tickets. If Producer produces a paid ticketed concert as part of the Annual Show, City shall receive a minimum of twenty-five (25) complimentary tickets. In addition, Producer shall offer a 10% discount to members of the military, veterans, and City of Miami Beach residents. IV. RATIFICATION. Except as amended herein, all other terms and conditions of the Agreement shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment and the Agreement, the provisions of this Amendment shall govern. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: BY: _ 4 Rafael E. Gra ado, City ClerkH • . Gelber, Mayor N1et ' k `:SV Date - •�'� 1*�.INCORP ,GREITED� FOR PRODUCER: 2b. ',',pJTtONAL SALUTE TO AMERICA'S ES, LLC ATTEST: �/,//�J ' - - • G7i faess Myer �/ ���N£2 frit) / C,67( Ali /0//. Print Nun Print Name' a/if Date APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION City Attorney V� 3‘.? Date 12 Resolutions - R7 X MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: September 12, 2018 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 4 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDAAND A NATIONAL SALUTE TO AMERICAS HEROES, LLC, WITH RESPECT TO THE 2019 AIR AND SEA SHOW EVENT SCHEDULED TO TAKE PLACE ON MAY 25, 2019 THROUGH MAY 27, 2019 ("2019 ANNUAL SHOW"); WHICH AMENDMENT NO. 4 SPECIFIES THE TERMS AND CONDITIONS FOR THE ACTIVATION AND CITY'S SPONSORSHIP OF THE 2019 ANNUAL SHOW (AND EACH ANNUAL SHOW FOR THE REMAINDER OF THE TERM), INCLUDING CITY'S PAYMENT OFA MAXIMUM CONTRIBUTION OF $350,000 FOR EVENT-RELATED PUBLIC SERVICES, AND CITY'S WAIVER OF SPECIAL EVENT PERMIT FEES, USER FEES, VEHICLE ACCESS PASSES AND SQUARE FOOTAGE FEES IN THE TOTAL AMOUNT OF $154,062. RECOMMENDATION The Administration recommends approval of the Amendment. ANALYSIS On or about February 1, 2016, the City and A National Salute to America's Heroes, LLC, a for-profit entity of the State of Florida ("Producer"), executed an Agreement with respect to the production of an annual Air & Sea show event (each, an "Event" or "Annual Show") subject to the terms and conditions. On April 26, 2017, the Mayor and City Commission adopted Resolution No. 2017-29848, authorizing Amendment No. 1 to the Agreement, to waive special event permit fees for the 2017 Annual Show. O n October 18, 2017, the Mayor and City Commission approved Amendment No. 2 to the Agreement, which amendment delineated the terms and conditions for the 2018 Annual Show activation, and City's waiver of special event permit fees in the amount of approximately $154,000 and contribution for Event-related Public Services (Police, Fire, Ocean Rescue and sanitation, in the maximum amount not-to-exceed $350,000. On February 14, 2018, the Mayor and City Commission authorized additional funding to the Producer in the maximum not-to-exceed amount of $250,000, for the production of a concert to take place during the 2018 Annual Show, which was subsequently memorialized in Amendment No. 3 to the Agreement, dated March 29, 2018. Page 1579 of 1802 On July 2, 2018, the Mayor and City Commission directed the Administration to negotiate revisions to the agreement for the Annual Show activation, and further specified that the $250,000 in cash sponsorship for the concert would be discontinued. Proposed Amendment No. 4 would delineate the terms and conditions for the activation of the Annual Show to take place May 25-26, 2019, and further, continues to provide for City's sponsorship of $504,061, including a maximum not-to-exceed amount of $350,000 for City provided Event-related Public Services, as well as City's waiver of special event permit fees, estimated to total $154,061. In addition, the Amendment provides for 1) City activities between 5th and 7th Street with the previously approved Event space, 2) reduces the Producers performance bond from $50,000 to $20,000 consistent with prior years, and 3) clarifies sponsorship requirements. CONCLUSION The Administration recommends approval of the Amendment. KEY INTENDED OUTCOMES SUPPORTED Mabmize The Miami Beach Brand As A World Class Destination Legislative Tracking Tourism, Culture and Economic Development Page 1580 of 1802 AMENDMENT NO.4 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND A NATIONAL SALUTE TO AMERICA'S HEROES, LLC This Amendment No. 4 (Amendment)to the Agreement dated February 1, 2016, by and between the City of Miami Beach, Florida ("City"), and A National Salute to America's Heroes, LLC, a Florida limited liability company (the "Applicant" or"Producer"), is entered into this day of September, 2018. RECITALS WHEREAS, on or about February 1, 2016, the City and the Producer, a for-profit entity of the State of Florida, executed an Agreement with respect to the production of an annual Air&Sea show event(each, an "Event"or"Annual Show")subject to the terms and conditions therein; and WHEREAS, Amendment No. 1 to the Agreement was approved by the Mayor and City Commission on April 26, 2017, via Resolution No. 2017-29848, and provided for the waiver of special event permit fees for the 2017 Annual Show; and WHEREAS, Amendment No. 2 to the Agreement was approved by the Mayor and City Commission on October 16,2017,delineated the terms for the 2018 Annual Show activation;and WHEREAS, Amendment No. 3 to the Agreement, entered into on March 29, 2018, set forth the terms for a concert to take place during the 2018 Annual Show; and WHEREAS, on July 2, 2018, the Mayor and the City Commission directed the Administration to negotiate revisions to the agreement for the 2019 Annual Show activation, and further specified that no City funding would be provided for any concert that may be produced in conjunction with the Annual Show, if any; and WHEREAS, this Amendment No. 4 is intended to delineate the terms for the activation of the 2019 Annual Show, and any subsequent Annual Show for the remainder of the Agreement's term, If any. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and Producer hereby agree to this Amendment No. 4, as follows: I. ABOVE RECITALS. The above recitals are true and correct and are incorporated as part of this Amendment No. 4. II. MODIFICATIONS. A. Subject to the Producer's compliance with the City's special event permitting requirements, including any approvals, permit conditions or requirements of any regulatory agencies having jurisdiction(including,without limitation,the City's Fire Department, Public Works Department, or Building Department) ("Agencies Having Jurisdiction"), and further subject to the City approval process provided for in the Agreement (including Section 4 thereof) as amended herein, the City agrees to the following programmatic scope of activation related to the Annual Show: 1. Notwithstanding any provision to the contrary in the Agreement, the "Event Site" for the Annual Show shall mean the area east of the eastern boundary of the sidewalks along Ocean Drive, from 10th Street to 14th Place, limited by the waterline. For the Annual Show, the Producer agrees to not activate or use the areas east of the eastern boundary of the sidewalks along Ocean Drive, from 5" Street through the southern end of 10" Street, and the area east of the eastern boundary of the sidewalks along Ocean Drive on 15th Street(and such areas shall not be included as part of the Event Site for the Annual Show). 2. Notwithstanding any provision to the contrary in the Agreement, City agrees that it will not hold any other special event east of the eastern boundary of the sidewalks along Ocean Drive, from 5'h to 15" Street, during the Event Period for the Annual Show, with the exception of(a)City of Miami Beach's activation of an event between 6"Street and 7'h Street in conjunction with a local radio station, which event may take place from the Friday before Memorial Day through Memorial Day, and which may consist of a booth with a live broadcast of music (between 10:00 a.m. and 5 p.m.), local radio talent, positive beach safety messaging about Memorial Day Weekend, and other "fun" or "upbeat" activities; (b) up to three (3) activations for City-sponsored cultural programming, which mutually agreed-upon programming may take place each day of the Annual Show, at mutually agreed-upon designated areas between 5th Street and 6th Street; and (c) the City's Parks & Recreation Department programming for mutually-agreed upon activities for children, at a mutually agreed-upon designated area between 10'h Street and 14" Street, provided that such City children's programming does not conflict with Producer's sponsorships for the Annual Show. City shall provide Producer with details of the final cultural and children's programming line-up, if any, including a description of the programming, the location and scheduled hours thereof, no later than ninety (90) days prior to the first day of the Annual Show. Producer agrees to provide information highlighting the cultural programming on its website. Except as specified herein, nothing herein shall limit City's approval of special events taking place anywhere within the City of Miami Beach during Memorial Day Weekend. 3. The Restricted Event Area for the Annual Show,as such Restricted Event Area is defined in Section 2(n)of the Agreement, may include a ticketed area and concert stage as part of the Annual Show, with live music performances from 4 p.m. to 9 p.m. on Saturday and/or Sunday of each Memorial Day Weekend, and which concert may be followed by a fireworks display on Saturday and/or Sunday of each Memorial Day Weekend, formally 2 concluding at 9:30 p.m. each night. Subject to mutual agreement between the City and Producer,the live performances between 4 p.m.and 6 p.m. may include City-sponsored cultural programming. As any concert produced as part of the Annual Show would be taking place on public property pursuant to a City special event permit, the City Manager shall have the right to approve the elements of any concert activation, including the artist line-up and other concert programming, to ensure any such concert promotes a safe environment and is of high quality, professional, and suitable for as wide an audience as possible(including audiences of all ages). Producer shall submit its proposed concert programming elements,including the proposed artist line-up, to the City for its approval no later than ninety(90)days prior to the Annual Show. The City Manager' shall either approve or reject any specific concert programming elements within ten (10) business days of Producer's submission. If the City Manager has not objected to any concert element within ten (10) business days following Producer's written submission of the proposed concert elements, such elements shall be deemed approved. 4. If the Producer proceeds with a concert event as part of the Annual Show, the Producer shall complete its breakdown and load-out of the concert stage and related structures, not later than 120 hours following conclusion of the Annual Show. For the Annual Show, the Parties anticipate the concert stage and related structures will be generally located between 10'" Street and 11th Street. All other facilities or structures shall be removed in accordance with Section 9(b)of the Agreement. 5. Subject to any limitations required by any Agencies Having Jurisdiction (including U.S. Coast Guard or Marine Patrol), Producer's proposed powerboat and jetski demonstrations in the ocean shall begin no earlier than 10:00 a.m. and shall end no later than 4:00 p.m. on each Saturday and Sunday of the Annual Show. 6. The Lummus Park portion of the Event Site may include, among other corporate sponsor components to be submitted along with the Producer's Event Site Plan, an interactive athletic venue, featuring an "extreme sports" exhibition, and athletic/cross-fit style obstacle course. a. Producer, as part of its Special Event Permit Application, shall include a safety plan, a risk management plan, and details concerning the qualifications and experience of the third party vendors that will be involved in the production of any of the foregoing athletic activities. b. All persons participating in any "extreme sports" or athletic activity shall be required, as a condition of their participation in such activities, to execute a waiver and release of liability in favor of the Producer and the City of Miami Beach, in a form acceptable to the City. c. A"military display village" area, featuring all branches of the U.S. Armed Forces, sponsor tents and related activations, which may be located to the east side sidewalk of Ocean Drive, from 1OTM Street to 14111 Street, within the Producer's Event Site Plan. d. If the Producer successfully makes arrangements with respect to broadcasting any portion of the Annual Show, the City Manager's prior 3 written approval shall be required with respect to any use of the City's name or logo as part of the broadcast. e. On mutual agreement of the City Manager and the Producer, the programming for the Annual Show may include a designated "children's water zone,'for children-focused activities, provided, however, that in the event the City and Producer mutually agree to proceed with any such children's activities, the City, through its Parks and Recreation Department, shall be responsible for activities involving the direct supervision of children. 7. The Producer shall exercise its best efforts to work with veteran's groups, including the Salute 365 Foundation,a 501(c)3 not-for-profit, and others,to incorporate, as part of the programming approved pursuant to Section II.A hereof for the Annual Show, charitable components to benefit veteran groups. As part of the activation of the Annual Show, Producer shall include a diversity programming component. By way of example, such programming may include a historical exhibit that highlights the role African-Americans have played in the U.S. Armed Forces. 8. Notwithstanding the timelines set forth in Sections 4, 5 and 6 of the Agreement with respect to the submission to the City of its proposed Event Site Plan, Public Safety Plan,and MOT Plan (collectively,the"Event Plans")for the Annual Show, Producer shall provide the City with its preliminary Event Plans, and any other deliverable contemplated in Section 4, 5 and 6 of the Agreement, within 120 days prior to the commencement of the Event Period for the Annual Show, to provide the City and Agencies Having Jurisdiction with the opportunity to review and comment on the Producer's preliminary Event Plans. With respect to the MOT Plan,the City shall, no later than December 1 of the year immediately prior to the year of the Event, provide Producer with additional guidance as to specific items the City expects to be included in the preliminary MOT Plan. 9. The Producer shall submit its final Event Plans, and any other deliverables contemplated in Sections 4, 5 and 6 of the Agreement, no later than 60 days prior to the commencement of the Event Period for the Annual Show. 10. As part of its Event Site Plan for the Annual Show, Producer agrees that its placement of Mobi-mats shall, in addition to accommodating ingress/egress to the Restricted Event Area,also accommodate the needs of persons with disabilities at the Event Site(sufficient to permit persons with disabilities to view the activities at the Annual Show). 11. Any changes to the scope of the activation set forth in Section II.A herein, including changes to the footprint of the Annual Show, hours of operation, days of use, or programming uses, shall require the City Commission's prior approval. B. City Permit Fee Waivers. 1. City hereby waives the following City of Miami Beach Special Event Permit fees for the Annual Show, up to the amounts stated herein: 4 Application Fee $ 250.00 Permit Fee $ 500.00 Square Footage Fee (estimate) $ 97,931.76 Vehicle Access Passes $ 3750.00(for up to 25 vehicles) User Fees $ 51,630.00 Total Fees Waived $ 154,061.76* *The foregoing waivers do not include, and Producer shall remain responsible for, any applicable Building Department fees (which are not waivable), or the contractual displacement fee due to the City's exclusive beachfront concessionaire,Boucher Brothers,for the Producer's use of beach areas otherwise exclusively assigned to the Boucher Brothers as exclusive concession areas. City agrees to waive its portion of the Boucher Brothers displacement fee that would be due to the City as a concession fee. Moreover, if prior to the Annual Show,the City Commission amends the City's Special Event Guidelines and approves any adjustment to any of the foregoing fees, the total fees waived above shall be adjusted accordingly. 2. With respect to any other Annual Shows, if any,the City agrees to waive the City's Special Event Application Fee, Permit Fee, User Fee, Square Footage Fee, and Vehicle Access Charges(for up to 25 vehicles), provided the scope of the activation for any future Annual Show is limited to the scope as provided in Section II.A herein. To the extent Producer requests an expansion of the Annual Show beyond the scope set forth in Section II.A, Producer shall be solely responsible for all permit fees corresponding to the Producer-requested changes. C. Notwithstanding any provision to the contrary in the Agreement, and except as specified in Section II.F.1 below,the City's responsibility for the costs and expenses for personnel, staffing or services for public safety, Police, Fire,Ocean Rescue, Sanitation(trash removal,debris clean-up, recycling, and post-event sand sifting outside of the Restricted Event Area), sod, landscaping or irrigation line replacement, emergency management, or any ancillary services related to any of the foregoing for each Annual Show (collectively, the "Event-Related Public Services"), shall be limited to the not-to-exceed amount of $350,000 (City's Maximum Contribution), with such annual funding to be subject to and contingent upon a budget appropriation by the City Commission, at its sole discretion. D. Producer further acknowledges and agrees that the City's approval of the activation for the Annual Show as provided herein is expressly contingent upon, and in reliance of, the limitations set forth in Section ILA with respect to the City's Maximum Contribution, as mutually agreed upon herein for the Annual Show. 5 E. Except as specified with respect to City's costs and expenses as set forth in Sections II.B, II.0 and II.F.1 of this Amendment No. 4, and notwithstanding any provision to the contrary in the Agreement, as amended, the Producer shall be solely responsible for all costs and expenses relating to its activation, operation and production of the Annual Show, including, without limitation, all costs that are the responsibility of the Producer(or"Applicant") as provided in the Agreement(including, without limitation, temporary public sanitary facilities required under Section 8(a) of the Agreement, the clean-up costs attributable to Applicant under Section 8(b)of the Agreement, privately-contracted security to provide public safety within the Restricted Event Area, in accordance with Section 5 of the Agreement, any parking spaces approved for use pursuant to Section 7 of the Agreement, and any other item that Is the express responsibility of the Applicant under the Agreement); all fees that are not waived in Section II.B above or that are in excess of the amounts specified in Section 11.8 above, and all costs and expenses related to the Event-Related Public Services in excess of the City's Maximum Contribution as provided in Section II.F.2(i.e.,other than costs arising pursuant to Section II.F.1)(each such cost or expense, individually and collectively, hereinafter referred to as the"Producer's Expenses"). F. The City's anticipated Event-Related Public Services for each Annual Show are estimated to be less than $350,000, based on the costs incurred for Event-Related Public Services for the 2017 Annual Show and 2018 Annual Show. Producer further acknowledges that this amount is merely an estimate and is subject to change,as the Producer has not yet submitted, and the City has not reviewed, the proposed final Event Plans for the Annual Show. 1. As provided in the Agreement, and as public safety-related matters lie within the sole and absolute discretion of the City,the City Manager's determination as to the level of staffing or personnel required for any of the Event-Related Public Services shall be final and binding upon the Producer. To the extent that the City anticipates, at any time prior to the Annual Show,that due to the City's then-prevailing assessment of general risks or threat levels, additional Police, Fire or Ocean Rescue personnel is required for the Annual Show, such that the expenses for the Event-Related Public Services on account of such Police, Fire, Ocean Rescue, or Emergency Management personnel may exceed the City's Maximum Contribution, then the City shall be responsible for the cost of such additional Police, Fire, or Ocean Rescue costs, notwithstanding the City's Maximum Contribution. Except as specified in this Section II.F.1, in no event shall the City be responsible, or have or owe any liability or obligation to the Producer for any of the Producer's Expenses, or for any amount in excess of the City's Maximum Contribution,and the process set forth below in Section II.F.2 through II.F.6 shall govern with respect to the costs for Event-Related Public Services. 2. Following the City's review of the Producer's submission of the preliminary or final Event Plans based upon Section II.A hereto, to the extent the City anticipates that the expenses for Event-Related Public Services may exceed the City's Maximum Contribution for reasons related to specific proposed items in the Producer's preliminary or final Event Plans (which vary the scope of the Event Plans based upon Section II. A hereto (including, by way of example,a proposed expansion of the footprint,extended hours,or additional days for the Annual Show), or due to other scope changes outside of the scope set forth in Section II.A which are 6 requested by the Producer, then in such event, the City shall provide the Producer with notice, via email to mickey@mdmgroup.com, of the City's updated estimate for the Event-Related Public Services, and the portion in excess of the City's Maximum Contribution for which the Producer shall be solely responsible for, as part of the Producer's Expenses ("Notice of Estimate"). 3. The Producer shall have the option, within fifteen (15) calendar days following the City's delivery to Producer of a Notice of Estimate, to either (i) provide a written response to the City confirming that the Producer accepts the amounts identified as Producers Expenses as set forth in the Notice of Estimate; or(ti) submit modified Event Plans to the City for its review, with proposed reductions to the scope of the activation of the Annual Show (such as reductions with respect to its footprint, hours of operation, or programmatic plan), as may be necessary for the corresponding Event-Related Public Services for the Annual Show,as modified, to be implemented within the City's Maximum Contribution (hereinafter, the "Modified Event Plan"). If Producer accepts its responsibility for expenses identified as Producers Expenses pursuant to Section 11.F,30), Producer shall pay the City, within sixty(60)days prior to that year's Annual Show, a deposit consisting of fifty percent(50%)of the amounts identified as Producer's Expenses in the Notice of Estimate(the"Deposit"). 4. If the Producer submits a proposed Modified Event Plan for the Annual Show pursuant to Section II.F.3 above, and if the City Manager is amenable in principle to the proposed Modified Event Plan (subject to review and approval by any Agencies Having Jurisdiction), then the City shall provide the Producer with an updated Notice of Estimate with respect to the corresponding Event-Related Public Services for the proposed Modified Event Plan, within fourteen (14) days of Producer's submission to the City of the proposed Modified Event Plan,to permit Producer to review the City's updated estimate of expenses related thereto, in accordance with the process set forth in this Section II.F. 5. Within ten (10) business days following the Producer's submission of the preliminary Event Plans, as referenced in Section II.A9 herein, the City shall provide Producer with an updated Notice of Estimate and shall follow the process set forth in this Section II.F with respect to expenses for Event-Related Public Services. If, for the reasons specified pursuant to Section II.F.2 hereof, the City provides the Producer with a Notice of Estimate based on the preliminary Event Plan, and the Producer fails to respond to any Notice of Estimate within fifteen (15)calendar days following City's delivery to Producer of a Notice of Estimate, or otherwise fails to satisfy any of the requirements in Section II.F.3 above, within the timeframe set forth therein (i.e., by either declining to accept responsibility for the Producer's Expenses in the Notice of Estimate, or submit the Deposit, or by declining to submit a Modified Event Plan within the City's Maximum Contribution),then in such event, the Administration shall report on the foregoing status to the City Commission at the next available City Commission meeting (with email notice to the Producer thereof), to provide the City Commission with the opportunity to determine, at the City Commission's sole and absolute discretion, whether an additional appropriation in excess of the City's Maximum Contribution may be made, subject to and contingent upon funding availability, or whether, pursuant to this subsection, Producer can make the payment within fifteen (15)days thereafter, failing which the Annual Show may be cancelled for lack of sufficient funding. In the 7 event the Annual Show is cancelled pursuant to this subsection,then neither the City nor Producer shall have or owe any obligation or liability whatsoever to each other. For the avoidance of doubt, this Section II.F.5 shall be strictly limited to a Notice of Estimate based on Producers submission of its preliminary Event Plans, if provided by the City within the timeframe set forth herein. 6. Within ten (10) days following the Producer's submission of its final Event Plans, as referenced in Section II.A.9 herein, the City shall provide Producer with an updated Notice of Estimate, if such proposed final Event Plans include any Producer-requested scope changes to the activation approved pursuant to Section ILA herein. If the Producer fails to respond to any such Notice of Estimate within fifteen (15) calendar days following City's delivery to Producer of the Notice of Estimate, or otherwise fails to satisfy any of the requirements in Section II.F.3 above with respect to such Notice of Estimate, then the Producer-requested scope changes shall be deemed abandoned, and the proposed modifications shall not be approved. 7. The City shall provide the Producer with the final accounting (settlement) for the actual costs and expenses for the Event-Related Public Services (less the amount of the City's Maximum Contribution and the Deposit, if any)within thirty(30)days after the conclusion of the Annual Show("Settlement").Producer shall have the right to request all supporting documentation with respect to charges being billed to Producer under this Agreement. City's invoices shall include a breakdown of charges. The Producer shall pay any amounts in excess of the City's Maximum Contribution(and Deposit, if any)that are the responsibility of the Producer,as provided herein, within thirty(30)days of receipt of the Settlement. Any remaining balance of the Deposit, if any, after crediting all amounts that may be due to the City hereunder, shall be refunded to the Producer within thirty (30) days of Producer's receipt of the Settlement. If the Producer fails to pay any undisputed amounts due to the City hereunder within sixty (60) days following City's delivery to Producer of the Settlement charges, then the Agreement, as amended, shall be automatically terminated, and neither the City nor Producer shall have or owe any obligation or liability whatsoever to each other. G. With respect to the bonds the Producer is required to submit pursuant to Section 18 of the Agreement, the penal sum of the bond for the Annual Show shall be in the amount of $20,000. H. For the avoidance of doubt,the provisions of this Amendment No. 4, and all of the subsections thereof, are expressly intended to replace, and supersede, the provisions of the Agreement, as previously amended,with respect to the reimbursement of expenses. Accordingly, the City and the Producer agree that the provisions as outlined in Sections I I.0 through II.F of this Amendment No. 4 shall govern the parties' obligations with respect to expenses for the Annual Show. In addition, subject to and contingent upon a funding appropriation by the City Commission, at its sole and absolute discretion, and provided the City does not exercise its right of termination pursuant to Section I I.J of this Amendment, the provisions of Sections ILA through II.H herein shall apply to any subsequent Annual Show, if any. 6 I. The City shall, on commercially reasonable notice, have the right during normal business hours, at the expense of the City, to inspect (but not copy) the Producer's books and records and make any examination or audit of the Producer's records with respect to the Annual Show, including records relating to the financial performance of the Annual Show. The rights set forth herein shall be limited to inspection and audit only, to permit the Producer to maintain the confidentiality of its trade secret information (including business plans and confidential financial records). Trade secret information of the Producer shall be maintained in confidence by the City. J. As City's Maximum Contribution, as set forth in Section II.C, is subject to and contingent upon an annual funding appropriation by the City Commission, Section 20(a) of the Agreement is deleted in its entirety and replaced with the following termination for convenience rights in favor of the City: Prior to the September 15m of each year preceding the next Annual Show, the City Commission, at its sole and absolute discretion, may terminate this Agreement for its convenience upon written notice to the Producer. The only method for any such cancellation of the Agreement for the City's convenience shall be by motion approved by the City Commission, prior to the September 15th of each year preceding the next Annual Show. The Producer shall be given fourteen(14) days advance notice (via email to mickevdnmdmciroup.com) of the City Commission meeting at which such cancellation shall be determined. If City elects to terminate this Agreement for its convenience prior to the expiration of the Term,the City shall not produce or permit another Air & Sea Show on the City's beach for two (2) calendar years after the year the last Event is produced by the Producer. K. Force Majeure. Should City be unable to tender possession of the Event Site to Licensee, or should Event Producer otherwise be unable to take possession of the Event Site,or present the Annual Show or to perform its obligations hereunder, when such failure, directly or indirectly, is caused by or in any manner arises from an Event of Force Majeure (defined herein), then neither Party shall have any liability under the Agreement. The term "Event of Force Majeure"shall mean any and all acts of God,strikes, lock-outs,acts of the public enemy, laws, rules and regulations of governmental or quasi-governmental entities, wars or warlike action, arrest or other restraint of government(civil or military), blockades, insurrections, riots, terrorism or terrorist threats, epidemics, earthquakes, hurricanes, storms, floods, washouts, fire or other casualty, civil disturbances, explosions, threats of bombs or similar interruptions, confiscation or seizure by any government or public authority, nuclear reaction, radioactive contamination, accidents, or any other causes, whether of the kind herein enumerated or otherwise that are not reasonably within the control or caused by the party claiming the right to delay the performance on account of such occurrence. The period of an Event of Force Majeure, and the suspension of obligations hereunder,shall extend to and include any period of time required to implement emergency preparations in advance of the Event of Force Majeure, the Event of Force Majeure itself,and the period of time following the Event of Force Majeure that may be required to restore the Event Site and/or remediate any delay, damage, loss, failure or inability to perform as a consequence of the Event of Force Majeure. Upon 9 removal or cessation of the Event of Force Majeure, the parties' respective rights and obligations hereunder shall be reinstated; provided; however, that the declaration and notice of an Event of Force Majeure and subsequent cessation of the cause of such Event of Force Majeure shall not require the Event Producer to move forward with the Annual Show if, in its reasonable belief, it will result in significantly diminished attendance and/or cancellations or cause Event Producer an unduly burdensome financial impact. L. Sponsorship Recognition. In consideration for the City's contribution to each Annual Show, with a contract value of up to $504,061 each year, the City shall receive sponsorship recognition on all media or promotional platforms related to the Annual Show, and other sponsorship benefits, similar to the sponsorship package offered to other sponsors providing financial or other support comparable to the City's contribution herein. Such sponsorship will include 20 VIP tickets for all events for the Mayor, Commissioners and appointed officials, in addition to the following: 1. Print and Media Recognition. The City will receive the following sponsorship recognition in any and all print and media purchased by the Producer to promote the Event including a. City logo or line listing (as appropriate, as determined by Producer) will appear with logos or line listings of all major sponsors in one full-page advertisement running the weekend of the Annual Show in a newspaper publication of major circulation such as The Miami Herald. b. City will receive recognition (logo or line-listing as appropriate, as determined by Producer) in select print advertising in local and national publications. City will receive recognition (logo or line-listing as appropriate, as determined by Producer)in select print promotional materials distributed to local, national and international media. c.City will have the opportunity to produce press releases promoting its participation in the Event. All approved press releases shall be housed on the Producer's website in the press room. d. City will receive sponsorship recognition on any billboards promoting the Event. e. City will receive sponsorship recognition on Event staging, should the Producer produce a concert as part of the Event. f. City will receive sponsorship during live commentaries where sponsors are recognized at the Event. 2. Electronic Recognition. The City shall receive the following electronic sponsorship recognition: A. City logo(or line listing,as appropriate,as determined by the Producer)will appear on the the Producers website, with a link to the City's website: to • B. City will receive the following recognition on the Producer's Mobile App, if any is created for the Event. • Recognition (logo or line listing,as appropriate,as determined by the Producer)on the sponsor acknowledgement page. • Ads or other mobile packages may be purchased separately. C. Any logo recognition and link will remain on the Producer website from the Effective Date of this Agreement until July 31, 2019. 3. Concert Tickets. If Producer produces a paid ticketed concert as part of the Annual Show, City shall receive a minimum of twenty-five (25) complimentary tickets. In addition, Producer shall offer a 10%discount to members of the military,veterans,and City of Miami Beach residents. IV. RATIFICATION. Except as amended herein, all other terms and conditions of the Agreement shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment and the Agreement,the provisions of this Amendment shall govern. II IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: By: Rafael E. Granado, City Clerk Dan Gelber, Mayor Date FOR PRODUCER: A NATIONAL SALUTE TO AMERICA'S HEROES, LLC ATTEST: By: Secretary Manager Print Name Print Name Date APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION City Attorney JZPQ Date