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HomeMy WebLinkAboutR-91-0619J-9 -701 08 13/91 RESOLUTION NO. A RESOLUTION, WITH ATTACHMENT, ESTABLISHING SPECIAL CHARGES, TERMS AND CONDITIONS FOR THE USE OF A PORTION OF THE ORANGE BOWL STADIUM BY ENCORE ENTERTAINMENT, INC. FOR THE PRESENTATION OF THE "JAMES BROWN" CONCERT AT SAID STADIUM ON SEPTEMBER 28, 1991; FURTHER j AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI AND SAID i ORGANIZATION FOR THIS PURPOSE; AND SUBJECT TO THE ORGANIZERS OBTAINING INSURANCE TO PROTECT THE CITY IN THE AMOUNT AS PRESCRIBED BY THE CITY MANAGER OR HIS DESIGNEE. WHEREAS, the Department of Conferences, Conventions, and Public Facilities has negotiated with Encore Entertainment, Inc. to bring the "James Brown" concert to the Orange Bowl Stadium; and WHEREAS, the promoter has offered a September 28, 1991 concert date subject to the City's approval of the attached agreement and its special charges and terms; and WHEREAS, the special charges, terms and conditions of said agreement are sufficient to generate substantial revenue to the City of Miami; and WHEREAS, special events such as the "James Brown" concert are vital to the revenue and operations of the Orange Bowl Stadium; and WHEREAS, Section 53-131 (C)(7) of the Code of the City of Miami, Florida, as amended, provides that the City Commission has the right to establish and fix special charges or special terms and conditions for the use of said stadium; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: ATTACHMEINITc i CONTAINED CITYN�'� F H SEP 11 1991 91— 619 nsouffm ft Section I. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The special charges, terms and conditions as set forth in the attached agreement for the use of a portion of the Orange Bowl Stadium by Encore Entertainment, Inc. are hereby established for said corporation's presentation of the "James Brown" concert on September 28, 1991. Section 3. The City Manager is execute the attached use agreementl/I attached form, between the City of hereby authorized to in substantially the Miami and Encore Entertainment, Inc. Section 4. The herein authorization is hereby conditioned upon the organizers obtaining insurance to protect the City in the amount as prescribed by the City Manager or his designee. Section 5. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this llth day of September , 1991. .VIER L . JSUAREZ , MA ATTES MATTY HIRAI, APPROVED AS TO FORM AND CORRECTNESS: CI YwATTOR EY The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Y, USE AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA AND ENCORE ENTERTAINMENT, INC. THIS AGREEMENT made and entered into this day of , 1991, by and between the CITY OF MIAMI, Municipal corporation of the State of Florida, hereinafter referred to as the "City" and ENCORE ENTERTAINMENT, INC., a Massachusetts for profit corporation, with its office at P.O. Box 1169, Boston, MA 02117 telephone (617)266-2215, hereinafter referred to as the "USER". W I T N E S S E T H: In consideration of the covenants and agreements hereinafter set forth, the CITY does hereby grant unto the USER the privilege of entry upon or into a portion of the Municipal facility of the CITY known as the Orange Bowl Stadium, hereinafter referred to as the "FACILITY", the said FACILITY to be entered upon or into for the purpose of presenting a musical concert featuring James Brown, hereinafter referred to as the "EVENT", and for no other purpose whatsoever. 1. Use Period: Said use for the EVENT shall be permitted for the period commencing at 7:30p.m. on Saturday, September 28, 1991 and terminating at. midnight on that same day, not including set up and dismantle times. Set up shall commence no earlier than 7:00 a.m. on Wednesday, September 25, 1991 and dismantle shall begin immediately upon the conclusion of the EVENT and conclude within a twenty-four hour period, unless otherwise mandated by the Director of Conferences, Conventions and Public Facilities Department, hereinafter "DIRECTOR", or designee. The above hours of use, including set up and dismantle times, shall hereinafter be referred -to as the "USE PERIOD". 2. Use Fee: USER agrees to pay the CITY for the use of said FACILITY: Five Thousand Dollars ($5,000.00) flat use fee and CITY ticket surcharge, plus 6% State of Florida Use Tax, hereinafter referred to as the "USE FEE". In addition, once there is an excess of 10,000 sold tickets, a 10% of the gross ticket sales shall apply. The total USE FEE shall have a cap of $7,500.00. 3. DeRQsit: A Two Thousand Dollars ($2,000.00) non-refundable deposit will be required at the time of signing of the agreement and shall apply against the said USE FEE. 4. ,SUrcharaes Based upon the actual admission price, excluding taxes, USER shall levy and collect on behalf of the CITY, a ticket surcharge on each paid admission. The amount of the surcharge shall be based on the admission price as follows; a $1.00 to $5.00 $0.50 $5.01 to $15.00 $0.75 $15.01 and Over $1.00 User shall record collection of the surcharge and shall list such revenue as a separate item in the statement of accounts for each EVENT. Ticket surcharge revenue shall be paid upon demand, and/or as soon as possible after the conclusion of each EVENT, in accordance with City Code provisions and the terms of this Agreement. 5. Pa=ent for Additional Services: USER shall pay to the CITY, on demand such sum or sums as may be due to said CITY for additional services, accommodations or material furnished to said USER for the EVENT. 6. Damage_ Repair: USER shall pay to the CITY the reasonable cost of any repair, rehabilitation, damage correction, replacement or restoration of the FACILITY, or to defray any other unusual but reasonable expense borne by the CITY as a consequence of presentation of the EVENT. 7. Demand for Payment: The CITY, through the DIRECTOR or designee, at its sole option and discretion, shall be entitled to demand full payment for any unpaid expenses incurred through USER's use of the FACILITY at the close of the EVENT. Such monies that are on hand at the FACILITY ticket office shall be described as "on premises gate receipts". The DIRECTOR or designee shall be entitled to collect all such monies due the CITY and the CITY shall be paid prior to payment of any other bills or sums of money owed by the USER to other parties. 8. Forfeit for Cancellation: All advanced sums, or advanced payments for services shall be forfeited if, through the fault of the USER, the EVENT is not held on the date and time contracted. 9. Audit Rights: a. CITY reserves the right to audit the records of USER at any time during the term of this Agreement and for a period of three years after the final payment is made under this Agreement. b. If so requested by CITY, USER shall submit to the Department of Conferences, Conventions and Public Facilities an independent audit by a certified public accountant. Said audit must include the expression of an opinion as to the actual and budgeted receipts and expenditures of the funds for said EVENT. Said audit shall be submitted to the department no later than sixty (60) days after receipt of CITY's request. C. At CITY's request, USER shall furnish a copy of its most recent Federal Income Tax return. 10. Admission and Tickets: All entry to the FACILITY on the EVENT date shall be by ticket only, purchased at the full ticket price established by USER, except for employees of USER and CITY whose presence is required for the presentation of the EVENT who have received passes issued by USER, or as otherwise provided by this Agreement. Each printed ticket shall be itemized to show the admission price, applicable taxes, any service charge from outside ticket agencies, and the CITY's ticket surcharge. All admission tickets must be printed by a bonded printer if feasible and listed on a ticket manifest. The manifest - 2 - 51-- 619 �r e shall be presented to the DIRECTOR or designee, and USER will prepare a complete box office statement of all admission tickets sold or distributed as complimentary tickets. 11. Complimentary Tickets: USER shall furnish to the DIRECTOR or designee one hundred and fifty (150) complimentary tickets for the EVENT for the purpose of promoting the CITY and the FACILITY for future events. USER shall be permitted to distribute 5000 individual complimentary tickets for promotional purposes. USER may, upon the advance approval of the DIRECTOR or designee, provide complimentary admission to the EVENT to groups or organizations for promotional purposes. 12. Attendance Limitation: A maximum attendance of 30,000 persons will be permitted for the EVENT and no more than that number of tickets shall be printed. 13. Gate Opening and Time of Performance: Gates are to be opened at least two hours prior to the start of the EVENT. All advertising shall indicate the gate opening time. The CITY reserves the right to open gates or adjust gate opening time as it deems appropriate. 14. Prohibited Items: USER agrees to include in its (advertising that bottles and cans cannot be brought into the FACILITY. The CITY and USER will use their best efforts to ensure that no cans, bottles, glass containers, fireworks, weapons or other objects that may be used as missiles, are allowed in the FACILITY. 15. Condition of FACILITY: CITY represents and warrants that the FACILITY and its fixtures and furnishings will be reasonably clean, in good order and repair, and reasonable fit for the purpose for which they are to be used, in safe condition for the use intended and will be free of defects which would prevent or impede the proper conduct of the EVENT. USER agrees to accept said FACILITY in an "as is" condition at the start of the USE PERIOD. 16. Utilities, Items Furnished by CITY: CITY agrees to furnish, at its expense, except as by be otherwise provided herein, light for ordinary use, water for all reasonable purposes, restroom supplies and nothing else. USER agrees to provide, at its own expense, portable toilet facilities in a number to be reasonably determined by the DIRECTOR or designee for field seating access. 17. Restriction for Playing Field: USER agrees to restrict all vehicles from the grass and playing field. Any exception to this restriction may only be granted by the Grounds and Turf Manager for the FACILITY. CITY agrees that they will install geotextile free of charge but USER agrees to pay labor costs for the installation of this said geotextile and any plywood that will be used as a roadway onto the playing field. 18. Facility Ruses: USER acknowledges that it has read the "Rules and Regulations for Use of City of Miami Municipal Facilities" which are attached to the "Application for Use of City of Miami Municipal Facilities", that he or she fully understands said rules and regulations, and that by the execution of this Agreement, USER certifies that it shall abide by each and every rule and regulation set out therein without the need to have said Rules and Regulations repeated in this Agreement. 19. Authority: USER agrees that any matters not herein expressly provided for in this Agreement shall be provided at the discretion of the CITY Manager or his designated representative. - 3 - 51-- 619 20. Right of Entrys The CITY reserves the right to enter into the FACILITY at any time during the USE PERIOD as it deems necessary. 21. Occupational License: Any and all required occupational license(s) for USER's commercial activity or that of its agents shall be secured by USER from the CITY's Tax and License Division, Treasury Management, 3006 Aviation Avenue, Miami, Florida. Said license(s) shall be presented to the DIRECTOR, or designee, prior to the start of the USE PERIOD and shall be attached to this Agreement. Said license(s) are required in accordance with Chapter 31 of the Code of the City of Miami. 22. Building. Permit: USER shall provide to CITY as soon as possible two (2) sets of engineered blueprints of the stage and roof structure that will be used for the event. This is necessary to obtain the required building permit. 23. EVENT Staff and Supplies Furnished by USER: USER shall furnish, at its sole cost and expense, peer -shirt security, ticket sellers, ticket takers, and ushers. USER shall consult with the DIRECTOR or designee to ensure that staffing levels for such personnel are adequate to handle attending crowds. 24. EVENT Personnel: If EVENT personnel staffing is required by USER, the DIRECTOR or designee will provide USER with a list of event personnel familiar with the FACILITY, including without limitation, EVENT Supervisor, office attendants, facility operations workers, electricians, sound technicians, groundskeepers, restroom attendants and others necessary for the proper operation of the EVENT. USER shall be responsible for the payment of said EVENT personnel at the normal event rate of payment. 25. Union Requirements: USER shall ensure compliance with all necessary union requirements (if applicable) in connection with the personnel and services engaged for presentation of the EVENT. The CITY shall use its best effort to inform USER of the terms of any trade or employee union agreement, written or oral, affecting all relevant personnel or services used in connection with the EVENT and shall assist USER in complying with such agreements. 26. Fire Safety: USER shall provide a diagram of the proposed EVENT layout to the office of Fire Prevention, 275 N.W. 2nd Street, Miami, F1, and obtain permits required by the Code of the CITY of Miami, relative to fire safety. Fire Department manpower requirements for the EVENT shall be as stipulated by the Fire Marshal and approved by the DIRECTOR or designee. The USER shall be responsible for the payment of Fire Department personnel at the normal event rate of pay. 27. Police Secu_ rites a. The DIRECTOR, or designee, after full discussion with the USER as to the type of event and related activities, will contact the CITY's Police Department to ascertain the level of Police and/or other security staffing necessary for adequate crowd control, traffic circulation and safety and/or other required security prior to, during and after the EVENT. USER shall be responsible for the direct payment of designated Police and security services upon the conclusion of the EVENT. b. If during the course of the EVENT, the EVENT Police commander determines that security for the EVENT is insufficient for proper crowd control, he may summon additional officers in sufficient numbers to effectively control the situation. The USER will e assume the responsibility of paying for the services of these additional officers. If such additional officers are already on duty, payment shall be made at their normal hourly rate of pay. If such additional officers are off -duty, payment shall be made at the overtime rate of one and one-half times the normal hourly rate. Total compensation to such off -duty officers shall be the greater of the followings four hours' minimum compensation, or, compensation for the actual time devoted to the EVENT problem, including time spent booking prisoners and the like. 28. C ean- p and Dismantle: a. USER shall be responsible for the payment to a cleaning contractor to clean-up the FACILITY after the EVENT has ended. b. USER agrees to tear down and remove all USER effects immediately after the EVENT has ended, and shall be completed not later than twenty-four hours after the conclusion of the EVENT, unless otherwise approved by the DIRECTOR or designee. 29. Placement and Removal of USER Effects• USER will be responsible to install whatever lighting, staging, props and/or structures are required for the conduct of the EVENT at USER's sole cost and expense. The CITY reserves the right to remove from the premises all USER effects remaining in or on the grounds of the FACILITY after the end of the USE PERIOD at the expense of the USER, or the CITY may charge storage for each day or that said effects remain in or on the grounds of the FACILITY after the end of the USE PERIOD. 30. Concession Rights: It is understood that concession rights for all events at the FACILITY belong to the CITY. 31. Music License: USER will provide to the CITY a copy of the blanket BMI and/or ASCAP license which it has obtained in connection with the JAMES BROWN CONCERT. USER represents and warrants that all BMI and ASCAP fees for the Concert will be paid by USER and further agrees to indemnify and hold the CITY harmless from any and all claims, losses, or expenses incurred with regard thereto. 32. Parking% a. The CITY shall furnish its normal and customary event parking facilities for public parking. The CITY will provide adequate personnel to man such parking facilities, at its own cost and expense. b. The CITY agrees that charges to the public for parking on CITY property shall not exceed the usual and customary charges for such parking, provided that such charge is sufficient to ensure that total parking revenues are not less than the cost of operating the parking facility for the EVENT. The CITY shall be entitled to 100% of all gross receipts from parking charges. C. If parking revenue is less than CITY's cost, then the USER shall reimburse the CITY for the difference, in accordance with applicable CITY Code provisions. d. The CITY shall furnish USER with 125 parking passes in lot E-1 for the EVENT to be distributed by USER to all press, VIPs, artists, and USER's staff. 33. IndemnifiCationt The USER shall indemnify and save harmless forever the CITY, and all the CITY's agents, officers and employees from and against all charges or claims resulting from any bodily injury, loss of life, or damage to property, from any act, omission or neglect, by itself or its - 5 - 91- 619 +� e employees; the USER shall become defendant in every suit brought for any of such causes of action against the CITY or the CITY's officials, agents and employees; the USER shall further indemnify CITY as to all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claims and the investigation thereof. 34. Risk -of Loss: The CITY shall not be liable for any loss, bodily injury or damage to any personal property or equipment of the USER, or anyone whomsoever, during any times the FACILITY is under the control of and occupied by the USER. All personal property placed or moved in the FACILITY shall be at the risk of USER or the owner thereof. Furthermore, it is the responsibility of the USER to provide security whenever personal property either owned or used by the USER or its licensees is placed in the FACILITY during the USE PERIOD, including setup and dismantle times and, in particular, during those hours of the USE PERIOD when the FACILITY is not open to the general public. 35. Insurance: Liability Insurance is required of USER and is to be cleared through the office of the CITY's Risk Management Division, Insurance Coordinator, 174 E. Flagler Street, Seventh Floor, Miami, Florida, 33131, telephone 372- 4515. The insurance policy must be endorsed to name the CITY as an additional insured. No qualification of the additional insured provision is permitted. The company affording coverage and the types and limits of liability must be acceptable to the CITY in terms of Management Classification and Financial Category ratings as stipulated by the latest issue of Best's Key Rating Code. The CITY is to be provided with a copy of such insurance policies and a certificate of same. 36. Default Provision: In the event that USER shall fail to comply with each and every term and condition of this Agreement or fails to perform any of the terms and conditions contained herein, then CITY, at its sole option, upon written notice to USER, may cancel and terminate this Agreement, and all payments, advances, or other compensation paid by USER while in default of the provisions herein contained, shall be forthwith retained by CITY. 37. Assurances: Each party represents to the other that it has the power to enter into this Agreement and to grant and accept the license herein granted and accepted, as the case may be, and that the consent of no other person or entity (governmental or otherwise) is required in connection therewith, except as otherwise provided in this Agreement and that this Agreement constitutes a valid and binding obligation of such party, enforceable against such party in accordance with the terms hereof. 38. Binding Agreement: All terms and conditions of this written Agreement shall be binding upon the parties, heirs and assigns, and cannot be varied or waived by any oral representation or promise of any agent of the parties hereto or other person unless the same be in writing and mutually signed by the duly authorized agent or agents executing this Agreement. 39. NondiscriminAtion: USER agrees that it shall not discriminate as to race, sex, color, creed, national origin, or handicap in connection with its performance under this agreement. 40. Intent of Agreement: The parties intend that this document shall be a License Agreement and that no leasehold interest is conferred upon the USER. - 6 91- 619 41. CQurt Costs and Attorneys' Fees: If it becomes necessary for the CITY to institute proceedings to collect any monies due it by USER? USER agrees to pay any and all court costs, reasonable attorney's fees and other expenses incurred in the collection thereof. USER agrees that venue in any litigation and/or arbitration arising from this Agreement shall be located within Dade County, Florida. 42. Nonassignment: This Agreement may not be transferred or assigned by the USER without the express written consent of the CITY. 43. Entire Agreement: This instrument and its attachments constitute the sole and only Agreement of the parties hereto relating to the use of the FACILITY and correctly sets forth the rights, duties, and obligations of to each other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 44. Amendments: No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto have individually and through their proper corporate officials executed this Agreement the day and year first above written. ATTEST: CITY: THE CITY OF MIAMI, a municipal corporation of the State of Florida: Matty Hirai, City Clerk Cesar H. Odio, City Manager USER: ENCORE ENTERTAINMENT, INC., a Massachusetts for - profit corporation Corporate Se retary (si nat re) A&Lt (print namiV and title) (SEAL) -- 619 7 - APPROVED AS TO INSURANCE: Segundo Perez Insurance Coordinator APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney APPROVED AS TO DEPARTMENTAL REQUIREMENTS: Tony Paja es, Pirector Department of Conferences, Conventions and Public Facilities 91-- 619 -8 - WHEREAS, the Board of Directors of ENCORE ENTERTAINMENT. INC. desires to enter into an agreement with the CITY of MIAMI for use of the ORANGE BOWL STADIUM; and WHEREAS, the Board of Directors of ENCORE ENTERTAINMENT. INC. has examined terms, conditions and obligations of the proposed Agreement with the CITY for said use; and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS of ENCORE ENTERTAINMENT. INC. that the President or Vice- president ( ) or Secretary ( ) (please check one) is hereby authorized and instructed to enter into a contract in the name of and on behalf of this corporation with the CITY of Miami for the use of the ORANGE BOWL STADIUM in accordance with the contract documents furnished by the CITY of Miami, and for the price and upon the terms and payments contained in the proposed contract submitted by the CITY of Miami. IN WITNESS WHEREOF, this day of , 19��. CHAIRMAN, Board of Directors By (signs ure) Rvbe-k-�- r. u c s Print or Type LRame (SEAL) Attests A � Corporate Secre a gnature PA LGT �r Print or Type Name EXHIBIT 1 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM r CA=18 TO : DATE : FILE Honorable Mayor and Members AU G D 1991 of the City Commission SUBJECT : Resolution for James Brown concert at the Orange Bowl Stadium t� u FROM : Cesar H . Od REFERENCES City Manger ENCLOSURES: It is respectfully recommended that the City Commission adopt the attached proposed resolution establishing special charges, terms and conditions for the use of the Orange Bowl Stadium by Encore Entertainment, Inc. for the presentation of a "James Brown" concert at that facility to be held on September 28, 1991 and authorizing the City Manager to execute a use agreement for this purpose. Over the past couple of months the Department of Conferences, Conventions and Public Facilities has been negotiating with Encore Entertainment, Inc. to bring the "James Brown" concert to the Orange Bowl. Encore Entertainment, Inc. has agreed to a September 28th concert date, subject to special charges, terms and conditions. They have requested a cap on the stadium use fee. The ticket surcharge, as provided by Ordinance No. 10439, will be $1.00 per paid admission as stipulated in the attached legislation. Ctq/W�-1 91- 619 ENCORE ENTERTAINMENT, INC. REVENUE/EXPENSE PROJECTIONS ORANGE BOWL, STADIUM SEPTEMBER 28, 1991 Attendances 15,000 Use Fee: $5,000 vs 10%. Cap of $7.,500 Surcharge: $1.00 Concessions: $2.00 per cap Parking: $5.00 REVENUES Use Fee $ 7,500 Surcharge 15,000 Concessions 12,630 Parking 15,000 TOTAL $50,130 EXPENSES Parking Personnel 4,000 TOTAL NET REVENUE $ 46,130 W7