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HomeMy WebLinkAboutExhibitAMENDMENT NO. 1 TO MANAGEMENT AGREEMENT This Amendment No. 1 to the Management Agreement dated September 10, 2008 (the "Management Agreement") is entered into as of 2009 between the CITY OF MIAMI (the "City"), a municipal corporation of the State of Florida, and having its principal office at City Hall, 3500 Pan American Drive, Miami, Florida 33133, the Bayfront Park Management Trust ("Trust"), a limited agency and instrumentality of the City of Miami, whose address is 301 N. Biscayne Boulevard, Miami, Florida 33132, and Live Nation Worldwide, Inc. ("Live Nation"), a Delaware corporation authorized to transact business in Florida, whose address is 9348 Civic Center Drive, Beverly Hills, California 90210. RECITALS WHEREAS, the Bayfront Park Management Trust ("Trust") was created by the Miami City Commission to direct, operate, manage and maintain all aspects of Bayfront and Bicentennial Parks to ensure maximum community participation; and WHEREAS, on January 10, 2008, the City Commission adopted Resolution No. 08-0026, authorizing the Trust to negotiate a Management Agreement with Live Nation; and WHEREAS, on September 10, 2008, a Management Agreement with. Live Nation for the purpose of managing and operating the Bayfront Park Amphitheater was executed, which included, amongst other provisions, a requirement that Live Nation perform several Upgrades to the Bayfront Park Amphitheater; and WHEREAS, during the permitting process for the Upgrades, the City of Miami Building Department determined that additional restroom capacity and unproved life safety equipment were required at the Bayfront Park Amphitheater ("Amphitheater Improvements"); and WHEREAS, the Management Agreement contemplates that Live Nation will provide temporary day -of -show restrooms to augment the existing on-site facilities; and WHEREAS, the Management Agreement also includes the following language: Live Nation represents and agrees that prior to the Effective Date Live Nation inspected the Facility and Live Nation has accepted the Facility "as -is, where -is and with all faults'; except for violations of Governmental Requirements and defects existent as of the Occupation Date; and WHEREAS, the Amphitheater Improvements are governmental requirements, excluded from Live Nation's acceptance of the "as -is" condition of the Bayfront Park Amphitheater, as contained in the Management Agreement; and WHEREAS, on March 10, 2009, at a Special Meeting, the Trust adopted Resolution No. 09-006, allocating from the Bayfront Park Capital Improvement Budget Page 1 of 5 165701 V4 an amount not to exceed $500,000 for the Amphitheater Improvements, more specifically for additional restroom capacity, a generator, site lighting and a fire alarm system; and WHEREAS, the parties now wish to amend the Management Agreement to address the construction of the Amphitheater Irnprovements. NOW THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows: The Management Agreement is amended as follows: 1. Section I of the Management Agreement is amended to include the following definitions: "Amphitheater Improvements" -- the additional restroom capacity, a generator, site lighting and fire alarm system required by the City of Miami Building Department. Live Nation shall be responsible for the design and construction of the Amphitheater Improvements and for the direction of HITT Contracting, Inc., defined below), retained for the construction of the Amphitheater Improvements. "Facility" — as defined in the background Section of this Agreement and as depicted on Exhibit "A" hereto, including all Amphitheater Improvements and Upgrades. "General Contractor" -- HITT Contracting, Inc., the licensed general contractor/construction firm hired by Live Nation to construct the Upgrades and authorized by the City to construct the Amphitheater Improvements. "Trust Contribution" — the Trust's expenditure, allocated from the Bayfront Park Capital Improvement Budget, of an amount not to exceed $500,000 for the construction of the Amphitheater Improvements. 2. Section 8 of the Management Agreement is amended as follows: 8.1 Indemnification. (a) Live Nation shall indemnify, hold harmless and defend (with counsel approved by City Attorney) the City, the Trust, and their respective officers, agents, servants and employees from and against any and all claims, liabilities, demands, causes of action, costs and expenses (including reasonable attorneys' fees at trial and all levels of appeal) of whatsoever kind or nature ("Claims") arising out of (i) error, omission or negligent act or willful misconduct of Live Nation, its agents, servants, contractors, or employees, including but in no way limited to claims by the General Contractor; (ii) any default by Live Nation under this Agreement; or (iii) any other claim arising, directly or indirectly, from the operation, management or construction of the Upgrades or the Amphitheater Improvements at the Facility or any Event held therein or rental or use of the Facility; provided that there is expressly excluded from the foregoing obligations any Claims to the extent resulting from the acts or negligence of the City, the Trust, and their Page 2 of 5 165701 respective officers, agents (excluding Live Nation acting or working as an agent), contractors (excluding Live Nation acting or working as a contractor) and employees or the use of the Facility by the City, the Trust, or their respective officers, agents (excluding Live Nation acting or working as an agent), employees and invitees. Patrons of the Facility at Events other than a Trust Use are not invitees of the City or Trust. (b) Live Nation shall enter into a contract with the General Contractor to oversee the construction of the Upgrades and the Amphitheater Improvements (the "HITT Contract"). In the HITT Contract. Live Nation shall require the General Contractor and any of its sub -contractors to indemnify and hold harmless the City, the Trust, and their respective officers, agents, servants and employees, in accordance with the requirements set forth in Section 8.1 (a), above. (c) The provisions of this Section shall survive expiration or termination of this Agreement. 8.2 Insurance and bonding. Live Nation shall secure (and deliver to Executive Director certificates thereof) prior to the Occupation Date and shall keep in force at all times during the Term of this Agreement insurance policies in the limits set forth in Exhibit `B". Moreover. Live Nation shall cause the General Contractor to comply with the insurance requirements set forth in Exhibit `B", as applicable, and shall cause the General Contractor to provide any Payment and Performance Bond(s) as may be required by Section 255.05, Fla. Stat. (2008). 3. Section 9.1 of the Management Agreement is amended as follows: 9.1 Ownership. The ownership of the Facility and all buildings and real estate, all Amphitheater Improvements, all existing (and replacements thereof) technical and office equipment and facilities, furniture, displays, fixtures, vehicles and similar tangible property located at the Facility shall remain with the City and/or Trust. Upon completion, the Amphitheater Improvements and Upgrades shall be tendered to the City with all applicable warranties free and clear of any lien or encumbrance. Ownership of and title to all intellectual property rights of whatsoever value held in the City's name and/or the Trust's name shall remain in the name of the City and/or Trust. The ownership of consumable assets (such as office supplies and cleaning materials), personal property, equipment and fixtures for use at the Facility or for the operation of the Facility purchased with Operating Revenues or City and/or Trust funds shall remain with the City and/or Trust, but such assets purchased with Operating Revenues may be utilized and consumed by Live Nation in the performance of services under this Agreement. The ownership of data processing programs and software owned by the City and/or Trust shall remain with the City and/or Trust, and the ownership of data processing programs and software owned by Live Nation shall remain with Live Nation. Live Nation shall not take or use, for its own purposes, customer lists or similar materials developed by the City and/or Trust for the use of the Facility, unless written consent is granted by the Executive Director. Ownership of equipment, furnishings, materials, or fixtures not Page 3 of 5 165701 considered to be real property purchased by Live Nation with Operating Revenues for use at and for the Facility shall vest in the City and/or Trust automatically and immediately upon purchase or acquisition, except for those items which by the terms of this Agreement shall remain the property of Live Nation. The assets of the City and/or the Trust as described herein shall not be pledged, liened, encumbered or otherwise alienated or assigned. Notwithstanding anything to the contrary contained in this Agreement, any personalty; furnishings, and movable equipment and trade fixtures that is not a fixture (excluding trade fixtures) purchased by Live Nation and used at the Facility shall be the sole property of Live Nation. 4. Section 11.2 of the Management Agreement is amended as follows: 11.2 Government Compliance. Subject to the terms of this Agreement, Live Nation, its officers, agents and employees, including but in no way limited to HITT Contracting, Inc. and any and all of its sub -contractors, shall comply with all Governmental Requirements with respect to the renovations, operation, management and maintenance of the Facility. The foregoing includes the obligation to make improvements or Alterations (structural and non-structural, and capital and non -capital) as required by governmental authorities, the cost of which shall be included in Operating Expenses. Live Nation shall require any licensee, promoter or user of any portion of the Facility to comply, and to be financially responsible for compliance, with all Governmental Requirements. Notwithstanding anything to the contrary contained in this Agreement, Live Nation shall not be obligated or liable for any matter which is an Operating Expense Exclusion 5. A new Section 15.19 is added to the Management Agreement as follows: 15.19 Construction and Draw Requests. Live Nation shall be responsible for the construction of the Amphitheater hMprovements substantially in accordance with the construction documents approved by the City of Miami Building Department. Live Nation shall substantiate its expenditures of the Trust Contribution for the Amphitheater Improvements. Live Nation shall submit a detailed monthly invoice, which complies with Florida's Prompt Payment Act, Section 218.70, Fla. Stat. (2008) to the Executive Director for all costs relating to the construction of the Amphitheater Improvements performed during the preceding month, along with reasonable substantiating documentation, as requested by the Executive Director. Provided the work has been performed, the Trust shall make payment. If the trust disputes any invoice it shall advise Live Nation no later than thirty (30) days after receipt of any invoice. The parties agree to thereafter promptly meet in good faith to resolve any such dispute provided that pending resolution, the Trust shall continue to pay any undisputed amounts. The City and the Trust have taken all lawful measures to waive public procurement in accordance with applicable laws so that Live Nation shall not be subject to the public wocurement bidding and procedure laws otherwise applicable to the City and the Trust for the Amphitheater Improvements. Page 4 of 5 165701 6. The Management Agreement is in all other respects ratified and confirmed and remains unchanged. INT WITNESS WHEREOF, the parties hereto have executed this Amendment the day and year above written. ATTEST: CITY OF MIAMI, FLORIDA, a municipal corporation and political subdivision of the State of Florida By: By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager ATTEST: BAYFRONT PARK NIANAGEN11ENT TRUST a limited agency and instrumentality of the City of Miami By: Jose Gell, Administrative Officer Approved as to Insurance Requirements By: LeeAnn Brehm, Risk Management Director By: Timothy F. Schmand, Executive Director Approved as to Form and Correctness: By Julie O. Bra, City Attorney LIVE NATION WORLDWIDE, INC. By: Name: Title: Page 5 of 5 165701