HomeMy WebLinkAbout2004-10-13 04-317 ORDERItem No. 04349.- '
Date: October 13. 2006
Item/Subject: ORDER, Authorizing the City Manager to Execute an Amendment to an
Agreement with Ticketmaster L.L.C.
Responsible Department: Legal
In 1994 the City Council authonzed an agreement v!M Ticketmaster L.L.C. People who with to attend
events at the Bass Park Auditorium can Purchase their tickets through Tickehoaster. The cost m the Ory
is that of providing two phone lines.
The Agreement is for a term of two years, and automatically renews unless one party gives the other
notice of Intent not to renew.
Ticketmaster has requested M amend the agreement. They are requesting a three year term, rather
Man the current two year term. They also want to update the agreement to include provisions for suds
things as eEntry and others that relate M new methods of ticket sales. Ticketmaster also wishes m
amend the agreement to update de0nitions and other provisions m more accurately reflect the changes
since the original agreement
The Business and Economic Development Committee has recommended approval.
Manager's Commons:
(7A,,rn w.4 gipci. L
Budget Approval:
A_ Passage
_ First Reading
Relerral
Department Hand
Finance Director
City soficltor
Page 1 of 2
06-312
Assigned roCoaxilor Caswell October 13, 2006
CITY OF BANGOR
(TITLE.) ORDER, Authorizing the City Manager W Execute an Amendment Wan
Agreement wRh Ticketmaster L.L.C.
WHEREAS, the City Council, by Council Order 94405 dated September 12, 1994,
authorized an agreement with Ticketmaster LLC.; and
WHEREAS, Ticketmaster wishes to amend the Agreement to update some provisions in
the original agreement, and change the term from a two year renewal to a
three year renewal; and
WHEREAS, the City remains satisfied with the services provided by Ticketmaster,
NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CIT' OF BANGOR,
THAT
the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to
execute an amendment W the Agreement between the City of Bangor and Ticketmaster
LLC., said amendment to be in a form approved by the Director of Bass Park and the
City Solicitor.
TO COONCIL
potiM ... _.
on& 13,2004 mt.oa sage
and am saomea 'fa
for Passage i x nn -an � ..
Pas
/a¢ORDER
(TITLE,) Auttorizine tke city Eanagei to
Execute an �ngoant toao—nth
Ticktw tet LLC
R
AWgnea b Councilor r YULtYX
tickda�tmaslti!E=r
THIS AMENDMENT TO LICENSED USER AGREEMENT ("Amendment") is
entered into as of September 1, 2004, by and between Ticketmaster L.L.C., a Delaware
limited liability company ("Ticketnaslee) and the City of Bangor, a Maine municipal
coryoration C'Principat), with reference to the following facts:
A. Ticketmaster and Principal entered into that certain Licensed User
Agreement dated as of June 3, 1994 ("Licensed User AgreemenP) whereby Principal
authorized Ticketmaster to act as Principal's exclusive agent for the sale of all remote
(e.g. at outlets, by telephone and via the internal) Tickets to attend each of the Attractions
upon the terms and conditions set forth in the Licensed User Agreement.
B. Ticketmaster and Principal hereby desire to extend the term of the Licensed
User Agreement, which is currently scheduled to expire on June 2, 2000, for a Period of
one (1) year and ninety (90) days, and to amend the Licensed User Agreement in certain
other respects as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereby agree, effective as of the data set forth above, as follows:
1. Defined Termite). All capitalured terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Licensed User Agreement.
(a) Convenience Charge. The defined term "Customer Convenience Charge"
is hereby deleted and replaced with the term "Convenience Charge" wherever such term
appears in the Licensed User Agreement.
(b) Facility. Section 1(c) of the Licensed User Agreement is deleted and
replaced with the following:
"(c) Facility. The venue located at 100 Dutton St., Bangor, Maine and
currently known as Bangor Auditorium and any new venue that replaces the Bangor
Auditorium."
(c) Processing Fee. The defined term "Handling Charge" is hereby deleted
and replaced with the farm 'Processing Fee" wherever such term appears in the Licensed
User Agreement.
(d) Software. Section 1(i) of the Licensed User Agreement is deleted and
replaced with the following:
"(i) Software: Acketmastees ticketing system software known and
marketed as Ticketmaster Classic and any new versions thereof that are
provided to Principal by Ticketmaster!"
(e) Teleohone Sales. Section 16) of Me Licensed User Agreement is deleted
and replaced with the following:
"0) Telephone Sales: means all sales of Tickets through the TM
System by telephone, and, if applicable interactive voice response (IVR) and
similar means, and includes for purposes of Mis Agreement, all sales of Tickets
over the Internet or any other means of interaction with any Internet websites
owned, operated and maintained by Ticketmaster and any ticketing property,
feature, product or acquired by Ticketmaster or its affiliates Mat may become
available subsequent to the Effective Date including, without limitation, any co-
branded versions and any version distributed through any broadband distribution
platform or through any platform or device including television, broadband and
wireless technologies (collectively, the "TM.cem Website").'
(f) New Definitions. The following new definitions are hereby added M the
end of Section 1 of Me Licensed User Agreement:
"(n) Aftrection Taxes means any and all sales, amusement, admissions
and other taxes, charges, fees, levies or other assessments measured by
reference to a charge per Ticket sold or determined based upon Me purchase
price of a Ticket assessed by federal, state, county, municipal or other
governmental or quasimgovernmental authorities as a result of, or in connection
with, any Attraction, including Principal Taxes and Ticketmaster Taxes as further
described below. To the extent such taxes relate M the Ticket Receipts and
funds paid or owed to Principal under this Agreement such portion of Attraction
Taxes may also be referred to herein as Principal Taxes, and to the extant such
taxes relate M the Convenience Charges collected and retained by Ticketmaster
under this Agreement, such portion of Attraction Taxes may also be referred to
herein as Ticketmaster Taxes!
2. Extension of Term. The term of the Licensed User Agreement, as
modified by this Amendment, is extended for a period of one (1) year and ninety (90)
days, commencing on June 3, 2006 and expiring on August 31, 2007. Thereafter, the
Tenn of this Agreement shall automatically be renewed for successive three (3) year
periods unless either party hereto notifies the other party in writing, not less than ninety
(90) nor more Man one hundred and twenty (120) days prior to the end of the then -
current renewal period, of its Intention not to renew this Agreement. Each twelve (12)
month period commencing on September 1 and continuing through Me following
August 31 shall be a'Contmct year" as such tens is used herein.
3. Compensation. Section 4 of the Licensed User Agreement. is deleted
and replaced with the following:
"3. Compensation. In consideration for the license by Ticketmasterof
the Hardware and Software to Principal, the license by Ticketmaster to Principal
of the right to deeplink to the TM.com Website granted herein, and
Ticketmasters continuing services to be performed In connection herewith,
Ticketmaster shall be entitled to receive the fees and compensation described
herein. Principal consents to the imposition of the charges described herein on
all Tickets purchased through the TM System hereunder. Those tees and
compensation that are owed by Principal may be deducted by Ticketmaster from
the Ticket Receipts collected by Ticketmaster as an agent of Principal under the
settlement procedures described in Section 16 hereof.
(a) Inside Chances: Ticketmaster shall be entitled 0 assess and
receive from gross Ticket proceeds collected by it as an agent of Principal an
Inside Charge with respect to each Ticket sold through Outlets and Telephone
Sales. The amount of the Inside Charge shall initially be as follows:
T e of Transaction
Inside Charge
Outlet sales
$0.00 parTicket
Telephone Sales
$0.00 car Ticket
Other Tickets (including
complimentary Tickets) printed
by or on behalf of Principal
$0.10 per Ticket
The amount of Inside Charges owed by Principal to Ticketmaster shall be
de lucted from gross Ticket proceeds in the manner provided in Section 11
hereof.
(b) Convenience Charge (Per Ticket): Ticketmaster shall assess a
Convenience Charge against purchasers of Tickets for Tickets to all Attractions
sold by Ticketmaster. The amount of the Convenience Charge for each
applicable category of Ticket sale shall initially be as follows:
Type of Attraction Outlets Telephone Sales
(Cash Price)
Concert Attractions $5.50 $5.50
Family Albactions $3.00 $3.00
Other Attractions $5.00 $5.00
Notwithstanding the above, the Convenience Charges with respect to any
Attractions presented by Feld Entertainment ("Feld Attractions') at the Facility
shall be determined pursuant to a separate national agreement between
Ticketmaster and Feld Entertainment The Convenience Charges at Outlets set
forth above reflect a 2.56% cash discount currently in effect for cash purchases
at Outlets. With respect to credit cartl purchases at Outlets, the Convenience
Charge set forth above shall be increased by 2.56% of the face value of the
Ticket (with the explicit understanding that this formula for credit card
Convenience Charges at Outlets is being used solely for purposes of simplifying
the calculation of the applicable charges, however, and that the amounts
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Oa317
charged to Ticket purchasers are intendetl to reflect a discount for cash paid at
Outlets; acoardingly, Ticket pumhasers first will be informed of the applicable
credit card Convenience Charge at Outlets and then of the discount for cash
payment, if applicable). The percentage rate set forth above is subject to change
in the event that the interbank rates imposed on Ticketmaster are increased. On
the first day of the second Contract Year and on the first day of each Contract
Year thereafter during the Term, the Convenience Charges set forth above shall
be automatically increased by $0.25 per Ticket.
(c) Credit Card Sales: Principal hereby authorizes Ticketmaster to
accept American Express, MasterCard, Visa, Discover and Diners Club charges
(and any other credit card, debt card or other electronic method of payment and
membership/loyalty program reward points backed by those program sponsors
whom Ticketmaster in its reasonable discretion chooses to authorize as a
method of payment and which may hereafter be approved by Ticketmaster) in
connection with sales of Tickets purchased tram Ticketmaster with cred@ cards.
Ticketmaster agrees to absorb the credit card company charge relative to the
Convenience Charge and Processing Fee. Principal agrees to absorb the credit
card company charge relative to the face value of Tickets sold by Telephone
Sales using such credit cards in an amount equal to 3.00% of the face value of
all Tickets purchased by such credit cards, which percentage rate shall be
deducted by Ticketmaster as an Inside Charge. With respect to any Feld
Attractions, Principal agrees that Principal shall be obligated to pay for the credit
card company charge for Tickets to Feld Attractions purchased with credit cards,
or shall obtain the agreement of Feld Entertainment to adjust the Convenience
Charge to include the amount of such credit card charges; in any such event
Ticketmaster shall not be obligated b absorb the credit card charges with
respect to the face value of Tickets to any Feld Attractions. Such rate is subject
to automatic increase due to increases to the interbank rates imposed on
Ticketmaster.
(d) Processing Fee (Per Order): Ticketmaster shall assess a
Processing Fee against purchasers of Tickets in the amount of $2.50 with
respect to each order of Tickets ordered by Telephone Sales. Notwithstanding
the above, the Processing Fees with respect to any Feld Attractions at the
Facility shall be determined pursuant to a separate national agreement between
Ticketmaster and Feld Entertainment. The Processing Fee may be increased
from time to time consistent with Tickebnastees processing fee for similar events
at similar facilities and is subject to automatic increase equal to any increase
(rounded up to the nearest $0.05) to the postal service rales.
(e) eE�: Ticketmacter shall supply Principal with two (2) eEntry
device(s) so that Principal may accept Tickets printed via ficketFastTM at the
Facility, and Principal agrees to utilize and make eEntry available to the public at
all times throughout the Term of this Agreement at the doors) of the Facility.
Principal shall supply the system equipment necessary to operate the eEntry
device(s). Upon installation of the eEntry device(s), Principal assumes the risk of
loss and damage to the device(s) and agrees that the eEntry device(s) remain
Oyora.ow,cona 4tl)=C4
06-311
the property of Ticketmaster and will be retumed in goad working order upon the
termination or expiration of this Agreement.
(f) Compliments" Tickets: At Principal's request, Ticketmaster shall
distribute complimentary Tickets to Attractions in connection with Principal's
Promotions via Ticketmaster's PaperFast option for a convenience charge
determined by Ticketmaster based on market conditions (currently $1.25 per
Ticket) and any other fees set forth in this Agreement, including the Processing
Fee set forth in Section 3(d)."
4. Central Computer Facllitr. Conduct of Telephone Sales. Section 6 of
Me Licensed User Agreement is hereby amended such that the third sentence shall be
deleted and replaced with:
"Ticketmaster shall provide telephone Ticket sales services on behalf of
Principal with respect to Attractions and, in that regard, shall receive telephone
calls for Ticket sales Monday through Sunday, except on Christmas Day."
5. Facility Box Office Ticket Pick -U . Section 10 of the Licensed User
Agreement shall be amended by the additi0n of the following at the end of such section:
'Principal shall notify Ticketmaster of Principal's will -call capabilities and
will -call Facility Box Office hours. Principal shall verify the identity of each
person picking up Tickets at will -call via a valid photo identification (government
issued) and the credit cartl used in the Ticket sales transaction. Principal shall
not release Tickets to any customer whose identity has not been so veered. -
6. Accounting Procedures.
(a) Section 16(a) of the Licensed User Agreement is hereby amended such
Mat "located in the State of New York" is deleted and replaced with 'selected by
Tickebnastee'.
(b) Section 16(c) of the Licensed User Agreement is hereby amended such
that the third sentence shall be deleted and replaced with the following:
"Principal also authorizes Ticketmaster to refund the Ticket price of
Tickets purchased by Telephone Sales at the original point of purchase Principal
and Ticketmaster agree that Ticketmaster shall be entitled to retain the Inside
Charges, Convenience Charges and Processing Fees assessable with respect to
the initial sale of Tickets to cancelled Attractions although no additional
compensation shall be payable to, or fee assessed by, Ticketmaster with respect
to the exchange of any Tickets initially purchased from Ticketmaster."
(c) Section 16 of the Licensed User Agreement is also amended by the
addition of the fallowing Subsections (d) and (e):
°(d) Chamebacka: Ticketmaster reserves the right W deduct.
cibaamw�tono W
from Principal's settlement, portions of any Chargebacks that Ticketmaster is
assessed by its merchant bank related to the face value, Processing Fee, and
Principal's credit card fee (as set forth in Section 3(c) above) and any other fees
due from Ticketmaster to Principal, for up to eighteen (18) months after the
occurrence of an Attraction. Ticketmaster shall be responsible for the remaining
portions of any Chargebacks, except to the extent caused by Principal's failure to
obtain signatures, swipe credit cards, or fallow any procedures provided by
Ticketmaster or the merchant bank with respect to acceptance of credit cards,
including, but not limited to, cardholder verification instructions for willcall and
other alternative Ticket delivery/pick-up services. For purposes of this
Agreement, "Chargebacks' shall mean the amounts that the merchant bank is
charged back by a cardholder or a card issuer under the card organization's
rules (e.g. cardholder dispute, fraud, declined transaction, returned Tickets for
Cancelled Attractions, etc.).
(e) Insolvency: Deficiency Amounts. Security for
Renavment: Principal shall provide immediate written notice to Ticketmaster in
the event it files any voluntary or involuntary petition under the bankruptcy or
insolvency laws or upon any appointment of a receiver for all or any portion of
Principal's business, or the assignment of all or subslantally all of the assets of
Principal for the benefit of creditors (each, a "Material Financial Evert°). The
parties agree that this Agreement constitutes a financial accommodation by
Ticketmaster to Principal as such tens is utilized in 11 U.S.C. § 365. If at any
time, the amount of funds held at any time by Tickebmaster on account of Ticket
Sales for all Attractions less amounts of Tickets sales proceeds which
Ticketmaster is entitled to retain hereunder ("Account Balance') is not sufficient
to pay for anticipated refunds or Chargebacks, Principal shall deliver the amount
of such deficiency ("Deficiency Amount") to Ticketmaster no later than twenty
four (24) hours after notice by Ticketmaster to Principal. Ticketmaster shall have
the right to setoff any Deficiency Amount against any amounts held by
Ticketmaster on behalf of Principal. In the event of any Material Financial Event
or in the event Principal has not paid any Deficiency Amount when due,
Ticketmaster shall have the option to require Principal to provide additional
security to Ticketmaster of a type (e.g. letter of credit, guaranty or performance
bond) and in an amount as requested by Ticketmaster in its sole discretion,
which Principal shall provide to Ticketmaster within five (5) business days after
Ticketmasters request."
7. Tates. Section 21 of the Licensed User Agreement is amended by the
addition of the following:
"Principal shall be responsible for calculating any and all Principal Taxes,
for preparing and timely filing any and all tax returns or reports required to be
filed in respect of any such Principal Taxes, and for timely remitting Principal
Taxes to the appropriate taxing authority. Ticketmaster will wiled and turn over
to Principal the amounts to which Principal is shared as provided in Section 12.
In the event that Ticketmaster pays any Principal Taxes on behalf of Principal,
Principal shall promptly reimburse Ticketmaster for any and all such Principal
Taxes paid by Ticketmaster, including penalties and interest assessed with
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04-3l]
respect thereto (other than Principal Taxes, penalties and interest that
Ticketmaster pays directly out of Principal's Ticket Receipts), and shall also
promptly reimburse Ticketmaster for any and all expenses (including reasonable
attorneys' fees) or damages that result from the failure by Principal to properly
calculate and timely remit Principal Taxes assessed on all amounts received by
Principal under this Agreement, M timely file all related returns or reports, or to
timely reimburse Ticketmaster for any and all such Principal Taxes, interest and
penalties as provided above. Notwithstanding the foregoing, In the event that
Ticketmaster is ever required by applicable law to remit Principal Taxes directly
on behalf of Principal and file related tax returns or reports, Ticketmaster shall
have the right to do so upon notice to Principal, and thereafter "Ticket Receipts"
shall be defined to be reduced by such Principal Taxes. Ticketmaster shall be
responsible for calculating any and all Ticketmaster Taxes, for preparing and
timely fling any and all tax returns or reports required to be filed in respect of any
such Ticketmaster Taxes, and for timely remitting such Ticketmaster Taxes to
the appropriate taxing authority. Principal certifies that Principal's federal
taxpayer identification number (FEIN or SSN) iso/-000oo 'a . Principal
further certifies that its state taxpayer identification or registration number for the
state in which the Facility is located is
8. Indemnfiv. Section 27 of the Licensed User Agreement is amended by
Me addition of the following:
"Principal shall also indemnify Ticketmaster and hold Ticketmaster
harmless from, any and all claims, actions, damages, expenses (including court
rests and reasonable attorneys' fees), obligations, losses, liabilities and liens,
imposed on, incurred by, or asserted against Ticketmaster occurring as a result of,
or in connection with: (i) a claim Mat Ticketmastees release of Me Purchaser Dale
to Principal violates any applicable (United States or foreign) law, rule or
regulation, including without limitation Canada's Personal Information Protection
and Electronic Documents Act; (ii) Principal's use of Me Purchaser Data; or (N) any
email campaigns or distributions conducted by Ticketmaster on Principal's behalf
or conducted by Principal, including without limitation, email campaigns or
distributions in violation of federal, state or other laws applicable to commercial
en its; except, in each case, to the extent that any such claims shall relate to
Ticketmastees negligence orwiliful misconduct with respect thereto'
9. Notices. Section 31(a)(i) of the Licensed User Agreement is hereby
delated and replaced with Me following:
"(i) If to Ticketmaster, at: Ticketmaster L.L.C.
1320 Centre Street, Suite 301
Newlon, MA 02459
Atte: Michael Nocton
and: Ticketmaster L.L.C.
oy a s�s%w,. nmmemm� anowor
8800 Sunset Boulevard!
West Hollywood, CA 90089
Alm Victoria Rishwain, Esq."
10. Force Majeure. The following shall be added to the Licensed User
Agreement as Section 31(1):
"(1) Force Majeure: Neither party hereto shall be deemed ro be in
default hereunder, and no Event of Default shall be deemed to have occurred, as
a result of any delay or failure in performance of this Agreement resulting directly
or indirectly from any cause completely, solely and exclusively beyond the
control of that party, but only for so long as such delay shall continue to prevent
such performance °
11. Waiver of Jury Trial. The following shall be added to the Licensed User
Agreement as Section 31(m):
"(m) Waiver of Jaw Trial: In the event the parties are required for any
reason to submit any dispute hereunder to trial, the parties expressly agree to
waive the right to a jury trial, because the parties hereto, all of whom are
represented by counsel, believe that the complex commercial and professional
aspects of their dealing with one another make a jury determination neither
desirable nor appropriate!
12. Purchaser Data. The following shall be added to the Licensed User
Agreement as Section 31(n):
"(n) Purchaser Data: Principal and Ticketmaster each has rights In the
personally identifiable information with respect to persons who actually
purchased tickets to Principal's Attractions through Ticketmaster (whether by
telephone call, outlet or via the Internet) ("Purchaser Data"), subject to the terms
hereof. Tidretmasler will solely retain rights in any other data that Is collected by
Ticketmaster by any means regardless of whether such data is redundant of
Purchaser Data. Ticketmaster takes seriously its efforts in ensure the privacy
rights of ticket purchasers. Principal therefore agrees to use the Purchaser Data
only in compliance with all applicable laws and administrative rulings and in
accordance with Principal's own posted privacy policies. Ticketmaster also
requires that Principal include in any email communications that Principal may
make based on the Purchaser Data a mechanism to provide the recipient with
the right to "optout" from receiving further communications from Principal and
that Principal honor such optout preferences."
13. Conflicting Terms. In the event a conflict arises between this Amendment
and the terms and conditions of the Licensed User Agreement the terms and conditions
of this Amendment shall control. Except as specifically net forth herein to the contrary, all
of the terms and conditions of the Licensed User Agreement are in full force and effect,
shall continue in full force and effect throughout the term and are hereby retired and
confirmed by the parties.
omdsni;o,wnan< 07xx0$
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
TICKETMASTER L.L.C.,
a Del mlimits liability mpany,
By: V
Title:
ZO � t
Civors.,,w.wAA�Ww
CITY OF BANGOR,
a Maine nmunicipal corporation,
By:�d/mt� fi_ Eat
Tide: C rTy Y✓MNxiG6ti