HomeMy WebLinkAboutExhibit 2 SUBMANAGEMENT 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
Pate
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 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)
Pa&e
EXHIBITS
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
I HIS MANAGEMENT AGREEMENT (this "Agreement") is dated as of the day
of , 2008, by and between the CITY OF MIAMI, a municipal corporation
organized 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 tents 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:
"Afiiliate(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
perfotiiiers 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.
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"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 unifoims, safety and medical expenses,
extemninator 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.
"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
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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 Tenn, 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
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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 Facility during the Teiiii. 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 spaces 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.
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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 perfoirn 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-
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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) the user executes Live Nation's standard rental
agreement for Events in the forma of Exhibit 1-f, (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
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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 teens 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
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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 Trustall 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
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perfoiI led 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-teini 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 teliils 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 be 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 ASCAP/BMI; 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
I
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 4th 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
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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 rules 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
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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 deteinrines 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 Willis hereof to assure the efficient operation of the Event or otherwise to
address issues of health, safety, welfare and decorum.
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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 Signage. 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,
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materials. content and aesthetics. This limitation shall not in any way apply to the Marquee
Sign, or any directional or infoiniational 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 Naples.
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
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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 Term 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 the 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 Terrn (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
Tel in 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 Teiinr 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 I, 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
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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 Surcharge. 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 sarne 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
$1.00 to $14.99
$15.00 to $29.99
$30.00 and over
Amount of Surcharge per ticket
$0.75
$1.00
$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 Tenn 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 termination 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 Tern 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 Teiniination
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 elernents 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:
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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 (30)
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 per snits 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,
2i
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.
S. Indemnification and Insurance.
8.1. Indemnification.
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(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 procured 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 -
insured under any insurance maintained by such contractors pursuant to the teens 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 terin 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 perfoiniance 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. Furthei more, 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 Teim, subject to the
conditions and limitations of this Agreement.
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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;
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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, time 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 -
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 by law, 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 perfo+mmmance 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 pet mit 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
perfoinied 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; Affiirnative 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 (30) 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 Terra (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 1 2.3(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.
- 29 -
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 teiiinate
this Agreement at will upon at least ninety (90) days prior written notice (the "Termination
Notice"); provided, that the effectiveness of such teunination 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 teinnination 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.
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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 teiinination
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 teirns 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 Tenn (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 City 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 tel a "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,
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 ease, 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 perfoiiiiance 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 peiniitted 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
- 34 -
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. 2n 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`' 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. Severabilitv. 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
perfoiin 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 proprietary 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 MIAMI, FLORIDA, a municipal
corporation and political subdivision of the State of
Florida
By: By:
Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager
ATTEST:
BAYFRONT PARK MANAGEMENT TRUST
a limited agency and instrumentality of the City of
Miami
By: By:
Jose Gelt, Administrative Officer Timothy F. Schmand, Executive Director
Approved as to Insurance Requirements Approved as to Foint and Correctness:
By: By
LeeAnn Brehm, Risk Management Julie O. Bru, City Attorney
Director
LIVE NATION WORLDWIDE, INC.
By:
Name:
Title:
- 38 -
EXHIBIT "A"
LEGAL DESCRIPTION AND DEPICTION OF THE FACILITY
[need to see survey and verify]
[attach site plan with Facility depicted thereon]
- 39 -
EXHIBIT "B"
INSURANCE REQUIREMENTS
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -
MANAGEMENT AGREEMENT LIVE NATION WORLDWIDE, INC.
Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence
General Aggregate Limit
Products/Completed Operations
Personal and Advertising Injury
$1,000,000
$ 2,000,000
$ 1,000,000
$1,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Bayfront Park Management Trust included as an Additional Insured
Independent Contractors Coverage
Contractual Liability
Premises/Operations
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Bayfront Park Management Trust as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Exhibit B
Page 1
1V. Umbrella Policy
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 3,000,000
Aggregate $ 3,000,000
V. Liquor Liability
Each Occurrence
General Aggregate
VI. Business Personal Property
$2,000,000
$2,000,000
Live Nation shall maintain in full force and effect during the entire Term, insurance
on Live Nation's fixtures, equipment and personal property at the Facility under an
"All Risks of Physical Loss" policy including, without limitation, coverage for loss
or damage by fire, water and sprinkler damage, windstorm and flood; such insurance
to be written with replacement coverage.
The above policies shall provide the City of Miami with written notice of cancellation from
the insurer not less than (30) days prior to any such cancellation.
Companies authorized to do business in the State of Florida, with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent.
Exhibit B
Page 2
CONSTRUCTION REQUIREMENTS- LIVE NATION WORLDWIDE, INC.
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Bayfront Park Management Trust as an Additional Insured
Live Nation Worldwide, Inc. as an Additional Insured
Independent Contractors Coverage
Contractual Liability
Premises/Operations
Loading and Unloading
II. Business Automobile Liability
A. Limits of Liability
Bodily injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required.
City of Miami included as an Additional Insured
Bayfront Park Management Trust as an Additional Insured
Live Nation Worldwide, Inc. as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
IV. Builders' Risk
Causes of Loss: All Risk Coverage for Course of Construction
Coverage amount: $5,000,000
Exhibit B
Page 3
City of Miami and Bayfront Park Management Trust included as an Additional
insured
Live Nation Worldwide, Inc. included as an additional insured.
The above policies shall provide the City of Miami with written notice of cancellation from
the insurer not less than (30) days prior to any such cancellation.
Companies authorized to do business in the State of Florida. with the following qualifications,
shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management, and no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent.
Exhibit B
Page 4
EXHIBIT "C"
UPGRADES
All necessary work, labor. equipment and materials to complete a $2,000,000 renovation to the
Facility. Projects will be completed in the order of priority shown below until achieving the
$2,000,000 spending cap ("Cap"), after achieving the Cap there shall be no obligation to perform
any remaining work or items. All costs shown include hard construction costs, soft costs, and
furniture, fixtures and equipment.
Priority 1 - Exterior 8' fencing/security gate
Provide new exterior 8 foot fencing and security gate
Priority 2 — Modifications to stage/New Rigging Grid/ additions to back of house structure
Remove and modify existing cantilevered concrete roof canopy.
Add 40'x60' roofed, portable rigging structure (with 8' O.C. rigging beams), at 30'
above existing stage floor [Tomcat Global orrequal]
Modify tensile roof canopies as required.
Renovate existing dressing rooms and backstage toilet for ADA compliance.
Renovate green room.
Provide portable stage deck over existing "moat" to square -off the front of the
stage. (Stagerite or equal)
Priority 3 — Modifications to audience seating area
Demolish existing wood bench seating & add new fixed, fiberglass bench seating
with fixed back, and armrests [Elite seats from Southern Bleachers or equal]
Add new VIP box seating areas
Modify existing sound/light mixing control booth
Provide new ADA designated seating areas and accessible path (ramps).
Priority 4 —New Toilets
Provide new accessible mobile structures for toilet facilities per fixture count as
required by code for seating capacity (Resun or equal)
Priority 5 — Site Improvements
Provide concession areas (water, power, drains and portable units) along covered
elevated walkway
Modify accessible path from Biscayne Blvd. and/or rear parking area, including
accessible paths to audience seating and new structures (box office & bathrooms)
Relocate existing backstage fire hydrant and modify paving at loading dock.
Priority 6 — Box Office
Provide new accessible box office and administration support (pre -fabricated
structure)
Priority 7 ---- Backstage Catering Pavilion
Provide new 20'x40' polygon structure for catering at back of house area
Exhibit C
Page 1
Priority 8 — Landscaping/ lawn maintenance, exterior 8' fencing/security gate
Provide new landscaping plants around stage and vines on fence
Reseed /sod lawn seating area
Priority 9 — New signage at Biscayne Blvd.
Exhibit C
Page 2
EXHIBIT "D"
MINIMUM OPERATING AND MAINTENANCE STANDARDS
These minimum operating and maintenance standards are intended to be considered as a whole
and intended to provide an overall standard for the Facility. Individual discrepancies, as well as
deviations, from any individual standard shall not be considered a default of the Agreement; it is
the intention of the parties that this Exhibit is merely a guide and that Live Nation is only
expected to use good faith efforts to endeavor to meet the standards set forth herein. In the event
of a conflict between the terms or conditions of the Agreement and the terms or conditions of
this Exhibit, the terms and conditions of the Agreement shall control.
Live Nation shall have the sole responsibility to recruit and employ a general manager
and any necessary administrative and accounting personnel that are responsible for the
overall management and operation of the Facility.
2. Live Nation shall have the sole responsibility to recruit and employ sufficient personnel
to maintain the following functions: general security; janitorial, housekeeping and
cleaning for both event and non-event cleanup; and general overall maintenance of the
Facility to ensure that the Facility is being maintained consistent with other similar
facilities operated by Live Nation.
3. Live Nation shall have the sole responsibility to recruit and employ personnel as it deems
necessaryfor the staging and coordinating of Events.
4. Live Nation shall maintain personnel policies that assure employment practices do not
discriminate on the basis of race, color, religion, military status, marital status, physical
or mental disability, national origin, age, gender, or sexual preference.
5. Live Nation shall provide for the overall reasonable security of the Facility on an
economically feasible basis. However, Live Nation shall provide security for the
restrooms only during Events, the load -in or load -out in connection therewith and
cleaning after an Event.
b. Live Nation shall assign an employee and a backup employee to act as an Emergency
Liaison to the Trust. This individual will be required to use good faith efforts to attend
any and all meetings, held by the Trust, that deal with emergency situations, such as
extreme weather events. terrorist acts, etc. The Liaison will serve as the point of contact
during any emergency crisis.
7. The Facility shall be reasonably clean for Events.
8. Restrooms are to be cleaned during Events to assure that they are in a functional and
reasonably sanitary condition.
Exhibit D
Page I
9. Garbage and trash shall be removed on an as -needed basis as determined by Live Nation.
Trash receptacles shall be stationed throughout the Facility as determined by Live
Nation.
10. Treatment for pests and rodents (except termites) shall occur on a quarterly basis as
needed to prevent infestation or as required by applicable code.
11. Indoor landscaping shall be maintained in accordance with specifications of the type of
plant and should be watered and fertilized as the type of plant demands.
12. Indoor landscaping should be reasonably insect -free.
13. Equipment shall be maintained in a reasonably good condition and repair, subject to wear
and tear and casualty.
14. Upon termination, cancellation, and/or expiration of the Agreement, Live Nation shall
provide all records maintained in accordance with Section 2.3 (e). All existing
warranties that are transferable will be transferred to the City.
15. Live Nation shall post and maintain, as required by any applicable governmental code
and/or regulation, any and all required professional licenses, certifications, and/or
periiiits.
16. Live Nation shall inspect all building safety systems including but not limited to: smoke,
fire, and CO detector systems, backup generator operation, emergency battery backup
functions, emergency lighting, emergency egress, special needs and blackout
preparedness equipment. All building safety systems shall be tested as required by
federal, state or local codes and regulations.
17. Live Nation has the sole responsibility of maintaining the paint on both, the interior and
exterior of the Facility. The Trust has the sole right to approve (not to be unreasonably
withheld, conditioned or delayed) the paint color selections used on the exterior of the
Facility.
Exhibit D
Page 2
EXHIBIT "E"
LIST OF REPEAT ANNUAL BOOKINGS
January - Annual Haitian Independence Festival
Haitian Independence Festival, Inc. / APHEC International, Inc.
February - Festival del Vallenato
Congo de Oro Corporation
(late) February/(early) March- Bob Marley Movement — Annual Caribbean Festival
The Bob Marley Heritage Corporation / Bob Marley Movement of Jah People, Inc.
November- Rasin Festival
Center for Haitian Studies, Inc.
Exhibit E
Page 1
EXHIBIT "F"
PENDING BOOKINGS
NONE
Exhibit F
Page 1
f list of approved sponsors]_
EXHIBIT "G"
Exhibit G
Page 1
EXHIBIT "H"
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement"), dated , 20 , is by
and between ("Licensor") whose address is
and ("Licensee") whose
address is . For and in consideration of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Term. Licensor hereby grants to Licensee the privilege and license to use
designated portions of certain real property located in the City of Miami, Florida, which real
property is operated by Licensor and known as the Bayfront Park Amphitheater ("Facility"), for
the "Term" of this Agreement, which shall be , 20, to include load -
in and load -out of the Event (as defined below). Unless otherwise agreed in writing by Licensor,
those portions of the Facility that the Licensee shall utilize are restricted to the stage and
backstage area, public seating area, public concession area (e.g. the consumer side of the
concession areas), interior public plazas and areas, and the loading dock.
Upon the expiration of the Teiiii or the termination of this Agreement for any reason
whatsoever prior to the expiration of the Term, Licensee shall immediately quit and surrender the
Facility to Licensor. Licensee shall remove any goods or chattels brought onto or permitted by
Licensor to be brought onto the Facility property. For non-compliance with the provisions of
this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the
removal of such goods or chattels.
2. Purpose. Licensee agrees that it shall use the Facility during the Term of this
Agreement for the purpose of presenting an event ("Event") for
. The Event shall be open to the public with paid admission, if applicable,
during a time period within the Term as approved by Licensor. Unless otherwise agreed to in
writing by Licensor, the Event shall be held at no other times.
3. Financial Settlement. In consideration for the grant of the license and use of the
Facility and related services as provided herein, Licensee shall (i) pay to Licensor a fee ("License
Fee") in the amount of Dollars ($ ) which is payable on or
before the date of the Event, and a portion thereof shall be payable as a non-refundable deposit in
the amount of Dollars ($ ) which shall be due and payable on or
before , 20 and (ii) promptly (within ten (10) business days after receipt of written
invoice therefor), reimburse Licensor for all actual expenses and costs incurred by Licensor to
facilitate Licensee's use of the Facility hereunder, including, without limitation, Live Nation's
standard charges for janitorial, clean up, crowd and traffic control, set-up and tear -down costs
Exhibit H
Page 1
and fees and charges (including for materials, labor and other services directly necessitated by
the occurrence of Licensee's use of the Facility. Licensee's obligations under this paragraph
shall survive the expiration or teiniination of this Agreement.
Licensor will have a first lien on all box office receipts for the Event to secure
payment of all amounts owed to Licensor by Licensee hereunder. In the event that Licensee has
failed to pay to Licensor the amounts owed hereunder, at the time of settlement, Licensor will
have the right to retain such amounts from the box office receipts for the Event.
4. Parking. Licensor shall not be obligated to provide or cause to be provided any
parking whatsoever.
Specialized parking space may, at Licensor's sole discretion, be provided for Licensee's
employees only, in locations designated by Licensor. Licensor shall not be responsible, under
any circumstances, for any loss or damage occurring to automobiles brought onto the Facility by
Licensee's employees, subcontractors or guests.
5. Merchandise and Concessions. Unless otherwise agreed upon in writing by the
parties hereto, (A) Licensor's designated food and beverage concessionaire shall sell all food and
beverages and retain one hundred percent (100%) of the profits therefrom, and (B) Licensor's
designated merchandise vendor shall sell all merchandise and retain one hundred percent (100%)
of the profits therefrom, less taxes and any percentages owed to performing artists. Upon prior
written notice from Licensee, Licensor shall ensure that there will be no sales of alcoholic
beverages at the Facility during the Terris.
6. Ticketing. All ticket sales for the Event shall be conducted through the Facility
box office and the facilities of Licensor's designated ticketing agent. All ticket sales shall be
subject to service fees, and/or facility fees as provided by Licensor. Licensor reserves the right
to retain a reasonable number of complimentary tickets for the Event for Licensor's use.
Licensor may have non -manifested corporate boxes and/or premium seats, for which tickets will
not be included in the gross ticket receipts. If applicable, Licensor will provide all premium seat
customers (including, without limitation, box and season seats) at the Facility with tickets for
their regular seats for the Event at no cost to Licensor.
7. Event Advertising and Promotion. Licensee shall be responsible for producing
and paying for any and all advertising and promotional materials in connection with the Event.
All such materials shall be subject to the prior approval of Licensor. Licensee acknowledges and
agrees that, notwithstanding any marketing or other related assistance which may be provided by
Licensor (although Licensor is not obligated to provide same), Licensor has made no, and
disclaims any purported or actual, representation or warranty as to the results and/or success
which can be expected from the Event, including, without limitation. ticket sales and/or the
profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be
responsible for the actual results from and/or the success, financial or otherwise, of the Event.
Exhibit H
Page 2
8. Booth / Commercial Space. In the event that Licensee desires to sell
booth/commercial space ("Booth Space") at the Facility to vendors or exhibitors or otherwise
peer lit vendors or exhibitors at the Facility ("Vendors") in connection with the Event Licensee
shall comply with the following provisions:
A. Licensee will first obtain Licensor's approval of each Vendor and that
Vendor's operations in connection with the Event.
B. Licensee will assume sole control and responsibility for (i) all operations
of all Vendors relating to the Event and (ii) requiring Vendors to comply with any
applicable Facility rules and regulations.
C. Licensee will be solely responsible for the payment of any and all taxes or
other fees associated with the payments received from the Vendors or the use of the
Booth Space.
LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE
FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT
LICENSOR'S PRIOR WRITTEN CONSENT: INTERACTIVE PHYSICAL GAMES
AND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC
ANIMALS AND PYROTECHNICS.
IN ADDITION TO ANY OTHER INDEMNIFICATION REQUIREMENTS SET
FORTH HEREIN, LICENSEE SHALL INDEMNIFY, DEFEND, BE SOLELY LIABLE
FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR PARTIES (AS HEREIN
DEFINED), HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS,
INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION, OPERATION AND
REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH SPACE AND THE
BOOTH VENDORS.
9. Use of Name of Facility / Recording Rights. In the event that any printed
materials or media is used to announce or promote the Event, Licensee shall use "Bayfront Park
Amphitheater" as the name of the Facility. Licensee shall not permit any film, video, audio or
other recording of the Event ("Recording") to take place without Licensor's prior written
approval. In the event that Licensor does permit any Recording; the following teinis and
conditions shall apply to such Recording:
A. Licensee and its employees, agents, representatives and contractors
understand and acknowledge that the Recording shall occur in locations approved by the
Licensor. and that Licensor's staff shall have the right to (i) refuse entry into any portions
of the Facility in its sole discretion or (ii) stop the Recording at any time if Licensor's
staff deems it reasonably necessary to do so.
B. Licensee shall be responsible for any and all costs and expenses associated
with the Recording, including, without limitation, union fees, additional security,
Exhibit H
Page 3
equipment, early set-up/load-in, additional phones, office space, additional labor and
supplemental catering in connection with the Recording. Payment for such costs and
expenses and/or reimbursement for such costs and expenses to Licensor may be required
in advance of the Event or at settlement of the Event, at Licensor's sole discretion.
Licensee shall advance all arrangements/requirements concerning the Recording with a
designated representative of the Licensor within a reasonable period of time prior to the
Recording. Licensee's obligations under this paragraph shall survive the expiration or
termination of this Agreement.
C. Licensor reserves the right to charge an origination fee and/or shadowing
fee in the amount of ($ ) for the granting of Recording rights, such
fee shall be payable within business days after receipt of written invoice therefor.
Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
D. Licensee shall be solely responsible for securing in writing all necessary
rights, authorizations and consents of and making any necessary payments to any and all
third parties whose images, likenesses, marks or interests may be involved therein,
including, without limitation, any performing artists, subjects of the Recording, unions,
third party contractors or their employees or representatives, Event patrons, guests and
invitees of the Facility and Facility sponsors. Licensee represents and warrants that it has
full power and authority to conduct the Recording and has obtained, or will caused to be
obtained prior to disseminating the Recording, all of the foregoing necessary rights,
authorizations and consents.
E. The City of Miami, Bayfront Park Management Trust and Licensor shall
be credited in any broadcast or other publication of the Recording. Licensee represents,
warrants and covenants that nothing contained in the end use in which the Recording is
used will be in any way derogatory to the City of Miami, Bayfront Park Management
Trust or Licensor or their related companies or entities, including, without limitation,
parent and subsidiary corporations and divisions, and their employees, agents and
representatives or the Facility.
F. In addition to any other insurance requirements set forth herein, Licensee
shall maintain appropriate Errors and Omissions coverage ("E & 0 Coverage")
applicable to the Recording with limits of not less than $1,000,000.00. Such E & 0
Coverage shall have standard coverage, including, but not limited to, defamation,
infringement of copyright, infringement of rights in material to be broadcast or in the
manner of presentation thereof, invasion of privacy rights and unauthorized use of
material. The City of Miami, Bayfront Park Management Trust and Licensor shall be
named as additional insureds on the above E & 0 Coverage.
G. IN ADDITION TO ANY OTHER INDEMNIFICATION
REQUIREMENTS SET FORTH HEREIN, LICENSEE AGREES TO DEFEND,
INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE AND
RELEASE THE LICENSOR PARTIES (AS HEREIN DEFINED), HARMLESS
Exhibit H
Page 4
FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR
EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY
MAY INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT
COSTS) ARISING OUT OF RELATED TO (1) THE RECORDING AND/OR AND
ANY SUBSEQUENT DISTRIBUTION AND/OR BROADCAST OF THE
RECORDING OR (2) LICENSEE'S FAILURE TO OBTAIN ANY REQUIRED
AUTHORIZATIONS OR CONSENTS,
10. Charitable Donations. In the event that Licensor permits and Licensee obtains the
right to collect charitable donations in connection with the Event, Licensee warrants and
represents that it will comply with all applicable laws, regulations and ordinances imposed by
any governmental authority in collecting said donations. Licensee further agrees that it will be
solely responsible for all tax and other liability related to such donations. Licensee's obligations
under this paragraph shall survive the expiration or termination of this Agreement.
11. Condition of Facility.
A. Acceptance of Facility. Licensee accepts the condition of the Facility as is
and agrees to return the Facility to Licensor in the same condition as accepted by
Licensee and Licensee hereby waives any claims against Licensor, City of Miami, and
Bayfront Park Management Trust for defects in the Facility, including latent defects.
Licensee has examined the Facility and is satisfied with the condition, fitness and order
thereof. Commencement of the use of the Facility by Licensee shall be conclusive that
the Facility was in good repair and in satisfactory condition, fitness and order when such
use commenced.
Licensee shall not paint, drill into or in any way mar or deface any part of the
Facility. Licensee shall immediately pay Licensor for the cost of repairing any damage to
the Facility caused by the Event. Any amounts unpaid within ten (10) days after the end
of the Term shall accrue interest at the maximum amount allowed by law. Licensee's
obligations under this paragraph shall survive the expiration or termination of this
Agreement.
B. No Alterations or Improvements. Licensee shall not display or erect any
lettering. signs, pictures. notices or advertisements upon any part of the outside or inside
of the Facility or make any alterations or improvements in or to the Facility without the
prior written consent of Licensor.
C. Maintenance of Facility. Licensee shall keep the Facility in an orderly
condition and cause all refuse and debris to be properly discarded.
Licensor will have the full right to collect and have custody of all articles and
personal property left on the Facility or at the Facility after the expiration of the Term.
Any property so left will be deemed abandoned by Licensee and may be disposed of by
Exhibit H
Page 5
Licensor, as Licensor sees fit, without any liability for any loss, damages or costs
associated with such disposal, which liability will rest solely with Licensee.
12. Representations, Warranties and Covenants. Licensor hereby represents and
warrants that it has full power and authority to enter into this Agreement and to engage in the
transaction contemplated hereby and that this Agreement is a valid obligation of the Licensor and
is binding upon the Licensor.
Licensee hereby represents and warrants that it has full power and authority to enter into
this Agreement and to engage in the transaction contemplated hereby and that this Agreement is
a valid obligation of the Licensee and is binding upon the Licensee.
Licensee further represents and warrants that it shall not cause or permit, during the
Term, any hazardous substances, which are brought onto the Facility by Licensee, to be disposed
of or otherwise released onto or under the Facility.
During the Term, Licensee shall obey and comply with all present and future laws,
ordinances, rules and regulations of all governmental authorities in connection with the Event.
Licensee warrants that any and all use or performance of copyrighted material in
connection with the Event has been duly licensed and authorized by the appropriate performing
rights organizations (including, without limitation. BMI, SESAC and ASCAP), copyright owners
or their representatives and that any license or royalty fees owed to such persons or entities shall
be paid by Licensee. LICENSEE AGREES TO DEFEND, INDEMNIFY, SHALL BE
SOLELY LIABLE FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR
PARTIES, FROM ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR
EXPENSES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY MAY
INCUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS)
ARISING OUT OF RELATED TO ANY VIOLATIONS OF SUCH INTELLECTUAL
PROPERTY RIGHTS OR THE LAWS RELATING THERETO. Notwithstanding the
foregoing, Licensor reserves the right to collect such payments from Licensee at Event
settlement and remit to appropriate parties on Licensee's behalf. Licensee's obligations under
this paragraph shall survive the expiration or termination of this Agreement.
13. INDEMNIFICATION. IN ADDITION TO ANY OTHER
INDEMNIFICATION REQUIREMENTS SET FORTH HEREIN, LICENSEE AGREES
TO DEFEND, INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE
AND RELEASE LICENSOR AND THE CITY OF MIAMI AND THE BAYFRONT
PARK MANAGEMENT TRUST AND EACH OF THEIR RESPECTIVE PARENT
ENTITIES, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS AND SUBSIDIARIES,
AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, "LICENSOR
PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS,
LOSSES, INJURIES, LIABILITY AND DAMAGES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OR ALLEGED TO HAVE
Exhibit .H
Page 6
ARISEN OUT OF (A) ANY ACT OR OMISSION OF LICENSEE, ITS EMPLOYEES,
AGENTS, VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS, INVITEES,
PARTICIPANTS AND PERFORMING ARTISTS; AND/OR (B) THE PRESENTATION
OR PERFORMANCE OF THE EVENT AND/OR (C) LICENSEE'S BREACH OF ANY
OF THE PROVISIONS OF THIS AGREEMENT. THE PARTIES AGREE, HOWEVER,
THAT THE FOREGOING INDEMNITY, WAIVER AND RELEASE DOES NOT
INCLUDE ANY CLAIMS, DEMANDS, SUITS, LIABILITIES, EXPENSES, ETC. THAT
ARISE OUT OF SUCH LICENSOR PARTY'S SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT.
LICENSEE AGREES TO USE AND OCCUPY THE FACILITY AND TO PLACE
MATERIAL, EQUIPMENT AND OTHER PROPERTY THEREIN AT ITS OWN RISK
AND HEREBY RELEASES THE LICENSOR PARTIES FROM ALL CLAIMS FOR
ANY DAMAGE OR INJURY ARISING THEREFROM.
THE INDEMNIFICATION, WAIVER AND RELEASE PROVISIONS
CONTAINED THROUGHOUT THIS AGREEMENT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Licensee will be solely responsible for the conduct and activities of Licensee's
employees, agents, contractors, guests and invitees and, for purposes of the Agreement, such
conduct and activities shall be deemed conduct and activities of Licensee. Licensee and its
employees, agents, contractors, guests and invitees will abide by all reasonable rules and
regulations adopted by Licensor for the use. occupancy and operation of the Facility. Licensee's
obligations under this Section 13 shall survive the expiration or termination of this Agreement.
14. Insurance Requirements. Licensee will maintain and pay all premium costs for,
and will ensure that all of Booth Vendors and other contractors of Licensee maintain and pay for,
the following insurance coverages in amounts not less than specified throughout the duration of
the Term:
A. Statutory Workers' Compensation including Employer's Liability
Insurance, subject to limits of not less than $500,000.00, affording coverage under
applicable worker's compensation laws. Licensee will cause. if allowed by law, its
workers' compensation carrier to waive insurers right of subrogation with respect to the
Licensor Parties.
B. Commercial General Liability Insurance for limits of not less than
$1.000.000.00 per occurrence Bodily Injury and Property Damage combined;
$1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggregate
Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, and
$2,000,000.00 general aggregate limit per event. The policy shall be written on an
occurrence basis.
C. Autornobile Liability Insurance with a limit of not less than $1,000,000.00
combined and covering all owned, non -owned and hired vehicles.
Exhibit H
Page 7
D. Umbrella Liability Insurance at not less than $4,000,000.00 limit
providing excess coverage over all limits and coverages noted in paragraphs B and C
above. This policy shall be written on an occurrence basis.
Policies B, C and D above (and, if applicable, the E & 0 Coverage referenced herein)
shall list Licensor Parties as "Additional Insureds" with respect to any and all claims arising
from Licensee's operations. Further, coverage for the "Additional Insureds" will apply on a
primary basis irrespective of any other insurance, whether collectible or not. Should any
additionalpremium be charged for such coverages or waivers, Licensee will be responsible to
pay said additional premium charge to their insurer.
Licensee will deliver to Licensor satisfactory evidence of the above insurance coverage
on a certificate form approved by Licensor or, if required, copies of the policies. All required
insurance will be placed with carriers licensed to do business in the State of Florida, have a
rating in the most current edition of A.M. Best's Property Casualty Key Rating Guide that is
reasonably acceptable to Licensor and will provide thirty (30) days written notice of cancellation
or non -renewal.
The insurance obligations stated in this Section are independent of, and shall not be
affected by the scope or validity of, any other indemnity, waiver, release or insurance provisions
in other sections of this Agreement.
Licensee will ensure that all of its contractors (.including, without limitation, sponsors and
Booth Vendors arranged by Licensee) who will be entering the Facility to engage in any business
activity (including, without limitation, sampling, distributing, vending or other commercial
activity) will comply with the foregoing insurance requirements and provide satisfactory
evidence thereof prior to the Event.
15. Sponsorships and Signage. Licensee understands and agrees that Licensor has
entered into signage and sponsorship relationships related to the Facility for which Licensor will
retain all proceeds. Licensor reserves all rights to display signage at, on or near the Facility
property. No signs or advertising boards, other than those authorized in writing by Licensor, will
be allowed into, on or near the Facility. Licensee will not mark, cover or attempt to modify any
signage at. on or near the Facility.
Licensee is required to obtain Licensor's prior written approval of any sponsorship
relationships into which Licensee desires to enter for the Event.
16. Licenses and Permits. Licensee will be responsible for obtaining and paying for
all licenses or permits necessary for holding the Event, including, but not limited to, tax
requirements and any permits required by governmental authorities for pyrotechnics or laser use.
17. Access. Licensor, its officers, directors, servants, employees, agents,
concessionaires and its concessionaire's servants, employees and agents shall at all times have
free access to the Facility upon presentation of passes issued by Licensor.
Exhibit H
Page 8
18. Miscellaneous.
A. Third Party Beneficiaries. This Agreement does not confer any rights or
benefits upon any persons or entities other than Licensor and Licensee and their
permitted, respective successors and assigns. There are no third party beneficiaries.
B. Relationship of the Parties. Nothing contained in this Agreement will be
deemed to constitute Licensor and Licensee as partners or joint venturers with each other.
Each party acknowledges and agrees that it neither has nor will give the appearance or
impression of having any legal authority to bind or commit the other party in any way.
Licensee agrees that it will be solely responsible for the payment of all wages, federal,
state and local income taxes, as well as all workers' compensation insurance requirements
for all personnel it supplies pursuant to this Agreement.
C. Entire Agreement and Modification. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and all prior
agreements relative hereto which are not contained herein are temiinated. This
Agreement may not be amended, revised or terminatedexcept by a written instrument
executed by the Party against which enforcement of the amendment, revision or
teiinination is asserted.
D. Assignment. This Agreement or any part hereof may be assigned or
transferred by Licensor to any person or entity which acquires ownership or management
of the Facility. Neither this Agreement nor any part hereof shall be transferred, conveyed
or assigned by Licensee without the prior written consent of Licensor.
E. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State in which the Facility is located without regard to
any theory of the conflict of laws.
F. Use by Licensor. It is specifically agreed and understood that Licensor
has the right to occupy and use the Facility during the Term and to license any portion
thereof, provided that such use or license does not unreasonably interfere with Licensee's
use of the Facility.
G. Utilities. No interruption or malfunction of any utility services, whether
such services are provided by Licensor or arranged for by Licensee, shall (i) constitute an
eviction or disturbance of Licensee's use and possession of the Facility or a breach by
Licensor of any obligations hereunder, (ii) render Licensor liable for damages, or (iii)
entitle Licensee to be relieved of any obligations hereunder. In the event of any such
interruption of service provided by Licensor, Licensor shall be obligated only to use
reasonable diligence to restore such service.
H. Force M.ajeure. The failure of any party hereto to comply with the tei nis
and conditions hereof because of a "Force Majeure Occurrence" shall not be deemed a
Exhibit H
Page 9
breach of this Agreement. "Force Majeure Occurrence" shall be defined to include,
without limitation, Act of God, strike, labor disputes, war, fire, earthquake, hurricane,
tornado, flood, storm surge, acts of public enemies, acts of terrorism, epidemic, action of
federal, state or local governmental authorities or an event or reason beyond the
reasonable control of a party. In the event of a cancellation of the Event due to a Force
Majeure Occurrence, each party shall be relieved of its obligations hereunder with respect
to the performance so prevented.
I. Taxes. Any and all sales tax, amusement tax or other tax imposed by
local, state, provincial or federal government as a result of the presentation of the Event
and/or performance of any services rendered by Licensor in connection with this
Agreement hereunder, shall be the responsibility of and paid for by Licensee at the time
required by law (excepting any state or federal income tax imposed on Licensor).
Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
J. No Waiver of Rights. If either party fails to enforce any of the provisions
of this Agreement or any rights or fails to exercise any election provided in the
Agreement, it will not be considered to be a waiver of those provisions, rights or
elections or in any way affect the validity of this Agreement. The failure of either party
to exercise any of these provisions, rights or elections will not preclude or prejudice such
party from later enforcing or exercising the same or any other provision, right or election
which it may have under this Agreement.
K. Invalidity. If any term, provision, covenant or condition of the Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement will remain in full force and effect and will in no way be
affected, impaired or invalidated.
L. Notices. All notices given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally with receipt acknowledged or
sent by registered or certified mail or equivalent, if available, return receipt requested, or
by nationally recognized overnight courier for next day delivery, addressed or sent to the
parties at the addresses set forth herein with a copy to Live Nation, 9348 Civic Center
Drive, 3rd Floor, Beverly Hills, California, 90210, Attn: Cindy Parks, Senior Counsel,
Venues and Alliances.
M. Exclusive Venue And Waiver Of Trial By Jury. 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, LICENSOR AND LICENSEE
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.
ACCEPTED AND AGREED as of the date and year first above written.
Exhibit I -I
Page 10
By: By:
Name: Name:
Title: Title:
Exhibit H
Page 11
EXHIBIT "H-1"
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement"), dated , 20 , is by
and between ("Licensor") whose address is
and ("Licensee") whose
address is . For and in consideration of the mutual
covenants and agreements contained herein, the receipt and sufficiency of which is hereby
acknowledged; the parties hereto, intending to be legally bound, agree as follows:
1. Term. Licensor hereby grants to Licensee the privilege and license to use
designated portions of certain real property located in the City of Miami, Florida, which real
property is operated by Licensor and known as the Bayfront Park Amphitheater ("Facility"), for
the "Term" of this Agreement, which shall be , 20, to include load -
in and load -out of the Event (as defined below). Unless otherwise agreed in writing by Licensor,
those portions of the Facility that the Licensee shall utilize are restricted to the stage and
backstage area, public seating area, public concession area (e.g. the consumer side of the
concession areas), interior public plazas and areas, and the loading dock.
Upon the expiration of the Ten- r or the termination of this Agreement for any reason
whatsoever prior to the expiration of the Term, Licensee shall immediately quit and surrender the
Facility to Licensor. Licensee shall remove any goods or chattels brought onto or permitted by
Licensor to be brought onto the Facility property. For non-compliance with the provisions of
this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the
removal of such goods or chattels.
2. Purpose. Licensee agrees that it shall use the Facility during the Term of this
Agreement for the purpose of presenting an event ("Event") for
. The Event shall be open to the public with paid admission, if applicable,
during a time period within the Term as approved by Licensor. Unless otherwise agreed to in
writing by Licensor, the Event shall be held at no other times.
3. Financial Settlement. In consideration for the grant of the license and use of the
Facility and related services as provided herein, Licensee shall promptly (within ten (10)
business days after receipt of written invoice therefor), reimburse Licensor for all actual
expenses and costs incurred by Licensor to facilitate Licensee's use of the Facility hereunder,
including, without limitation, Licensor'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 Licensee's use of the Facility.
Licensee's obligations under this paragraph shall survive the expiration or termination of this
Agreement.
4. Parking. Licensor shall not be obligated to provide or cause to be provided any
parking whatsoever.
Exhibit H-1
Page 1
Specialized parking space may, at Licensor's sole discretion, be provided for Licensee's
employees only, in locations designated by Licensor. Licensor shall not be responsible, under
any circumstances, for any loss or damage occurring to automobiles brought onto the Facility by
Licensee's employees, subcontractors or guests.
5. Merchandise and Concessions. Unless otherwise agreed upon in writing by the
parties hereto, (A) Licensor's designated food and beverage concessionaire shall sell all food and
beverages and retain one hundred percent (100%) of the profits therefrom, and (B) Licensor's
designated merchandise vendor shall sell all merchandise and retain one hundred percent (100%)
of the profits therefrom, less taxes and any percentages owed to performing artists. Upon prior
written notice from Licensee. Licensor shall ensure that there will be no sales of alcoholic
beverages at the Facility during the Tenn.
6. Ticketing. All ticket sales for the Event shall be conducted through the Facility
box office and the facilities of Licensor's designated ticketing agent. All ticket sales shall be
subject to service fees, and/or facility fees as provided by Licensor. Licensor reserves the right
to retain a reasonable number of complimentary tickets for the Event for Licensor's use.
Licensor may have non -manifested corporate boxes and/or premium seats, for which tickets will
not be included in the gross ticket receipts. If applicable, Licensor will provide all premium seat
customers (including, without limitation, box and season seats) at the Facility with tickets for
their regular seats for the Event at no cost to Licensor.
7. Event Advertising and Promotion. Licensee shall be responsible for producing
and paying for any and all advertising and promotional materials in connection with the Event.
All such materials shall be subject to the prior approval of Licensor. Licensee acknowledges and
agrees that, notwithstanding any marketing or other related assistance which may be provided by
Licensor (although Licensor is not obligated to provide same), Licensor has made no, and
disclaims any purported or actual, representation or warranty as to the results and/or success
which can be expected from the Event, including, without limitation, ticket sales and/or the
profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be
responsible for the actual results from and/or the success, financial or otherwise, of the Event.
8. Booth / Commercial Space. In the event that Licensee desires to sell
booth/commercial space ("Booth Space") at the Facility to vendors or exhibitors or otherwise
permit vendors or exhibitors at the Facility ("Vendors") in connection with the Event, Licensee
shall comply with the following provisions:
A. Licensee will first obtain Licensor's approval of each Vendor and that
Vendor's operations in connection with the Event.
B. Licensee will assume sole control and responsibility for (i) all operations
of all Vendors relating to the Event and (ii) requiring Vendors to comply with any
applicable Facility rules and regulations.
C. Licensee will be solely responsible for the payment of any and all taxes or
other fees associated with the payments received from the Vendors or the use of the
Booth Space.
Exhibit H-1
Page 2
LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE
FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT
LICENSOR'S PRIOR WRITTEN CONSENT: INTERACTIVE PHYSICAL GAMES
AND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC
ANIMALS AND PYROTECHNICS.
LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND RELEASES
THE LICENSOR PARTIES (AS HEREIN DEFINED), FROM ANY AND ALL CLAIMS,
LAWSUITS, INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION,
OPERATION AND REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH
SPACE AND THE BOOTH VENDORS.
9. Use of Name of Facility / Recording Rights. In the event that any printed
materials or media is used to announce or promote the Event, Licensee shall use "Bayfront Park
Amphitheater" as the name of the Facility. Licensee shall not permit any film, video, audio or
other recording of the Event ("Recording") to take place without Licensor's prior written
approval. In the event that Licensor does permit any Recording. the following terms and
conditions shall apply to such Recording:
A. Licensee and its employees, agents, representatives and contractors
understand and acknowledge that the Recording shall occur in locations approved by the
Licensor, and that Licensor's staff shall have the right to (i) refuse entry into any portions
of the Facility in its sole discretion or (ii) stop the Recording at any time if Licensor's
staff deems it reasonably necessary to do so.
B. Licensee shall be responsible for any and all costs and expenses associated
with the Recording, including, without limitation, union fees, additional security,
equipment, early set-up/load-in, additional phones, office space, additional labor and
supplemental catering in connection with the Recording. Payment for such costs and
expenses and/or reimbursement for such costs and expenses to Licensor may be required
in advance of the Event or at settlement of the Event, at Licensor's sole discretion.
Licensee shall advance all arrangements/requirements concerning the Recording with a
designated representative of the Licensor within a reasonable period of time prior to the
Recording. Licensee's obligations under this paragraph shall survive the expiration or
termination of this Agreement.
C. Licensor reserves the right to charge an origination fee and/or shadowing
fee in the amount of ($ ) for the granting of Recording rights, such
fee shall be payable within business days after receipt of written invoice therefor.
Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
D. Licensee shall be solely responsible for securing in writing all necessary
rights, authorizations and consents of and making any necessary payments to any and all
third parties whose images, likenesses, marks or interests may be involved therein,
including, without limitation. any performing artists, subjects of the Recording, unions,
third party contractors or their employees or representatives, Event patrons, guests and
Exhibit H-1
Page 3
invitees of the Facility and Facility sponsors. Licensee represents and warrants that it has
full power and authority to conduct the Recording and has obtained, or will caused to be
obtained prior to disseminating the Recording, all of the foregoing necessary rights,
authorizations and consents.
E. The City of Miami, the Bayfront Park Management Trust and Licensor
shall be credited in any broadcast or other publication of the Recording. Licensee
represents, warrants and covenants that nothing contained in the end use in which the
Recording is used will be in any way derogatory to the City of Miami, the Bayfront Park
Management Trust or Licensor or their related companies or entities, including, without
limitation, parent and subsidiary corporations and divisions, and their employees, agents
and representatives or the Facility.
F. In addition to any other insurance requirements set forth herein, Licensee
shall maintain appropriate Errors and Omissions coverage ("E & 0 Coverage")
applicable to the Recording with limits of not less than $1,000,000.00. Such E & 0
Coverage shall have standard coverage, including, but not limited to, defamation.
infringement of copyright, infringement of rights in material to be broadcast or in the
manner of presentation thereof, invasion of privacy rights and unauthorized use of
material. The City of Miami Beach and Licensor shall be named as additional insureds
on the above E & 0 Coverage.
G. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES
AND RELEASES THE LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES,
LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED
AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO
(1) THE RECORDING AND/OR AND ANY SUBSEQUENT DISTRIBUTION
AND/OR BROADCAST OF THE RECORDING OR (2) LICENSEE'S FAILURE
TO OBTAIN ANY REQUIRED AUTHORIZATIONS OR CONSENTS.
10. Charitable Donations. In the event that Licensor per its and Licensee obtains the
right to collect charitable donations in connection with the Event, Licensee warrants and
represents that it will comply with all applicable laws, regulations and ordinances imposed by
any governmental authority in collecting said donations. Licensee further agrees that it will be
solely responsible for all tax and other liability related to such donations. Licensee's obligations
under this paragraph shall survive the expiration or termination of this Agreement.
11. Condition of Facility.
A. Acceptance of Facility. Licensee accepts the condition of the Facility as is
and agrees to return the Facility to Licensor in the same condition as accepted by
Licensee and Licensee hereby waives any claims against Licensor, the City of Miami,
and the Bayfront Park Management Trust for defects in the Facility, including latent
defects. Licensee has examined the Facility and is satisfied with the condition, fitness
and order thereof. Commencement of the use of the Facility by Licensee shall be
conclusive that the Facility was in good repair and in satisfactory condition, fitness and
order when such use commenced.
Exhibit H-1
Page 4
Licensee shall not paint, drill into or in any way mar or deface any part of the
Facility. Licensee shall immediately pay Licensor for the cost of repairing any damage to
the Facility caused by the Event. Any amounts unpaid within ten (10) days after the end
of the Term shall accrue interest at the maximum amount allowed by law. Licensee's
obligations under this paragraph shall survive the expiration or termination of this
Agreement.
B. No Alterations or Improvements. Licensee shall not display or erect any
lettering, signs, pictures, notices or advertisements upon any part of the outside or inside
of the Facility or make any alterations or improvements in or to the Facility without the
prior written consent of Licensor.
C. Maintenance of Facility. Licensee shall keep the Facility in an orderly
condition and cause all refuse and debris to be properly discarded.
Licensor will have the full right to collect and have custody of all articles and
personal property left on the Facility or at the Facility after the expiration of the Tem.
Any property so left will be deemed abandoned by Licensee and may be disposed of by
Licensor, as Licensor sees fit, without any liability for any loss, damages or costs
associated with such disposal, which liability will rest solely with Licensee.
12. Representations, Warranties and Covenants. Licensor hereby represents and
warrants that it has full power and authority to enter into this Agreement and to engage in the
transaction contemplated hereby and that this Agreement is a valid obligation of the Licensor and
is binding upon the Licensor.
Licensee hereby represents and warrants that it has full power and authority to enter into
this Agreement and to engage in the transaction contemplated hereby and that this Agreement is
a valid obligation of the Licensee and is binding upon the Licensee.
Licensee further represents and warrants that it shall not cause or permit, during the
Term, any hazardous substances, which are brought onto the Facility by Licensee, to be disposed
of or otherwise released onto or under the Facility.
During the Teuuii, Licensee shall obey and comply with all present and future laws,
ordinances, rules and regulations of all governmental authorities in connection with the Event.
Licensee warrants that any and all use or performance of copyrighted material in
connection with the Event has been duly licensed and authorized by the appropriate performing
rights organizations (including, without limitation, BMI, SESAC and ASCAP), copyright owners
or their representatives and that any license or royalty fees owed to such persons or entities shall
be paid by Licensee. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND
RELEASES THE LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES,
LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY BE ASSERTED
AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO ANY
VIOLATIONS OF SUCH INTELLECTUAL PROPERTY RIGHTS OR THE LAWS
RELATING THERETO. Notwithstanding the foregoing, Licensor reserves the right to collect
Exhibit H-1
Page 5
such payments from Licensee at Event settlement and remit to appropriate parties on Licensee's
behalf. Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
13. RELEASE. LICENSEE HEREBY WAIVES AND RELEASES LICENSOR
AND ITS PARENT ENTITIES, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS
AND SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES
(COLLECTIVELY, "LICENSOR PARTIES") FROM AND AGAINST ANY AND ALL
CLAIMS, SUITS, LOSSES, INJURIES, LIABILITY AND DAMAGES (INCLUDING
REASONABLE ATTORNEYS' FEES AND COURT COSTS) ARISING OR ALLEGED
TO HAVE ARISEN OUT OF (A) ANY ACT OR OMISSION OF LICENSEE, ITS
EMPLOYEES, AGENTS, VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS,
INVITEES, PARTICIPANTS AND PERFORMING ARTISTS; AND/OR (B) THE
PRESENTATION OR PERFORMANCE OF THE EVENT. THE PARTIES AGREE,
HOWEVER, THAT THE FOREGOING WAIVER AND RELEASE DOES NOT
INCLUDE ANY CLAIMS, DEMANDS, SUITS, LIABILITIES, EXPENSES, ETC. THAT
ARISE OUT OF SUCH LICENSOR PARTY'S SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT.
LICENSEE AGREES TO USE AND OCCUPY THE FACILITY AND TO PLACE
MATERIAL, EQUIPMENT AND OTHER PROPERTY THEREIN AT ITS OWN RISK
AND HEREBY RELEASES THE LICENSOR PARTIES FROM ALL CLAIMS FOR
ANY DAMAGE OR INJURY ARISING THEREFROM.
Licensee will be solely responsible for the conduct and activities of Licensee's
employees, agents, contractors, guests and invitees and, for purposes of the Agreement, such
conduct and activities shall be deemed conduct and activities of Licensee. Licensee and its
employees, agents, contractors. guests and invitees will abide by all reasonable rules and
regulations adopted by Licensor for the use, occupancy and operation of the Facility. Licensee's
obligations under this Section 13 shall survive the expiration or termination of this Agreement.
14. Insurance Requirements. Licensee will maintain and pay all premium costs for,
and will ensure that all of Booth Vendors and other contractors of Licensee maintain and pay for,
the following insurance coverages in amounts not less than specified throughout the duration of
the Term:
A. Statutory Workers' Compensation including Employer's Liability
Insurance, subject to limits of not less than $500,000.00, affording coverage under
applicable worker's compensation laws. Licensee will cause, if allowed by law, its
workers' compensation carrier to waive insurers right of subrogation with respect to the
Licensor Parties.
B. Commercial General Liability Insurance for limits of not less than
$1,000,000.00 per occurrence Bodily Injury and Property Damage combined;
$1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggregate
Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, and
Exhibit H-t
Page 6
$2,000,000.00 general aggregate limit per event. The policy shall be written on an
occurrence basis.
C. Automobile Liability Insurance with a limit of not less than $1,000,000.00
combined and covering all owned, non -owned and hired vehicles.
D. Umbrella Liability Insurance at not less than $4,000,000.00 limit
providing excess coverage over all limits and coverages noted in paragraphs B and C
above. This policy shall be written on an occurrence basis.
Policies B, C and D above (and, if applicable, the E & 0 Coverage referenced herein)
shall list Licensor, the City of Miami, the Bayfront Park Management Trust, and their respective
parent entities, members, partners, affiliates, divisions and subsidiaries, and their respective
officers, directors, shareholders, employees, agents and representatives as "Additional Insureds"
with respect to any and all claims arising from Licensee's operations. Further, coverage for the
"Additional insureds" will apply on a primary basis irrespective of any other insurance, whether
collectible or not. Should any additional premium be charged for such coverages or waivers,
Licensee will be responsible to pay said additional premium charge to their insurer.
Licensee will deliver to Licensor satisfactory evidence of the above insurance coverage
on a certificate faint approved by Licensor or, if required, copies of the policies. All required
insurance will be placed with carriers licensed to do business in the State of Florida, have a
rating in the most current edition of A.M. Best's Property Casualty Key Rating Guide that is
reasonably acceptable to Licensor and will provide thirty (30) days written notice of cancellation
or non -renewal. Licensee may elect to self -insure for the insurance coverage required above, and
if Licensee makes such an election, Licensee shall send to Licensor a letter from Licensee's Risk
Manager agreeing to provide coverage as required above on a self-insurance basis and certifying
that such self-insurance shall not reduce the coverage to Licensor as required above.
The insurance obligations stated in this Section are independent of, and shall not be
affected by the scope or validity of, any other waiver, release or insurance provisions in other
sections of this Agreement.
Licensee will ensure that all of its contractors (including, without limitation, sponsors and
Booth Vendors arranged by Licensee) who will be entering the Facility to engage in any business
activity (including, without limitation, sampling, distributing, vending or other commercial
activity) will comply with the foregoing insurance requirements and provide satisfactory
evidence thereof prior to the Event.
15. Sponsorships and Signage. Licensee understands and agrees that Licensor has
entered into signage and sponsorship relationships related to the Facility for which Licensor will
retain all proceeds. Licensor reserves all rights to display signage at, on or near the Facility
property. No signs or advertising boards, other than those authorized in writing by Licensor, will
be allowed into, on or near the Facility. Licensee will not mark, cover or attempt to modify any
signage at, on or near the Facility.
Licensee is required to obtain Licensor's prior written approval of any sponsorship
relationships into which Licensee desires to enter for the Event.
Exhibit H-1
Page 7
16. Licenses and Permits. Licensee will be responsible for obtaining and paying for
all licenses or permits necessary for holding the Event, including, but not limited to, tax
requirements and any permits required by governmental authorities for pyrotechnics or laser use.
17. Access. Licensor, its officers, directors, servants, employees, agents,
concessionaires and its concessionaire's servants, employees and agents shall at all times have
free access to the Facility upon presentation of passes issued by Licensor.
19. Miscellaneous.
B. Third Party Beneficiaries. This Agreement does not confer any rights or
benefits upon any persons or entities other than Licensor and Licensee and their
permitted, respective successors and assigns. There are no third party beneficiaries.
B. Relationship of the Parties. Nothing contained in this Agreement will be
deemed to constitute Licensor and Licensee as partners or joint venturers with each other.
Each party acknowledges and agrees that it neither has nor will give the appearance or
impression of having any legal authority to bind or commit the other party in any way.
Licensee agrees that it will be solely responsible for the payment of all wages, federal,
state and local income taxes, as well as all workers' compensation insurance requirements
for all personnel it supplies pursuant to this Agreement.
C. Entire Agreement and Modification. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and all prior
agreements relative hereto which are not contained herein are terminated. This
Agreement may not be amended, revised or terminated except by a written instrument
executed by the Party against which enforcement of the amendment, revision or
termination is asserted.
D. Assignment. This Agreement or any part hereof may be assigned or
transferred by Licensor to any person or entity which acquires ownership or management
of the Facility. Neither this Agreement nor any part hereof shall be transferred, conveyed
or assigned by Licensee without the prior written consent of Licensor.
E. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State in which the Facility is located without regard to
any theory of the conflict of laws.
F. Use by Licensor. It is specifically agreed and understood that Licensor
has the right to occupy and use the Facility during the Term and to license any portion
thereof, provided that such use or license does not unreasonably interfere with Licensee's
use of the Facility.
G. Utilities. No interruption or malfunction of any utility services, whether
such services are provided by Licensor or arranged for by Licensee, shall (i) constitute an
eviction or disturbance of Licensee's use and possession of the Facility or a breach by
Licensor of any obligations hereunder, (ii) render Licensor liable for damages, or (iii)
entitle Licensee to be relieved of any obligations hereunder. In the event of any such
Exhibit H-1
Page 8
interruption of service provided by Licensor, Licensor shall be obligated only to use
reasonable diligence to restore such service.
H. Force Majeure. The failure of any party hereto to comply with the terns
and conditions hereof because of a "Force Majeure Occurrence" shall not be deemed a
breach of this Agreement. "Force Majeure Occurrence" shall be defined to include,
without limitation, Act of God, strike, labor disputes, war, fire, earthquake, hurricane,
tornado, flood, storm surge, acts of public enemies, acts of terrorism, epidemic, action of
federal, state or local governmental authorities or an event or reason beyond the
reasonable control of a party. In the event of a cancellation of the Event due to a Force
Majeure Occurrence, each party shall be relieved of its obligations hereunder with respect
to the performance so prevented.
I. Taxes. Any and all sales tax, amusement tax or other tax imposed by
local, state, provincial or federal government as a result of the presentation of the Event
and/or performance of any services rendered by Licensor in connection with this
Agreement hereunder, shall be the responsibility of and paid for by Licensee at the time
required by law (excepting any state or federal income tax imposed on Licensor).
Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
J. No Waiver of Rights. If either party fails to enforce any of the provisions
of this Agreement or any rights or fails to exercise any election provided in the
Agreement, it will not be considered to be a waiver of those provisions, rights or
elections or in any way affect the validity of this Agreement. The failure of either party
to exercise any of these provisions, rights or elections will not preclude or prejudice such
party from later enforcing or exercising the same or any other provision, right or election
which it may have under this Agreement.
K. Invalidity. If any teuii, provision, covenant or condition of the Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement will remain in full force and effect and will in no way be
affected, impaired or invalidated.
L. Notices. All notices given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally with receipt acknowledged or
sent by registered or certified mail or equivalent, if available, return receipt requested, or
by nationally recognized overnight courier for next day delivery, addressed or sent to the
parties at the addresses set forth herein with a copy to Live Nation, 9348 Civic Center
Drive, 3rd Floor, Beverly Hills, California, 90210, Attn: Cindy Parks, Senior Counsel,
Venues and Alliances.
M. Exclusive Venue And Waiver Of Trial By Jury. 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, LICENSOR AND LICENSEE
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.
Exhibit .H-1
Page 9
ACCEPTED AND AGREED as of the date and year first above written.
By: By:
Name: Name:
Title: Title:
Exhibit H-1
Page 10
MANAGEMENT AGREEMENa , BETWEEN THE CITY OF
MIAMI, FLORIDA, THE BAYFR T PARK MANAGEMENT
TRUST
AND
LIVE NATION WORLD 1 E, INC.
FOR THE BAYFRONT PARK AM •. ITHEATER
-
TABLE OF CONTENTS
Page
Definitions 1
Engagement of Live Nation; Scope of Services 5
2.1 Engagement 5
.2 Scope of Services 6
2. Specific Services 7
2.4 Trust Use of Facility
2.5 \\ Rights Reserved to Trust/City
2.6 Signage ..14
3. Term and enewal Term
3.1 Terrii
3.2 Rene 1 Option
4. Live Nation's Co ensation; Trust Distributions
4.1 Managemen Fee
4.2 Required TrusSDistribution
4.3 Ticket Surchar
Funding; Budgets; Bank ccounts; Alterations
5.1 Live Nation Fundin Guaranty
5.2 Non -Funding by Tres City
5.3 Receipts and Disburse ents
5.4 Alterations
6. Records, Audits and Reports
6.1 Records and Audits
6.2 Annual Plan
7. Employees
7.1 Live Nation Employees
7.2 No Solicitation or Employment by st/City
7.3 Consulting .20
8. Indemnification and Insurance
8.1 indemnification
8.2 Liability Insurance
8.3 Worker's Compensation Insurance
8.4 Property insurance
8.5 General Requirements
8.6 Certain Other Insurance
9. Ownership of Assets
9.1 Ownership
9.2 Trust/City Obligations
10, Assignment; Affiliates
(1)
IL
TABLE OF CONTENTS
(continued)
Page
Assignment
10. Live Nation Affiliates
Laws and Permits
11.1 Pe its, Licenses, Taxes and Liens
11.2 Govn mental Compliance
11.3 No Dis imination in Employment; Affirmative Action
12. Event of Default Remedies
12.1 Live Nation' efaults
12.2 City's/Trust's medies
12.3 City's/Trust's De Its
12.4 Live Nation's Reme 'es
12.5 Late Payments
13. Termination
N
13.1 City's/Trust's Termination at Will 30
13.2 Effect of Termination
13.2 Surrender of Facility
14. Net Worth Requirement; Security
14.1. Net Worth Requirement
14.2. Security
15. Miscellaneous
15.1 Venue/Waiver of Jury Trial/Attomey's Fees
15.2 No Partnership or Joint Venture
15.3 Entire Agreement
15.4 Written Amendments
15.5 Force Majeure
15.6 Binding Upon Successors and Assigns; No Third Party B neficiaries
15.7 Notices
15.8 Section Headings and Defined Terms
15.9 Severability
15.10 Non -Waiver
15.11 Certain Representations and Warranties
15.12 Governing Law
15.13 Conflict of Interest 37
15.14 Award of Agreement 37
15.15 Public Records .37
15.16 Agreement not a Lease \\.37
15.17 First Source Hiring; Local and Minority Preference Commitment ..37
EXHIBITS
EXHIBIT A - LEGAL DESCRIPTION OF THE FACILITY
EXHIBIT B INSURANCE REQUIREMENTS
TABLE OF CONTENTS
(continued)
Page
EXH : IT C UPGRADES TO BE MADE BY LIVE NATION
EXHIB D MINIMUM OPERATING AND MAINTENANCE STANDARDS
EXHIBIT •. LIST OF REPEAT ANNUAL BOOKINGS
EXHIBIT F PENDING BOOKINGS
EXHIBIT G ; APPROVED SPONSORS
EXHIBIT H - TANDARD RENTAL AGREEMENT — THIRD PARTY USE
EXHIBIT H-1 - S NDARD RENTAL AGREEMENT — CITY/TRUST USE
[REMAINDER OF PAGE BLANK]
MANAGEMENT AGREEM T BETWEEN THE CITY OF
MIAMI, FLORIDA, THE BAYF NT PARK MANAGEMENT
TRUS
AND
LIVE NATION WORLD ' IDE, INC.
FOR THE BAYFRONT PARK A ' HITHEATER
TABLE OF CONTENTS
Page
Definitions 1
2. Engagement of Live Nation; Scope of Services 5
.1 Engagement 5
2.` Scope of Services 6
2.3 Specific Services 7
2.4 Trust Use of Facility and Ticket Programs 11
2.5 ights Reserved to City and/or Trust 14
2.6 Si_' age .14
3. Term and Re ewaI Term 15
3.1 Term 15
3.2 Renewal option 16
4. Live Nation's Compe ation; Trust Distributions. 16
4.1 Management Fe16
4.2 Required Trust Di bution 16
4.3 Ticket Surcharge � , 17
5. Funding; Budgets; Bank Acco ts; Alterations 17
5.1 Live Nation Funding Gu anty 17
5.2 Non -Funding by City and/. 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 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
1.2 Governmental Compliance 27
.3 No Discrimination in Employment; Affirmative Action 28
12. Eve of Default and Remedies 28
12.1 ive Nation's Defaults 28
12.2 's and/or Trust's Remedies 29
12.3 Cit 's and/or Trust's Defaults 29
12.4 Live ation's Remedies 30
12.5 Late Pa ents 30
13. Termination 30
13.1 City's and/or rust's Right to Termination .30
13.2 Effect of Term ation 31
13.2 Surrender of Fact 'ty 31
14. Net Worth Requirement; Se 'ty 31
14.1. Net Worth Requiremer 31
14.2. Security 32
15. Miscellaneous 33
15.1 Venue/Waiver of Jury_ TriallAtt ey'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 ird 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 ,k 36
15.14 Conflict of Interest ti 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)
EXHIBI
EXHIBIT A - LEGAL DESCRIPTION OF THE FACILITY
EXHIBIT B INSURANCE REQUIREMENTS
EXHIBIT C - UPGRADES TO BE MADE BY LIVE NATION
EXHIBIT D - INIMUM OPERATING AND MAINTENANCE STANDARDS
EXHIBIT E L T OF REPEAT ANNUAL BOOKINGS
EXHIBIT F PEN ' ING BOOKINGS
EXHIBIT G APPR • VED SPONSORS
EXHIBIT H - STANDARENTAL AGREEMENT — THIRD PARTY USE
EXHIBIT H-I - STANDA' ► RENTAL AGREEMENT --- CITY/TRUST USE
Page
[REMA ' ER OF PAGE BLANK]
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is dated as of the day
of , 2008, by and between the CITY OF MIAMI, a municipal corporation
organiz- a and existing under the laws of the State of Florida, and having its principal office at
City Hall, 500 Pan American Drive, Miami, Florida 33133 (the "City"), the BAYFRONT
PARK MA • GEMENT TRUST, a limited agency and instrumentality of the City of Miami,
whose address 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 Hi l ,.California 90210 ("Live Nation").
BACKGROUND
The Trust manages d operates the Bayfront Park Amphitheater, as more particularly
described and depicted on Ex ,'bit "A" attached hereto and made a part hereof (the "Facility"),
which is located within the Mild & Claude Pepper Bayfront Park ("Park") owned by the City.
Live Nation is engaged in theusiness of operating, maintaining, managing and booking
live entertainment facilities, including o rations and marketing services for such facilities.
The City, as the owner, and the Trust, the manager, desire to engage Live Nation, and
Live Nation desires to accept the engagement, provide management services for the Facility
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of' he mutual premises, covenants and
agreements herein contained, the parties hereto, intending t be legally bound, agree as follows:
1. Definitions. For purposes of this Agreement, the fo wing 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 specifie'd.,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
performers of concerts who do not perform
primary occupation.
"Annual Repeat Bookings" -- those
Facility that are listed in Exhibit "E."
common and every day meaning and shall refer to
on a regular basis for commercial . gain as their
existing annual Events traditionally held at the
"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
ti to time be authorized in writing by such administrative official to act for him/her with
respei.. to any or all matters pertaining to this Agreement.
rrent Ticket Su char e Rate" - as defined in Section 43(a).
"Effecti e Date" - the date that this Agreement is duly executed by the parties (meaning
that all required o necessary consents and/or actions for the execution of this Agreement to be
effective and bindin upon the executing party have been obtained) and an executed original
thereof delivered to eac . of the parties.
"Event" -- all uses hich involve a scheduled beginning and ending time, typically all
within the same day and cone luding 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,
represen'tinntve -accounting-
y- Nation'sccountingear. _= - =--
"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 y, of
Operating Expenses for such Fiscal Year over Operating Revenues for such Fiscal Year, i the
case of a loss, and the excess, if any, of Operating Revenues for such Fiscal Year over Operat
Expenses for such Fiscal Year, in the case of a profit.
"Occupation Date" -- as defined in Section 3.1.
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"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
pgrades), (ii) costs of insurance premiums of the City and/or Trust, (iii) costs to remedy any
d» ects (meaning structural, mechanical or in violation of applicable code) in the Facility existing
on re 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 a times other than during an Event or the load -in or load -out in connection therewith or
cleaning . er an Event (e.g. cost to repair vandalism at the restrooms that occur when open to
the public, of 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.
"O.eratin� . Expenses" -- any and all expenses and expenditures of whatever kind or
nature incurred, dirctiy or indirectly, by Live Nation in promoting, operating, maintaining,
insuring, securing anmanaging the Facility, including, but not limited to: ad valorem real
estate taxes and assess nts, employee compensation and related expenses (e.g., base salaries,
bonuses, severance and c.` ..allowances), employee benefits and related costs (e.g., relocation and
other related expenses pur .ant to Live Nation's relocation policy, parking and other fringe
benefits), supplies, material d parts costs, costs of any interns and independent contractors,
advertising, all costs of maintai g the Facility as required by this Agreement, all ASCAP and
BMI fees, marketing and publi relations costs and commissions, janitorial and cleaning
expenses, data processing costs, dues, subscriptions and membership costs, amounts expended to
procure and maintain permits and licses, sales taxes imposed upon ticket sales or rentals,
special assessments imposed upon the `=cility by any governmental entity, professional fees
directly relating to the operation of the Fa Iv, printing and stationery costs, Event Expenses,
postage and freight costs, equipment rental c ts, computer equipment leases and line charges,
telephone switch and telecommunications servic=. , repairs and maintenance costs (e.g., elevators
and HVAC), artist and talent fees, costs, and penses, show settlement charges, security
expenses, including police and fire, travel and ente inment 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 aintenance of signage inventory and
systems, the cost of compliance with Governmental Require ents, all utility costs, all premiums
for insurance carried by Live Nation pursuant to Sections 8. 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 whichshall 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, theecost 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 ace ted accounting
principles consistently applied and recognized on a full accrual basis.
"Operating Revenues" -- any and all revenues of every kind or nature derived from
operating, managing or promoting the Facility, including, but not limited to: lice and
concession fees, rentals, revenues from merchandise sales, advertising sales, equipment re tals,
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),
ommissions or other revenues from decoration and set-up, security and other subcontractors
owever, if such revenues are collected in the first instance by and retained by such
su • ontractors, only the amount of such revenues paid by such contractors to the Facility shall be
incl ed as Operating Revenues), miscellaneous operating revenues, revenues generated from
separa agreements with Live Nation Affiliates pertaining to the Facility, sponsorship revenues,
and inter. t revenues, all as determined in accordance with generally accepted accounting
principles . recognized on a full accrual basis. For the sake of clarity, the parties acknowledge
that revenues ' .m the sale of tickets for Events at the Facility are not Operating Revenues, but
are instead reven • es of the promoter and/or performer of each such Event. To the extent that
Live Nation collec such ticket sale revenue on behalf of a promoter and/or performer, such
ticket sale revenue s .11 be the source of funds from which Live Nation collects the rental
charges and other even eimbursements owed by the promoter and/or performer for use of the
Facility, which such char_-s and reimbursements are Operating Revenues hereunder.
"Renewal Term" -- as ► efined in Section 3.2.
"Required Trust Distributi• i" -- the following amounts shall be deemed Required Trust
Distributions:
(i) for the period cord, encing November 1, 2008 and continuing through
December 31, 2008, the sum of $30,000.00;
(ii) for the Fiscal Year comm cing with January 1, 2009 and continuing
through December 31, 2009, the sum of $625,000;
(iii) for the Fiscal Year commencing uary 1, 2010 and each Fiscal Year
thereafter for the remainder of the Term, the Required st Distribution shall be an amount
equal to a three percent (3%) increase over the preced 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 Lime Nation minus all of
its total liabilities) minus its intangible assets, all according to generally a cepted accounting
principles (GAAP), consistently applied.
"Tenn" -- as defined in Section 3.1; provided, however, if this Agreement is tended for
a Renewal Term, all references to "Term" contained herein shall also include the Rene 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) at the sole cost and expense of Live Nation and not as an Operating Expense, as listed
on Exhi t "C" hereto.
2. Engage ent of Live Nation; Scope of Services.
2.1. En y ement.
(a) General Sco ' - . Trust and City hereby engage Live Nation to operate,
manage, maintain, secu -, promote and market the Facility during the Term, upon the terms and
conditions hereinafter set orth.
(b)......... Manar of the Facilit . Subject to the terms of this Agreement, Live
Nation accepts the engagemen 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 Effecti 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 Facility 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 di -City, City Manager, the Trust and/or the Executive
Director, Live Nation shall have exclusive au'tbority 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` hall food or beverages be sold,
distributed, or served after midnight and in no event shall aoholic 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 outof the Facility as and to
the extent Live Nation may desire. \
The Facility includes only a very limited number of parking spaces 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 eqi ai access to the
parking spaces for their day-to-day activities, but patrons of Events may not u such parking.
Live Nation recognizes that the availability and access to public parking will be '.ffected from
time to time by construction activities. \
-5-
or t
entran
or load -
and not t
maintain acc
and the full acc
the foregoing, Liv
areas, stage area, b
anything to the cont
responsibility, liability o
the load -in or Toad -out in c
is an Operating Expense Ex
repair of the restrooms which
during an Event or the load -in or
To ensure a secured facility, the Facility shall remain closed when not in use for an Event
e load -in or load -out in connection therewith or cleaning after an Event. The patron
e to the Facility shall remain on Biscayne Boulevard. Except during Events or the load -in
ut in connection therewith or cleaning after an Event, the Trust, at its cost and expense
be included in the services hereunder or included in Operating Expenses, shall
s to the entire Park, including any passage through the Facility that it may require,
s to the Trust's service facility located behind the Facility. Notwithstanding
Nation shall have the right to secure and prohibit access to the concession
k stage area, towers, sound booths and box offices. Notwithstanding
ry contained in this Agreement, Live Nation shall not have any
obligation, other than when any damage is caused during an Event or
nnection therewith or cleaning after an Event, for any matter which
usion, including, without limitation, the security, maintenance or
ay be required to remain open to the public at a times other than
ad -out in connection therewith or cleaning after an Event.
Live Nation agrees that it s
installed around the Facility.
2.2. Scope of Services.
1 not interfere with the surveillance cameras currently
(a) General. Live Nation s .11 perform and furnish management services,
personnel, and systems and materials as are aropriate or necessary to operate, manage,
supervise, maintain, secure, promote and market tFacility in a manner consistent with the
operations, management, promotions and marketing o . ther similar first-class facilities operated
by Live Nation and its Affiliates on the Effective Date.
(b) Number of Events. Conclusion of Ev- ts. Commencing with the Fiscal
Year commencing January of 2009, Live Nation shall use cmercially good faith efforts to
endeavor to cause at least twenty (20) Events to be held at the F ility for each Fiscal Year (and
proportionately for any partial Fiscal Year) during the Term. Live : tion shall cause the Facility
to be available for Events on a year round basis, subject to unavailablity 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 sting and subject to
City Commission approval. Notwithstanding the foregoing, Live Nation all be allowed to
cease operations at the Facility in whole or in part during the period from the ccupation 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) Evenis.to be held at
the Facility in any Fiscal Year shall not be a breach or default under this Agreement.s<<
(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 firs -class
facilities operated by Live Nation, subject to the restrictions and limitations set forth h ein.
Except as otherwise provided herein, Live Nation shall have the sole authority to approve
scheduling of any Event in the Facility, including, Events of a nontraditional nature such
multi -year user contracts (but not beyond the Term) and Events requiring or having co-
-6-
prom Lions. Live Nation covenants and agrees to book Events each Fiscal Year that are
baianed so as to ensure a reasonably proportioned blend of cultural experiences including varied
types o music and other live performances appealing to the varied tastes of the population
including, without limitation, popular, rock and roll, Latin, blues, soul, ja7.7, folk, classical, and
country m ic, and comedy and theater. Live Nation shall have no obligation, however, to book
any type or c tegory 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 occurr g, upon Executive Director's reasonable determination that such Event or use
might present unreonable safety concerns. Notice of any such determination shall be sent by
written notice to Live ation within three (3) business days after Executive Director has received
the bi-weekly booking 'ort from Live Nation that specifies the potential Event and if such
determination is not delive d within such three (3) business day period, then the Event may be
held. Any such notice sent .il the Executive Director must articulate the unreasonable safety
concerns with such specificity t .t Live Nation may address such concerns in order to obtain the
Executive Director's subsequent onsent. Live Nation shall enact a standard booking policy
providing for published rental rat • for the Facility to community and charitable groups.
Pursuant to that policy, community a charitable groups may rent the Facility in accordance
with the following: (i) such reservatican not be in conflict with another Event already
scheduled or on a "hold" by Live Nation, (ii) the user executes Live Nation's standard rental
agreement for Events in the form of Exhib" H, (iii) no such use shall include a concert (for
purposes of this sentence, a "concert." that is sprohibited shall not refer to Amateur Talent) or
violate any of the terms of any sponsorship afire' + ent entered into by Live Nation, and (iv) Live
Nation shall retain the exclusive right to the opera 'on of all concessions and other operations at
the Facility.
Live Nation shall use commercially feasible g+ • d faith efforts to make the Facility
available, subject to its booking policy, to the Annual Re r at Bookings listed in Exhibit "E";
provided, however, in the event that Live Nation is given at east six (6) months prior written
notice of the specific date(s) for holding the applicable Annual ' epeat Booking and the user has
executed Live Nation's standard use agreement attached hereto Exhibit "H" and paid the
deposit thereunder, then Live Nation shall ensure that the date(s) re ueste F vill-be available for
such Annual 'Repeat Booking (but no such Events may be scheduled uring performance of the
Upgrades). Notwithstanding the foregoing, any use of the Facility or an Annual Repeat
Booking shall be in accordance with the following: (i) the rental and f s will be at the then
current published rates, (ii) the user executes Live Nation's standard rental a reement for Events
in the form of Exhibit H, (iii) no such use shall violate any of the terms any sponsorship
agreement entered into by Live Nation, and (iv) Live Nation shall retain the exc ive right to the
operation of all concessions and other operations at the Facility.
2.3. Specific Services. Without limiting the generality of the foregoing, ve Nation
shall perform all of the following services, all without the necessity of first obtaining ity's or
Trust's approval (except as otherwise expressly provided in this Agreement), all of whi h shall
be performed by Live Nation in a manner consistent with other similar facilities operated b Live
Nation on the Effective Date:
(a) subject to the terms and requirements of this Agreement, establish
booking policies and control the booking of the Facility, including, determining the form o
- 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
ooking policies and advise the Executive Director of changes, if any, in the booking policies
d Live Nation shall consider any requests or suggestions made by the Trust or Executive
Dir tor;
(b) employ, supervise and direct all employees and personnel consistent with
the provisi. +s 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 entitie or unions shall be solely with Live Nation and not the City and/or Trust. Live
Nation shall assur that the Facility is adequately staffed during Events, during the load -in or
load -out in connect' therewith or cleaning after an Event, and as otherwise required by this
Agreement, with co etent, qualified personnel to fulfill its responsibilities under this
Agreement;
(c) admini er relationships with all third parties (including, without
limitation, entering into contra s and licenses for the food and beverage concessionaire at the
Facility) for the use, maintenance d operation of the Facility, initiate and participate in any and
all negotiations, renewals and exte ions relating to such third party relationships, and enforce
contractual agreements concerning an such third party relationships;
(d) negotiate, execute i 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, con sion agreements, supplier agreements, service
contracts (including, without limitation, contracts cleaning, decorating and set-up, emergency
services, general maintenance and maintenance and ' spection of HVAC and other systems and
elevators, stage equipment, fire control panel and other b,afety equipment, staffing and personnel
needs, including guards and ushers, telephone, exterm ation 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 Fa ity, provided that (1) if any such
License, agreement, commitment or contract has a term ,that exte s beyond the remaining Term
or Renewal Term, as the case may be, such license, agreement, •.mmitment or contract shall
provide that it is automatically assigned to Trust as of the expiratio 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 to between Live
Nation and a subsidiary and/or affiliate company shall be at terms and for p es customarily
charged by such subsidiary and/or affiliate company for comparable goods ;arid services
elsewhere at rates that are competitive within the industry;
(e) maintain the Facility (including, without limitation, all s tural
components thereof and all electrical, HVAC, life safety, mechanical, plumbing and o - er
systems and equipment, the light tower) in a good and clean condition consistent with oth
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 -
cepted. Maintenance responsibility shall include, without limitation, repairs and replacements
(st ctural, nonstructural capital and non -capital) and preventative maintenance and to comply
with xhibit "D" hereto. Except, the Trust shall maintain all green space surrounding the
Facility t no charge to Live Nation. Live Nation warrants and represents to Executive Director
that Live ation has sufficient trained and qualified employees to so maintain HVAC, roof and
elevator sys•-ms located at the Facility. Notwithstanding the foregoing, Live Nation's
obligations an responsibilities shall not include any of the Excluded Operating Expense matters;
all of which shal emain the sole obligation and responsibility of City and/or Trust.
Live Nation ,hall keep reasonable records reflecting all of Live Nation's maintenance
activities, all of whic shall be available for inspection by Executive Director or his designee
upon request. Live Na`'..n 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 s the City's Property Management Division or its consultant as part
of an annual maintenance i`' spection and review, and Live Nation shall provide monthly
maintenance status reports on ass detailed basis than are required of the quarterly reports.
Live Nation represents and ees that prior to the Effective Date Live Nation inspected
the Facility and Live Nation has ac ted the Facility "as -is, where -is and with all faults",
except for violations of Governmental equirements and defects existent as of the Occupation
Date.
(f) rent, lease, or purchase equipment and maintenance supplies necessary
or appropriate for the operation and maintenance the Facility;
(g) establish and adjust prices, rat 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, oeration, 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 T st, 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 agetit\for City and/or
Trust) without consultation or approval of the City and/or Trust, the costs of i+hich 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 collet charges,
rents or other revenues due to the City and/or Trust or Live Nation or to cancel, terrain e or sue
for damages under, any License, use, advertisement or concession agreement for the .reach
thereof or default thereunder by any licensee, user, advertiser, or concessionaire at the Facili ;
(j) maintain a master set of all booking records and schedules for the Facilit
(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-
perf rrned in a manner consistent with similar facilities operated by Live Nation and its
AffilY tes as of the Occupation Date including, but not limited to, acquisition of services,
equipment, supplies and facilities; maintenance and property management; personnel
manage ent; 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 b permitted to use the logo and brand identity of the City, as approved by the
Executive Direc r or his designee, and the Facility;
create and operate the Facility's telephone switch and telecommunications
services;
(n) act a collection agent for the City on sales taxes from operation of the
Facility and rernit to the Stat of Florida such sales taxes;
(o) subject to a terms of this Agreement, cause the Facility to be in
compliance with all Governments Requirements, including, without limitation all ADA
requirements, at all times including, hout limitation, making such repairs, improvements,
alterations and additions (both capital an 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 b the Executive Director, Live Nation shall
not license or allow the use of any portion of the Facili 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 any other insurance required by
the applicable license, use or occupancy agreement. Copi of these certificates shall be
famished to the Executive Director or his/her designee prior to an 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 be subject to City Attorney approval, not to be
unreasonably withheld; provided that Live Nation's standard rental agreement, ttached 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, currentiy.held on
the fourth Monday of the month at noon at the Trust offices;
(s)
accurately report and promptly pay all fees due to ASCAP/BMI; 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
fter an Event.
2.4. Trust Use of Facility and Ticket Programs.
Fiscal Y
Term, subje
in each case e
Trust is herein
payment of a Fac
Upgrades. Two (2) o
July 4 celebration and
public admission to these
the Trust Use Events, which
rent or other payment strictly
promptly (within ten'(10) busine
Nation for all actual expenses and
without limitation, Live Nation's stan
set-up and tear -down costs and fees and
directly necessitated by the occurrence o
standard rate charge for a Trust Use each Fis
least ten (10) calendar days prior to such change
that Live Nation may change such rates from time
changes; (ii) Live Nation shall retain exclusive rights
operations at the Facility during Trust Use, including,
concessions and sales, including alcoholic beverages (but E
prohibit the sale of alcoholic beverages for any Trust Use);
concession operations shall be Operating Revenues. Trust shal
any portion of the concession proceeds nor to operate in competit
except to the extent that food and beverages shall be available in th
ensure that the pricing for any concessions shall not exceed the normal
standard Events at the Facility; (iii) all Trust Use Events shall be schedule
Nation's scheduling needs so as not to conflict with or impair Live Nation'
anticipated schedule of Events, but shall otherwise be scheduled at times conve
Live Nation reasonably cooperating with Trust in coordinating all scheduling (bu
Nation shall not be obligated to permit any Trust Use unless scheduling
memorialized in writing signed by the parties in advance of any Trust Use); (iv) Trus
permitted to have a Trust Use for a concert (for purposes of this sentence, a "concert
prohibited shall not refer to Amateur Talent), except that the foregoing prohibition against
shall not be applicable to the July 4th or New Year's Eve Trust Use Events or to a streaming
(a) Free Trust Use. Trust shall be entitled on ten (10) occasions in each full
(and proportionately for any partial Fiscal Year) during the Term and any Renewal
t to the terms and conditions hereof, to make use of the Facility for hosting an Event,
ressly subject to the provisions of this subparagraph (a) (such instance(s) of use by
ferred to as "Trust Use"). Trust use shall be available to the Trust without
Use Fee. In no event will a Trust Use occur during the performance of the
the Trust Use Events shall be annually reoccurring on July 4, for the Trust's
December 31, for the Trust's New Year's Eve celebration; for which
vents is free. Trust shall maintain complete control of any VW areas for
ay. include food and beverage. Although Trust shall not owe a fee,
or the right to make such Trust Use, nonetheless (i) Trust shall
days after receipt of written invoice therefore), reimburse Live
sts incurred by Live Nation to facilitate Trust Use, including,
d charges for janitorial, clean up, crowd and traffic control,
arges (including for materials, labor and other services)
rust Use. Live Nation shall provide Trust with the
1 Year and provide any interim changes thereto at
ing effective, it being the intention of the parties
ime but must give Trust prior notice of such
the operation of all concessions and other
without limitation, food and beverage
cutive Director shall have the right to
nd all proceeds of such sales and
ave no right to reserve or retain
therewith within the Facility,
VIP area. Live Nation will
icing therefore charged at
in accordance with Live
bility to maintain its
ient for Trust, with
n any case, Live
erefore was
hall not be
at is so
oncert
*deo
of any sport championship celebrations being broadcast from sports stadiums or any concert wh'eh
is promoted by Live Nation on behalf of the City or Trust on terms mutually agreed upon by thh
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
- 11 -
orward" any unused Trust Use opportunity from a prior Fiscal Year; such that if during any
cal Year fewer than ten (10) Trust Uses actually occur for any reason, including reasons that
wer completely outside the parties' reasonable control, then Trust shall be deemed irrevocably
to ha - waived its right or entitlement to the Trust Use Event that otherwise could have
occurreduring the prior Fiscal Year(s). Live Nation shall have the right to promulgate
reasonable les from time to time concerning Trust Use so long as they are consistent with the
terms hereof ; d rules imposed upon other Events at the Facility.
(b)
complimentary ticke
which is presented o
complimentary tickets fo
"Complimentary Tickets")
the sale or re -sale of the C
Tickets to the intended user prior
the public. Under no circumstances
unused or un-retrieved Complimen
neglects or otherwise fails to secure the
Nation's failure to comply with its obliga
deemed irrevocably to have waived its right o
Tickets and Trust shall not be entitled to any re
circumstances shall Trust be entitled to secure an
days immediately preceding the applicable Event (at
otherwise then available shall be deemed forfeited). Liv
control over seating location decisions for Complimentary
the Complimentary Tickets are seats within the top 50% tiere
may change from Event to Event). Live Nation shall provide a
the Trust can conveniently secure the Complimentary Tickets
nothing herein shall obligate Live Nation to remind Trust o
Complimentary Tickets nor to physically deliver them to the Trust (e
not make such Complimentary Tickets available for the Trust to pick
miles from the Facility, Live Nation shall cause such Complimentary Tick
the Trust). The Trust shall arrange for an employee, messenger, or
representative to physically retrieve any Complimentary Tickets from Live N
Live Nation does not make such Complimentary Tickets available for the Trust to p'
within six (6) miles from the Facility, Live Nation shall cause such Complimentary
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 perfo
does not allow Complimentary Tickets to be distributed. For any such Event where th
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
Free Complimentary Tickets. Trust shall be entitled to receive thirty (30)
for each Event at the Facility that is open to the .general public and
romoted by Live Nation and if available without cost, ten (10)
each third party rental that is open to the general public (herein,
bject to the terms of this subparagraph. Trust may not engage in
limentary Tickets nor may Trust offer any Complimentary
the date the tickets have first become generally available to
all Trust be entitled to "roll over" or "carry forward" any
ickets; such that, in case of any Event for which Trust
mplimentary Tickets for any reason other than Live
ns under this subparagraph, then Trust shall be
entitlement to those particular Complimentary
eration for any lost opportunity. Under no
Complimentary Tickets within three (3)
hich point any Complimentary Tickets
Nation shall have sole and exclusive
'ckets from time to time so long as
ice level (and thus the location
ve Nation contact from whom
in time to time; provided,
the availability of the
ept if Live Nation does
same within six (6)
to be delivered to
ther authorized
on (except if
k up same
kets to
- 12-
faith, Live Nation shall be deemed to have discharged its obligations respecting its efforts to
ecure autographed memorabilia. All memorabilia so autographed shall be kept and stored by
L e Nation pending written request of the Trust to have the memorabilia delivered to the Trust
for I , use in an auction. Upon at least six (6) months prior written notice, the Trust may have
an area .t the Facility, as delineated and selected by Live Nation, or within the Park, as selected
by the T t, during an Event that is promoted or presented by Live Nation for the purpose of
the Trust h. sting and conducting a silent auction for patrons of the Event at which the
autographed •emorabilia accumulated to date shall be auctioned to the highest bidder (a
"Bayfront Park upport Auction"). The theme of any Bayfront Park Support Auction, which
Trust shall public' . in any manner the Trust determines is best, shall be a theme of enhancing
and promoting the st's programming or capital improvements in Bayfront Park or other
social programs for c munity benefit and welfare as the Trust may reasonably determine
("Community Enhance nt"). The Trust shall be solely responsible for conducting the
Bayfront Park Support A ction, including, without limitation, handling all bidding and
accounting therefor and deli -ry and pick-up of all memorabilia by bidders in association
therewith. Trust agrees that it all apply all net proceeds for Bayfront Park Programs or
improvements. For these purpose "net proceeds" shall mean all proceeds of bids actually
received from the Bayfront Park Sup •rt Auction. Live Nation shall retain exclusive rights to
the operation of all concessions and oth:. operations at the Facility during any Bayfront Park
Support Auction, including, without lim ..tion, food and beverage concessions and sales,
including alcoholic beverages; and all prose •.s of the sales and concession operations shall be
Operating Revenues (Trust shall have no other .ght of participation in any portion thereof nor
to operate in competition therewith). Live ion will ensure that the pricing for any
concessions shall not exceed the normal pricing the efore charged at standard Events at the
Facility. The Bayfront Park Support Auction shall � scheduled in accordance with Live
Nation's scheduling needs so as not to conflict with or i 'air Live Nation's ability to maintain
its anticipated schedule of Events, and the parties shall reas► ably cooperate with each other in
coordinating all scheduling (but in any case, Live Nation sh: . not be obligated to permit any
Bayfront Park Support Auction unless scheduling therefore was , morialized in writing signed
by the parties in advance of any such Bayfront Park Support Aucti and there is no objection
from the artists performing at the" -Event). -Under no circumstances shy • I -the-Trust-be permitted
to host a Bayfront Park Support Auction that violates the terms of any s nsorship entered into
by Live Nation. Trust shall not be entitled to "roll over" or "carry . ard" any unused
Bayfront Park Support Auction opportunity from a prior Fiscal Year; such at, in the event
during any Fiscal Year no Bayfront Park Support Auction occurs for any r• on, including
reasons that were completely outside the parties' reasonable control, then, st shall be
deemed irrevocably to have waived its right or entitlement to the Bayfront P •b- Support
Auction that otherwise could have occurred during such prior Fiscal Year(s). How.ver, any
such waiver applies to the Event only, and not to the memorabilia Live Nation collec -d for
purposes of auctioning at the Bayfront Park Support Auction. Live Nation reserves the ri to
promulgate reasonable rules concerning the Bayfront Park Support Auction so long as same
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,
con actors and employees of the Trust shall have the right to enter all portions of the Facility
to in . ct same, to observe the performance of Live Nation of its obligations under this
Agreem t, to install, remove, adjust, repair, replace or otherwise handle any equipment, utility
lines, or o er matters in, on, or about the Facility, or to do any act or thing which the Trust
may be obit_., ted or have the right to do under this Agreement. Nothing contained in this
subparagraph i intended or shall be construed to limit any other rights of the City and/or Trust
under this Agree ent. Notwithstanding the foregoing reserved rights of the City and/or Trust,
the City and/or ' st shall not unreasonably interfere with the activities of Live Nation
hereunder, and the C 's and/or Trust's actions shall be conducted such that disruption of Live
Nation's work shall b kept to a minimum and there shall be no disruption of any Event by
City and/or Trust (in its roprietary capacity of the foregoing shall not diminish any rights of
City and/or Trust in its go ernmental capacity). Nothing in this Section shall be construed to
impose upon the City and/o Trust any independent obligation to make repairs, replacements,
alterations, additions or impro ements or perform any maintenance or create any independent
liability for any failure to do so.
2.6 Signage. The ollowing provisions shall govern the name -in -title rights,
interior naming rights, and the related s nage rights with respect to the Facility:
(a) Name -in -Title Ri ht Exterior Si age. Live Nation shall have the name -
in -title rights (i.e., the right to name the Facity) and all revenue derived therefrom. Any such
name shall include "Amphitheater at Bayfront ark." The Trust shall have final approval rights
as to the name selected by Live Nation, whit approval shall not be unreasonably withheld;
conditioned or delayed. Any proposed name mus omply with all federal, state, county, and/or
municipal law, rule or ordinance; provided, howeve unless approved by City Commission, in
no event may any such signage include the names of company selling the following types of
products ("Prohibited Names"): guns, tobacco or sexual oducts.
Live Nation shall bear all costs (as part of Operating xpenses) to obtain and install new
signage and to remove the existing signage Further, if the n a -in -title is approved as stated
herein, Live Nation agrees to utilize the full name of the Facility ' its publications, advertising,
promotions, websites, announcements, and other similar and relate materials referring solely to
the Facility, unless the use of the full name -in -title is otherwise unf ible due to size or space
limitations on such publications, advertising, promotions, websites, ouncements, and other
similar and related materials, or outside of its direct control. All exterior ignage located on the
exterior of the perimeter of the Facility shall be subject to Executive Di ctor's prior written
approval as to size, location, materials and aesthetics, and shall comp] with all zoning
requirements. Live Nation shall have no right to install any other signage on th exterior of the
Facility. Live Nation acknowledges that the Bayfront Park Marquee Sign is no included in
exterior signage.
City and/or Trust shall have no right to install or allow to be installed any signage \n the
exterior of the Facility without Live Nation's prior written approval as to size, location,
- 14 -
mat ials, content and aesthetics. This limitation shall not in any way apply to the Marquee
Sign, •r 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 interis signage (and all proceeds derived therefrom shall be Operating Revenues); provided,
however, t'at the sponsorship names thereon are subject to Trust's approval which shall not
unreasonabl be withheld, conditioned or delayed. The sponsorship names on any such signage
may include ar y of the names shown on Exhibit "G" hereto (all of which are deemed approved)
or such other n es 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 f products ("Prohibited Names"): guns, tobacco or sexual products.
Nothing contained herein shall preclude Live Nation from allowing sponsors of
temporary events from us] g temporary banners and temporary signage within the Facility with
respect to any Event so Ion as the banners and signage do not include any Prohibited Names.
Live Nation shall be entitled t all interior signage (and all proceeds derived therefrom shall be
Operating Revenues).
(c) Marquee. ive Nation shall not receive any complimentary use of the
Marquee Sign for any name -in -title ide tifieation or advertising; however, Live Nation may list
up.uiuing performances -at the --Facility- he -Marquee —Sign, at no -cost -to Live Nation. Further,
Live Nation may purchase advertising or n ed sponsor space for the promotion of a named
sponsor or any sponsor of its -Events. In th event that Live Nation secures a name -in -title
sponsor for the Facility and such name -in -title onsor is approved by the Trust as provided in
subparagraph (a) above, then Live Nation shall ha the right to include the identity of the name
in title sponsor on the Marquee as the prominent si age thereon, and Live Nation shall pay to
Trust ten percent (10%) of the revenue received by Liv Nation for any name in title sponsorship
after deduction of Permitted Signage Expenses (as define below). Payments to Trust of revenue
after deduction of Permitted Signage Expenses shall be m e within fifteen (15) days after Live
Nation's receipt of the applicable revenue from the name title sponsorship user. As used
herein, the term "Permitted Signage Expenses" means fees pa% in connection with the name in
title sponsorship for commissions, costs of constructing signage d the face value of free tickets
provided to the holder of the rights of the name in title sponsorsip for Events in the Facility
required to be provided by the terms of the agreement for the name i title sponsorship.
(d) General Requirements. All signage (interior, terior, permanent and
temporary) shall comply with all applicable Governmental Requir- ; ents, 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 the later of
(i) Effective Date or (ii) August 5, 2008 ("Occupation Date") and end at midnight on 1 - cember
31, 2018 ("Expiration Date"), unless earlier terminated pursuant to the provision of this
Agreement. Live Nation shall have the exclusive right to manage and operate the Facili from
and after the Occupation Date subject to the terms of this Agreement. City and/or Trust ,hall
cooperate and assist Live Nation in effecting a smooth transition of the management of e
- 15 -
Facility. No costs, fees or expenses of City and/or Trust under the current management
greement or incurred prior to the Effective Date shall be included in Operating Expenses.
otwithstanding anything to the contrary contained in this Agreement, in the event that the
E " ective Date has not occurred by August 5, 2008, Live Nation shall have the right to withdraw
and evoke its execution and delivery of this Agreement.
.2. Renewal Option. Live Nation shall have the option to extend the Term of this
Agreerne for two (2) additional five (5) year periods (each such five (5) year period being a
"Renewal -rm") provided that all of the following conditions are met:
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
ation desires to exercise the renewal option. Time shall be of the
es rice with respect to the Exercise Notice and if Live Nation fails to
provi - e written notice as and when required, the renewal option shall
expire .sad shall not thereafter be exercisable; and
(ii) Live Nation all not be in default under this Agreement both at the time
Live Nation de vers its Exercise Notice and at the commencement of the
applicable Renew . Term; and
(iii) the Trust consents, i' writing, to the extension of the Term for the
applicable Renewal Terri.
The Trust shall respond in writing to the E
receipt thereof, and the failure of the Trust to timely
Exercise Notice. In the event the conditions of (i), (ii)
event this Agreement shall expire at the end of the initia
Expiration Date) or first Renewal Term, as applicable, and th
apply. If, however, all conditions of (i), (ii) and (iii) are m
Agreement shall be renewed for the applicable Renewal Term
conditions, except that the Required Trust Distribution for the firs
Term shall be adjusted to be increased by three percent (3%) on Jan
further adjusted to be increased by three percent (3%) on each Janu
Renewal Term thereafter.
4. Live Nation's Compensation; Trust Distributions.
rcise Notice within fifteen (15) days after
pond shall be deemed a consent to the
d (iii) are not met, then and in that
erm (Le., on the originally stated
ovisions of Section 13.2 shall
then and in that event this
o all of the same terms and
ear of the first Renewal
1, 2019 and thereafter
of the applicable
4.1. Management Fee. As consideration to Live Nation for providing e services
herein specified during the Term, Live Nation shall receive one -hundred percent (%) of the
Net Operating Profit.
4.2. Required Trust Distribution. Live Nation shall distribute to Trust the Re' ired
Trust Distribution in annual payments in advance, the first of which shall be due and payablon
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
- 16 -
own funds pursuant to Section 5,1. Each installment of Required Trust Distributions shall be
ributed or paid to Trust, without setoff, reduction or abatement prior to any payments to Live
Na -.n of the Management Fee.
3. Ticket Surcharge. In addition to the Required Trust Distribution, the Trust shall
receive . additional disbursement in accordance with the City Code ("Ticket Surcharge") as
follows:
{: Live Nation shall pay all applicable Ticket Surcharges as stated in section
53-2 of the City C.de and Ordinance 10509, as amended and as the same may be amended from
time to time. Live ation shall make payment of Ticket Surcharge monthly, on or before the
15th day, for the pre ` • ding 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 t.. artists and third parties but shall apply to all other complimentary
tickets. As of the Effective P ate of this Agreement, the ticket surcharge is as follows (the
"Current Ticket Surcharge Rate
Ticket Price mount o Surchar • e r er ticket
$1.00 to $14.99
$1-5;00 to $29.99 _._
$30.00 and over
$0.75
LOO
00
Notwithstanding anything to the ontrary contained in this Agreement, the
Current Ticket Surcharge Rate shall be recalculated ,or the beginning of each Renewal Term to
be the then current Ticket Surcharge stated in sectio53-2 of the City Code and Ordinance
10509, as amended and as the same may be amended fro time to time.
(b) Amounts to be paid to Trust pursuan 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 Li-v Nation.. to -Tr tst_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 uarantees to
City and/or Trust that Operating Revenues shall at all times be sufficient to pay as and when due a Operating
Expenses, the Required Trust Distributions and the Ticket Surcharge and all other amounts that Live ation is
obligated to pay pursuant to this Agreement. Live Nation hereby covenants and agrees that if at any time t re are
insufficient Operating Revenues to pay all of the foregoing amounts as and when required, Live Nation hall
immediately pay the difference from Live Nation's own funds. The foregoing obligation is absolute d
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
oregoing constitutes a guaranty of payment and not of collection. To the extent Live Nation makes any such
p rnent, Live Nation shall be entitled to reimbursement from Net Operating Profit as and when sufficient
funare available. Live Nation agrees, however, that upon any expiration or termination of this Agreement,
Live Lion shall pay from its own funds all Operating Expenses, Required Trust Distributions, Ticket
Surcharg, and all other amounts required to be paid pursuant to this Agreement through the date of expiration
or terminal n (and shall be entitled to reimbursement for any prepaid Required Trust Distributions attributable
to periods aft, the expiration or termination date). From and after the date of expiration or termination, Live
Nation shall no be entitled to any reimbursement for any such payments and Live Nation hereby irrevocably
waives any right • seek any such reimbursement. The provisions of this Section shall survive any expiration
or termination of th Agreement.
5.2. Non-F dingy b Ci
(a) City and/o Trust shall have no obligation to provide funds for the payment of Operating
Expenses and shall be enti ed to receive the Required Trust Distributions and the Ticket Surcharge from
Live Nation even when Opera-'ng Revenues are insufficient.
(b) City and/or Trust ili have no funding or other payment obligations with respect to the
Facility or its Operating Expenses o its operations other than the costs of (i) Operating Expense Exclusions,
(ii) any excess of the Current Ticket ' rcharge Amount, and (iii) any other costs which are required to be
paid by the City and/or Trust under thi Agreement. Live Nation, City and Trust have entered into this
Agreement with the expectation and belie that no governmental body will impose any ad valorem taxes
upon the Facility nor any sales, income, e cise or other taxes upon the Required Trust Distributions
(collectively "Tax Obligations"). In the event y governmental body asserts that any Tax Obligations are
due for a Fiscal Year or part thereof, then Live N:°'on shall have the obligation to pay such Tax Obligations
as part of the Operating Expenses; provided, ho ever, that notwithstanding anything to the contrary
contained in this Agreement, upon any such payment Live Nation, there shall be a credit to Live Nation
in the amount of such payment, which credit shall applied against the next payable Required Trust
Distributions until Live Nation realizes and exhausts th entirety of the credit and in the event that the
remaining Required Trust Distributions are insufficient t net out Live Nation's payment of any Tax
Obligations, Live Nation shall not be obligated to pay the amo t of such insufficiency. It is the intention of
the parties that Live Nation's obligation to pay the Tax Obligatio is to be completely netted out against the
Required Trust Distributions and Live Nation shall not be liable o obligated for any insufficiency. In the
—event any -governmental body asserts that any Tax ObligatiotiC are d for' a FiscaFYear or part thereof which
are in excess of the then current Required Trust Distribution, then Citand/or Trust shall have the right, at
any time thereafter to terminate this Agreement upon not Tess than thi (30) days prior written notice to
Live Nation ("Termination Notice"). In the event City and/or Trust does t exercise its termination right
for a Fiscal Year with respect to which Tax Obligations were imposed, Cityand/or Trust shall nevertheless
retain its right of termination and may elect to terminate in the event that any T Obligations are imposed
with respect to any subsequent Fiscal Year (i.e., waiver of termination with res t to any particular Fiscal
Year shall not constitute waiver for any subsequent Fiscal Year). If City an or Trust exercises its
termination option, the following shall occur: (a) this Agreement shall terminate upo the date specified by
City and/or Trust in the Termination Notice; (b) Live Nation shall pay all amou owed under this
Agreement through the date of termination including all Operating Expenses and Required Trust
Distribution and Ticket Surcharge (including any amounts required to be advanced by Live ation 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 t osts of the
Upgrades as of the Termination Date. The unamortized cost shall be determined by amortizingthe total
costs (up to but not exceeding $2,000,000) paid or incurred by Live Nation for the Upgrades on a aight
line basis (without interest) over the period from the date when the costs were incurred over the en
remaining Term of this Agreement. Live Nation shall be entitled to the Termination Payment only if is
Agreement is terminated pursuant to Section 5.2(b) and not if termination occurs for any other
- 18 -
reason. if the City anchor 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
at portion of the Required Trust Distribution which has been prepaid by Live Nation for the
re ainder of the Fiscal Year, with the reimbursement and the payment of the Termination
Pay +ent to be made within thirty (30) days after the termination date. Termination under this
Sectio+ 5.2(b) shall not be deemed a termination at will as set forth in Section 13.1(b). The
provisio of this Section regarding the above reimbursement and payment obligations of the
City and/o Trust shall survive the termination of this Agreement.
5.3. ecei+ts and Disbursements. Live Nation shall establish and maintain in one or
more depositors one or more operating, payroll and other bank accounts for the promotion,
operation and m • • gement of the Facility, as Live Nation shall determine. All Operating
Revenues collected . Live Nation from the operation of the Facility shall be deposited into the
accounts and all Opera ng Expenses shall be paid by Live Nation as agent for the City and/or
Trust from the accounts. • ny amounts remaining in the Operating Accounts upon termination of
this Agreement for any r • on, after payment of all Operating Expenses, Required Trust
Distributions and any Ticket ` rcharge and all other amounts that Live Nation is required to pay
under this Agreement through +e date of expiration or termination shall be promptly paid to
Live Nation.
5.4. Alterations.
(a) Live Nation shall no make any additions, improvements, or alterations
(collectively "Alterations") to the Facility out Executive Director's prior written consent,
except, however, that Executive Director's con -nt shall not be required with respect to (i) the
Upgrades to be made by Live Nation pursu• to subparagraph 5.4(b)(ii) below; or (ii)
Alterations required by Governmental Requirements; • r (iii) nonstructural Alterations that do not
in the aggregate cost more than $400,000 for a spec is project. The costs of all Alterations
made by Live Nation for purposes of complying with a overnmental Requirements or that are
necessary for the maintenance of the Facility shall be Oper.. 'ng Expenses. The costs of all other
Alterations made by Live Nation shall be borne solely by L've Nation from its own funds and
shall not constitute Operating Expenses. Executive Director all not unreasonably withhold,
condition or delay his/her its consent to any. Alterations excep that Executive Director may
withhold its consent in its sole and absolute discretion with respect t• any Alterations that change
the structural elements or life-saving systems or that affect the ' xterior of the Facility.
Notwithstanding anything to the contrary, however, Live Nation shall not under any
circumstances be permitted to make any Alterations that: (i) adversel affect the structural
portions of the Facility, or (ii) fail to comply with any applicable Governmenquirements, or
(iii) interfere in any material manner with the proper functioning of any ec mcal, 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 aid 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" (sdch
work is herein referred to as the "Upgrade" or "Upgrades") pursuant to the following terms:
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an
but n
specifica
to submitti'g
cause to be
Concept Plans
include all of th
Nation shall comp
5.4(b)(i). Live Natio
costs and the costs of
(the "Cap") to complete th
Upgrades in the order of prio
expended towards Priority 1
Notwithstanding anything to the co
to have satisfied its obligations hereun
not then been completed. The parties ag
phases calculated to minimize interference
continued use of the Facility for the permitted
as Live Nation shall determine, in its sole discretio
the approval of final Plans by any and all federal,
authorities, offices and departments having jurisdiction
Live Nation will complete all Upgrades in a good and w
with all applicable Governmental Requirements. Nothing
Nation from its obligation of performing the Upgrades as req
general contractor performing any Upgrades shall not have been
City.
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
fter the Occupation Date of this Agreement (whereupon same shall be deemed a part hereof)
e "Concept Plans"). The Concept Plans shall be consistent with Exhibit "C" in all respects
ith the purposes, rights and obligations under this Agreement and shall generally reflect,
necessarily to scale and without the level of detail and specifics found in final plans and
ons, the overall anticipated scope of Upgrades to be constructed by Live Nation. Prior
an application for a building permit for Upgrades, Live Nation shall develop or
veloped construction plans and specifications, which shall be consistent with the
approved by Executive Director (collectively, the "Plans"). The Plans shall
specific capital improvements described on Exhibit "C," all of which Live
to on or before January 1, 2009, subject to the terms of this subparagraph
shall expend not less than $2,000,000, including both hard costs and soft
performance bonds, whether a direct or indirect cost to Live Nation,
Upgrades; provided, however, Live Nation agrees to complete the
ty shown on Exhibit "C." Accordingly, the Cap shall first be
ntil completed,. then Priority 2 until completed, etc.
ary, upon achieving the Cap, Live Nation will be deemed
with respect to the Upgrades even if all Upgrades have
e that prosecution of the Upgrades may proceed in
"th portions of the Facility so as to allow the
es throughout the prosecution of the Upgrades
from time to time. Live Nation will obtain
tate, municipal and other governmental
the matter, as required and necessary.
anlike manner and in accordance
ntained herein shall relieve Live
ired by this Agreement. Any
ubject to disbarment by the
(ii) In the event Live Nation has timely (e.g. within nin ty (90) days after the
Occupancy Date) applied for and diligently attempted to obtain all Upgra• -s Consents but has
failed to obtain the Upgrades Consents on or before November 1, 2008, then e Required Trust
Distribution shall abate and not accrue or be payable for the period of Noveznbe , 2008 through
the date that Live Nation obtains all such Upgrade Consents. Further, in the e •nt that such
failure to obtain the Upgrade Consents continues through January 31, 2009, Live ation will
have the right to terminate this Agreement and this Agreement shall be terminated as o e 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 (30)
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 -
performer such Alterations in compliance with all Governmental Requirements. Under no
circumstan:es shall Live Nation make any Alterations which incorporate any Hazardous
Substances +eluding, without limitation, asbestos -containing construction materials, into the
Facility. Any equest for Executive Director's consent to any proposed Alterations by, through
or under Live : tion shall be made in writing and shall contain plans or other written materials
describing the w k in detail reasonably satisfactory to Executive Director, provided that
architectural plans a11 not be required unless required for the issuance of a building permit.
Executive Director sh 1 provide or deny consent within ten (10) business days following receipt
of Live Nation's writt + request, the failure to provide or deny consent within such ten (10)
business day period shal .e deemed a consent. Should the work proposed by Live Nation and
consented to by Executive )irector modify the basic floor plan of the Facility and the building
permit therefore require arc 'tectural plans, then Live Nation shall, at its expense, furnish the
Trust with as -built drawings . d CAD disks for such work. All Alterations (including without
limitation, all Upgrades construe -d 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 su • ndered with the Facility at the expiration or termination of
this Agreement. With respect to Alte .tions costing in excess of $200,000 Executive Director
may require Live Nation to obtain a pa -nt bond for the work.
6. Records, Audits and Reports.
6.1. Records and Audits.
(a) Live Nation shall keep full accurate accounting books and records
relating to all Operating Revenues and Operating Ex. ses, and accurate records of all tickets,
and accurate records of the number of Events held, all i accordance with generally accepted
accounting principles. Live Nation shall give the Trust's thorized representatives access to
such books and records during reasonable business hours an• port reasonable advance notice.
All books and records shall be made available on -site at the Ric' ty, at Live Nation's offices in
Miami, Miami Beach or Ft. Lauderdale or electronically, as dete ned by Live Nation, but in
any event in accordance with all Legal Requirements. Live Nation sh. 1 keep and preserve for at
least three (3) years following each Fiscal Year or for as long as such r• ords are required to be
retained pursuant to Florida Public Records Law, all sales slips, ren : greements, purchase
order, sales books, credit card invoices, bank books or duplicate deposit slip.. and other evidence
of Operating Revenues and Operating Expenses for such period. In addition, or before March
31 following each Fiscal Year (commencing March 31, 2010), Live Nation s 11 furnish to the
Trust a line item (i.e., by categories) statement of Operating Costs and Operating evenues (and
profit or loss) for the Facility for the preceding Fiscal Year and including the num . r of tickets,.
and the number of Events held, prepared in accordance with generally accepted . ccounting
principles certified as accurate by Live Nation's Chief Accounting Officer or Chie financial
Officer.
(b) Executive Director shall have the right at any time, and from time to me,
to cause independent auditors or Trust's own accountants or auditors to audit all of the boo - of
Live Nation relating to Operating Revenues, Operating Expenses, the records of all tickets so
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 invoice . No costs incurred by the Trust in conducting such audit shall be considered an
Operating Ex sense. The Trust's right to have an audit made with respect to any Fiscal Year and
Live Nation's bligation to retain the above records shall expire three (3) years after Live
Nation's stateme t for such Fiscal Year has been delivered to the Trust.
6.2. Annu Plan. Commencing March 1, 2010, Live Nation shall provide to the Trust
on or before March 3 of each year, an annual management plan. The annual plan shall include
information regarding ►'ve Nation's anticipated operations for such Fiscal Year, including
planned operating and m t intenance activities, anticipated capital improvements and capital
equipment purchases and . anticipated budget therefore, and planned equipment and
furnishings purchases. Such . ual plan shall only be an estimate of activity and Live Nation
shall have the right from time to ime 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, ain and employ at the Facility such number of
employees as is necessary or appropriate for Live ation to satisfy its responsibilities hereunder;
Live Nation shall recruit employees consistent with tandards employed at comparable facilities
operated by Live Nation on the Effective Date, and ive Nation shall have authority to hire,
terminate and discipline any and all personnel employe by Live Nation working at the Facility.
Live Nation shall designate a representative that the Execu 've 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 of er Live Nation employees at
the Facility shall not for any purpose be considered to be employees c f 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 oi' 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 haste, specific
performance in the form of injunctive relief shall be available for the enforcement of this
provision. `°,
8. Indemnificafion and Insurance.
8.1. Indemnification.
- 22 -
(a) Live Nation shall indemnify, hold harmless and defend (with counsel
appro d by City Attorney) the City, the Trust, and their respective officers, agents, servants and
employes 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 natu` ("Claims") arising out of (i) error, omission or negligent act or willful misconduct
of Live Natiooil 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 th Facility or any Event held therein or rental or use of the Facility; provided
that there is express excluded from the foregoing obligations any Claims to the extent resulting
from the acts or negli: nce of the City, the Trust, and their respective officers, agents (excluding
Live Nation acting or orking as an agent), contractors (excluding Live Nation acting or
working as a contractor) • ' employees or the use of the Facility by the City, the Trust, or their
respective officers, agents (e luding Live Nation acting or working as an agent), employees and
invitees. Patrons of the Facilit at Events other than a Trust Use are not invitees of the City or
Trust.
(b) The provision 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 ke-. in force at all times during the Term of this
Agreement insurance policies in the limits set forth i . Exhibit "B".
8.3. General Requirements. All insurance p • vided 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-'.. or better in Best's Insurance Guide
as published by A.M. Best and Company. Such insurance ma be carried under blanket policies
that include other properties so long as the policies provide sarate coverage for the Facility.
-Upon the executiorr--of this A-green,eut, and, thereafter, n 30) plays -prior to the
expiration dates of the expiring policies required pursuant to k s Article 8, certificates or
renewal certificates, as the case may be, bearing notations evidencin, the payment of premiums
or accompanied by other evidence -reasonably satisfactory to Trust v' .such payment, shall be
delivered by Live Nation to Trust. All policies of insurance provided ar in Section 8.2 shall
name City and the Trust as insured parties and loss payees as their interest =y appear.
Each policy of insurance required to be carried pursuant to the provis' ns of Article 8
shall contain (i) an agreement by the insurer that such policy shall not be candled or denied
renewal without at least thirty (30) days prior written notice to the Trust, and (ii) waiver of
subrogation by the insurer. All insurance procured by Live Nation in accordan with the
requirements of this Agreement shall be primary over any insurance carried by the Trust d not
require contribution by the Trust.
8.4. Certain Other Insurance. If any of the Trust Agreements with third parties cons
of agreements with independent contractors to provide services in respect of the Facility, th
Trust shall use reasonable efforts to cause such contractors to name Live Nation as an additional
- 23 -
insured under any insurance maintained by such contractors pursuant to the terms of such Trust
greements and in such event to deliver to Live Nation promptly after request therefore a
ce -Tied copy of the policy and a certificate evidencing the existence thereof. In addition, if Live
Natio enters into any agreements during the term of this Agreement with any independent
contract s s. for the provision of services hereunder, Live Nation shall require the contractors to
name Live ation, the City and the Trust as additional insureds under any insurance required by
Live Nation eunder and to deliver to Live Nation and the Trust prior to the performance of
such services a ce ificate evidencing the existence thereof.
9. Ownership of sets.
e ownership of the Facility and all buildings and real estate, all
reof) technical and office equipment and facilities, furniture,
si ilar tangible property located at the Facility shall remain with
Ownership
s
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 (h .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 -
Assignment; Affiliates.
10.1. Assignment.
(a) Except as otherwise specifically provided in this Section, Live Nation may
not volun ily or by operation of law, assign, encumber, pledge or otherwise transfer all or any
part of Live ation's interest in this Agreement (except that Live Nation may encumber, pledge
or otherwise sfer its proceeds and distributions under this Agreement and may encumber,
pledge or othe i se transfer its interests under this Agreement provided that no other person or
entity may operat- or manage the Facility as a result of any such encumbrance, pledge or other
transfer) or subcont . ct its management duties hereunder. Any attempt by Live Nation to assign
all or any part of its terest and any attempt to subcontract its management duties hereunder
(except as otherwise sp ifically provided in this Section) shall be void and of no force or effect.
In the event of any as '_nment, transfer, encumbrance or subcontract, Live Nation shall
nevertheless remain liable +r all obligations hereunder and the transferee shall be jointly and
severally liable for all obliga Tons thereafter arising under this Agreement, Any transfer of a
controlling interest in Live Nati (whether in a single transaction or multiple transactions) shall
be considered an assignment of Agreement. Live Nation specifically recognizes that City
and/or Trust selected Live Nation to ► the manager of the Facility as a result of the City's and/or
Trust's evaluation of Live Nation's su=cific qualifications and experience in operating similar
facilities.
(b) Notwithstanding anythi to the contrary contained herein, Live Nation
shall have the right to assign or transfer this A eement without the necessity of City's and/or
Trust's consent to an Affiliate that has Tangible Worth of not less than Five Million Dollars
($5,000,000), provided that Live Nation and Affiliaexecute and deliver to City and Trust an
agreement pursuant to which the Affiliate assumes all'•bligations under this Agreement arising
subsequent to the assignment or transfer and Live Natio acknowledges that it remains jointly
and severally liable for all such obligations.
(c) Live Nation shall have the right to assign transfer this Agreement to any
of the following (each a "Transferee"):
(i)
Nation,
provided in either case all of the following conditions are met:
1. The Transferee has a Tangible Net Worth in - xcess of
$5,000,000;
2. simultaneous with the transfer, the Transferee is acquirirg
not less than five (5) other live entertainment venues owned or operate
by Live Nation or its Affiliates;
a successor entity arising from the chase of, or merger or
consolidation with Live Nation; or
an entity that purchases substantially all othe assets of Live
N
- 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
Tran feree has a good reputation for operating venues similar to the
Facilit and is an appropriate manager and operator for the Facility.
Executi Director shall advise Live Nation in writing whether or not this
condition ve (5) has been met within fifteen (15) business days after
having recei . d such information as Executive Director shall reasonably
request to m • the determination. If Executive Director does not advise
Live Nation tha the Transferee is unacceptable within such fifteen (15)
business day perio • time being of the essence, this condition five (5) shall
be deemed satisfied. In the event Executive Director advises Live Nation
in writing ("Executive a irector's Notice") that this condition five (5) has
not been met and, if conons 1, 2 and 3 have been met, then and in that
event, Live -Nation shall ` : ve the right to terminate this Agreement by
written notice ("Termination . otice") to Executive Director given within
thirty (30) days after the date f Executive Director's Notice, time being
of the essence. Live Nation's ilure to deliver the Termination Notice
within thirty (30) days after Exec 've Director's Notice shall irrevocably
constitute Live Nation's waiver of right to terminate. If Live Nation
timely delivers its Termination Notic< then and in that event, all of the
following shall apply:
(A) Live Nation shall con -' ue as operator and manager
under this Agreement and shall pay : amounts and perform all
obligations hereunder until six (6) mon 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 -
agreem is for Events and entering into a concessions agreement for the concession operations
at the Faci•'ty.
10.2. ive Nation Affiliates.
(a) Transactions with Affiliates. In connection with its management
responsibilities her nder relating to the purchase and/or procurement of equipment, materials,
supplies, inventories, d services for the Facility, Live Nation shall have the right, but not the
obligation, to purchase ;.nd/or procure from, or otherwise transact business with, an Affiliate of
Live Nation.
(b) Con ' is of Interest. The City and/or Trust acknowledge that Live Nation
manages other public assemb facilities which may, from time to time, be in competition with
the Facility, As a material of the consideration for Live Nation entering into this
Agreement, City and Trust ackn • wledge and agree that (i) Live Nation's management of or
involvement with competing faciliti will not be a conflict of interest or breach of Live Nation's
duties hereunder, and (ii) Live Nation ay operate competing businesses or activities (including,
without limitation, providing services are required under this Agreement) and City and the
Trust waive any rights to object thereto. otwithstanding anything to the contrary contained in
this Agreement, City and the Trust hereby cknowledge and agree that to the maximum extent
permitted by law, City and the Trust waive . express or implied duty of loyalty or care arising
out of an agency relationship, and in the event a foregoing waiver is not allowed by law or is
limited by law City and the Trust hereby agree ` t such expressed or implied duties are hereby
modified to the maximum extent allowed by law allow for Live Nation to compete in any
business activity or venture without a duty to City an r the Trust of loyalty or care.
11. Laws and Permits.
11.1. Permits, Licenses. Taxes and Liens. Live Nat n shall procure any and all permits
and licenses required for the performance of its duties here der 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 applyin for such permits and licenses.
Live Nation shall deliver copies of all such permits and licenses to . e Executive Director. Live
Nation shall pay promptly, out of the Operating Revenues, all sales es, excises, license fees
and permit fees of whatever nature arising from its operation, promo ti • and management of the
Facility. Live Nation shall not permit any mechanic's or materialm. 's or any other lien to
become attached to the Facility, or any part or parcel thereof, by reason . f any work or labor
performed or materials furnished by any mechanic or znaterialman, so long the work, labor or
material was provided by, through, or under Live Nation, Live Nation shall ca, all obligations
for payment for work performed on services furnished to the Facility by, throw•, or under Live
Nation to be paid as and when due.
11.2. Government Comipliance. Subject to the terms of this Agreement, Li Nation,
its officers, agents and employees shall comply with all Governmental Requiremen with
respect to the operation, management and maintenance of the Facility. The foregoing inc des
the obligation to make improvements or Alterations (structural and non-structural, and cap
and non -capital) as required by governmental authorities, the cost of which shall be included
27 -
erating Expenses. Live Nation shall require any licensee, promoter or user of any portion of
the . cility to comply, and to be financially responsible for compliance, with all Governmental
Requi ents. Notwithstanding anything to the contrary contained in this Agreement, Live
Nation s 11 not be obligated or liable for any matter which is an Operating Expense Exclusion.
11.3. o Discrimination in Ent 10 ment- Affirmative Action. In connection with the
performance o work under this Agreement, Live Nation shall not refuse to hire, discharge,
refuse to promote s r demote, or to discriminate in matters of compensation against, any person
otherwise qualified, .olely because of race, color, religion, gender, age, national origin, military
status, sexual orientate n, marital status or physical or mental disability.
12. Events of Defaul nd Remedies.
12.1. Live Nation's • efaults. The occurrence of any one or more of the following
events shall constitute an Event Default by Live Nation.
(a) The failure b ive Nation to make any payment required to be made by
Live Nation as and when due, which c+ times for more than ten (10) business days after written
notice from Trust (including without 1i °'cation any Required Trust Distributions and Ticket
Surcharge (whether to be paid pursuant to actions 4.2 and 4.3 or 5.1);
(b) The failure or inability b Live Nation to observe or perform any of the
covenants or provisions of this Agreement to be bserved or performed by Live Nation, other
than as specified in subparagraph 12.1(a), above, w `' h continues for more than thirty (30) days
after written notice from Executive Director; provide • however, if the nature of the failure is
such that more than such period is reasonably required f its cure, then Live Nation shall not be
deemed to have committed an Event of Default if Live Na on commences the cure within such
period and thereafter diligently pursues the cure to completian and actually completes the cure
within an additional sixty (60) day period;
(c) _.Except as -permitted —pursuant -to Section 0.1_-o _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 Execute a Director;
(d) Live Nation's failure to provide and maintain the 1 er of credit required
by Section I4.2 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 provid
(e) (i) The making by Live Nation of any general assi-gnment r 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 ptition 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'ssets
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,
en in addition to any other remedies available to City and/or the Trust, City and/or the Trust
y exercise the following remedies:
(a) City and/or the Trust may terminate this Agreement by written notice to
Live ion, in which case this Agreement shall terminate and Live Nation shall immediately
surrender ..ssession of the Facility to the Trust. Upon termination, the City and/or the Trust
shall be entf ed to recover from Live Nation: (1) Operating Expenses that are due and payable
and remain un 'd through the date of termination, (2) all Required Trust Distributions and
Ticket Surcharge hat are due and payable and remain unpaid through the date of termination,
(3) all other amoun at Live Nation is required to pay under this Agreement through the date
of termination, plus (4) agreed and liquidated damages ("Liquidated Damages"), a sum equal
to all Required Trust Dis utions that would have been received by City and/or the Trust for the
period from the date of term E ation through the end of the Term (or, if the renewal option has
been exercised, through the en of the Renewal Term) if the termination had not occurred,
reduced, however, to present valu ...y applying a 4% discount rate. Live Nation, City and/or the
Trust recognize that the City's and/or e Trust's damages in case of any such termination will be
substantial but are incapable of exact . certainment and they have agreed that such Liquidated
Damages are fair and reasonable and not .-nalty.
(b) City and/or the Trust ay seek specific performance of any of Live
Nation's obligations hereunder or seek injuncti - 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 Ci and/or the Trust in this Agreement or
otherwise shall be cumulative and, except as otherwise pr ided by Florida law, City and/or the
Trust may pursue any or all of its rights and remedies at the a time.
12.3. City's and/or Trust's Defaults. The occurre a of any one or more of the
following events shall constitute an Event of Default by City and/ it 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 na ' of the failure is such
that more than such period is reasonably required for its cure, then City�r 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 actuakly completes the
cure within an additional sixty (60) days.
_2g_
2.4. Live Nation's Remedies. if an Event of Default by City and/or Trust occurs, then
Live Nat .n may exercise either of the following remedies:
(a) Live Nation may terminate this Agreement by written notice to City
and/or Trust, z which case this Agreement shall terminate and Live Nation shall immediately
surrender posses on of the Facility to the Trust. Upon termination, Live Nation shall be entitled
to recover from Ci and/or the Trust all amounts owed by City and/or the Trust to Live Nation
as of the termination . to and the provisions of Section 13.2 shall apply; or
(b) Li ; Nation may exercise any other remedies available at law or in equity.
The various rights an remedies reserved to Live Nation in this Agreement shall be
cumulative and, except as othe 'se provided by Florida law, Live Nation may pursue any of its
rights and remedies at the same tim
12.5. Late Payments. Any pa ent owed to City and/or the Trust or Live Nation under
this Agreement including, without limitat in, any Required Trust Distribution (whether pursuant
to Section 4.2 or 5.1) or Ticket Surcharge ( hether pursuant to Section 4.3 or 5.1) or Liquidated
Damages payment (pursuant to 12.2) or any o er payment owed to City and/or the Trust or Live
Nation under this Agreement that is not receiv - + 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 id.
13. Termination.
13.1. City and/or Trust's Right to Termination
(a) Due to Termination Obligations. The City • or Trust shall have the
right to terminate this Agreement pursuant to Section 5.2(b) due to the position of Termination
Obligations.
(b) At Will. The City and/or Trust shall have the right at ime to terminate
this Agreement at will upon at least ninety (90) days prior written notice +e "Termination
Notice"); provided, that the effectiveness of such termination and the rights of the ity and Trust
under this subparagraph shall be expressly conditioned on and subject to (i) the effeive date of
such termination not being prior to any Event for which Live Nation has already b• • ked the
Facility, and (ii) the City and/or Trust paying to Live Nation simultaneously with the del ry of
the Termination Notice the following sum: (A) if the termination is effective during the • < riod
from the Effective Date through January 1, 2012, the sum of $5,000,000, (B) if the terrrrinatio is
effective during the period from January 2, 2012 through January 1, 2014, the sum o
$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 obliga 'ons for the period up to the date of expiration or termination shall be paid using
funds on depo 't in the account(s) described in Section 5.3 and to the extent such funds are not
sufficient, Live ,tion shall pay all such amounts pursuant to Section 5.1. After all amounts
referenced herein h ve been paid, Live Nation may retain all remaining Operating Revenues.
Upon the expiration o this Agreement or a termination for any reason, all further obligations of
the parties hereunder sh. I terminate except for the obligations which for all periods up to the
date of expiration or to 'nation and such other obligations as are stated to survive or be
performed after such expirat n or termination. Live Nation shall be entitled to a Termination
Payment only if termination curs pursuant to Section 5.2(b). Further, if this Agreement is
terminated for any reason other th a default by Live Nation or Section 10.1(c)5, the City and/or
Trust shall also reimburse to Live tion that portion of the Required Trust Distribution which
has been prepaid by Live Nation for a remainder of the Fiscal Year in which the termination
occurs. All of the foregoing reimburse nt and the payment obligations are to be made within
thirty (30) days after the Termination Dat The provisions of this Section regarding the above
reimbursement and payment obligations of t ` 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 puiposes in this Agreeineiiit; include—ermina o pursuance to the terms of Section 12 or
pursuant to any other provision of this Agreement and y expiration of the Term), Live Nation
shall surrender and vacate the Facility upon the effective ate of such termination. The Facility
and (as required under this Agreement) all equipment an ' ., furnishings shall be returned to the
Trust in a good and clean condition consistent with other imilar facilities operated by Live
Nation and its Affiliates as of the Effective Date and in c.' pliance 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 aes that during the entire
Term, Live Nation shall at.all times maintain a Tangible Net Worth of t less than Five Million
Dollars ($5,000,O00). 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 Tr st a certificate ("Net
Worth Certificate") addressed to the Trust certifying that Live Nation's Tan 'ble Net Worth does
or does not exceed Five Million Dollars ($5,000,000). The Trust shall have right at any time
within ninety (90) days after receipt of the Net Worth Certificate to have accountant or
designees review the financial statement and other records of Live Nation at ive Nation's
headquarters to confirm the accuracy of the Net Worth Certificate (and Live \Nation shall
cooperate with any such review and provide any information reasonably requested by such
accountants or designees). The Trust's accountants or designees shall not keep copies°`$ f 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 Wo
is less than Five Million Dollars ($5,000,000) or in the event Executive Director sends written
_31
notice to L e Nation that the Trust's accountants or designees have been unable to confirm that
Live Nation 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 et Worth Deficiency and written request from Executive Director that a letter
of credit be provi+: d, Live Nation shall obtain and deliver to Executive Director a letter of credit
in full compliance ith Section 14.2 below, failing which an Event of Default by Live Nation
shall have occurred u • er this Agreement and the Trust may exercise all remedies available to
the Trust under Section .2.
14.2. Security. Up
within thirty (30) days after
clean, irrevocable letter of credit
favor an amount equal to One M
issued by a federally insured banking
to that of Chase or Bank of America as
specifically provide for partial draws and
thereunder. If Live Nation fails to make an
Trust under the terms of this Agreement or o
notice and cure period, Executive Director, at hi
under the Letter of Credit in an amount equal to
the Trust under this Agreement. In the event that
Credit, Live Nation shall present to the Trust a repla
Credit Amount satisfying all of the terms and conditi
calendar days after receipt of notice from City and/0
failure to do so within such twenty (20) calendar day peri
(Live Nation hereby waiving any additional notice and gr
default City and/or the Trust shall be entitled to immediately
available to it under Section 12.2. In the event that the Letter
earlier than the expiration date of this Agreement and Live Nation
a replacement Letter of Credit which complies with the terms and
on or before five (5) business days prior to the expiration date of any
held by City and/or the Trust, then City and/or the Trust shall have
Executive Director) to draw upon the Letter of Credit then held by City
such amount paid to City and/or the Trust by the issuer of the Letter of C
City and/or the Trust as security for the performance of Live Nation's obi
Any interest earned on such amounts shall be the property of Live Nation.
Trust's election to draw under the Letter of Credit and to hold the proceeds of th
the Letter of Credit shall not be deemed a cure of any default by Live Nation here
not relieve Live Nation from its obligation to present to the Trust a replacement Le
which complies with the terms and conditions of this Agreement. If Live Nation •su
provides such replacement Letter of Credit to the Trust, then the Trust shall deliver
Nation the proceeds of the City's and/or the Trust's prior draws (to the extent not pre
applied by City and/or the Trust pursuant to the terms of this Agreement) within five (5) bus
days after receipt of the replacement Letter of Credit. Live Nation acknowledges that iy
proceeds of a draw made under the Letter of Credit and thereafter held by City and/or the T
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 draw made under a Letter of Credit
e occurrence of a Net Worth Deficiency, Live Nation shall,
and or request by Executive Director, deliver to the Trust a
the "Letter of Credit") established in City's and the Trust's
'on Dollars ($1,000,000) (the "Letter of Credit Amount"),
lending institution with a bond rating substantially equal
the date of this Agreement. The Letter of Credit shall
hall by its terms be transferable by the beneficiary
payment or other charges due to City and/or the
rwise defaults hereunder beyond any applicable
or her option, may make a demand for payment
amounts then due and owing to City and/or
and/or the Trust draws upon the Letter of
ment Letter of Credit in the full Letter of
s of this paragraph within twenty (20)
Trust of such draw. Live Nation's
will constitute a default hereunder
or cure period), and upon such
xercise all rights and remedies
Credit has an expiration date
as not presented to the Trust
editions of the Agreement
uch Letter of Credit then
e right .(exercisable by
or the Trust and any
it shall be held by
ations hereunder.
ity's and/or the
drawing under
der and shall
r of Credit
equently
to Live
ously
ess
- 32 -
th
City
genera
Term (
default un
amounts re
unapplied pro
emained outstanding and in full force and effect at the time such amounts are applied by
d/or the Trust to cure or satisfy any such obligation of Live Nation. Without limiting the
y of the foregoing, Live Nation expressly acknowledges and agrees that at the end of the
ether by expiration or earlier termination hereof), and if Live Nation is not then in
er this Agreement beyond any applicable notice and cure periods and has paid all
ired hereby, City and/or the Trust shall return to Live Nation any remaining and
eds of any prior draws made under the Letter of Credit.
15. Miscellane+ s.
15.1. Venue/
by, and construed in acco
remedial, without regard to p
arising out of this Agreement s
District Court, Southern District
AGREEMENT, CITY, TRUST A
EITHER PARTY. MAY -HAVE T
RELATED TO, OR ARISING OUT
subsequent appeal(s), is instituted betwe
shall bear its own attorney's fees and costs.
ver of
J
Trial/Attorne
15.2. No Partnershi . or Joint Ven
construed in any way to create or establish the
the City, the Trust and Live Nation. None of
shall be or be deemed to be employees of the City
's Fees. This Agreement shall be governed
dance with, the laws of the State of Florida, both substantive and
ncipals of conflict of laws. The exclusive venue for any litigation
11 be Miami -Dade County, Florida, if in state court, and the U.S.
f Florida, if in federal court. BY ENTERING INTO THIS
D LIVE NATION EXPRESSLY WAIVE ANY RIGHTS
A _ TRIAL . BY JURY OF ANY CIVIL LITIGATION
F, THIS AGREEMENT. If litigation, including any
the parties with respect to this Agreement, each party
Nothing herein contained is intended or shall be
lationship of partners or a joint venture between
officers, agents or employees of Live Nation
d/or the Trust for any purpose whatsoever.
15.3. Entire Agreement. This Agreement t d all Exhibits attached hereto contain the
entire agreement between the parties with respect to subject matter hereof and supersedes all
prior agreements, understandings, proposals or other a •ressions of intent with respect thereto,
including, without limitation, that certain Request for Le ° ers of Interest RFLI No. 44014 issued
August 21, 2007 and Live Nation's -subsequent response d..presentations, including, without
limitation,. Live Nation's response dated September 19, 200'. The Exhibits attached hereto are
incorporated in to and made a part of this Agreement. No ,ther agreements, representations,
warranties or other matters, whether oral or written, will be d: - med to bind the parties hereto
with respect to the subject matter hereof.
15.4. Written Amendments. This Agreement shall not be afred, modified or amended
in whole or in part, except in writing executed by each of the parties he to.
15.5. Force Majeure.
(a) No party will be liable or responsible to the other prty 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 a tual knowledge
of the event of "Force Majeure" that such party is unable to perform. The term " rce Majeure"
as used in this Agreement means the following: an act of God, strike, war, p lic rioting,
lightning, fire, storm, flood, explosions, epidemics, landslides, lightening storms, a quakes,
floods, storms, washouts, civil disturbances, explosions, and any other cause wheth r of the
33
kinds specifi ally enumerated above or otherwise which is not reasonably within the control of
the party who a performance is to be excused and which by the exercise of due diligence could
not be reasona y prevented or overcome (it being acknowledged that under no circumstances
shall a failure to gay 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 xtent and during any period that the supplying of any such service or
services or the provision i f any component necessary therefore shall be prohibited or rationed by
any Governmental Require f ent.
(c) In the e t of substantial damage to or destruction of the Facility by
reason of fire, storm or other cas = ty or any eminent domain action or other regulatory action
that, in either ease, shall render a sub antial part of the Facility inoperable for a period of at least
one year or in Live Nation's reasona e opinion the Facility can no longer be operated in a
reasonably profitable manner as a result o the damages or action for a period of at least one year
from the happening of the fire, other casety or regulatory action, either party may terminate
this Agreement upon written notice to the o ' r. Upon any such termination, Live Nation shall
receive an amount of all insurance proceeds k eminent domain award as applicable that the
Trust receives for the Facility.
(d) Live Nation may suspend p- ormance required under this Agreement,
without any further liability, in the event of any act ' '.f God or other occurrence, which act or
occurrence is of such effect and duration as to effective . curtail the use of the Facility so as to
effect a substantial reduction in the need for the services ovided by Live Nation for a period in
excess of 180 days; provided, however, that for the purpose of this subsection, Live Nation shall
have the right to suspend performance retroactively effecti ` as of the date of the use of the
Facility was effectively curtailed. "Substantial reduction in th`'need for these services provided
by Live Nation" shall mean such a reduction as shall make the p • vision of any services by Live
Nation economically impractical (but under no circumstance sh failure to pay amounts due
hereunder be excusable as Force Majeure).
15.6. Bindin U.on Successors and Assi s• No Third -Party : -neficiaries.
(a) This Agreement and the rights and obligations set p. herein. shall inure
to the benefit of, and be binding upon, the parties hereto and each of their spective 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 rig remedy or
claim under or in respect of this Agreement or any of the provisions herein con ined, this
Agreement and all provisions and conditions hereof being intended to be, and being, fo the sole
and exclusive benefit of such parties and their successors and permitted assigns and +r the
benefit of no other person or entity,
15.7. Notices. Any notice, consent or other communication given pursuant to
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
-3a-
by certified or gistered mail, return receipt requested, postage prepaid, in any case addressed to
such party as se forth below or as a party may designate by written notice given to the other
party in accordan herewith.
To the City:
City of Miami
i 3500 Pan American Drive
\ Miami, Florida 33133
Attn: Pedro G. Hernandez, City Manager
and to
To the Trust:
City of Miami
444 S.W. 2"d Avenue, Suite 945
Miami, Norida 33130
Attn: Julie\Q. Bru, City Attorney
Bayfront Park agernent Trust
301 N. Biscayne vd
Miami, Florida 331 2
Attn: Timothy F. Sc and, Executive Director
To Live Nation:
Live Nation Worldwide, Inc.
9348 Civic Center Drive
Beverly Hills, California 90210
--Attn: President_ _
and to:
Live Nation Worldwide, Inc.
2000 West Loop South, 13th 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. ounte .arts. This Agreement may be executed in two or more counterparts,
each of which sh=11 be deemed an original copy of this Agreement, and all of which, when taken
together, shall be eemed to constitute but one and the same agreement.
15.10. Sever ..ilit . The invalidity or unenforceability of any particular provision, or
part of any provision, this Agreement shall not affect the other provisions or parts hereof, and
this Agreement shall be .nstrued in all respects as if such invalid or unenforceable provisions or
parts were omitted.
15.11. Non -Waiver. failure by either party to take any action with respect to any
default or violation by the other .f any of the terms, covenants, or conditions of this Agreement
shall not in any respect limit, pre'udice, diminish, or constitute a waiver of any rights of such
party to act with respect to any pnr, contemporaneous, or subsequent violation or default or
with respect to any continuation or re. tition of the original violation or default.
15.12. Certain Re.resentations an. Warranties.
(a) The City and the Trust - .resent, warrant, and covenant to Live Nation the
following: (i) City and the Trust have full le .w:1 right, power and authority to enter into and
perform its obligations hereunder; and (ii) this Ag . ement has been duly executed and delivered
by the City and the Trust and onstitutes.a valid an finding obligation of the City and the Trust,
enforceable in accordance with its terms, except . such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws . ecting creditors' rights generally or by
general equitable principles. City and the Trust further re esent and warrant to Live Nation that
for so long as Live Nation is not in default under this Agr- -went beyond any applicable notice
and cure period, Live Nation's operation and management o the Facility shall not be disturbed
or hindered by City and/or the Trust in its proprietary capacity anyone claiming by, through or
under City and/or the Trust in its proprietary capacity, subject, h wever, to the terms, provisions
and obligations of this Agreement. The foregoing shall not appl however, with respect to the
City acting in its governmental capacity or exercising its police pow._ s.
(b) Live Nation represents and warrants to the .; ty and/or the Trust the
following: (i) Live Nation has full legal right, power and authority to a ter into and perform its
obligations hereunder, and (ii) this Agreement has been duly executed : d delivered by Live
Nation and constitutes a valid and binding obligation of Live Nation, enfo . - •ble in accordance
with its terms, except as such enforceability may be limited by b• `s ptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by general equitable
principles.
15.13. Governing Law. This Agreement will be governed by an 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 la s of the
City of Miami (Code of the City of Miami, Florida, Chapter 2, Article V), of Mi . i-Dade
County, Florida (Code of Miami -Dade County, Florida (Code of Miami -Dade County, `° orida,
Section 2-11.1) and of the State of Florida (as set forth in Florida Statutes) and agrees i ...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 employ d or retained any person or company employed by the Trust to solicit or secure this
Agreement - d that it has not offered to pay, paid, or agreed to pay any such person any fee,
commission, ' i - rcentage, brokerage fee, or gift of any kind contingent upon or in connection
with, the awarf •of this Agreement.
15.16. Pu ► is Records. Live Nation acknowledges that Trust contracts are subject to the
provisions of Chap r 119, Florida Statutes, and Live Nation agrees to comply with applicable
Legal Requirements.
15.17. A • reemen Not a Lease. 1t is agreed that this Agreement is not a lease, and that
no interest or estate in, or li n on, real property or improvements is created by this Agreement.
15.18. First Source Hi
hereby acknowledges and agr
pursuant to which it will give a pre
but not limited to hiring not less t
levels and not less than twenty-five pe
qualified local minorities and hiring qua
equally -qualified applicants for positions
n E Preference Commitment. Live Nation
s that it will adopt and implement an employment policy
erence in the hiring process to residents of the City, including
twenty-five percent (25%) of - such employees at entry
ent (25%) of such employees at professional levels from
'fled local small businesses, when faced with otherwise
the Facility.
[signs
page to follow]
37 -
• Local and Minori
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as ofth- day and year first above written.
ATTEST:
By:
CITY OF MIAMI, FLORIDA, a municipal
corporation and political subdivision of the State of
Florida
By:
Priscilla A. Thom s on, City Clerk Pedro G. Hernandez, City Manager
ATTEST:_.
By:
AYFRONT PARK MANAGEMENT TRUST
a limited agency and instrumentality of the City of
Miami
By:
Jose Gell, Administrative Officer `., Timothy F. Schnrand, Executive Director
Approved as to Insurance Requirements
Approved as to Form and Correctness:
By: By
LeeAnn Brehm, Risk Management Julie O. Bru, City Attorney
Director
LIVE NATION WORLDWIDE, INC.
By:
Name:
Title:
_3S_
EXHIBIT "A"
LEGAL DESCRIPTION AND DEPICTION OF THE FACILITY
tneed to see survey and verify]
jattach site plan with Facility depicted thereon]
- 39 -
EXHIBIT "B"
INSURANCE REQUIREMENTS
INSURANCE ' QUIREMENTS FOR A CERTIFICATE OF INSURANCE-
MANAGEME ' AGREEMENT LIVE NATION WORLDWIDE, INC.
Connrnercr 1 General Liability
A. Limits . f Liability
Bodily ury and Property Damage Liability
Each Occ , ence $1,000,000
General A:, : egate Limit $ 2,000,000
Products/Corn feted Operations $ 1,000,000
Personal and A ertising Injury $1,000,000
B. Endorsements Regujred
City of Miami included as an Additional Insured
Bayfront Park Management Trust included as an Additional Insured
Independent Contractors'Coverage
Contractual Liability
Premises/Operations
Explosion, Collapse and Underground Hazard
Loading and Unloading
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liab\ility
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Auto
Any One Accident $ 1,0
B. Endorsements Required
City of Miami included as an Additional Insured
Bayfront Park Management Trust as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
Exhibit B
Page I
Umbrella Policy
Limits of Liability
odily Injury and Property Damage Liability
h Occurrence $ 3,000,000
Ag -gate $ 3,000,000
V. Liquor Liabi
Each Occurren . - $2,000,000
General Aggrega $2,000,000
VI. Business Personal Prope
Live Nation shall maintain in - . Il force and effect during the entire Term, insurance
on Live Nation's fixtures, equip , ent and personal property at the Facility under an
"All Risks of Physical Loss" poll including, without limitation, coverage for loss
or damage by fire, water and sprinkl - damage, windstorm and flood; such insurance
to be written with replacement coverag
The above policies shall provide the City of Miami w h written notice of cancellation from
the insurer not less than (30) days prior to any such can ellation.
Companies authorized to do business in the State of Florida, h the following qualifications,
shall issue all insurance -policies -required above:
The company must be rated no less than "A-" as to management, . d no less than "Class
VII" as to Financial Strength, by the latest edition of Best's Insuran•- Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent.
Exhibit B
Page 2
CONSTRUCTION REQUIREMENTS- LIVE NATION WORLDWIDE, INC.
Commercial General Liability -
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
B. En . rsements Required
City o iami included as an Additional Insured
Bayfron ' ark Management Trust as an Additional Insured
Live Natio Worldwide, Inc. as an Additional Insured
Independent ntractors Coverage
Contractual Lia•'lity
Premises/Operatio s
Loading and Unloading
N
II. Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 1,000,000
B. Endorsements Required
City of Miami included as an Additional Insured
Bayfront Park Management Trust as an Additional Ins
Live Nation Worldwide, Inc. as an Additional Insured
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
IV. Builders' Risk
Causes of Loss: All Risk Coverage for Course of Construction
Coverage amount: $5,000,000
Exhibit B
Page 3
City of Miami and Bayfront Park Management Trust included as an Additional
insured
Live Nation Worldwide, Inc. included as an additional insured.
The i ove policies shall provide the City of Miami with written notice of cancellation from
the ins er not less than (30) days prior to any such cancellation.
Companies a orized to do business in the State of Florida, with the following qualifications,
shall issue all in urance policies required above:
The company m st be rated no less than "A-" as to management, and no less than "Class
VII" as to Financ►d Strength, by the latest edition of Best's Insurance Guide, published by
A.M. Best Cowan Oldwick, New Jersey, or its equivalent.
Exhibit B
Page 4
EXHIBIT "C"
UPGRADES
All neces . work, labor, equipment and materials to complete a $2,000,000 renovation to the
Facility. Proj cts will be completed in the order of priority shown below until achieving the
$2,000,000 spen ng cap ("Cap"), after achieving the Cap there shall be no obligation to perform
any remaining wo or items. All costs shown include hard construction costs, soft costs, and
furniture, fixtures an. quipment.
Priority 1 - Exterior 8' fe ing/security gate
Provide new ex - rior 8 foot fencing and security gate
Priority 2 — Modifications to s ::New Rigging Grid/ additions to back of house structure
Remove and modi existing cantilevered concrete roof canopy.
Add 40'x60' roofed, 'rtable rigging structure (with 8' O.C. rigging beams), at 30'
above existing stage flo'r [Tomcat Global or equal]
Modify tensile roof cano es as required.
Renovate existing dress' rooms and backstage toilet for ADA compliance.
Renovate green room.
Provide portable stage deck ' ver existing "moat" to square -off the front of the
stage. (Stagerite or equal)
Priority 3 — Modifications to audience seating a
Demolish existing wood bench sea ,gig & add new fixed, fiberglass bench seating
with fixed back, and armrests [Elite se from Southern Bleachers or equal]
Add new VIP box seating areas
Modify existing sound/light mixing contr booth
Provide new ADA designated seating areas d accessible path (ramps).
Priority 4 —New Toilets
Provide new accessible mobile structures for `'ilet facilities per fixture count as
required by code for seating capacity (Resun or eq
Priority 5 — Site Improvements
Provide concession areas (water, power, drains and p rtable units) along covered
elevated walkway
Modify accessible path from Biscayne Blvd. and/or reparking area, including
accessible paths to audience seating and new structures (box ffice & bathrooms)
Relocate existing backstage fire hydrant and modify paving at •ailing dock.
)
Priority 6 — Box Office
Provide new accessible box office and administration suppo (pre -fabricated
structure)
Priority 7 — Backstage Catering Pavilion
Provide new 20'x40' polygon structure for catering at back of house area
Exhibit C
Page 1
Priority
Landscaping! lawn maintenance, exterior 8' fencing/security gate
Provide new landscaping plants around stage and vines on fence
seed /sod lawn seating area
Priority 9 — Ne ignage at Biscayne Blvd.
Exhibit C
Page 2
EXHIBIT "D"
INIMUM OPERATING AND MAINTENANCE STANDARDS
These minimum o
and intended to provi
deviations, from any in
the intention of the p
expected to use good faith
of a conflict between the to
this Exhibit, the terms and con
rating and maintenance standards are intended to be considered as a whole
e an overall standard for the Facility. Individual discrepancies, as well as
ividual standard shall not be considered a default of the Agreement; it is
es that this Exhibit is merely a guide and that Live Nation is only
fforts to endeavor to meet the standards set forth herein. In the event
s or conditions of the Agreement and the terms or conditions of
itions of the Agreement shall control.
1. Live Nation shall have th sole responsibility to recruit and employ a general manager
and any necessary administ tive and accounting personnel that are responsible for the
overall management and opera on of the Facility.
2. Live Nation shall have the sole re
to maintain the following functio
cleaning for both event and non -even
Facility to ensure that the Facility is
facilities operated by Live Nation.
nsibility to recruit and employ sufficient personnel
: general security; janitorial, housekeeping and
cleanup; and general overall maintenance of the
ing maintained consistent with other similar
3. Live Nation shall have the sole responsibility t ecruit and employ personnel as it deems
necessary for the staging and coordinating of Eve ts.
4. Live Nation shall maintain personnel policies that
discriminate on the basis of race, color, religion, mile
or mental disability, national origin, age, gender, or sex
ure employment practices do not
status, marital status, physical
preference.
S. Live Nation shall provide for the overall reasonable sec
economically feasible basis. However, Live Nation shall
restrooms only during Events, the load -in or load -out in co
cleaning after an Event.
ty of the Facility on an
ovide security for the
ection therewith and
6. Live Nation shall assign an employee and a backup employee to ac
Liaison to the Trust. This individual will be required to use good faith
any and all meetings, held by the Trust, that deal with emergency si
extreme weather events, terrorist acts, etc. The Liaison will serve as the
during any emergency crisis.
7. The Facility shall be reasonably clean for Events.
as an Emergency
efforts to attend
tions, such as
t of contact
8. Restrooms are to be cleaned during Events to assure that they are in a functionand
reasonably sanitary condition.
Exhibit D
Page 1
Garbage and trash shall be removed on an as -needed basis as determined by Live Nation.
Trash receptacles shall be stationed throughout the Facility as determined by Live
Nation.
10. Tr- • intent for pests and rodents (except termites) shall occur on a quarterly basis as
nee • - d to prevent infestation or as required by applicable code.
11. Indoor 1 • dscaping shall be maintained in accordance with specifications of the type of
plant and ould be watered and fertilized as the type of plant demands.
12. Indoor landsc , ing should be reasonably insect -free
13. Equipment shall • maintained in a reasonably good. condition and repair, subject to wear
and tear and casual
14. Upon termination, c. ellation, and/or expiration of the Agreement, Live Nation shall
provide all records maintained in accordance with Section 2.3 (e). All existing
warranties that are trans f- able will be transferred to the City.
15. Live Nation shall post and maintain, as required by any applicable governmental code
and/or regulation, any and11 required professional licenses, certifications, and/or
permits.
16. Live Nation shall inspect all building safety systems including but not limited to: smoke,
fire, and CO detector systems, bac up generator operation, emergency battery backup
functions, emergency lighting, emergency egress, special needs and blackout
preparedness equipment. All building\safety systems shall be tested as required by
federal, state or local codes and regulation
17. Live Nation has the sole responsibility of mar taining the paint on both, the interior and
exterior of the Facility. The Trust has the sole 'ght to approve (not to be unreasonably
withheld, conditioned or delayed) the paint coloselections used on the exterior of the
Facility.
Exhibit D
Page 2
EXHIBIT "E"
LIST OF REPEAT ANNUAL BOOKINGS
January - Annual aitian Independence Festival
Haitian Independence estival, Inc. / APHEC International, Inc.
February - Festival del allenato
Congo de Oro Corporation
(late) February/(early) Marc Bob Marley Movement -- Annual Caribbean Festival
The Bob Marley Heritage Corporation / Bob Marley Movement of Jah People, Inc.
November- Rasin Festival
Center for Haitian Studies, Inc.
Exhibit E
Page I
EXHIBIT "F"
PENDING BOOKINGS
NONE
Exhibit F
Page 1
list of a r i 'tved 5 r.nsors
EXHIBIT "G"
Exhibit G
Page 1
EXHIBIT "H"
LICENSE AGREEMENT
THIS LICE E AGREEMENT ("Agreement"), dated , 20_, is by
and between ("Licensor") whose address is
("Licensee") whose
address is . For and in consideration of the mutual
covenants and agreements coantai d herein, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, int, ding to be legally bound, agree as follows:
I. Term. Licensor hereby rants to Licensee the privilege and license to use
designated portions of certain real propert . located in the City of Miami, Florida, which real
property is operated by Licensor and known the Bayfront Park Amphitheater ("Facility"), for
the "Term" of this Agreement, which shall be `, , 20_ _ , to include load -
in and load -out of the Event (as defined below). nless otherwise agreed in writing by Licensor,
those portions of the Facility that the Licensee'", hall utilize are restricted to the stage and
backstage area, public seating area, public conee' -'on area (e.g. the consumer side of the
concession areas), interior public plazas and areas, an a loading dock.
Upon the expiration of the Term or the terminat n of this Agreement for any reason
whatsoever prior to the expiration of the Terra, Licensee sha immediately quit and surrender the
Facility to Licensor. Licensee shall remove any goods or ch, . eis brought onto or permitted by
Licensor to be brought onto the Facility property. For non -co . pliance with the provisions of
this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the
removal of such goods or chattels.
2. Purpose. Licensee agrees that it shall use the Facility during the Term of this
Agreement for the purpose of presenting an event ("Event") for
. The Event shall be open to the public with paid admission, if applicable,
during a time period within the Term as approved by Licensor. Unless otherwise agreed to in
writing by Licensor, the Event shall be held at no other times.
3. Financial Settlement. In consideration for the grant of the license' and use of the
Facility and related services as provided herein, Licensee shall (i) pay to Licensor a'fee ("License
Fee") in the amount of Dollars ($ ) which is payable on or
before the date of the Event, and a portion thereof shall be payable as a non-refundable' deposit in
the amount of Dollars ($ ) which shall be due and payable on or
before , 20_ and (ii) promptly (within ten (10) business days after receipt of 'written
invoice therefor), reimburse Licensor for all actual expenses and costs incurred by Licensor to
facilitate Licensee's use of the Facility hereunder, including, without limitation, Live Nation's
standard charges for janitorial, clean up, crowd and traffic control, set-up and tear -down coats
Exhibit H
Page 1
and s and charges (including for materials, labor and other services directly necessitated by
the occ r rrence of Licensee's use of the Facility. Licensee's obligations under this paragraph
shall surv've the expiration or termination of this Agreement.
icensor will have a first lien on all box office receipts for the Event to secure
payment of all ounts owed to Licensor by Licensee hereunder. In the event that Licensee has
failed to pay to ,icensor the amounts owed hereunder, at the time of settlement, Licensor will
have the right to re in such amounts from the box office receipts for the Event.
4. Parking Licensor shall not be obligated to provide or cause to be provided any
parking whatsoever.
Specialized parking .'ace may, at Licensor's sole discretion, be provided for Licensee's
employees only, in locations `a esignated by Licensor. Licensor shall not be responsible, under
any circumstances, for any loss 'r damage occurring to automobiles brought onto the Facility by
Licensee's employees, subcontrac • rs or guests.
5. Merchandise and Con essions. Unless otherwise agreed upon in writing by the
parties hereto, (A) Licensor's designate.', food and beverage concessionaire shall sell all food and
beverages and retain one hundred perce t (100%) of the profits therefrom, and (B) Licensor's
designated merchandise vendor shall sell a merchandise and retain one hundred percent (100%)
of the profits therefrom, less taxes and any rcentages owed to performing artists. Upon prior
written notice from Licensee, Licensor sh • ensure that there will be no sales of alcoholic
beverages at the Facility during the Term.
6. Ticketing. All ticket sales for the vent shall be conducted through the Facility
box office and the facilities of Licensor's designa ticketing agent. All ticket sales shall be
subject to service fees, and/or facility fees as provid •by Licensor. Licensor reserves the right
to retain a reasonable number of complimentary tic -ts for the Event for Licensor's use.
Licensor may have non -manifested corporate boxes and/o .remium seats, for which tickets will
not be included in the gross ticket receipts. If applicable, L -nsor will provide all premium seat
customers (including, without limitation, box and season se s) at the Facility with tickets for
their regular seats for the Event at no cost to Licensor.
7. Event Advertising and Promotion. Licensee shall responsible for producing
and paying for any and all advertising and promotional materials in .onnection with the Event.
All such materials shall be subject to the prior approval of Licensor. Lensee acknowledges and
agrees that, notwithstanding any marketing or other related assistance whh may be provided by
Licensor (although Licensor is not obligated to provide same), Licens has made no, and
disclaims any purported or actual, representation or warranty as to the re4ilts and/or success
which can be expected from the Event, including, without limitation, ticket, sales and/or the
profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be
responsible for the actual results from andfor the success, financial or otherwise, of the Event.
Exhibit H
Page 2
8. : ooth / Commercial S ace. In the event that Licensee desires to sell
booth/commerct space ("Booth Space") at the Facility to vendors or exhibitors or otherwise
permit vendors or hibitors at the Facility ("Vendors") in connection with the Event, Licensee
shall comply with the eliowing provisions:
A. Licsee will first obtain Licensor's approval of each Vendor and that
Vendor's operations in connection with the Event.
B. Licensee will assume sole control and responsibility for (i) all operations
of all Vendors relating to' the Event and (ii) requiring Vendors to comply with any
applicable Facility rules and regulations.
C. Licensee will be solely responsible for the payment of any and all taxes or
other fees associated with the payments received from the Vendors or the use of the
Booth Space.
LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE
FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT
LICENSOR'S PRIOR WRITTEN CONSENT:'... INTERACTIVE PHYSICAL GAMES
AND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC
ANIMALS AND PYROTECHNICS.
IN ADDITION TO ANY OTHER INDEMNIFICATION REQUIREMENTS SET
FORTH HEREIN, LICENSEE SHALL INDEMNIFY, DEFEND, BE SOLELY LIABLE
FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR PARTIES (AS HEREIN
DEFINED), HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS,
INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION, OPERATION AND
REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH SPACE AND THE
BOOTH VENDORS.
9. Use of Name of Facility / Recording_ Rights. In the event that any printed
materials or media is used to announce or promote the Event, Licensee shall use "Bayfront Park
Amphitheater" as the name of the Facility. Licensee shall not permit any film, .. ideo, audio or
other recording of the Event ("Recording") to take place without Licensor's `rior written
approval. In the event that Licensor does permit any Recording, the following: terms and
conditions shall apply to such Recording:
A. Licensee and its employees, agents, representatives and contractors
understand and acknowledge that the Recording shall occur in locations approved by they.
Licensor, and that Licensor's staff shall have the right to (i) refuse entry into any portions
of the Facility in its sole discretion or (ii) stop the Recording at any time if Licensor's
staff deems it reasonably necessary to do so.
B. Licensee shall be responsible for any and all costs and expenses associated
with the Recording, including, without limitation, union fees, additional security,
Exhibit H
Page 3
e ipment, early set-up/load-in, additional phones, office space, additional labor and
supp -mental catering in connection with the Recording. Payment for such costs and
expen = and/or reimbursement for such costs and expenses to Licensor may be required
in advanc of the Event or at settlement of the Event, at Licensor's sole discretion.
Licensee sha advance all arrangements/requirements concerning the Recording with a
designated repr entative of the Licensor within a reasonable period of time prior to the
Recording. Lice e's obligations under this paragraph shall survive the expiration or
termination of this =`>E eement.
C. Licensor serves the right to charge an origination fee and/or shadowing
fee in the amount of ($ ) for the granting of Recording rights, such
fee shall be payable withi business days after receipt of written invoice therefor.
Licensee's obligations under th paragraph shall survive the expiration or termination of
this Agreement.
D. Licensee shall be sole responsible for securing in writing all necessary
rights, authorizations and consents of . + making any necessary payments to any and all
third parties whose images, likenesses, + arks or interests may be involved therein,
including, without limitation, any performi ., artists, subjects of the Recording, unions,
-third-party-contractors or their. _employees or - presentatives, Event patrons, guests and
invitees of the Facility and Facility sponsors. Li ` - nsee represents and warrants that it has
full power and authority to conduct the Recording `_ d has obtained, or will caused to be
obtained prior to disseminating the Recording, all ,f the foregoing necessary rights,
authorizations and consents.
E. The City of Miami, Bayfront Park Manage ; nt Tnist and Licensor shall
be credited in any broadcast or other publication of the Reco big. Licensee represents,
warrants and covenants that nothing contained in the end use i a which the Recording is
used will be in any way derogatory to the City of Miami, Bay ' ont Park Management
Trust or Licensor or their related companies or entities, includi , without limitation,
parent and subsidiary corporations and_ divisions, and their ernoyees, agents and
representatives or the Facility.
F. In addition to any other insurance requirements set forth herein, Licensee
shall maintain appropriate Errors and Omissions coverage ("E & U Coverage")
applicable to the Recording with limits of not less than $1,000,000.00. Such E & 0
Coverage shall have standard coverage, including, but not limited to, defamation,
infringement of copyright, infringement of rights in material to be broadcast or in the
manner of presentation thereof, invasion of privacy rights and unauthorized use of
material. The City of Miami, Bayfront Park Management Trust and Licensor shallbe
named as additional insureds on the above E & 0 Coverage.
C. IN ADDITION TO ANY OTHER INDEMNIFICATION
REQUIREMENTS SET FORTH HEREIN, LICENSEE AGREES TO DEFEND,
INDEMNIFY, SHALL BE SOLELY LIABLE FOR AND HOLD, WAIVE AND
RELEASE THE LICENSOR PARTIES (AS HEREIN DEFINED), HARMLESS
Exhibit H
Page 4
FR M ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR
EXP y SES THAT MAY BE ASSERTED AGAINST THEM OR THAT THEY
MAY CUR (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT
COSTS) RISING OUT OF RELATED TO (1) THE RECORDING AND/OR AND
ANY SU : EQUENT DISTRIBUTION AND/OR BROADCAST OF THE
RECORDIN OR (2) LICENSEE'S FAILURE TO OBTAIN ANY REQUIRED
AUTHORIZA ONS OR CONSENTS.
1 0. Charitable
right to collect charitable
represents that it will comply
any governmental authority in co
solely responsible for all tax and o
under this paragraph shall survive the
11. Condition of Facility.
nations. In the event that Licensor permits and Licensee obtains the
nations in connection with the Event, Licensee warrants and
'th all applicable laws, regulations and ordinances imposed by
ecting said donations. Licensee further agrees that it will be
r liability related to such donations. Licensee's obligations
piration or termination of this Agreement.
A. Acceptance of Facility. L
and agrees to return the Facility to Lice
Licensee and Licensee hereby waives any c1
Bayfront Park Management Trust for defects
Licensee has examined the Facility and is satisfie
thereof. Conunencement of the use of the Facility
the Facility was in good repair and in satisfactory con
use commenced.
ee accepts the condition of the Facility as is
or in the same condition as accepted by
s against Licensor, City of Miami, and
the Facility, including latent defects.
with the condition, fitness and order
Licensee shall be conclusive that
ion, fitness and order when such
Licensee shall not paint, drill into or in any way m or deface any part of the
Facility. Licensee shall immediately pay Licensor for the cost o repairing any damage to
the Facility caused by the Event. Any amounts unpaid within ten 10) days after the end
of the Term shall accrue interest at the maximum amount allow y law. Licensee's
obligations under this paragraph shall survive the expiration or ' <tion of this
Agreement.
B. No Alterations or Improvements. Licensee shall not display + erect any
lettering, signs, pictures, notices or advertisements upon any part of the outsid .sr inside
of the Facility or make any alterations or improvements in or to the Facility wi ' : ut the
prior written consent of Licensor.
C. Maintenance of Facility. Licensee shall keep the Facility in an order
condition and cause all refuse and debris to be properly discarded.
Licensor will have the full right to collect and have custody of all articles and
personal property left on the Facility or at the Facility after the expiration of the Term.
Any property so left will be deemed abandoned by Licensee and may be disposed of by
Exhibit H
Page 5
Licensor, as Licensor sees fit, without any liability for any loss, damages or costs
associated with such disposal, which liability will rest solely with Licensee.
12. Representations, Warranties and Covenants. Licensor hereby represents and
w: is that it has full power and authority to enter into this Agreement and to engage in the
transtion contemplated hereby and that this Agreement is a valid obligation of the Licensor and
is bind g upon the Licensor.
Li - nsee hereby represents and warrants that it has full power and authority to enter into
this Agreem: t and to engage in the transaction contemplated hereby and that this Agreement is
a valid obligation of the Licensee and is binding upon the Licensee.
Licensee er represents and warrants that it shall not cause or permit, during the
Term, any hazardous ubstances, which are brought onto the Facility by Licensee, to be disposed
of or otherwise releaseonto or under the Facility.
During the Term, , icensee shall obey and comply With all present- and future laws,
ordinances, rules and reguiatsns of all governmental authorities in connection with the Event.
Licensee -warrants at any -and all use or performance of copyrighted material in
connection with the Event has been my licensed and authorized by the appropriate performing
rights organizations (including, with° limitation, BMI, SESAC and ASCAP), copyright owners
or their representatives and that any lice a or royalty fees owed to such persons or entities shall
be paid by Licensee. LICENSEE AG ES TO DEFEND, INDEMNIFY, SHALL BE
SOLELY LIABLE FOR AND HOLD, WAIVE AND RELEASE THE LICENSOR
PARTIES, FROM ANY CLAIMS, LOSS , LIABILITIES, DAMAGES, COSTS OR
EXPENSES THAT MAY BE ASSERTED A AINST THEM OR THAT THEY MAY
INCUR (INCLUDING REASONABLE ATT E`' EYS' FEES AND COURT COSTS)
ARISING OUT OF RELATED TO ANY VIOL TIONS OF SUCH INTELLECTUAL
PROPERTY RIGHTS OR—THE-LAWS-RELATI - THERETO.-__ Notwithstanding the
foregoing, Licensor reserves the right to collect •such yments from Licensee at Event
settlement and remit to appropriate parties on Licensee's alf. Licensee's obligations under
this paragraph shall survive the expiration or termination of thi greement.
13. INDEMNIFICATION. IN ADDITION 0 ANY OTHER
INDEMNIFICATION REQUIREMENTS SET FORTH HEREIN, ' , ICENSEE AGREES
TO DEFEND, INDEMNIFY, SHALL BE SOLELY LIABLE FOR AD HOLD, WAIVE
AND RELEASE LICENSOR AND THE CITY OF MIAMI AND .HE BAYFRONT
PARK MANAGEMENT TRUST AND EACH OF THEIR RESPE IVE PARENT
ENTITIES, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS AND S BSIDIARIES,
AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHA ``. HOLDERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY,. CENSOR
PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL CLAIM SUITS,
LOSSES, INJURIES, LIABILITY AND DAMAGES (INCLUDING REASO ABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OR ALLEGED TO HAVE
Exhibit H
Page 6
ARI OUT OF (A) ANY ACT OR OMISSION OF LICENSEE, ITS EMPLOYEES,
AGEN VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS, INVITEES,
PARTICINTS AND PERFORMING ARTISTS; AND/OR (B) THE PRESENTATION
OR PERFO ANCE OF THE EVENT AND/OR (C) LICENSEE'S BREACH OF ANY
OF THE PRO IONS OF THIS AGREEMENT. THE PARTIES AGREE, HOWEVER,
THAT THE F 1 ' GOING INDEMNITY, WAIVER AND RELEASE DOES NOT
INCLUDE ANY CL IMS, DEMANDS, SUITS, LIABILITIES, EXPENSES, ETC. THAT
ARISE OUT OF SUS H LICENSOR PARTY'S SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT.
LICENSEE AGREE' . TO USE AND OCCUPY THE FACILITY AND TO PLACE
MATERIAL, EQUIPMENT t OTHER PROPERTY THEREIN AT ITS OWN RISK
AND HEREBY RELEASES T E LICENSOR PARTIES FROM ALL CLAIMS FOR
ANY DAMAGE OR INJURY A ". ING THEREFROM.
THE INDEMNIFICATION, WAIVER AND RELEASE PROVISIONS
CONTAINED THROUGHOUT T AGREEMENT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMEN .
Licensee will be- solely --responsible- or the -conduct —and activities of Licensee's
employees, agents, contractors, guests and invitees and, for purposes of the Agreement, such
conduct and activities shall be deemed conduct and activities of Licensee. Licensee and its
employees, agents, contractors, guests and invitees will abide by all reasonable rules and
regulations adopted by Licensor for the use, occupancy and operation of the Facility. Licensee's
obligations under this Section 13 shall survive the expiration or termination of this Agreement.
,.t
14. Insurance Requirements. Licensee will maintain and pay all premium costs for,
and will ensure that all of Booth Vendors and other contractors of Licensee maintain and pay for,
the following insurance coverages in amounts not less than specified throughout the duration of
theTerm.
A. Statutory Workers' Compensation includin Employer's Liability
Insurance, subject to limits of not less than $500,000.00, a ` +rding coverage under
applicable worker's compensation laws. Licensee will cause, i , allowed by law, its
workers' compensation carrier to waive insurers right of subrogatio with respect to the
Licensor Parties.
B. Commercial General Liability Insurance for limits of ` of less than
S1,000,000.00 per occurrence Bodily Injury and Property Damag= combined;
$1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.0 , aggregate
Products and Completed Operations Liability; $100,000.00 Fire Legal Lial'. ity, and
$2,000,000.00 general aggregate limit per event. The policy shall be writte on an
occurrence basis.
C. Automobile Liability Insurance with a limit of not less than $1,000,000.
combined and covering all owned, non -owned and hired vehicles.
Exhibit H
Page 7
D. Umbrella Liability Insurance at not less than $4,000,000.00 limit
provi g excess coverage over all limits and coverages noted in paragraphs B and C
above, is policy shall be written on an occurrence basis.
Policies B, • and D above (and, if applicable, the E & 0 Coverage referenced herein)
shall list Licensor P. ies as "Additional Insureds" with respect to any and all claims arising
from Licensee's operat tns. Further, coverage for the "Additional Insureds" will apply on a
primary basis irrespectiv of any other insurance, whether collectible or not. Should any
additional premium be ch. ,ed for such coverages or waivers, Licensee will be responsible to
pay said additional premium arge to their insurer.
Licensee will deliver to icensor satisfactory evidence of the above insurance coverage
on a certificate form approved by icensor or, if required, copies of the policies. All required
insurance will be placed with cam rs licensed to do business in the State of Florida, have a
rating in the mast current edition of • .M. Best's Property Casualty Key Rating Guide that is
reasonably acceptable to Licensor and 11 provide thirty (30) days written notice of cancellation
or non -renewal
The insurance obligations stated in 's Section are independent of, and shall not be
affected by the scope or validity of, any other ' demnity, waiver, release or insurance provisions
in other sections of this Agreement.
Licensee will ensure that all of its contractor ' (including, without limitation, sponsors and
Booth Vendors arranged by Licensee) who will be ent. 'ng the Facility to engage in any business
activity (including, without limitation, sampling, di i' buting, vending or other commercial
activity) will comply with the foregoing insurance r ! uirements and provide satisfactory
evidence thereof prior to the Event.
15. Sponsorships and Signage. Licensee unders = .r and agrees that Licensor has
entered into signage and sponsorship relationships related to the acility for which Licensor will
retain all proceeds. Licensor reserves all rights to display signs: e at, on or near the Facility
property. No signs or advertising boards, other than those authoriz-• in writing by Licensor, will
be allowed into, on or near the Facility. Licensee will not mark, cove . or attempt to modify any
signage at, on or near the Facility.
Licensee is required to obtain Licensor's prior written approval if any sponsorship
relationships into which Licensee desires to enter for the Event.
16. Licenses and Permits. Licensee will be responsible for obtaining d paying for
all licenses or permits necessary for holding the Event, including, but not h ited to, tax
requirements and any permits required by governmental authorities for pyrotechnics laser use.
17. Access. Licensor, its officers, directors, servants, employees, \agents,
concessionaires and its concessionaire's servants, employees and agents shall at all time have
free access to the Facility upon presentation of passes issued by Licensor.
Exhibit H
Page 8
18. Miscellaneous.
A. Third Party Beneficiaries. This Agreement does not confer any rights or
benefits upon any persons or entities other than Licensor and Licensee and their
rmitted, respective successors and assigns. There are no third party beneficiaries.
B. Relationship of the Parties. Nothing contained in this Agreement will be
deee= to constitute Licensor and Licensee as partners or joint venturers with each other,
Each p: acknowledges and agrees that it neither has nor will give the appearance or
impression . f having any legal authority to bind or commit the other party in any way.
Licensee agrs that it will be solely responsible for the payment of all wages, federal,
state and local , come taxes, as well as all workers' compensation insurance requirements
for all personnel 1 supplies pursuant to this Agreement.
C. Entire greement and Modification. This Agreement contains the entire
agreement between th \parties relating to the subject matter hereof and all prior
agreements relative hereto which are not contained herein are terminated. This
Agreement may not be amended, revised or terminated except by a written instrument
-executed---by---the-Party against which enforcement of the amendment, revision or
termination is asserted. a,
D. Assignment. This Agreement or any part hereof may be assigned or
transferred by Licensor to any person 'or entity which acquires ownership or management
of the Facility. Neither this Agreementnor any part hereof shall be transferred, conveyed
or assigned by Licensee without the priorwritten consent of Licensor.
E. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State in whi the Facility is located without regard to
any theetrath"e eonflict-of--laws.
F. Use by Licensor. It is specifically d and understood that Licensor
has the right to occupy and use the Facility during th Term and to license any portion
thereof, provided that such use or license does not unr : `• • nably interfere with Licensee's
use of the Facility.
G. Utilities, No interruption or malfunction of : utility services, whether
such services are provided by Licensor or arranged for by Licen'..-, shall (i) constitute an
eviction or disturbance of Licensee's use and possession of the cility or a breach by
Licensor of any obligations hereunder, (ii) render Licensor liable r damages, or (iii)
entitle Licensee to be relieved of any obligations hereunder. In the vent of any such
interruption of service provided by Licensor, Licensor shall be obli ted only to use
reasonable diligence to restore such service.
H. Force Majeure. The failure of any party hereto to comply wi the terms
and conditions hereof because of a "Force Majeure Occurrence" shall not be eemed a
Exhibit H
Page 9
breach of this Agreement. "Force Majeure Occurrence" shall be defined to include,
without limitation, Act of God, strike, labor disputes, war, fire, earthquake, hurricane,
tornado, flood, storm surge, acts of public enemies, acts of terrorism, epidemic, action of
ederal, state or local governmental authorities or an event or reason beyond the
reasonable control of a party. In the event of a cancellation of the Event due to a Force
Majeure Occurrence, each party shall be relieved of its obligations hereunder with respect
to the formance so prevented.
I. Taxes. Any and all sales tax, amusement tax or other tax imposed by
Local, state, pro ncial or federal government as a result of the presentation of the Event
and/or performan of any services rendered by Licensor in connection with this
Agreement hereund shall be the responsibility of and paid for by Licensee at the time
required by law (exc.. ting any state or federal income tax imposed on Licensor).
Licensee's obligations u er this paragraph shall survive the expiration or termination of
this Agreement.
J. No Waiver of Ri ts. If either party fails to enforce any of the provisions
of this Agreement or any righ or fails to exercise any election provided in the
Agreement, it will not be consid='.-d to be a waiver of those provisions, rights or
elections or in any way affect the vat ity of this Agreement. The failure of either party
to exercise any of these provisions, righ ` or elections will not preclude or prejudice such
party from later enforcing or exercising the same or any other provision, right or election
which it may have under this Agreement.
K. Invalidity. If any term, provision, covenant or condition of the Agreement
is held by a court of competent jurisdiction to a invalid, void or unenforceable, the
remainder of this Agreement will remain in full force and effect and will in no way be
affected, impaired or invalidated.
L. Notices. All notices given hereunder sh':.1 be in writing and shall be
deemed to have been duly given if delivered personally receipt acknowledged or
sent by registered or certified mail or equivalent, if available, ` turn receipt requested, or
by nationally recognized overnight courier for next day delivery, addressed or sent to the
parties at the addresses set forth herein with a copy to Live Nan n, 9348 Civic Center
Drive, 3rd Floor, Beverly Hills, California, 90210, Attn: Cindy l? , Senior Counsel,
Venues and Alliances.
M. Exclusive Venue And Waiver Of Trial By Jury. The -exclusive venue for
any litigation arising out of this Agreement shall be Miami -Dade County,' llorida, if in
state court, and the U.S. District Court, Southern District of Florida, if in f era/ court.
BY ENTERING INTO THIS AGREEMENT, LICENSOR AND L ENSEE
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A L BY
JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF,THIS
AGREEMENT.
ACCEPTED AND AGREED as of the date and year first above written.
Exhibit H
Page 10
EXHIBIT "H-1"
LICENSE AGREEMENT
T LICENSE AGREEMENT ("Agreement"), dated , 20 , is by
and between ("Licensor") whose address is
and ("Licensee") whose
address is . For and in consideration of the mutual
covenants and agreement, contained herein, the receipt and sufficiency of which is hereby
acknowledged, the parties h eto, intending to be legally bound, agree as follows:
1. Term. Licensor reby grants to Licensee the privilege and license to use
designated portions of certain realiropertyt located in the City of Miami, Florida, which real
property is operated by Licensor and own as the Bayfront Park Amphitheater ("Facility"), for
the "Term" of this Agreement, which all be , 20, to include load -
in and load -out of the Event (as defined low). Unless otherwise agreed in writing by Licensor,
those portions of the Facility that the Lnsee shall utilize are restricted to the stage and
backstage area, public seating area, publi concession area (e.g. the consumer side of the
concession areas), interior public playas and arcs, and the loading dock.
Upon the expiration of the Term or the t urination of this Agreement for any reason
whatsoever prior to the expiration of the Term, Licenee shall immediately quit and surrender the
Facility to Licensor. Licensee shall remove any goodsor chattels brought onto or permitted by
Licensor to be brought onto the Facility property. For .non-compliance with the provisions of
this paragraph, Licensee shall pay to Licensor all costs and expenses incurred by Licensor in the
removal of such goods or chattels.
2. Purpose. Licensee agrees that it shall use the facility during the Term of this
Agreement for the purpose of presenting an event ("Event") for
. The Event shall be open to the public with paid admission, if applicable,
during a time period within the Term as approved by Licensor. Unless otherwise agreed to in
writing by Licensor, the Event shall be held at no other times.
3. Financial Settlement. In consideration for the grant of the license and use of the
Facility and related services as provided herein, Licensee shall promptly ''(within ten (10)
business days after receipt of written invoice therefor), reimburse Licensor\for all actual
expenses and costs incurred by Licensor to facilitate Licensee's use of the Facility hereunder,
including, without limitation, Licensor's standard charges for janitorial, clean up, \crowd and
traffic control, set-up and tear -down costs and fees and charges (including for maters, labor
and other services) directly necessitated by the occurrence of Licensee's use of the acility.
Licensee's obligations under this paragraph shall survive the expiration or termination if this
Agreement.
4. biking. Licensor shall not be obligated to provide or cause to be provided any.
parking whatsoever.
Exhibit H-1
Page 1
Speciali d parking space may, at Licensor's sole discretion, be provided for Licensee's
employees only, ' locations designated by Licensor. Licensor shall not be responsible, under
any circumstances, +r any loss or damage occurring to automobiles brought onto the Facility by
Licensee's employees, bcontractors or guests.
5. Merchandise d Concessions. Unless otherwise agreed upon in writing by the
parties hereto, (A) Licensor's . signaled food and beverage concessionaire shall sell all food and
beverages and retain one hundr ' percent (100%) of the profits therefrom, and (B) Licensor's
designated merchandise vendor sh sell all merchandise and retain one hundred percent (100%)
of the profits therefrom, less taxes . ' • any percentages owed to performing artists. Upon prior
written notice from Licensee, Licensi shall ensure that there will be no sales of alcoholic
beverages at the Facility during the Term:
6. Ticketing. All ticket sales fo , the Event shall be conducted through the Facility
box office and the facilities of Licensor's des ated ticketing agent. All ticket sales shall be
subject to service fees, and/or facility fees as p o ided by Licensor. Licensor reserves the right
to retain a reasonable number of complimen . tickets for the Event for Licensor's use.
Licensor may have non -manifested corporate boxes d/or premium seats, for which tickets will
not be included in the gross ticket receipts. If applica « e, Licensor will provide all premium seat
customers (including, without limitation, box and - . • seats) at the Facility with tickets for
their regular seats for the Event at no cost to Licensor.
7. Event Advertising and Promotion. Licensee all be responsible for producing
and paying for any and all advertising and promotional materi s in connection with the Event.
All such materials shall be subject to the prior approval of Lice ". Licensee acknowledges and
agrees that, notwithstanding any marketing or other related assistan which may be provided by
Licensor (although Licensor is not obligated to provide same), L nsor has made no, and
disclaims any purported or actual, representation or warranty as to results and/or success
which can be expected from the Event, including, without limitation, ticket sales and/or the
profitability of the Event. Licensee acknowledges and agrees that Licensor shall in no way be
responsible for the actual results from and/or the success, financial or otherwis, of the Event.
8. Booth / Commercial Space. in the event that Licensee desires to sell
booth/commercial space ("Booth Space") at the Facility to vendors or exhibitors, or otherwise
permit vendors or exhibitors at the Facility ("Vendors") in connection with the Event, Licensee
shall comply with the following provisions:
A. Licensee will first obtain Licensor's approval of each Vendor and that
Vendor's operations in connection with the Event.
B. Licensee will assume sole control and responsibility for (i) all operations
of all Vendors relating to the Event and (ii) requiring Vendors to comply with any,
applicable Facility rules and regulations.
C. Licensee will be solely responsible for the payment of any and all taxes or
other fees associated with the payments received from the Vendors or the use of the
Booth Space.
Exhibit H-1
Page 2
LICENSEE SHALL NOT ALLOW ANY OF THE FOREGOING INTO THE
FACILITY OR THE SURROUNDING PROPERTY AT ANY TIME, WITHOUT
LICENSOR'S PRIOR WRITTEN CONSENT: INTERACTIVE PHYSICAL GAMES
ND ATTRACTIONS, MECHANICAL RIDES, BODY ART AND PIERCING, EXOTIC
A MALS AND PYROTECHNICS.
L CENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES AND RELEASES
THE LIC SOR PARTIES (AS HEREIN DEFINED), FROM ANY AND ALL CLAIMS,
LAWSUITS, INJURIES OR LOSSES ARISING OUT OF THE INSTALLATION,
OPERATION D REMOVAL OF OR IN ANY MANNER RELATED TO THE BOOTH
SPACE AND T BOOTH VENDORS.
9. Use of ame of Facili . / Recordin:. Ri:hts. In the event that any printed
materials or media is use, to announce or promote the Event, Licensee shall use "Bayfront Park
Amphitheater" as the nam ° of the Facility. licensee shall not permit any film, video, audio or
other recording of the Eve ("Recording") to take place without Licensor's prior written
approval. In the event that censor does permit any Recording, the following teens and
conditions shall apply to such R rding:
A. Licensee and i employees, agents, representatives and contractors
understand and acknowledge that e Recording shall occur in locations approved by the
Licensor, and that Licensor's staff sh. 1 have the right to (i) refuse entry into any portions
of the Facility in its sole discretion o ..(ii) stop the Recording at any time if Licensor's
staff deems it reasonably necessary to doo.
B. Licensee shall be responsible r any and all costs and expenses associated
with the Recording, including, without Iintitation, union fees, additional security,
equipment, early set-up/load-in, additional phoes, office space, additional labor and
supplemental catering in connection with the Re' •riling. Payment for such costs and
expenses and/or reimbursement -for -such costs and e , - nses to Licensor may be required
in advance of the Event or at settlement of the E t, at Licensor's sole discretion.
Licensee shall advance all arrangements/requirements eg cerning the Recording with a
designated representative of the Licensor within a reasona e period of time prior to the
Recording. Licensee's obligations under this paragraph shsurvive the expiration or
termination of this Agreement.
C. Licensor reserves the right to charge an origination ee and/or shadowing
fee in the amount of (S ) for the granting of Recrding rights, such
fee shall be payable within business days after receipt of written * voice therefor.
Licensee's obligations under this paragraph shall survive the expiration o` -rmination of
this Agreement.
D, Licensee shall be solely responsible for securing in writing all ssary
rights, authorizations and consents of and making any necessary payments to any d all
third parties whose images, likenesses, marks or interests maybe involved th in,
including, without limitation, any performing artists, subjects of the Recording, unions,
third party contractors or their employees or representatives, Event patrons, guests ands
Exhibit H- I
Page 3
L
invitees of the Facility and Facility sponsors. Licensee represents and warrants that it has
full power and authority to conduct the Recording and has obtained, or will caused to be
obtained prior to disseminating the Recording, all of the foregoing necessary rights,
authorizations and consents.
E. The City of Miami, the Bayfront Park Management Trust and Licensor
shall be credited in any broadcast or other publication of the Recording. Licensee
represents, warrants and covenants that nothing contained in the end use in which the
ecording is used will be in any way derogatory to the City of Miami, the Bayfront Park
agement Trust or Licensor or their related companies or entities, including, without
limi ation, parent and subsidiary corporations and divisions, and their employees, agents
and representatives or the Facility.
In addition to any other insurance requirements set forth herein, Licensee
shall maintain appropriate Errors and Omissions coverage ("E & 0 Coverage")
applicable to the Recording with limits of not less than $1,000,000.00. Such E & 0
Coverage shall have standard coverage, including, but not limited to, defamation,
infringement Of copyright, infringement of rights in material to be broadcast or in the
manner of presentation thereof, invasion of privacy rights and unauthorized use of
material. The City of Miami Beach and Licensor shall be named as additional insureds
on the above E & 0overage.
G. LICENSEE SHALL BE SOLELY LIABLE FOR AND WAIVES
AND RELEASES T LICENSOR PARTIES, FROM ANY CLAIMS, LOSSES,
LIABILITIES, DAMAG , COSTS OR EXPENSES THAT MAY BE ASSERTED
AGAINST THEM OR T T THEY MAY INCUR (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATED TO
(1) THE RECORDING AND/OR AND ANY SUBSEQUENT DISTRIBUTION
AND/OR BROADCAST OF TIE RECORDING OR (2) LICENSEE'S FAILURE
TO OBTAIN ANY REQUIRED A HORIZATIONS OR CONSENTS.
10. Charitable Donations. In the eve t that Licensor permits and Licensee obtains the
right to collect charitable donations in connec with the Event, Licensee warrants and
represents that it will comply with all applicable laws, regulations and ordinances imposed by
any governmental authority in collecting said donatios. Licensee further agrees that it will be
solely responsible for all tax and other liability related tossuch donations. Licensee's obligations
under this paragraph shall survive the expiration or termination of this Agreement.
11. Condition of Facility.
A. Acceptance of Facility. Licensee accepts theondition of the Facility as is
and agrees to return the Facility to Licensor in the same'eondition as accepted by
Licensee and Licensee hereby waives any claims against Licensor, the City of Miami,
and the Bayfront Park Management Trust for defects in the Facility, including latent
defects. Licensee has examined the Facility and is satisfied with the condition, fitness
and order thereof. Commencement of the use of the Facility by \Licensee shall be
conclusive that the Facility was in good repair and in satisfactory condition, fitness and
order when such use -commenced.
Exhibit H-1
Page 4
Licensee shall not paint, drill into or in any way mar or deface any part of the
acility. Licensee shall immediately pay Licensor for the cost of repairing any damage to
t Facility caused by the Event. Any amounts unpaid within ten (10) days after the end
of t e Term shall accrue interest at the maximum amount allowed by law. Licensee's
oblig• ons under this paragraph shall survive the expiration or termination of this
Agree nt.
B. No Alterations or Improvements. Licensee shall not display or erect any
lettering, sis, pictures, notices or advertisements upon any part of the outside or inside
of the Facilit `.or make any alterations or improvements in or to the Facility without the
prior written co ., sent of Licensor.
C. Ma tenance of Facilit.. Licensee shall keep the Facility in an orderly
condition and cause 1 refuse and debris to be properly discarded.
Licensor will h ve the full right to collect and have custody of all articles and
personal property left o the Facility or at the Facility after the expiration of the Term.
Any property so left will deemed abandoned by Licensee and may be disposed of by
Licensor, as Licensor sees fit, without any liability for any loss, damages or costs
associated with such disposal, hich liability will rest solely with Licensee.
12. Re.resentations Warrant - s and Covenants. Licensor hereby represents and
warrants that it has full power and autho i to enter into this Agreement and to engage in the
transaction contemplated hereby and that thi • greement is a valid obligation of the Licensor and
is binding upon the Licensor.
Licensee hereby represents and warrants tit it has full power and authority to enter into
this Agreement and to engage in the transaction con etmplated hereby and that this Agreement is
a valid obligation of the Licensee and is binding upon a Licensee.
Licensee further reps esents and -warrants -that it
Term, any hazardous substances, which are brought onto
of or otherwise released onto or under the Facility.
,i not -cause ...-or -permit, during the
Facility by Licensee, to be disposed
During the Term, Licensee shall obey and comply with all present and future laws,
ordinances, rules and regulations of all governmental authorities in connection with the Event.
Licensee warrants that any and all use or performance``of copyrighted material in
connection with the Event has been duly licensed and authorized by the.. appropriate performing
rights organizations (including, without limitation, BMI, SESAC and AS C F), copyright owners
or their representatives and that any license or royalty fees owed to such persons or entities shall
be paid by Licensee. LICENSEE SHALL BE SOLELY LIABLE FORA D WAIVES AND
RELEASES THE LICENSOR PARTIES, FROM ANY CLA S, LOSSES,
LIABILITIES, DAMAGES, COSTS OR EXPENSES THAT MAY B ASSERTED
AGAINST THEM OR THAT THEY MAY INCUR (INCLUDING RE SONABLE
ATTORNEYS' FEES AND COURT COSTS) ARISING OUT OF RELATE TO ANY
VIOLATIONS OF SUCH INTELLECTUAL PROPERTY RIGHTS OR THE, LAWS
RELATING THERETO. Notwithstanding the foregoing, Licensor reserves the right to° collect
Exhibit H-1
Page 5
sch payments from Licensee at Event settlement and remit to appropriate parties on Licensee's
be alf. Licensee's obligations under this paragraph shall survive the expiration or termination of
this greement.
13. RELEASE. LICENSEE HEREBY WAIVES AND RELEASES LICENSOR
AND ITS P • ' NT ENTITIES, MEMBERS, PARTNERS, AFFILIATES, DIVISIONS
AND SUBS II ARIES, AND EACH OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, S : REHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES
(COLLECTIVELY, "LICENSOR PARTIES") FROM AND AGAINST ANY AND ALL
CLAIMS, SUITS, L + SES, INJURIES, LIABILITY AND DAMAGES (INCLUDING
REASONABLE ATTO EYS' FEES AND COURT COSTS) ARISING OR ALLEGED
TO HAVE ARISEN O OF (A) ANY ACT OR OMISSION OF LICENSEE, ITS
EMPLOYEES, AGENTS, VOLUNTEERS, CONTRACTORS, PATRONS, GUESTS,
INVITEES, PARTICIPAN AND PERFORMING ARTISTS; AND/OR (B) THE
PRESENTATION OR PERF ► RMANCE OF THE EVENT. THE PARTIES AGREE,
HOWEVER, THAT THE F 1 ' GOING WAIVER AND RELEASE DOES NOT
INCLUDE ANY CLAIMS, DEM DS, SUITS, LIABILITIES, EXPENSES, ETC. THAT
ARISE OUT OF SUCH LICENS f.' PARTY'S SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT.
LICENSEE AGREES TO USE A 1 OCCUPY THE FACILITY AND TO PLACE
MATERIAL, EQUIPMENT AND OTHE' PROPERTY THEREIN AT ITS OWN RISK
AND HEREBY RELEASES THE LICEN 4 R PARTIES FROM ALL CLAIMS FOR
ANY DAMAGE OR INJURY ARISING THE FROM.
Licensee will be solely responsible for the.conduct and activities of Licensee's
employees, agents, contractors, guests and invitees an purposes of the Agreement, such
conduct and activities shall be deemed conduct and acts ties of Licensee. Licensee and its
employees, agents, contractors, guests and invitees will bide by all reasonable rules and
regulations adopted by Licensor for the use, occupancy and op ation of the Facility. Licensee's
obligations under this Section 13 shall survive the expiration or tination of this Agreement.
14. Insurance Requirements. Licensee will maintain an ay all premium costs for,
and will ensure that all of Booth Vendors and other contractors of Lice maintain and pay for,
the following insurance coverages in amounts not less than specified thropghout the duration of
the Term:
A. Statutory Workers' Compensation including Empyer's Liability
Insurance, subject to limits of not less than $500,000.00, affording coverage under
applicable worker's compensation laws. Licensee will cause, if allowed by law, its
workers' compensation carrier to waive insurers right of subrogation with respect to the
Licensor Parties.
B. Commercial General Liability Insurance for limits of not less. than
$1,000,000,00 per occurrence Bodily Injury and Property Damage combed;
$1,000,000.00 per occurrence Personal and Advertising Injury; $2,000,000.00 aggrege
Products and Completed Operations Liability; $100,000.00 Fire Legal Liability, an
Exhibit H-1
Page 6
S2,000,000.00 general aggregate limit per event. The policy shall be written on an
occurrence basis.
C. Automobile Liability Insurance with a limit of not less than $1,000,000.00
combined and covering all owned, non -owned and hired vehicles.
D. Umbrella Liability Insurance at not less than $4,000,000.00 limit
providing excesscoverage over all limits and coverages noted in paragraphs B and C
above. This poli shall be written on an occurrence basis.
Policies B, C and D above (and, if applicable, the E & 0 Coverage referenced herein)
shall list Licensor, the City of iami, the Bayfront Park Management Trust, and their respective
parent entities, members, partn s, affiliates, divisions and subsidiaries, and their respective
officers, directors, shareholders, e`'.Ioyees, agents and representatives as "Additional Insureds"
with respect to any and all claims . ing from Licensee's operations. Further, coverage for the
"Additional Insureds" will apply on a many basis irrespective of any other insurance, whether
collectible or not. Should any addition premium be charged for such coverages or waivers,
Licensee will be responsible to pay said ad 'tional premium charge to their insurer.
Licensee will deliver to Licensor satin story evidence of the above insurance coverage
on a certificate form approved by Licensor or, required, copies of the policies. All required
insurance will be placed with carriers licensed t do business in the State of Florida, have a
rating in the most current edition of A.M. Best's operty Casualty Key Rating Guide that is
reasonably acceptable to Licensor and will provide thirty, (30) days written notice of cancellation
or non -renewal. Licensee may elect to self -insure for theinsurance coverage required above, and
if Licensee makes such an election, Licensee shall send to Licensor a letter from Licensee's Risk
Manager agreeing to provide coverage as required above on a,self-insurance basis and certifying
that such self-insurance shall not reduce the coverage to Licensor as required above.
The insurance obligations stated in this Section are independent of, and shall not be
affected by the scope or validity of, any other waiver, release or insurance provisions in other
sections of this Agreement
Licensee will ensure that all of its contractors (including, without limitation, sponsors and
Booth Vendors arranged by Licensee) who will be entering the Facility to engage in any business
activity (including, without limitation, sampling, distributing, vending or other commercial
activity) will comply with the foregoing insurance requirements and provide satisfactory
evidence thereof prior to the Event.
15. Sponsorships and Signage. Licensee understands and agrees that Licensor has
entered into signage and sponsorship relationships related to the Facility for which Licensor will
retain all proceeds. Licensor reserves all rights to display signage at, on or near the Facility
property. No signs or advertising boards, other than those authorized in writing by Licensor, will
be allowed into, on or near the Facility. Licensee will not mark, cover or attempt to modify any
signage at, on or near the Facility.
Licensee is required to obtain Licensors prior written approval of any sponsorship
relationships into which Licensee desires to enter for the Event.
Exhibit H-1
Page 7
16 Licenses and Permits. Licensee will be responsible for obtaining and paying for
all licenses`` or permits necessary for holding the Event, including, but not limited to, tax
requirements'and any permits required by governmental authorities for pyrotechnics or laser use.
17. Access. Licensor, its officers, directors, servants, employees, agents,
concessionaires its concessionaire's servants, employees and agents shall at all times have
free access to the Fa upon presentation of passes issued by Licensor.
19. Miscetlan ous.
B. Thiidl'arty Beneficiaries. This Agreement does not confer any rights or
benefits upon any ons or entities other than Licensor and Licensee and their
permitted, respective su essors and assigns. There are no third party beneficiaries.
B. Relationshi the Parties. Nothing contained in this Agreement will be
deemed to constitute Licensor d Licensee as partners or joint venturers with each other.
Each party acknowledges and ag es that it neither has nor will give the appearance or
impression of having any legal authority to bind or commit the other party in any way.
Licensee agrees that it will be solely responsible for the payment of all wages, federal,
state and local income taxes, as well asworkers' compensation insurance requirements
for all personnel it supplies pursuantto this Agreement.
C. Entire A reement and Modificati i . This Agreement contains the entire
agreement between the parties relating to the bject matter hereof and all prior
agreements relative hereto which are not contai herein are terminated. This
Agreement may not be amended, revised or terminate except by a written instrument
executed by the Party against which enforcement o ' ,the amendment, revision or
termination is asserted.
D. Assignment. This Agreement or any part here f may be assigned or
transferred by Licensor to any person or entity which acquires own ship or management
of the Facility. Neither this Agreement nor any part hereof shall be sferred,conveyed
or assigned by Licensee without the prior written consent of Licensor.
E. Applicable Law. This Agreement shall be governed by and e nstrued in
accordance with the laws of the State in which the Facility is located with utagard to
any theory of the conflict of laws.
F. Use by Licensor. It is specifically agreed and understood that Licensor
has the right to occupy and use the Facility during the Term and to license any portion
thereof, provided that such use or license does not unreasonably interfere with Licensee's
use of the Facility.
G. Utilities. No interruption or malfunction of any utility services, whether
such services are provided by Licensor or arranged for by Licensee, shall (i) constitute an
eviction or disturbance of Licensee's use and possession of the Facility or a breach by
Licensor of any obligations hereunder, (ii) render Licensor liable for damages, or
entitle Licensee to be relieved of any obligations hereunder. In the event of any such
Exhibit H-1
Page 8
ption of service provided by Licensor, Licensor shall be obligated only to use
ble diligence to restore such service.
H. Force Majeure. The failure of any party hereto to comply with the terms
and eonditio hereof because of a "Force Majeure Occurrence" shall not be deemed a
breach of this greement. "Force Majeure Occurrence" shall be defined to include,
without limitatio , Act of God, strike, labor disputes, war, fire, earthquake, hurricane,
tornado, flood, sto surge, acts of public enemies, acts of terrorism, epidemic, action of
federal, state or loe. governmental authorities or an event or reason beyond the
reasonable control of a In the event of a cancellation of the Event due to a Force
Majeure Occurrence, each y shall be relieved of its obligations hereunder with respect
to the performance so preven d.
I. Taxes. Any and sales tax, amusement tax or other tax imposed by
local, state, provincial or federal go ernment as a result of the presentation of the Event
and/or performance of any services\. rendered by Licensor in connection with this
Agreement hereunder, shall be the respoisibility of and paid for by Licensee at the time
required by law (excepting any state ors federal income tax imposed on Licensor).
Licensee's obligations under this paragraph shall survive the expiration or termination of
this Agreement.
J. No Waiver of Rights. If either pa y fails to enforce any of the provisions
of this Agreement or any rights or fails to exercise any election provided in the
Agreement, it will not be considered to be a wair of those provisions, rights or
elections or in any way affect the validity of this Agreeent. The failure of either party
to exercise any of these provisions, rights or elections will\not preclude or prejudice such
party from later enforcing or exercising the same or any other provision, right or election
which it may have under this Agreement.
K. Invalidity. if any term, provision, covenant or condition of the Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement will remain in full force and effect and,will in no way be
affected, impaired or invalidated.
L. Notices. All notices given hereunder shall be in writing\ and shall be
deemed to have been duly given if delivered personally with receipt acknigwledged or
sent by registered or certified mail or equivalent, if available, return receipt requested, or
by nationally recognized overnight courier for next day delivery, addressed or sent to the
parties at the addresses set forth herein with a copy to Live Nation, 9348 Civic.. Center
Drive, 3rd Floor, Beverly Hills, California, 90210, Attn: Cindy Parks, Senior Counsel,
Venues and Affiances.
M. Exclusive Venue And Waiver Of Trial By Jurv. The exclusive venue fbr
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, LICENSOR AND LICENSEE
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.
Exhibit H-1
Page 9
a
ACCPTED AND AGREED as of the date and year first above written.
By: By:
Name: ` Name:
Title: Title:
Exhibit H-1
Page 10