Amendment No. 2 to the Agreement with A National Salute to America's Heroes, LLC (2)RqJ
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AMENDMENT NO. 2 TO THE AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND
A NATIONAL SALUTE TO AMERICA'S HEROES, LLC
This Amendment No. 2 (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 Fierps,
LLC, a Florida limited liability company (the "Applicant" or "Producer"), is entered into this
day of Oetetrer, 2017.
N pr-Auc-
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, on or about April, 2017, the Producer advised the City that a sponsor of the
2017 Annual Show significantly reduced its financial participation in the 2017 Annual Show, and
as a result thereof, the Producer was unable to meet its prior commitments; and
WHEREAS, notwithstanding that the City had no obligation to do so pursuant to the
Agreement, the Producer requested that the City waive permit fees and underwrite certain costs
for the 2017 Annual Show, in order for the 2017 Annual Show to take place; and
WHEREAS, on April 26, 2017, the City Commission adopted Resolution No. 2017-
29848, and approved the Producer's request for waiver of certain permit fees and an additional
City contribution in connection with the 2017 Annual Show, with the foregoing additional
contribution memorialized in Amendment No. 1 to the Agreement; and
WHEREAS, the Agreement provides the City Commission with the annual ability,
following the conclusion of the 2017 Annual Show, to discontinue the event and terminate the
Agreement for its convenience, at its discretion; and
WHEREAS, on July 26, 2017, the City Commission declined to exercise the City's right,
pursuant to Section 20(a) of the Agreement, to discontinue the Event, and agreed to permit the
2018 Annual Show to take place, expressly contingent upon, and in reliance of, the Producer's
representation and agreement at the July 26, 2017 City Commission meeting, that the activation
for the 2018 Annual Show would have the same scope as the activation agreed to, and
implemented for, the 2017 Annual Show (see attached Exhibit "A,") which scope is being
expanded as provided herein; and
WHEREAS, at the July 26, 2017 City Commission meeting, the City Commission further
directed the Administration to engage in discussions with the Producer with respect to the
possibility to expand the Annual Show activation to, among other terms, potentially include an
expanded footprint, a concert and fireworks show; and
WHEREAS, the Administration has met with the Producer, and has submitted the
Producer's proposed terms for an expanded Annual Show, for the City Commission's
consideration.
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 Consultant hereby agree to amend the Agreement as follows:
I. MISLItgLiESITALS.
No. 2.
The above recitals are true and correct and are incorporated as part of this Amendment
IL 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 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 Ocean Drive, from 5th Street through the southern end of 10th Street,
or the area east of Ocean Drive on 15th Street (and such areas shall not be included as part of
the Event Site for the Annual Show), provided, however, that the City agrees it will not hold
any other special event east of Ocean Drive, from 5th to 151h Street, during the Event Period for
the Annual Show,
2. The Restricted Event Area for the Annual Show, as defined in Section
2(n) of the Agreement, may also include a ticketed area and concert stage for the Annual
Show, subject to the Producer successfully obtaining sponsorships with respect thereto, with
live music performances from 4:00 pm to 9:00 p.m., on Saturday and Sunday of each
Memorial Day VVeekend„ followed by a fireworks display on Saturday and Sunday of each
Annual Show, formally concluding at 9:30 pm each night
3. Subject to any limitations required by any Agencies Having Jurisdiction
(including the U.S. Coast Guard or Marine Patrol), the 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.
4. The Lummus Park portion of the Event Site may include, among other
corporate sponsor components to be submitted along with 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.
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b. All persons participating in any "extreme sports" or athletic activity shall
be required, as a condition of their participation in any 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.
0. 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.
5. The military display village area, featuring all branches of the U.S..
Armed Forces, sponsor tents and related activations, may be relocated to the east side
sidewalk of Ocean Drive, from 10 Street to 14 Street, within the existing Memorial Day closure
of Ocean Drive.
6. If the Producer successfully makes arrangements with respect
broadcasting any portion of the Annual Show, the City Manager's prior written approval shall
be required with respect to any use of the City's name or logo as part of the broadcast.
?. 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 i1.A hereof for the
Annual Show, charitable components to benefit veteran groups. As part of the activation of
the 2018 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. 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
2018 Annual Show, the Parties anticipate the concert stage and related structures will be
generally located between 10t Street and 11th Street. All other facilities or structures shall be
removed in accordance with Section 9(b) of the Agreement.
11, 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).
12. Any changes to the scope of the activation set forth in Section 11.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 2018 Annual Show , up to the amounts stated herein:
Application Fee $ 250.00
Permit Fee $ 500.00
User Fee $ 51,630.00
Square Footage Fee (estimate) $ 97,931.76
Vehicle Access Passes $ 3750.00 (for up to 25 vehicles)
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.
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 11,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.
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E. Except as specified with respect to City's costs and expenses as set forth in
Sections 11.13, II.0 and 11.F.1 of this Amendment No. 2, and notwithstanding any provision to the
contrary in the Agreement, 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 11,13 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 11.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 Producer acknowledges that as of October 12, 2017, the Producer has been
provided with the Commission Memorandum relating to this Amendment No. 2, which includes a
summary of anticipated Event -Related Public Services for the 2018 Event in the amount of
$346,000, based on the deck submitted by Producer and as described in Section 11.A. 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
11.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 inSection 1I.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 ILA 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 U.A which are 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
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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 (ii) 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 Il.F.3(1), 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
Pian, 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 11. F,
. 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 11.F.2 hereof, the City provides the Producer with a Notice of Estimate based an 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 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 0I.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.
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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 (16) calendar days following City's delivery to Producer of
the Notice of Estimate, or otherwise fails to satisfy any of the requirements in Section ILF,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 fourteen (14) 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
$50,000.
H. For the avoidance of doubt, the provisions of this Amendment No, 2, and
all of the subsections thereof, are expressly intended to replace, and supersede, the
provisions of Section 17 of the Agreement with respect to the reimbursement of
expenses. Accordingly, the City and the Producer agree that, Section 17 of the
Agreement is hereby deleted in its entirety, and the provisions as outlined in Sections
ILC through 11.F of this Amendment No. 2 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 20(a) of
the Agreement, the provisions of Sections ILA through 1I.F shall apply to any subsequent
Annual Show, if any.
1. 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
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Agreement is deleted in its entirety and replaced with the following termination for convenience
rights in favor of the City:
Prior to the September 151" 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 151h of each year preceding the next Annual Show. The Producer shall be given
fourteen (14) days advance notice (via email to joke • m.maraue.co ) 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.
111. 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.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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FOR CITY:
ATTEST:
By:
Rafael E Granada, City Clerk
ti 3 V1
Date
FOR PRODUCER:
CITY OF MIAMI B RIDA
or
ATIONAL SALUTE TO AMERICA'S
ROES, LLC
'kCz. JF -1
ATTEST:
By:
Secretary
Print Name
Date
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attomay Rge Date
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