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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 3 anms�,gw cana„<m..�.mwxaoa 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 6 cry,fixw .LUA n dmmtONCWw 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