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Home My WebLink AboutManagement Agreement�OAJVT t P-V.,j N L - MANAGEMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA, THE BAYFRONT PARK MANAGEMENT TRUST AND LIVE NATION WORLDWIDE, INC. FOR THE BAYFRONT PARK AMPHITHEATER TABLE OF CONTENTS Pale 1. Definitions...........................................................................................................................1 2. Engagement of Live Nation; Scope of Services..................................................................5 2.1 Engagement............................................................................................................5 2.2 Scope of Services....................................................................................................6 2.3 Specific Services.....................................................................................................7 2.4 Trust Use of Facility and Ticket Programs...........................................................11 2.5 Rights Reserved to City and/or Trust ...................... ..14 2.6 Signage........................................................................................14 3. Term and Renewal Term...................................................................................................15 3.1 Term......................................................................................................................15 3.2 Renewal Option....................................................................................................16 4. Live Nation's Compensation; Trust Distributions............................................................16 4.1 Management Fee...................................................................................................16 4.2 Required Trust Distribution..................................................................................16 4.3 Ticket Surcharge.................................................................... .................. .............17 5. Funding; Budgets; Bank Accounts; Alterations................................................................17 5.1 Live Nation Funding Guaranty.............................................................................17 5.2 Non -Funding by City and/or Trust.......................................................................18 5.3 Receipts and Disbursements.................................................................................19 5.4 Alterations.............................................................................................................19 6. Records, Audits and Reports............................................:................................................21 6.1 Records and Audits...............................................................................................21 6.2 Annual Plan...........................................................................................................22 7. Employees..........................................................................................................................22 7.1 Live Nation Employees........................................................................................22 7.2 No Solicitation or Employment by Trust/City......................................................22 8. Indemnification and Insurance..........................................................................................22 8.1 Indemnification.....................................................................................................22 8.2 Insurance...............................................................................................................23 8.3 General Requirements...........................................................................................23 8.4 Certain Other Insurance........................................................................................23 9. Ownership of Assets..........................................................................................................24 9.1 Ownership..................:..........................................................................................24 9.2 City and/or Trust Obligations ......... I ....... .............................................................. 24 10. Assignment; Affiliates.......................................................................................................25 10.1 Assignment........................................................................:..................................25 10.2 Live Nation Affiliates...........................................................................................27 11. Laws and Permits..............................................................................................................27 (i) TABLE OF CONTENTS (continued) Page 11.1 Permits, Licenses, Taxes and Liens......................................................................27 11.2 Governmental Compliance...................................................................................27 11.3 No Discrimination in Employment; Affirmative Action......................................28 12. Event of Default and Remedies.........................................................................................28 12.1 Live Nation's Defaults..........................................................................................28 12.2 City's and/or Trust's Remedies............................................................................29 12.3 City's and/or Trust's Defaults...............................................................................29 12.4 Live Nation's Remedies........................................................................................30 12.5 Late Payments.......................................................................................................30 13. Termination .......................................................................................................................30 13.1 City's and/or Trust's Right to Termination............................................30 13.2 Effect of Termination............................................................................................31 13.2 Surrender of Facility.............................................................................................31 14. Net Worth Requirement; Security.....................................................................................31 14.1. Net Worth Requirement........................................................................................31 14.2. Security.................................................................................................................32 15. Miscellaneous ....................................................................................................................33 15.1 Venue/Waiver of Jury Trial/Attorney's Fees........................................................33 15.2 No Partnership or Joint Venture...........................................................................33 15.3 Entire Agreement...................................................... ............... ............................. 33 15.4 Written Amendments....................................................... ........................33 15.5 Force Majeure....................................................................... .............................. ..33 15.6 Binding Upon Successors and Assigns; No Third Party Beneficiaries ................34 15.7 Notices..................................................................................................................34 15.8 Section Headings and Defined Terms..................................................................35 15.9 Counterparts..........................................................................................................36 15.10 Severability...........................................................................................................36 15.11 Non-Waiver..........................................................................................................36 15.12 Certain Representations and Warranties...............................................................36 15.13. Governing Law .......................................... ............................36 15.14 Conflict of Interest......................................................................36 15.15 Award of Agreement.....................................................................:37 15.16 Public Records..............................................................................37 15.17 Agreement Not a Lease....................................................................37 15.18 First Source Hiring; Local and Minority Preference Commitment..................37 TABLE OF CONTENTS (continued) EXHIBITS Page EXHIBIT A - LEGAL DESCRIPTION OF THE FACILITY EXHIBIT B - INSURANCE REQUIREMENTS EXHIBIT C - UPGRADES TO BE MADE BY LIVE NATION EXHIBIT D - MINIMUM OPERATING AND MAINTENANCE STANDARDS EXHIBIT E - LIST OF REPEAT ANNUAL BOOKINGS EXHIBIT F - PENDING BOOKINGS EXHIBIT G - APPROVED SPONSORS EXHIBIT H - STANDARD RENTAL AGREEMENT — THIRD PARTY USE EXHIBIT H-1 - STANDARD RENTAL AGREEMENT — CITY/TRUST USE [REMAINDER OF PAGE BLANK] MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (this "Agreement") is dated as of the AOL day of .',� 2008, by and between the CITY OF MIAMI, a municipal corporation orga ized and existing under the laws of the State of Florida, and having its principal office at City Hall, 3500 Pan American Drive, Miami, Florida 33133 (the "City"), the BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the City of Miami, whose address is 301 N. Biscayne Boulevard, Miami, Florida 33132 (the "Trust"), and LIVE NATION WORLDWIDE, INC., a Delaware 'corporation, whose address is 9348 Civic Center Drive, Beverly Hills, California 90210 ("Live Nation"). BACKGROUND The Trust manages and operates the Bayfront Park Amphitheater, as more particularly described and depicted on Exhibit "A" attached hereto and made a part hereof (the "Facility"), which is located within the Mildred & Claude Pepper Bayfront Park ("Park") owned by the City. Live Nation is engaged in the business of operating, maintaining, managing and booking live entertainment facilities, including operations and marketing services for such facilities. The City, as the owner, and the Trust, as the manager, desire to engage Live Nation, and Live Nation desires to accept the engagement, to provide management services for the Facility on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements herein contained, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. For purposes of this Agreement, the following terms have the meanings referred to in this Section 1: "Affiliate(s)" -- an entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified entity. For purposes of this definition, "control" means ownership of equity securities or other ownership interests which represent more than 51 % of the voting power in the controlled entity. "Amateur Talent" -- shall be given its common and every day meaning and shall refer to performers of concerts who do not perform on a regular basis for commercial gain as their primary occupation. "Annual Repeat Bookings" -- those existing annual Events traditionally held at the Facility that are listed in Exhibit "E." "City" -- as defined in the first paragraph of this Agreement. "City Commission" -- the governing and legislative body of the City. "City Manager" -- the chief executive officer of the City or such person as may from time to time be authorized in writing by such administrative official to act for him/her with respect to any or all matters pertaining to this Agreement. "Current Ticket Surcharge Rate" — as defined in Section 4.3(a). "Effective Date" — the date that this Agreement is duly executed by the parties (meaning that all required or necessary consents and/or actions for the execution of this Agreement to be effective and binding upon the executing party have been obtained) and an executed original thereof delivered to each of the parties. "Event" -- all uses which involve a scheduled beginning and ending time, typically all within the same day and concluding before 11:00 p.m. Monday through Thursday and 12:00 midnight on Friday, Saturday, Sunday and Legal Holidays, unless otherwise approved in writing by Executive Director and subject to City Commission approval. "Event Expenses" -- any and all expenses incurred or payments made by Live Nation in connection with the occurrence of an Event at the Facility, including, but not limited to, costs for event staffing including ushers, ticket takers, security and other event staff, and costs relating to setup, take down, traffic and crowd control, emergency personnel, and cleanup. "Executive Director" -- the chief executive officer of the Trust or such person as may from time to time be authorized in writing by such administrative official to act for him/her with respect to any or all matters pertaining to this Agreement. "Expiration Date" -- as defined in Section 3.1. "Facility" -- as defined in the Background Section of this Agreement and as depicted on Exhibit "A" hereto. "Fiscal Year" -- each one year period beginning January 1 and ending December 31, representing Live Nation's accounting year. "Governmental Requirements" -- all laws, ordinances, rules, regulations, statutes, and other legal requirements of any governmental body or authority or any agency thereof (including, without limitation, federal, state, county, and municipal). "Live Nation" -- as defined in the first paragraph of this Agreement. "Management Fee" -- as defined in Section 4.1. "Net Operating Loss/Profit" -- with respect to a Fiscal Year, the excess, if any, of Operating Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, in the case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over Operating Expenses for such Fiscal Year, in the case of a profit. "Occupation Date" -- as defined in Section 3.1. -2- ".Operating Expense Exclusions" — (i) costs to remedy any violations of Governmental Requirements existing on the Occupation Date (other than violations that will be cured by the Upgrades), (ii) costs of insurance premiums of the City and/or Trust, (iii) costs to remedy any defects (meaning structural, mechanical or in violation of applicable code) in the Facility existing on the Occupation Date (other than violations that will be cured by the Upgrades), (iv) costs for the security, maintenance or repair of the restrooms which may be required to remain open to the public at times other than during an Event or the load -in or load -out in connection therewith or cleaning after an Event (e.g. cost to repair vandalism at the restrooms that occur when open to the public, not during an Event or the load -in or load -out in connection therewith or cleaning after an Event), or (v) any Ticket Surcharge in excess of the Current Ticket Surcharge Rate. "Operating Expenses" -- any and all expenses and expenditures of whatever kind or nature incurred, directly or indirectly, by Live Nation in promoting, operating, maintaining, insuring, securing and managing the Facility, including, but not limited to: ad valorem real estate taxes and assessments, employee compensation and related expenses (e.g., base salaries, bonuses, severance and car allowances), employee benefits and related costs (e.g., relocation and other related expenses pursuant to Live Nation's relocation policy, parking and other fringe benefits), supplies, material and parts costs, costs of any interns and independent contractors, advertising, all costs of maintaining the Facility as required by this Agreement, all ASCAP and BMI fees, marketing and public relations costs and commissions, janitorial and cleaning expenses, data processing costs, dues, subscriptions and membership costs, amounts expended to procure and maintain permits and licenses, sales taxes imposed upon ticket sales or rentals, special assessments imposed upon the Facility by any governmental entity, professional fees directly relating to the operation of the Facility, printing and stationery costs, Event Expenses, postage and freight costs, equipment rental costs, computer equipment leases and line charges, telephone switch and telecommunications services, repairs and maintenance costs (e.g., elevators and HVAC), artist and talent fees, costs, and expenses, show settlement charges, security expenses, including police and fire, travel and entertainment expenses in accordance with Live Nation's normal policies, the cost of employee uniforms, safety and medical expenses, exterminator and waste disposal costs, costs relating to the maintenance of signage inventory and systems, the cost of compliance with Governmental Requirements, all utility costs, all premiums for insurance carried by Live Nation pursuant to Sections 8.2, 8.3 and 8.4, the cost of capital improvements made pursuant to Section 5.4 (except, however, the cost of Upgrades or capital improvements made pursuant to Section 5.4(b)(i), the cost of which shall be paid by Live Nation from its own funds), the cost of all personal property and equipment (other than Upgrades), and all other costs of operating and maintaining the Facility, except, however, Operating Expenses shall not include the Management Fee paid pursuant to Section 4. 1, the cost of Upgrades, any Operating Expense Exclusions or any other costs that are specified in this Agreement to be paid by the City and/or Trust or to not be an expense for which Live Nation is responsible. All Operating Expenses shall be determined in accordance with generally accepted accounting principles consistently applied and recognized on a full accrual basis. 0 "Operating Revenues" -- any and all revenues of every kind or nature derived from operating, managing or promoting the Facility, including, but not limited to: license and concession fees, rentals, revenues from merchandise sales, advertising sales, equipment rentals, box office revenues, food service and concession revenues (however, if such revenues are -3- collected in the first instance by and retained by the concessionaire, only the amount of such revenues paid by the concessionaire to the Facility shall be included as Operating Revenues), commissions or other revenues from decoration and set-up, security and other subcontractors (however, if such revenues are collected in the first instance by and retained by such subcontractors, only the amount of such revenues paid by such contractors to the Facility shall be included as Operating Revenues), miscellaneous operating revenues, revenues generated from separate agreements with Live Nation Affiliates pertaining to the Facility, sponsorship revenues, and interest revenues, all as determined in accordance with generally accepted accounting principles and recognized on a full accrual basis. For the sake of clarity, the parties acknowledge that revenues from the sale of tickets for Events at the Facility are not Operating Revenues, but are instead revenues of the promoter and/or performer of each such Event. To the extent that Live Nation collects such ticket sale revenue on behalf of a promoter and/or performer, such ticket sale revenue shall be the source of funds from which Live Nation collects the rental charges and other event reimbursements owed by the promoter and/or performer for use of the Facility, which such charges and reimbursements are Operating Revenues hereunder. "Renewal Term" -- as defined in Section 3.2. "Required Trust Distribution" -- the following amounts shall be deemed Required Trust Distributions: (i) for the period commencing November 1, 2008 and continuing through December 31, 2008, the sum of $30,000.00; (ii) for the Fiscal Year commencing with January 1, 2009 and continuing through December 31, 2009, the sum of $625,000; (iii) for the Fiscal Year commencing January 1, 2010 and each Fiscal Year thereafter for the remainder of the Term, the Required Trust Distribution shall be an amount equal to a three percent (3%) increase over the preceding Fiscal Year's Required Trust Distribution. Required Trust Distributions shall be paid to Trust in advance on the first day of each Fiscal Year or partial Fiscal Year. "Tangible Net Worth" — net worth (which shall be total assets of Live Nation minus all of its total liabilities) minus its intangible assets, all according to generally accepted accounting principles (GAAP), consistently applied. "Term" -- as defined in Section 3.1; provided, however, if this Agreement is extended for a Renewal Term, all references to "Term" contained herein shall also include the Renewal Term. "Ticket Surcharge" -- as defined in Section 4.3. "Upgrade Consents" -- all City and other governmental and quasi -governmental consents and approvals (including building permits to allow Live Nation to commence all Upgrades) and to commence use and operation of the Facility as provided herein, including any required -4- certificates of occupancy or use and all required approvals to allow sale of food and beverages, including, without limitation, sale of alcoholic beverages. "Upgrades" -- the work to be performed by Live Nation in accordance with Section 5.4(b)(i) at the sole cost and expense of Live Nation and not as an Operating Expense, as listed on Exhibit "C" hereto. 2. Engagement of Live Nation; Scope of Services. 2.1. Engagement. (a) General Scope. Trust and City hereby engage Live Nation to operate, manage, maintain, secure, promote and market the Facility during the Term, upon the terms and conditions hereinafter set forth. (b) Manager of the Facility. Subject to the terms of this Agreement, Live Nation accepts the engagement and agrees to operate, manage, maintain, secure, promote and market the Facility in a manner consistent with other similar facilities operated by Live Nation and its Affiliates as of the Effective Date. Subject to the terms of this Agreement, Live Nation shall be, as agent for the City and the Trust, the sole and exclusive manager to operate, manage, maintain, secure, promote and market the FacilRy during the Term. In such capacity, except as otherwise expressly reserved under this Agreement to the City and/or the Trust, and/or except for such matters as are subject to the approval of City, City Manager, the Trust and/or the Executive Director, Live Nation shall have exclusive authority over the management and operation of the Facility and all activities therein; provided, however, the Facility shall be used only as a live entertainment venue and public auditorium or any combination thereof, and for such ancillary uses as are customarily related to such primary use, including, without limitation, broadcasting, recording, filming, private parties or functions, bar (including alcoholic beverages) and food concessions (and including preparation of food), in each case in conjunction with an Event or rental function then being held, and sale of merchandise related to any Event then being held. Other uses may be allowed only with the prior written approval of the Executive Director. Without limiting the generality of the foregoing, in no event shall food or beverages be sold, distributed, or served after midnight and in no event shall alcoholic beverages and/or non- alcoholic beverages be sold in glass bottles of any size or in cans in excess of 12 ounces. Live Nation shall also have the right to office its personnel out of the Facility as and to the extent Live Nation may desire. The Facility includes only a very limited number of parking space's adjacent to the building. Live Nation shall be entitled to share the limited number of parking spaces adjacent to the building with the Trust. Both the Trust and Live Nation shall have equal access to the parking spaces for their day-to-day activities, but patrons of Events may not use such parking. Live Nation recognizes that the availability and access to public parking will be affected from time to time by construction activities. - 5 - To ensure a secured facility, the Facility shall remain closed when not in use for an Event or the load -in or load -out in connection therewith or cleaning after an Event. The patron entrance to the Facility shall remain on Biscayne Boulevard. Except during Events or the load -in or load -out in connection therewith or cleaning after an Event, the Trust, at its cost and expense and not to be included in the services hereunder or included in Operating Expenses, shall maintain access to the entire Park, including any passage through the Facility that it may require, and the full access to the Trust's service facility located behind the Facility. Notwithstanding the foregoing, Live Nation shall have the right to secure and prohibit access to the concession areas, stage area, back stage area, towers, sound booths and box offices. Notwithstanding anything to the contrary contained in this Agreement, Live Nation shall not have any responsibility, liability or obligation, other than when any damage is caused during an Event or the load -in or load -out in connection therewith or cleaning after an Event, for any matter which is an Operating Expense Exclusion, including, without limitation, the security, maintenance or repair of the restrooms which may be required to remain open to the public at a times other than during an Event or the load -in or load -out in connection therewith or cleaning after an Event. Live Nation agrees that it shall not interfere with the surveillance cameras currently installed around the Facility. 2.2. Scope of Services. (a) General. Live Nation shall perform and furnish management services, personnel, and systems and materials as are appropriate or necessary to operate, manage, supervise, maintain, secure, promote and market the Facility in a manner consistent with the operations, management, promotions and marketing of other similar first-class facilities operated by Live Nation and its Affiliates on the Effective Date. (b) Number of Events; Conclusion of Events. Commencing with the Fiscal Year commencing January of 2009, Live Nation shall use commercially good faith efforts to endeavor to cause at least twenty (20) Events to be held at the Facility for each Fiscal Year (and proportionately for any partial Fiscal Year) during the Term. Live Nation shall cause the Facility to be available for Events on a year round basis, subject to unavailability for reasonable periods for repairs, maintenance and alterations and for inclement weather. All Events shall conclude prior to 11:00 p.m. Monday through Thursday and 12 midnight on Friday, Saturday, Sunday and National Holidays unless otherwise approved by Executive Director in writing and subject to City Commission approval. Notwithstanding the foregoing, Live Nation shall be allowed to cease operations at the Facility in whole or in part during the period from the Occupation Date through December 31, 2008 to perform the Upgrades. Notwithstanding anything to the contrary contained in this Agreement, the failure of Live Nation to cause twenty (20) Events to be held at the Facility in any Fiscal Year shall not be a breach or default under this Agreement. (c) Booking Policies. In booking the Facility, Live Nation will use such booking policies as are used by Live Nation as of the Effective Date at other similar first-class facilities operated by Live Nation, subject to the restrictions and limitations set forth herein. Except as otherwise provided herein, Live Nation shall have the sole authority to approve the scheduling of any Event in the Facility, including, Events of a nontraditional nature such as multi-year user contracts (but not beyond the Term) and Events requiring or having co- promotions. Live Nation covenants and agrees to book Events each Fiscal Year that are balanced so as to ensure a reasonably proportioned blend of cultural experiences including varied types of music and other live performances appealing to the varied tastes of the population including, without limitation, popular, rock and roll, Latin, blues, soul, jazz, folk, classical, and country music, and comedy and theater. Live Nation shall have no obligation, however, to book any type or category of Events or specific Event that are unprofitable, as reasonably determined by Live Nation. Executive Director shall have the right, however, to prohibit certain Events or uses from occurring, upon Executive Director's reasonable determination that such Event or use might present unreasonable safety concerns. Notice of any such determination shall be sent by written notice to Live Nation within three (3) business days after Executive Director has received the bi-weekly booking report from Live Nation that specifies the potential Event and if such determination is not delivered within such three (3) business day period, then the Event may be held. Any such notice sent by the Executive Director must articulate the unreasonable safety concerns with such specificity that Live Nation may address such concerns in order to obtain the Executive Director's subsequent consent. Live Nation shall enact a standard booking policy providing for published rental rates for the Facility to community and charitable groups. Pursuant to that policy, community and charitable groups may rent the Facility in accordance with the following: (i) such reservation can not be in conflict with another Event already scheduled or on a "hold" by Live Nation, (ii) ;he user executes Live Nation's standard rental agreement for Events in the form of Exhibit H, (iii) no such use shall include a concert (for purposes of this sentence, a "concert" that is so prohibited shall not refer to Amateur Talent) or violate any of the terms of any sponsorship agreement entered into by Live Nation, and (iv) Live Nation shall retain the exclusive right to the operation of all concessions and other operations at the Facility. Live Nation shall use commercially feasible good faith efforts to make the Facility available, subject to its booking policy, to the Annual Repeat Bookings listed in Exhibit "E"; provided, however, in the event that Live Nation is given at least six (6) months prior written notice of the specific date(s) for holding the applicable Annual Repeat Booking and the user has executed Live Nation's standard use agreement attached hereto as Exhibit "H" and paid the deposit thereunder, then Live Nation shall ensure that the date(s) requested will be available for such Annual Repeat Booking (but no such Events may be scheduled during performance of the Upgrades). Notwithstanding the foregoing, any use of the Facility for an Annual Repeat Booking shall be in accordance with the following: (i) the rental and fees will be at the then current published rates, (ii) the user executes Live Nation's standard rental agreement for Events in the form of Exhibit H, (iii) no such use shall violate any of the terms of any sponsorship agreement entered into by Live Nation, and (iv) Live Nation shall retain the exclusive right to the operation of all concessions and other operations at the Facility. 2.3. Specific Services. Without limiting the generality of the foregoing, Live Nation shall perform all of the following services, all without the necessity of first obtaining City's or Trust's approval (except as otherwise expressly provided in this Agreement), all of which shall be performed by Live Nation in a manner consistent with other similar facilities operated by Live Nation on the Effective Date: (a) subject to the terms and requirements of this Agreement, establish all booking policies and control the booking of the Facility, including, determining the form of -7- rental or use agreement to be used for the use or rental of the Facility. Live Nation shall hold the master set of all booking records and schedules and shall provide copies of the booking schedules to Executive Director bi-weekly. Live Nation shall, from time to time, review the booking policies and advise the Executive Director of changes, if any, in the booking policies and Live Nation shall consider any requests or suggestions made by the Trust or Executive Director; (b) employ, supervise and direct all employees and personnel consistent with the provisions of this Agreement. All employees shall be employees of Live Nation, its affiliates or third parties, and not City and/or Trust. All employment contracts, either with individuals, corporate entities or unions shall be solely with Live Nation and not the City and/or Trust. Live Nation shall assure that the Facility is adequately staffed during Events, during the load -in or load -out in connection therewith or cleaning after an Event, and as otherwise required by this Agreement, with competent, qualified personnel to fulfill its responsibilities under this Agreement; (c) administer relationships with all third parties (including, without limitation, entering into contracts and licenses for the food and beverage concessionaire at the Facility) for the use, maintenance and operation of the Facility, initiate and participate in any and all negotiations, renewals and extensions relating to such third party relationships, and enforce contractual agreements concerning any such third party relationships; (d) negotiate, execute in its name as agent for the City and/or the Trust, deliver and administer any and all licenses, occupancy agreements, sponsorship agreements, rental agreements, booking commitments, concession agreements, supplier agreements, service contracts (including, without limitation, contracts for cleaning, decorating and set-up, emergency services, general maintenance and maintenance and inspection of HVAC and other systems and elevators, stage equipment, fire control panel and other safety equipment, staffing and personnel needs, including guards and ushers, telephone, extermination and other services which are necessary or appropriate) and all other contracts and agreements in connection with the management, maintenance, promotion and operation of the Facility, provided that (1) if any such license, agreement, commitment or contract has a term that extends beyond the remaining Term or Renewal Term, as the case may be, such license, agreement, commitment or contract shall provide that it is automatically assigned to Trust as of the expiration or termination date of this Agreement and that the Executive Director may terminate any such agreement without payment thereafter at any time upon not less than ten (10) days written notice, (2) Live Nation shall have the sole authority to approve the scheduling of any Event to be held at the Facility, subject to the limitations and requirements of this Agreement, and (3) any contract entered into between Live Nation and a subsidiary and/or affiliate company shall be at terms and for prices customarily charged by such subsidiary and/or affiliate company for comparable goods and services elsewhere at rates that are competitive within the industry; (e) maintain the Facility (including, without limitation, all structural components thereof and all electrical, HVAC, life safety, mechanical, plumbing and other systems and equipment, the light tower) in a good and clean condition consistent with other similar facilities operated by Live Nation and its Affiliates as of the Effective Date and in compliance with all Governmental Requirements, ordinary wear and tear, and casualty loss -8- excepted. Maintenance responsibility shall include, without limitation, repairs and replacements (structural, nonstructural capital and non -capital) and preventative maintenance and to comply with Exhibit "D" hereto. Except, the Trust shall maintain all green space surrounding the Facility at no charge to Live Nation. Live Nation warrants and represents to Executive Director that Live Nation has sufficient trained and qualified employees to so maintain HVAC, roof and elevator systems located at the Facility. Notwithstanding the foregoing, Live Nation's obligations and responsibilities shall not include any of the Excluded Operating Expense matters; all of which shall remain the sole obligation and responsibility of City and/or Trust. Live Nation shall keep reasonable records reflecting all of Live Nation's maintenance activities, all of which shall be available for inspection by Executive Director or his designee upon request. Live Nation shall submit to Executive Director or his/her designee periodic (not less than quarterly) reports specifying all maintenance work performed during such period, which reports shall be used by the City's Property Management Division or its consultant as part of an annual maintenance inspection and review, and Live Nation shall provide monthly maintenance status reports on a less detailed basis than are required of the quarterly reports. 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. (f) rent, lease, or purchase all equipment and maintenance supplies necessary or appropriate for the operation and maintenance of the Facility; (g) establish and adjust prices, rates and rate schedules for the aforesaid licenses, agreements and contracts and any other commitments relating to the Facility to be negotiated by Live Nation in the course of its management, operation, booking and promotion of the Facility. Live Nation shall consult with the Executive Director about any adjustments to the rate schedules at the Facility to be made by Live Nation; (h) pay when due, on behalf of the City and/or Trust, all Operating Expenses from accounts established pursuant to Section 5.3 or from Live Nation's own funds pursuant to Section 5.1; (i) institute on Live Nation's own behalf (and not as agent for City and/or Trust) without consultation or approval of the City and/or Trust, the costs of which shall be included as Operating Expenses, such legal actions or proceedings necessary or appropriate in connection with the operation of the Facility, including, without limitation, to collect charges, rents or other revenues due to the City and/or Trust or Live Nation or to cancel, terminate or sue for damages under, any license, use, advertisement or concession agreement for the breach thereof or default thereunder by any licensee, user, advertiser, or concessionaire at the Facility; (j) maintain a master set of all booking records and schedules for the Facility (which shall be available for inspection by Executive Director upon written request); (k) provide day-to-day administrative services in support of its management activities to ensure that the Facility shall be operated, managed, maintained, secured and -9- performed in a manner consistent with similar facilities operated by Live Nation and its Affiliates as of the Occupation Date including, but not limited to, acquisition of services, equipment, supplies and facilities; maintenance and property management; personnel management; record-keeping; collections and billing; and similar services; (1) engage in advertising, solicitation, and promotional activities to market the Facility and Events. In connection with its activities under the terms of this Agreement, Live Nation will be permitted to use the logo and brand identity of the City, as approved by the Executive Director or his designee, and the Facility; (m) create and operate the Facility's telephone switch and telecommunications services; (n) act as a collection agent for the City on sales taxes from operation of the Facility and remit to the State of Florida such sales taxes; (o) subject to the terms of this Agreement, cause the Facility to be in compliance with all Governmental Requirements, including, without limitation all ADA requirements, at all times including, without limitation, making such repairs, improvements, alterations and additions (both capital and non -capital and structural and non-structural) required thereby; (p) subject to the terms of this Agreement, abide by all Annual Repeat Bookings as listed on Exhibit "E"; (q) except as otherwise approved by the Executive Director, Live Nation shall not license or allow the use of any portion of the Facility to other than short-term users (i.e., less than thirty (30) consecutive days). Live Nation shall require that all users of the Facility provide certificates of insurance evidencing appropriate insurance and any other insurance required by the applicable license, use or occupancy agreement. Copies of these certificates shall be furnished to the Executive Director or his/her designee prior to any Event or use. Such insurance shall be kept in force at all times by all licensees, users, lessees and concessionaires. All liability policies shall name the City, the Trust and Live Nation as additional insureds. Live Nation shall also require all users of Facility to execute, among the terms of the license, agreement or occupancy agreement, an agreement to indemnify, defend and hold harmless the City and the Trust (the form of such indemnity provisions to he subject to City Attorney's approval, not to be unreasonably withheld; provided that Live Nation's standard rental agreement, attached hereto as Exhibit H, is deemed approved and if the indemnity provisions therein are utilized in any such license, agreement or occupancy agreement, the same shall be deemed approved); (r) use good faith efforts to attend monthly Trust meetings, currently held on the fourth Monday of the month at noon at the Trust offices; (s) accurately report and promptly pay all fees due to ASCAPBMI; and (t) assure that the Facility is reasonably secured at all times, except that Live Nation shall only be responsible for securing the restrooms portion of the Facility when the -10- Facility is being used for an Event or the load -in or load -out in connection therewith or cleaning after an Event. 2.4. Trust Use of Facility and Ticket Programs. (a) Free Trust Use. Trust shall be entitled on ten (10) occasions in each full Fiscal Year (and proportionately for any partial Fiscal Year) during the Term and any Renewal Term, subject to the terms and conditions hereof, to make use of the Facility for hosting an Event, in each case expressly subject to the provisions of this subparagraph (a) (such instance(s) of use by Trust is herein referred to as "Trust Use"). Trust use shall be available to the Trust without payment of a Facility Use Fee. In no event will a Trust Use occur during the performance of the Upgrades. Two (2) of the Trust Use Events shall be annually reoccurring on July 4, for the Trust's July 4 celebration and on December 31, for the Trust's New Year's Eve celebration; for which public admission to these Events is free. Trust shall maintain complete control of any VIP areas for the Trust Use Events, which may include food and beverage. Although Trust shall not owe a fee, rent or other payment strictly for the right to make such Trust Use, nonetheless (i) Trust shall promptly (within ten (10) business days after receipt of written invoice therefore), reimburse Live Nation for all actual expenses and costs incurred by Live Nation to facilitate Trust Use, including, without limitation, Live Nation's standard charges for janitorial, clean up, crowd and traffic control, set-up and tear -down costs and fees and charges (including for materials, labor and other services) directly necessitated by the occurrence of Trust Use. Live Nation shall provide Trust with the standard rate charge for a Trust Use each Fiscal Year and provide any interim changes thereto at least ten (10) calendar days prior to such change being effective, it being the intention of the parties that Live Nation may change such rates from time to time but must give Trust prior notice of such changes; (ii) Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during Trust Use, including, without limitation, food and beverage concessions and sales, including alcoholic beverages (but Executive Director shall have the right to prohibit the sale of alcoholic beverages for any Trust Use); and all proceeds of such sales and concession operations shall be Operating Revenues. Trust shall have no right to reserve or retain any portion of the concession proceeds nor to operate in competition therewith within the Facility, except to the extent that food and beverages shall be available in the VIP area. Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefore charged at standard Events at the Facility; (iii) all Trust Use Events shall be scheduled in accordance with Live Nation's scheduling needs so as not to conflict with or impair Live Nation's ability to maintain its anticipated schedule of Events, but shall otherwise be scheduled at times convenient for Trust, with Live Nation reasonably cooperating with Trust in coordinating all scheduling (but in any case, Live Nation shall not be obligated to permit any Trust Use unless scheduling therefore was memorialized in writing signed by the parties in advance of any Trust Use); (iv) Trust shall not be permitted to have a Trust Use for a concert (for purposes of this sentence, a "concert" that is so prohibited shall not refer to Amateur Talent), except that the foregoing prohibition against a concert shall not be applicable to the July 4`h or New Year's Eve Trust Use Events or to a streaming video of any sport championship celebrations being broadcast from sports stadiums or any charitable concert which is promoted by Live Nation on behalf of the City or Trust on terms mutually agreed upon by the parties, or an Event that violates the terms of any sponsorship entered into by Live Nation; and (v) Trust's entering into the standard use agreement attached hereto as Exhibit H-1. So long as Live Nation has complied with its obligations under this subparagraph (a), Trust shall not be entitled to "roll over" or "carry. forward" any unused Trust Use opportunity from a prior Fiscal Year; such that if during any Fiscal Year fewer than ten (10) Trust Uses actually occur for any reason, including reasons that were completely outside the parties' reasonable control, then Trust shall be deemed irrevocably to have waived its right or entitlement to the Trust Use Event that otherwise could have occurred during the prior Fiscal Year(s). Live Nation shall have the right to promulgate reasonable rules from time to time concerning Trust Use so long as they are consistent with the terms hereof and riles imposed upon other Events at the Facility. (b) Free Complimentary Tickets. Trust shall be entitled to receive thirty (30) complimentary tickets for each Event at the Facility that is open to the general public and which is presented or promoted by Live Nation and if available without cost, ten (10) complimentary tickets for each third party rental that is open to the general public (herein, "Complimentary Tickets"), subject to the terms of this subparagraph. Trust may not engage in the sale or re -sale of the Complimentary Tickets nor may Trust offer any Complimentary Tickets to the intended user prior to the date the tickets have first become generally available to the public.. Under no circumstances shall Trust be entitled to "roll over" or "carry forward" any unused or un -retrieved Complimentary Tickets; such that, in case of any Event for which Trust neglects or otherwise fails to secure the Complimentary Tickets for any reason other than Live Nation's failure to comply with its obligations under this subparagraph, then Trust shall be deemed irrevocably to have waived its right or entitlement to those particular Complimentary Tickets and Trust shall not be entitled to any remuneration for any lost opportunity. Under no circumstances shall Trust be entitled to secure any Complimentary Tickets within three (3) days immediately preceding the applicable Event (at which point any Complimentary Tickets otherwise then available shall be deemed forfeited). Live Nation shall have sole and exclusive control over seating location decisions for Complimentary Tickets from time to time so long as the Complimentary Tickets are seats within the top .50% tiered price level (and thus the location may change from Event to Event). Live Nation shall provide a Live Nation contact from whom the Trust can conveniently secure the Complimentary Tickets from time to time; provided, nothing herein shall obligate Live Nation to remind Trust of the availability of the Complimentary Tickets nor to physically deliver them to the Trust (except if Live Nation does not make such Complimentary Tickets available for the Trust to pick up' same within six (6) miles from the Facility, Live Nation shall cause such Complimentary Tickets to be delivered to the Trust). The Trust shall arrange for an employee, messenger, or other authorized representative to physically retrieve any Complimentary Tickets from Live Nation (except if Live Nation does not make such Complimentary Tickets available for the Trust to pick up same within six (6) miles from the Facility, Live Nation shall cause such Complimentary Tickets to be delivered to the Trust). Notwithstanding anything to the contrary contained herein, Live Nation shall not be obligated to provide Complimentary Tickets to Events where the performer does not allow Complimentary Tickets to be distributed. For any such Event where the performer does not allow Complimentary Tickets to be distributed, Live Nation shall provide Trust with written confirmation of such as soon as such fact is known by Live Nation, but in no event, less than fourteen (14) days prior to the Event. (c) Bayfront Park Support Benefit Concert Event - Net Proceeds Donation. Commencing January 1, 2009, Live Nation agrees to request of each act headlining any Event at the Facility that is promoted or presented by Live Nation that one or more of its stars autograph two (2) pieces of "memorabilia." So long as Live Nation makes the request in good -12- faith, Live Nation shall be deemed to have discharged its obligations respecting its efforts to secure autographed memorabilia. All memorabilia so autographed shall be kept and stored by Live Nation pending written request of the Trust to have the memorabilia delivered to the Trust for its use in an auction. Upon at least six (6) months prior written notice, the Trust may have an area at the Facility, as delineated and selected by Live Nation, or within the Park, as selected by the Trust, during an Event that is promoted or presented by Live Nation for the purpose of the Trust hosting and conducting a silent auction for patrons of the Event at which the autographed memorabilia accumulated to date shall be auctioned to the highest bidder (a "Bayfront Park Support Auction"). The theme of any Bayfront Park Support Auction, which Trust shall publicize in any manner the Trust determines is best, shall be a theme of enhancing and promoting the Trust's programming or capital improvements in Bayfront Park or other social programs for community benefit and welfare as the Trust may reasonably determine ("Community Enhancement"). The Trust shall be solely responsible for conducting the Bayfront Park Support Auction, including, without limitation, handling all bidding and accounting therefor and delivery and pick-up of all memorabilia by bidders in association therewith. Trust agrees that it shall apply all net proceeds for Bayfront Park Programs or improvements. For these purposes, "net proceeds" shall mean all proceeds of bids actually received from the Bayfront Park Support Auction. Live Nation shall retain exclusive rights to the operation of all concessions and other operations at the Facility during any Bayfront Park Support Auction, including, without limitation, food and beverage concessions and sales, including alcoholic beverages; and all proceeds of the sales and concession operations shall be Operating Revenues (Trust shall have no other right of participation in any portion thereof nor to operate in competition therewith). Live Nation will ensure that the pricing for any concessions shall not exceed the normal pricing therefore charged at standard Events at the Facility. The Bayfront Park Support Auction shall be scheduled in accordance with Live Nation's scheduling needs so as not to conflict with or impair Live Nation's ability to maintain its anticipated schedule of Events, and the parties shall reasonably cooperate with each other in coordinating all scheduling (but in any case, Live Nation shall not be obligated to permit any Bayfront Park Support Auction unless scheduling therefore was memorialized in writing signed by the parties in advance of any such Bayfront Park Support Auction and there is no objection from the artists performing at the Event). Under no circumstances shall the Trust be permitted to host a Bayfront Park Support Auction that violates the terms of any sponsorship entered into by Live Nation. Trust shall not be entitled to "roll over" or "carry forward" any unused Bayfront Park Support Auction opportunity from a prior Fiscal Year; such that, in the event during any Fiscal Year no Bayfront Park Support Auction occurs for any reason, including reasons that were completely outside the parties' reasonable control, then, Trust shall be deemed irrevocably to have waived its right or entitlement to the Bayfront Park Support Auction that otherwise could have occurred during such prior Fiscal Year(s). However, any such waiver applies to the Event only, and not to the memorabilia Live Nation collected for purposes of auctioning at the Bayfront Park Support Auction. Live Nation reserves the right to promulgate reasonable rules concerning the Bayfront Park Support Auction so long as same are consistent with the terms hereof to assure the efficient operation of the Event or otherwise to address issues of health, safety, welfare and decorum. - 13 - 2.5 Rights Reserved to City and/or Trust. Rights of Entry. Subject to the terms of this Agreement, representatives, contractors and employees of the Trust shall have the right to enter all portions of the Facility to inspect same, to observe the performance of Live Nation of its obligations under this Agreement, to install, remove, adjust, repair, replace or otherwise handle any equipment, utility lines, or other matters in, on, or about the Facility, or to do any act or thing which the Trust may be obligated or have the right to do under this Agreement. Nothing contained in this subparagraph is intended or shall be construed to limit any other rights of the City and/or Trust under this Agreement. Notwithstanding the foregoing reserved rights of the City and/or Trust, the City and/or Trust shall not unreasonably interfere with the activities of Live Nation hereunder, and the City's and/or Trust's actions shall be conducted such that disruption of Live Nation's work shall be kept to a minimum and there shall be no disruption of any Event by City and/or Trust (in its proprietary capacity of the foregoing shall not diminish any rights of City and/or Trust in its governmental capacity). Nothing in this Section shall be construed to impose upon the City and/or Trust any independent obligation to make repairs, replacements, alterations, additions or improvements or perform any maintenance or create any independent liability for any failure to do so. 2.6 Signe. The following provisions shall govern the name -in -title rights, interior naming rights, and the related signage rights with respect to the Facility: (a) Name -in -Title Rights; Exterior Signage. Live Nation shall have the name - in -title rights (i.e., the right to name the Facility) and all revenue derived therefrom. Any such name shall include "Amphitheater at Bayfront Park." The Trust shall have final approval rights as to the name selected by Live Nation, which approval shall not be unreasonably withheld., conditioned or delayed. Any proposed name must comply with all federal, state, county, and/or municipal law, rule or ordinance; provided, however, unless approved by City Commission, in no event may any such signage include the names of any company selling the following types of products ("Prohibited Names"): guns, tobacco or sexual products. Live Nation shall bear all costs (as part of Operating Expenses) to obtain and install new signage and to remove the existing signage. Further, if the name -in -title is approved as stated herein, Live Nation agrees to utilize the full name of the Facility in its publications, advertising, promotions, websites, announcements, and other similar and related materials referring solely to the Facility, unless the use of the full name -in -title is otherwise unfeasible due to size or space limitations on such publications, advertising, promotions, websites, announcements, and other similar and related materials, or outside of its direct control. All exterior signage located on the exterior of the perimeter of the Facility shall be subject to Executive Director's prior written approval as to size, location, materials and aesthetics, and shall comply with all zoning requirements. Live Nation shall have no right to install any other signage on the exterior of the Facility. Live Nation acknowledges that the Bayfront Park Marquee Sign is not included in exterior signage. City and/or Trust shall have no right to install or allow to be installed any signage on the exterior of the Facility without Live Nation's prior written approval as to size, location, materials, content and aesthetics. This limitation shall not in any way apply to the Marquee Sign, or any directional or informational signage that may be placed in the Park. (b) Interior Naming Rights; Interior Signage. Live Nation shall be entitled to all interior signage (and all proceeds derived therefrom shall be Operating Revenues); provided, however, that the sponsorship names thereon are subject to Trust's approval which shall not unreasonably be withheld, conditioned or delayed. The sponsorship names on any such signage may include any of the names shown on Exhibit "G" hereto (all of which are deemed approved) or such other names as may be approved by the Trust; provided, however, unless approved by City Commission, in no event may any such signage include the names of any company selling the following types of products ("Prohibited Names"): guns, tobacco or sexual products. Nothing contained herein shall preclude Live Nation from allowing sponsors of temporary events from using temporary banners and temporary signage within the Facility with respect to any Event so long as the banners and signage do not include any Prohibited Names. Live Nation shall be entitled to all interior signage (and all proceeds derived therefrom shall be Operating Revenues). (c) Marquee. Live Nation shall not receive any complimentary use of the Marquee Sign for any name -in -title identification or advertising; however, Live Nation may list upcoming performances at the Facility on the Marquee Sign, at no cost to Live Nation. Further, Live Nation may purchase advertising or named sponsor space for the promotion of a named sponsor or any sponsor of its Events. In the event that Live Nation secures a name -in -title sponsor for the Facility and such name -in -title sponsor is approved by the Trust as provided in subparagraph (a) above, then Live Nation shall have the right to include the identity of the name in title sponsor on the Marquee as the prominent signage thereon, and Live Nation shall pay to Trust ten percent (10%) of the revenue received by Live Nation for any name in title sponsorship after deduction of Permitted Signage Expenses (as defined below). Payments to Trust of revenue after deduction of Permitted Signage Expenses shall be made within fifteen (15) days after Live Nation's receipt of the applicable revenue from the name in title sponsorship user. As used herein, the term "Permitted Signage Expenses" means fees paid in connection with the name in title sponsorship for commissions, costs of constructing signage and the face value of free tickets provided to the holder of the rights of the name in title sponsorship for Events in the Facility required to be provided by the terms of the agreement for the name in title sponsorship. (d) General Requirements. All signage (interior, exterior, permanent and temporary) shall comply with all applicable Governmental Requirements, and shall be maintained by Live Nation in good condition. 3. Term and Renewal Term. 3.1. Term. The "Term" of this Agreement shall begin as of the date that is the later of (i) Effective Date or (ii) August 5, 2008 ("Occupation Date") and end at midnight on December 31, 2018 ("Expiration Date"), unless earlier terminated pursuant to the provisions of this Agreement. Live Nation shall have the exclusive right to manage and operate the Facility from and after the Occupation Date subject to the terms of this Agreement. City and/or Trust shall cooperate and assist Live Nation in effecting a smooth transition of the management of the - 15 - Facility. No costs, fees or expenses of City and/or Trust under the current management agreement or incurred prior to the Effective Date shall be included in Operating Expenses. Notwithstanding anything to the contrary contained in this Agreement, in the event that the Effective Date has not occurred by August 5, 2008, Live Nation shall have the right to withdraw and revoke its execution and delivery of this Agreement. 3.2. Renewal Option. Live Nation shall have the option to extend the Tenn of this Agreement for two (2) additional five (5) year periods (each such five (5) year period being a "Renewal Term") provided that all of the following conditions are met: (i) not less than 90 days nor more than 180 days prior to the Expiration Date of this Agreement (or the first Renewal Term, as applicable), Live Nation shall provide written notice to Trust ("Exercise Notice") stating that Live Nation desires to exercise the renewal option. Time shall be of the essence with respect to tine Exercise Notice and if Live Nation fails to provide written notice as and when required, the renewal option shall expire and shall not thereafter be exercisable; and (ii) Live Nation shall not be in default under this Agreement both at the time Live Nation delivers its Exercise Notice and at the commencement of the applicable Renewal Term; and (iii) the Trust consents, in writing, to the extension of the Term for the applicable Renewal Term. The Trust shall respond in writing to the Exercise Notice within fifteen (15) days after receipt thereof, and the failure of the Trust to timely respond shall be deemed a consent to the Exercise Notice. In the event the conditions of (i), (ii) and (iii) are not met, then and in that event this Agreement shall expire at the end of the initial Term (i.e., on the originally stated Expiration Date) or first Renewal Term, as applicable, and the provisions of Section 13.2 shall apply. If, however, all conditions of (i), (ii) and (iii) are met, then and in that event this Agreement shall be renewed for the applicable Renewal Term on all of the same terms and conditions, except that the Required Trust Distribution for the first year of the first Renewal Term shall be .adjusted to be increased by three percent (3%) on January 1, 2019 and thereafter further adjusted to be increased by three percent (3%) on each January 1 of the applicable Renewal Term thereafter. 4. Live Nation's Compensation; Trust Distributions. 4.1. Management Fee. As consideration to Live Nation for providing the services herein specified during the Term, Live Nation shall receive one -hundred percent (100%) of the Net Operating Profit. 4.2. Required Trust Distribution. Live Nation shall distribute to Trust the Required Trust Distribution in annual payments in advance, the first of which shall be due and payable on or before November 1, 2008, and each subsequent installment shall be due on January 1 of each Fiscal Year. Such amounts shall be distributed from Operating Revenues if and to the extent sufficient funds are available therefore but shall otherwise be paid to Trust from Live Nation's M[E own funds pursuant to Section 5.1. Each installment of Required Trust Distributions shall be distributed or paid to Trust, without setoff, reduction or abatement prior to any payments to Live Nation of the Management Fee. 4.3. Ticket Surchar_ge. In addition to the Required Trust Distribution, the Trust shall receive an additional disbursement in accordance with the City Code ("Ticket Surcharge") as follows: (a) Live Nation shall pay all applicable Ticket Surcharges as stated in section 53-2 of the City Code and Ordinance 10509, as amended and as the same may be amended from time to time. Live Nation shall make payment of Ticket Surcharge monthly, on or before the 15th day, for the preceding month's Events. Ticket Surcharges shall not apply to any Trust Complementary Tickets or up to a maximum of 1,200 complimentary tickets per Event, including those provided to artists and third parties but shall apply to all other complimentary tickets. As of the Effective Date of this Agreement, the ticket surcharge is as follows (the "Current Ticket Surcharge Rate"): Ticket Price Amount of Surcharge per ticket $1.00 to $14.99 $0.75 $15.00 to $29.99 $1.00 $30.00 and over $2.00 Notwithstanding anything to the contrary contained in this Agreement, the Current Ticket Surcharge Rate shall be recalculated for the beginning of each Renewal Term to be the then current Ticket Surcharge stated in section 53-2 of the City Code and Ordinance 10509, as amended and as the same may be amended from time to time. (b) Amounts to be paid to Trust pursuant to above for the Current Ticket Surcharge Rate shall be distributed from Operating Revenues if and to the extent sufficient funds are available therefore but shall otherwise be disbursed by Live Nation to Trust from Live Nation's own funds pursuant to Section 5.1 hereof. All such amounts shall be distributed or paid to Trust, without setoff, reduction, or abatement. Notwithstanding anything to the contrary contained in this Agreement, in the event that Live Nation is obligated to pay any Ticket Surcharge in an amount in excess of the Current Ticket Surcharge Rate, such payments shall be credited against the next payable Required Trust Distributions until the credit is fully utilized. 5. . Funding; Budgets; Bank Accounts; Alterations. 5.1. Live Nation Funding Guaranty. Live Nation hereby irrevocably and unconditionally guarantees to City and/or Trust that Operating Revenues shall at all times be sufficient to pay as and when due all Operating Expenses, the Required Trust Distributions and the Ticket Surcharge and all other amounts that Live Nation is obligated to pay pursuant to this Agreement. Live Nation hereby covenants and agrees that if at any time there are insufficient Operating Revenues to pay all of the foregoing amounts as and when required, Live Nation shall immediately pay the difference from Live Nation's own funds. The foregoing obligation is absolute and unconditional and shall apply even if Operating Revenues are reduced or limited by -17- facts or circumstances not contemplated by the parties or for reasons beyond the parties' control. The foregoing constitutes a guaranty of payment and not of collection. To the extent Live Nation makes any such payment, Live Nation shall be entitled to reimbursement from Net Operating Profit as and when sufficient funds are available. Live Nation agrees, however, that upon any expiration or termination of this Agreement, Live Nation shall pay from its own funds all Operating Expenses, Required Trust Distributions, Ticket Surcharge, and all other amounts required to be paid pursuant to this Agreement through the date of expiration or termination (and shall be entitled to reimbursement for any prepaid Required Trust Distributions attributable to periods after the expiration or tennination date). From and after the date of expiration or termination, Live Nation shall not be entitled to any reimbursement for any such payments and Live Nation hereby irrevocably waives any right to seek any such reimbursement. The provisions of this Section shall survive any expiration or termination of this Agreement. 5.2. Non -Funding by City and/or Trust. (a) City and/or Trust shall have no obligation to provide funds for the payment of Operating Expenses and shall be entitled to receive the Required Trust Distributions and the Ticket Surcharge from Live Nation even when Operating Revenues are insufficient. (b) City and/or Trust will have no funding or other payment obligations with respect to the Facility or its Operating Expenses or its operations other than the costs of (i) Operating Expense Exclusions, (ii) any excess of the Current Ticket Surcharge Amount, and (iii) any other costs which are required to be paid by the City and/or Trust under this Agreement. Live Nation, City and Trust have entered into this Agreement with the expectation and belief that no governmental body will impose any ad valorem taxes upon the Facility nor any sales, income, excise or other taxes upon the Required Trust Distributions (collectively "Tax Obligations"). In the event any governmental body asserts that any Tax Obligations are due for a Fiscal Year or part thereof, then Live Nation shall have the obligation to pay such Tax Obligations as part of the Operating Expenses; provided, however, that notwithstanding anything to the contrary contained in this Agreement, upon any such payment by Live Nation, there shall be a credit to Live Nation in the amount of such payment, which credit shall be applied against the next payable Required Trust Distributions until Live Nation realizes and exhausts the entirety of the credit and in the event that the remaining Required Trust Distributions are insufficient to net out Live Nation's payment of any Tax Obligations, Live Nation shall not be obligated to pay the amount of such insufficiency. It is the intention of the parties that Live Nation's obligation to pay the Tax Obligations is to be completely netted out against the Required Trust Distributions and Live Nation shall not be liable or obligated for any insufficiency. In the event any governmental body asserts that any Tax Obligations are due for a Fiscal Year or part thereof which are in excess of the then current Required Trust Distribution, then City and/or Trust shall have the right, at any time thereafter to terminate this Agreement upon not less than thirty (30) days prior written notice to Live Nation ("Termination Notice"). In the event City and/or Trust does not exercise its termination right for a Fiscal Year with respect to which Tax Obligations were imposed, City and/or Trust shall nevertheless retain its right of termination and may elect to terminate in the event that any Tax Obligations are imposed with respect to any subsequent Fiscal Year (i.e., waiver of termination with respect to any particular Fiscal Year shall not constitute waiver for any subsequent Fiscal Year). If City and/or Trust exercises its termination option, the following shall occur: (a) this Agreement shall terminate upon the date specified by City and/or Trust in the Termination Notice; (b) Live Nation shall pay all amounts owed under this Agreement through the date of termination including all Operating Expenses and the Required Trust Distribution and Ticket Surcharge (including any amounts required to be advanced by Live Nation pursuant to Section 5.1); and (c) City and/or Trust shall pay to Live Nation a "Termination Payment" as hereafter defined. The Termination Payment shall be an amount equal to the unamortized hard and soft costs of the Upgrades as of the Termination Date. The unamortized cost shall be determined by amortizing the total costs (up to but not exceeding $2,000,000) paid or incurred by Live Nation for the Upgrades on a straight line basis (without interest) over the period from the date when the costs were incurred over the then - remaining Term of this Agreement. Live Nation shall be entitled to the Termination Payment only if this Agreement is terminated pursuant to Section 5.2(b) and not if termination occurs for any other - 18 - reason. If the City and/or Trust terminates this Agreement as provided above, then in addition to the payment of the Termination Payment the City and/or Trust shall reimburse to Live Nation that portion of the Required Trust Distribution which has been prepaid by Live Nation for the remainder of the Fiscal Year, with the reimbursement and the payment of the Termination Payment to be made within thirty (30) days after the termination date. Termination under this Section 5.2(b) shall not be deemed a termination at will as set forth in Section 13.1(b). The provisions of this Section regarding the above reimbursement and payment obligations of the City and/or Trust shall survive the termination of this Agreement. 5.3. . Receipts and Disbursements. Live Nation shall establish and maintain in one or more depositories one or more operating, payroll and other bank accounts for the promotion, operation and management of the Facility, as Live Nation shall determine. All Operating Revenues collected by Live Nation from the operation of the Facility shall be deposited into the accounts and all Operating Expenses shall be paid by Live Nation as agent for the City and/or Trust from the accounts. Any amounts remaining in the Operating Accounts upon termination of this Agreement for any reason, after payment of all Operating Expenses, Required Trust Distributions and any Ticket Surcharge and all other amounts that Live Nation is required to pay under this Agreement through the date of expiration or termination shall be promptly paid to Live Nation. 5.4. Alterations. (a) Live Nation shall not make any additions, improvements, or alterations (collectively "Alterations") to the Facility without Executive Director's prior written consent, except, however, that Executive Director's consent shall not be required with respect to (i) the Upgrades to be made by Live Nation pursuant to subparagraph 5.4(b)(ii) below; or (ii) Alterations required by Governmental Requirements; or (iii) nonstructural Alterations that do not in the aggregate cost more than $400,000 for a specific project. The costs of all Alterations made by Live Nation for purposes of complying with Governmental Requirements or that are necessary for the maintenance of the Facility shall be Operating Expenses. The costs of all other Alterations made by Live Nation shall be borne solely by Live Nation from its own funds and shall not constitute Operating Expenses. Executive Director shall not unreasonably withhold, condition or delay his/her its consent to any Alterations except that Executive Director may withhold its consent in its sole and absolute discretion with respect to any Alterations that change the structural elements or life-saving systems or that affect the exterior of the Facility. Notwithstanding anything to the contrary, however, Live Nation shall not under any circumstances be permitted to make any Alterations that: (i) adversely affect the structural portions of the Facility, or (ii) fail to comply with any applicable Governmental Requirements, or (iii) interfere in any material manner with the proper functioning of any mechanical, electrical, plumbing, HVAC, life safety or other systems, facilities or equipment of the Facility. (b) Live Nation will perform the following work at its sole cost and expense and not as part of Operating Expenses: (i) Live Nation covenants and agrees to perform the remodeling, upgrade and improvements to the Facility as more particularly described in Exhibit "C" (such work is herein referred to as the "Upgrade" or "Upgrades") pursuant to the following terms: -19- Concept plans shall be submitted by Live Nation to Executive Director for his/her consent (not to be unreasonably withheld, conditioned, or delayed) not later than ninety (90) days after the Occupation Date of this Agreement (whereupon same shall be deemed a part hereof) (the "Concept Plans"). The Concept Plans shall be consistent with Exhibit "C" in all respects and with the purposes, rights and obligations under this Agreement and shall generally reflect, but not necessarily to scale and without the level of detail and specifics found in final plans and specifications, the overall anticipated scope of Upgrades to be constructed by Live Nation. Prior to submitting an application for a building permit for Upgrades, Live Nation shall develop or cause to be developed construction plans and specifications, which shall be consistent with the Concept Plans approved by Executive Director (collectively, the "Plans"). The Plans shall include all of the specific capital improvements described on Exhibit "C," all of which Live Nation shall complete on or before January 1, 2009, subject to the terms of this subparagraph 5.4(b)(i). Live Nation shall expend not less than $2,000,000, including both hard costs and soft costs and the costs of any performance bonds, whether a direct or indirect cost to Live Nation, (the "Cap") to complete the Upgrades; provided, however, Live Nation agrees to complete the Upgrades in the order of priority shown on Exhibit "C." Accordingly, the Cap shall first be expended towards Priority 1 until completed, then Priority 2 until completed, etc. Notwithstanding anything to the contrary, upon achieving the Cap, Live Nation will be deemed to have satisfied its obligations hereunder with respect to the Upgrades even if all Upgrades have not then been completed. The parties agree that prosecution of the Upgrades may proceed in phases. calculated to minimize interference with portions of the Facility so as to allow the continued use of the Facility for the permitted uses throughout the prosecution of the Upgrades as Live Nation shall determine, in its sole discretion, from time to time. Live Nation will obtain the approval of final Plans by any and all federal, state, municipal and other governmental authorities, offices and departments having jurisdiction in the matter, as required and necessary. Live Nation will complete all Upgrades in a good and workmanlike manner and in accordance with all applicable Governmental Requirements. Nothing contained herein shall relieve Live Nation from its obligation of performing the Upgrades as required by this Agreement. Any general contractor performing any Upgrades shall not have been subject to disbarment by the City. (ii) In the event Live Nation has timely (e.g. within ninety (90) days after the Occupancy Date) applied for and diligently attempted to obtain all Upgrades Consents but has failed to obtain the Upgrades Consents on or before November 1, 2008, then the Required Trust Distribution shall abate and not accrue or be payable for the period of November 1, 2008 through the date that Live Nation obtains all such Upgrade Consents. Further, in the event that such failure to obtain the Upgrade Consents continues through January 31, 2009, Live Nation will have the right to terminate this Agreement and this Agreement shall be terminated as of the date that Live Nation provides its written notice of termination; provided, however, that the Trust shall have the right to attempt to have the outstanding Upgrade Consents issued within thirty (3 0) days of the date of Live Nation's written notice of termination and if the outstanding Upgrade Consents are issued within thirty (30) days of the date of Live Nation's written notice of termination, then Live Nation's notice of termination shall be automatically revoked and of no force or effect. (c) Live Nation shall obtain all required permits for Upgrades and all other Alterations performed by, through or under Live Nation and shall perform or cause to be -20- performed such Alterations in compliance with all Governmental Requirements. Under no circumstances shall Live Nation make any Alterations which incorporate any Hazardous Substances including, without limitation, asbestos -containing construction materials, into the Facility. Any request for Executive Director's consent to any proposed Alterations by, through or under Live Nation shall be made in writing and shall contain plans or other written materials describing the work in detail reasonably satisfactory to Executive Director, provided that architectural plans shall not be required unless required for the issuance of a building permit. Executive Director shall provide or deny consent within ten (10) business days following receipt of Live Nation's written request, the failure to provide or deny consent within such ten (10) business day period shall be deemed a consent. Should the work proposed by Live .Nation and consented to by Executive Director modify the basic floor plan of the Facility and the building permit therefore require architectural plans, then Live Nation shall, at its expense, furnish the Trust with as -built drawings and CAD disks for such work. All Alterations (including without limitation, all Upgrades constructed pursuant to subparagraph (b)) made or affixed to the Facility (excluding moveable trade fixtures, equipment, personal property and furniture) shall become the property of the Trust and shall be surrendered with the Facility at the expiration or termination of this Agreement. With respect to Alterations costing in excess of $200,000 Executive Director may require Live Nation to obtain a payment bond for the work. 6. Records, Audits and Reports. 6.1. Records and Audits. (a) Live Nation shall keep full and accurate accounting books and records relating to all Operating Revenues and Operating Expenses, and accurate records of all tickets, and accurate records of the number of Events held, all in accordance with generally accepted accounting principles. Live Nation shall give the Trust's authorized representatives access to such books and records during reasonable business hours and upon reasonable advance notice. All books and records shall be made available on-site at the Facility, at Live Nation's offices in Miami, Miami Beach or Ft. Lauderdale or electronically, as determined by Live Nation; but in any event in accordance with all Legal Requirements. Live Nation shall keep and preserve for at least three (3) years following each Fiscal Year or for as long as such records are required to be retained pursuant to Florida Public Records Law, all sales slips, rental agreements, purchase order, sales books, credit card invoices, bank books or duplicate deposit slips, and other evidence of Operating Revenues and Operating Expenses for such period. In addition, on or before March 31 following each Fiscal Year (commencing March 31, 2010), Live Nation shall furnish to the Trust a line item (i.e., by categories) statement of Operating Costs and Operating Revenues (and profit or loss) for the Facility for the preceding Fiscal Year and including the number of tickets, and the number of Events held, prepared in accordance with generally accepted accounting principles certified as accurate by Live Nation's Chief Accounting Officer or Chief Financial Officer. (b) Executive Director shall have the right at any time, and from time to time, to cause independent auditors or Trust's own accountants or auditors to audit all of the books of Live Nation relating to Operating Revenues; Operating Expenses, the records of all tickets sold which are subject to the Ticket Surcharge, and the records of the number of Events held, including, without limitation, cash register tapes, credit card invoices, duplicate deposit tapes, -21 - and invoices. No costs incurred by the Trust in conducting such audit shall be considered an Operating Expense. The Trust's right to have an audit made with respect to any Fiscal Year and Live Nation's obligation to retain the above records shall expire three (3) years after Live Nation's statement for such Fiscal Year has been delivered to the Trust. 6.2. Annual Plan. Commencing March 1, 2010, Live Nation shall provide to the Trust on or before March 31 of each year, an annual management plan. The annual plan shall include information regarding Live Nation's anticipated operations for such Fiscal Year, including planned operating and maintenance activities, anticipated capital improvements and capital equipment purchases and an anticipated budget therefore, and planned equipment and furnishings purchases. Such annual plan shall only be an estimate of activity and Live Nation shall have the right from time to time to make any changes it deems necessary or appropriate to any such annual plan. 7. Employees. 7.1. Live Nation Employees. (a) Live Nation shall select, train and employ at the Facility such number of employees as is necessary or appropriate for Live Nation to satisfy its responsibilities hereunder; Live Nation shall recruit employees consistent with standards employed at comparable facilities operated by Live Nation on the Effective Date, and Live Nation shall have authority to hire, terminate and discipline any and all personnel employed by Live Nation working at the Facility. Live Nation shall designate a representative that the Executive Director, or his designee, may call from time to time to discuss Live Nation's employees and their performance of the services hereunder or the performance of Live Nation hereunder. (b) The general manager and/or any and all other Live Nation employees at the Facility shall not for any purpose be considered to be employees of the City and/or the Trust, and Live Nation shall be solely responsible for their supervision and daily direction and control and for setting and paying as an Operating Expense their compensation (and federal income tax withholding) and any employee benefits. 7.2. No Solicitation or Employment by City and/or Trust. During the period commencing on the date hereof and ending one (1) year after the expiration or termination of this Agreement, except with Live Nation's prior written consent, the City and/or the Trust will not, for any reason, solicit for employment, or hire, any of the senior management personnel employed by Live Nation at the Facility, including, without limitation, the general manager, director -level employees and department heads (including, without limitation, the food and beverage manager). In addition to any other remedies which Live Nation may have, specific performance in the form of injunctive relief shall be available for the enforcement of this provision. 8. Indemnification and Insurance. 8.1. Indemnification. -22- (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; (ii) any default by Live Nation under this Agreement; or (iii) any other claim arising, directly or indirectly, from the operation or management of 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 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) The provisions of this Section shall survive expiration or termination of this Agreement. 8.2. Insurance. (a) 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". 8.3. General Requirements. All insurance provided for in this Article 8 shall be in such form and shall be issued by such responsible insurance companies licensed to do business in the State of Florida with companies having a rating of A-7 or better in Best's Insurance Guide as published by A.M. Best and Company. Such insurance may be carried under blanket policies that include other properties so long as the policies provide separate coverage for the Facility. Upon the execution of this Agreement, and, thereafter, not less than thirty (30) days prior to the expiration dates of the expiring policies required pursuant to this Article 8, certificates or renewal certificates, as the case may be, bearing notations evidencing the payment of premiums or accompanied by other evidence reasonably satisfactory to Trust of such payment, shall be delivered by Live Nation to Trust. All policies of insurance provided for in Section 8.2 shall name City and the Trust as insured parties and loss payees as their interest may appear. Each policy of insurance required to be carried pursuant to the provisions of Article 8 shall contain (i) an agreement by the insurer that such policy shall not be cancelled or denied renewal without at least thirty (30) days prior written notice to the Trust, and (ii) a waiver of subrogation by the insurer. All insurance Iprocured by Live Nation in accordance with the requirements of this Agreement shall be primary over any insurance carried by the Trust and not require contribution by the Trust. 8.4. Certain Other Insurance. If any of the Trust Agreements with third parties consist of agreements with independent contractors to provide services in respect of the Facility, the Trust shall use reasonable efforts to cause such contractors to name Live Nation as an additional -23 - 10. Assignment; Affiliates. 10.1. Assignment. (a) Except as otherwise specifically provided in this Section, Live Nation may not voluntarily or by operation of law, assign, encumber, pledge or otherwise transfer all or any part of Live Nation's interest in this Agreement (except that Live Nation may encumber, pledge or otherwise transfer its proceeds and distributions under this Agreement and may encumber, pledge or otherwise transfer its interests under this Agreement provided that no other person or entity may operate or manage the Facility as a result of any such encumbrance, pledge or other transfer) or subcontract its management duties hereunder. Any attempt by Live Nation to assign all or any part of its interest and any attempt to subcontract its management duties hereunder (except as otherwise specifically provided in this Section) shall be void and of no force or effect. In the event of any assignment, transfer, encumbrance or subcontract, Live Nation shall nevertheless remain liable for all obligations hereunder and the transferee shall be jointly and severally liable for all obligations thereafter arising under this Agreement. Any transfer of a controlling interest in Live Nation (whether in a single transaction or multiple transactions) shall be considered an assignment of this Agreement. Live Nation specifically recognizes that City and/or Trust selected Live Nation to be the manager of the Facility as a result of the City's and/or Trust's evaluation of Live Nation's specific qualifications and experience in operating similar facilities. (b) Notwithstanding anything to the contrary contained herein, Live Nation shall have the right to assign or transfer this Agreement without the necessity of City's and/or Trust's consent to an Affiliate that has Tangible Net Worth of not less than Five Million Dollars ($5,000,000), provided that Live Nation and Affiliate execute and deliver to City and Trust an agreement pursuant to which the Affiliate assumes all obligations under this Agreement arising subsequent to the assignment or transfer and Live Nation acknowledges that it remains jointly and severally liable for all such obligations. (c) Live Nation shall have the right to assign or transfer this Agreement to any of the following (each a "Transferee"): (i) a successor entity arising from the purchase of, or merger or consolidation with Live Nation; or (ii) an entity that purchases substantially all of the assets of Live Nation, provided in either case all of the following conditions are met: 1. The Transferee has a Tangible Net Worth in excess of $5,000,000; 2. simultaneous with the transfer, the Transferee is acquiring not less than five (5) other live entertainment venues owned or operated by Live Nation or its Affiliates; -25- 3. The Transferee has not less than five (5) years' experience in operating similar live entertainment venues internationally, nationally or regionally (meaning operating not less than five (5) live entertainment venues in multiple states or countries during such five (5) year period); 4. Live Nation and the Transferee shall execute an instrument pursuant to which the Transferee assumes all obligations thereafter arising and Live Nation acknowledges its joint and several liability for all such obligations; 5. In Executive Director's reasonable determination, the Transferee has a good reputation for operating venues similar to the Facility and is an appropriate manager and operator for the Facility. Executive Director shall advise Live Nation in writing whether or not this condition five (5) has been met within fifteen (15) business days after having received such information as Executive Director shall reasonably request to make the determination. If Executive Director does not advise Live Nation that the Transferee is unacceptable within such fifteen (15) business day period, tinie being of the essence, this condition five (5) shall be deemed satisfied. In the event Executive Director. advises Live Nation in writing ("Executive Director's Notice") that this condition five (5) has not been met and, if conditions 1, 2 and 3 have been met, then and in that event, Live Nation shall have the right to terminate this Agreement by written notice ("Termination Notice") to Executive Director given within thirty (30) days after the date of Executive Director's Notice, time being of the essence. Live Nation's failure to deliver the Termination Notice within thirty (30) days after Executive Director's Notice shall irrevocably constitute Live Nation's waiver, of its right to terminate. If Live Nation timely delivers its Termination Notice, then and in that event, all of the following shall apply: (A) Live Nation shall continue as operator and manager under this Agreement and shall pay all amounts and perform all obligations hereunder until six (6) months thereafter or until City and/or Trust advises Live Nation to cease its operations (the earlier of such dates "Termination Date"); (B) Live Nation shall vacate the Facility and return it to Trust on the Termination Date and all provisions of Section 13.2 shall apply; provided, however, Live Nation shall not be entitled to a return of any prepaid Required Trust Distributions (it being agreed that such prepaid amounts shall constitute a termination payment to Trust). (d) The provisions of subparagraph (a) above shall not prevent Live Nation in the performance of its management duties hereunder to grant licenses and concessions and rental -26- insured under any insurance maintained by such contractors pursuant to the terms of such Trust Agreements and in such event to deliver to Live Nation promptly after request therefore a certified copy of the policy and a certificate evidencing the existence thereof. In addition, if Live Nation enters into any agreements during the term of this Agreement with any independent contractors for the provision of services hereunder, Live Nation shall require the contractors to name Live Nation, the City and the Trust as additional insureds under any insurance required by Live Nation thereunder and to deliver to Live Nation and the Trust prior to the performance of such services a certificate evidencing the existence thereof. 9. Ownership of Assets. 9.1. Ownership. The ownership of the Facility and all buildings and real estate, 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. 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 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. 9.2. City and/or Trust Obligations. Except as otherwise set forth in this Agreement, throughout the Term, the City and/or Trust will maintain full beneficial use and ownership of the Facility and will pay, keep, observe and perform all payments, terms, covenants, conditions and obligations under any bonds, debentures or other security agreements or contracts relating to the Facility to which the City and/or Trust may be bound. Furthermore, the City and/or Trust (in its proprietary capacity) shall allow Live Nation unrestricted egress and ingress to the Facility. Notwithstanding anything to the contrary contained herein, in order to promote the most profitable operation of the Facility, City and/or Trust hereby acknowledges and agrees that Live Nation will have exclusive control over the use of the Facility during the Term, subject to the conditions and limitations of this Agreement. -24- agreements for Events and entering into a concessions agreement for the concession operations at the Facility. 10.2. Live Nation Affiliates. (a) Transactions with Affiliates. In connection with its management responsibilities hereunder relating to the purchase and/or procurement of equipment, materials, supplies, inventories, and services for the Facility, Live Nation shall have the right, but not the obligation, to purchase and/or procure from, or otherwise transact business with, an Affiliate of Live Nation. (b) Conflicts of Interest. The City and/or Trust acknowledge that Live Nation manages other public assembly facilities which may, from time to time, be in competition with the Facility. As a material part of the consideration for Live Nation entering into this Agreement, City and Trust acknowledge and agree that (i) Live Nation's management of or involvement with competing facilities will not be a conflict of interest or breach of Live Nation's duties hereunder, and (ii) Live Nation may operate competing businesses or activities (including, without limitation, providing services as are required under this Agreement) and City and the Trust waive any rights to object thereto. Notwithstanding anything to the contrary contained in this Agreement, City and the Trust hereby acknowledge and agree that to the maximum extent permitted bylaw, City and the Trust waive any express or implied duty of loyalty or care arising out of an agency relationship, and in the event the foregoing waiver is not allowed by law or is limited by law City and the Trust hereby agree that such expressed or implied duties are hereby modified to the maximum extent allowed by law to allow for Live Nation to compete in any business activity or venture without a duty to City and/or the Trust of loyalty or care. 11. Laws and Permits. 11.1. Permits, Licenses, Taxes and Liens. Live Nation shall procure any and all permits and licenses required for the performance of its duties hereunder and for the operation of the Facility and for the conduct of Events in Facility. City and/or Trust in its proprietary capacity shall cooperate to the extent possible with Live Nation in applying for such permits and licenses. Live Nation shall deliver copies of all such permits and licenses to the Executive Director. Live Nation shall pay promptly, out of the Operating Revenues, all sales taxes, excises, license fees and permit fees of whatever nature arising from its operation, promotion and management of the Facility: Live Nation shall not permit any mechanic's or materialman's or any other lien to become attached to the Facility, or any part or parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman, so long as the work, labor or material was provided by, through, or under Live Nation. Live Nation shall cause all obligations for payment for work performed on services furnished to the Facility by, through or under Live Nation to be paid as and when due. 11.2. Government Compliance. Subject to the terms of this Agreement, Live Nation, its officers, agents and employees shall comply with all Governmental Requirements with respect to the 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 -27- 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. 11.3. No Discrimination in Employment; Affirmative Action. In connection with the performance of work under this Agreement, Live Nation shall not refuse to hire, discharge, refuse to promote or demote, or to discriminate in matters of compensation against, any person otherwise qualified, solely because of race, color, religion, gender, age, national origin, military status, sexual orientation, marital status or physical or mental disability. 12. Events of Default and Remedies. 12.1. Live Nation's Defaults. The occurrence of any one or more of the following events shall constitute an Event of Default by Live Nation. (a) The failure by Live Nation to make any payment required to be made by Live Nation as and when due, which continues for more than ten (10) business days after written notice from Trust (including without limitation any Required Trust Distributions and Ticket Surcharge (whether to be paid pursuant to Sections 4.2 and 4.3 or 5.1); (b) The failure or inability by Live Nation to observe or perform any of the covenants or provisions of this Agreement to be observed or performed by Live Nation, other than as specified in subparagraph 12.1(a), above, which continues for more than thirty (3 0) days after written notice from Executive Director; provided, however, if the nature of the failure is such that more than such period is reasonably required for its cure, then Live Nation shall not be deemed to have committed an Event of Default if Live Nation commences the cure within such period and thereafter diligently pursues the cure to completion and actually completes the cure within an additional sixty (60) day period; (c) Except as permitted pursuant to Section 10.1 of this Agreement, the assignment, encumbrance, pledge, or transfer of this Agreement, whether voluntarily or by operation of law, or any subcontract of Live Nation's duties hereunder, which continues for more than fifteen (15) business days after written notice thereof from Executive Director; (d) Live Nation's failure to provide and maintain the letter of credit required by Section 14.2 hereof during any period in which Live Nation has not satisfied the Net Worth Requirement set forth in Section 14.1 if such failure continues for more than thirty (30) days after written request from Executive Director that the letter of credit be provided; (e) (i) The making by Live Nation of any general assignment for the benefit of creditors; (ii) the filing by or against Live Nation of a petition to have Live Nation adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts discharged or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Live Nation, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Live Nation's assets located at the Facility or of Live Nation's interest in this Agreement, if possession is not restored to Live Nation within sixty (60) days; or (iv) the attachment, execution or other judicial seizure -28- of substantially all of Live Nation's assets located at the Facility or of Live Nation's interest in this Agreement, where the seizure is not discharged within sixty (60) days. 12.2. City's and/or Trust's Remedies. If an Event of Default by Live Nation occurs, then in addition to any other remedies available to City and/or the Trust, City and/or the Trust may exercise the following remedies: (a) City and/or the Trust may terminate this Agreement by written notice to Live Nation, in which case this Agreement shall terminate and Live Nation shall immediately surrender possession of the Facility to the Trust. Upon termination, the City and/or the Trust shall be entitled to recover from Live Nation: (1) Operating Expenses that are due and payable and remain unpaid through the date of termination, (2) all Required Trust Distributions and Ticket Surcharges that are due and payable and remain unpaid through the date of termination, (3) all other amounts that Live Nation is required to pay under this Agreement through the date of termination, plus (4) as agreed and liquidated damages ("Liquidated Damages"), a sum equal to all Required Trust Distributions that would have been received by City and/or the Trust for the period from the date of termination through the end of the Term (or, if the renewal option has been exercised, through the end of the Renewal Term) if the termination had not occurred, reduced, however, to present value by applying a 4% discount rate. Live Nation, City and/or the Trust recognize that the City's and/or the Trust's damages in case of any such termination will be substantial but are incapable of exact ascertainment and they have agreed that such Liquidated Damages are fair and reasonable and not a penalty. (b) City and/or the Trust may seek specific performance of any of Live Nation's obligations hereunder or seek injunctive relief; (c) City and/or the Trust may exercise any other remedies available at law or in equity. The various rights and remedies reserved to City and/or the Trust in this Agreement or otherwise shall be cumulative and, except as otherwise provided by Florida law, City and/or the Trust may pursue any or all of its rights and remedies at the same time. .12.3. City's and/or Trust's Defaults. The occurrence of any one or more of the following events shall constitute an Event of Default by City and/or Trust: (a) The failure by City and/or Trust to make any payment required to be made by City and/or rust as and when due, which continues for more than ten (10) business days after written notice of default from Live Nation; (b) The failure or inability by City and/or Trust to observe or perform any of the covenants or provisions of this Agreement to be observed or performed by City and/or Trust, other than as specified in subparagraph 12.3(a) above, which continues for more than thirty (30) days after written notice from Live Nation; provided, however, if the nature of the failure is such that more than such period is reasonably required for its cure, then City and/or Trust shall not be deemed to have committed an Event of Default if City and/or Trust commences the cure within such period and thereafter diligently pursues the cure to completion and actually completes the .cure within an additional sixty (60) days. SUM 12.4. Live Nation's Remedies. If an Event of Default by City and/or Trust occurs, then Live Nation may exercise either of the following remedies: (a) Live Nation may terminate this Agreement by written notice to City and/or Trust, in which case this Agreement shall terminate and Live Nation shall immediately surrender possession of the Facility to the Trust. Upon termination, Live Nation shall be entitled to recover from City and/or the Trust all amounts owed by City and/or the Trust to Live Nation as of the termination date and the provisions of Section 13.2 shall apply; or (b) Live Nation may exercise any other remedies available at law or in equity. The various rights and remedies reserved to Live Nation in this Agreement shall be cumulative and, except as otherwise provided by Florida law, Live Nation may pursue any of its rights and remedies at the same time. 12.5. Late Payments. Any payment owed to City and/or the Trust or Live Nation under this Agreement including, without limitation, any Required Trust Distribution (whether pursuant to Section 4.2 or 5.1) or Ticket Surcharge (whether pursuant to Section 4.3 or 5.1) or Liquidated Damages payment (pursuant to 12.2) or any other payment owed to City and/or the Trust or Live Nation under this Agreement that is not received by City and/or the Trust or Live Nation within ten (10) days following notice of such amount being due shall bear interest at the rate of 15% per annum ("Default Rate") from the date due until fully paid. 13. Termination. 13.1. City and/or Trust's Right to Termination (a) Due to Termination Obligations. The City and/or Trust shall have the right to terminate this Agreement pursuant to Section 5.2(b) due to the imposition of Termination Obligations. (b) At Will. The City and/or Trust shall have the right at anytime to terminate this Agreement at will upon at least ninety (90) days prior written notice (the "Termination Notice"); provided, that the effectiveness of such termination and the rights of the City and Trust under this subparagraph shall be expressly conditioned on and subject to (i) the effective date of such termination not being prior to any Event for which Live Nation has already booked the Facility, and (ii) the City and/or Trust paying to Live Nation simultaneously with the delivery of the Termination Notice the following sum: (A) if the termination is effective during the period from the Effective Date through January 1, 2012, the sum of $5,000,000, (B) if the termination is effective during the period from January 2, 2012 through January 1, 2014, the sum of $4,000,000, (C) if the termination is effective during the period from January 2, 2014 through January 1, 2016, the sum of $3,000,000, (D) if the termination is effective during the period from January 2, 2016 through December 31, 2028, the sum of $2,000,000; the foregoing sums shall not be prorated and are to be lump sums regardless of when the payment obligation would occur during the applicable period. -30- 13.2. Effect of Termination. In the event this Agreement expires or is terminated for any reason, (a) all Operating Expenses, Required Trust Distributions, Ticket Surcharges, and all other obligations for the period up to the date of expiration or termination shall be paid using funds on deposit in the account(s) described in Section 5.3 and to the extent such funds are not sufficient, Live Nation shall pay all such amounts pursuant to Section 5.1. After all amounts referenced herein have been paid, Live Nation may retain all remaining Operating Revenues. Upon the expiration of this Agreement or a termination for any reason, all further obligations of the parties hereunder shall terminate except for the obligations which for all periods up to the date of expiration or termination and such other obligations as are stated to survive or be performed after such expiration or termination. Live Nation shall be entitled to a Termination Payment only if termination occurs pursuant to Section 5.2(b). Further, if this Agreement is terminated for any reason other than a default by Live Nation or Section 10.1(c)5, the City and/or Trust shall also reimburse to Live Nation that portion of the Required Trust Distribution which has been prepaid by Live Nation for the remainder of the Fiscal Year in which the termination occurs. All of the foregoing reimbursement and the payment obligations are to be made within thirty (30) days after the Termination Date. The provisions of this Section regarding the above reimbursement and payment obligations of the City and/or Trust shall survive the termination of this Agreement. 13.3. Surrender of Facility. Upon termination of this Agreement (termination shall, for all purposes in this Agreement, include termination pursuant to the terms of Section 12 or pursuant to any other provision of this Agreement and any expiration of the Term), Live Nation shall surrender and vacate the Facility upon the effective date of such termination. The Facility and (as required under this Agreement) all equipment and furnishings shall be returned to the Trust in a good and clean condition consistent with other similar facilities operated by Live Nation and its Affiliates as of the Effective Date and in compliance with all Governmental Requirements, ordinary wear and tear, and casualty loss excepted, 14. Net Worth Requirement, Security. 14.1. Net Worth Requirement. Live Nation covenants and agrees that during the entire Term, Live Nation shall at all times maintain a Tangible Net Worth of not less than Five Million Dollars ($5,000,000). On or before March 31 of each Fiscal Year, Live Nation shall cause its Chief Financial Officer or Chief Accounting officer to deliver to the Trust a certificate ("Net Worth Certificate") addressed to the Trust certifying that Live Nation's Tangible Net Worth does or does not exceed Five Million Dollars ($5,000,000). The Trust shall have the right at any time within ninety (90) days after receipt of the Net Worth Certificate to have its accountant or designees review the financial statement and other records of Live Nation at Live Nation's headquarters to confirm the accuracy of the Net Worth Certificate (and Live Nation shall cooperate with any such review and provide any information reasonably requested by such accountants or designees). The Trust's accountants or designees shall not keep copies of any of " Live Nation's financial statements or records and any personal notes taken shall comply to the extent necessary to maintain the statutory exemption for "personal notes" under Chapter 119, Florida Statutes, as same may be amended from time to time). In the event that the Net Worth Certificate reflects that Live Nation's Tangible Net Worth is less than Five Million Dollars ($5,000,000) or in the event Executive Director sends written -31 - notice to Live Nation that the Trust's accountants or designees have been unable to confirm that Live Nation's Tangible Net Worth exceeds Five Million Dollars ($5,000,000), then, in either such case, a "Net Worth Deficiency" shall exist. Within thirty (30) days following the occurrence of a Net Worth Deficiency and written request from Executive Director that a letter of credit be provided, Live Nation shall obtain and deliver to Executive Director a letter of credit in full compliance with Section 14.2 below, failing which an Event of Default by Live Nation shall have occurred under this Agreement and the Trust may exercise all remedies available to the Trust under Section 12.2. 14.2. Security. Upon the occurrence of a Net Worth Deficiency, Live Nation shall, within thirty (30) days after demand or request by Executive Director, deliver to the Trust a clean, irrevocable letter of credit (the "Letter of Credit") established in City's and the Trust's favor an amount equal to One Million Dollars ($1,000,000) (the "Letter of Credit Amount"), issued by a federally insured banking or lending institution with a bond rating substantially equal to that of JP Morgan Chase or Bank of America as of the date of this Agreement. The Letter of Credit shall specifically provide for partial draws and shall by its terms be transferable by the beneficiary thereunder. If Live Nation fails to make any payment or other charges due to City and/or the Trust under the terms of this Agreement or otherwise defaults hereunder beyond any applicable notice and cure period, Executive Director, at his or her option, may make a demand for payment under the Letter of Credit in an amount equal to the amounts then due and owing to City and/or the Trust under this Agreement. In the event that City and/or the Trust draws upon the Letter of Credit, Live Nation shall present to the Trust a replacement Letter of Credit in the full Letter of Credit Amount satisfying all of the terms and conditions of this paragraph within twenty (20) calendar days after receipt of notice from City and/or the Trust of such draw. Live Nation's failure to do so within such twenty (20) calendar day period will constitute a default hereunder (Live Nation hereby waiving any additional notice and grace or cure period), and upon such default City and/or the Trust shall be entitled to immediately exercise all rights and remedies available to it under Section 12.2. In the event that the Letter of Credit has an expiration date earlier than the expiration date of this Agreement and Live Nation has not presented to the Trust a replacement Letter of Credit which complies with the terms and conditions of the Agreement on or before five (5) business days prior to the expiration date of any such Letter of Credit then held by City and/or the Trust, then City and/or the Trust shall have the right (exercisable by Executive Director) to draw upon the Letter of Credit then held by City and/or the Trust and any such amount paid to City and/or the Trust by the issuer of the Letter of Credit shall be held by City and/or the Trust as security for the performance of Live Nation's obligations hereunder. Any interest earned on such amounts shall be the property of Live Nation. City's and/or the Trust's election to draw under the Letter of Credit and to hold the proceeds of the drawing under the Letter of Credit shall not be deemed a cure of any default by Live Nation hereunder and shall not relieve Live Nation from its obligation to present to the Trust a replacement Letter of Credit which complies with the terms and conditions of this Agreement. If Live Nation subsequently provides such replacement Letter of Credit to the Trust, then the Trust shall deliver to Live Nation the proceeds of the City's and/or the Trust's prior draws (to the extent not previously applied by City and/or the Trust pursuant to the terms of this Agreement) within five (5) business days after receipt of the replacement Letter of Credit. Live Nation acknowledges that any proceeds of a draw made under the Letter of Credit and thereafter held by City and/or the Trust may be used by City and/or the Trust to cure or satisfy any obligation of Live Nation under this Agreement as if such proceeds were instead proceeds of a -32- draw made under a Letter of Credit that remained outstanding and in full force and effect at the time such amounts are applied by City and/or the Trust to cure or satisfy any such obligation of Live Nation. Without limiting the generality of the foregoing, Live Nation expressly acknowledges and agrees that at the end of the Term (whether by expiration or earlier termination hereof), and if Live Nation is not then in default under this Agreement beyond any applicable notice and cure periods and has paid all amounts required hereby, City and/or the Trust shall return to Live Nation any remaining and unapplied proceeds of any prior draws made under the Letter of Credit. 15. Miscellaneous 15.1. Venue/Waiver of Jury Trial/Attorney's Fees. 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 principals 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, TRUST AND LIVE NATION 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. If litigation, including any subsequent appeal(s), is instituted between the parties with respect to this Agreement, each party shall bear its own attorney's fees and costs. 15.2. No Partnership or Joint Venture. Nothing herein contained is intended or shall be construed in any way to create or establish the relationship of partners or a joint venture between the City, the Trust and Live Nation. None of the officers, agents or employees of Live Nation shall be or be deemed to be employees of the Cit; and/or the Trust for any purpose whatsoever. 15.3. Entire Agreement. This Agreement and all Exhibits attached hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, proposals or other expressions of intent with respect thereto, including, without limitation, that certain Request for Letters of Interest RFLI No. 44014 issued August 21, 2007 and Live Nation's subsequent responses and presentations, including, without limitation, Live Nation's response dated September 19, 2007. The Exhibits attached hereto are incorporated in to and made a part of this Agreement.. No other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the parties hereto with respect to the subject matter hereof. 15.4. Written Amendments. This Agreement shall not be altered, modified or amended in whole or in part, except in writing executed by each of the parties hereto. 15.5. Force Majeure. (a) No party will be liable or responsible to the other party for any delay, damage, loss, failure, or inability to perform caused by "Force Majeure" if notice is provided to the other party within ten (10) calendar days of date on which such party gains actual knowledge of the event of "Force Majeure" that such party is unable to perform. The term "Force Majeure" as used in this Agreement means the following: an act of God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics, landslides, lightening storms, earthquakes, -33 - floods, storms, washouts, civil disturbances, explosions, and any other cause whether of the kinds specifically enumerated above or otherwise which is not reasonably within the control of the party whose performance is to be excused and which by the exercise of due diligence could not be reasonably prevented or overcome (it being acknowledged that under no circumstances shall a failure to pay amounts due and payable hereunder be excusable due to a Force Majeure). (b) No party hereto shall be under any obligation to supply any service or services if and to the extent and during any period that the supplying of any such service or services or the provision of any component necessary therefore shall be prohibited or rationed by any Governmental Requirement. (c) In the event of a substantial damage to or destruction of the Facility by reason of fire, storm or other casualty or other regulatory action that, in either case, shall render a substantial part of the Facility inoperable for a period of at least 30 months or in Live Nation's reasonable opinion the Facility can no longer be operated in a reasonably profitable manner as a result of the damages or action for a period of at least 30 months from the happening of the fire or other casualty, either party may terminate this Agreement upon written notice to the other. Upon any such termination, Live Nation shall receive an amount of all insurance proceeds as applicable that the Trust receives for the Facility. Termination under this Section 15.5 (c) shall not be deemed a termination at will as set forth in Section 13.1(b). Live Nation's obligations shall be abated during the period which the Facility is inoperable as a result of fire or other casualty. (d) Live Nation may suspend performance required under this Agreement, without any further liability, in the event of any act of God or other occurrence, which act or occurrence is of such effect and duration as to effectively curtail the use of the Facility so as to effect a substantial reduction in the need for the services provided by Live Nation for a period in excess of 180 days; provided, however, that for the purposes of this subsection, Live Nation shall have the right to suspend performance retroactively effective as of the date of the use of the Facility was effectively curtailed. "Substantial reduction in the need for these services provided by Live Nation" shall mean such a reduction as shall make the provision of any services by Live Nation economically impractical (but under no circumstance shall failure to pay amounts due hereunder be excusable as Force Majeure). 15.6. Binding Upon Successors and Assigns; No Third -Party Beneficiaries. (a) This Agreement and the rights and obligations set forth herein shall inure to the benefit of, and be binding upon, the parties hereto and each of their respective permitted successors and permitted assigns. (b) This Agreement shall not be construed as giving any person, other than the parties hereto and their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any of the provisions herein contained, this Agreement and all provisions and conditions hereof being intended to be, and being, for the sole and exclusive benefit of such parties and their successors and permitted assigns and for the benefit of no other person or entity. 15.7. Notices. Any notice, consent or other communication given pursuant to this Agreement will be in writing and will be effective either (a) when delivered personally to the party for whom intended, (b) on the second business day following mailing by an overnight courier service that is generally recognized as reliable, or (c) on the fifth day following mailing SEE by certified or registered mail, return receipt requested, postage prepaid, in any case addressed to such party as set forth below or as a party may designate by written notice given to the other party in accordance herewith. To the City: and to City of Miami 3500 Pan American Drive Miami, Florida 33133 Attn: Pedro G. Hernandez, City Manager City of Miami 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130 Attn: Julie O. Bru, City Attorney To the Trust: Bayfront Park Management Trust 301 N. Biscayne Blvd. Miami, Florida 33132 Attn: Timothy F. Schmand, Executive Director To Live Nation: and to: Live Nation Worldwide, Inc. 9348 Civic Center Drive Beverly Hills, California 90210 Attn: President Live Nation Worldwide, Inc. 2000 West Loop South, 13`h Floor Houston, Texas 77027 Attn: James Tucker 15.8. Section Headings and Defined Terms. The headings contained herein are for reference purposes only and shall not in any way affect the meaning and interpretation of this Agreement. The terms defined herein and in any agreement executed in connection herewith include the plural as well as the singular and the singular as well as the plural, and the use of masculine pronouns shall include the feminine and neuter. Except as otherwise indicated, all agreements defined herein refer to the same as from time to time amended or supplemented or the terms thereof waived or modified in accordance herewith and therewith. -35- 15.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original copy of this Agreement, and all of which, when taken together, shall be deemed to constitute but one and the same agreement. 15.10. Severability. The invalidity or unenforceability of any particular provision, or part of any provision, of this Agreement shall not affect the other provisions or parts hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions or parts were omitted. 15.11. Non -Waiver. A failure by either party to take any action with respect to any default or violation by the other of any of the terms, covenants, or conditions of this Agreement shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of such party to act with respect to any prior, contemporaneous, or subsequent violation or default or with respect to any continuation or repetition of the original violation or default. 15.12. Certain Representations and Warranties. (a) The City and the Trust represent, warrant, and covenant to Live Nation the following: (i) City and the Trust have full legal right, power and authority to enter into and perform its obligations hereunder; and (ii) this Agreement has been duly executed and delivered by the City and the Trust and constitutes a valid and binding obligation of the City and the Trust, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. City and the Trust further represent and warrant to Live Nation that for so long as Live Nation is not in default under this Agreement beyond any applicable notice and cure period, Live Nation's operation and management of the Facility shall not be disturbed or hindered by City and/or the Trust in its propriciary capacity or anyone claiming by, through or under City and/or the Trust in its proprietary capacity, subject, however, to the terms, provisions and obligations of this Agreement. The foregoing shall not apply, however, with respect to the City acting in its governmental capacity or exercising its police powers. (b) Live Nation represents and warrants to the City and/or the Trust the following: (i) Live Nation has full legal right, power and authority to enter into and perform its obligations hereunder, and (ii) this Agreement has been duly executed and delivered by Live Nation and constitutes a valid and binding obligation of Live Nation, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable — principles. 15.13. Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to otherwise applicable principles of conflicts of law. 15.14. Conflict Of Interest. Live Nation is aware of the conflict of interest laws of the City of Miami (Code of the City of Miami, Florida, Chapter 2, Article V), of Miami -Dade County, Florida (Code of Miami -Dade County, Florida (Code of Miami -Dade County, Florida, Section 2-11.1) and of the State of Florida (as set forth in Florida Statutes) and agrees it will fully comply in all respects with the terms of said laws and any future amendments. -36- 15.15. Award Of Agreement. Live Nation represents and warrants to the Trust that it has not employed or retained any person or company employed by the Trust to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any such person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 15.16. Public Records. Live Nation acknowledges that Trust contracts are subject to the provisions of Chapter 119, Florida Statutes, and Live Nation agrees to comply with applicable Legal Requirements. 15.17. Agreement Not a Lease. It is agreed that this Agreement is not a lease, and that no interest or estate in, or lien on, real property or improvements is created by this Agreement. 15.18. Local small business preference commitment. Live Nation recognizes the desire to utilize local small businesses whenever possible to the extent it is reasonable and commercially feasible under the circumstances. Live Nation hereby acknowledges and agrees to establish a policy pursuant to which it will endeavor to the hiring of not less than 15% of subcontractors that are qualified local small businesses, to the extent it is reasonable and commercially feasible under the circumstances. Live Nation shall provide the Trust's Executive Director with a quarterly reports of such hiring. [signature page to follow] -37- IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written. ATTEST: CITY OF MIATM, FLORIDA, a municipal corporatian litical subdivision of the State of Florida By: scilla A. Thompson, City Clerk Pedro G. Hernan e , City Manager ATTEST: By: J60ell, Administrative Officer Approved as to 1 Brehm, Director BAYFRONT PARK MANAGEMENT TRUST a limiteagency and instrumentality of the City of Miami w ,. am F. ve Approved as to Form and Correctness: f ByL.I( e Management Julie O. Bru, City orney -38- 1