ITEM R3

OFFICE OF THE CITY MANAGER (910) 341-7810 | FAX (910)341-5839

TDD (910)341-7873

9/15/2020

City Council

City Hall

Wilmington, North Carolina 28401

Dear Mayor and Councilmembers:

Attached for your consideration is a resolution awarding a ten-year contract with a ten-year option to

Live Nation Worldwide, Inc., for venue management services at the Hugh Morton Amphitheater at

Greenfield Lake. This item was continued from the September 1, 2020 at staff's suggestion.

Live Nation was selected through a Request for Proposals (RFP) process. Two firms responded to the

RFP with Live Nation being selected by the interview committee. The interview committee members

included: David Pugh, Hugh Morton Amphitheater Supervisor; Jennifer Maready, Finance Director;

Suzanne Gooding, Budget Analyst; and Thom Moton, Deputy City Manager.

Firms were evaluated based upon business plan, qualifications and experience of the proposed team

members, references, financial proposal, and diversity plan. The interview committee agreed

unanimously that Live Nation Worldwide, Inc., submitted a superior business plan and financial

proposal and has the qualifications and experience to effectively manage the performance venue. Live

Nation more clearly demonstrated a level of understanding about the Hugh Morton Amphitheater

operations, the importance of the amphitheater to the community, and the need to balance the needs of

its surrounding neighbors.

Contract management activities will include:

• Booking event and scheduling services

• Venue consulting

• Facility management

• Food and beverage concessions

Due to the impact of the Coronavirus pandemic, the agreement has two sets of terms. For calendar

year 2020, the only fees Live Nation will be required to pay to the City are a $700 per event fee and

$2.00 per ticket sold.

Beginning 2021, the City will receive $40,000 annually in fixed rent for up to 30 events and an

additional $1,500 between 31 to 40 from Live Nation; and $250,000 for in-kind value of maintenance

expenses over the prescribed term of the contract. Additionally, the City will receive $2.00 per-ticket

in revenue. Live Nation will also provide an initial capital investment of $500,000 dollars for

equipment, fixtures, and furnishings, with half of the improvements being completed within 18 months

of the first 2021 Concert Event and the remaining balance of the improvements completed by the end of

2026.

Adoption of this resolution is aligned with City Council’s Focus Areas to Promote Culture, Art and

Public Spaces and Foster a Prosperous and Thriving Economy.

Passage of the attached Resolution is recommended.

Respectfully submitted,

Sterling B. Cheatham,

City Manager

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Resolution City Council

City of Wilmington

North Carolina

Date: 9/01/2020 Introduced By: Sterling B. Cheatham, City Manager

Resolution Authorizing a Professional Services Agreement with Live Nation Worldwide,

Inc. for Venue Management Services at the Hugh Morton Amphitheater at Greenfield

Lake

LEGISLATIVE INTENT/PURPOSE:

This resolution authorizes the award of a professional services agreement to Live Nation

Worldwide, Inc., for venue management services at the Hugh Morton Amphitheater at

Greenfield Lake. The agreement is for ten years with a ten-year option.

Due to the impact of the Coronavirus pandemic, the agreement has two sets of terms. For

calendar year 2020, the only fees the Manager will be subject to pay to the City are a $700 per

event fee and $2.00 per ticket sold. Beginning in 2021, the City will receive $40,000 annually in

fixed rent for up to 30 events and an additional $1,500 for each event between 31 to 40 from

Live and $250,000 for in-kind value of maintenance expenses over the prescribed term of the

contract. Additionally, the City will receive $2.00 per-ticket in revenue. Live Nation will also

provide an initial capital investment of $500,000 dollars for equipment, fixtures, and

furnishings.

Management activities will include:

• Booking event and scheduling services

• Venue consulting

• Facility management

• Food and beverage concessions

Live Nation Worldwide, Inc. was selected through a competitive proposal process to manage the

performance venue operations.

THEREFORE, BE IT RESOLVED:

THAT, the City Manager is hereby authorized to execute the initial agreement and, if in the

City’s best interests, the option to renew, with Live Nation Worldwide, Inc., for venue

management services at Hugh Morton Amphitheater at Greenfield Lake.

Bill Saffo, Mayor Adopted at a ________________ meeting

on ____________________ 2020

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ATTEST:

Penelope Spicer-Sidbury, City Clerk

APPROVED AS TO FORM:

City Attorney

1

STATE OF NORTH CAROLINA CONTRACT NO.:

COUNTY OF NEW HANOVER

AGREEMENT BETWEEN

THE CITY OF WILMINGTON, NORTH CAROLINA

AND

LIVE NATION WORLDWIDE, INC.

THIS AGREEMENT, (hereinafter the “Agreement”) is made and entered into this _____

day of June, 2020, by and between the CITY OF WILMINGTON, a North Carolina municipal

corporation (hereinafter called “CITY”) and Live Nation Worldwide, Inc., a corporation organized

and existing under the laws of the State of Delaware, (hereinafter referred to as “MANAGER”),

for Venue Management Services for the Hugh Morton/Greenfield Lake Amphitheater (hereinafter

referred to as “Venue”), which will be depicted on Exhibit “A” (to be attached at a later date and

made a part hereof).

WHEREAS, the CITY owns an amphitheater within the public park surrounding

Greenfield Lake in Wilmington, North Carolina. The amphitheater is to be used as a high-quality

venue for live musical and other performances and civic events. The surrounding park is to

provide recreational opportunities for CITY residents and visitors.

WHEREAS, the CITY advertised a Request for Proposals on October 21, 2019;

WHEREAS, the MANAGER’s proposal was determined to best satisfy the requirements

of the CITY and represent the best value to the CITY for this project;

WHEREAS, pursuant to the terms of this Agreement, MANAGER proposes to operate,

manage, and maintain the Amphitheater (as defined below) and to arrange for, promote, and

manage performances at the Amphitheater.

NOW, THEREFORE, for and in consideration of the mutual promises and agreements

contained herein, and for other good and valuable consideration, the receipt and sufficiency of

which is hereby specifically acknowledged, and subject to the terms and the conditions hereinafter

stated, the parties agree as follows:

1. Definitions, The following terms shall have the meanings given in this section:

a. “Affiliate” means any person or entity that, directly or indirectly, controls, is

controlled by, or is under common control with MANAGER. The term “control”

(including the terms “controlled by” and “under common control with”) means the

possession, direct or indirect, or the power to direct or cause the direction of the

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management and policies of a person or entity, whether through the ownership of

voting securities, by contract, or otherwise.

b. “Amphitheater” means the principal amphitheater as well as the supporting

buildings and grounds; all as depicted on Exhibit A.

c. “Amphitheater Operating Expenses” shall mean all expenses that result from the

operation of the Amphitheater for a Civic Event.

d. “Amphitheater Public Access Areas” means those portions of the Venue property,

including the sponsor pavilion, amphitheater bowl, and service court yard, which

are to be open to the public (except during Civic Events or Concert Events) and do

not consist of buildings and structures which MANAGER has the ability to

secure/lock in order to deny access thereto by third parties, such as the stage house

and outbuildings.

e. “Applicable Law” shall mean any applicable constitution, statute, rule, regulation,

ordinance, order, directive, code, interpretation, judgment, decree, injunction, writ,

award, permit, license, authorization, or requirement of any court, board, agency,

commission, office, division, subdivision, department, body, authority of the

United States, the State of North Carolina, City, and any other governmental unit.

f. “Applicable Standard” means:

i. Except as defined in subsection (ii) below, a standard of performance,

operation (including bookings), and maintenance equal to or exceeding

those generally applicable to comparable first class live entertainment

facilities operated by MANAGER or an Affiliate in the United States.

ii. With respect to prices, regulation of the advertising and serving of alcoholic

beverages and products, the standard shall be equal to comparable facilities

and amphitheaters located in North Carolina.

g. “Civic Events” means public events, festivals, performances, charitable benefits,

fundraising events, sporting contests, dances, meetings, lectures, ceremonies, or

other gatherings arranged or permitted by CITY and not promoted by MANAGER

or an Affiliate. Civic Events shall include without limitation CITY festivities,

musical performances and other entertainment during the Azalea Festival (which

occurs over a five (5) day period in April). Other than aforementioned events

(collectively, the “Fixed Civic Events”), the number of Civic Events shall not

exceed five (5) per calendar year (having a maximum of ten (10) per year including

the Fixed Civic Events) without MANAGER’s written consent.

h. “Concert Events” means all events (whether single or multi-day) held, conducted,

or presented at the Amphitheater, which are promoted by MANAGER or an

Affiliate and are not Civic Events. The number of Concert Events shall not exceed

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forty (40) per year without CITY’s written permission. By way of illustration and

not by limitation, events featuring the following types of entertainment and artists

shall be included within the definition of Concert Events:

i. Contemporary music, rock and roll music, pops music and jazz music;

ii. Adult contemporary performers;

iii. Theatrical performances and national Broadway Tours;

iv. Country Music;

v. Rhythm and Blues Music;

vi. Gospel and contemporary Christian Music;

vii. Music Festivals;

viii. Electronic dance music;

ix. Children’s shows and entertainment; and

x. Comedy Performers.

i. “MANAGER” means Live Nation Worldwide, Inc., a Delaware corporation, or an

Affiliate. Acts of MANAGER’s agents, officers, employees, and other authorized

representatives acting within the scope of their authority or employment shall be

deemed to be acts of MANAGER for purposes of binding MANAGER to any

obligation or duty hereunder.

j. “Non-Permitted Use” shall mean any uses not described as a Permitted Use, unless

approved in writing by CITY. Non-Permitted Uses shall also include MANAGER’s

Negative Covenants described in this Agreement as well as any use contrary to

Applicable Law.

k. “Park” means the public park surrounding the Amphitheater as shown on Exhibit

A.

l. “Performance Season” means the period commencing on or about March 1 and

ending on or about November 30 of each year.

m. "Permitted Use" shall mean the operation of a first-class live entertainment venue

together with ancillary uses thereto, including, without limitation, operation of food

and beverage service (including, without limitation, food storage, preparation,

service and consumption and bar service and the sale and consumption of alcoholic

beverages), VIP rooms and facilities, product exhibitions, meetings, fund raising

events, charity events, broadcasting, recording, sale of concessions, and sale of

merchandise related to the operations or events at the Amphitheater, exhibiting of

pay-per-view events, events for viewing on a screen, the display and sale of works

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of art, videotapes, promotional items, music, CDs, DVDs, and other items sold

generally from time to time at live entertainment venues, and Civic Events.

Other capitalized terms not referenced or defined above shall have the meanings indicated

where such terms first appear in this Agreement.

2. Term. The term (“Term”) of this Agreement shall be for ten (10) years beginning on the

date upon which the first Concert Event occurs (the “Commencement Date”) and continuing

through to the tenth anniversary of the Commencement Date, unless earlier terminated as

provided herein; provided, however, that for calendar year 2020 the only fees and charges

to be paid by MANAGER will be $700 per Concert Event in 2020 plus $2 per paid ticket

to such Concert Events. This Agreement may be renewed for an additional term of ten

(10) years upon written agreement of the parties.

3. Appointment and Authority of MANAGER.

a. CITY hereby engages MANAGER, as an independent contractor and not as an

agent of or for the CITY, to operate, manage, and maintain the Amphitheater during

the Term of the Agreement. MANAGER hereby undertakes and agrees to act in

such capacity in accordance with the provisions of this Agreement.

b. Subject to the provisions of this Agreement, MANAGER shall have the

responsibility and authority to take all actions necessary or appropriate for the

operation, management, promotion, and maintenance of the Amphitheater,

including but not limited to the following:

i. Employ or contract for such workers, mechanics, laborers, clerks, legal

counsel, consultants, accountants, and other employees and contractors as

are reasonably necessary or appropriate in the management, maintenance,

and operation of the Amphitheater;

ii. Procure and pay for such materials, services, public utility services,

supplies, and equipment as are reasonably necessary or appropriate in the

management, maintenance, and operation of the Amphitheater, consistent

with the terms of this Agreement;

iii. Procure and maintain in force and effect the policies of insurance required

of MANAGER by this Agreement;

iv. Subject to the provisions of this Agreement governing removal of fixtures,

acquire and dispose of MANAGER’s personal property used in the

operation of the Amphitheater, for any reasonable purpose consistent with

this Agreement;

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v. Use or permit the use of all or any part of the Amphitheater, by any person

or entity, for events consistent with the terms of this Agreement and the use

of the Amphitheater as a public entertainment facility;

vi. Operate or grant concession privileges for the vending and sale of food and

beverages, including alcoholic beverages, programs, cushions, souvenirs,

novelties, retail merchandise and similar articles, and other articles, or for

the renting of any such articles, consistent with the terms of this Agreement

and the use of the Amphitheater as a public entertainment facility.

vii. Take and omit such other actions, enter into such other agreements,

documents, and instruments, and engage in such other transactions, as are

reasonably necessary or appropriate in connection with the management,

operation, maintenance, improvement, and administration of the

Amphitheater, consistent with the terms of this Agreement and the use of

the Amphitheater as a public entertainment facility; and

viii. Administer all business operations and activities related to the

Amphitheater, except as otherwise specifically provided herein.

4. Duties of MANAGER.

a. Within the authority granted to MANAGER under this paragraph and other

pertinent sections of this Agreement, MANAGER hereby agrees, except as

otherwise expressly provided in this Agreement, to perform and furnish, during the

Term of this Agreement, all management services, labor, and material appropriate

to carry out its duties hereunder. MANAGER shall devote its reasonable good faith

efforts to doing all things reasonably necessary for the orderly and efficient

administration, management, and operation of the Amphitheater, including the

negotiation, execution, and enforcement of licenses, ticketing agreements or

contracts, use agreements, and bookings for the Amphitheater. All licenses, use

agreements, bookings and any other agreements pertaining to the use, operation,

maintenance, and occupancy of the Amphitheater, except those pertaining to Civic

Events, will be executed by MANAGER as manager of the Amphitheater.

MANAGER shall use reasonable, commercially feasible good faith efforts in light

of market conditions and attendance patterns to secure events appropriate to the

operation of the Amphitheater. Such efforts shall be designed to promote as diverse

a use of the Amphitheater as is practical and economically feasible, consistent with

and to the end that the citizens and public generally may enjoy and receive those

benefits intended from the Amphitheater, and so that CITY may exploit its climatic,

geographical, recreational, cultural, educational, and commercial resources and

advantages. MANAGER shall endeavor to coordinate its efforts with CITY’s own

efforts to achieve the objectives of this paragraph but a failure shall not be a default.

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b. MANAGER shall use reasonable, commercially feasible, good faith efforts to

achieve a level of customer satisfaction meeting the Applicable Standard and to

satisfactorily resolve customer complaints. MANAGER agrees to employ, as its

General Manager in charge of the Amphitheater management, a person experienced

in management of comparable facilities meeting the Applicable Standard.

MANAGER shall not employ, nor continue to employ, any person as General

Manager to whom CITY reasonably and in good faith objects. The General

Manager shall be responsible for the overall operation of the Amphitheater and will

be the primary liaison with the CITY’s designated representative. The General

Manager should be a good operator and able to work closely with community

representatives, volunteers, and CITY officials, employees, and agents.

MANAGER’s General Manager shall meet with CITY’s representative to discuss

and attempt in reasonable, commercially feasible, good faith to resolve any

customer complaints received by CITY.

c. MANAGER shall operate, and shall cause MANAGER’s subcontractors,

concessionaires, vendors, licensees, users, broadcasters, and others using the

Amphitheater, to operate and use the Amphitheater in conformance with the

Applicable Standard. MANAGER shall require by contract that all contractors

operating in the Amphitheater under MANAGER operate to the Applicable

Standard and shall enforce such requirement against all contractors.

d. MANAGER agrees to provide to CITY a list of proposed qualified users,

subcontractors, vendors, licensees, concessionaires, and service contractors prior to

entering into principal contracts for such services. CITY, through its designated

representative, will have the right to discuss with MANAGER the list of qualified

subcontractors, vendors, licensees, users, concessionaires, and service contractors,

and MANAGER shall consider the opinion of the CITY, but nothing herein shall

give CITY the right or authority to approve or disapprove of any of the persons or

entities on said list. Notwithstanding the foregoing, MANAGER shall (i) not enter

into any such principal contracts with a term that is greater than the Term of this

Agreement, and (ii) be permitted to enter into principal contracts with its Affiliates

without having to submit to CITY a list of proposed users, subcontractors, vendors,

licensees, concessionaires, and service contractors, provided that the fees for using

such Affiliates are consistent with the fees charged at other such venues operated

by MANAGER or its Affiliates which are of comparable size and are reasonably

consistent with Applicable Standards.

e. Subject to the terms of this Agreement, all appropriate supplies and equipment for

events and for the management, operation, and maintenance of the Amphitheater

shall be rented, leased, or purchased by MANAGER. During the Term of this

Agreement, MANAGER shall maintain a reasonable inventory of equipment and

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supplies. Equipment purchased by MANAGER and left at the Amphitheater upon

the expiration of the Term shall become the property of CITY.

f. MANAGER may negotiate and enter into service contracts or agreements in the

name of MANAGER which are reasonably necessary or appropriate in the ordinary

course of business in operating the Amphitheater, including contracts for

electricity, engineering services, gas, telephone, staffing personnel, including

guards and ushers, janitorial service, vermin extermination, concessions, radio,

cable and television rights, accounting services, and other services.

g. MANAGER shall furnish such management and supervisory services as are herein

set forth in this Agreement in a manner consistent with the Applicable Standard.

h. MANAGER shall accept the management, maintenance, and operation of the

Amphitheater, in its condition as of the Commencement Date without any

additional representation by CITY, its employees, representatives, or agents, other

than the right to conduct an inventory; provided that CITY’s delivery of the

Amphitheater to MANAGER shall constitute CITY’s representation and warranty

that the CITY Work has been completed in a good and workmanlike manner, in

compliance with the plans and specifications therefore approved by the parties, in

compliance with all Applicable Laws, including ADA, and, subject to

MANAGER’s Work, is legally permitable for the Permitted Uses.

i. MANAGER shall be responsible for administering the official website of the

Amphitheater as initially set up by MANAGER. Any domain names/URLs (uniform

resource locators) used for this purpose must be owned by either the CITY or the

MANAGER. Ownership of the any website URL/ domain names used for this purpose

will revert to the CITY upon the expiration or termination of this Agreement.

j. MANAGER shall, subject to availability, provide facility rentals to outside

organizations for events which do not include nationally touring artists. A facility

rental pricing list, to be reasonably approved by the CITY, shall be provided to the

CITY by November 1st. of each year, for the following calendar year. All such

rentals shall be effected pursuant to MANAGER’S then current form of rental agreement.

k. For each Concert Event promoted by MANAGER, MANAGER shall deliver to

CITY 20 admission tickets, with the locations and types to be selected by

MANAGER in its sole discretion.

5. Repair and Maintenance Standards. The CITY and MANAGER shall, on or before the

Commencement Date, develop a maintenance schedule and standard for maintenance to be

performed at the Amphitheater by MANAGER, which schedule and standard shall not

exceed that of the Applicable Standard. In the event that the parties are unable to agree on

such schedule and standard prior to the Commencement Date, MANAGER may terminate

this Agreement. The maintenance schedule and standard mutually agreed upon by the

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parties shall be reduced to writing and become part of this Agreement by an Amendment

completed and executed by both parties. MANAGER shall, throughout the Term, be

responsible for routine and preventative maintenance of the Amphitheater including the

Amphitheater Public Access Areas and major systems (including but not limited to) the

HVAC, plumbing, and electrical systems and the “building envelope,” components of

which include the roof, walls, floors, fenestrations, and doors; provided that the foregoing

responsibility shall not include any capital repairs, replacements, or improvements, defined

as a repair, replacement, or improvement in which the net cost exceeds five thousand dollars

($5,000.00). Materials used in the maintenance of operational systems should be OEM or

acceptable equivalent. Submission of capital needs or repairs shall occur on an annual basis and

should be submitted to the City, in writing, by the end of November each year. The MANAGER

shall keep same in good repair, order, and condition, free from any unsanitary conditions

and any conditions posing a hazard or threat to health and safety, all consistent with the

Applicable Standard. In furtherance of the foregoing, MANAGER shall perform regular

inspections of the building envelope and major systems and either promptly make all

necessary routine and ordinary repairs or maintenance in accordance with manufacturers

recommendations to keep the Amphitheater in good repair, order, and condition or the

MANAGER shall promptly notify the CITY of the need for any work that would constitute

a capital repair, replacement, or improvement as defined above. Except for the

MANAGER’s Work, MANAGER shall not be obligated to, and shall not, without CITY’s

written consent (which consent shall not be unreasonably withheld, conditioned, or

delayed), perform any work that would constitute a capital repair, replacement, or

improvement. Failure to perform such routine and ordinary maintenance in accordance

manufacturers recommendations and with this Agreement and any Amendments to this

Agreement shall result in MANAGER being held financially responsible for the repair or

replacement of any major systems, the building envelope, or any damages to the extent

caused by MANAGER’S failure to perform such routine and ordinary maintenance. For

the term of this Agreement, MANAGER shall maintain reasonable records of the routine

and ordinary maintenance it performs and provide those records to CITY upon termination

of this Agreement or when reasonably requested. MANAGER shall not be required to

remove or otherwise remedy, in accordance with Applicable Law, any hazardous materials

or substances existing at the Amphitheater as of the Commencement Date. CITY shall

mow and maintain all landscape, grassy, and turf areas within the Amphitheater and Park

in accordance with CITY’s standards for its other park facilities.

6. Operating Costs. MANAGER shall be solely responsible for all expenses that

MANAGER incurs in connection with carrying out its duties under this Agreement,

including, but not limited to, the following:

a. Wages and salaries (including management fees) of all of MANAGER’s employees

engaged in the operation, maintenance, and security of the Amphitheater, including

taxes, insurance, and benefits paid to such employees;

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b. All supplies and material used in the operation, maintenance, repair, and security

of the Amphitheater;

c. Insurance expenses;

d. Utility costs, including, but not limited to, those associated with telephone service,

electricity, gas, sewer, water, garbage removal, stormwater fees, and cable data

transmission;

e. Repairs and general maintenance of the Amphitheater;

f. Service or maintenance contracts with independent contractors for the operation,

maintenance, repair, replacement, or security of the Amphitheater; and

g. The parties acknowledge and agree that notwithstanding anything to the contrary contained

in this Agreement, the maximum yearly amount to be expended by MANAGER for (i)

repairs and maintenance will be $20,000 and (ii) utilities will be $50,000; with the

foregoing amounts increasing by 2% per year.

7. Revenues. Except in connection with Civic Events (other than as noted below),

MANAGER shall be entitled to contract for, collect, receive, and retain all revenues

generated by MANAGER’s operation of the Amphitheater, including, without limitation:

a. Sales of tickets or passes;

b. Broadcast rights;

c. Promotion of events;

d. Sponsorships (excepting only sponsorships for Civic Events that CITY procures);

e. Sales of food, beverages, merchandise, programs, and other goods and wares

i. Food and beverage rights and revenues for Civic Events and Concert Events

shall be solely MANAGER’s

ii. Food and beverage net revenues for Fixed Civic Events shall be split fifty

percent (50%) to the CITY, fifty percent (50%) to the MANAGER. It being

the intention of the parties that the revenues subject to the foregoing split

shall be calculated based on what MANAGER is to receive of such revenues

pursuant to the concession agreement(s) between MANAGER and any third

parties providing concession services at the Venue (which will be net of

taxes, costs of goods sold, labor, compliance and operating costs, etc.) so as

to be based upon the net amount received by MANAGER under such

concession agreement(s).

8. Security. MANAGER at all times shall be responsible for on-site security in the

Amphitheater. Armed security guards, as defined by N.C. Gen. Stat. § 74C-13, shall not

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be utilized to perform any type of security other than to escort the transportation of cash

funds related to the operation of the Amphitheater.

CITY, through its police, shall be responsible for security in the park surrounding the

Amphitheater and, when open to the public, the Amphitheater Public Access Areas. CITY

shall be responsible for off-site security, provided, however, that any extraordinary crowd

control or security for the protection of persons and property necessitated by Concert

Events shall be provided and paid for by MANAGER upon mutual agreement of the

staffing and costs thereof. CITY and MANAGER agree to coordinate planning event

traffic, traffic control, crowd control, and other security issues from time to time. CITY

and MANAGER will each designate a liaison for purposes of such coordination.

9. Access by CITY Personnel. Officers, employees, agents, and other authorized persons of

CITY in the performance of their official duties shall have access to the Amphitheater at

all reasonable times. The CITY reserves the right to conduct inspections of the premises

upon twenty-four (24) hours notice to the MANAGER but no such access shall be allowed

during a Concert Event.

10. Compliance with Laws. MANAGER shall, throughout the Term, comply with all

Applicable Law respecting the use or manner of use of the Amphitheater and operation

thereof. MANAGER shall obtain and keep in full force and effect all permits and licenses

and other authorizations required for the use and operation of the Amphitheater.

MANAGER specifically acknowledges and agrees that it has complied with and shall

continue to comply with the provisions of the federal E-Verify program in compliance with

N.C. Gen. Stat. §64-25 et seq. Any Subcontractors employed by MANAGER shall also be

in compliance with the federal E-Verify program in accordance with N.C. Gen. Stat. §64-

25 et seq. MANAGER shall maintain adequate safeguards with respect to sensitive

customer information in conformance with and pursuant to 16 C.F.R. §681.1 and in

accordance with N.C. Gen. Stat. §132-1.10 and §75-65.

11. Compliance with Applicable Standard. MANAGER shall comply with the

Applicable Standard in advertising and promoting events at the Amphitheater and in all

other aspects of its management, maintenance, and operation of the Amphitheater pursuant

to this Agreement. MANAGER agrees that Concert Events booked at the Amphitheater

will be of a quality that comparable managers would be willing to book at other similar

venues operated by MANAGER or its Affiliates meeting the Applicable Standard. CITY

and MANAGER agree to meet and confer from time to time for purposes of developing

and maintaining effective alcohol management, noise, and crowd control programs.

Subject to the notice and cure provisions of this Agreement, any failure of MANAGER to

meet the Applicable Standard as provided above shall be deemed a breach of this

Agreement.

12. Park Scheduling. CITY shall have sole discretion with respect to the scheduling of

events and activities within the Park; provided, however, that CITY shall not grant a permit

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for or allow an event in the Park to take place during the times when MANAGER has

scheduled a Concert Event. Except during times when MANAGER has scheduled a

Concert Event or Civic Event, CITY shall have the right to contract with outside food

vendors to provide services to the Park; provided that neither the CITY nor any such

outside food vendors may use any of the equipment, fixtures, facilities, structures,

buildings or utilities for which MANAGER is responsible to maintain. MANAGER may

request to reserve the Park in accordance with CITY’s normal reservation practices but

shall have no special rights with respect to such reservation requests.

13. Amphitheater Event Scheduling. The parties agree that each year during the Term of

the Agreement, CITY shall have the right to use the Amphitheater for the Fixed Civic

Events. Not later than January 31 of each year during the Term, the CITY shall provide

the MANAGER with a schedule showing the dates during the upcoming year when the

CITY has scheduled the Fixed Civic Events at the Amphitheater. MANAGER shall not

schedule Concert Events or other uses of the Amphitheater during days reserved for Fixed

Civic Events. MANAGER shall have the exclusive right to book and produce all Concert

Events at the Amphitheater and priority rights in booking and scheduling events for dates

other than those reserved for the Fixed Civic Events. MANAGER also will seek to

encourage use of the Amphitheater by community groups within MANAGER’s booking

schedule.

Priority will be given to the scheduling needs of Cape Fear Shakespeare, Ltd., for the Fixed

Civic Event known as Shakespeare on the Green; which occurs annually beginning the fourth

Wednesday of May through the last Sunday in June for set up and performance, with the

following conditions: Cape Fear Shakespeare, Ltd., annually no later than April 30 of each

year, will complete a license agreement for the facility, on MANAGER’S then current form of

license agreement for use of the Amphitheater which will specify their allotted dates. Cape

Fear Shakespeare, Ltd. will be responsible to construct the sets for the event in a manner that

will allow them to be taken down and stored as needed by Cape Fear Shakespeare, Ltd., and

provisions made to store any other associated equipment, to allow for other events at the

facility. Other events may be booked at the facility during this period under the following

conditions: A total of four dates will be made available for concerts during Cape Fear

Shakespeare’s allotted time at the facility. A maximum of two of these dates may be on

Fridays/Saturdays, with the remainder of the dates to be held Sundays through Thursdays.

In an effort to provide adequate time for Shakespeare on the Green event promotion, all

events scheduled by organizations other than Cape Fear Shakespeare, Ltd., occurring

during Cape Fear Shakespeare’s allotted dates, must be confirmed no later than April 15

of the same calendar year. At this time, a master schedule for the facility will be created.

Cape Fear Shakespeare, Ltd. will maintain the right to provide/sell food and beverage items

during their scheduled performances subject to not using the concession equipment of the

Amphitheater, not adversely affecting the license of the concessionaire of the Amphitheater, and

under no circumstances selling alcohol beverages, and Cape Fear Shakespeare, Ltd. shall be entitled

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to retain the revenues from its sale of concessions but shall be solely responsible for any licenses,

permits, and taxes associated therewith.

14. Amphitheater Scheduling Procedures. During the Term, MANAGER shall

promptly notify CITY of the dates of each Concert Event and other events that MANAGER

intends to book or has booked under this Agreement. Not later than January 31 of each

year during the Term, CITY will provide MANAGER with a schedule (the “Proposed

Schedule”) showing the dates (“Reserved Dates”) during the upcoming year when CITY

would like to schedule Civic Events other than the Fixed Civic Events at the Amphitheater,

and MANAGER shall use reasonable, commercially feasible, good faith efforts to

accommodate the Proposed Schedule. Notwithstanding the foregoing, after receiving the

Proposed Schedule, MANAGER may schedule Concert Events on Reserved Dates until 60

days remain before any such Reserved Date (the period preceding the day that is 60 days

prior to a Reserved Date being the “Bump Period”). If MANAGER has not scheduled a

Concert Event during the Bump Period, CITY’s right to proceed with the Civic Event on

that Reserved Date shall be absolute, and MANAGER shall not thereafter schedule a

Concert Event or other use of the Amphitheater on that Reserved Date.

15. Expenses of Civic Events. The parties contemplate that Civic Events may be sponsored

by third parties who shall be responsible for the Amphitheater Operating Expenses for

those events and who shall, subject to the provisions of this paragraph, be entitled to net

revenues from ticket sales and broadcast rights (but not concession sales revenues), if any,

generated by such events. For each Civic Event held at the Amphitheater pursuant to this

Agreement, the Amphitheater Operating Expenses attributable to that event shall be paid

for first out of and by the net revenues, if any, generated by that event, and any remaining

balance from the sponsors of such event, and if it is sponsored by the CITY, then the CITY.

Nothing herein shall be construed to require MANAGER to subsidize a Civic Event. If the

net revenues generated by the Civic Event fail to cover all Amphitheater Operating

Expenses for such event, then any such deficit arising therefrom shall be paid for by the

third party sponsor(s) or if it is a CITY event, the CITY. MANAGER shall have the right

to require that a deposit be placed for the estimated Amphitheater Operating Expenses for

such event. All Civic Events which are promoted or conducted by parties other than the

CITY shall be subject to the promoters and/or sponsors thereof entering into MANAGER’s

standard license agreement for the Amphitheater.

16. Costs of Fixed Civic Events. MANAGER shall charge no rent for use of the Amphitheater

for the Fixed Civic Events but shall charge the Amphitheater Operating Expenses for such

event. CITY and its permitees shall further have the right to place branding, sponsorship,

and other signage in the Amphitheater during the Fixed Civic Events.

17. Fees, Taxes and Assessments. During the Agreement Term, MANAGER shall pay

all applicable governmental fees, charges, and taxes resulting from its occupancy,

management, and use of the Amphitheater; provided, however, that to the extent

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MANAGER is required to pay any real estate taxes or occupancy taxes, MANAGER may

receive a credit in the amount of such taxes paid against the rents, fees and charges due

from MANAGER to CITY under this Agreement.

18. Times of Operation for Concert Events. Concert Events scheduled Monday through

Friday shall only be scheduled from 3:00 p.m. until 9:00 p.m. No sound checks for events

scheduled Monday through Friday shall be conducted before 2:00 p.m. unless authorized

by the City Manager or designee in writing prior to the event. Any Concert Events held

on Saturdays shall be conducted between 9:00 a.m. and 10:00 p.m. and on Sundays shall

be conducted between 11:00 a.m. and 9:00 p.m.

19. MANAGER’s Paid Ticketing Records and Ticketing. MANAGER shall maintain during

the Term of this Agreement such ticketing reports, including backup data, of the number

of all paid, dropped, and gross tickets for each Concert Event (collectively, “Records”)

relating to this Agreement as are customary for business operations comparable to

MANAGER’s in order to ascertain the number of paid tickets to Concert Events. Such

Records shall be available upon reasonable request for CITY’s inspection. CITY

acknowledges and agrees that MANAGER shall have the exclusive right to handle and sell

tickets to any Concert Event, Fixed Civic Event and Civic Event, and that such handling

and sale shall be effected by and subject to MANAGER’S then current ticketing agreement.

20. Negative Covenants. MANAGER shall not do, permit, or authorize others to do, any of

the following:

a. Operate the Amphitheater in any manner or for any purpose other than a Permitted

Use as defined above;

b. Knowingly or intentionally engage in any act which would, to an ordinarily prudent

person in the position of MANAGER, be reasonably foreseeable to cause

substantial or irreparable damage to the Amphitheater;

c. Abandon the Amphitheater during the Term; provided, however, that inactivity

other than maintenance during the off-season of the Amphitheater shall not

constitute abandonment;

d. Knowingly use or occupy, or knowingly permit the Amphitheater or any part

thereof to be used or occupied, for any unlawful, disreputable, or ultra-hazardous

use (including the prohibited or unauthorized use, storage or disposal of substance

regulated as hazardous under North Carolina or federal law), or operate or conduct

the business of the Amphitheater in any manner known to constitute or give rise to

a nuisance of any kind; provided that CITY recognizes and agrees that the holding

of events in the Amphitheater meeting the Applicable Standard shall not, in and of

itself, constitute a nuisance for purposes of this Agreement;

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e. Make, authorize, or permit any material modifications or alterations to the

Amphitheater except as expressly authorized by CITY in accordance with this

Agreement;

f. Permit the holding of a flea market or used-goods sale at the Amphitheater;

g. Permit gambling within any portion of the Amphitheater;

h. Knowingly permit the Amphitheater to be used for any illegal business or purpose;

i. Enter into any agreements entailing the installation of any wireless structures

(unrelated to MANAGER’s direct operation of the Amphitheater) in any portion of

the Amphitheater; or

j. License the use of any portion of the Amphitheater for a period exceeding one week

to any third party without notifying CITY in advance and obtaining CITY’s written

approval.

21. CITY’s Negative Covenants. CITY shall not do any of the following:

a. Unreasonably interfere with MANAGER’s rights or benefits hereunder; or

b. Take any action materially affecting or diminishing CITY’s title to the

Amphitheater.

22. Payments. During the Term of this Agreement, subject to abatement as expressly

provided in this Agreement, MANAGER agrees to pay to CITY the following:

a. A Quarterly Rent Payment of ten thousand dollars ($10,000) per quarter (“Base

Payment”), growing at 2% per annum, beginning on the first day of the quarter in

which the Commencement Date occurs, while the Agreement is in effect; plus

b. A portion (“Seat Fee”) of each ticket sold by MANAGER for every Concert Event.

The Seat Fee shall be two dollars ($2.00) per ticket for each of the tickets sold in

any calendar year. Seat Fees owed shall be paid by MANAGER to CITY each

month on the same day as Base Payment; plus

c. An incremental per show rent payment of fifteen hundred dollars ($1,500), growing

at 2% per annum, per show above the first 30 shows.

d. All payments required of MANAGER hereunder that are not paid within ten (10)

days of the date such payment is due or within ten (10) calendar days after the

expiration of any applicable cure period, whichever is later, shall bear interest from

the date due until paid at one percent (1%) over the prime rate described in the Wall

Street Journal for the last business day of the calendar month immediately

preceding the late payment. In no event, however, shall the charges permitted under

this section or elsewhere in this Agreement, to the extent they are considered to be

interest under law, exceed the maximum lawful rate of interest.

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23. MANAGER’s Work. Subject to the terms of this paragraph, MANAGER, at its cost and

expense, shall construct the MANAGER’s Work (defined below), the costs of which are not

to exceed a total of five hundred thousand dollars ($500,000). CITY shall have the right to

approve the scope and design of MANAGER’s Work, which approval shall not be

unreasonably withheld, delayed, or conditioned. MANAGER will obtain the approval of

final plans for the MANAGER’s Work by any and all federal, state, municipal, and other

governmental authorities, offices, and departments having jurisdiction in the matter, as

required and necessary. MANAGER will complete all MANAGER’s Work in a good and

workmanlike manner and in accordance with all applicable laws, rules, and ordinances.

The initial MANAGER’s Work, with costs of which shall be two hundred and fifty thousand

dollars ($250,000), shall be completed with eighteen (18) months after the first Concert Event

in calendar year 2021 under this Agreement. The remaining two hundred and fifty thousand dollars

($250,000) of the MANAGER’S Work shall be completed by the end of calendar year 2026.

MANAGER’S Work is defined as such work as MANAGER may desire to enhance the point of

sale systems for concession and merchandise sales, providing portable concessions service, sales

and equipment, and a lighting and sound system for the Amphitheater. The parties acknowledge

and agree that it is their intent for MANAGER to obtain capital accounting treatment for

MANAGER’S Work and therefore that during the Term the title and control of the items

comprising MANAGER’S Work shall be vested in MANAGER. Upon the expiration or

termination of the Term any of MANAGER’S Work remaining at the Amphitheater shall

automatically transfer to and title thereto vest in CITY.

24. Waiver of Liability. CITY assumes no responsibility for any damage or loss of

MANAGER’s personal property except to the extent negligently or willfully caused by

CITY or its employees, agents, or officers. MANAGER agrees to hold CITY harmless

from any damage or loss of MANAGER’s personal property located within the

Amphitheater property except to the extent caused by the negligence or willful misconduct

of CITY or its employees, agents, or officers.

25. Insurance. Prior to the Commencement Date, MANAGER shall provide to the CITY proof

of insurance as follows:

A. Commercial General Liability

1. MANAGER shall maintain Commercial General Liability (CGL) and if necessary,

Commercial Umbrella Liability insurance with a total limit of not less than five

million dollars ($5,000,000) each occurrence for bodily injury and property

damage. If such CGL insurance contains a general aggregate limit, it shall apply

separately to this project/location or the general aggregate shall be twice the

required limit.

2. CGL insurance shall be written on Insurance Services Office (ISO) “occurrence”

form CG 00 01 covering Commercial General Liability or its equivalent and shall

cover the liability arising from premises, operations, independent contractors,

products-completed operations, personal and advertising injury, and liability

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assumed under an insured contract (including the tort liability of another assumed

in a business contract).

3. The CITY, its officers, officials, agents, and employees are to be covered as

additional insureds under the CGL by endorsement CG 20 10 or CG 20 33 AND

CG 20 37 or an endorsement providing equivalent coverage as respects to liability

arising out of activities performed by or on behalf of the MANAGER; products and

completed operations of the MANAGER; premises owned, leased or used by the

MANAGER; and under the commercial umbrella, if any. The coverage shall

contain no special limitations on the scope of protection afforded to the CITY, its

officers, officials, agents, and employees.

4. There shall be no endorsement or modification of the CGL or Umbrella Liability

limiting the scope of coverage for liability arising from explosion, collapse,

underground property damage, or damage to the named insured’s work, when those

exposures exist.

5. The MANAGER’s Commercial General Liability insurance shall be primary as

respects the CITY, its officers, officials, agents, and employees. Any other

insurance or self-insurance maintained by the CITY, its officers, officials, and

employees shall be excess of and not contribute with the MANAGER’s insurance.

6. The insurer shall agree to waive all rights of subrogation against the CITY, its

officers, officials, agents and employees for losses arising from work performed by

the MANAGER for the CITY.

B. Workers’ Compensation and Employer’s Liability

1. MANAGER shall maintain Workers’ Compensation as required by the general

statutes of the State of North Carolina and Employer’s Liability Insurance.

2. The Employer’s Liability, and if necessary, Commercial Umbrella Liability

insurance shall not be less than one million dollars ($1,000,000) each accident for

bodily injury by accident, one million dollars ($1,000,000) each employee for

bodily injury by disease, and one million dollars ($1,000,000) policy limit.

3. The insurer shall agree to waive all rights of subrogation against the CITY, its

officers, officials, agents and employees for losses arising from work performed by

the MANAGER for the CITY.

4. The U.S. Longshore and Harborworkers Compensation Act endorsement shall be

attached to the policy when the services will be on or in close proximity to

navigable waterways.

5. The Maritime Coverage endorsement (WC 00 02 01) shall be attached to the policy

when the contracted services involve the use of watercraft.

NOTE: Additional requirements needed if you have a borrowed servant, offshore

platforms or federal act situations. (Federal Acts such as the Defense Base Act, Migrant

and Seasonal Agricultural Worker Protection Act, and the Federal Coal Mine Health and

Safety Act, etc.)

C. Business Auto Liability

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1. MANAGER shall maintain Business Auto Liability and, if necessary, Commercial

Umbrella Liability insurance with a limit of not less than one million dollars

($1,000,000) each accident.

2. Such insurance shall cover liability arising out of any auto, including owned, hired,

and non-owned autos.

3. Business Auto coverage shall be written on ISO form CA 00 01, or a substitute

form providing equivalent liability coverage. If necessary, the policy shall be

endorsed to provide contractual liability coverage equivalent to that provided in

ISO form CA 00 01.

4. MANAGER waives all rights against the CITY, its officers, officials, agents and

employees for recovery of damages to the extent these damage are covered by the

business auto liability or commercial umbrella liability insurance obtained by

MANAGER pursuant to Section 11.C.1 of this agreement.

5. The MANAGER’s Business Auto Liability insurance shall be primary as respects

the CITY, its officers, officials, agents, and employees. Any other insurance or

self-insurance maintained by the CITY, its officers, officials, and employees shall

be excess of and not contribute with the MANAGER’s insurance.

D. Fidelity Coverage (Employee Dishonesty)

MANAGER shall maintain Fidelity Coverage providing employee dishonesty, forgery or

alteration, theft, disappearance, destruction, and computer fraud coverage covering

contractors, employees, officials, and agents for Fidelity in the amount of five hundred

thousand dollars ($500,000). This requirement may be met with Commercial Crime

insurance or a Fidelity Bond.

E. Deductibles and Self-Insured Retentions

1. The MANAGER shall be solely responsible for the payment of all deductibles to

which such policies are subject, whether or not the CITY is an insured under the

policy.

F. Miscellaneous Insurance Provisions

The policies are to contain, or be endorsed to contain, the following provisions:

1. Each insurance policy required by this contract shall be endorsed to state that

coverage shall not canceled by either party except after thirty calendar days (30)

prior written notice has been given to the City of Wilmington, PO Box 1810,

Wilmington, NC 28402-1810.

2. If MANAGER’s liability policies do not contain the standard ISO separation of

insureds provision, or a substantially similar clause, they shall be endorsed to

provide cross-liability coverage.

G. Acceptability of Insurers

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Insurance is to be placed with insurers licensed to do business in the State of North Carolina

with an A.M. Best’s rating of no less than A VII unless specific approval has been granted

by the CITY.

H. Evidence of Insurance

1. The MANAGER shall furnish the CITY with a certificate(s) of insurance, executed

by a duly authorized representative of each insurer, showing compliance with the

insurance requirements prior to commencing the work, and thereafter upon renewal

or replacement of each certified coverage until all operations under this contract are

deemed complete.

2. Evidence of additional insured status shall be noted on the certificate of insurance.

I. Subcontractors

MANAGER shall include all subcontractors as insureds under its policies or shall furnish

separate certificates for each subcontractor. All coverage for subcontractors shall be

subject to all of the requirements stated herein. Commercial General Liability coverage

shall include independent MANAGER’s coverage, and the MANAGER shall be

responsible for assuring that all subcontractors are properly insured.

J. Conditions

1. The MANAGER shall provide that the insurance contributing to satisfaction of

insurance requirements in section 27. CITY shall be notified prior to any changes

in Minimum Scope and Insurance Requirements in regards to this contract.

2. The MANAGER shall endeavor to timely notify the Safety & Risk Manager at

(910) 341-5864 of any accidents arising in the course of operations under the

contract causing bodily injury or property damage.

3. Failure of the CITY to demand a certificate of insurance or other evidence of full

compliance with these insurance requirements or failure of the CITY to identify a

deficiency from evidence that is provided shall not be construed as a waiver of

MANAGER’s obligation to maintain such insurance.

4. By requiring insurance herein, the CITY does not represent that coverage and limits

will necessarily be adequate to protect the MANAGER and such coverage and

limits shall not be deemed as a limitation of MANAGER’s liability under the

indemnities granted to the CITY in this contract.

5. The CITY shall have the right, but not the obligation of prohibiting MANAGER or

any subcontractor from entering the project site or withhold payment until such

certificates as required by subsection H.1 above are received by the CITY.

26. Non-Discrimination. MANAGER will take affirmative action not to discriminate against

any employee or applicant for employment or otherwise illegally deny any person

participation in or the benefits of the program which is the subject of this agreement

because of race, creed, color, sex, age, disability or national origin. To the extent

applicable, MANAGER will comply with all provisions of Executive Order No. 11246 the

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Civil Rights Act of 1964, (P.L. 88-352) and 1968 (P.L. 90-284), and all applicable federal,

state, and local laws, ordinances, rules, regulations, orders, instructions, designations, and

other directives promulgated to prohibit discrimination.

27. Representations and Warranties.

a. MANAGER represents and warrants for itself, its owners, and Affiliates that there

is no court action, arbitration, administrative proceeding, or to the best of

MANAGER’s current knowledge, threatened court action, arbitration,

administrative proceeding, on the date of this Management Agreement which

would materially affect (1) the financial condition of MANAGER, its owners, or

Affiliates, or (2) the ability of MANAGER to perform its obligations under this

Agreement.

b. CITY represents and warrants that CITY has no notice or knowledge that any

government agency considers the construction, operation, or use (including,

without limitation, the Permitted Use) of the Amphitheater out of compliance with

any Applicable Law or that any investigation has been commenced or is

contemplated respecting any such possible failure of compliance.

c. Each of the parties hereto represents and warrants that it has full power and

authority to enter into this Agreement and to assume and perform all of its

obligations under this Agreement, that it has obtained any and all approvals that

may be required before it can execute and perform this Agreement, including

approvals required by any loan documents, bond authorization, corporate articles

and bylaws, city charter, or state statute, regulation, or court order, and that the

persons executing this Agreement on its behalf have been duly authorized and are

empowered to bind it to this Agreement, that the execution of this Agreement, and

the performance by it of the actions anticipated by this Agreement neither breaches

any contract with any third party, or constitutes any event, which, with the passage

of time, or the giving of notice, or both, will breach any contract with any third

party, and that this Agreement executed by it are or when fully delivered will be

duly authorized, executed and delivered by it and will be valid, binding and

enforceable obligations of it.

28. Release and Indemnity. To the fullest extent permitted by law, MANAGER shall

release, indemnify, defend upon request, keep and save harmless the CITY, its agents,

officials and employees, from any and all responsibility or liability for any and all damage

or injury of any kind or nature whatever (including death resulting therefrom) to all

persons, whether agents, officials or employees of the CITY or third persons, and to all

property proximately caused by, directly or indirectly, the performance or nonperformance

by MANAGER (or by any person acting for MANAGER or for whom MANAGER is or

is alleged to be in any way responsible), whether such claim may be based in whole or in

part upon contract, tort (including alleged active or passive negligence or participation in

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the wrong), or upon any alleged breach of any duty or obligation on the part of

MANAGER, its agents, officials and employees or otherwise. The provisions of this

Section shall include any claims for equitable relief or for damages (compensatory or

punitive) against the CITY, its agents, officials, and employees including alleged injury to

the business of any claimant and shall include any and all losses, damages, injuries,

settlements, judgments, decrees, awards, fines, penalties, claims, costs and expenses.

Expenses as used herein shall include without limitation the costs incurred by the CITY,

its agents, officials and employees, in connection with investigating any claim or defending

any action, and shall also include reasonable attorneys’ fees by reason of the assertion of

any such claim against the CITY, its agents, officials or employees. MANAGER expressly

understands and agrees that any insurance protection required by this agreement, or

otherwise provided by the MANAGER, shall in no way limit MANAGER’s responsibility

to release, indemnify, keep and save harmless and defend upon request the CITY as herein

provided. The intention of the parties is to apply and construe broadly in favor of the CITY

the foregoing provisions subject to the limitations, if any, set forth in N.C.Gen.Stat. § 22B-

1. Notwithstanding anything to the contrary contained herein, in no event shall

MANAGER’S release or indemnity obligations be applicable to any matter to the extent

such matter is caused by the acts or negligence of CITY, its agents, officials, or employees.

29. Damage or Destruction of the Amphitheater. If the Amphitheater shall be totally or

materially destroyed by fire, casualty, or other cause or happening, or if any lawful

authority shall order demolition or removal of any portion of the Amphitheater, so as to

render it unfit for use as intended by this Agreement, including, without limitation, the

Permitted Uses as solely determined by MANAGER, then, at MANAGER’s option, this

Agreement shall terminate as of the date of such destruction and all of MANAGER’s

liability hereunder shall cease from and after such date.

If the Amphitheater shall be partially destroyed by fire, casualty or other cause or

happening, or be declared unsafe by any lawful authority, then, if economically feasible in

the reasonable opinion of the CITY, it shall promptly be restored or made safe by CITY,

at its sole cost and expense, and a just portion of the payments otherwise due from

MANAGER to CITY shall abate until the Amphitheater shall have been restored and put

in proper condition for use for Permitted Uses at the same or greater sellable capacity as

existed prior to such casualty or cause. If the Amphitheater cannot be restored or made safe

after partial destruction or declaration of unsafe condition without cancelling or

rescheduling more than five booked Concert Events, then MANAGER, at its option, may

cancel and terminate this Agreement in its entirety, and all of MANAGER’s liability

hereunder shall cease from and after the date of such destruction or declaration of unsafe

condition.

30. Eminent Domain. In the event that the Amphitheater or any material part thereof is

taken by any governmental or other permitted authority using the power of eminent domain

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(or any conveyance in lieu thereof is effected) such that performance by either party under

this Agreement is rendered economically infeasible or a party will be materially prevented

from realizing the economic benefit of this Agreement absent such taking, then such party

may terminate this Agreement without further liability to the other party. In the event of a

taking, CITY shall receive the entire award or other compensation for (i) the land on which

the Amphitheater is situated and (ii) all improvements paid for by CITY. MANAGER may

separately pursue a claim against the condemnor for the value of any of MANAGER’s

Work, MANAGER’s personal property that MANAGER is entitled to remove under this

Agreement, and such other costs to which MANAGER may be entitled by Applicable Law.

31. Unanticipated Change in Applicable Law. If a change in Applicable Law occurs, or

CITY’s and MANAGER’s shared interpretation of Applicable Law as of the

Commencement Date proves mistaken, and compliance with Applicable Law as changed

or as correctly interpreted would be materially more or less expensive for one or both

parties, then the provisions of this Agreement governing compensation due shall be

equitably amended. If such equitable amendment would render the Agreement

economically infeasible for one of the parties, then that party shall have the right to

terminate the Agreement.

32. Intellectual Property. MANAGER shall require in its contracts with persons

holding or promoting events at the Amphitheater that such persons shall obtain all

necessary approvals for or arising from the use of patented and/or copyrighted materials,

equipment, devices, processes, or dramatic rights used on or incorporated in the conduct of

any events which MANAGER books at the Amphitheater. MANAGER shall indemnify,

defend upon request, and hold CITY harmless from any breach of patent or copyright rights

or patent or copyright infringements or violations of patent or copyright laws except this

sentence shall not apply to Civic Events.

33. Force Majeure. Should any matter or condition (“Force Majeure”) beyond the

reasonable control of CITY or MANAGER, such as, but not limited to, war, public

emergency or calamity, fire, earthquake, flood, tornado, hurricane, severe weather

conditions, Act of God, strikes or labor disturbances, civil disturbances or riots, epidemics,

or any governmental restriction, prevent or delay performance of this Agreement in

accordance with provisions hereof, in whole or in part, after the employment of all

reasonably available and economically feasible means to overcome such condition, avoid

delay, and mitigate the effects thereof, performance of this Agreement by the party affected

thereby shall be suspended or excused to the extent commensurate with such interfering

occurrence; provided that the party availing itself of this section shall notify the other party

within twenty-one (21) calendar days of its actual knowledge of commencement of such

occurrence of the event of Force Majeure; and provided further that the time of suspension

or excuse shall not extend beyond that reasonably necessitated by the occurrence of the

event of Force Majeure. If the Amphitheater is rendered inoperable by a Force Majeure

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condition during the Performance Season and such inoperability prevents the holding of

one or more booked Concert Events, then MANAGER’s payment obligations to CITY

shall be equitably abated in proportion to MANAGER’s documented loss directly

attributable to such Force Majeure condition.

34. Default and Termination. If, during the Term, MANAGER shall default in its

performance of or compliance with any of the provisions, terms, or conditions of this

Agreement, and such default shall continue for a period of thirty (30) calendar days after

written notice by CITY to MANAGER, provided that if the nature of MANAGER’s default

is such that more than thirty (30) calendar days are reasonably necessary to cure,

MANAGER shall not be in default if MANAGER commences to cure within the thirty

(30) day period and thereafter diligently proceeds to complete such cure; then CITY shall

have the following cumulative and non-exclusive remedies:

a. The following shall constitute an event giving rise to CITY’s right to terminate this

Agreement:

i. MANAGER fails to perform its contracted duties and responsibilities in a

timely and proper manner and is unable to cure such failure within the

applicable cure period or such additional period of time as specified by the

CITY, taking into consideration the gravity and nature of the default, or if

MANAGER shall violate any of the terms of this Agreement;

ii. MANAGER fails to abide by Applicable Law as it pertains to

MANAGER’s use of the Amphitheater;

iii. MANAGER files a voluntary petition in bankruptcy or is adjudicated as

bankrupt or insolvent, or files any petition or answer seeking any

reorganization, arrangement, composition, readjustment, liquidation,

dissolution, or similar relief under any present or future bankruptcy or other

similar law, or seeks or consents to or acquiesces in the appointment of any

trustee, receiver, or liquidator of MANAGER or of all or any substantial

part of MANAGER's property, or makes any general assignment for the

benefit of creditors, or admits in writing its inability to pay its debts

generally as they become due;

iv. A court of competent jurisdiction enters an order, judgment, or decree

approving a petition filed against MANAGER seeking any reorganization,

arrangement, composition, readjustment, liquidation, dissolution, or similar

relief under any present or future bankruptcy or other similar law;

v. Any trustee, receiver, or liquidator of MANAGER or of all or any

substantial part of MANAGER’s property is appointed without the consent

or acquiescence of MANAGER; and such order, judgment, decree, or

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appointment remains un-vacated or un-stayed for an aggregate of sixty (60)

calendar days (whether consecutive or nonconsecutive);

vi. MANAGER abandons or, subject to Force Majeure or other events beyond

MANAGER control, discontinues conducting its operations at the

Amphitheater; or

vii. MANAGER is convicted of a felony after the effective date of this

Agreement.

b. The rights and remedies of CITY provided in this section are nonexclusive and are

in addition to any other rights and remedies provided by law or under the

Agreement. MANAGER is not relieved of its liability to CITY for damages

sustained by virtue of a default of this Agreement. CITY reserves the right to cure

any default without terminating this Agreement and seek reimbursement for such

reasonable expenses from MANAGER, with the understanding that CITY is under

no obligation to correct any such default. CITY’s exercise of its right to cure shall

not act as a waiver of its right to terminate this Agreement for default as provided

hereunder.

c. CITY shall be in default of this Agreement if it fails to perform one or more of its

obligations hereunder and such failure continues for more than thirty (30) calendar

days after written notice thereof from MANAGER; provided that if the nature of

CITY’s default is such that more than thirty calendar (30) days are reasonably

necessary to cure, CITY shall not be in default if CITY commences to cure within

the thirty (30) calendar day period and thereafter diligently proceeds to complete

such cure. Upon CITY’s default, MANAGER shall have the right to:

i. Cure CITY’s default with the actual and reasonable cost thereof to be

reimbursed by CITY within thirty (30) calendar days of the receipt of an

invoice and, failing such timely reimbursement, to offset the cost against

payments next coming due from MANAGER to CITY; or

ii. Terminate this Agreement.

d. The parties agree to mitigate any damages resulting from any default under this

Agreement.

35. Procedure After Termination. Upon expiration or termination of this Agreement,

MANAGER shall promptly surrender and deliver to CITY the Amphitheater and all other

property which it is required to deliver to CITY in the condition existing at the

Commencement Date, normal wear and tear and casualty excepted. In the event of

expiration or termination of this Agreement, MANAGER shall cooperate and coordinate

with CITY and any new manager designated by CITY in order to assure an orderly

transition of MANAGER’s responsibilities hereunder.

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Upon expiration or termination of this Agreement, the MANAGER shall be entitled to

remove any fixtures, furnishings, equipment, or any other personal property placed or

installed as part of the MANAGER’s Work provided that:

a. The CITY shall have the option to purchase any or all of the fixtures, furnishings,

equipment, or other personal property at a reasonable price taking into account the

condition and depreciation of the property at the date of expiration or termination

and taking into account the value to MANAGER of incorporating such items into

MANAGER’S other venues; and

b. The MANAGER shall remove any of its personal property not purchased by the

CITY in a reasonable manner designed to minimize any damage to the Venue or

surrounding Park. To the extent that the MANAGER, its agents, or contractors

cause damage to the Venue or surrounding Park, the MANAGER shall be

responsible for the cost of repairs.

36. Consequential or Special Damages; Lost Profits. Neither party shall be liable to the

other party, or its agents, representatives, contractors, subcontractors or employees, for any

consequential, indirect, or special damages or lost profits related to this Agreement.

37. Assignment. This Agreement may not be assigned, in whole or in part, by either party

without the written consent of the other party, such consent not to be unreasonably

withheld, conditioned, or delayed. To be a valid assignment under this Agreement, any

assignee must succeed to all of the rights and interests and assume all of the liabilities and

obligations (including, without limitation, all operating losses) of the assignor under this

Agreement, and the assignee must agree to cure any prior default of this Agreement

committed by the assignor, all in writing to the reasonable satisfaction of the non-assigning

party. Notwithstanding anything herein to the contrary, the sale of the stock of Live Nation

Worldwide, Inc., or the sale of the stock of the direct or indirect parent of Live Nation

Worldwide, Inc., shall not constitute an assignment of this Agreement. No agreement that

MANAGER is authorized or empowered to enter into under this Agreement, including,

without limitation, any concessionaire agreement, ticketing agreement, sponsorship

agreement or service agreement, shall be an assignment of this Agreement or a default

under this paragraph.

38. Merger, Integration and Amendment. Except as otherwise expressly stated or

referenced herein, this Agreement is the entire integrated agreement of the parties. No other

agreement, oral or written, prior or contemporaneous, except the Agreement, shall be

deemed to exist between the parties. No subsequent agreement or any amendment of this

Agreement shall be binding upon the parties unless it is contained in a written document

executed by properly authorized representatives of each party.

39. Approvals; Waiver. Except as otherwise expressly provided, whenever provision of this

Agreement requires a review, determination, or approval of a party, such review,

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determination, and approval (or notice of disapproval) shall be in writing and shall not be

unreasonably withheld or delayed (except where such review, determination, or approval

is expressly made subject to the sole discretion or determination of a party), and shall in

any event be made within any time limit specified therefore or within thirty (30) calendar

days if no time limit is specified. No consent or waiver, express or implied, by either party

to or of any breach of any covenant, condition, or duty of the other, shall be construed as

consent to or a waiver of any other breach of the same, or any other covenant, condition or

duty. No approval or review by CITY hereunder, or any right of approval or review by

CITY, as to any matter or under any circumstances shall be deemed to constitute

MANAGER as an agent for or acting on behalf of CITY.

40. Notices. Unless otherwise provided herein, any notice, tender, or delivery to be given

hereunder by either party to the other party shall be in writing and shall be delivered by

personal delivery, including messenger service or overnight courier or by registered or

certified mail, postage prepaid, return receipt requested, and shall be deemed delivered

upon receipt or refusal to accept delivery at the address specified in this paragraph, but

each party may change its address by written notice given in accordance with this

paragraph.

To MANAGER:

Live Nation Worldwide, Inc.

9348 Civic Center Drive

Beverly Hills, California 90210

Attn: General Counsel

and to:

Live Nation Worldwide, Inc.

2000 West Loop South, 13th Floor

Houston, Texas 77027

Attn: James Tucker

To City:

Sterling Cheatham, City Manager

City of Wilmington

P.O. Box 1810

Wilmington, NC 28402

and to:

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Amy Beatty

Community Services Director

City of Wilmington

P.O. Box 1810

Wilmington, NC 28402

41. Time of the Essence. Time is of the essence of this Agreement.

42. Additional Documents. Each of the parties to this Agreement, without further

consideration, shall execute and deliver such additional documents and shall take other

actions as may be reasonably required in order to fully effectuate all of the terms and

provision of this Agreement.

43. Construction of Agreement. This Agreement is the result of the joint efforts and

negotiations of the parties hereto, and no single party is the author or drafter hereof. All of

the parties assume joint responsibility for the form and position of each and all of the

contents of this Agreement and they agree that this Agreement shall be interpreted as

though each of the parties participated in the composition of this Agreement and each and

every part thereof.

44. No Joint Venture. It is understood that this Agreement is a contract that has been

negotiated and voluntarily entered into by CITY and MANAGER and that MANAGER is

an independent contractor and not an agent of the CITY. CITY and MANAGER hereby

renounce the existence of any form of joint venture or partnership between them, and agree

that nothing contained herein or in any document executed in connection herewith shall be

construed as making CITY, on one hand, and MANAGER, its Owners or Affiliates, on the

other hand, as joint venturers or partners. MANAGER is an independent contractor with

the rights and obligations provided in this Agreement. The parties acknowledge that CITY

negotiated and executed this Contract for MANAGER’s management skills. No member

or official of MANAGER or employee hired by MANAGER shall be entitled to any

employment benefits of the CITY, such as, but not limited to, vacation, sick leave,

insurance, worker’s compensation, and pension and retirement benefits.

45. Amphitheater Not To Be Used As Security. The ownership of buildings and real estate

located at the Venue shall remain with the CITY. MANAGER shall not pledge or permit

the Amphitheater to be used as security for any loan or obligation of MANAGER and shall

not permit the filing of any lien against the Amphitheater property on account of any work

performed by or for MANAGER or any contract to which MANAGER is a party. In the

event a lien is filed against the Amphitheater or any part thereof relating to any agreement

made by MANAGER, MANAGER shall promptly cause such lien to be removed by filing

an appropriate bond.

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46. Choice of Law, Jurisdiction, and Venue. All of the terms and conditions contained

herein shall be interpreted in accordance with the laws of the State of North Carolina

without regard to any conflicts of law principles and subject to the exclusive jurisdiction

of federal or state courts within the State of North Carolina. In the event of a conflict

between the various terms and conditions contained herein or between these terms and

other applicable provisions, then the more particular shall prevail over the general and the

more stringent or higher standard shall prevail over the less stringent or lower standard.

The place of this Agreement, its situs and forum, shall be Wilmington, New Hanover

County, North Carolina, and in said County and State shall all matters, whether sounding

in contract or tort relating to the validity, construction, interpretation, or enforcement of

this Agreement be determined.

47. Limitations On Legal Requirements. Notwithstanding anything to the contrary

contained herein, MANAGER acknowledges and agrees that the power and authority to

adopt, rescind, or amend laws for the City of Wilmington resides with the Wilmington City

Council and that nothing contained herein shall in any way obligate the Wilmington City

Council to adopt, rescind, or amend Applicable Law, or subject CITY to any liability on

account of the Wilmington City Council’s failure to adopt, rescind, or amend any

Applicable Law.

48. Telecommunications Structures. Nothing in this Agreement, other than the conditions

of this section, shall be construed to limit CITY from entering into any lease or other

agreement with third parties for uses of the Amphitheater for the installation of

telecommunication structures, including cellular towers or antenna or emergency radio

towers or antenna, where such towers or antennas do not interfere with MANAGER’s use

of the Amphitheater.

49. No Alterations to Amphitheater Without MANAGER Consent. CITY agrees that it

shall not make or allow the making of any alteration or improvement to the Amphitheater

without MANAGER’s prior written consent, which consent shall not be unreasonably

withheld, conditioned, or delayed.

50. Conflict of Interest. No paid employee of the CITY shall have a personal or financial

interest, direct or indirect, as a contracting party or otherwise, in the performance of this

Agreement.

51. Non-Waiver of Rights. It is agreed that the either party’s failure to insist upon the

strict performance of any provision of this Agreement, or to exercise any right based upon

a breach thereof, or the acceptance of any performance during such breach, shall not

constitute a waiver of any rights under this Agreement.

52. Binding Effect. The Agreement shall be binding upon the heirs, successors, assigns,

agents, officials, employees, independent contractors, and subcontractors of the parties.

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53. Reference. Use of the masculine includes feminine and neuter, singular includes plural;

and captions and headings are inserted for convenience of reference and do not define,

describe, extend or limit the scope of intent of the Agreement.

54. Savings Clause. If any section, subsection, paragraph, sentence, clause, phrase or

portion of this Agreement is for any reason held invalid, unlawful, or unconstitutional by

any court of competent jurisdiction, such portion shall be deemed severable and such

holding shall not affect the validity of the remaining portions hereof.

55. No Presumption. None of the Parties shall be considered the drafter of this Agreement

or any provision hereof for the purpose of any statute, case law, or rule of interpretation or

construction that would or might cause any provision to be construed against the drafter

hereof. This Agreement was drafted with substantial input by all Parties and their counsel,

and no reliance was placed on any representations other than those contained herein.

56. IDA Certification. The undersigned certifies that MANAGER is not listed on the Final

Divestment List created by the N.C. State Treasurer pursuant to Chapter 147 (the Iran

Divestment Act) of the North Carolina General Statutes. In compliance with the

requirements of the Iran Divestment Act and N.C.Gen.Stat. § 147, MANAGER shall not

utilize in the performance of the contract any subcontractor that is identified on the Final

Divestment List.

57. Immunity Not Waived. This Agreement is governmental in nature, for the benefit of

the public, and is not intended to be for private profit or gain. No Party intends to waive its

sovereign immunity by reason of this Agreement.

58. Minority/Disadvantaged Business Enterprises. It is the policy of the CITY that

MBE/DBE enterprises as defined in N.C. Gen.Stat.§ 143-128(g) shall have the opportunity

to participate in the performance of contracts relating to the Venue. MANAGER shall take

all necessary and reasonable steps to ensure that adequately qualified and competitively

priced MBE/DBE firms have the opportunity to compete and perform contracts relating to

the Venue; provided, however that the foregoing shall not be applicable to any matter for

which MANAGER has a national, regional or marketwide contract in place with a third

party to provide goods or services (e.g. concessions, merchandise, equipment, fixtures,

etc.).

59. Public Records: MANAGER acknowledges that the CITY is a public entity, subject

to North Carolina’s public records laws (N.C.Gen.Stat. § 132) and that any documents

related to this Agreement may be subject to disclosure pursuant to state law in response to

a public records request or to subpoena or other judicial process.

If MANAGER believes documents related to the Agreement contain trade secrets or other

proprietary data, MANAGER must notify the CITY and include with the notification a

statement that explains and supports MANAGER’S claim. MANAGER also must

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specifically identify the trade secrets or other proprietary data that MANAGER believes

should remain confidential.

In the event the CITY determines it is legally required to disclose pursuant to law any

documents or information MANAGER deems confidential trade secrets or proprietary

data, the CITY, to the extent possible, will provide MANAGER with prompt written notice

by certified mail, fax, email, or other method that tracks delivery status of the requirement

to disclose the information so MANAGER may seek a protective order from a court having

jurisdiction over the matter or obtain other appropriate remedies. The notice will include a

time period for MANAGER to seek court ordered protection or other legal remedies as

deemed appropriate by MANAGER. If MANAGER does not obtain such court ordered

protection by the expiration of said time period, the CITY may release the information

without further notice to MANAGER.

Signatures on following page.

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IN WITNESS WHEREOF, the CITY has caused this Agreement to be duly

executed in its name and behalf and the MANAGER has caused this Agreement to be duly

executed in its name and behalf and its corporate seal to be hereunto affixed and attested

to.

CITY OF WILMINGTON, NORTH CAROLINA

BY: _________________________________

Sterling B. Cheatham, City Manager

ATTEST:

_______________________________

Daryle L. Parker, Purchasing Manager

APPROVED AS TO FORM:

_______________________________

Melissa I. Huffman, Assistant City Attorney

FINANCE OFFICER’S CERTIFICATION STATEMENT

This instrument has been preaudited in the manner required by the Local Government

Budget and Fiscal Control Act this the _______ day of _______________, 2020.

____________________________________

Jennifer R. Maready, Director of Finance

Project No.

Contract Revenue:

$40,000 Annual Fixed Rent, Increasing at 2% Per Year

$2.00 per Ticket Rent

$1,500 Incremental Rent Per Show over 30 Shows Per Year, Increasing at 2% Per Year

$500,000 Capital Investment

$70,000 annual Maintenance and Utility Expenditures, Increasing at 2% Per Year

PO# N/A

Federal ID Number: 56-6000239

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LIVE NATION WORLDWIDE, INC.

BY: ___________________________________

STATE OF _______________________

COUNTY OF _____________________

I, __________________________________________________________, a Notary

Public, certify that__________________________________________ personally came before

me this day and acknowledged that he (she) is the ____________________________________ of

LIVE NATION WORLDWIDE, INC., a corporation, and that by authority duly

given and as the act of the company, the foregoing Agreement was signed in its name by its

_______________________________.

WITNESS my hand and official seal this the _____ day of ______________, 2020.

______________________________________________

Notary Public

My Commission expires: _______________________

(NOTARY SEAL)

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