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Five Flags - Dbq Hockey Agreement D'i:i~~E ~ck~ MEMORANDUM May 31,2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Approval of Five Flags Agreement with Dubuque Hockey, Inc. Leisure Services Manager Gil Spence recommends City Council approval of the license agreement with Dubuque Hockey, Inc. d/b/a Dubuque Thunderbirds. I concur with the recommendation and respectfully request Mayor and City Council approval. flu) (:~j11JL Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager , D~~~E ~ck-~ MEMORANDUM May 30, 2006 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manage' SUBJECT: Approval of Five Flags Agreement with Dubuque Hockey, Inc. INTRODUCTION The purpose of this memorandum is to request City Council approval of the license agreement with Dubuque Hockey, Inc., DBA Dubuque Thunderbirds. DISCUSSION The Code of Ordinances requires City Council approval of any contract at the Five Flags Center that is for more than a five-day period. The attached agreement is for the 2006-2007 hockey season and surpasses that five-day limit. Five Flags General Manager Charlie Gardner has negotiated the attached license agreement with Dubuque Hockey, Inc. The agreement is basically the same as the past, except for the method of payment. The flat rate for 28 regular season games is $2,142.86 and includes the following: · One (1) dollar facility fee on all tickets sold capped at $12,000 · Rental charges for the CENTER · Staffing charges for the CENTER (staffing levels detailed in STAFFING section of this contract) · Unlimited ice rental time to be used at team's discretion with a minimum of 150 hours available throughout the ice season · Web site hosting · Internet access All games over the 28 games will be billed at $2,000 per game. continued page two Also, if the per game average attendance is over $1,250, the team will receive 25 cents per person. The Five Flags Advisory Commission approved the agreement at their May 15th meeting. ACTION STEP The action requested is that the City Council approve the agreement with Dubuque Hockey, Inc. and authorize the Mayor to sign it. GDS:et attachment ------, / (<k" Five Flags Center 405 Main street Dubuque. IA 52001 (5631 589-4254 www.fiveflagscenter.com License Agreement # 3207-28 FIVE FLAGS CENTER (SMQ) Prltn"e Management For Public FacilitIes PARTIES This use License Agreement (together with the Exhibits attached hereto, the "Agreement" is dated as of April 20, 2006, by and between SMG, a Pennsylvania general partnership, with an address at 701 Market Street, 4th Floor, Philadelphia, PA 19106, ("SMG") and Dubuque Hockey, Inc. DBA: Dubuque Thunderbirds (NAME OF LICENSEE) whose current address is: 405 Main Street, Dubuque, IA 52001 (the "Licensee"), Attention: (hereinafter "Customer") for the purpose of presenting: SPACE AND PURPOSE CENTER grants TENANT permission to use the herein named portions of the Dubuque Five Fiags Center for the period and purposes herein set forth. 1. The space known as prior concessions office for TENANT offices. Office available for TENANT during Five Flags Center regular administrative office hours. CENTER reserves the right to limit use due to other event needs. 2. Use of locker rooms #2 and #3 for the period of August 15, 2006 until Ice is removed; subject to the need for locker room space by CENTER. Use of locker room #1 for visiting team, available one and one-half hours prior to game time. Locker boxes will be removed at CENTER's request when needed for other event use. 3. Five Flags Arena with ice rink for practice of hockey, subject to availability. May be pre-empted for other events with a minimum of seven days notice. 4. Five Flags Arena with ice rink and seating for 2,457 persons for hockey games, according to the attached schedule. 5. One-half of the storage area across from locker room #2 for TENANT storage use. 6. East press box is available for TENANTS use, for promotional aclivilies pending approval by CENTER. TENANT would be responsible for monitoring this usage. TENANT responsible for installation and payment of phone lines If press box is used for broadcast. 7. Northwest dressing room for use by game officials. 8. TENANT, at its sole expense, may display the team logo and team sponsors on the ice surface (Five Flags logos will be included gratis) and north wall in the area designated by the CENTER. CENTER to hang free of charge. Material, size, content, and method of hanging signage to be approved by CENTER. CENTER must approve layout of on-ice logo/advertisements prior to TENANT entering into any sales agreement. CENTER must approve all other advertising displays. CENTER manager will be included as a signatory on all new sponsorship contracts from this date forward, in regards to dasher boards and Zamboni sponsorships. (See Attached Addendum) 9. West press box will be made available for use by TENANT for promotional activities pending approval by CENTER. TENANT responsible for monitoring usage. If west press box is used for broadcast, TENANT is responsible for installation and payment of phone lines. CENTER POl.lCIES TENANT must abide by all CENTER policies. TENANT will be provided with all facility policies as a separate attachment to this contract. TENANT will provide all associate members of TENANT organization (Thunderbird Booster Club, Players, Coaches, etc...) with copies of Center Policies. Persons violating the No Smoking Policy will be ejected from the building after one warning. A "No Re-Entry" policy will be enforced. A "No Food & Drink Carry-in" Policy will be strictly enforced. Security staff will perform pat down and visual searches at patron entrances when deemed necessary. CENTER shall provide TENANT its written policies simultaneously with execution of the lease agreement. Some policies may be inadvertently omitted, but these and any new policies developed will be in effect as TENANT is made aware of them. TICKETS Ticket takers will be provided at both entrances by the CENTER. All drop tickets will be turned over to TENANT immediately following the game after the attendance count has been taken by the CENTER. If the CENTER uses a Ticket Master scanner, Center will supply drop count to TENANT as recorded by scanner. TENANT shall reimburse CENTER for actual cost of printing tickets if this service is provided by CENTER. (See attached addendum) FEE TERMS TENANT agrees to pay CENTER the following amount on a per game basis for a minimum of 28 regular season games: $2,142.86 per game For all games over and above the 28 game minimum, TENANT agrees to pay CENTER the amount of: $2,000.00 per game Duhuque Hockey, Inc. Lease No. 3206-018 Page 2 'Included in this figure are the following charges: . One (1) dollar facility fee on all tickets sold capped at $12,000 Rental charges for the CENTER Staffing charges for the CENTER (staffing tevels detailed in STAFFING section of this contract) Unlimited ice rental time to be used at team's discretion with a minimum of 150 hours available throughout the ice season Web site hosting Internet access . . Office space no charge Storage space in gate E and across from locker room no charge Use of press boxes no charge Thunderbirds refrigerator in locker room no charge Thunderbirds team boxes in locker room no charge FACILITY FEE INCENTIVE ~ TENANT will be eligible for a facility f~<;i.m~~rsement incentive based upon the following criteria: ~ rf2- Q ro\ /ZjV 6"" If the drop count averages~er game the TitNANT shall be eligible to receive a facility fee reimbursement incentive based on total attendance for the season of $.25 per person. . /" Cl DEPOSIT t-r. '2 (~. TENANT shall pay to CENTER, prior to August 15, 2006, the sum of $0.00 as a deposit for all dates reserved for games. CENTER shall credit deposit toward the usage fee at end of payment schedule. In the event that a game is not held as scheduled, TENANT will forfeit the deposit for that game as liquidated damages. PAYMENT OF USAGE FEES TENANT shall pay the CENTER within sixty days of the end of each month for fees incurred as based on the payment scheduled detailed under "Fee Terms". CENTER will bill TENANT at the end of each month. Each game will be billed individually. Bills will be paid in full for the total amount of bill. APPROVAL OF CONTRACT It is agreed that this contract will not be enforced until it has been approved by the SMG/Five Flags Center Commission and City Council, and signed by TENANT and City. EVENTS BEYOND PARTIES' CONTROL (Force Majeure) FORCE MAJEURE TOTAL: In the event that either or both parties are totally prevented from completion of obligations under the Agreement as a result of acts of God, civil tumult, war, riot, governmental restrictions, or other conditions beyond the legitimate control of CENTER and/or TENANT, both parties shall then be relieved respectively of their obligations hereunder and there shall be no claim for damages by either party against the other. OBLIGATION TO ADAPT TO CIRCUMSTANCES: It is aiso further understood and agreed that both parties shall make "best efforts" to overcome and adapt to any and all circumstances described in this article, in order to meet the obligations of the engagement in any way possible, given the circumstances. The term "Force Majeure" as used in this section shall include all fire, earthquake, flood, tornado, act of God, strike or other labor disturbance beyond the reasonable control of CENTER, civil commotion, terrorism, failure of power, machinery or equipment malfunction, or any other malter of situation of a like nature. Force Majeure shall not be interpreted to mean an act or omission by TENANT'S opposing team, but CENTER will use its best efforts to reduce or eliminate costs or expenses incurred as a result of the failure to play any scheduled game. The parties agree that they will use and continue to use their best efforts to remove, change, correct, repair, et cetera, the condition of Force Majeure preventing performance hereunder, in order to make performance under this Agreement once again possible. CONCESSIONS CENTER shall retain control and operation of all concession stands, the Orpheum and Majestic Rooms, and all space in the building. Only the CENTER will, provide food and beverage services. Final decisions on product selection and pricing shall be at CENTER'S sole discretion. Any and all groups that TENANT allows to have an event during TENTANT'S event will purchase all food and beverage from the CENTER. A "No Carry-in" Policy relating to food and beverage will be striclly enforced. Security staff will perform pat down and visual searches at patron entrances when deemed necessary. Programs and novelties may be offered for sale by TENANT, on game dates, in the leased space during the period of this agreement. CENTER shall designate stand locations for merchandising such items. The normal fee for the sale of such items, thirty percent of gross sales, shall be waived by the CENTER Any promotional aclivities conducted in the building and game script must be approved bv CENTER seven days prior to a Ilame. No food or beveraae items may be aiven away as oromationsl oremiums without consent of the CENTER. Dubuque Hockey, Inc. Lease No. 3206-018 Page 3 Any parties or catering must be contracted and approved 14 days in advance of the event. All catered events must be managed by CENTER concessions manager. Concession stands will close sales with 6 minutes left on the time clock during the third period of play. SCHEDULE OF USAGE CENTER shall provide TENANT access to arena ice rink for games and/or practices on a minimum of 110 days in the period beginning no later than August 15, 2006, and ending March 20, 2006, if ice is available. If ice sheet must be maintained past March 20, 2006, TENANT will pay cost of building conversion. Cost for conversion not to exceed $972.00 per conversion. CENTER will begin the ice making process on August 10, 2006. TENANT is encouraged to view the ice making process to be kept abreast of the progress and ask any questions they may have or note any difficult weather conditions that wouid cause process to be halted. TENANT will schedule a contractor to paint ice logos. TENANT will coordinate iooo paintino with CENTER staff to ensure schedulino will not interruDt or delav the ice makino Drocess. CENTER shall not interrupt the TENANT'S practice ice usage for longer than a four consecutive days. Disney on Ice performance engagements are to be exempted. CENTER has an option to extend this four-day period with a $500 compensation per day to TENANT, excluding away games for TENANT that occur within this period. The schedule of TENANT'S games shall not be changed without the mutual consent of both TENANT and CENTER, or as allowed in this agreement. Such consent shall not be unreasonably withheld. In the event the performance of TENANT's scheduled game is prevented, due to hazardous weather conditions, CENTER shall make every effort to reschedule Ihe game, subject to the availability of dates in the CENTER. Should it be deemed impossible by both CENTER and TENANT to reschedule the game, the CENTER shall refund TENANT'S deposit for that game. For this contract, CENTER has agreed to waive the deposit for 2006-2007 games. CENTER retains the right to alter the TENANT's practice schedule. TENANT and CENTER shall submit written notice of any change in practice schedule to the other seven days in advance of the change, all changes subject to availability of CENTER dates. Practice ice time for 2006-2007 season will include regular practices, game day practices and any other use the Thunderbirds schedule through the Civic Center office. All ice usage is subject to the availability of the ice sheet and may be pre-empted by another event. Before utilizing the building for any Thunderbirds activity, I.e., player meetings, photo sessions, equipment distribution, et cetera, TENANT shall schedule such usage with CENTER to make sure other events are not scheduled. ADDITIONAL USAGES FOR PLAYOFFS Should the TENANT qualify for the C.S.H.L. playoffs, CENTER agrees to maintain the ice sheet and offer it to TENANT, subject to the availability of dates for TENANT practices and playoff games for a minimum of twenty-six (26) days during the periOd beginning March 1, 2007 and ending March 25, 2007. The CENTER shall not be required to maintain the ice sheet past the date the TENANT is eliminated from the C.S.H.L. playoffs. The CENTER shall not be required to maintain the ice sheet past March 25, 2007, unless TENENT incurs the expense of ice conversion, estimated at $972.00 per conversion. Usages in this period shall be subject to all rates, conditions, and requirements set forth in this Agreement. Ice of sufficient oualitv to allow a oame cannol be ouaranteed. Factors such as unseasonable climate and atmospheric conditions, may affect the CENTER'S ability to maintain ice quality. CENTER will not be held responsible for ice quality. TENANT ACCESS TENANT shall have access to arena ice rink during the hours specified in the attached practice and game schedules. TENANT shall also have access to office and locker rooms designated for TENANT'S use: 1. In periods during which the Five Flags Center promenade is open to the public. When promenade is closed to the public, access to the office may be obtained through skate rental, if such access is approved by the user group in the arena/on ice. 2. In period commencing thirty minutes prior to scheduled usages when the promenade is not open to the public. 3. In periods when games are scheduled on Saturday and/or Sunday, when the promenade is closed to the public, access will be provided to selected Thunderbirds personnel at 4:30 pm on Saturday (7:05 pm) evening games and 3:00 pm for Sunday (5:35 pm) evening games to facilitate setup of merchandise/novelty stands. 4. CENTER shall keep open the tunnel between the Five Flags Center and the Holiday Inn one hour before game time and 30 minutes after game is concluded. TENANT agrees to provide adequate security during the hours the tunnel is open for TENANT events. Special openings of the tunnel may be requested by the TENANT within reason, such requests shall not be denied by CENTER as long as TENANT agrees to provide security. CENTER reserves the right to deny TENANT access to designated locker rooms, office, or any parts of the Five Flags Center if TENANT'S use of these spaces constitutes, in the reasonable opinion of the CENTER, a conflict with another event. TENANT shall be responsible for restricting its staff, players, and volunteers to the space authorized by this Agreement. Continued failure on the part of the TENANT to exercise this control may result in additional charges to TENANT for CENTER'S labor expenses of a staff person to monitor TENANT's usage. STAFFING All doors shall open for games one hour prior to game time and close to the public thirty minutes following completion of game, CENTER will guarantee all other ice usage to end one hour and thirty minutes prior to their scheduled game time. In the event of tournaments overtime, less time may be available. Dubuque Hockey, Inc. Lease No. 3206-018 Page 4 The number of personnel shall be fixed by decision of CENTER and TENANT, except that CENTER shall have discretion to determine staffing levels related to security and patron safety. For TENANT'S scheduled games, CENTER shall provide usher and security staff for agreed money of $800.00 per game. Target staffing levels are as follows: one house manager three ushers one technical assistant two T-shirt security one police officer two ticket takers three cashiers Any additional services (such as followspots, special lighting, etc.) shall be billed as extra costs over agreed fee. Any additional staffing over the target staffing level (such as followspot operators, special security, etc.) shall be billed as extra costs over agreed fee. In addition, TENANT shall provide the following volunteer staff to supplement that provided by CENTER: three ushers (includes staffing for gates B, D, and F). two aides for Zamboni operator scorekeeper, announcer, et cetera, as TENANT needs medical personnel ~r EMTs) -- available to public {,1.f...- ~U A-ffl ~ one person to staff skaters' entrance TENANT shall provide the names of the above-mentioned volunteer ushers, and Zamboni aides to CENTER no less than one week prior to each aame alona with aame worksheets. Volunteer ushers will wear a uniform supplied by the CENTER designating them as such, and will report to Five Flags staff room 15 minutes prior to game time, to sign in and be accounted for. If volunteers ushers do not report, Five Flags will call in ushers to cover the required locations and bill TENANT over and above the per game staffing rate at the CENTER billing rate for ushers. Each person supplied by TENANT shall adhere to the C,S.H.L.'s Intoxicants Policy forbidding consumption of drugs and alcohol. For TENANT'S scheduled games, CENTER shall provide, at no cost to TENANT, the following staff: one maintenance worker one Zamboni operator RESERVATION OF GAME DATES TENANT may reserve playing dates through the Five Flags Center General Manager under the following terms and conditions: Twenty-eight or more regular season games plus exhibition games may be reserved for a $0.00 deposit for the 2006-07 season. . CENTER will hoid additional dates for playoffs and exhibition games with the understanding that they may be challenged by another user group. CENTER will consult with TENANT upon a challenge. . All dates reserved for the playoffs will be held according to the normal booking procedure. INDEMNIFICATION TENANT agrees to indemnify, defend against, and hold harmless SMG and the Five Flags Center Authority and their commissioners, officers, directors, employees, representatives and agents, and any of their successors or assigns and the City of Dubuque, its officers and employees from and against all claims, suits, damages, actions, liabilities, costs and expenses (including reasonable costs of invesligation and attorney's fees) growing out of injury or death of any person(s) or damage to property (including property of TENANT) in or about the premises, ways adjoining and parking lots of the Facility, which arises out of any claimed act or neglect of TENT ANT, its agents, servants, employees, guests, representatives or person admitted to the premises by virtue of TENANT's use thereof or occurring as a result of the agreement. COPYRIGHT Any and all ASCAP, BMI, SESAC or other copyright fees applicable to an event will be the full responsibility of the TENANT. TENANT shall defend, indemnify and hold harmless CENTER, its officers, agents and employees from and against all claims, damages, liabilities and expenses (including costs and attorney's fees) arising from bodily injury, personal injury, including death at any time resulling therefrom, sustained by any person or persons or on account of damage to property, including loss of use Dubuque Hockey, Inc. Lease No. 3206-018 Page 5 thereof, arising out of or in consequence of TENANT'S performance of this Agreement, provided such injuries to persons or damage to property are due to the negligent or intentional acts or omissions of TENANT, its officers, employees or agents. The provisions under this paragraph, however, shall only apply in proportion to and to the extent of such negiigent or intentional acts or omissions. CENTER shall defend, indemnify and hold harmless TENANT, its officers, agents and employees from and against all claims, damages, lIabiiities and expenses (including costs and attorney's fees) arising from bodily injury, personal injury, including death at any time resulting therefrom, sustained by any person or persons or on account of damage to property, including loss of use thereof, arising out of or in consequence of (i) TENANT'S performance of the Agreement, provided such injuries to persons or damage to property are due to the negligent or intentional acts or omissions of CENTER, its officers, employees or agents or (ii) operation of the Arena, including without limitation the fixtures, entrances, exits, sidewalks and approaches of the Arena. The provisions under clause (i) of this paragraph, however, shall only apply in proportion to and to the extent of such negligent or intentional acts or omissions. INSURANCE TENANT shall obtain pUblic liability (Commercial General Liability) insurance and name as additional insureds: SMG, a Pennsylvania Joint Venture Partnership, its partners, agents and employees, and Five Flags Center Authority, an Iowa Municipal Corporation, its commissioners, officers, agents and employees and the City of Dubuque, its officers and employees and keep the insurance effective until TENANT's use of the premises is complete, including the removal of equipment and personnel, at TENANT'S sole cost and expense to protect such additional insureds from any ciaims for damages to property, including SMG's and FFCA's property, and for personal injuries, Including death, which may arise from the use of Ihe premises or Ihe acts of TENANT or persons acting on behalf of TENANT. Duplicate copies of all insurance policies, certificates of insurance, or binders for insurance must be furnished by TENANT to SMG/FFC with evidence that proper premiums have been paid at least 30 days prior to TENANT occupying any part of the premises. All policies shall be subject to the approval of SMG/FFC in all respects, including but not limited to identity of insurance company or underwriter. All such policies, certificates or binders shall contain an endorsement providing that at least 30 days written notice shall be given by the insurance company or underwriter to SMG/FFC prior to any cancellation, termination or non-issuance of insurance for any cause. All such policies of insurance shall: . be written with companies that are licensed to conduct business in the State of Iowa, and have at least an A-VII rating in the most recent A.M. Bests' Manual. . be endorsed to be primary and not contributory to all valid and collectable policies of SMG and FFCA. The amounts of insurance shall be as follows: 1) Workers' compensation for TENANTS employees on premises Imposed under the statutory requirements of the State of Iowa workers' compensation laws. 2) Commercial General Liability Insurance, Occurrence form, including, but not limited to: premises operations; products/completed operations; contractual liability; independent contractors; broad form property damage; and personal injury with limits of at least $2,000,000 combined single limit for each occurrence. 3) Automobile liability insurance with a combined single limit of liability of $2,000,000 required if utilizing automobiles, vans or trucks in or around the facility. The TENANT agrees to provide. at its own expense, a public liability insurance policy in a company which is acceptable to the CENTER and which is licensed to do business in the State of Iowa, in amounts not less than amounts indicated in the attached schedule. This policy will contain no less than $2 million of public liability insurance, and list SMG, the City of Dubuque. and Five Flags Center as additional insured. Such polley is to contain a proviSion that the CENTER will be notified at least thirty (30) days prior to any cancellation or material change therein. The TENANT shall have such insurance amended to include the CENTER as an additional insured, and provide certification of this insurance coverage prior to first ice usage. Ice usage will not be allowed until this certificate is received and accepted by CENTER. ADDITIONAL ITEMS 1 . Blood borne Dathoaens. TENANT shall be responsible for removal of sharps, towels, rags, or any article bearing any body fluids relating to its presence in the building, including those related items belonging to the opposing team. 2. Damaae 10 buildina. All damage to the building, structure, premises, and its appurtenances caused by TENANT, its employees, agents, players, or visiting team players and staff shall be paid by TENANT at the actual cost of repairs. 3. CENTER staff and commission members engaged in the operation and maintenance of the building shall have free access to the premises. 4. CENTER reserves the right to deny access to the premises to any person or eject any person admitted to the premises. 5. Marauee. CENTER shall inciude the upcoming games on marquee program. 6. TENANT may place team boxes in locker room #2 and refrigerator and storage in locker room #3, but they will be removed at the request of the CENTER if requested by another user. 7. Championship banners may be hung in the arena in the area designated by the CENTER. 8. Should TENANT desire access to the CENTER'S telephone system all actual costs of the usage must be paid by TENANT. Dubuque Hockey, Inc. Lease No. 3206-018 Page 6 9. TENANT shall designate areas where non-suited players from both teams may sit during games. 10. Oroheum Room. The Orpheum Room will be provided free of charge for the TENANT during scheduled games to used for TENANT booster club. The CENTER shall orovide all food and beveraoe items in the Oroheum Room. 11. Maiestic Room. The Majestic Room is available for a fee of $75.00 for the TENANT during scheduled games to be used for TENANT support groups. The CENTER shall provide all food and beverage items in the Majestic Room. Room capacity will be strictly enforced. 12. Advertisina. CENTER shall make dasher boards and Zamboni available on which TENANT may have exclusive rights to sell advertising with approval by CENTER. TENANT shall pay all costs associated with said advertising. CENTER manager will be included as a signatory on all sponsorship contracts. TENANT shall provide labor to put any advertising logos on dashers, ice sheet and Zamboni. TENANT shall submit to CENTER a copy of the advertising, prior to being displayed, for approval. 13. Distribution of complimentary promotional tickets must be approved by the CENTER, prior to any agreements made with sponsors and/or distribution of such tickets. 14. TENANT shall have the right to provide food and beverages to players of both teams and on and off ice officials as defined in league rules. TENANT will assist in clean up. If TENANT decides to use CENTER for these items, they will be charged back to TENANT at CENTER's cost as additional billing at the end of the season. 15. Any fees owed to Broadcast Music, Inc., ASCAP and SESAC for use of music played during games to be paid by TENANT. 16. Center shall not be responsible for lost or stolen items kept in unsecured or unauthorized storage areas. FOR: SMG/FIVE FLAGS CENTER By ,(b'bdV{;lt!/\ &ftJci,4{ fl,1IWfJ6ti{ 5'//7 / (; [; . I FOR: DUBUQUE HOCKEY ~rbirdS) BY-Jyl~) Titie Title Date Date