Agreement with A National Salute to America's Heroes, LLC p<,0 2Q/5-z9z26
AGREEMENT f
THIS AGREEMENT is entered into on this L day of eFc y r , 2016,
between
THE CITY OF MIAMI BEACH, a municipal corporation of the State of Florida,
hereinafter referred to as "City",
and
A National Salute to America's Heroes, LLC, a Florida Limited Liability Company
hereinafter referred to as "Applicant".
WHEREAS, Applicant has requested approval from the City to conduct its aircraft flight
demonstration and aquatic show, with ancillary activities such as entertainment, exhibits, souvenir
sales, and refreshment sales (hereinafter referred to collectively as the "Air and Sea Show"or the
"Event").
WHEREAS, City has been advised that,due to the scope and magnitude of the proposed Air
and Sea Show, Applicant desires a contract with City for an initial term of five (5) years, so that
Applicant can appropriately plan the commitment of resources, sponsors, subcontractors and
finances.
WHEREAS,City recognizes that the Event is a unique branded event requiring significant capital
and time investment and, as such, is willing to enter into this agreement with Applicant, subject to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in
this Agreement, and other good and valuable consideration,the receipt and adequacy of which are
acknowledged, the parties agree as follows:
1. RECITALS INCORPORATED.The foregoing recitals are incorporated herein by reference.
2. DEFINITIONS. For the purposes of this Agreement, the Definitions set forth below are agreed
upon by the parties:
a. "Agreement*' means this Agreement between the City and Applicant,
including all of the attached and/or referenced Exhibits, as the same may be
amended from time to time, in writing, signed by both parties, and with any such
amendment, as to the City, further subject to the approval of the Mayor and City
Commission.
b. "Applicant" means A National Salute to America's Heroes, LLC, a Florida Limited
Liability Company authorized to do business in the State of Florida.
c. "City" means the City of Miami Beach, Florida,a municipal corporation of the State of
Florida.
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d. "Contract Administrator"means,as to City,the City Manager or his designee and,as to
Applicant, the Manager of A National Salute to America's Heroes, LLC, or his/her
designee. In the day to day oversight and administration of this Agreement,and except
where otherwise provided herein, the parties may rely upon instructions or
determinations made by the respective Contract Administrators. The Contract
Administrators may not make any change to this Agreement without the approval of a
written amendment to this Agreement,executed by City and Applicant and,as to City,
further subject to the prior approval of the Mayor and City Commission.
e. "City Manager"means the City of Miami Beach's City Manager.
f. "City Commission" means the City of Miami Beach City Commission.
g. "Event Impact Areas" means the areas outside of the Event Site that are directly
impacted by the Event. The Event Impact Areas shall be determined by the City
Manager, in his sole discretion; provided, however, that the City Manager may(but
shall not be obligated to)consult with Applicant prior to making his determination. In
the event of a disagreement between Applicant and the City regarding the Event Impact
Areas,the City Manager's decision shall be final and binding upon the parties as to
the determined Event Impact Areas.
h. "Event Period" means the dates of Memorial Day Weekend annually and throughout
the Term of this Agreement.The Air and Sea Show shall take place on Memorial Day
Weekend over a three-day period beginning on a Friday and ending on a Sunday.
The Applicant may utilize the Thursday immediately preceding the Event Period as a
practice day for performers and equipment utilized during the Event. No
concessions or hospitality tents shall be operating or open during the practice day.
The Event Period may be revised upon the mutual consent of the City and the
Applicant, and, if revised, any new Event Period shall be memorialized as a formal
written amendment to this Agreement, which shall be further subject to approval by
the City Commission.
"Breakdown" shall mean the use of heavy equipment, machinery or vehicles in the
deconstruction of the Event structures.
j. "Event Site"means the area within the City used to hold the Event and shall generally
refer to the area east of Ocean Drive, from 5th Street— 15' Street, limited by the
waterline and the Maintenance of Traffic ("MOT") Plan. The Event Site is more
specifically described in Exhibit"A" hereto.
k. "Maintenance of Traffic Plan"or"MOT Plan"shall have the meaning given to such term
in Section 6.
I. "Public Safety Plan"shall have the meaning given to such term in Section 5.
m. "Repair"shall mean any work(including all third party labor, supplies, materials and
equipment)reasonably necessary to repair, restore,or replace.anyproperty,equipment,
building, structure, or any other component within the Event Site, if such work is
necessitated by any damage or destruction caused by the acts or omissions of the
Applicant and/or its employees,contractors,subcontractors,agents,concessionaires,
licensees, or invitees.
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n. "Restricted Event Area"shall mean the restricted area located within the Event Site
utilized by Applicant for command and control, landing zone, operations, and
hospitality.
o. "Event Site Plan" shall have the meaning given to such term in Section 4.
p. "Term"shall have the meaning given to such term in Section 20.
3. PERMISSION TO USE, Subject to the terms and conditions in this Agreement,Applicant
shall be permitted to use the Event Site in order to conduct the Air and Sea Show. The right to use
the-Event Site shall not imply that the Applicant is permitted to close streets and transportation corridors
that are defined as part of the Event Site, unless such closures are approved, in writing, by the City
Manager, in his sole discretion.
The City Manager shall have the right to pre-approve all promotional materials, advertising and
signage for the Event, which approval shall not be unreasonably withheld. If, upon review, the City
Manager denies the use of certain promotional materials,advertising, or signage,the Applicant shall
promptly discontinue the use of, and/or otherwise remove, such promotional materials, advertising
or signage.
Applicant agrees to list the City of Miami Beach as a co-sponsor of the Event on all approved
-promotional materials, advertising and signage for the Event.
The parties agree that alcohol shall only be.permitted in the Restricted Event Area. Applicant's alcohol
sales, use, and consumption during the Event shall be governed in accordance with all applicable
provisions of the City of Miami Beach Code and Florida law, as may be amended from time to time.
4. CITY SPECIAL EVENT PERMIT APPLICATION: Not less than one hundred twenty(120)
days prior to the first day of each Event Period during the Term,Applicant shall-complete and submit
a Special Event Application and provide the City with the following:
a. The Event Site Plan depicting, at a minimum, all locations that will be designated for
Applicant's exclusive use (including, without limitation the Restricted Event Area):
detailing the locations of any tents, sanitary facilities, parking, stages, booths,
concessions, alcoholic beverage service areas, etc.; and the boundary lines,
including those down to the waterline(as allowed by law),of any fences, barriers, etc.
to be constructed at the Event Site. The Event Site Plan shall be subject to the review
and approval by the appropriate City departments.After review by the appropriate City
departments,the final proposed Event Site Plan shall be subject to the review and final
written approval of the City Manager.A final inspection will be conducted by the City
immediately prior to the Event to ensure that the location of all tents, booths, sanitary
facilities, parking, stages, etc. are in accordance with the City approved Event Site
Plan.The City approved Event Site Plan shall be incorporated into this Agreement as
Exhibit"D" hereto.
b: A description of all activities and events to occur at the Event Site,
(including,without limitation, the Restricted Event Area).
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c. The cellular and business phone numbers of the individuals in charge of the various
aspects of the Event.
d. Copies of all appropriate permits and licenses required by the City. These permits
include, but are not limited to, permits necessary for tents and other structures,
merchandise,food and beverage vendors, and electrical connections.
e. All sponsors of the Event,and/or all goods and services to be promoted,distributed,
sold, or given away must have the prior written approval of the City Manager,which
approval, if given at all, shall be at the City Manager's sole discretion.
f. Applicant shall provide any other deliverable(s) required by the City Manager,
whether same is required pursuant to the City's Special Event Rules and
Regulations,which are attached and incorporated as Exhibit"_"hereto,or whether
required in order to safeguard and ensure the health,safety,and welfare of the City's
residents and visitors during the Event Period.
g. Applicant acknowledges that other events and activities will take place within the City
of Miami Beach during the Event Period each year,as the Event Period includes the
Memorial Day holiday weekend,a historically busy weekend within the City of Miami
Beach. Accordingly, Applicant's Event schedule, program, and activation shall be
coordinated with the City, so as to ensure the health, safety and welfare of City's
residents and visitors during the Event Period,and minimal disruption or interruption
of other activities or events taking place within the City of Miami Beach during the
Event Period.
5. PUBLIC SAFETY PLAN FOR THE-EVENT. Because of the physical size of the Event and the
number of people that may attend, City shall arrange for such necessary personnel, at City's expense,
and in such type,manner and number,as may be determined by the City Manager,in his sole discretion
and judgement,to ensure the appropriate level of public safety at the Event Site and Event Impact Areas,
excluding the Restricted Event Area, which shall be provided at Applicant's expense. The parties may
consult with each other in regard to the levels of security,including the scaling down of such services for
the set up and tear down of the Event.
a. The Applicant shall provide a Public Safety Plan for the City Manager's review and
approval, no later than one hundred and twenty(120)days prior to the date of each
Event Period.This Public Safety Plan shall include, but not be limited to,the Applicant's
planned actions to respond to and mitigate various potential criminal and/or emergency
incidents which may occur during the Event.After receiving the Public Safety Plan from
the Applicant, the City Manager shall work with the Applicant in order to properly
determine the number of personnel necessary to effectively and efficiently carry out
the Public Safety Plan.The City and Applicant shall develop an anticipated budget for
the Public Safety Plan. The City Manager shall have the absolute sole right and
discretion to approve the Public Safety Plan, including any revisions or adjustments
thereto. In the event of a disagreement(s) between Applicant and the City regarding
the number of personnel required for the Public Safety Plan, and/or the anticipated
budget of the Public Safety Plan, the City Manager's decisions shall be final.The final
City-approved Public Safety Plan shall be attached and incorporated as Exhibit"B"to this
Agreement.
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b. Applicant shall make arrangements with the appropriate City department(s) to
provide Police, Fire, Ocean Rescue protection. These arrangements must be
reviewed and approved by the City Manager.
c. The parties will act in good faith to keep the other party notified of the latest information
and any new developments or incidents that might cause additional public safety
personnel to be deployed to the Event.
d. In addition to the City-approved Public Safety Plan, the City's Police and Fire
Departments will author separate comprehensive Incident Action/Operational Plans
specific to their respective duties. Such plans will take into consideration several
factors, to include nationally accepted event planning and management guidelines
utilizing the National Incident Management System(NIMS)and the Incident Command
System (ICS). These plans will be fluid up until the conclusion of the Event and may
change based on real time intelligence,threat information,and other such inputs.Local
representatives and agents from the Federal Bureau of Investigation (FBI) Special
Events Unit,the Department of Homeland Security(DHS), Navy Criminal Investigative
Service (NCIS), and other public safety partners will assist in determining the level
and magnitude rating of the Event, advise of any potential national security
considerations, and provide intelligence gathering and Event threat assessment
assistance. Due to the sensitive security and safety implications of such plans, they
will be kept confidential,accessible to City officials, Police/Fire personnel and Applicant
only, and shall not be available for public or media distribution.
e. The cost of any expansion of Event-related activities, boundaries or other Event
program changes requested by Applicant, or the costs for additional services
requested by Applicant, including,without limitation, public safety-related services that
are greater than the services being provided by the City for the Event as established in
the Public Safety Plan, shall be at the sole expense of Applicant. City shall be paid or
reimbursed for all costs and expenses associated with any such additional or
expanded services provided to Applicant,with all such costs being accounted for and
paid separately from the provisions of Section 17 of this Agreement, which shall not
apply with respect thereto. Expansion of services means enhancements of Event-
related activities or programming, any changes in the type of activities approved for the
Event,or other changes with respect tb the Event that are initiated by or are requested
by Applicant, including changes to the physical location and boundaries that result in an
increase in the City's cost to provide all necessary services.
f. Should Applicant request non-critical public safety services,such as a police escort,
or if such services are beyond the City's ability to provide, Applicant may make such
arrangements and coordinate these services with the City.The cost for these additional
services shall be an expense to Applicant, and all such costs and expenses shall be
paid to City within the time frame set forth in Section 17.
g. In the event of an emergency or disaster during the Event,at the Event Site,or as a direct
result of Event activities,that requires public safety resources beyond the City approved
Public Safety Plan, it shall be the sole responsibility of the Applicant to reimburse the
City for its additional cost to respond to such emergency or disaster. This paragraph
shall not apply to any natural disaster,act of terrorism,or act of God that may occur at the
Event Site during the Event including, without limitation, a hurricane, lightning strike,
tornado, or any other such causes whatsoever beyond the control of the parties.
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h. In the event the Applicant wishes to utilize temporary mobile cellular communication
service boosting)towers,which can also benefit public safety by increasing the E-911
capabilities of the specific service provider,the Applicant must notify the City Police and
Fire Departments and agrees that the contracted equipment provider with whom they
procure such equipment,services etc.will work closely with the City Radio Engineers to
confirm the temporary towers will not interfere with the City or County public safety radio
frequencies.
6. STREET CLOSINGS:The City Manager reserves the right,at his sole discretion,to approve all
closing of streets, including those streets and transportation corridors within the Event Site.
a. Not less than one hundred and twenty (120) days prior to the date of each Event,
Applicant shall provide to the City a MOT Plan for the City Manager's review and
approval.The City approved MOT Plan shall be incorporated into this Agreement as
Exhibit"C," and shall contain a construction and automotive and pedestrian traffic flow
schedule detailing the opening and closing times for all streets and/or transportation
corridors. No street or transportation corridor closures will be permitted unless included in
the City approved MOT Plan. Applicant agrees to provide the City with emergency
access to all areas included in the Event Site.
b. Applicant agrees to coordinate and make the appropriate arrangements with any.
merchants or residents-affected by any street or transportation corridor closures to ensure
they are provided sufficient and reasonable access to their businesses and residences.
Applicant acknowledges that traffic control plans shall accommodate the ingress and
egress to businesses or residences during the course of the Event.
7. PARKING AND TRANSIT SERVICES: It will be the responsibility of Applicant-to arrange,
coordinate, and pay for all parking at City facilities and any transit services from these facilities to the
Event Site. All proposed shuttle routes and bus stops shall be submitted by Applicant, as part of the
MOT Plan. City agrees to invoice Applicant at the approved Special Event Parking Rate for any public
metered parking spaces that are removed from public use(as requested by the Applicant and approved
by the City Manager). All parking lot requests must be in writing at least ninety(90)days in advance of
the Event. An estimate of parking charges will be provided to Applicant no more than fourteen (14)
days after receiving written requests.Applicant understands that the approved Special Event Parking
Rate is a daily rate and may not be prorated.
8. MAINTENANCE OF EVENT SITE AND EVENT IMPACT AREAS:
a. Applicant shall be responsible for,and shall provide,sufficient temporary public sanitary
facilities so as to meet the requirements established by the City Manager. Applicant
shall provide daily service of the facilities at all times during the Event Period. The
cost of such temporary public sanitary facilities shall be an expense to Applicant,
whether such facilities are furnished by Applicant or City. If any such facilities are
furnished by City,all costs and expenses shall be paid to City within the time frame as
set forth in Section 17. Applicant shall not be responsible to pay for clean-up of City
public rest room facilities.
b. The City shall be responsible for all clean-up costs and expenses associated with the
removal of trash and debris that accumulates within the Event Site or in the designated
Event Impact Areas, provided, however, that Applicant shall be responsible for all
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clean-up costs and expenses associated with the removal of trash and debris that
accumulates on any portion of the Restricted Event Area. All trash shall be collected and
removed throughout the Event with final clean-up being completed within 24 hours of the
Event completion. The requirement to remove trash and debris includes street
sweeping.
c. Applicant shall provide all day access passes to the necessary City staff required to
work the Event.Applicant and City will agree to the list of passes that will be distributed
for the Event at least ten (10) days prior to the Event. Additionally, Applicant shall
provide an operations tent to be utilized by the City Manager during the Event days.
Location of this operations tent shall be determined by the City Manager.
9. CONSTRUCTION OF FACILITIES, STRUCTURES, CANOPIES, TENTS AND
CONCESSION STANDS;
a. Applicant shall be permitted to construct and maintain, within the Event Site, such
facilities and/or structures that are approved for the Event as part of the Event Site Plan.
All such facilities and/or structures shall be erected, and deliveries with respect
thereto made,on agreed-upon dates after consultation with the City's Special Event
staff.
b. Applicant shall be permitted to set up no later than the Monday prior to the Event.All
such facilities and/or structures must be removed within seventy-two (72) hours
following the conclusion of the Event.
c. Applicant shall obtain approval by the City Fire Department and file with its Special Event
Permit application evidence that any facilities and/or structures are of fireproof
material and will not constitute a fire hazard. City's Building Department must review
and approve the proposed use of any facilities and/or structures,in accordance with the
City Code and the Florida Building Code, as same may be amended from time to
time.
d. All construction, installations and services,including electrical hook-ups,shall be made
at Applicant's expense and approved in advance by the City's Building Department. If
electricity is required,Applicant shall negotiate arrangements for such service with the
City or a licensed contractor. This cost shall be an expense to Applicant and, if
furnished by City, shall be paid to City within the time frame as set forth in Section 17,
Reimbursement of Costs and Expenses.
e. Unless Applicant receives prior written permission from the Ci ty Manager,
no
construction or installations shall involve the use of stakes or other material that may
break the surface or deface any infrastructure such as asphalt, concrete, brick or any
plant material.
f. Applicant is required to provide and install Event-related signage,including directional,
general messaging, concession stands, and sponsor-related signage, at locations
subject to the City Manager's approval.Applicant will set up and remove such signage,
at no cost to the City.
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10. MAINTENANCE OF AND PAYMENT FOR DAMAGE TO PROPERTY: Regardless of the
cause, Applicant shall be responsible for any damage to any and all property located or situated
within the Event Site (including, without limitation, the Restricted Event Area). It is further agreed
that City shall inspect the Restricted Event Area and Event Site for damage no later than the
Wednesday immediately following the Event and, if as a result of said inspection, damage is found
to exist, City shall furnish Applicant with a written report of such damage by the close of business
within fourteen(14)days following the Event. The report shall state the cost to be paid by Applicant
to remedy the damage. This cost shall be paid by Applicant within fourteen(14)days after Applicant
receives the City's report.
11. SECURITY: All construction materials, equipment, goods, signs and any other personal
property of Applicant shall be protected and/or secured solely by Applicant. Applicant acknowledges
and agrees that City assumes no responsibility whatsoever for any such item(s)and that the security
and protection of any such item(s)from theft, vandalism, the elements, acts of God, or any other
cause, are strictly the responsibility of Applicant.
12. SUBLEASES ASSIGNMENTS, OR TRANSFERS: Applicant shall not assign, sublease or
transfer any of its obligations or rights under this Agreement, in whole or in part,to any person. The
foregoing notwithstanding,the City acknowledges that Applicant will have subcontractors providing
services to Applicant in order for Applicant to effectuate this Agreement and the hiring of such
subcontractors shall not be a violation of this paragraph.
13. LICENSES AND PERMITS;COPYRIGHTS, PATENTS AND TRADEMARKS:At least fifteen
(15) days prior to the Event, Applicant agrees to secure and pay for all licenses, permits or other
governmental approvals that may be required by any governmental agency having jurisdiction over the
Event Site or any aspect of the Event, including, without limitation, any approval required by the City,
Miami-Dade County, State of Florida and/or any agency of the U.S. government, and shall also be
responsible for obtaining any incidental State permit for the protection of sea turtles issued by the
appropriate governmental agency. Additionally, if Applicant intends to use any item which is or may be
protected from infringement, such as but without limitation, copyrights, patents and trademarks, if
requested by City, Applicant shall provide City fifteen (15)days in advance of the first date of property
use,evidence showing that the applicable licenses,permits and/or permission have been secured and,if
applicable, all fees have been paid in full by Applicant. The provisions of this paragraph
specifically apply to the American Society of Composers, Authors and Publishers
("ASCAP"), Broadcast Music Incorporated ("BMI") and any other similar organization
mat may require written permission and payment of a fee for use of protected material.
Applicant shall ensure that all performance payments required to be made under such
licenses are made promptly and directly to the licensing organizations. Copies of all said
licenses or reports shall be submitted to City upon request In the event Applicant fails to
submit the licenses or reports as required herein or the documentation is not satisfactory
to City, Applicant shall be responsible for payment to City for all license fees incurred by
•
the City in connection with the Event. City shall have no responsibilities to any
performing rights licensing organizations for any performance during the Event.
14. STANDARDS OF CONDUCT; COMPLIANCE WITH RULES, REGULATIONS,
ORDINANCES: Applicant agrees that at all times it will conduct its activities with full regard for public
safety and will observe and abide by all Federal,State and local laws, including,without limitation,those
relating to-noise, building, zoning, gambling,fire protection, liquor regulation,sanitation,food facilities,
and hours of operation. Applicant shall further take all precautions and use due care to conduct its
operations in a safe and prudent manner with respect to its agents,employees and visitors to the Event.
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15. INSURANCE: The Applicant shall provide and maintain at all times during the term of any
contract, without cost or expense to the City, policies of insurance, with a company or companies
authorized to do business in the State of Florida, and which are acceptable to the City All required
insurance will be placed with carriers licensed to do business in the State of Florida, having agents
upon whom service of process may be made in the State of Florida, insuring the applicant against
any and all claims, demands or causes of action whatsoever, for injuries received or damage to
property relating to the performance of duties, services and/or obligations of the applicant under the
terms and provisions of the contract. Applicant is responsible for timely provision of certificate(s)of
insurance to the City at the certificate holder address evidencing conformance with the contract
requirements at all times throughout the term of the contract.
Such policies shall remain in full force and effect during the Event and shall specifically include
those times of setup and Breakdown in connection with the Event. Such policies of insurance, and
confirming certificates of insurance, shall insure the applicant is in accordance with the following
minimum limits:
a. General Liability insurance on forms no more restrictive than the latest edition of the
Occurrence Form Commercial General Liability policy(CG 00 01)of the Insurance
Services Office or equivalent without restrictive endorsements, with the following
minimum limits and coverage:
Each Occurrence/General Aggregate $1,000,000/2,000,000
Products-Completed Operations $2,000,000
Personal &Adv. Injury $1,000,000
Fire Damage $50,000
Medical Expense $5,000
Contractual Liability Included
b. Liquor Liability with the following minimum limits and coverage:
Each Occurrence $1,000,000
Annual Aggregate $1,000,000
c. Automobile liability insurance, including owned, non-owned,and hired autos with the
following minimum limits and coverage:
Combined Single Limit $1,000,000
d. Workers'compensation insurance based on proper reporting of classification codes
and payroll amounts in accordance with Chapter 440, Florida Statutes, and/or any
other applicable law requiring workers'compensation(Federal, maritime,etc). If not
required by law to maintain workers compensation insurance, the applicant must
provide a notarized statement that if he or she is injured; he or she will not hold the
City responsible for any payment or compensation.
e. Employers Liability insurance with the following minimum limits and coverage:
Each Accident $1,000,000
Disease-Each Employee $1,000,000
Disease-Policy Limit $1,000,000
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f. Professional liability and/or specialty insurance (medical malpractice, engineers,
architect, consultant,environmental, pollution, errors and omissions,etc.)insurance
as applicable, with minimum limits of $1,000,000 and annual aggregate of
$2,000,000.
The City of Miami Beach shall be named as additional insured as their interest may
appear on all applicable liability insurance policies.
The certificate(s) of insurance shall provide for a minimum of thirty(30) days prior
written notice to the City of any change, cancellation, or nonrenewal of the provided
insurance. It is the applicant's specific responsibility to ensure that any such notice
is provided within the stated timeframe to the certificate holder.
If it is not possible for the Applicant to certify compliance, on the certificate of
insurance, with all of the above requirements, then the Applicant is required to
provide a copy of the actual policy endorsement(s)providing the required coverage
and notification provisions.
Certificate holder shall be:
The City of Miami Beach, Florida
1700 Convention Center Drive
Miami Beach, FL 33139
Certificates of insurance shall evidence a waiver of subrogation in favor of the City,
that coverage shall be primary and noncontributory, and that each evidenced policy
includes a Cross Liability or Severability of Interests provision,with no requirement of
premium payment by the City.
Applicant is required to confirm that each vendor of the Applicant carry insurance
coverage that meets or exceed the coverages set forth in paragraphs (a)-(f) that
apply to each vendor, as applicable to each vendor's work, and that the same limits
apply to any and all vendors the Applicant uses for the Event. Applicant further
confirms that Applicant's insurance will apply as excess over any other valid and
collectible coverage of their vendors. Said limits may be provided by purchase of an
umbrella or excess policy.
All self-insured retentions shall appear on the certificate(s) and shall be subject to
approval by the City. At the option of the City, the insurer shall reduce or eliminate
such self-insured retentions or the applicant or subcontractor shall be required to
procure a bond guaranteeing payment of losses and related claims expenses.
The City shall be exempt from, and in no way liable for, any sums of money, which
may represent a deductible or self-insured retention in any insurance policy. The
payment of such deductible or self-insured retention shall be the sole responsibility
of the applicant and/or sub-contractor providing such insurance.
If Applicant fails to deliver an insurance certificate, the City's failure to request
delivery shall in no way be construed as a waiver of Applicant's obligation to provide
the insurance coverage specified herein. Failure to obtain and maintain such
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insurance as set out above will be considered a breach of contract and may result in
termination of the contract for default.
Neither approval by the City of any insurance supplied by the, nor a failure to
disapprove that insurance,shall relieve the Applicant of full responsibility for liability,
damages, and accidents as set forth herein.
16. INDEMNIFICATION AND HOLD HARMLESS: Applicant shall indemnify, defend and hold
harmless City, its officers, agents, and/or employees, against any and all damages, claims, losses,
liabilities and expenses (including, without limitation, reasonable legal fees and disbursements)
caused by, in connection with, arising out of, or resulting from the use of the Event Site, or caused
by, in connection with,arising out of,or resulting from any act by Applicant, its partners,employees,
officers, contractors, and/or agents done in the performance of this Agreement. If called upon by City,
Applicant shall defend not only itself, but also City in connection with any such claim, at Applicant's
expense, and at no expense whatsoever to City.
Applicant further agrees to defend, indemnify,save and hold harmless the City and the City's officers,
agents,and employees from any claim, suit, loss, cost or expense or any damages arising out of or
relating to Applicant's failure to obtain all necessary performing rights and licenses for the event(BMI,
ASCAP, etc.).
17. REIMBURSEMENT OF EXPENSES: The City and Applicant shall be responsible for the
costs and expenses associated with Police, Fire, Ocean Rescue, and Sanitation services within the
Event Site and Event Impact Area,as provided herein. City shall be responsible for initial expenses
up to the amounts associated with Memorial Day Weekend for the immediately preceding calendar
year, adjusted annually for either (1) wage increases for personnel for the foregoing City
departments or(2) inflation utilizing the United States Bureau of Labor Statistics, Consumer Price
Index for All Urban Consumers; U.S. City average (1982-84=100), whichever is lower(the "City's
Initial Contribution").Applicant shall be responsible for all of City's costs and expenses in excess of
the City's Initial Contribution, up to the maximum amount of $200,000 ("Applicant's Initial
Contribution"). City and Applicant to each be responsible for 50 percent(50%)of all costs in excess
of Applicant's Initial Contribution. Applicant shall reimburse City for any amounts due under this
Agreement within fourteen (14) days of receipt of any invoice from City. Applicant shall have the
right to request all supporting documentation with respect to charges being billed to Applicant under
this Agreement. City's invoices shall include a breakdown of charges.
18. BOND:
a. Applicant agrees to secure a bond in an amount equal to one hundred and ten
percent (110%) of the estimated cost of services for the Applicant requested
additional services or expansion of services requested by Applicant, for the Event
including,without limitation, public safety, maintenance, cleanup, utility connections,
Breakdown and removal, storage and repair or replacement of property. City
reserves the right to approve the bonding company or institution issuing the bond
and the instrument shall be kept in full force and effect for the period of the
Agreement.
b. No later than thirty(30)days prior to the date of permission from City to first use the
Event Site,Applicant shall provide the City with a valid payment bond in the amount
specified above. The bond shall be written by a corporate surety company holding a
Certificate of Authority from the Secretary of Treasury of the United States,executed
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and issued by a resident agent licensed by and having an office in the State of
Florida, representing such corporate surety, providing that if Applicant fails to duly
pay for any labor, materials, or other supplies used by Applicant, the surety will pay
the same in the amount not exceeding the sum provided in such bond. Applicant
shall also have the option to escrow the funds in an amount equal to one hundred
and ten percent(110%) of the cost of reimbursement for City services ("Obligated
Amount") in which case a bond would not be required by the City. The Obligated
Amount shall be placed into the City to be held in escrow under the terms and
conditions hereinafter set forth ("Escrow Deposit").
c. The City's Chief Financial Officer shall be the Escrow Agent,the Escrow Agent shall
promptly deposit, retain and disburse the Escrow Deposit in accordance with the
terms hereof or as may be directed in writing by both the Applicant and City Manager
on behalf of the City or as may be directed by a court of competent jurisdiction.
d. If the Escrow Agent is in doubt as to his or her duties, the Escrow Agent shall retain
the Escrow Deposit until Applicant and City, through its City Manager, collectively
agree in writing to the disposition of the funds or until a court of competent
jurisdiction has adjudicated the rights of Applicant and the City.
e. Any suit between Applicant and City where Escrow Agent is made a party because
of acting as Escrow Agent,or in any suit where Escrow Agent interpleads the Escrow
Deposit, Escrow Agent shall recover reasonable attorney's fees and costs from the
Escrow Deposit, as between Applicant and City, and such fees and costs shall be
charged and assessed against the non-prevailing party.
f. The parties agree that the Escrow Agent shall not be liable to any party or person for
misdelivery of the Escrow Deposit or any portion thereof to Applicant or City, unless
misdelivery is due to willful breach of the terms hereof or gross negligence on the
part of Escrow Agent.
19. CITY'S RIGHT TO SUSPEND ACTIVITIES OR REMOVE PERSONS FROM EVENT SITE:
The City Manager shall have the authority to suspend all or any part of the activities of Applicant
when, in the City Manager's sole judgment and discretion, such activities may be or are detrimental
to the public or to the City, or if the City has reason to believe any law or ordinance is being violated
by Applicant, its agents or employees,which conduct is not corrected within forty eight(48)hours of
written notice to Applicant. City reserves the right through the City Manager, to suspend or
terminate use of the Property if visitors become unruly, and to reject any sponsor, presentation,
material or item which is or may be, in the sole opinion of the City Manager, hazardous, offensive,
immoral or disparaging to the image of the City, or to any person or group of persons. The decision
of the City Manager in such regard shall be final, binding and conclusive.
20. TERM AND TERMINATION: The City hereby grants to the Applicant the exclusive right and
privilege to conduct the Air and Sea Show annually for an initial period of five (5)years, subject to
the following conditions:
a. The Applicant may conduct the Air and Sea Show annually for the Term of this
Agreement, unless the City Commission decides to discontinue the Air and Sea
Show with notice to the Applicant, following the conclusion of the first Air and Sea
Show. The only method for any such cancellation of the Agreement pursuant to this
Section 20(a) is by motion approved by the City Commission. The City shall notify
Page 12
the Applicant of its intent to cancel the Air and Sea Show prior to July 30 of the year
preceding the next scheduled Air and Sea Show. However, in all instances City shall
have ninety (90) days from the date the last Air and Sea Show ends to notify
Applicant of its intent to cancel. Applicant shall be given fourteen(14)days'notice of
the City Commission meeting at which such cancellation shall be determined. If City
elects to discontinue, City shall not produce or permit the production of an air and
sea show on City's beach for two (2)calendar years after the year the last Event is
produced by the Applicant.
b. The Applicant may elect, during the Term of this Agreement, to terminate this
Agreement and no longer conduct the Air and Sea Show. If the Applicant elects to
terminate this Agreement,the Applicant shall notify the City in writing of such election
prior to the July 15 of the year preceding the next Air and Sea Show Event. If the
Applicant elects not to conduct the Air and Sea Show in a particular year or elects
not to seek an extension of the terms of this Agreement, this Agreement will
automatically terminate.
c. Termination for Cause: If either party fails to perform in accordance with the
requirements of this Agreement or fails to comply with any applicable laws(any such
failure to perform or comply with applicable laws hereby constituting a"Default"),the
non-defaulting party shall give written notice thereof to the defaulting party,
identifying the nature of the default("Notice of Default").
1. If, after delivery of the Notice of Default, the defaulting party fails to promptly
commence and thereafter complete the curing of such Default within a
reasonable period of time, not to exceed thirty(30)days after delivery of the
Notice of Default or, if such Default is not capable of being cured within such
thirty (30) day period, the defaulting party fails to undertake within such
period to effect a cure,and diligently and in good faith prosecute the same to
conclusion no later than sixty (60) days following delivery of the Notice of
Default, then the non-defaulting party may terminate this Agreement for
cause at any time following the expiration of the cure period specified in the
Notice of Default or as provided in this Section 20(d).
2. If either party commits a Default during the term of this Agreement and cures
the Default within the cure period, and subsequently commits a Default of a
similar nature, then the non-defaulting party shall have the sole option and
discretion to terminate this Agreement for cause effective immediately,
without providing the defaulting party with the opportunity to cure the
subsequent Default. If the default is of a nature that cannot be cured, such
as fraud or a material misrepresentation in connection with either party's
performance under this Agreement, or a failure to have met the minimum
room block requirements set forth in Section 27 below, the non-defaulting
party shall be entitled to immediately terminate this Agreement for cause,
and such termination shall be effective upon receipt of the termination notice
and no cure period shall apply.
3. Upon termination, the defaulting party shall remain liable for all damages,
costs and expenses, including reasonable attorneys fees, arising out of or
related to its Defaults under this Agreement, and the non-defaulting party
Page 13
shall be fully discharged from any and all liabilities, duties, or obligations
arising out of, or by virtue of, this Agreement.
21. GOVERNING LAW AND ATTORNEY'S FEES: This Agreement shall be governed by the
laws of the State of Florida, with venue lying in Miami-Dade County. In the event of any dispute
which arises out of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees and costs, including bankruptcy and/or appeal if any.
22. ASSIGNMENT: No assignment of the rights, interest or obligation under this Agreement
shall be made by either party without the written consent of the other.
23. AMENDMENT: No modification amendment or alteration of the terms or conditions
contained herein shall be effective unless contained in a written document executed by the parties
hereto, with the same formality and of equal dignity herewith.
24. EXTENT OF AGREEMENT: This Agreement represents the entire and integrated
Agreement between City and Applicant and supersedes all prior negotiations, representations or
agreements either written or oral.
25. NOTICE: Whenever any party desires to give notice to any other party, it must be given by
written notice sent by registered United States mail,with return receipt requested,addressed to the
party for whom it is intended at the place designated below and the place so designated shall
remain such until they shall have been changed by written notice in compliance with the provisions
of this section. For the present, the parties designate the following as the respective places for
giving notice:
CITY:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
APPLICANT:
A National Salute to America's Heroes, LLC,
a Florida Limited Liability Company
do Michael I. Kotler, Esquire
54 SW Boca Raton Boulevard
Boca Raton, Florida 33432
26. CORPORATE STATUS: This Agreement shall automatically terminate if, within thirty(30)
days from execution of this Agreement,Applicant does not provide City with proper certification from
the State of Florida that Applicant has registered to do business in the State of Florida.
27. ROOM BLOCK REQUIREMENT: For each Event, Applicant shall be responsible for
generating event room blocks at hotels located within the City of Miami Beach, in the minimum
amount of(a)one thousand (1,000) room nights on the peak night of the Event Period (with such
peak night during the Event Period to be selected by Applicant); and(b)thirty-five hundred (3,500)
room nights over the course of the Event Period. Within thirty(30)days following the completion of
each Event,Applicant shall provide the City all supporting documentation verifying compliance with
Page 14
the foregoing minimum room block requirements. In the event the Applicant fails to meet the
minimum room block requirements set forth herein,the City Manager may terminate this Agreement
for cause pursuant to Section 20(c)(2).
IN WITNESS OF THE FOREGOING,the parties have set their hands and seals the day and
year first written above.
CITY OF MIAMI BEACH, FLORIDA,
ATTEST: a municipal corporation of the S,...= • "•rids
--....\ %
0-I*)/ I,•--- -1- ,
By: I I , , - F %Rafael . Granado, Ci y CI= INCORP ORATED p Levi -//'
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1.
,,,��4CH.261',
A NATIONAL SALUTE TO AMERICA'S HEROES,
ATTEST: LLC., a Florida Limited Liability Company
By: By:
Print Name: Lif%1.G L iVada,i4C Print;,/ " .' et .`/r 40 •/-
Its: Its: l _ Lair
APPROVED AS TO
FORM & LANGUAGE
9\i O N
City Attorney 4,AD Date
Page 15
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