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HomeMy WebLinkAboutRES 16-197RESOLUTION NO. 16-197 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT- THAT the City Manager be and he is hereby authorized to execute an Amendment to Licensed User Agreement between the City of Beaumont and Ticketmaster, L.L.C. for the purpose of reducing the amount of fees assessed by Ticketmaster on each ticket purchased by the public for events held at City facilities. The Amendment to Licensed User Agreement is attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 11th day of October, 2016. - Mayor Becky Ames - AMENDMENT TO LICENSED USER AGREEMENT THIS AMENDMENT TO LICENSED USER AGREEMENT ("Amendment") is entered into as of July _, 2016, by and between Ticketmaster L.L.C., a Virginia limited liability company ("Ticketmaster') and The City of Beaumont, a municipal corporation of the State of Texas ("Principal"), with reference to the following facts: A. Ticketmaster and Principal entered into that certain Licensed User Agreement dated as of February 10, 2009, and effective as of October 1, 2006 ("Licensed User Agreement"). B. Ticketmaster and Principal hereby desire to extend the Term of the Licensed User Agreement, which is currently scheduled to expire on September 30, 2017 for a period of five (5) years, and to amend the Licensed User Agreement in certain other respects as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereby agree, effective as of the date set forth above, as follows: 1. Defined Term(s). All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Licensed User Agreement. 2. Extension of Term. The Term of the Licensed User Agreement, as modified by this Amendment, is extended and shall expire on September 30, 2022. Thereafter, the Term of the Licensed User Agreement shall automatically be renewed for successive two (2) year periods unless either party hereto notifies the other party in writing, not less than ninety (90) nor more than one hundred and twenty (120) days prior to the end of the then -current renewal period, of its intention not to renew the Licensed User Agreement. Each twelve (12) month period commencing on October 1 and continuing through the following September 30 shall be a "Contract Year" as such term is used herein. 3. Compensation. Section 3 (Compensation) of the Licensed User Agreement is deleted in its entirety and replaced with the following: "3. COMPENSATION: (a) Ticketmaster Charges and Fees: In consideration for Ticketmaster's services provided hereunder, Ticketmaster shall be entitled to assess and receive charges and fees in the amounts set forth on Exhibit C, all of which charges and fees shall be assessed against consumers, except for Inside Charges which shall be assessed against Principal. In the event applicable law prohibits the assessment of such fees against consumers, Ticketmaster and Principal shall agree on alternative means for compensating Ticketmaster for its services in amounts reasonably comparable to those set forth in this Agreement, and as permitted by applicable law. Notwithstanding the above, charges and fees with respect to any Attractions presented by Feld Entertainment (including, without limitation, Disney on Ice, Circus, and Motor Sports) ("Feld Attractions") at the Facility shall be determined pursuant to a separate national agreement between Ticketmaster and Feld Entertainment. (b) Payment Processing Fees: (i) Sales by Ticketmaster via Telephone Sales and Internet Sales: With respect to Tickets purchased with credit cards, debit cards, gift cards or any other methods of payment, the payment authorization and processing fees ("Payment Processing City of Beaumont Amend 09122016.doc EXHIBIT "A" Fees") shall be passed on to Principal at the rates set forth on Exhibit C, which percentage rates shall be deducted by Ticketmaster from the Ticket sales proceeds, or, at Principal's option, upon notice to Ticketmaster, the Convenience Charge may be adjusted to include such Payment Processing Fees; provided, that the Convenience Charge will be rounded up to the nearest $0.05. Notwithstanding the above, with respect to any Feld Attractions, Principal agrees that Principal shall be obligated to pay for the Payment Processing Fees for Tickets to Feld Attractions, or shall obtain the agreement of Feld Entertainment to adjust the fees payable for such Feld Attractions to include the amount of such Payment Processing Fees; in any such event Ticketmaster shall not be obligated to absorb the Payment Processing Fees with respect to the Face Value of Tickets to any Feld Attractions. (ii) Sales at Outlets: With respect to all purchases at Outlets, Payment Processing Fees shall be passed on to the Ticket purchaser at the rate set forth on Exhibit A by increasing the applicable Convenience Charge set forth on Exhibit C by the amount of such Payment Processing Fees; provided, that the Convenience Charge will be rounded up to the nearest $0.05. (iii) Principal Sales Using TM Charge: In connection with Principal's sales of Tickets utilizing electronic payments and authorized via TM Charge using either Visa or MasterCard, Ticketmaster's credit card processor ("Processor") shall deduct the merchant fees in an amount set forth on Exhibit C for transactions processed on a daily basis. The fees charged to Principal for use of TM Charge are subject to automatic increases equal to any actual increases in Ticketmaster's Processor fees. Principal shall also be responsible for any and all other amounts charged to Ticketmaster (if any) by a Processor for processing Principal's transactions, including, without limitation, chargebacks, fraudulent credit card use and additional charges for failure to meet the specific timing or other qualifications of the applicable credit card association or company. In the event that Principal desires to process any credit or debit cards other than Visa or MasterCard utilizing TM Charge, then the fees for such service shall be mutually agreed upon by Principal and such credit card companies, and Principal shall enter into its own merchant agreement with such credit card companies. (iv) Use and Operation of TM Charge: Ticketmaster shall transmit data relating to Ticket sales made by Principal using TM Charge to Ticketmaster's credit card processor, provided Ticketmaster has received Principal's merchant number(s) and other necessary information for Ticketmaster to use for the transmission of sales data. Principal shall be responsible for promptly notifying Ticketmaster and Processor, if applicable, of any changes to the information provided pursuant to this Section. Processor will then transmit such data to the applicable credit card company for payment to Principal, subject to Principal having entered into the applicable Principal Processor Agreements (as further described below). Ticketmaster shall use its best efforts to ensure the accuracy of information transferred from the Processor via TM Charge, but Ticketmaster does not guarantee the accuracy and timeliness of such information. Principal shall comply with all applicable credit card association or company guidelines (e.g. swiping all retail transactions and using customer address information for all non -face-to-face transactions). Ticketmaster shall provide Principal with daily transaction reports regarding authorized and settled transactions. Principal shall review, on a regular basis, all reports provided to Principal by Ticketmaster. Principal also agrees that, for operational and monitoring purposes, the Processor may provide Ticketmaster with processing and settlement reports related to sales of Tickets using TM Charge. (v) Effect of Termination of Ticketmaster's Processor Agreement: Ticketmaster has entered into an agreement with the Processor (the "Processor Agreement"), and Principal has entered into an agreement with such Processor (the "Principal Processor City of Beaumont Amend 09122016.doc Agreement'). The Principal Processor Agreement shall provide that if the related Processor Agreement expires or terminates, then the Principal Processor Agreement shall also expire or terminate without any early termination penalties or charges. In order to facilitate streamlined credit card authorization processing for Ticketmaster and its clients, Ticketmaster continues to seek to maintain relationships with superior processors throughout the Term of this Agreement. In the event that Ticketmaster elects to use a different Processor, Principal shall enter into an agreement with such new Processor if Principal desires to continue utilizing TM Charge, it being acknowledged and agreed by Principal, however, that use of certain Software (e.g., AccountManager) may require utilization of TM Charge. (c) Season Tickets Account Storage: Ticketmaster shall provide Principal with account storage and maintenance services on the TM System with respect to Group Sales and Season/Contract Tickets sold by Principal at the Facility Box Office at the rate of $3.00 per account for each Contract Year. Such account storage fees shall be payable on or around December 1 of each Contract Year for so long as such account is maintained on the TM System during the Term hereof." 4. Additional Hardware. Exhibit B of the Licensed User Agreement shall be amended to include the following additional equipment to supplement, upgrade or otherwise replace certain existing Hardware, at no additional cost to Principal: Quantity Description 6 Point of Sales Kits (Wyse Thin Client, Keyboard w/ CC Swipe, Monitor) 6 Boca Printers 1 Cisco Router/Modem 2 Switches 1 AccessManager Server 12 Janam XM66 Scanner Kits (Scanner, Spare Battery, Charger) 1 Access Point 1 Power Supply Such Additional Hardware shall be deemed Hardware as described in the Licensed User Agreement and shall be subject to the terms and conditions with respect to all Hardware as set forth in the Licensed User Agreement. 5. Charges and Fees. A new Exhibit C attached hereto is hereby added to the Licensed User Agreement. 6. TM+. Ticketmaster shall enable its proprietary, integrated primary and secondary market ticket inventory platform and technology on the TM.com Website, which platform and technology shall enable consumers searching for Tickets to an Attraction to simultaneously view Tickets available for initial sale directly by Principal pursuant to this Agreement, in addition to 3 City of Beaumont Amend 09122016.doc Tickets available for resale from other consumers (collectively, "TM+"), in accordance with the terms and conditions set forth on Exhibit D attached hereto. 7. Conflicting Terms. In the event a conflict arises between this Amendment and the terms and conditions of the Licensed User Agreement the terms and conditions of this Amendment shall control. Except as specifically set forth herein to the contrary, all of the terms and conditions of the Licensed User Agreement are in full force and effect, shall continue in full force and effect throughout the term and are hereby ratified and confirmed by the parties. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth below. TICKETMASTER L.L.C., a Virginia limited liability company By: Title: Date: 4 City of Beaumont Amend 09122016.doc THE CITY OF BEAUMONT, a municipal corporation of the State of Texas By: Title: Date: EXHIBIT C COMPENSATION Charges and Fees. (a) Convenience Charge (Per Ticket) and Processing Fee (Per Order):The per Ticket Convenience Charges and per order Processing Fees shall be determined and (subject to the terms set forth herein) retained by Principal during the Term of this Agreement; provided, however, in the event the per Ticket Convenience Charges in any single transaction exceeds the amount of $11.00 per Ticket (the "Standard Fee Cap"), then Principal and Ticketmaster shall each retain fifty percent (50%) of any amount of such aggregate fees for such transaction in excess of the Standard Fee Cap; and provided, further, in the event any per Ticket fee or per order fee in any single transaction is less than the applicable Inside Charge due Ticketmaster as set forth in subsection (b) following, Ticketmaster reserves the right to invoice Principal for the amount of such Inside Charge, or to setoff such amount against any funds held by Ticketmaster on account of Principal. (b) Inside Charges: Type of Ticket Per Ticket Inside Charge(excluding Per Order Inside Charge Outlets if an For Tickets sold via the Facility Box $0.00 per Ticket $0.00 per order Office For all other Tickets (excluding complimentary Tickets) sold via Internet Sales, Telephone Sales and Outlets with a Face Value of: $0.01 to $14.99 $2.25 per Ticket $5.00 per order $15.00 to $24.99 $3.25 per Ticket $5.00 per order $25.00 and above $5.25 per Ticket $5.00 per order The Inside Charges set forth above (excluding Tickets sold via the Facility Box Unice) snail be subject to automatic increase on October 1, 2017, and on the first day of each Contract Year thereafter during the Term in the amount of $0.25 per Ticket or per order, as applicable. (b) Mail Fee. Ticketmaster shall be entitled to assess and receive a fee in the amount of $2.25 per order against purchasers of Tickets using the U.S. mail method of delivery (the Mail Fee"). The Mail Fee is subject to automatic increase equal to any increases (rounded up to the nearest $0.05) to the postal rates. Principal may elect to increase the Mail Fee by an additional amount not to exceed $2.25 per order, and Principal shall retain the entirety of such additional amount for each Mail Fee received (and not refunded) by Ticketmaster, less applicable taxes or Payment Processing Fees (calculated at the same rate for credit card transactions as set forth below) on such additional amount. 2. Payment Processing Fees: Type of Sale Percentage Rate Telephone Sales and Internet Sales 2.95% of Face Value of Tickets plus any fees added to the Face Value 5 City of Beaumont Amend 09122016.doc Outlet Sales (if any) 2.63% of Face Value of Tickets plus any fees added to the Face Value Principal Sales using TM Charge 2.95% of Face Value of Tickets plus any fees added to the Face Value Any percentage rates set forth above are subject to automatic increase due to increases in the interbank rates imposed on Ticketmaster. City of Beaumont Amend 09122016.doc EXHIBIT D TM+ TERMS AND CONDITIONS 1. Capitalized terms used but not defined herein have the meaning assigned to such terms in the Licensed User Agreement, and the terms "TM System" and "Software" as used in the Licensed User Agreement shall be deemed to incorporate TM+. 2. Ticketmaster shall enable TM+ for all Attractions, subject to available restrictions established by Principal including timing of activation or price floors and caps on any secondary market ticket inventory available through TM+, in accordance with the settlement terms set forth in this Exhibit D below. TM+ Settlement Terms • For any primary market ticket inventory sold through TM+, Ticketmaster shall continue to sell such tickets and settle the proceeds of such sales with Principal in accordance with the terms and conditions for such transactions as set forth in the Agreement. For any secondary market ticket inventory sold through TM+, Ticketmaster shall assess its standard fees against the buyers and sellers of such tickets in amounts as determined by Ticketmaster, which amounts currently include: (i) a seller fee generally in an amount up to twelve percent (12%) of the ticket posting price (i.e., the price set by the seller upon posting such ticket for sale), and (ii) a buyer fee generally in an amount up to seventeen and five -tenths percent (17.5%) of the ticket listing price (i.e., the posting price plus the seller fee), with a $5.00 minimum. o Principal shall be entitled to receive from Ticketmaster ten percent (10%) of the Net Resale Fees collected (and not refunded or subject to chargeback) by Ticketmaster on account of Principal's secondary market ticket sales through TM+ (the "TM+ Revenue Share"). o For purposes of this Exhibit D, "Net Resale Fees" shall be defined as the gross amount collected from the new purchaser of a secondary market inventory ticket via TM+ less (i) the proceeds paid to the ticket seller, (ii) an amount equal to 3.5% of the gross amount collected from the new purchaser (to cover credit card processing fees), and (iii) any applicable sales, admission or similar tax. o The TM+ Revenue Share will be paid to Principal on a quarterly basis for all such sales occurring in any calendar quarter, on or before the thirtieth (30th) day of the month following each calendar quarter. In the event that any Attraction for which Ticketmaster has made any TM+ Revenue Share payment to Principal becomes a Cancelled Attraction, Principal shall promptly repay to Ticketmaster the amount of such TM+ Revenue Share payments in respect of such Cancelled Attraction. o Each settlement relating to the TM+ Revenue Share pursuant to this Exhibit D shall be accompanied by a report of the applicable transactions during such settlement period. 7 City of Beaumont Amend 09122016.doc