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Amendment 1 to the Agreement with Live Nationi~~(~~ ~ooq-~~Z~g AMENDMENT NO. 7 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND LIVE NATION WORLDWIDE, INC., DATED JUNE 22, 2007, FOR THE JACKIE GLEASON THEATER OF THE PERFORMING ARTS (THE AGREEMENT) ~~f11 ~~ This Amendment No. 1 to the Agreement, is made and entered into this ~ day of ~cLtw~at/ , 2009, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation having its principal office at 1700 Convention Center Drive, Miami Beach, Florida, 33139 ("City'), and LIVE NATION WORLDWIDE, INC, a Delaware corporation whose address is 9348 Civic Center Drive, Beverly Hills, California 90210 ("Live Nation"). RECITALS WHEREAS, on June 22, 2007, the City entered into an Agreement with Live Nation Worldwide, Inc. (Live Nation) to manage the Jackie Gleason Theater of the Performing Arts, now named and known as the Fillmore Miami Beach at the Jackie Gleason Theater (the Venue), with an initial term of ten (10) years, commencing on June 22, 2007, and ending on August 31, 2017 (the "Agreement"), and WHEREAS, Section 2.1 (b) of the Agreement restricts Live Nation from serving food or beverages at the Venue after midnight; and WHEREAS, Live Nation has requested an amendment to the aforestated food and beverage restriction as there are a number of potential events it has been unable to book (due to this restriction); and WHEREAS, on December 16, 2008, the City's Finance Committee discussed Live Nation's request, and recommended approval of a trial period, where Live Nation would be permitted to extend hours of operation and liquor sales at the Venue, subject to certain conditions; and WHEREAS, at its meeting on December 9, 2009, the City Commission considered the Finance Committee's recommendation and recommended that the City approve an Amendment to the Agreement permitting Live Nation to extend hours of operation and liquor sales at the Venue for a trial period, subject to the following conditions: 1. Any sale, distribution, and or service of food and beverages, including alcohol, at the Venue shall cease at no later than 2:00 AM. 2. The Venue will be closed to the public no later than 3:00 AM; accordingly, all patrons within the Venue should also leave by 3:00 AM. 3. No DJ performances shall be allowed. 4. Live Nation shall provide the City Manager or his/her authorized designee with a written progress report halfway through the trial period, or July 1, 2010. NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements herein contained, and other good and valuable consideration, in receipt and adequacy of which are hereby acknowledged and intending to be legally bound, the City and Live Nation hereby amend the Agreement as follows: 1. The aforestated recitals are true and correct and incorporated by reference herein. {0946-168-00018995.DOC - } Page 1 follows: 2. Section 2.1(b) of the Agreement, entitled "Engagement," is amended as (b) Manager of the Facility. Live Nation accepts the engagement and agrees to operate, manage, maintain, promote and market the Facility in a manner consistent with other similar first class facilities operated by Live Nation and its Affiliates as of the Commencement Date. Subject to the terms of this Agreement, Live Nation shall be, as agent for the City, the sole and exclusive manager of the City to operate, manager, maintain, promote and market the Facility during the term. In such capacity, except as otherwise expressly reserved under this Agreement to the City and/or except for such matters as are subject to the to the approval of the City or the City Manager, Live Nation shall have exclusive authority over the management and operation of the Facility and all activities therein; provided, however, the Facility shall be used only as a live entertainment venue and public auditorium or any combination thereof, and for such ancillary uses as are customarily related to such primary use, including, without limitation, broadcasting, recording, filming, private parties or functions, bar (including alcoholic beverages) and food concessions (and including preparation of food), in each case in conjunction with an Event or rental function then being held, and sale of merchandise related to any Event then being held. Other uses may be allowed only with the. prior written approval of the City Manager. Without limiting the generality of the foregoing, in no event shall food and beverages, including alcohol, be sold, distributed, or served after midnight (12:00 AM) and in no event shall a4sel~elis bottle service be offered for alcohol, nor beverages, including alcoholic beverages, be sold in bottles. Bottle service is herein defined as the ability for patrons to purchase entire bottles of liquor for personal consumption. Notwithstanding the preceding, the City shall allow Live Nation to sell, distribute, and/or serve food and beverages, including alcohol, at the Venue for a limited twelve (12) month "trial period," commencing on January 1, 2010, and automatically sunsetting and terminating on December 31, 2010 (without any further action to effectuate such termination required by the City), subiect to the following conditions: 1. Anv sale, distribution, and or service of food and beverages, including alcohol, at the Venue shall cease at no later than 2:00 AM. 2. The Venue will be closed to the public no later than 3:00 AM; accordingly, all patrons within the venue should also leave by 3:00 AM. 3. No DJ performances shall be allowed. 4. Live Nation shall provide the City Manager or his/her authorized designee with a written progress report halfway through the trial period, or July 1, 2010. Live Nation must provide the Citv Manager or his/her authorized representative with at least fifteen (15) days prior written notice, prior to any (and each) event in which Live Nation intends to extend the hours of sale, distribution, or service of any food and beverages, including alcohol, past midnight. Notwithstanding the aforestated trial period, or any other term or condition of the Aoreement, Live Nation shall not sell distribute, or serve any food or beverages, including alcohol, after midnight during New Year's Eve (December 31$`) and during Winter Music Conference (generally, the last week of March); these Events will not count toward the reauired annual number of events, as specificed in Section 2.2 (b). The parties further acknowledge that the permission granted under the aforestated trial period may be revoked at any time by the Citv Manager, with or without cause and at his/her sole option and discretion, upon thirty (3) days prior written notice to Live Nation; provided, however, that Live Nation shal be allowed to proceed with any events booked by Live Nation prior to the {0946-168-00018995.DOC- } Page 2 date of termination (which entail the sale, distribution or service of any food or beverages. including alcohol, past midnight). The Citv's termination of the trial period shall not result in any liability to the City. 3. EXHIBIT "H" (LICENSE AGREEMENT) is amended as follows: Section 14 D. Umbrella Liability Insurance at not less than $24,000,000.00 limit providing excess coverage over all limits and coverages noted in paragraph B and C above. This policy shall be written on an occurance basis. 4. EXHIBIT "H-1" (LICENSE AGREEMENT) is amended as follows: Section 14 D. Umbrella Liability Insurance at not less than $24,000,000.00 limit providing excess coverage over all limits and coverages noted in paragraph B and C above. This policy shall be written on an occurance basis. 5. No Further Modifications. Except as provided in this Amendment No. 1, the Agreement remains unmodified and in full force and effect. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] {0946-168-00018995.DOC- } Page 3 itv WITNf=S~ WHERE(~~. this Agreement has been duly executed by the parties hereto as of Elie day and year first above written. ,w ~,.,;ty ~;erk ~0 ~e~r~tarY _.._..--- --- CITY ©F MIAMI BE H, F ORIDA ~~'~~ May r 7 day of ~2uw,6[ /. 2fl09. day of ~, ; At ',-... , :L, 1. 4Gr_, :,N hiaz.., ; .~mend•n2ns Nc . -After Nc;,zs DflC 2Q09. APPRt7VED AS TO FORM & I-ANGUAGE t~ FOR EXECUTION '..rF._- attorri,~ ~p ~~~'~~ c, .ti t Z ~z`tr°°~ Date _.: .t.. .._.- ... Page4 ~Ii~~~~ Prin# Name