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ITEM R3
OFFICE OF THE CITY MANAGER (910) 341-7810 | FAX (910)341-5839
TDD (910)341-7873
9/15/2020
City Council
City Hall
Wilmington, North Carolina 28401
Dear Mayor and Councilmembers:
Attached for your consideration is a resolution awarding a ten-year contract with a ten-year option to
Live Nation Worldwide, Inc., for venue management services at the Hugh Morton Amphitheater at
Greenfield Lake. This item was continued from the September 1, 2020 at staff's suggestion.
Live Nation was selected through a Request for Proposals (RFP) process. Two firms responded to the
RFP with Live Nation being selected by the interview committee. The interview committee members
included: David Pugh, Hugh Morton Amphitheater Supervisor; Jennifer Maready, Finance Director;
Suzanne Gooding, Budget Analyst; and Thom Moton, Deputy City Manager.
Firms were evaluated based upon business plan, qualifications and experience of the proposed team
members, references, financial proposal, and diversity plan. The interview committee agreed
unanimously that Live Nation Worldwide, Inc., submitted a superior business plan and financial
proposal and has the qualifications and experience to effectively manage the performance venue. Live
Nation more clearly demonstrated a level of understanding about the Hugh Morton Amphitheater
operations, the importance of the amphitheater to the community, and the need to balance the needs of
its surrounding neighbors.
Contract management activities will include:
• Booking event and scheduling services
• Venue consulting
• Facility management
• Food and beverage concessions
Due to the impact of the Coronavirus pandemic, the agreement has two sets of terms. For calendar
year 2020, the only fees Live Nation will be required to pay to the City are a $700 per event fee and
$2.00 per ticket sold.
Beginning 2021, the City will receive $40,000 annually in fixed rent for up to 30 events and an
additional $1,500 between 31 to 40 from Live Nation; and $250,000 for in-kind value of maintenance
expenses over the prescribed term of the contract. Additionally, the City will receive $2.00 per-ticket
in revenue. Live Nation will also provide an initial capital investment of $500,000 dollars for
equipment, fixtures, and furnishings, with half of the improvements being completed within 18 months
of the first 2021 Concert Event and the remaining balance of the improvements completed by the end of
2026.
Adoption of this resolution is aligned with City Council’s Focus Areas to Promote Culture, Art and
Public Spaces and Foster a Prosperous and Thriving Economy.
Passage of the attached Resolution is recommended.
Respectfully submitted,
Sterling B. Cheatham,
City Manager
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Resolution City Council
City of Wilmington
North Carolina
Date: 9/01/2020 Introduced By: Sterling B. Cheatham, City Manager
Resolution Authorizing a Professional Services Agreement with Live Nation Worldwide,
Inc. for Venue Management Services at the Hugh Morton Amphitheater at Greenfield
Lake
LEGISLATIVE INTENT/PURPOSE:
This resolution authorizes the award of a professional services agreement to Live Nation
Worldwide, Inc., for venue management services at the Hugh Morton Amphitheater at
Greenfield Lake. The agreement is for ten years with a ten-year option.
Due to the impact of the Coronavirus pandemic, the agreement has two sets of terms. For
calendar year 2020, the only fees the Manager will be subject to pay to the City are a $700 per
event fee and $2.00 per ticket sold. Beginning in 2021, the City will receive $40,000 annually in
fixed rent for up to 30 events and an additional $1,500 for each event between 31 to 40 from
Live and $250,000 for in-kind value of maintenance expenses over the prescribed term of the
contract. Additionally, the City will receive $2.00 per-ticket in revenue. Live Nation will also
provide an initial capital investment of $500,000 dollars for equipment, fixtures, and
furnishings.
Management activities will include:
• Booking event and scheduling services
• Venue consulting
• Facility management
• Food and beverage concessions
Live Nation Worldwide, Inc. was selected through a competitive proposal process to manage the
performance venue operations.
THEREFORE, BE IT RESOLVED:
THAT, the City Manager is hereby authorized to execute the initial agreement and, if in the
City’s best interests, the option to renew, with Live Nation Worldwide, Inc., for venue
management services at Hugh Morton Amphitheater at Greenfield Lake.
Bill Saffo, Mayor Adopted at a ________________ meeting
on ____________________ 2020
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ATTEST:
Penelope Spicer-Sidbury, City Clerk
APPROVED AS TO FORM:
City Attorney
1
STATE OF NORTH CAROLINA CONTRACT NO.:
COUNTY OF NEW HANOVER
AGREEMENT BETWEEN
THE CITY OF WILMINGTON, NORTH CAROLINA
AND
LIVE NATION WORLDWIDE, INC.
THIS AGREEMENT, (hereinafter the “Agreement”) is made and entered into this _____
day of June, 2020, by and between the CITY OF WILMINGTON, a North Carolina municipal
corporation (hereinafter called “CITY”) and Live Nation Worldwide, Inc., a corporation organized
and existing under the laws of the State of Delaware, (hereinafter referred to as “MANAGER”),
for Venue Management Services for the Hugh Morton/Greenfield Lake Amphitheater (hereinafter
referred to as “Venue”), which will be depicted on Exhibit “A” (to be attached at a later date and
made a part hereof).
WHEREAS, the CITY owns an amphitheater within the public park surrounding
Greenfield Lake in Wilmington, North Carolina. The amphitheater is to be used as a high-quality
venue for live musical and other performances and civic events. The surrounding park is to
provide recreational opportunities for CITY residents and visitors.
WHEREAS, the CITY advertised a Request for Proposals on October 21, 2019;
WHEREAS, the MANAGER’s proposal was determined to best satisfy the requirements
of the CITY and represent the best value to the CITY for this project;
WHEREAS, pursuant to the terms of this Agreement, MANAGER proposes to operate,
manage, and maintain the Amphitheater (as defined below) and to arrange for, promote, and
manage performances at the Amphitheater.
NOW, THEREFORE, for and in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby specifically acknowledged, and subject to the terms and the conditions hereinafter
stated, the parties agree as follows:
1. Definitions, The following terms shall have the meanings given in this section:
a. “Affiliate” means any person or entity that, directly or indirectly, controls, is
controlled by, or is under common control with MANAGER. The term “control”
(including the terms “controlled by” and “under common control with”) means the
possession, direct or indirect, or the power to direct or cause the direction of the
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management and policies of a person or entity, whether through the ownership of
voting securities, by contract, or otherwise.
b. “Amphitheater” means the principal amphitheater as well as the supporting
buildings and grounds; all as depicted on Exhibit A.
c. “Amphitheater Operating Expenses” shall mean all expenses that result from the
operation of the Amphitheater for a Civic Event.
d. “Amphitheater Public Access Areas” means those portions of the Venue property,
including the sponsor pavilion, amphitheater bowl, and service court yard, which
are to be open to the public (except during Civic Events or Concert Events) and do
not consist of buildings and structures which MANAGER has the ability to
secure/lock in order to deny access thereto by third parties, such as the stage house
and outbuildings.
e. “Applicable Law” shall mean any applicable constitution, statute, rule, regulation,
ordinance, order, directive, code, interpretation, judgment, decree, injunction, writ,
award, permit, license, authorization, or requirement of any court, board, agency,
commission, office, division, subdivision, department, body, authority of the
United States, the State of North Carolina, City, and any other governmental unit.
f. “Applicable Standard” means:
i. Except as defined in subsection (ii) below, a standard of performance,
operation (including bookings), and maintenance equal to or exceeding
those generally applicable to comparable first class live entertainment
facilities operated by MANAGER or an Affiliate in the United States.
ii. With respect to prices, regulation of the advertising and serving of alcoholic
beverages and products, the standard shall be equal to comparable facilities
and amphitheaters located in North Carolina.
g. “Civic Events” means public events, festivals, performances, charitable benefits,
fundraising events, sporting contests, dances, meetings, lectures, ceremonies, or
other gatherings arranged or permitted by CITY and not promoted by MANAGER
or an Affiliate. Civic Events shall include without limitation CITY festivities,
musical performances and other entertainment during the Azalea Festival (which
occurs over a five (5) day period in April). Other than aforementioned events
(collectively, the “Fixed Civic Events”), the number of Civic Events shall not
exceed five (5) per calendar year (having a maximum of ten (10) per year including
the Fixed Civic Events) without MANAGER’s written consent.
h. “Concert Events” means all events (whether single or multi-day) held, conducted,
or presented at the Amphitheater, which are promoted by MANAGER or an
Affiliate and are not Civic Events. The number of Concert Events shall not exceed
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forty (40) per year without CITY’s written permission. By way of illustration and
not by limitation, events featuring the following types of entertainment and artists
shall be included within the definition of Concert Events:
i. Contemporary music, rock and roll music, pops music and jazz music;
ii. Adult contemporary performers;
iii. Theatrical performances and national Broadway Tours;
iv. Country Music;
v. Rhythm and Blues Music;
vi. Gospel and contemporary Christian Music;
vii. Music Festivals;
viii. Electronic dance music;
ix. Children’s shows and entertainment; and
x. Comedy Performers.
i. “MANAGER” means Live Nation Worldwide, Inc., a Delaware corporation, or an
Affiliate. Acts of MANAGER’s agents, officers, employees, and other authorized
representatives acting within the scope of their authority or employment shall be
deemed to be acts of MANAGER for purposes of binding MANAGER to any
obligation or duty hereunder.
j. “Non-Permitted Use” shall mean any uses not described as a Permitted Use, unless
approved in writing by CITY. Non-Permitted Uses shall also include MANAGER’s
Negative Covenants described in this Agreement as well as any use contrary to
Applicable Law.
k. “Park” means the public park surrounding the Amphitheater as shown on Exhibit
A.
l. “Performance Season” means the period commencing on or about March 1 and
ending on or about November 30 of each year.
m. "Permitted Use" shall mean the operation of a first-class live entertainment venue
together with ancillary uses thereto, including, without limitation, operation of food
and beverage service (including, without limitation, food storage, preparation,
service and consumption and bar service and the sale and consumption of alcoholic
beverages), VIP rooms and facilities, product exhibitions, meetings, fund raising
events, charity events, broadcasting, recording, sale of concessions, and sale of
merchandise related to the operations or events at the Amphitheater, exhibiting of
pay-per-view events, events for viewing on a screen, the display and sale of works
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of art, videotapes, promotional items, music, CDs, DVDs, and other items sold
generally from time to time at live entertainment venues, and Civic Events.
Other capitalized terms not referenced or defined above shall have the meanings indicated
where such terms first appear in this Agreement.
2. Term. The term (“Term”) of this Agreement shall be for ten (10) years beginning on the
date upon which the first Concert Event occurs (the “Commencement Date”) and continuing
through to the tenth anniversary of the Commencement Date, unless earlier terminated as
provided herein; provided, however, that for calendar year 2020 the only fees and charges
to be paid by MANAGER will be $700 per Concert Event in 2020 plus $2 per paid ticket
to such Concert Events. This Agreement may be renewed for an additional term of ten
(10) years upon written agreement of the parties.
3. Appointment and Authority of MANAGER.
a. CITY hereby engages MANAGER, as an independent contractor and not as an
agent of or for the CITY, to operate, manage, and maintain the Amphitheater during
the Term of the Agreement. MANAGER hereby undertakes and agrees to act in
such capacity in accordance with the provisions of this Agreement.
b. Subject to the provisions of this Agreement, MANAGER shall have the
responsibility and authority to take all actions necessary or appropriate for the
operation, management, promotion, and maintenance of the Amphitheater,
including but not limited to the following:
i. Employ or contract for such workers, mechanics, laborers, clerks, legal
counsel, consultants, accountants, and other employees and contractors as
are reasonably necessary or appropriate in the management, maintenance,
and operation of the Amphitheater;
ii. Procure and pay for such materials, services, public utility services,
supplies, and equipment as are reasonably necessary or appropriate in the
management, maintenance, and operation of the Amphitheater, consistent
with the terms of this Agreement;
iii. Procure and maintain in force and effect the policies of insurance required
of MANAGER by this Agreement;
iv. Subject to the provisions of this Agreement governing removal of fixtures,
acquire and dispose of MANAGER’s personal property used in the
operation of the Amphitheater, for any reasonable purpose consistent with
this Agreement;
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v. Use or permit the use of all or any part of the Amphitheater, by any person
or entity, for events consistent with the terms of this Agreement and the use
of the Amphitheater as a public entertainment facility;
vi. Operate or grant concession privileges for the vending and sale of food and
beverages, including alcoholic beverages, programs, cushions, souvenirs,
novelties, retail merchandise and similar articles, and other articles, or for
the renting of any such articles, consistent with the terms of this Agreement
and the use of the Amphitheater as a public entertainment facility.
vii. Take and omit such other actions, enter into such other agreements,
documents, and instruments, and engage in such other transactions, as are
reasonably necessary or appropriate in connection with the management,
operation, maintenance, improvement, and administration of the
Amphitheater, consistent with the terms of this Agreement and the use of
the Amphitheater as a public entertainment facility; and
viii. Administer all business operations and activities related to the
Amphitheater, except as otherwise specifically provided herein.
4. Duties of MANAGER.
a. Within the authority granted to MANAGER under this paragraph and other
pertinent sections of this Agreement, MANAGER hereby agrees, except as
otherwise expressly provided in this Agreement, to perform and furnish, during the
Term of this Agreement, all management services, labor, and material appropriate
to carry out its duties hereunder. MANAGER shall devote its reasonable good faith
efforts to doing all things reasonably necessary for the orderly and efficient
administration, management, and operation of the Amphitheater, including the
negotiation, execution, and enforcement of licenses, ticketing agreements or
contracts, use agreements, and bookings for the Amphitheater. All licenses, use
agreements, bookings and any other agreements pertaining to the use, operation,
maintenance, and occupancy of the Amphitheater, except those pertaining to Civic
Events, will be executed by MANAGER as manager of the Amphitheater.
MANAGER shall use reasonable, commercially feasible good faith efforts in light
of market conditions and attendance patterns to secure events appropriate to the
operation of the Amphitheater. Such efforts shall be designed to promote as diverse
a use of the Amphitheater as is practical and economically feasible, consistent with
and to the end that the citizens and public generally may enjoy and receive those
benefits intended from the Amphitheater, and so that CITY may exploit its climatic,
geographical, recreational, cultural, educational, and commercial resources and
advantages. MANAGER shall endeavor to coordinate its efforts with CITY’s own
efforts to achieve the objectives of this paragraph but a failure shall not be a default.
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b. MANAGER shall use reasonable, commercially feasible, good faith efforts to
achieve a level of customer satisfaction meeting the Applicable Standard and to
satisfactorily resolve customer complaints. MANAGER agrees to employ, as its
General Manager in charge of the Amphitheater management, a person experienced
in management of comparable facilities meeting the Applicable Standard.
MANAGER shall not employ, nor continue to employ, any person as General
Manager to whom CITY reasonably and in good faith objects. The General
Manager shall be responsible for the overall operation of the Amphitheater and will
be the primary liaison with the CITY’s designated representative. The General
Manager should be a good operator and able to work closely with community
representatives, volunteers, and CITY officials, employees, and agents.
MANAGER’s General Manager shall meet with CITY’s representative to discuss
and attempt in reasonable, commercially feasible, good faith to resolve any
customer complaints received by CITY.
c. MANAGER shall operate, and shall cause MANAGER’s subcontractors,
concessionaires, vendors, licensees, users, broadcasters, and others using the
Amphitheater, to operate and use the Amphitheater in conformance with the
Applicable Standard. MANAGER shall require by contract that all contractors
operating in the Amphitheater under MANAGER operate to the Applicable
Standard and shall enforce such requirement against all contractors.
d. MANAGER agrees to provide to CITY a list of proposed qualified users,
subcontractors, vendors, licensees, concessionaires, and service contractors prior to
entering into principal contracts for such services. CITY, through its designated
representative, will have the right to discuss with MANAGER the list of qualified
subcontractors, vendors, licensees, users, concessionaires, and service contractors,
and MANAGER shall consider the opinion of the CITY, but nothing herein shall
give CITY the right or authority to approve or disapprove of any of the persons or
entities on said list. Notwithstanding the foregoing, MANAGER shall (i) not enter
into any such principal contracts with a term that is greater than the Term of this
Agreement, and (ii) be permitted to enter into principal contracts with its Affiliates
without having to submit to CITY a list of proposed users, subcontractors, vendors,
licensees, concessionaires, and service contractors, provided that the fees for using
such Affiliates are consistent with the fees charged at other such venues operated
by MANAGER or its Affiliates which are of comparable size and are reasonably
consistent with Applicable Standards.
e. Subject to the terms of this Agreement, all appropriate supplies and equipment for
events and for the management, operation, and maintenance of the Amphitheater
shall be rented, leased, or purchased by MANAGER. During the Term of this
Agreement, MANAGER shall maintain a reasonable inventory of equipment and
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supplies. Equipment purchased by MANAGER and left at the Amphitheater upon
the expiration of the Term shall become the property of CITY.
f. MANAGER may negotiate and enter into service contracts or agreements in the
name of MANAGER which are reasonably necessary or appropriate in the ordinary
course of business in operating the Amphitheater, including contracts for
electricity, engineering services, gas, telephone, staffing personnel, including
guards and ushers, janitorial service, vermin extermination, concessions, radio,
cable and television rights, accounting services, and other services.
g. MANAGER shall furnish such management and supervisory services as are herein
set forth in this Agreement in a manner consistent with the Applicable Standard.
h. MANAGER shall accept the management, maintenance, and operation of the
Amphitheater, in its condition as of the Commencement Date without any
additional representation by CITY, its employees, representatives, or agents, other
than the right to conduct an inventory; provided that CITY’s delivery of the
Amphitheater to MANAGER shall constitute CITY’s representation and warranty
that the CITY Work has been completed in a good and workmanlike manner, in
compliance with the plans and specifications therefore approved by the parties, in
compliance with all Applicable Laws, including ADA, and, subject to
MANAGER’s Work, is legally permitable for the Permitted Uses.
i. MANAGER shall be responsible for administering the official website of the
Amphitheater as initially set up by MANAGER. Any domain names/URLs (uniform
resource locators) used for this purpose must be owned by either the CITY or the
MANAGER. Ownership of the any website URL/ domain names used for this purpose
will revert to the CITY upon the expiration or termination of this Agreement.
j. MANAGER shall, subject to availability, provide facility rentals to outside
organizations for events which do not include nationally touring artists. A facility
rental pricing list, to be reasonably approved by the CITY, shall be provided to the
CITY by November 1st. of each year, for the following calendar year. All such
rentals shall be effected pursuant to MANAGER’S then current form of rental agreement.
k. For each Concert Event promoted by MANAGER, MANAGER shall deliver to
CITY 20 admission tickets, with the locations and types to be selected by
MANAGER in its sole discretion.
5. Repair and Maintenance Standards. The CITY and MANAGER shall, on or before the
Commencement Date, develop a maintenance schedule and standard for maintenance to be
performed at the Amphitheater by MANAGER, which schedule and standard shall not
exceed that of the Applicable Standard. In the event that the parties are unable to agree on
such schedule and standard prior to the Commencement Date, MANAGER may terminate
this Agreement. The maintenance schedule and standard mutually agreed upon by the
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parties shall be reduced to writing and become part of this Agreement by an Amendment
completed and executed by both parties. MANAGER shall, throughout the Term, be
responsible for routine and preventative maintenance of the Amphitheater including the
Amphitheater Public Access Areas and major systems (including but not limited to) the
HVAC, plumbing, and electrical systems and the “building envelope,” components of
which include the roof, walls, floors, fenestrations, and doors; provided that the foregoing
responsibility shall not include any capital repairs, replacements, or improvements, defined
as a repair, replacement, or improvement in which the net cost exceeds five thousand dollars
($5,000.00). Materials used in the maintenance of operational systems should be OEM or
acceptable equivalent. Submission of capital needs or repairs shall occur on an annual basis and
should be submitted to the City, in writing, by the end of November each year. The MANAGER
shall keep same in good repair, order, and condition, free from any unsanitary conditions
and any conditions posing a hazard or threat to health and safety, all consistent with the
Applicable Standard. In furtherance of the foregoing, MANAGER shall perform regular
inspections of the building envelope and major systems and either promptly make all
necessary routine and ordinary repairs or maintenance in accordance with manufacturers
recommendations to keep the Amphitheater in good repair, order, and condition or the
MANAGER shall promptly notify the CITY of the need for any work that would constitute
a capital repair, replacement, or improvement as defined above. Except for the
MANAGER’s Work, MANAGER shall not be obligated to, and shall not, without CITY’s
written consent (which consent shall not be unreasonably withheld, conditioned, or
delayed), perform any work that would constitute a capital repair, replacement, or
improvement. Failure to perform such routine and ordinary maintenance in accordance
manufacturers recommendations and with this Agreement and any Amendments to this
Agreement shall result in MANAGER being held financially responsible for the repair or
replacement of any major systems, the building envelope, or any damages to the extent
caused by MANAGER’S failure to perform such routine and ordinary maintenance. For
the term of this Agreement, MANAGER shall maintain reasonable records of the routine
and ordinary maintenance it performs and provide those records to CITY upon termination
of this Agreement or when reasonably requested. MANAGER shall not be required to
remove or otherwise remedy, in accordance with Applicable Law, any hazardous materials
or substances existing at the Amphitheater as of the Commencement Date. CITY shall
mow and maintain all landscape, grassy, and turf areas within the Amphitheater and Park
in accordance with CITY’s standards for its other park facilities.
6. Operating Costs. MANAGER shall be solely responsible for all expenses that
MANAGER incurs in connection with carrying out its duties under this Agreement,
including, but not limited to, the following:
a. Wages and salaries (including management fees) of all of MANAGER’s employees
engaged in the operation, maintenance, and security of the Amphitheater, including
taxes, insurance, and benefits paid to such employees;
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b. All supplies and material used in the operation, maintenance, repair, and security
of the Amphitheater;
c. Insurance expenses;
d. Utility costs, including, but not limited to, those associated with telephone service,
electricity, gas, sewer, water, garbage removal, stormwater fees, and cable data
transmission;
e. Repairs and general maintenance of the Amphitheater;
f. Service or maintenance contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Amphitheater; and
g. The parties acknowledge and agree that notwithstanding anything to the contrary contained
in this Agreement, the maximum yearly amount to be expended by MANAGER for (i)
repairs and maintenance will be $20,000 and (ii) utilities will be $50,000; with the
foregoing amounts increasing by 2% per year.
7. Revenues. Except in connection with Civic Events (other than as noted below),
MANAGER shall be entitled to contract for, collect, receive, and retain all revenues
generated by MANAGER’s operation of the Amphitheater, including, without limitation:
a. Sales of tickets or passes;
b. Broadcast rights;
c. Promotion of events;
d. Sponsorships (excepting only sponsorships for Civic Events that CITY procures);
e. Sales of food, beverages, merchandise, programs, and other goods and wares
i. Food and beverage rights and revenues for Civic Events and Concert Events
shall be solely MANAGER’s
ii. Food and beverage net revenues for Fixed Civic Events shall be split fifty
percent (50%) to the CITY, fifty percent (50%) to the MANAGER. It being
the intention of the parties that the revenues subject to the foregoing split
shall be calculated based on what MANAGER is to receive of such revenues
pursuant to the concession agreement(s) between MANAGER and any third
parties providing concession services at the Venue (which will be net of
taxes, costs of goods sold, labor, compliance and operating costs, etc.) so as
to be based upon the net amount received by MANAGER under such
concession agreement(s).
8. Security. MANAGER at all times shall be responsible for on-site security in the
Amphitheater. Armed security guards, as defined by N.C. Gen. Stat. § 74C-13, shall not
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be utilized to perform any type of security other than to escort the transportation of cash
funds related to the operation of the Amphitheater.
CITY, through its police, shall be responsible for security in the park surrounding the
Amphitheater and, when open to the public, the Amphitheater Public Access Areas. CITY
shall be responsible for off-site security, provided, however, that any extraordinary crowd
control or security for the protection of persons and property necessitated by Concert
Events shall be provided and paid for by MANAGER upon mutual agreement of the
staffing and costs thereof. CITY and MANAGER agree to coordinate planning event
traffic, traffic control, crowd control, and other security issues from time to time. CITY
and MANAGER will each designate a liaison for purposes of such coordination.
9. Access by CITY Personnel. Officers, employees, agents, and other authorized persons of
CITY in the performance of their official duties shall have access to the Amphitheater at
all reasonable times. The CITY reserves the right to conduct inspections of the premises
upon twenty-four (24) hours notice to the MANAGER but no such access shall be allowed
during a Concert Event.
10. Compliance with Laws. MANAGER shall, throughout the Term, comply with all
Applicable Law respecting the use or manner of use of the Amphitheater and operation
thereof. MANAGER shall obtain and keep in full force and effect all permits and licenses
and other authorizations required for the use and operation of the Amphitheater.
MANAGER specifically acknowledges and agrees that it has complied with and shall
continue to comply with the provisions of the federal E-Verify program in compliance with
N.C. Gen. Stat. §64-25 et seq. Any Subcontractors employed by MANAGER shall also be
in compliance with the federal E-Verify program in accordance with N.C. Gen. Stat. §64-
25 et seq. MANAGER shall maintain adequate safeguards with respect to sensitive
customer information in conformance with and pursuant to 16 C.F.R. §681.1 and in
accordance with N.C. Gen. Stat. §132-1.10 and §75-65.
11. Compliance with Applicable Standard. MANAGER shall comply with the
Applicable Standard in advertising and promoting events at the Amphitheater and in all
other aspects of its management, maintenance, and operation of the Amphitheater pursuant
to this Agreement. MANAGER agrees that Concert Events booked at the Amphitheater
will be of a quality that comparable managers would be willing to book at other similar
venues operated by MANAGER or its Affiliates meeting the Applicable Standard. CITY
and MANAGER agree to meet and confer from time to time for purposes of developing
and maintaining effective alcohol management, noise, and crowd control programs.
Subject to the notice and cure provisions of this Agreement, any failure of MANAGER to
meet the Applicable Standard as provided above shall be deemed a breach of this
Agreement.
12. Park Scheduling. CITY shall have sole discretion with respect to the scheduling of
events and activities within the Park; provided, however, that CITY shall not grant a permit
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for or allow an event in the Park to take place during the times when MANAGER has
scheduled a Concert Event. Except during times when MANAGER has scheduled a
Concert Event or Civic Event, CITY shall have the right to contract with outside food
vendors to provide services to the Park; provided that neither the CITY nor any such
outside food vendors may use any of the equipment, fixtures, facilities, structures,
buildings or utilities for which MANAGER is responsible to maintain. MANAGER may
request to reserve the Park in accordance with CITY’s normal reservation practices but
shall have no special rights with respect to such reservation requests.
13. Amphitheater Event Scheduling. The parties agree that each year during the Term of
the Agreement, CITY shall have the right to use the Amphitheater for the Fixed Civic
Events. Not later than January 31 of each year during the Term, the CITY shall provide
the MANAGER with a schedule showing the dates during the upcoming year when the
CITY has scheduled the Fixed Civic Events at the Amphitheater. MANAGER shall not
schedule Concert Events or other uses of the Amphitheater during days reserved for Fixed
Civic Events. MANAGER shall have the exclusive right to book and produce all Concert
Events at the Amphitheater and priority rights in booking and scheduling events for dates
other than those reserved for the Fixed Civic Events. MANAGER also will seek to
encourage use of the Amphitheater by community groups within MANAGER’s booking
schedule.
Priority will be given to the scheduling needs of Cape Fear Shakespeare, Ltd., for the Fixed
Civic Event known as Shakespeare on the Green; which occurs annually beginning the fourth
Wednesday of May through the last Sunday in June for set up and performance, with the
following conditions: Cape Fear Shakespeare, Ltd., annually no later than April 30 of each
year, will complete a license agreement for the facility, on MANAGER’S then current form of
license agreement for use of the Amphitheater which will specify their allotted dates. Cape
Fear Shakespeare, Ltd. will be responsible to construct the sets for the event in a manner that
will allow them to be taken down and stored as needed by Cape Fear Shakespeare, Ltd., and
provisions made to store any other associated equipment, to allow for other events at the
facility. Other events may be booked at the facility during this period under the following
conditions: A total of four dates will be made available for concerts during Cape Fear
Shakespeare’s allotted time at the facility. A maximum of two of these dates may be on
Fridays/Saturdays, with the remainder of the dates to be held Sundays through Thursdays.
In an effort to provide adequate time for Shakespeare on the Green event promotion, all
events scheduled by organizations other than Cape Fear Shakespeare, Ltd., occurring
during Cape Fear Shakespeare’s allotted dates, must be confirmed no later than April 15
of the same calendar year. At this time, a master schedule for the facility will be created.
Cape Fear Shakespeare, Ltd. will maintain the right to provide/sell food and beverage items
during their scheduled performances subject to not using the concession equipment of the
Amphitheater, not adversely affecting the license of the concessionaire of the Amphitheater, and
under no circumstances selling alcohol beverages, and Cape Fear Shakespeare, Ltd. shall be entitled
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to retain the revenues from its sale of concessions but shall be solely responsible for any licenses,
permits, and taxes associated therewith.
14. Amphitheater Scheduling Procedures. During the Term, MANAGER shall
promptly notify CITY of the dates of each Concert Event and other events that MANAGER
intends to book or has booked under this Agreement. Not later than January 31 of each
year during the Term, CITY will provide MANAGER with a schedule (the “Proposed
Schedule”) showing the dates (“Reserved Dates”) during the upcoming year when CITY
would like to schedule Civic Events other than the Fixed Civic Events at the Amphitheater,
and MANAGER shall use reasonable, commercially feasible, good faith efforts to
accommodate the Proposed Schedule. Notwithstanding the foregoing, after receiving the
Proposed Schedule, MANAGER may schedule Concert Events on Reserved Dates until 60
days remain before any such Reserved Date (the period preceding the day that is 60 days
prior to a Reserved Date being the “Bump Period”). If MANAGER has not scheduled a
Concert Event during the Bump Period, CITY’s right to proceed with the Civic Event on
that Reserved Date shall be absolute, and MANAGER shall not thereafter schedule a
Concert Event or other use of the Amphitheater on that Reserved Date.
15. Expenses of Civic Events. The parties contemplate that Civic Events may be sponsored
by third parties who shall be responsible for the Amphitheater Operating Expenses for
those events and who shall, subject to the provisions of this paragraph, be entitled to net
revenues from ticket sales and broadcast rights (but not concession sales revenues), if any,
generated by such events. For each Civic Event held at the Amphitheater pursuant to this
Agreement, the Amphitheater Operating Expenses attributable to that event shall be paid
for first out of and by the net revenues, if any, generated by that event, and any remaining
balance from the sponsors of such event, and if it is sponsored by the CITY, then the CITY.
Nothing herein shall be construed to require MANAGER to subsidize a Civic Event. If the
net revenues generated by the Civic Event fail to cover all Amphitheater Operating
Expenses for such event, then any such deficit arising therefrom shall be paid for by the
third party sponsor(s) or if it is a CITY event, the CITY. MANAGER shall have the right
to require that a deposit be placed for the estimated Amphitheater Operating Expenses for
such event. All Civic Events which are promoted or conducted by parties other than the
CITY shall be subject to the promoters and/or sponsors thereof entering into MANAGER’s
standard license agreement for the Amphitheater.
16. Costs of Fixed Civic Events. MANAGER shall charge no rent for use of the Amphitheater
for the Fixed Civic Events but shall charge the Amphitheater Operating Expenses for such
event. CITY and its permitees shall further have the right to place branding, sponsorship,
and other signage in the Amphitheater during the Fixed Civic Events.
17. Fees, Taxes and Assessments. During the Agreement Term, MANAGER shall pay
all applicable governmental fees, charges, and taxes resulting from its occupancy,
management, and use of the Amphitheater; provided, however, that to the extent
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MANAGER is required to pay any real estate taxes or occupancy taxes, MANAGER may
receive a credit in the amount of such taxes paid against the rents, fees and charges due
from MANAGER to CITY under this Agreement.
18. Times of Operation for Concert Events. Concert Events scheduled Monday through
Friday shall only be scheduled from 3:00 p.m. until 9:00 p.m. No sound checks for events
scheduled Monday through Friday shall be conducted before 2:00 p.m. unless authorized
by the City Manager or designee in writing prior to the event. Any Concert Events held
on Saturdays shall be conducted between 9:00 a.m. and 10:00 p.m. and on Sundays shall
be conducted between 11:00 a.m. and 9:00 p.m.
19. MANAGER’s Paid Ticketing Records and Ticketing. MANAGER shall maintain during
the Term of this Agreement such ticketing reports, including backup data, of the number
of all paid, dropped, and gross tickets for each Concert Event (collectively, “Records”)
relating to this Agreement as are customary for business operations comparable to
MANAGER’s in order to ascertain the number of paid tickets to Concert Events. Such
Records shall be available upon reasonable request for CITY’s inspection. CITY
acknowledges and agrees that MANAGER shall have the exclusive right to handle and sell
tickets to any Concert Event, Fixed Civic Event and Civic Event, and that such handling
and sale shall be effected by and subject to MANAGER’S then current ticketing agreement.
20. Negative Covenants. MANAGER shall not do, permit, or authorize others to do, any of
the following:
a. Operate the Amphitheater in any manner or for any purpose other than a Permitted
Use as defined above;
b. Knowingly or intentionally engage in any act which would, to an ordinarily prudent
person in the position of MANAGER, be reasonably foreseeable to cause
substantial or irreparable damage to the Amphitheater;
c. Abandon the Amphitheater during the Term; provided, however, that inactivity
other than maintenance during the off-season of the Amphitheater shall not
constitute abandonment;
d. Knowingly use or occupy, or knowingly permit the Amphitheater or any part
thereof to be used or occupied, for any unlawful, disreputable, or ultra-hazardous
use (including the prohibited or unauthorized use, storage or disposal of substance
regulated as hazardous under North Carolina or federal law), or operate or conduct
the business of the Amphitheater in any manner known to constitute or give rise to
a nuisance of any kind; provided that CITY recognizes and agrees that the holding
of events in the Amphitheater meeting the Applicable Standard shall not, in and of
itself, constitute a nuisance for purposes of this Agreement;
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e. Make, authorize, or permit any material modifications or alterations to the
Amphitheater except as expressly authorized by CITY in accordance with this
Agreement;
f. Permit the holding of a flea market or used-goods sale at the Amphitheater;
g. Permit gambling within any portion of the Amphitheater;
h. Knowingly permit the Amphitheater to be used for any illegal business or purpose;
i. Enter into any agreements entailing the installation of any wireless structures
(unrelated to MANAGER’s direct operation of the Amphitheater) in any portion of
the Amphitheater; or
j. License the use of any portion of the Amphitheater for a period exceeding one week
to any third party without notifying CITY in advance and obtaining CITY’s written
approval.
21. CITY’s Negative Covenants. CITY shall not do any of the following:
a. Unreasonably interfere with MANAGER’s rights or benefits hereunder; or
b. Take any action materially affecting or diminishing CITY’s title to the
Amphitheater.
22. Payments. During the Term of this Agreement, subject to abatement as expressly
provided in this Agreement, MANAGER agrees to pay to CITY the following:
a. A Quarterly Rent Payment of ten thousand dollars ($10,000) per quarter (“Base
Payment”), growing at 2% per annum, beginning on the first day of the quarter in
which the Commencement Date occurs, while the Agreement is in effect; plus
b. A portion (“Seat Fee”) of each ticket sold by MANAGER for every Concert Event.
The Seat Fee shall be two dollars ($2.00) per ticket for each of the tickets sold in
any calendar year. Seat Fees owed shall be paid by MANAGER to CITY each
month on the same day as Base Payment; plus
c. An incremental per show rent payment of fifteen hundred dollars ($1,500), growing
at 2% per annum, per show above the first 30 shows.
d. All payments required of MANAGER hereunder that are not paid within ten (10)
days of the date such payment is due or within ten (10) calendar days after the
expiration of any applicable cure period, whichever is later, shall bear interest from
the date due until paid at one percent (1%) over the prime rate described in the Wall
Street Journal for the last business day of the calendar month immediately
preceding the late payment. In no event, however, shall the charges permitted under
this section or elsewhere in this Agreement, to the extent they are considered to be
interest under law, exceed the maximum lawful rate of interest.
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23. MANAGER’s Work. Subject to the terms of this paragraph, MANAGER, at its cost and
expense, shall construct the MANAGER’s Work (defined below), the costs of which are not
to exceed a total of five hundred thousand dollars ($500,000). CITY shall have the right to
approve the scope and design of MANAGER’s Work, which approval shall not be
unreasonably withheld, delayed, or conditioned. MANAGER will obtain the approval of
final plans for the MANAGER’s Work by any and all federal, state, municipal, and other
governmental authorities, offices, and departments having jurisdiction in the matter, as
required and necessary. MANAGER will complete all MANAGER’s Work in a good and
workmanlike manner and in accordance with all applicable laws, rules, and ordinances.
The initial MANAGER’s Work, with costs of which shall be two hundred and fifty thousand
dollars ($250,000), shall be completed with eighteen (18) months after the first Concert Event
in calendar year 2021 under this Agreement. The remaining two hundred and fifty thousand dollars
($250,000) of the MANAGER’S Work shall be completed by the end of calendar year 2026.
MANAGER’S Work is defined as such work as MANAGER may desire to enhance the point of
sale systems for concession and merchandise sales, providing portable concessions service, sales
and equipment, and a lighting and sound system for the Amphitheater. The parties acknowledge
and agree that it is their intent for MANAGER to obtain capital accounting treatment for
MANAGER’S Work and therefore that during the Term the title and control of the items
comprising MANAGER’S Work shall be vested in MANAGER. Upon the expiration or
termination of the Term any of MANAGER’S Work remaining at the Amphitheater shall
automatically transfer to and title thereto vest in CITY.
24. Waiver of Liability. CITY assumes no responsibility for any damage or loss of
MANAGER’s personal property except to the extent negligently or willfully caused by
CITY or its employees, agents, or officers. MANAGER agrees to hold CITY harmless
from any damage or loss of MANAGER’s personal property located within the
Amphitheater property except to the extent caused by the negligence or willful misconduct
of CITY or its employees, agents, or officers.
25. Insurance. Prior to the Commencement Date, MANAGER shall provide to the CITY proof
of insurance as follows:
A. Commercial General Liability
1. MANAGER shall maintain Commercial General Liability (CGL) and if necessary,
Commercial Umbrella Liability insurance with a total limit of not less than five
million dollars ($5,000,000) each occurrence for bodily injury and property
damage. If such CGL insurance contains a general aggregate limit, it shall apply
separately to this project/location or the general aggregate shall be twice the
required limit.
2. CGL insurance shall be written on Insurance Services Office (ISO) “occurrence”
form CG 00 01 covering Commercial General Liability or its equivalent and shall
cover the liability arising from premises, operations, independent contractors,
products-completed operations, personal and advertising injury, and liability
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assumed under an insured contract (including the tort liability of another assumed
in a business contract).
3. The CITY, its officers, officials, agents, and employees are to be covered as
additional insureds under the CGL by endorsement CG 20 10 or CG 20 33 AND
CG 20 37 or an endorsement providing equivalent coverage as respects to liability
arising out of activities performed by or on behalf of the MANAGER; products and
completed operations of the MANAGER; premises owned, leased or used by the
MANAGER; and under the commercial umbrella, if any. The coverage shall
contain no special limitations on the scope of protection afforded to the CITY, its
officers, officials, agents, and employees.
4. There shall be no endorsement or modification of the CGL or Umbrella Liability
limiting the scope of coverage for liability arising from explosion, collapse,
underground property damage, or damage to the named insured’s work, when those
exposures exist.
5. The MANAGER’s Commercial General Liability insurance shall be primary as
respects the CITY, its officers, officials, agents, and employees. Any other
insurance or self-insurance maintained by the CITY, its officers, officials, and
employees shall be excess of and not contribute with the MANAGER’s insurance.
6. The insurer shall agree to waive all rights of subrogation against the CITY, its
officers, officials, agents and employees for losses arising from work performed by
the MANAGER for the CITY.
B. Workers’ Compensation and Employer’s Liability
1. MANAGER shall maintain Workers’ Compensation as required by the general
statutes of the State of North Carolina and Employer’s Liability Insurance.
2. The Employer’s Liability, and if necessary, Commercial Umbrella Liability
insurance shall not be less than one million dollars ($1,000,000) each accident for
bodily injury by accident, one million dollars ($1,000,000) each employee for
bodily injury by disease, and one million dollars ($1,000,000) policy limit.
3. The insurer shall agree to waive all rights of subrogation against the CITY, its
officers, officials, agents and employees for losses arising from work performed by
the MANAGER for the CITY.
4. The U.S. Longshore and Harborworkers Compensation Act endorsement shall be
attached to the policy when the services will be on or in close proximity to
navigable waterways.
5. The Maritime Coverage endorsement (WC 00 02 01) shall be attached to the policy
when the contracted services involve the use of watercraft.
NOTE: Additional requirements needed if you have a borrowed servant, offshore
platforms or federal act situations. (Federal Acts such as the Defense Base Act, Migrant
and Seasonal Agricultural Worker Protection Act, and the Federal Coal Mine Health and
Safety Act, etc.)
C. Business Auto Liability
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1. MANAGER shall maintain Business Auto Liability and, if necessary, Commercial
Umbrella Liability insurance with a limit of not less than one million dollars
($1,000,000) each accident.
2. Such insurance shall cover liability arising out of any auto, including owned, hired,
and non-owned autos.
3. Business Auto coverage shall be written on ISO form CA 00 01, or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage equivalent to that provided in
ISO form CA 00 01.
4. MANAGER waives all rights against the CITY, its officers, officials, agents and
employees for recovery of damages to the extent these damage are covered by the
business auto liability or commercial umbrella liability insurance obtained by
MANAGER pursuant to Section 11.C.1 of this agreement.
5. The MANAGER’s Business Auto Liability insurance shall be primary as respects
the CITY, its officers, officials, agents, and employees. Any other insurance or
self-insurance maintained by the CITY, its officers, officials, and employees shall
be excess of and not contribute with the MANAGER’s insurance.
D. Fidelity Coverage (Employee Dishonesty)
MANAGER shall maintain Fidelity Coverage providing employee dishonesty, forgery or
alteration, theft, disappearance, destruction, and computer fraud coverage covering
contractors, employees, officials, and agents for Fidelity in the amount of five hundred
thousand dollars ($500,000). This requirement may be met with Commercial Crime
insurance or a Fidelity Bond.
E. Deductibles and Self-Insured Retentions
1. The MANAGER shall be solely responsible for the payment of all deductibles to
which such policies are subject, whether or not the CITY is an insured under the
policy.
F. Miscellaneous Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. Each insurance policy required by this contract shall be endorsed to state that
coverage shall not canceled by either party except after thirty calendar days (30)
prior written notice has been given to the City of Wilmington, PO Box 1810,
Wilmington, NC 28402-1810.
2. If MANAGER’s liability policies do not contain the standard ISO separation of
insureds provision, or a substantially similar clause, they shall be endorsed to
provide cross-liability coverage.
G. Acceptability of Insurers
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Insurance is to be placed with insurers licensed to do business in the State of North Carolina
with an A.M. Best’s rating of no less than A VII unless specific approval has been granted
by the CITY.
H. Evidence of Insurance
1. The MANAGER shall furnish the CITY with a certificate(s) of insurance, executed
by a duly authorized representative of each insurer, showing compliance with the
insurance requirements prior to commencing the work, and thereafter upon renewal
or replacement of each certified coverage until all operations under this contract are
deemed complete.
2. Evidence of additional insured status shall be noted on the certificate of insurance.
I. Subcontractors
MANAGER shall include all subcontractors as insureds under its policies or shall furnish
separate certificates for each subcontractor. All coverage for subcontractors shall be
subject to all of the requirements stated herein. Commercial General Liability coverage
shall include independent MANAGER’s coverage, and the MANAGER shall be
responsible for assuring that all subcontractors are properly insured.
J. Conditions
1. The MANAGER shall provide that the insurance contributing to satisfaction of
insurance requirements in section 27. CITY shall be notified prior to any changes
in Minimum Scope and Insurance Requirements in regards to this contract.
2. The MANAGER shall endeavor to timely notify the Safety & Risk Manager at
(910) 341-5864 of any accidents arising in the course of operations under the
contract causing bodily injury or property damage.
3. Failure of the CITY to demand a certificate of insurance or other evidence of full
compliance with these insurance requirements or failure of the CITY to identify a
deficiency from evidence that is provided shall not be construed as a waiver of
MANAGER’s obligation to maintain such insurance.
4. By requiring insurance herein, the CITY does not represent that coverage and limits
will necessarily be adequate to protect the MANAGER and such coverage and
limits shall not be deemed as a limitation of MANAGER’s liability under the
indemnities granted to the CITY in this contract.
5. The CITY shall have the right, but not the obligation of prohibiting MANAGER or
any subcontractor from entering the project site or withhold payment until such
certificates as required by subsection H.1 above are received by the CITY.
26. Non-Discrimination. MANAGER will take affirmative action not to discriminate against
any employee or applicant for employment or otherwise illegally deny any person
participation in or the benefits of the program which is the subject of this agreement
because of race, creed, color, sex, age, disability or national origin. To the extent
applicable, MANAGER will comply with all provisions of Executive Order No. 11246 the
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Civil Rights Act of 1964, (P.L. 88-352) and 1968 (P.L. 90-284), and all applicable federal,
state, and local laws, ordinances, rules, regulations, orders, instructions, designations, and
other directives promulgated to prohibit discrimination.
27. Representations and Warranties.
a. MANAGER represents and warrants for itself, its owners, and Affiliates that there
is no court action, arbitration, administrative proceeding, or to the best of
MANAGER’s current knowledge, threatened court action, arbitration,
administrative proceeding, on the date of this Management Agreement which
would materially affect (1) the financial condition of MANAGER, its owners, or
Affiliates, or (2) the ability of MANAGER to perform its obligations under this
Agreement.
b. CITY represents and warrants that CITY has no notice or knowledge that any
government agency considers the construction, operation, or use (including,
without limitation, the Permitted Use) of the Amphitheater out of compliance with
any Applicable Law or that any investigation has been commenced or is
contemplated respecting any such possible failure of compliance.
c. Each of the parties hereto represents and warrants that it has full power and
authority to enter into this Agreement and to assume and perform all of its
obligations under this Agreement, that it has obtained any and all approvals that
may be required before it can execute and perform this Agreement, including
approvals required by any loan documents, bond authorization, corporate articles
and bylaws, city charter, or state statute, regulation, or court order, and that the
persons executing this Agreement on its behalf have been duly authorized and are
empowered to bind it to this Agreement, that the execution of this Agreement, and
the performance by it of the actions anticipated by this Agreement neither breaches
any contract with any third party, or constitutes any event, which, with the passage
of time, or the giving of notice, or both, will breach any contract with any third
party, and that this Agreement executed by it are or when fully delivered will be
duly authorized, executed and delivered by it and will be valid, binding and
enforceable obligations of it.
28. Release and Indemnity. To the fullest extent permitted by law, MANAGER shall
release, indemnify, defend upon request, keep and save harmless the CITY, its agents,
officials and employees, from any and all responsibility or liability for any and all damage
or injury of any kind or nature whatever (including death resulting therefrom) to all
persons, whether agents, officials or employees of the CITY or third persons, and to all
property proximately caused by, directly or indirectly, the performance or nonperformance
by MANAGER (or by any person acting for MANAGER or for whom MANAGER is or
is alleged to be in any way responsible), whether such claim may be based in whole or in
part upon contract, tort (including alleged active or passive negligence or participation in
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the wrong), or upon any alleged breach of any duty or obligation on the part of
MANAGER, its agents, officials and employees or otherwise. The provisions of this
Section shall include any claims for equitable relief or for damages (compensatory or
punitive) against the CITY, its agents, officials, and employees including alleged injury to
the business of any claimant and shall include any and all losses, damages, injuries,
settlements, judgments, decrees, awards, fines, penalties, claims, costs and expenses.
Expenses as used herein shall include without limitation the costs incurred by the CITY,
its agents, officials and employees, in connection with investigating any claim or defending
any action, and shall also include reasonable attorneys’ fees by reason of the assertion of
any such claim against the CITY, its agents, officials or employees. MANAGER expressly
understands and agrees that any insurance protection required by this agreement, or
otherwise provided by the MANAGER, shall in no way limit MANAGER’s responsibility
to release, indemnify, keep and save harmless and defend upon request the CITY as herein
provided. The intention of the parties is to apply and construe broadly in favor of the CITY
the foregoing provisions subject to the limitations, if any, set forth in N.C.Gen.Stat. § 22B-
1. Notwithstanding anything to the contrary contained herein, in no event shall
MANAGER’S release or indemnity obligations be applicable to any matter to the extent
such matter is caused by the acts or negligence of CITY, its agents, officials, or employees.
29. Damage or Destruction of the Amphitheater. If the Amphitheater shall be totally or
materially destroyed by fire, casualty, or other cause or happening, or if any lawful
authority shall order demolition or removal of any portion of the Amphitheater, so as to
render it unfit for use as intended by this Agreement, including, without limitation, the
Permitted Uses as solely determined by MANAGER, then, at MANAGER’s option, this
Agreement shall terminate as of the date of such destruction and all of MANAGER’s
liability hereunder shall cease from and after such date.
If the Amphitheater shall be partially destroyed by fire, casualty or other cause or
happening, or be declared unsafe by any lawful authority, then, if economically feasible in
the reasonable opinion of the CITY, it shall promptly be restored or made safe by CITY,
at its sole cost and expense, and a just portion of the payments otherwise due from
MANAGER to CITY shall abate until the Amphitheater shall have been restored and put
in proper condition for use for Permitted Uses at the same or greater sellable capacity as
existed prior to such casualty or cause. If the Amphitheater cannot be restored or made safe
after partial destruction or declaration of unsafe condition without cancelling or
rescheduling more than five booked Concert Events, then MANAGER, at its option, may
cancel and terminate this Agreement in its entirety, and all of MANAGER’s liability
hereunder shall cease from and after the date of such destruction or declaration of unsafe
condition.
30. Eminent Domain. In the event that the Amphitheater or any material part thereof is
taken by any governmental or other permitted authority using the power of eminent domain
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(or any conveyance in lieu thereof is effected) such that performance by either party under
this Agreement is rendered economically infeasible or a party will be materially prevented
from realizing the economic benefit of this Agreement absent such taking, then such party
may terminate this Agreement without further liability to the other party. In the event of a
taking, CITY shall receive the entire award or other compensation for (i) the land on which
the Amphitheater is situated and (ii) all improvements paid for by CITY. MANAGER may
separately pursue a claim against the condemnor for the value of any of MANAGER’s
Work, MANAGER’s personal property that MANAGER is entitled to remove under this
Agreement, and such other costs to which MANAGER may be entitled by Applicable Law.
31. Unanticipated Change in Applicable Law. If a change in Applicable Law occurs, or
CITY’s and MANAGER’s shared interpretation of Applicable Law as of the
Commencement Date proves mistaken, and compliance with Applicable Law as changed
or as correctly interpreted would be materially more or less expensive for one or both
parties, then the provisions of this Agreement governing compensation due shall be
equitably amended. If such equitable amendment would render the Agreement
economically infeasible for one of the parties, then that party shall have the right to
terminate the Agreement.
32. Intellectual Property. MANAGER shall require in its contracts with persons
holding or promoting events at the Amphitheater that such persons shall obtain all
necessary approvals for or arising from the use of patented and/or copyrighted materials,
equipment, devices, processes, or dramatic rights used on or incorporated in the conduct of
any events which MANAGER books at the Amphitheater. MANAGER shall indemnify,
defend upon request, and hold CITY harmless from any breach of patent or copyright rights
or patent or copyright infringements or violations of patent or copyright laws except this
sentence shall not apply to Civic Events.
33. Force Majeure. Should any matter or condition (“Force Majeure”) beyond the
reasonable control of CITY or MANAGER, such as, but not limited to, war, public
emergency or calamity, fire, earthquake, flood, tornado, hurricane, severe weather
conditions, Act of God, strikes or labor disturbances, civil disturbances or riots, epidemics,
or any governmental restriction, prevent or delay performance of this Agreement in
accordance with provisions hereof, in whole or in part, after the employment of all
reasonably available and economically feasible means to overcome such condition, avoid
delay, and mitigate the effects thereof, performance of this Agreement by the party affected
thereby shall be suspended or excused to the extent commensurate with such interfering
occurrence; provided that the party availing itself of this section shall notify the other party
within twenty-one (21) calendar days of its actual knowledge of commencement of such
occurrence of the event of Force Majeure; and provided further that the time of suspension
or excuse shall not extend beyond that reasonably necessitated by the occurrence of the
event of Force Majeure. If the Amphitheater is rendered inoperable by a Force Majeure
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condition during the Performance Season and such inoperability prevents the holding of
one or more booked Concert Events, then MANAGER’s payment obligations to CITY
shall be equitably abated in proportion to MANAGER’s documented loss directly
attributable to such Force Majeure condition.
34. Default and Termination. If, during the Term, MANAGER shall default in its
performance of or compliance with any of the provisions, terms, or conditions of this
Agreement, and such default shall continue for a period of thirty (30) calendar days after
written notice by CITY to MANAGER, provided that if the nature of MANAGER’s default
is such that more than thirty (30) calendar days are reasonably necessary to cure,
MANAGER shall not be in default if MANAGER commences to cure within the thirty
(30) day period and thereafter diligently proceeds to complete such cure; then CITY shall
have the following cumulative and non-exclusive remedies:
a. The following shall constitute an event giving rise to CITY’s right to terminate this
Agreement:
i. MANAGER fails to perform its contracted duties and responsibilities in a
timely and proper manner and is unable to cure such failure within the
applicable cure period or such additional period of time as specified by the
CITY, taking into consideration the gravity and nature of the default, or if
MANAGER shall violate any of the terms of this Agreement;
ii. MANAGER fails to abide by Applicable Law as it pertains to
MANAGER’s use of the Amphitheater;
iii. MANAGER files a voluntary petition in bankruptcy or is adjudicated as
bankrupt or insolvent, or files any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future bankruptcy or other
similar law, or seeks or consents to or acquiesces in the appointment of any
trustee, receiver, or liquidator of MANAGER or of all or any substantial
part of MANAGER's property, or makes any general assignment for the
benefit of creditors, or admits in writing its inability to pay its debts
generally as they become due;
iv. A court of competent jurisdiction enters an order, judgment, or decree
approving a petition filed against MANAGER seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future bankruptcy or other similar law;
v. Any trustee, receiver, or liquidator of MANAGER or of all or any
substantial part of MANAGER’s property is appointed without the consent
or acquiescence of MANAGER; and such order, judgment, decree, or
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appointment remains un-vacated or un-stayed for an aggregate of sixty (60)
calendar days (whether consecutive or nonconsecutive);
vi. MANAGER abandons or, subject to Force Majeure or other events beyond
MANAGER control, discontinues conducting its operations at the
Amphitheater; or
vii. MANAGER is convicted of a felony after the effective date of this
Agreement.
b. The rights and remedies of CITY provided in this section are nonexclusive and are
in addition to any other rights and remedies provided by law or under the
Agreement. MANAGER is not relieved of its liability to CITY for damages
sustained by virtue of a default of this Agreement. CITY reserves the right to cure
any default without terminating this Agreement and seek reimbursement for such
reasonable expenses from MANAGER, with the understanding that CITY is under
no obligation to correct any such default. CITY’s exercise of its right to cure shall
not act as a waiver of its right to terminate this Agreement for default as provided
hereunder.
c. CITY shall be in default of this Agreement if it fails to perform one or more of its
obligations hereunder and such failure continues for more than thirty (30) calendar
days after written notice thereof from MANAGER; provided that if the nature of
CITY’s default is such that more than thirty calendar (30) days are reasonably
necessary to cure, CITY shall not be in default if CITY commences to cure within
the thirty (30) calendar day period and thereafter diligently proceeds to complete
such cure. Upon CITY’s default, MANAGER shall have the right to:
i. Cure CITY’s default with the actual and reasonable cost thereof to be
reimbursed by CITY within thirty (30) calendar days of the receipt of an
invoice and, failing such timely reimbursement, to offset the cost against
payments next coming due from MANAGER to CITY; or
ii. Terminate this Agreement.
d. The parties agree to mitigate any damages resulting from any default under this
Agreement.
35. Procedure After Termination. Upon expiration or termination of this Agreement,
MANAGER shall promptly surrender and deliver to CITY the Amphitheater and all other
property which it is required to deliver to CITY in the condition existing at the
Commencement Date, normal wear and tear and casualty excepted. In the event of
expiration or termination of this Agreement, MANAGER shall cooperate and coordinate
with CITY and any new manager designated by CITY in order to assure an orderly
transition of MANAGER’s responsibilities hereunder.
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Upon expiration or termination of this Agreement, the MANAGER shall be entitled to
remove any fixtures, furnishings, equipment, or any other personal property placed or
installed as part of the MANAGER’s Work provided that:
a. The CITY shall have the option to purchase any or all of the fixtures, furnishings,
equipment, or other personal property at a reasonable price taking into account the
condition and depreciation of the property at the date of expiration or termination
and taking into account the value to MANAGER of incorporating such items into
MANAGER’S other venues; and
b. The MANAGER shall remove any of its personal property not purchased by the
CITY in a reasonable manner designed to minimize any damage to the Venue or
surrounding Park. To the extent that the MANAGER, its agents, or contractors
cause damage to the Venue or surrounding Park, the MANAGER shall be
responsible for the cost of repairs.
36. Consequential or Special Damages; Lost Profits. Neither party shall be liable to the
other party, or its agents, representatives, contractors, subcontractors or employees, for any
consequential, indirect, or special damages or lost profits related to this Agreement.
37. Assignment. This Agreement may not be assigned, in whole or in part, by either party
without the written consent of the other party, such consent not to be unreasonably
withheld, conditioned, or delayed. To be a valid assignment under this Agreement, any
assignee must succeed to all of the rights and interests and assume all of the liabilities and
obligations (including, without limitation, all operating losses) of the assignor under this
Agreement, and the assignee must agree to cure any prior default of this Agreement
committed by the assignor, all in writing to the reasonable satisfaction of the non-assigning
party. Notwithstanding anything herein to the contrary, the sale of the stock of Live Nation
Worldwide, Inc., or the sale of the stock of the direct or indirect parent of Live Nation
Worldwide, Inc., shall not constitute an assignment of this Agreement. No agreement that
MANAGER is authorized or empowered to enter into under this Agreement, including,
without limitation, any concessionaire agreement, ticketing agreement, sponsorship
agreement or service agreement, shall be an assignment of this Agreement or a default
under this paragraph.
38. Merger, Integration and Amendment. Except as otherwise expressly stated or
referenced herein, this Agreement is the entire integrated agreement of the parties. No other
agreement, oral or written, prior or contemporaneous, except the Agreement, shall be
deemed to exist between the parties. No subsequent agreement or any amendment of this
Agreement shall be binding upon the parties unless it is contained in a written document
executed by properly authorized representatives of each party.
39. Approvals; Waiver. Except as otherwise expressly provided, whenever provision of this
Agreement requires a review, determination, or approval of a party, such review,
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determination, and approval (or notice of disapproval) shall be in writing and shall not be
unreasonably withheld or delayed (except where such review, determination, or approval
is expressly made subject to the sole discretion or determination of a party), and shall in
any event be made within any time limit specified therefore or within thirty (30) calendar
days if no time limit is specified. No consent or waiver, express or implied, by either party
to or of any breach of any covenant, condition, or duty of the other, shall be construed as
consent to or a waiver of any other breach of the same, or any other covenant, condition or
duty. No approval or review by CITY hereunder, or any right of approval or review by
CITY, as to any matter or under any circumstances shall be deemed to constitute
MANAGER as an agent for or acting on behalf of CITY.
40. Notices. Unless otherwise provided herein, any notice, tender, or delivery to be given
hereunder by either party to the other party shall be in writing and shall be delivered by
personal delivery, including messenger service or overnight courier or by registered or
certified mail, postage prepaid, return receipt requested, and shall be deemed delivered
upon receipt or refusal to accept delivery at the address specified in this paragraph, but
each party may change its address by written notice given in accordance with this
paragraph.
To MANAGER:
Live Nation Worldwide, Inc.
9348 Civic Center Drive
Beverly Hills, California 90210
Attn: General Counsel
and to:
Live Nation Worldwide, Inc.
2000 West Loop South, 13th Floor
Houston, Texas 77027
Attn: James Tucker
To City:
Sterling Cheatham, City Manager
City of Wilmington
P.O. Box 1810
Wilmington, NC 28402
and to:
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Amy Beatty
Community Services Director
City of Wilmington
P.O. Box 1810
Wilmington, NC 28402
41. Time of the Essence. Time is of the essence of this Agreement.
42. Additional Documents. Each of the parties to this Agreement, without further
consideration, shall execute and deliver such additional documents and shall take other
actions as may be reasonably required in order to fully effectuate all of the terms and
provision of this Agreement.
43. Construction of Agreement. This Agreement is the result of the joint efforts and
negotiations of the parties hereto, and no single party is the author or drafter hereof. All of
the parties assume joint responsibility for the form and position of each and all of the
contents of this Agreement and they agree that this Agreement shall be interpreted as
though each of the parties participated in the composition of this Agreement and each and
every part thereof.
44. No Joint Venture. It is understood that this Agreement is a contract that has been
negotiated and voluntarily entered into by CITY and MANAGER and that MANAGER is
an independent contractor and not an agent of the CITY. CITY and MANAGER hereby
renounce the existence of any form of joint venture or partnership between them, and agree
that nothing contained herein or in any document executed in connection herewith shall be
construed as making CITY, on one hand, and MANAGER, its Owners or Affiliates, on the
other hand, as joint venturers or partners. MANAGER is an independent contractor with
the rights and obligations provided in this Agreement. The parties acknowledge that CITY
negotiated and executed this Contract for MANAGER’s management skills. No member
or official of MANAGER or employee hired by MANAGER shall be entitled to any
employment benefits of the CITY, such as, but not limited to, vacation, sick leave,
insurance, worker’s compensation, and pension and retirement benefits.
45. Amphitheater Not To Be Used As Security. The ownership of buildings and real estate
located at the Venue shall remain with the CITY. MANAGER shall not pledge or permit
the Amphitheater to be used as security for any loan or obligation of MANAGER and shall
not permit the filing of any lien against the Amphitheater property on account of any work
performed by or for MANAGER or any contract to which MANAGER is a party. In the
event a lien is filed against the Amphitheater or any part thereof relating to any agreement
made by MANAGER, MANAGER shall promptly cause such lien to be removed by filing
an appropriate bond.
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46. Choice of Law, Jurisdiction, and Venue. All of the terms and conditions contained
herein shall be interpreted in accordance with the laws of the State of North Carolina
without regard to any conflicts of law principles and subject to the exclusive jurisdiction
of federal or state courts within the State of North Carolina. In the event of a conflict
between the various terms and conditions contained herein or between these terms and
other applicable provisions, then the more particular shall prevail over the general and the
more stringent or higher standard shall prevail over the less stringent or lower standard.
The place of this Agreement, its situs and forum, shall be Wilmington, New Hanover
County, North Carolina, and in said County and State shall all matters, whether sounding
in contract or tort relating to the validity, construction, interpretation, or enforcement of
this Agreement be determined.
47. Limitations On Legal Requirements. Notwithstanding anything to the contrary
contained herein, MANAGER acknowledges and agrees that the power and authority to
adopt, rescind, or amend laws for the City of Wilmington resides with the Wilmington City
Council and that nothing contained herein shall in any way obligate the Wilmington City
Council to adopt, rescind, or amend Applicable Law, or subject CITY to any liability on
account of the Wilmington City Council’s failure to adopt, rescind, or amend any
Applicable Law.
48. Telecommunications Structures. Nothing in this Agreement, other than the conditions
of this section, shall be construed to limit CITY from entering into any lease or other
agreement with third parties for uses of the Amphitheater for the installation of
telecommunication structures, including cellular towers or antenna or emergency radio
towers or antenna, where such towers or antennas do not interfere with MANAGER’s use
of the Amphitheater.
49. No Alterations to Amphitheater Without MANAGER Consent. CITY agrees that it
shall not make or allow the making of any alteration or improvement to the Amphitheater
without MANAGER’s prior written consent, which consent shall not be unreasonably
withheld, conditioned, or delayed.
50. Conflict of Interest. No paid employee of the CITY shall have a personal or financial
interest, direct or indirect, as a contracting party or otherwise, in the performance of this
Agreement.
51. Non-Waiver of Rights. It is agreed that the either party’s failure to insist upon the
strict performance of any provision of this Agreement, or to exercise any right based upon
a breach thereof, or the acceptance of any performance during such breach, shall not
constitute a waiver of any rights under this Agreement.
52. Binding Effect. The Agreement shall be binding upon the heirs, successors, assigns,
agents, officials, employees, independent contractors, and subcontractors of the parties.
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53. Reference. Use of the masculine includes feminine and neuter, singular includes plural;
and captions and headings are inserted for convenience of reference and do not define,
describe, extend or limit the scope of intent of the Agreement.
54. Savings Clause. If any section, subsection, paragraph, sentence, clause, phrase or
portion of this Agreement is for any reason held invalid, unlawful, or unconstitutional by
any court of competent jurisdiction, such portion shall be deemed severable and such
holding shall not affect the validity of the remaining portions hereof.
55. No Presumption. None of the Parties shall be considered the drafter of this Agreement
or any provision hereof for the purpose of any statute, case law, or rule of interpretation or
construction that would or might cause any provision to be construed against the drafter
hereof. This Agreement was drafted with substantial input by all Parties and their counsel,
and no reliance was placed on any representations other than those contained herein.
56. IDA Certification. The undersigned certifies that MANAGER is not listed on the Final
Divestment List created by the N.C. State Treasurer pursuant to Chapter 147 (the Iran
Divestment Act) of the North Carolina General Statutes. In compliance with the
requirements of the Iran Divestment Act and N.C.Gen.Stat. § 147, MANAGER shall not
utilize in the performance of the contract any subcontractor that is identified on the Final
Divestment List.
57. Immunity Not Waived. This Agreement is governmental in nature, for the benefit of
the public, and is not intended to be for private profit or gain. No Party intends to waive its
sovereign immunity by reason of this Agreement.
58. Minority/Disadvantaged Business Enterprises. It is the policy of the CITY that
MBE/DBE enterprises as defined in N.C. Gen.Stat.§ 143-128(g) shall have the opportunity
to participate in the performance of contracts relating to the Venue. MANAGER shall take
all necessary and reasonable steps to ensure that adequately qualified and competitively
priced MBE/DBE firms have the opportunity to compete and perform contracts relating to
the Venue; provided, however that the foregoing shall not be applicable to any matter for
which MANAGER has a national, regional or marketwide contract in place with a third
party to provide goods or services (e.g. concessions, merchandise, equipment, fixtures,
etc.).
59. Public Records: MANAGER acknowledges that the CITY is a public entity, subject
to North Carolina’s public records laws (N.C.Gen.Stat. § 132) and that any documents
related to this Agreement may be subject to disclosure pursuant to state law in response to
a public records request or to subpoena or other judicial process.
If MANAGER believes documents related to the Agreement contain trade secrets or other
proprietary data, MANAGER must notify the CITY and include with the notification a
statement that explains and supports MANAGER’S claim. MANAGER also must
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specifically identify the trade secrets or other proprietary data that MANAGER believes
should remain confidential.
In the event the CITY determines it is legally required to disclose pursuant to law any
documents or information MANAGER deems confidential trade secrets or proprietary
data, the CITY, to the extent possible, will provide MANAGER with prompt written notice
by certified mail, fax, email, or other method that tracks delivery status of the requirement
to disclose the information so MANAGER may seek a protective order from a court having
jurisdiction over the matter or obtain other appropriate remedies. The notice will include a
time period for MANAGER to seek court ordered protection or other legal remedies as
deemed appropriate by MANAGER. If MANAGER does not obtain such court ordered
protection by the expiration of said time period, the CITY may release the information
without further notice to MANAGER.
Signatures on following page.
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IN WITNESS WHEREOF, the CITY has caused this Agreement to be duly
executed in its name and behalf and the MANAGER has caused this Agreement to be duly
executed in its name and behalf and its corporate seal to be hereunto affixed and attested
to.
CITY OF WILMINGTON, NORTH CAROLINA
BY: _________________________________
Sterling B. Cheatham, City Manager
ATTEST:
_______________________________
Daryle L. Parker, Purchasing Manager
APPROVED AS TO FORM:
_______________________________
Melissa I. Huffman, Assistant City Attorney
FINANCE OFFICER’S CERTIFICATION STATEMENT
This instrument has been preaudited in the manner required by the Local Government
Budget and Fiscal Control Act this the _______ day of _______________, 2020.
____________________________________
Jennifer R. Maready, Director of Finance
Project No.
Contract Revenue:
$40,000 Annual Fixed Rent, Increasing at 2% Per Year
$2.00 per Ticket Rent
$1,500 Incremental Rent Per Show over 30 Shows Per Year, Increasing at 2% Per Year
$500,000 Capital Investment
$70,000 annual Maintenance and Utility Expenditures, Increasing at 2% Per Year
PO# N/A
Federal ID Number: 56-6000239
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LIVE NATION WORLDWIDE, INC.
BY: ___________________________________
STATE OF _______________________
COUNTY OF _____________________
I, __________________________________________________________, a Notary
Public, certify that__________________________________________ personally came before
me this day and acknowledged that he (she) is the ____________________________________ of
LIVE NATION WORLDWIDE, INC., a corporation, and that by authority duly
given and as the act of the company, the foregoing Agreement was signed in its name by its
_______________________________.
WITNESS my hand and official seal this the _____ day of ______________, 2020.
______________________________________________
Notary Public
My Commission expires: _______________________
(NOTARY SEAL)
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