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Agreement No. 3 to the Agreement with A National Salute to America's Heroes, LLCtot 5.., 29 7)j AMENDMENT NO. 3 TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND A NATIONAL SALUTE TO AMERICA'S HEROES, LLC This Amendment No. 3 (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 March, 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, 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, on or about October 18, 2017, the Mayor and City Commission approved Amendment No. 2 to the Agreement; and WHEREAS, the scope of activation for the 2018 Annual Show included a potential concert, to take place within the footprint of the Event Site, with the concert stage and related structures generally to be located between 10th Street and 11th Street; and WHEREAS, the City desires to facilitate and support a proposed concert to take place within the Event Site as part of the 2018 Annual Show, subject to the terms and conditions provided herein (the "Concert "), which terms include providing funding to the Producer, on a reimbursement basis following the execution of the Concert, and provided that the City has approval of the Artists or talent performing at the Concert (each, an "Artist" and collectively, the "Artists ") and Concert elements, as set forth herein. 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. ABOVE RECITALS. The above recitals are true and correct and are incorporated as part of this Amendment No. 3. 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 by Amendment No. 2 and the provisions herein, the City agrees to the following with respect to the Concert as part of the 2018 Annual Show: 1. Notwithstanding any provision to the contrary in the Agreement or Amendment No. 2, the Concert shall take place on Saturday, May 27, 2018, between the hours of 6:00 p.m. and 9 :30 p.m. At a minimum, the Producer shall program two (2) Artists (subject to City's Manager approval as provided herein) for the Concert, each to perform for a minimum set of 30 -45 minutes, and in addition thereto, the Producer shall exercise its best efforts to program a third Artist for the Concert. 2. The Concert shall be free and open to the general public at no charge. Should the Producer wish to reserve VIP areas, those areas must be on the sidelines of the stage /event area and may not block the viewing site lines for the general public in attendance. Producer shall not sell any tickets for the Concert, either individually or as part of a sponsor package or VIP package. 3. Producer shall have the right to sell sponsorships or advertising in support of the production of the Concert, provided that the City Manager shall approve the sponsorship and all aspects of the proposed sponsorship activation, at the City Manager's discretion. 4. The Producer shall submit its line up for the proposed Artists, to the City Manager no later than April 2, 2018. The Artists and programmatic concert elements (including staging, lighting, sound, and performance program) shall be subject to the City Manager's prior written approval, at the City Manager's discretion. Producer acknowledges that the City shall have the exclusive right to permit and approve all Artists performing at the Concert, including those appearing on a volunteer basis and without any compensation. 2 Producer shall not enter into any written agreements with Artists, accept upon the prior written approval of the City Manager, at his discretion. The parties agree that Orville Richard Burrell (a /ka "Shaggy "), Max Schneider (a /k /a "MAX "), and Kent Jones are approved performers. 5. The Producer shall be solely responsible for executing all aspects of the Concert, including permitting, stage set up, load -in /load -up, rental of all necessary equipment (including lighting, sound and other elements requiring specialized or professional personnel), coordination of equipment set up and breakdown for each Artist during the Concert, providing sound checks for each Artist prior to the Concert, providing an adequate stage crew to support the production, executing contracts and riders with Artists (following City approval thereof), marketing and promotion of the Concert, obtaining sponsorships, providing ushers and security personnel, and all other elements necessary or ancillary to the production of the Concert. 6. Producer shall be solely responsible for complying with the terms of any agreements or riders with the Artists or other vendors for the Concert. Producer shall include the following conditions in any performer contracts: Mosh pits, stage diving, slam dancing or similar behavior shall be strictly prohibited at the Concert. Producer shall use its best reasonable efforts to ensure that all Artists comply with this strict prohibition. 7. The sale or service of any alcoholic beverages, if any, shall be subject to the requirements of the City's special event permit guidelines, and the applicable alcoholic beverage license as required by Florida law. Prior to the 2018 Annual Show, Producer shall provide the City with a copy of the Producer's State of Florida alcoholic beverage license, authorizing sale or service of alcoholic beverages at the Concert. 8. Producer shall include the following provisions in the agreement /rider with each of the Artists performing at the Concert: a. that if the Artist arrives at the Concert noticeably under the influence of intoxicating beverages or drugs, the Producer may immediately cancel the Artist's performance, without any payment to the Artist or liability whatsoever under the agreement with the Artist; b. that the Artist shall abide by and conform to all rules and regulations that may be prescribed by the Producer or the City. c. that the Artist shall comply fully with any and all local, state, and federal laws, regulations, rules, constitutional provisions, common laws, and rights of others applicable to the reproduction or performance of proprietary or copyrighted materials and works of third parties; and d. that the Artist shall indemnify and hold harmless the Producer and the City from and against all and any manner of fines, fees, losses, damages, claims or expenses arising from the use of proprietary intellectual property of third parties (whether such claims are actual or threatened) under the copyright or other laws of the United States, including, but not limited to claims of libel, copyright infringement or other alleged use of materials by the Artist at the performance. The foregoing indemnity shall apply regardless of the means of publication or performance by the Artist, and shall include specifically and without limitation the use of recordings, audio broadcasts, video broadcasts, works on other magnetic media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on -line service providers, satellite or cable, and all other publication or performance means or media formats whatsoever, whether now known or developed after the date of this Amendment No. 3; and e. that the Artist grants the City a non - exclusive, irrevocable license to create a recording (via video, audio and any other recording means) of the Concert, and to copy, 3 reproduce, exhibit, broadcast, or transmit, or otherwise exploit the recordings of the Concert, or any portion thereof, in any media or other format now in existence or hereinafter developed, including any audio broadcasts, video broadcasts, works on other media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on -line service providers, satellite or cable, and all other publication or performance means or media formats whatsoever, for the City's non - commercial purposes, including, without limitation, for the purpose of highlighting the City's cultural programming and showcasing the City of Miami Beach as a vibrant tourism destination. f. that the sale of any Artist - related merchandise at the Concert, including t- shirts, records, posters, and the like, shall be subject to the advance written approval of the City Manager; and g. that the Artist acknowledges and agrees that the Producer shall provide the City with a copy of each agreement, including any rider(s), with the Artists, and that the terms thereof shall be subject to public records disclosure in accordance with Chapter 119 of the Florida Statutes. Prior to entering into any contract with talent for the Concert, Producer shall provide the City Manager with the form of the contract (which form shall include the foregoing provisions), for the City Manager's review and approval thereof, at the City Manager's discretion. 9. The Producer's detailed line item budget for the Concert is set forth as Exhibit "A" attached hereto. Producer shall be solely responsible for executing all aspects of the Concert, in accordance with the budget, Any changes to the budget are subject to the City Manager's approval, provided, however, that the City's obligations shall be limited to the City Reimbursement (as defined below). 10. Subject to and contingent upon the successful execution and conclusion of the Concert, the City shall pay the Producer the not -to- exceed amount of $250,000, on a reimbursement basis, and solely for Concert - related expenses, following Producer's submission, and City's acceptance of, documentation evidencing that the Artists and vendors for the Concert have been fully paid ( "City Reimbursement "). Upon receipt of Producer's submission of documents evidencing that Concert- related vendors have been paid, City shall review the Producer's supporting documentation and advise the Producer, within five (5) business days, of whether the City accepts the Producer's submission, or whether additional supporting information is required with respect to the City Reimbursement. City shall pay the City Reimbursement within seven (7) business days following City's acceptance of the Producer's documentation evidencing that Concert - related vendors have been paid. 11. Except for the City Reimbursement as provided herein, Producer shall be solely responsible for all costs and expenses related to the Concert. In no event shall City have or owe any obligation whatsoever to the Producer in excess of the City Reimbursement with respect to the Concert or otherwise arising under this Amendment No. 3. Any additional funding requested by the Producer in excess of the City Reimbursement shall be subject to and contingent upon the approval of the City Commission, at its sole and absolute discretion. 12. The Producer shall submit all final Event Plans that include the Concert elements no later than April 2, 2018. In the event all Concert elements are not finalized and submitted for the City Manager's final approval by April 6, 2018, then the City, through the City Manager, may decline to authorize the Concert as part of the 2018 Annual Show, by written notice to the Producer no later than April 13, 2018. In the event the City Manager declines to 4 authorize the Concert to proceed, City and Producer shall each be responsible for their own costs, and neither Party shall have any further obligation to the other Party with respect to the Concert. 13. Producer shall execute the Concert in accordance with all applicable federal, state and local laws, including all applicable requirements of the City Code. 14. In the event any of the Artists is a DJ and /or in the event any recorded music is otherwise performed at the Concert, Producer shall be solely responsible for obtaining the appropriate ASCAP, BMI or SESAC licenses for the Concert, and shall include a line item in the budget for such costs, as applicable. Producer shall indemnify and hold harmless the City from and against all and any manner of fines, fees, losses, damages, claims or expenses arising from the use of proprietary intellectual property of third parties (whether such claims are actual or threatened) under the copyright or other laws of the United States. The foregoing indemnity shall apply regardless of the means of publication or performance by the Artist, and shall include specifically and without limitation the use of recordings, audio broadcasts, video broadcasts, works on other media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on -line service providers, satellite or cable, and all other publication or performance means or media formats whatsoever, whether now known or developed after the date of this Amendment No. 3. 15. If the Producer successfully makes any arrangements with respect broadcasting any portion of the Concert, 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, and further, Producer shall ensure that the agreements with the Artists specifically authorize, and provide the City and the Producer with the appropriate license rights, for any such commercial broadcast. Notwithstanding any broadcasting arrangements that may be made by the Producer, the City shall have the right to create a recording (via video, audio and any other recording means) of the Concert, and to copy, reproduce, exhibit, broadcast, or transmit, or otherwise exploit the recordings of the Concert, or any portion thereof, in any media or other format now in existence or hereinafter developed, including any audio broadcasts, video broadcasts, works on other media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on -line service providers, satellite or cable, and all other publication or performance means or media formats whatsoever, for the City's non- commercial purposes, including, without limitation, for the purpose of highlighting the City's cultural programming and showcasing the City of Miami Beach as a vibrant tourism destination. 16. As provided in Amendment No. 2, 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. 17. The City shall be responsible for the costs and expenses for Event - Related Public Services for the 2018 Annual Show (inclusive of the Concert), as provided in Amendment No. 2. 18. The City shall have the right, during normal business hours, at the expenses of the City, to inspect the Producer's books and records, and make any examination or audit of the Producer's records with respect to the Concert, in the same manner as provided in Amendment No. 2 with respect to any other aspect of the Annual Show 19. For the avoidance of doubt, the provisions of this Amendment No. 3 are intended to relate solely to the Concert programming for the 2018 Annual Show. Except as specified herein solely with respect to the Concert, the provisions of the Agreement, as amended by Amendment No. 2, 5 shall continue to govern and control all other aspects of the 2018 Annual Show, and any subsequent Annual Show, if any. Further, nothing herein shall obligate the City to approve any funding whatsoever for any concert as part of any subsequent Annual Show, if any. III. RATIFICATION. Except as amended herein, all other terms and conditions of the Agreement, as previously amended, shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment No. 3 and the Agreement (as amended), the provisions of this Amendment No. 3 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. 6 FOR CITY: By: afael E. Granado, City Clerk CITY OF MIAMI BEACH, FLORIDA Dan Gelber, Mayor NINA E -D /IC NATIONAL SALUTE TO AMERICA'S HEROES, LLC FOR PRODUCER: WITNESS: Nam Date 3 /-z. 1-1I fr Name: Date 7 ate APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ogy 3 -zk -► City Attorney Ot.01 Date MAMIBEA( OFFICE OF THE CITY ATTORNEY TO: CC: FROM; DA" i°E' SUBJECT: Eva Silverstein Tourism & Cultural Development Director Rafael Granada, City Clerk Lilla Cardillo, Agenda Coordinator Raul J. Agula,: City Attorney March 29, 2018 Update from the Mayor's Memorial Day Weekend Cultural Programming and Potential Funding Sou February 14, 2018 City Commission Meeting) MEMORANDUM ue Ribbon Panel Regarding es (Agenda Item R9Y from In accordance with the motion adopted by the City Commission on February 14, 2018, I am attaching three (3) original copies of Amendment No. 3 to the City's agreement with A National Salute to America's Heroes, LLC. Please have the Producer execute and attest all three (3) original copies and return to you: Following execution by Producer, please transmit all three (3) originals to the City Clerk for execution by the Mayor. Once the Agreement is fully executed please provide one original for the Producer, one (1) for your files and one (1) for the City Clerk. Thank you for your attention to this matter, RA; RAPiag