Agenda Workshop 11-11-03 CITY COMMISSION
CITY OF DELRAY BEACH. FLORIDA
WORKSHOP - TUESDAY. NOVEMBER 11. 2003
6:00 P.M. FIRST FLOOR CONFERENCE ROOM
~ 993
2001
The City will furnish appropriate auxiliary aids and services where necessary to afford an individual
with a disability an equal opportunity to participate in and enjoy the benefits of a service, program,
or activity conducted by the City. Contact Doug Randolph at 243-7127, 24 hours prior to the
program or activity in order for the City to reasonably accommodate your request. Adaptive
listening devices are available for meetings in the Commission Chambers.
WORKSHOP AGENDA
1. M~iling List Server Status Report
2. Delray Stadium Concert Series Contract
3. Goal #2 - Quality Neighborhoods Where People Want to Live
4. Commission Comments
Please be advised that if a person decides to appeal any decision made by the City Commission with
respect to any matter considered at this meeting, such person will need to ensure that a verbatim
record includes the testimony and evidence upon which the appeal is based. The City neither
provides nor prepares such record.
MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
MAYOR AND CITY COMMISSIONERS
CITY MANAGER ~
AGENDA ITEM #~tq$4i~ WORKSHOP MEETING OF NOVEMBER 11. 2003
MAILING LIST SERVER STATUS REPORT
NOVEMBER 7, 2003
The Management Information Systems (MIS) team will present a status report on the Mailing List
Server project.
&\Ci~ Clerk\a{~enda me*no*\Mail List Serve~ Repo~ll.11.03
Message
Harden, David
To: Perlman, Jeff; 'Lang6141@bellsouth.net';
Subject: FW: Mail List Server
FYI
..... Original Message .....
From-' Buzzelli, Guy
Sent: Thursday, October 16, 2003 12:02 PM
TO: Levinson, 3on; Harden, David; Safford, 3oseph
Cc: Fleetwood, Paul Blair
Subject: Mail List Server
Subject: Mailing List Server
Can we move up the installation of the list server and also discuss the project specifications and
operation before the system is up and running?
Paul Fleetwood who is the lead on this project is currently out of the country vacationing in France for 3
weeks and would not be available to do a presentation next week. However after his return to work on
November 3rd we welcome the opportunity to give a presentation at a workshop shortly thereafter.
The MIS team is currently working on many major tasks one that includes the reformatting of our
cmrent utility bill to a letter size paper bill. This project is scheduled to go live this November and will
allow the City to incorporate a message on the back of the bill that will convey information to our
citizens. This could be used in conjunction with the mail list server.
The MIS team has two very large implementations in which Paul is directly involved. One is the HTE
programming conversion and update from version 5.0 to 6.1 the other is the two iSeries servers for
Police and City Hall. The first project go live date is December and is very program intense. The
second project must be completed by the end of March that entails intense preparation the first quarter of
the calendar year followed by installation of mirroring software to enhance our recover of data and
accountability within our business continuity plan. In conjunction with these two major projects, Paul is
also scheduled from January through June to the "web site personalization" project. This project must
be completed first to form the foundation and to prepare the web site infrastructure so the features of the
mail list server may be supported.
As you may see we are extremely busy the first two quarters of this fiscal year, but with that said when
Paul returns to work we will discuss possible options that may impact the scheduling of the mail list
server and schedule time for a presentation at a workshop.
Respectfully,
Guy Buzzelli
MIS Manager
10/16/2003
MEMORANDUM
TO:
MAYOR AND CITY COMMISSIONERS
FROM:
CITY MANAGER
SUBJECT:
AGENDA ITEM #~1~'~- WORKSHOP MEETING OF NOVEMBER 11. 2003
DELRAY STADIUM PROPOSED AGREEMENT/JACK UTSICK
PRESENTS
DATE:
NOVEMBER 7, 2003
Attached please find a proposed agreement with promoter Jack Utsick regarding the Delray Stadium.
Recommend the City Commission review the proposed contract terms and give input or direction
regarding same.
S:\City Cle~\agenda memos\Delray Stadium.Jack Utisck. 11.11.03
[ITY OF DELAI1Y BEII[H
CITY ATTORNEY'S OFFICE 20° NW ,., AVENUE. DELRAY.EACH, FLOR,DA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755
~993 DATE:
Wdter's Direct Line: 561/243-7091
MEMORANDUM
November 7, 2003
TO:
FROM:
City Com mi~.~n~
Brian Shutt, Assistant City Attorney
SUBJECT: Proposed Aqreementwith Jack Utsick Presents
Attached please find a proposed agreement with promoter Jack Utsick. The
essential terms of the agreement are as follows:
Three year initial term, with the possibility to renew for a five year term upon
the consent of both parties.
Grants Licensee the exclusive use of the stadium for
pop/rock/country/contemporary musical shows or concerts. The City shall
be allowed to hold any sporting event or any festival or cultural event at the
stadium provided the date is available and notice is given.
The City Manager may deny events that are not deemed appropriate, that
denial may be appealed to the City Commission.
Licensee must hold at least 5 events with a minimum of 15,000 tickets sold
for each year of the Agreement. Licensee must give the City 60 days prior
notice of each event, the City gives Licensee 45 days prior notice of any
event that it wishes to hold; Licensee may not hold any event on the list of
blackout days provided in the agreement.
Licensee shall pay for all costs associated with each event, however,
Licensee shall not be charged a facility fee for the use of the stadium during
the first year. Licensee shall be charged a facility fee of $1.00 per ticket
during the second year and a facility fee of $1.50 per ticket during the third
year.
Licensee may make improvements to the stadium, upon pdor approval of
the City, and which shall become the property of the City upon completion.
Licensee shall indemnify the City for the events as well as provide
insurance and a security deposit in the amount of $50,000.00 to the City.
The City may terminate this Agreement if Licensee begins bankruptcy
proceedings or if Licensee fails to meet the 5 events and 15,000 tickets sold
during each year.
By copy of this memo to David Harden, our office requests that this item be placed
on the November 11, 2003 City Commission agenda. Please call if you have any
questions.
Attachment
CC:
David Harden, City Manager
Barbara Garito, City Clerk
Robert Barcinski, Assistant City Manager
Brahm Dubin
LICENSE AGREEMENT
THIS AGREEMENT made this day of ,200_ by and between the
CITY OF DELRAY BEACH, FLORIDA, a municipal corporation of the State of Florida
(hereinafter referred to as "City") and , (hereinafter referred to as
"Licensee").
WITNESSETH:
V~rHEREAS, City owns and controls certain land upon which is located the Delray
Beach Stadium, and hereinafter called "Stadium"; and
WHEREAS, Licensee wishes to hold certain non-tennis related Events at the Stadium;
and
WHEREAS, City has determined that it is in the public interest to enter into an
agreement with Licensee for such Events to be held at the Stadium.
NOW, THEREFORE, it is mutually agreed as follows:
1. License/Term.
(a) Licensee has presented to the City that it would like to use the Stadium and
access ways thereto for the sole purpose of presenting the Events. The term "Event(s)" is defined
as all pop/rock/country/contemporary musical shows or concerts.
(b) The License shall be for the exclusive use of the Stadium during the Event,
including an agreed upon time prior to and after the Event. Licensee shall only hold Events at
the Stadium that have previously been approved by the City, as provided for herein. Licensee
shall provide a minimum of 5 Events annually during the term of this License. Licensee shall
provide the City a minimum of 60 days notice prior to each Event. Licensee will bc responsible
for confirming with the City the availability of the Stadium for any Events that it may schedule.
The City or other entities approved by the City shall be able to use the Stadium and schedule
festivals or cultural events associated with the City for time periods in which thc City has not
received notice from Licensee that it will be holding an Event during that time period.
(c) The term of this License shall be for a period of three (3) years, unless terminated
as herein provided. This License may be renewed for a five (5) year term upon the consent of the
parties and upon the approval of any amendments to this License. The start of the term shall be
date of this License as provided above.
2. Purpose. The parties agree that Licensee shall promote and produce Events in a
manner which complies with community standards and appeals to the interest of the general
public, and use its best efforts to promote the Events at the Stadium. Licensee, at its sole cost
and expense, shall provide management and personnel experienced in the promotion and
production of the Event and for the purpose of supervising and directing Licensee's obligations
under this Agreement.
3. Licensee's Rights for the Events. Licensee shall have authority, subject to the
provisions and limitations set forth in this agreement, to enter into contracts or agreements to put
on the Events. All such contracts shall be negotiated and executed by Licensee in its name and
shall not be contracts and obligations of City. All contracts entered into by Licensee shall
specifically contain language which provides that City is not a party to such agreement and is not
obligated in any manner by any of the terms therein. The Licensee's fights are subject to the
rights and limitations and obligations that currently exist between the City and Coca-Cola of
Florida, Match Point Inc., Players International Management, Inc., and Ticket Master-Florida Inc.
This Agreement shall also be subject to the terms and conditions contained in the agreement for
the Chris Evert tennis event, which is renewed each year. Licensee also understands and agrees
that it shall not be allowed to hold any Events at the Stadium as provided by the list of blackout
dates as shown on Exhibit "A". However, Licensee, agrees and understands, regarding the
Intemational Tennis Tournament, if the ATP changes the dates that the tournament is to be
played at the Stadium, Licensee shall consent to such change as provided by the ATP. It is
further provided, that if Match Point Inc., the entity that owns the International Tennis
Tournament, agrees, in writing, to allow an Event to occur during the time period that is blacked
out, then such Event may occur. Licensee, its subcontractors, contract vendee's and any other
entity doing business with Licensee related to the Stadium shall agree that their fights are subject
to the other contracts listed in this Paragraph.
Licensee further agrees that prior to the commencement of any Events pursuant to this
Agreement, Licensee shall comply with any and all licensing requirements and receive all
necessary permissions, permits, approvals and license which are required in order to perform the
activities under this Agreement.
4. City Approval of Event and Content. All individual entertainment or concerts
must be approved by the City Manager prior to the concert event. Licensee hereby agrees to
provide City with a right to review the content of the entertainment scheduled to take place at the
Stadium, and Licensee hereby further agrees that if the City brings a timely written objection to
the content of any Event due to, but not limited to, the obscene, immoral or lewd nature of the
proposed entertainment or event, Licensee shall not schedule and/or cancel the Event at no cost
or penalty to City. City in turn agrees not to unreasonably withhold approval for any Event, and
will withhold approval only when thc City Manager makes a written determination that an Event
has content that would be inappropriate for this venue. Furthermore, Licensee agrees that it will
make a good faith effort to only schedule entertainment which does not contain obscenity or lewd
and lascivious behavior. City shall review all scheduled Events, and if the City Manager
determines that the content of the Event will contain these inappropriate and objectionable
materials, a written notice of rejection shall be sent to Licensee by certified mail, return receipt
requested, within seven (7) calendar days from the date notice of the Event is provided to City.
Licensee may bring an appeal of the City Manager's decision before thc City Commission at the
next available regular Commission meeting following compliance with public advertisement
laws.
5. Scheduling Events and Conflicts. Licensee shall have the exclusive right to
schedule all pop/rock/country/contemporary events at the Stadium [subject only to City's right to
review the nature and content of thc event as set forth in paragraph (4) above, and in addition to
City's right to utilize the Stadium as set forth herein and subject to conflict with City activities].
Prior to scheduling events at the Stadium, Licensee shall check with City to determine that the
proposed event shall not conflict with other events. City shall provide at least forty-five (45)
days notice to Licensee of City's events to be held at the Stadium. Licensee shall provide to
City through the City Manager or his/her designee, on a monthly basis, a current calendar of
events scheduled at the Stadium. Licensee also acknowledges and agrees that requests to utilize
the Stadium fi.om various community and not-for-profit groups will not be unreasonably
withheld. Additionally, City shall be authorized to schedule and utilize the Stadium for City
festivals or cultural events or events in which City is a co-sponsor provided such events do not
conflict with events previously scheduled by Licensee and Licensee shall receive no
compensation for City's use. Licensee may assist the City in obtaining talem for the City
events, if the City so desires.
6. Facilities and Services Provided by City.
Unless otherwise herein specified, City shall be responsible for, or agrees to provide, the
following facilities and production assistance in connection with the conduct of and staging of
the Event:
(a)
(b)
use of the Stadium;
all electrical, water and sewer utilities and one on-site electrician (all costs and
expenses are Licensee's responsibility) for the duration of the Event based upon
an approved cost schedule;
(c)
adequate space for and operation of concessions, retail booths, etc. (Licensee shall
place and operate the concessions and retain all revenues from its concessions and
retail booths);
(d)
restroom facilities and supplies (Licensee shall be responsible for cost of supplies
and cleanup of any facilities);
(e)
use of areas and facilities for entertainer lounge and dressing area, event staff and
technicians, press, volunteers, and concessionaires as available and suitable and
as mutually agreed to. In the event areas are not available or suitable Licensee
shall be responsible for same. Areas will include tables, chairs, furniture and air
conditioning as mutually agreed to (Licensee shall be responsible for the
preparation of such areas as well as the cleanup of such areas after the Event);
on and off-site directional signage (Licensee shall pay for the costs of City
directional signage for each Event);
(g) all necessary permits (Licensee shall pay all costs for permitting);
(h) mutually agreed upon marketing support of the Event;
(i)
maintenance personnel to maintain and clean the restrooms as well as garbage
pickup during and post event (Licensee shall be responsible for cost of
personnel);
(J)
personnel to assist with issues involving the Stadium during the Event
(Licensee shall be responsible for cost of personnel);
garbage dumpsters (Licensee shall be responsible for cost of dumpsters).
Staging and Production of the Event.
4
The organization, staging, and conduct of the Event will be the responsibility of the
Licensee, which responsibilities shall include the following:
(a) handling ticket and box office sales;
Obtaining an Event Director, all personnel involved in the Event, and the Event
participants;
(c) Administering the entire Event;
(d)
Setting up each Event on-site and handling all activities of the Event, including set
up and tear down of the stage, and lighting and sound systems;
(e) Soliciting sponsorship sales and television rights sales for the Event;
(f)
Handling promotions, advertising, sales, public relations, and program production
for the Event;
(g) Liaising with the charity beneficiaries selected by Licensee for the Event;
(h)
(i)
Licensee is responsible for the cost of covering courts if the courts need to be
covered as determined by the City;
Licensee shall pay for all expenses relating to phone usage by Licensee,
including, but not limited to, hook-up, dial tone, and usage charges;
Licensee shall handle and be responsible for all security measures concerning the
Event, including but not limited to, the box office and ticket sales.
(k) Licensee shall be responsible for all other costs associated with preparing the
Stadium for each Event that has not been specifically stated in this
Agreement, including but not limited to, providing a stage, lighting system or
sound system, and any other utility cost not previously mentioned as well as
upgrading or changing any equipment associated with the Stadium.
8. Ticketmaster.
(a) City, or its designee, shall permit the use of the box office services during the day
of the Event, at a time that is mutually agreeable to both parties, and one (1) Ticketmaster
ticketing machine. The City has entered into an exclusive agreement with Ticketmaster-Florida,
Inc. which provides that all tickets must be pumhased through Ticketmaster. Furthermore,
nothing in this Agreement shall be contrary to any provision in the agreement between the City
and Ticketmaster-Florida, if it is determined by a court of competent jurisdiction that any
provision of this Agreement is contrary to any provision of the agreement between the City and
Ticketmaster-Florida, then the provisions found in the agreement between the City and
Ticketmaster-Florida shall govern.
(b) City shall pay one hundred percent (100%) of all amounts due to Licensee within
48 hours after the City receives a check from Ticketmaster-Florida, Inc. If Licensee fails to hold
the Event as scheduled, Licensee shall be responsible to Ticketmaster-Florida, Inc. for all
refunds incurred as a result of the cancellation or rescheduling, up to the face amount of the
ticket price per ticket purchased and refunded plus any additional credit card fees that may be
imposed.
9. Improvements. Licensee shall provide all improvements to the Stadium or
entryway to the Stadium as necessary for each Event. This shall be done at Licensee's sole cost
and expense and only after the prior approval of the City, where such approval may be withheld
by the City, in its sole discretion. If Licensee undertakes such improvements, the improvements
shall be made in accordance with all building codes and regulations as well as any other
applicable rules or regulations governing such improvement. The improvements shall also be
made to the satisfaction of the City and shall in no way interfere with the use of the Stadium by
the City. Once such improvements are completed they may also be used by the City, the
improvements shall become the property of the City, if it so desires. If the City does not desire
to allow the improvements to remain, Licensee shall remove such improvements within a
reasonable period of time as requested by the City. Prior to the start of the construction of any
improvement, the City shall have the fight to require from Licensee a payment and performance
bond, in the amount of 110% of the improvement cost as well as a 10% warranty bond for a one
year period, in a form acceptable to the City.
10. Independent Contractor Status. It is understood between the parties that the
relationship of City and Licensee is that of an independent contractor. Licensee shall have no
authority to employ any person as an employee or agent on behalf of the City for any purpose.
Neither Licensee or any person engaging in any work relating to Licensee's rights and
obligations set forth herein at the request of or with the consent (whether actual or implied) of
Licensee shall be deemed an employee or agent of City, nor shall any such person represent
himself to others as an employee or agent of City. Should any person indicate to Licensee or any
employee or agent of Licensee, by written or oral communication to Licensee, that the person
believes Licensee or an employee or agent of Licensee to be an employee or agent of City,
Licensee shall use its best efforts to correct or cause its employee or agent to correct that belief.
11. Compliance with Licensing Requirements. Licensee, prior to commencement
of any activities pursuant to the provisions of this agreement, shall comply with applicable
federal, state, county and City requirements, laws, rules and regulations and all licensing
requirements and receive all necessary permissions, permits, approvals and licenses which are
required to perform the activities of producer and promoter as set forth herein.
12. Compliance with Laws. Licensee agrees to comply with all applicable federal,
state, county, and local laws and regulations regarding non-discrimination and specifically agrees
not to discriminate against any person on the basis of color, race, religion, age, creed, sex,
national origin or disability.
13. Concession Rights. The Licensee has the sole and exclusive right to sell or give
away food and beverages and any and all other consumables, and to control the concessions
referred to above and to approve the sale or give away of the above during the time of the Event.
Licensee shall not have the right and shall not offer for sale or give away any items reserved to
Coca-Cola of Florida by Agreement with the City. Licensee, its agents or assigns, shall have the
limited right to engage in concessions with regard to merchandise. All concessions must be
approved 48 hours in advance of scheduled Event by the City or its designee. The City reserves
the right to reject the sale of any and all concessions 48 hours before the Event. However, in no
event shall the sale of any facsimile of any weapon, silly string, poppers or any similar item be
allowed. (This provision may also be enforced by the City Police Department). In addition,
Licensee may provide temporary structures at its own expense, for the sale of concession items
provided that the size, construction and location of such temporary structures shall not impede
the normal and safe flow of vehicular and pedestrian traffic and shall comply with all applicable
laws and regulations. In providing the merchandise concession service, Licensee or any person,
firm or corporation with whom a contract for such purpose (hereinafter referred as
"Concessionaire") shall comply with the following provisions provided, however, that Licensee
shall remain ultimately responsible to City for all obligations required of the Concessionaire:
(a) Concessionaire shall, prior to commencing any activities, obtain any and
all permits and licenses that may be required in connection with the operation of this
concession.
(b) Concessionaire shall not sell or give away or otherwise dispose of any
commodity which in the opinion of the City shall cause undue litter.
(c) All food, confections, beverages and refreshments, etc. sold or kept for
sale shall be first class and quality, wholesome and pure, and in accordance with
Department of Health requirements and shall conform to all federal, state, county and
municipal laws, ordinances, rules and regulations in all respects.
(d) Concessionaire may, at its expense, furnish additional equipment and
fixtures to be utilized in the concession. Concessionaire shall submit plans and speci-
fications concerning fixtures and equipment to City for approval at least one week prior
to installation of any items. For the purpose of this agreement, "fixture" shall be defined
as anything annexed or affixed to a building or structure or which appears to be so affixed
or annexed, regardless of whether it is capable of being removed.
(e) The Concessionaire shall provide all maintenance, repair and service
required on all equipment used on the concession.
(f) Concessionaire shall keep all fixtures, equipment and personal property,
whether owned by Concessionaire or City, in a clean and sanitary condition and shall
cleanse, fumigate, disinfect and deodorize as required and whenever directed to do so by
City. All state health laws and state health department regulations must be strictly
complied with. All janitorial services necessary in concession area shall be provided by
Concessionaire at Concessionaire's expense.
(g) Concessionaire agrees to dispose of all refuse and garbage, in compliance
with all applicable laws, ordinances and health codes, at Concessionaire's expense, and to
keep outside container areas cleaned at all times.
(h) If the concession is operated by a person, firm or corporation other than
Licensee, such person, firm or corporation shall at all times maintain workers'
compensation insurance coverage for all employees which it employs within the areas and
facilities covered by this Agreement, together with the policy or policies of public
liability and products liability insurance and provides limits of at least One Million
($1,000,000.00) Dollars for combined single limit coverage; and provide fire legal
liability in the amount of Five Hundred Thousand ($500,000.00) Dollars. Such policies
shall provide that they will not be canceled or amended without at least ten (10) days
written notice to the Risk Manager of City and shall name City, and its designee, its
officers, agents and employees as additional insurers.
14. Event Personnel and Equipment. Licensee shall provide all personnel needed
for the Event, including, but not limited to, ticket sellers, ticket takers, ushers, sound technicians
and stage hands. Licensee shall be responsible for the installation or removal of any additional
staging or sound and/or lighting which is to be utilized for the Event or any other equipment of
any type or nature which is needed for the Event. Licensee shall designate a management
representative in a timely manner who will coordinate the Event with the City and its designee.
Licensee shall be responsible for the cost of all chair rentals that may be required and the cost of
all staging, lighting and sound equipment, except as otherwise stated in this Agreement.
Licensee shall be responsible for the cost of all repairs needed to the Stadium when repairs are
not the result of normal wear and tear. Licensee and the City's designee shall perform a "walk
through" before and after the Event.
15. Police~ Security and Emergency Personnel. Licensee agrees to make
arrangements with the City Police Department and City's designee to provide for City police
personnel which the City determines, in its sole discretion, is necessary for the Event. Licensee
shall pay the officers at a rate to be determined by the City based on an analysis of the number of
officers available to work the event, the number of officers required by the event and other
factors within the sole discretion of the City. Licensee shall, at least thirty (30) days prior to
the Event, consult with the Chief of Police or his designee and the City's designee to determine
the proper scheduling of security for the Event and the rate that will be applicable for the Event.
Also, Licensee shall contact the City Fire Department and the City's designee to make
arrangements for Emergency Medical Service personnel to be present at the Event at Licensee's
expense. Licensee may use private security personnel inside the Stadium. Licensee shall pay for
all costs for police, security and emergency personnel.
16. "Set-Up"~ "Tear-Down" and "Clean-Up". Licensee shall be responsible for
personnel and equipment necessary for set-up prior to the Event and tear-down and clean-up at
the Stadium upon completion of the Event. Clean-up shall include, but not limited to, removal of
all debris, equipment, staging, tables, chairs and any other concert or event-related equipment. In
all cases, clean-up from an event shall be complete within 24 hours after the completion of the
event. If the clean-up is not completed within twenty-four (24) hours, the City shall perform the
clean-up and shall then bill the actual cost of clean-up (wages of City employees utilized times
hours required to complete clean-up, in addition to any other expenses) to Licensee. Said costs
shall be paid by Licensee within thirty (30) days. Furthermore, Licensee is required to have a
supervisor present during all "tear-down" and clean-up operations.
17. E]ectment from Property. City at all times reserves the right to eject or cause to
be ejected from the premises any person or persons violating or to keep fi-om violating any of the
rules or regulations of the City, County, State or Federal laws, and neither City nor any of its
officers, agents or employees shall be liable in any manner to Licensee or its officers, agents, or
employees for any damages which may be sustained by Licensee through the exercise of this
right by City.
18. City's Right to Control Premises. City or its designee at all times reserves the
fight to eject or cause to be ejected from the premises any person or persons violating (or to keep
persons from violating) any of the rules or regulations of the City or any county, state or federal
laws, and neither the City, its designee nor of any its officers, agents or employees shall be liable
in any manner to Licensee or its officers, agents or employees for any damages which may be
sustained by Licensee through the exercise of this right by City or its designee.
19. Parking, Signage and Traffic Control. The City shall provide parking spaces
on City owned or controlled property for the Event which the City, in its sole discretion,
determines it can make available without adversely impacting other public parking needs.
Licensee shall staff and manage such parking. Licensee shall be responsible for obtaining all
additional parking that may be necessary to provide sufficient parking for the Event, including
such additional parking as may be necessax3, in the opinion of the City, in order to ensure
adequate parking is provided for the Event. Licensee may provide onsite signage upon the prior
approval of the City, which approval shall not be unreasonably withheld. City shall provide
traffic control, barricades and signs, as it deems necessary, in its sole discretion, and Licensee
shall pay for the entire cost of providing such traffic control.
20. Insurance. Licensee shall obtain insurance at its own cost and expense of the
type, nature, and amount and pursuant to the terms which are set forth on Exhibit "B" which is
attached hereto and incorporated herein by reference. The City and its designee shall be named
additional insureds on all insurance certificates.
21. Right to Enter. City and its designee and authorized agents and employees shall
have the right to enter upon the subject premises at any and all reasonable times for the purpose
of inspection and observation of Licensee's operation to assure that requirements of this
agreement are upheld and that no violations of the rules, statutes, ordinances or regulations have
occurred or are occurring. Said inspections may be made by persons identified to Licensee as
City employees or City designees authorized for such inspection or may be made by independent
contractors engaged by City or its designee. Nothing contained herein shall be deemed a waiver
of Licensee's obligation to hold the Event as provided in this Agreement.
10
22. Retention of Property, Rights by City. City shall retain thc authority to enter
to inspect and to perform repairs and maintenance as City deems necessary of the Stadium
during the term of this Agreement and may make such changes and alterations therein, and in the
grounds surrounding same, as may be determined by City. City shall provide Licensee with
reasonable notice prior to City's making any change or alteration in the Stadium and
appurtenances, and City shall consult with Licensee in connection with the timing of such
change and alterations provided, however, that the final decision as to timing shall be in the sole
discretion of City. City shall have the right during the term of this Agreement after notice and
consultation is provided above to make changes, alterations and improvements in the premises,
and to the buildings and facilities located thereon, as it may determine. City will endeavor to
schedule any work contemplated herein so as to not disrupt any scheduled events.
23. Conclusion of Performance. All performances shall end no later than 11:00
P.M. unless otherwise approved by the City.
24. Flooring for Stadium. The City shall provide, at Licensees' option, up to
10,000 square feet of temporary flooring for the Event. Licensee shall be responsible for paying
all costs up to and not to exceed three thousand five hundred dollars (US$3,500) for installation
of the initial 10,000 square feet of flooring. The City shall be responsible for the actual
installation of the floor. If more than 10,000 square feet of flooring is required by Licensee, then
Licensee shall pay all costs involved in obtaining such additional flooring and for all costs of
installation of the additional flooring.
25. Notice of Defects. Licensee shall report safety deficiencies or any defects it
notices on the premises immediately to City's Risk Manager and the City's designee and shall
cooperate fully with City and its designee in the investigation of accidents incurring on the
subject premises.
26. Indemnification. Licensee does hereby release and agree to indemnify, defend,
save, and hold harmless the City, its designees, officers, agents and employees from and against
all claims, actions, causes of action, demand, judgments, costs, expenses, and all damages of
every kind in nature incurred by or on behalf of any corporation, person, or governmental
authority, whatsoever predicated upon injury or death of any person or loss over damaged
property of whatsoever ownership, or copyright infringement arising out of or connected with,
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directly or indirectly, Licensee's operation pursuant to the terms of this agreement, whether or
not the incident giving rise to the injury, death, loss or damage occurs within or without the
premises. Licensee shall indemnify, defend and hold harmless the City regarding its selection of
Events and any persons or entities associated with those Events held at the Stadium. Licensee
understands and is aware that there are certain indemnification provisions in some of the
agreements referred to in Paragraph 3 in which the City has agreed to indemnify other parties.
Licensee agrees to defend, indemnify and hold harmless the City regarding those
indemnification provisions.
27. Release. Licensee acknowledges and agrees that City, its designee, officers,
agents and employees assume no responsibility whatsoever for any property placed in the
premises provided for herein and City, its designee, officers, agents and employees are expressly
released and discharged from any and all liability for any loss, injury, damage, theft, vandalism or
other wrongful acts or acts of any kind or nature resulting in damage or loss to persons or
property which may sustained by Licensee's use of the premises. Licensee further expressly
waives any and all claims for compensation for any and all loss or damages sustained by reason
of any defects, deficiencies, or impairment of the electrical or sound equipment, water supply,
equipment or wires furnished for the premises or by reason of any loss or impairment of light,
current, or water supply which may occur from time to time for any cause, or by reason of any
loss or damage sustained by Licensee resulting from fire, water, hurricane, tornado, civil
commotion, riot, theft or other acts of God, and Licensee hereby expressly waives all right,
claims and demands and forever releases and discharges City, its designee, officers, agents and
employees from any and all de, hands, claims, actions and causes of actions arising from any of
the causes aforesaid.
28. Taxes. Licensee shall pay any and all taxes levied on the property by reason of
Licensee's use thereof pursuant to the provisions of this Agreement and on any personal property
and improvements belonging to License located on the premises and all applicable sales, use,
rental and other taxes which may be levied against its operation.
29. License~ Fees.
(a) Licensee shall pay to the City all costs or estimated costs as provided in this
Agreement. Licensee shall pay these costs to the City at least 72 hours prior to the start of the
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Event. If Licensee fails to pay the required amount within the stated time period, the City may,
at its sole discretion, terminate this Agreement or reduce the funds due Licensee from the
Ticketmaster sales in the same amount due the City.
(b) Licensee shall pay for all police and fire personnel provided by the City for the
Event. The City shall provide an estimate of the cost to Licensee and Licensee shall pay the
total estimated cost to the City at least 72 hours prior to the start of the Event. Within 5 business
days of receiving the final bill from the City for such services Licensee shall pay any remaining
balance to the City or the City shall refund any amount that was paid over the final cost. If
Licensee fails to pay the required amount within the stated time period, the City may, at its sole
discretion, terminate this Agreement or reduce the funds due Licensee from the Ticketmaster
sales in the same amount due the City.
(c) During the first year of the Agreement Licensee shall not be charged any facility
fee. During the second year of the Agreement Licensee shall pay to the City a facility fee of one
dollar ($I.00) per ticket for all Events held that year. During the third year of the Agreement
Licensee shall pay to the City a facility fee of one and one half dollars ($1.50) per ticket. Such
payments shall be due to the City within thirty (30) days of the conclusion of the Event. If
Licensee fails to make such payments, the City, in its sole discretion, may terminate this
Agreement or seek other legal recourse.
30. Stadium Capacity and Complimentary Tickets. Licensee shall not admit to the
Stadium a larger number of persons than the approved capacity it will safely accommodate. City
shall receive twenty (20) admission tickets at no charge.
31. Advertising Revenue. Licensee shall be entitled to retain all advertising and
sponsorship revenues generated by advertisers or sponsors of the Event promoted by Licensee at
the Stadium; provided, however that the City and its designee, jointly with Licensee, shall have
the right to approve all advertising and its location.
32. Failure to Pay. Other than the payments referred to in Paragraph 29 which are to
be paid as provided in Paragraph 29, if Licensee neglects to make any other payments to City
within ten (10) business days after the day on which the payment is due and owing, Licensee
shall pay to City for such privilege, an additional charge of Twenty-Five ($25.00) Dollars per day
for each day's delay in payment, retroactive to and beginning with the first day of the
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delinquency or the City may assess interest at 12% whichever is greater. City's right to assess
the penalties for payment made later than the day upon which payment is due and to keep all
deposits in the event of cancellation, shall be in addition to its right to terminate the license and
its rights to seek all other damages and compensation as permitted by law, upon written notice.
33. Accounting and Right to Audit. Licensee shall provide a complete accounting
of all revenues that the City has rights to receive a portion of, in conjunction with the Event, in
accordance with generally accepted accounting principals, when payment is tendered to the City.
City shall have the right to audit and review Licensee's financial records as they relate to or
pertain to the Event.
34. Waiver of Breach. Neither the waiver by City or its designee of any breach of
the Agreement, condition or provision of this Agreement or the failure of City or its designee to
seek redress for violation of or to insist upon strict performance of, any agreement, condition or
provision, shall be considered a waiver of the Agreement, condition or provision, or any
subsequent breach of any Agreement, condition or provision. No provision of this Agreement
may be waived except by written agreement signed by the City and Licensee.
35. Security Deposit. Licensee shall deposit with the City, upon the effective date of
this Agreement, security in the amount of Fifty Thousand ($50,000.00) Dollars. The security
shall be in case or a certified or cashier's check payable to City or a bond executed by a surety or
sureties approved by City, naming Licensee as principal and City as obligee. The security shall
be conditioned upon the faithful performance by Licensee of all of the terms of this Agreement
and may be also utilized to retired ticket sales for Events which do not occur, and for which
Licensee has not refunded ticket prices within thirty (30) calendar days from the date of the
originally scheduled Event, and such portion as may be due shall be returned to Licensee only
upon the satisfactory performance of each and every obligation set forth herein after termination
of this Agreement. If such security is not received 30 days after the execution of this Agreement,
the City, in its sole discretion, may terminate this Agreement.
36. Controlling Law. This agreement shall be deemed to be made and shall be in
accordance with the laws of the State of Florida which will be controlling in any dispute that
arises pursuant to this Agreement.
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37. Entire Agreement. This Agreement constitutes the entire agreement between
City and Licensee and may not be altered, amended, or modified except by an instrument in
writing signed by the parties to the agreement with all the same formalities as this agreement.
38. Force Maieure~ Strikes and Unavoidable Causes. City shall not be responsible
for its failure to make the premises available or to provide the facilities and services described
herein, where such performance is rendered impossible and impractical due to strikes, walk-outs,
acts of God, inability to obtain labor, materials or services, government restriction (other than
City), enemy action, civil commotion, fire, unavoidable casualty, utility disruptions or blackouts,
or similar causes or any other causes beyond the control of City.
39. Sublicense and Assignment. Licensee shall not sublicense the subject premises
or any part thereof or allow the same to be used or occupied by any person or for any other use
than that herein specified, nor assign said Agreement nor transfer, assign or in any manner
convey any of the rights or privileges herein granted without the written consent of City. Neither
this Agreement nor the rights herein granted shall be assignable or transferable by any process or
proceeding in any court, or by attachment, execution, proceedings, insolvency, or bankruptcy
either voluntary or involuntary or receivership proceedings.
40. Notice. Any notice or communication under this agreement shall be in writing
and may be given by registered or certified mail. If given by registered or certified mail, the
notice or communication shall be deemed to have been given and received when deposited in the
United States Mail, properly addressed, with postage prepaid. If given otherwise, than by
registered or certified mail, it should be deemed to have been given when delivered to and
received by the party to whom it is addressed. The notices and communication shall be given to
the particular parties at the following addresses:
City: David Harden, City Manager
City of Delray Beach
100 N.W. 1st Avenue
Delray Beach, Florida 33444
Licensee:
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Either party may at any time by giving ten (10) days written notice designate any other person or
entity or any other address in substitution of the foregoing to which the notice or communication
shall be given.
41. City's Name/Logo
The City shall have its name/logo included in all print, radio, and television advertising
created by Licensee to promote the Event.
42. Subtitles and Captions. Paragraph headings are for reference purposes only and
in the event that such paragraph headings conflict with any of the substantive paragraphs of this
Agreement, the paragraph headings shall be disregarded.
43. Bond Limitations.
(a) It is recognized by Licensee that the Stadium has been financed with proceeds of
tax exempt debt and may be re-financed from time to time in the future and that the Internal
Revenue Code of 1986, as amended, limits the private use of govemmentally owned facilities
constructed with tax exempt debt, such as a tennis stadium, in order to maintain the tax exempt
status of the debt issued to finance the same.
(b) Notwithstanding any other provision of this Agreement to the contrary, this
Agreement shall automatically terminate, without any required notice by the City, if any payment
required to be made under the provisions of this Agreement to the City would, together with any
other private use payments made or required to be made by any other entity(ies) or person(s) for
the use of the tennis center or related facilities, adversely affect the exclusion from gross income
for federal income tax purposes on any interest obligation (herein "negative tax consequences")
of the City issued to finance or refinance the tennis center or any part thereof. Such a termination
shall not constitute a default on the part of either party to this Agreement. Upon such
termination, it is the intent of the parties hereto to enter into a new agreement which would
contain different or modified payment terms and/or amounts acceptable to both of the parties
hereto, and which, in the opinion of the City's bond counsel, would not have negative tax
consequences.
44. Termination or Cancellation of Agreement. This Agreement may be
terminated by the City if one of the following occurs:
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(a) Institution of proceedings in voluntary bankruptcy by the Licensee.
(b) Institution of proceedings in involuntary bankruptcy against the Licensee if such
proceedings lead to adjudication of bankruptcy and the Licensee fails within ninety (90) days to
have such adjudication reversed.
(c) If Licensee shall fail, neglect or refuse within fifteen (15) calendar days alter
receiving notice thereof from City to conform to any direction or instruction that may be properly
given by City or to any applicable law, ordinance or regulation of the City, County State, or
Federal government, or shall fail, neglect or refuse to pay any amount due hereunder within thirty
(30) calendar days after the same shall become due or shall default in the performance of any of
the material terms or provisions herein required, it shall then be lawful for City, at its option, to
declare this Agreement terminated and forfeited and City may, in addition to other remedies
available to City, thereupon re-enter and possess itself of all the rights and privileges therefore
enjoyed by Licensee, and in the event that Licensee shall remain in possession one (1) day or
more alter such termination or forfeiture, Licensee shall be deemed guilty of a forcible trespass.
(d) If Licensee fails to provide 5 Events during each year of this Agreement or if
Licensee fails to sell a minimum of 15,000 tickets during each year of this Agreement, the City,
in its sole discretion, may terminate this Agreement.
45. City's Designee. For the purpose of this Agreement, the City's designee shall
be JCD Sports Group, Inc. or its designee, unless the City notifies Licensee to the contrary.
46. This Agreement is not effective until signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their proper officials on the day and year first above written.
ATTEST:
By:
City Clerk
Approved as to Form:
By:
City Attorney
CITY OF DELRAY BEACH, FLORIDA
By:
Jeff Perlman, Mayor
WITNESSES:
LICENSEE
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By:.
(Name printed or typed)
(Name printed or typed)
Fein No.
(Name printed or typed)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this __ day of
, 200__, by ., as
(name of officer or agent, title of officer or agent), of
(name of corporation acknowledging), a (state or place of incorporation)
corporation, on behalf of the corporation. He/She is personally known to me or has produced
(type of identification) as identification.
Signature of Person Taking Acknowledgment
Name Typed, Printed or Stamped
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EXHIBIT "A"
1. International Tennis Tournament - August 30-September 23, 2004
2. Chris Evert/Pro Celebrity Tennis Classic - December 6-7, 2003 (5 days prior to and 3
days after event)
3. First Night - December 31st (1 days prior to and 2 days after event)
4. Annual Bed Race - March 5-6, 2004 (2 days)
5. St. Patrick's Day Parade - March 13, 2004 (1 day)
6. Delray Affair - (3 days) 1st weekend after Easter
7. Hot Air Balloon Race - May 21-23, 2004 (3 days)
8. 4th of July - (2 days before and 2 days after)
9. Roots Cultural Festival - August (2nd weekend) (3 days)
10. Garlic Festival - November 7-9, 2003 (3 days) and November 12-14, 2004 (3 days)
11. Christmas Tree Lighting/Craft Show - Thanksgiving weekend (4 days)
12. Holiday Parade - December 13, 2003 and December 11, 2004 (not the weekend) (3 days)
13. Art and Jazz on the Avenue - 5 dates per year Thursday January 29th, May 13th, June 24th,
October 21st, December 9th (2004)
14. Christmas Eve and Christmas Day (2 days)
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