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Video and Audio System Agreement~G~y- ~67aS ~i~~~~o7- 1~7~ VIDEO AND AUDIO SYSTEM AGREEMENT THIS VIDEO AND AUDIO SYSTEM AGREEMENT (the "Agreement") is made by and between the New World Symphony, a Florida not-for-profit corporation ("NWS"), having its principal office at 541 Lincoln Road, Miami Beach, Florida 33139, and the City of Miami Beach (the "City"), a municipal corporation duly organized and existing under the laws of the State of Florida, having its principal office at 1700 Convention Center Drive, Miami Beach, Florida 33139. RECITALS A. The City and NWS entered into an Agreement of Lease ("Lease") dated as of January 5, 2004, pursuant to which Owner leased to NWS certain real property described in Exhibit "A" attached hereto and made a part hereof (the "Land"). B. Concurrently therewith, the City and NWS also entered into a Development Agreement dated as of January 5, 2004, as amended by that certain First Addendum to Development Agreement dated February 20, 2007 (collectively, the "Development Agreement") setting forth, among other things, the Owner's and NWS's respective responsibilities and agreement to coordinate and cooperate in the planning, scheduling and approval of the development, design and construction of (i) Developer's Improvements, including a performance, educational and Internet broadcast facility (the "Building"), together with certain related amenities, facilities and other infrastructure improvements located on and adjacent to the Land ; (ii) a public municipal parking garage to be designed, developed and constructed by NWS on the City's behalf and operated by the City at its sole cost and expense on City-owned property adjacent to the Land (the "Garage"); and (iii) a Park Project owned by the City, to be located adjacent to the Land. C. All capitalized terms used herein but not defined specifically herein shall have the definitions ascribed to them in the Lease or Development Agreement as amended, as applicable. D. The Building is intended to feature an external video system displaying musical and other cultural performances and works of art, which program is conceived as a videographic element of the Building itself. The Park Project is intended to feature an external audio system capable of complementing and working in tandem with the video system. Section 6.2 of the Lease and Section 23.6 of the Development Agreement require the City and NWS to negotiate an agreement for the management, operation, scheduling and content of programming of the external video and audio systems intended to be built and integrated into the Developer's Improvements and the adjacent Park Project. NOW THEREFORE, it is hereby mutually covenanted and agreed by and between the Parties hereto that this Agreement is made in consideration of the terms, covenants and conditions hereinafter set forth. 1. Concept of the Park Proiect and Park Proiect Design. The First Addendum to Development Agreement ("First Addendum"), dated February 20, 2007, states, among other things, that the design of the Park Project will not be submitted to or approved by the City until some indeterminate time in the future; that the completion of the design, construction and development of the Park Project is integral to the design, construction and development of the Project; and that even after the Park Project's design is approved by the City, the City may elect not to proceed with the Park Project. In addition, the design of the Project has not been finalized; selection of the NWS Video and Audio Systems (as hereinafter defined) has not yet occurred; and it is not known, nor can it be projected with any reasonable certainty, what the actual costs will be of purchasing, operating, maintaining, repairing or replacing any of the or all of the components of such Video or Audio Systems. As a consequence, the Parties acknowledge that many issues concerning the Project, the Park Project, and the use, management, operation, scheduling and content of programming of the video and audio systems contemplated by the Lease and the Development Agreement cannot be addressed with finality and certainty at the time this Agreement is executed. The Parties intend for this Agreement to be a flexible document that can be amended from time to time to in order to accommodate and reflect then-current circumstances and future changes in circumstances, to identify the systems actually selected; to address more specifically certain issues regarding the selected systems and their use and operation as those issues arise; to take into account changes in technology and to reflect the status and progress of the development, design and operation of the Project, the Park Project; and the video and audio systems. Consequently, this Agreement outlines, to the extent possible at this time, certain general terms and provisions for the use, management, operation, scheduling and content of programming of the NWS Video System, the NWS Audio System and the City Audio System (all as hereinafter defined below). References to all of the NWS Video System, City Audio System and the NWS Audio System, if applicable, may be referred to at times as the "Systems." 2. Concept of the Video and Audio Systems. At the time of execution of this Agreement, the video program is anticipated to be accomplished using image projection, and the audio program using a system of speakers and amplifiers. However, the actual Systems or equipment or means of production and transmission of visual and auditory effects are not yet designed, and may depend upon or utilize technologies and processes developed in the future. Therefore, the Parties agree that references in this Agreement to the "NWS Video System" or the "City Audio System" or the "NWS Audio System" shall include existing and future technologies or systems or equipment. 2_1 Additional Definitions. For purposes of this Agreement, the following definitions shall apply: "NWS Video System" -shall refer to the system, facilities, components and equipment owned by NWS and used to project and display professional-quality works of art and musical and other cultural performances, which systems, facilities, components and equipment are intended to include but not be limited to one or more video projectors or other components to be located within the Park Project Zone and/or the Symphony Campus Zone, to project images on the surface of the east wall at the northern end of the Building (that portion of the Building's wall, the "Video Wall"). However, it is also contemplated that there shall be two sets of operating controls for the NWS Video System, one within the Park Project and the other within the Symphony Campus Zone. The term "Screen" as used in the Lease and the Development Agreement does not specify any certain type of facility or system or equipment, and is deemed to be subsumed or replaced by the terms "Video Wall" and the "NWS Video System" 2 contemplated in this Agreement. The Video Wall shall be included in the definition of the NWS Video System as appropriate. So long as the Lease remains in force, the NWS Video System and the NWS Audio System (as hereinafter defined) shall be and shall remain the private property of NWS, and shall be operated, maintained, repaired and replaced at NWS's sole cost and expense, but upon termination of the Lease, whether by passage of time or otherwise, the NWS Video System and NWS Audio System shall become the sole property of the City. "NWS Audio System" -shall refer to the systems, facilities, components and equipment which are intended to be used by NWS for its own purposes, either independent of or in conjunction with the NWS Video System, and/or independent of or in conjunction with the NWS Video System and the City Audio System (as hereinafter defined). It is anticipated that the NWS Audio System (including its operating controls) shall be situated in the Building or other areas within the Symphony Campus Zone. The NWS Audio System is not and shall not be part of the City Audio System (as hereinafter defined) or the NWS Video System. "City Audio System" -shall refer to systems, facilities, components and equipment owned by the City and used for producing and amplifying sound within the Park Project Zone, either independent of or in conjunction with the NWS Video System and/or the NWS Audio System. Although it is anticipated that the City may wish to use the City Audio System in the Garage, the Parties do not intend for NWS to have any rights or responsibilities in connection with such use, or any operation, maintenance, repair or replacement of any equipment pertaining to such use in the Garage. Therefore, for the purposes of this Agreement, any use of the City's Audio System in the Garage and any portions of the City Audio System used solely for or in the Garage shall be specifically excluded from the purview of the rights and obligations of NWS set forth herein, and the City shall have all obligations and responsibilities in connection therewith. It is contemplated that the City Audio System will be situated within the Park Project Zone or upon other City-owned property. However, it is also contemplated that there may be two sets of its operating controls, one within the Park Project Zone and the other within the Symphony Campus Zone. Nothwithstanding anything to the contrary herein, nothing in this Agreement shall be construed as a contractually binding obligation on behalf of the City to construct, maintain, repair, or replace the City Audio System. "Cultural Programming" -shall refer to high-quality works of art and musical and other cultural performances, and specifically excludes: (a) commercial content, except that commercial or private sponsors of or donors to certain programs may be recognized appropriately, in a manner similar to that used by public radio and public television (e.g. no corporate logos or other onscreen "bubbles" during presentation; logos in credits before or after the display only); (b) governmental, administrative or similar public- interest use, notices and information except for certain use(s) by the City in the event of emergency, as set forth in Section 8 herein; (c) content that is promotional in nature, such as (but not limited to) advertising of upcoming cultural performances or publicity regarding the arts available in the City of Miami Beach, except that, by example, programming such as "A Walk Through the Bass Museum" or a video exhibition with narration of an art or cultural exhibit or festival shall be allowed; and/or (d) political content of any nature. Cultural Programming shall meet the NWS Standards (as defined in Section 6.1 herein), or, as to a City Use and/or Uses (as hereinafter defined), the City Standards (as defined in Section 6.2 herein). "Qualified Technician" -shall mean a technician approved by NWS as meeting the standards and qualifications established by NWS for all technicians who operate the Systems, as further described in Section 10 herein. 2.2 Location and Selection of System Components. The locations and selection of components of the NWS Video System and the NWS Audio System and their appearance and process of installation shall be determined solely by NWS in its sole discretion during the process of developing and refining the Project Design, as set forth in the Development Agreement, subject to the requirements of the Design Review Board. The locations and selection of components of the City Audio System and their appearance and process of installation shall be determined during the process of developing and refining the Park Project Design, as set forth in the Development Agreement. 3. Ownership of the Systems. The NWS Video System and the NWS Audio System shall be the private property of NWS, and the City Audio System shall be the property of the City. Notwithstanding any use or frequency of use of the NWS Video System by the City or other NWS-approved parties, the Parties agree that the NWS Video System and the NWS Audio System are not and shall not be or become dedicated to the public, are not and shall not be or become public property and shall remain the private property of NWS. In the event this Agreement terminates for any reason other than termination of the Lease, the NWS Video System and the NWS Audio System shall continue to be the private property of NWS until the Lease terminates. However, upon termination of the Lease, whether by passage of time or otherwise, the NWS Video System and NWS Audio System shall become the sole property of the City. 4. Use of the NWS Video System. NWS intends to commission a major work of video art (the "Building Icon," as hereinafter defined), which will be the centerpiece of the NWS Video System; display of this work of video art shall be the primary ongoing use of the NWS Video System. This video art will be not only an important videographic element of the Building itself, it will operate as an invitation to the public to experience the singular architecture of NWS' home, and it is anticipated that this work will become an iconic symbol of the Symphony and the Building to the local, national and international communities ("Building Icon"). In addition to display of the Building Icon, the NWS Video System shall be limited to Cultural Programming, except for the emergency use described in Section 8 below, or, without any obligation on the part of NWS, as the Parties may agree from time to time. No third party shall have any entitlement whatsoever to use the NWS Video System or the NWS Audio System, except the City, as set forth herein. Notwithstanding anything contained in this Section 4 or the Agreement, planned display of the Building Icon shall not be the sole grounds for declining to schedule any particular City Use. 5. General Outline of Anticipated Video Cultural Programming. Subject to the other terms and conditions set forth herein, the following outline describes in general terms the contemplated Cultural Programming for the NWS Video System: 5_1 Display of the Building Icon will provide visitors with an expanded experience of the Building and its architecture and will constitute the primary ongoing use of the NWS Video System. 5_2 NWS will use the NWS Video System to display both live and pre- recorded performances of certain of its concerts held inside the Building. 5.3 NWS intends to work with local, national and international well- established visual arts organizations to identify and select artists to create video art works for potential display on the NWS Video System on a short- or long-term basis. 5_4 The NWS Video System may be used seven (7) evenings a week, weather permitting. To maintain the quality and integrity of the NWS Video System, and in consideration of local residents and businesses, the NWS Video System shall only be operated between sunset and midnight, although the NWS Audio System and the City Audio System may be, but shall not be obligated to be, in operation at any time. Notwithstanding anything contained in this Agreement, the Systems shall be operated in accordance with all applicable local, State and federal laws, codes, regulations and ordinances including, without limitation, the City's zoning and land use ordinances and the City's Noise Ordinance, as any of the foregoing may be amended from time to time. In the event that any changes to any of the foregoing laws, codes, regulations and ordinances may prohibit the intended use of the NWS Video System, NWS and the City shall utilize their best efforts to revise this Agreement to the extent necessary to comply with the applicable changes in laws, regulations and ordinances. 6. Selection of Programming. 6.1 By NWS and NWS-Approved Users. At all times NWS shall have the sole and exclusive right and discretion to identify, select and schedule the content of all NWS' and NWS-approved users' Cultural Programming and to use and display that programming on the NWS Video System, all as it sees fit, including the exclusive rights: (i) to establish and apply such cultural and artistic criteria and standards of quality for content as it deems appropriate to be presented on the NWS Video System ("NWS Standards"); (ii) to set the business terms of use of the NWS Video System by others, as further described below; (iii) to establish a procedure for selecting and inviting artists and performers to create video and performance presentations; and (iv) in the event NWS makes a public call for submission of proposals for Cultural Programming, NWS shall (a) be entitled to accept or reject for any reason whatsoever any and every submission or proposal or request to display a presentation or schedule programming for the NWS Video System; (b) determine an appropriate procedure to address potential questions as to whether a submission of proposed programming is or is not qualified and/or selected; and (c) provide to all respondents to such call the NWS Standards for NWS' selection of submissions for programming and the procedures in connection therewith. The decisions made by NWS pursuant to this Section, including but not limited to decisions made following implementation of procedures in connection with a public call described above, shall be exclusive and final on all issues, and the City shall bear no liability for such decisions made by NWS. The provisions of this Section 6.1 shall not apply to a City Use (or Uses) of the NWS Video System, which shall not be subject to the NWS Standards, but rather to programming standards to be developed by the City, at its sole discretion (the City Standards, as hereinafter defined). 6_2 By the City. Subject to the provisions of Section 7, the City shall have the sole and exclusive right and discretion to identify, select and schedule the content of Cultural Programming that meets the "City Standards" (as defined below), and to use and display that programming on the NWS Video System. The City and NWS shall consult and work together, and may look to the NWS Standards as a guide, in establishing appropriate cultural and artistic criteria and standards of quality for production values for use of the NWS Video System (which criteria, when established, shall be referred to as the "City Standards"). Although the City Standards may not be entirely consistent with the NWS Standards, they shall be designed to reasonably ensure that the City's Cultural Programming for the NWS Video System is of the highest quality available to the City. By way of example, commercially released film will be considered acceptable in all circumstances. Notwithstanding anything contained herein, the City shall have sole discretion to determine the content of Cultural Programming as well as determine the City Standards. In the event that NWS desires to improve the production values for any of the City's Cultural Programming then it may opt to do so at its sole cost and expense. For purposes of this section, "improve the production value" is defined as performing limited editing that betters the quality of the production's presentation by altering lighting, sound, music, picture, transitions, or other similar quality criteria that does not in any way affect the content of the production, nor affects or interferes in any way with copyright, trademarks, and/or other ownership rights vested in the production. The City agrees to provide NWS its proposed Cultural Programming at least ten (10) business days in advance of any scheduled showing to provide time for review and improvements by NWS and NWS agrees to keep the City apprised of its efforts and to provide the City the ability to review the final product 24 hours in advance of showing to confirm that the content has not been altered by NWS. Notwithstanding the preceding, in the event that NWS does not, or cannot, make its desired improvements to the production values prior to the "air date" of the particular City Use/ Cultural Programming, the City shall have the unlimited right to air the unaltered and/or unimproved version of its production on the scheduled use date. The City shall bear all responsibility and liability for the establishment and application of City Standards in all events, and NWS shall have no liability whatsoever to the City or any third party in connection therewith, with the exception of any changes that NWS makes to improve production values. 7. City Use of NWS Video System for Cultural Programming. Throughout the term of this Agreement, the City shall be entitled to use the NWS Video System to display Cultural Programming that meets City Standards for no fewer than 120 hours, per calendar year; provided, however, that the aforestated hours for City use (whether said hours are less or more than the 120 hour minimum) shall be programmed in such a manner so that they will not exceed a maximum of sixty (60) calendar days per year (throughout the term of this Agreement). Nowithstanding the preceding, this provision shall not be construed and/or interpreted by the Parties to mean that the City's annual minimum hourly use, once commenced, must be accomplished within sixty (60) consecutive calendar days from such commencement. The foregoing instance(s) of use by the City shall be referred to as, individually, a "City Use," and collectively, the "City Uses", and shall be scheduled in accordance with NWS's anticipated scheduling needs and priorities, and as further described in Section 9 herein. 7_1 Notwithstanding anything to the contrary herein, at all times NWS's presentation of Cultural Programming on the NWS Video System and, (if approved by the City as part of the scheduling process in Section 9), NWS's presentation of cultural programming on the NWS Video System in conjunction with the City Audio System, shall have first priority over use by the City or NWS approved third parties. Similarly, the City's Use and/or Uses of the NWS Video System to present Cultural Programming shall have priority of use over that of NWS-approved third parties. 7_2 The City shall not be entitled to "roll over" or "carry forward" any unused occasions for a City Use(s) from a prior calendar year, so that in the event, for any reason whatsoever, there occur fewer than the 120 hours of minimum City Use, of the 6 NWS Video System during a calendar year (in the manner further prescribed in the first paragraph ~ of this Section 7), the City shall be deemed to have waived its right or entitlement to the unused opportunities for City Use, and the next calendar year the City shall again be entitled no less than the 120 hour minimum for City Use. 7_3 Notwithstanding the foregoing, it is understood that technology is constantly improving. In the event that the use of the Video System can occur during daylight hours, and/or if the parties agree to increase the number of minimum hours that are available beyond those currently anticipated in Section 5.4, then the City's minimum Use time, as determined above, shall increase in proportion to the number of use hours that are added. In addition, the City's minimum Use hours shall increase an additional twenty (20%) percent over the increased time resulting from said proportionate increase. 8. City Use of NWS Video System for Emergency Use In cases of "extreme public emergency" (as hereinafter defined), and subject to the limitations described herein, NWS will cooperate with the City in making the NWS Video System available to the City for the sole and limited purpose of displaying vital public safety information to the residents and visitors of Miami Beach, which use shall be limited to those periods immediately before, during, and immediately after an extreme public emergency (as hereinafter defined), and depending on the specific circumstances and conditions at the time of the particular emergency. 8_1 The term "extreme public emergency" shall be defined as (i) a severe major weather event and/or natural disaster which poses an immediate and extreme threat to the City of Miami Beach and which may include (most notably) a pending hurricane, dangerous floods, tornado, extensive and uncontrolled fire, and/or earthquake; (ii) an act or acts of terrorism which either occurs in the City of Miami Beach, or immediately proximate to the City (for example, the Port of Miami, Miami International Airport, or other areas, whether in the City of Miami or Miami-Dade County, that are within the immediate vicinity of the City of Miami Beach); or (iii) any other act or event which results in the declaration of a national state of emergency, national disaster, and/or state of war. 8,_2 The City's decision to use, and its use or attempted use of, the NWS Video System pursuant to this Section 8 shall be at the City's sole cost and expense, and the City shall bear all risks and liability in connection therewith, both as to NWS and to third parties. 8_3 In the event the City uses the NWS Video System for an extreme public emergency, (a) NWS shall have no liability whatsoever to the City or any third party in connection with the City's decisions or actions; (b) NWS shall have no obligation whatsoever (i) to provide the City or any third party with any particular technical, mechanical or other equipment, or support personnel, including Qualified Technician(s); (ii) to bear any risk in connection with the City's use or attempted use of the NWS Video System; (iii) to ensure or attempt to ensure that the NWS Video System and/or the NWS Audio System or any other equipment is or will be operable, or that there will be any source of power to operate the foregoing (including there being no obligation to provide emergency power or generator(s)); and (c) the City's use or attempted use of the NWS Video System and/or NWS Audio System shall not endanger or injure the personal safety of any NWS personnel, students or independent contractors, including Qualified Technician(s), or endanger or injure the Developer's Improvements, including the NWS Video System and NWS Audio System. 8_4 NWS is entitled to exercise its sole discretion in establishing and implementing its own policies and procedures pertaining to the health and safety of people and its property in situations deemed by NWS to be emergencies, whether or not a particular situation is deemed by the City or other third party to be an extreme public emergency, and NWS shall give the City reasonable oral notice of its intent to implement any such policies and procedures. Such NWS policies and procedures may include, but shall not be limited to, closing the Building, removing all or part of certain components of the NWS Video System and the NWS Audio System from their customary locations to places of greater safety, cutting or reducing power to any components or systems or to all or part of the Developer's Improvements (including the NWS Video System and the NWS Audio System), or evacuating some or all personnel, including Qualified Technician(s), from Developer's Improvements and/or the area and/or Miami Beach. g. Scheduling of Proaramming. NWS and the City shall jointly develop procedures and time frames for coordinating use of the Systems and keeping the Parties apprised of: (a) NWS' anticipated schedule of use of the NWS Video System, either alone or in conjunction with the City Audio System, by NWS and NWS-approved third party users; and (b) the City's anticipated schedule of use of the City Audio System and the City's desired use of the NWS Video System (either alone, or in conjunction with the City Audio System). Such procedures and timeframes shall provide for a reasonable dispersion of dates/days for City Use throughout a calendar year and, at a minimum must provide for no less than ten (10) weekend days for City Use during the NWS published "season" (which, as of the date hereof, run(s) from September to May). Notwithstanding anything to contrary herein, City use for the City Audio System shall have first priority over use by NWS or any third party, and NWS Cultural Programming for the City Audio System shall have priority of use over that of any third party. 10. Qualified Technicians. NWS shall have the right and discretion to establish the standards and qualifications for all technicians who may operate the Systems (each, a "Qualified Technician"), and to verify that each technician meets such standards and qualifications. In connection with programming by NWS and NWS-approved third parties, NWS will be responsible for providing Qualified Technicians to operate the NWS Video System, and in the event, but only in the event that the City Audio System is used by NWS and NWS- approved third parties in conjunction with the NWS Video System, to operate the City Audio System. All uses of the NWS Video System by all NWS-approved third parties shall be conditioned upon their engaging and compensating Qualified Technicians to operate the NWS Video System. The City shall be required by NWS to engage a Qualified Technician to opeate the NWS Video System, but, in accordance with Section 11 herein, the City may or may not be required to compensate NWS for the Qualified Techinician. NWS will provide all necessary system specifications for display on the NWS Video System to all approved users as needed, but will not provide nor have any obligation to provide additional or special equipment o the Citn or videography services to any users, including the City. Notwithstanding the foregoing, Y shall have the right to operate oval or overs ght by NWSof the City Audio System independent from and without any prior app 11. Costs and Charges for Use of the NWS Video S sY__tem. NWS shall have the sole right and discretion to establish all charges, costs and fees it will assess third parties for the use, if any, of the NWS Video System and for the services of technical personnel, including Qualified Technicians. Determination of charges, costs and fees (including a usage fee) will take into consideration and include but not be limited to the costs for labor, utilities, technical support, wear and tear on the equipment, any special equipment or technical needs, administrative costs and the actual costs of maintaining and operating the NWS Video System. However, subject to the provisions of Section 12 herein, the City and NWS agree that neither shall charge the other a usage fee or any costs for normal utilities or wear and tear on their respective Systems' equipment. In addition, in the event and to the extent that NWS or NWS-approved third parties are already using and are financially responsible for labor, utilities, technical support (including Qualified Technicians) in connection with their use of the NWS Video System, (excluding the projection of the Building Icon), and there is a City Use, either before, or after such NWS or NWS-approved third party use on the same evening (and said City use does not require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users), then there shall be no additional cost to the City for the City Use. On any evening where the only scheduled use of the NWS Video System is projection of the Building Icon or similar use (i.e. another "video art" projection) and the City wishes to use the Video System that evening, and such City Use does not require any specialized technical support beyond the technical support already provided to NWS or NWS approved third party users, then there shall be no additional cost to the City for the City Use. The City will pay for any necessary labor and technical support (including Qualified Technicians), if they are required for the aforestated particular City Use, only to the extent that such costs are in excess of any labor (including Qualified Technicians) that may be necessary for projection of the Building Icon. NWS will work with the City to mimimize or eliminate any of the foregoing costs to the City. 12. Maintenance and Service of the Systems. Except as set forth in Sections 8, 10, 11 and this Section 12, (a) NWS shall be solely responsible for acquiring, operating, maintaining, repairing and replacing the NWS Video System and the NWS Audio System and for all of the costs incurred in connection therewith; and (b) the City (should the City decide, in its sole discretion, to construct the City Audio System) shall be solely responsible for acquiring, installing, operating, maintaining, repairing and replacing all portions of the City Audio System, and for all of the costs incurred in connection therewith. 13. Term. The term of this Agreement shall begin upon issuance of the final Certificate of Occupancy (CO) for the Building, and shall expire and automatically terminate upon the expiration and/or other termination of the Lease, or at such earlier time as the Parties may mutually agree to in writing, with such termination (in that event) to be effective as of the date of termination set forth in the written notice terminating this Agreement. 14. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire Agreement between NWS and City with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings. This Agreement may not be modified or amended in any manner except by an instrument in writing signed by a duly authorized officer or representative of both NWS and City. It is anticipated that this Agreement may be modified from time to time as circumstances may warrant. 15. Notices. All notices from the City to NWS shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt, or hand delivered, to the User at the following address: New World Symphony ATTN: Chief Financial Officer 541 Lincoln Road Miami Beach, FL 33139 All notices from NWS to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested, or hand delivered, to the City at the following addresses: City of Miami Beach ATTN: 1700 Convention Center Drive Miami Beach, FL 33139 NWS and City may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing unless specifically stated to the contrary herein. 16. Relationship of the Parties. It is expressly understood and acknowledged that it is not the intention or purpose of this Agreement to create, nor shall the same be construed as creating, any type of partnership, relationship or joint venture. 17. Arbitration of Disputes. The Parties hereby acknowledge and agree that if the City or NWS asserts that a dispute has arisen between the Parties under this Agreement, then any and all such disputes shall be addressed in the manner provided in Article 22 ("Arbitration") of the Development Agreement, which Article (for purposes of addressing disputes between the Parties pursuant to this Agreement) shall survivie termination and/or earlier expiration of the Development Agreement. 18. Governing Law and Exclusive Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in State Court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND NWS EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 19. Miscellaneous 19.1 Modifications. This Agreement cannot be changed, amended or modified except by agreement in writing executed by all parties hereto. 19.2 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 19.3 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 19.4 Severability. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal taws, 10 then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall remain in full force and effect. 19.5 No Waiver. No waiver of any covenant or condition of this Agreement by either party shall be deemed to imply or constitute a waiver in the future of the same covenant or condition or of any other covenant or condition of this Agreement. 19.6 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. (signatures on following two pages] F:~attoWGURWGREEMNTINWS -Video and Audio System Use Agr (Final 11-08-07).doc 11 IN WITNESS WHEREOF, the City, by its duly authorized representatives, hereby executes this Video and Audio System Agreement on the date written below. ATTE T: w L Ci 'Clerk Robert Parcher Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By: • Ma or Matti H. Bower The fore~~99ing instr ment was acknowledged before m this ~ day off !/P PX 0~4 ~ by ,M9 f~~~ • ,~o cUe Y as Mayor, and ~D~~~ar~i~ ~ as City Clerk of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of such municipal corporation. They are personally known to me o produced valid Florida driver's licenses as identification. My commission expires: Nota ublic a 'da / Print ame: rr 2Y Hy h d ~ `z `'•'", ,- IQ:FIRYHERNANDEZ MY COMMISSION i DD 626373 ,~ EXPIRES: May 3, 2011 1~~~h~ BoneedThrutrororyP~fictbMemrAen APPROVED AS TO FORM NGUAGI & FO,~~ECUTIOt~ 11 2~ p1 ~~ Attorney ; ~ ~ ~~ 12 IN WITNESS WHEREOF, NWS, by its duly authorized representative, hereby executes this External Video and Audio System Use Agreement on the date written below. ATTEST: ~~~C~.~ J~ c~~~ ~ ~~oCe ~ ~ Print Name STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) THE NEW WORLD SYMPHONY, INC., anot- for-profit corporation By: Howard Herring, President CEO The foregoing instrument was acknowledged before me this o2b day of 7?1~'tA~~ , ~_ by Howard Herring, as President and CEO, and as Secretary, of THE NEW WORLD SYMPHONY, anot-for-profit Florida corporation, on behalf of such corporation. They are personally known to me or produced valid Florida driver's licenses as identification. My commission expires: 03~~ ~°I ~ '~~~~,,,~I, LE3LEY-ANN E. WRIGHT :~~"~: °'s ;': MY COMMISSION # DD654475 ;. , Print Name: - qn h(, 13