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HomeMy WebLinkAbout022967 ORD - 06/24/1997ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE, THE LEASE AGREEMENT WHEREIN THE CITY OF CORPUS CHRISTI LEASES TO CORPUS CHRISTI PROFESSIONAL HOCKEY CLUB, INC. A PORTION OF THE MEMORIAL COLISEUM FOR FIVE YEARS, WITH AN OPTION FOR AN ADDITIONAL FIVE YEARS, FOR AN ANNUAL RENTAL, INDEXED, LESS RENTALS FROM OTHER TENANTS, OF $153,824, FOR CONCESSION FEES, INDEXED, OF $106,093, AND OTHER CONSIDERATION, FOR THE PURPOSE OF CONDUCTING PROFESSIONAL ICE HOCKEY GAMES AND RELATED ACTIVITIES; AND PROVIDING FOR PUBLICATION. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager is hereby authorized to execute the Lease Agreement between the City of Corpus Christi and Corpus Christi Professional Hockey Club, Inc, a substantial copy of which is attached hereto as Exhibit A. SECTION 2. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and effect for its purpose. SECTION 3. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. AG\97\5000.266.1a '''' i 6 7 MICROFILMED 2 hathe}oregoin ordinance�was read for the first time and passed to its second reading on this the da of !y� , 1997, by the following vote: Loyd Neal Betty Jean Longoria bIt.+ Jaime Capelo John Longoria (C) Melody Cooper Edward A. Martin I Alex L.Garcia, Jr. Dr. David McNichols lie Arnold Gonzales the foregoing ordinance was read for the second time and passed finally on this theaiJl1 day of i , 1997, by the following vote: Loy Neal i Betty Jean Longoria 1 1240 Jaime Capelo Melody Cooper Alex L. Garcia, Jr. Arnold Gonzales II PASSED AND APPROVED, this theayLA day of ATTEST: John Longoria Edward A. Martin Dr. David McNichols Armando Chapa, City cretary MAYOR THE CITY OF CORPUS CHRISTI , 1997. APPROVED THIS %,3 DAY OF , 1997: JAMES R. BRAY, JR., CITY ATTORNEY By: Al /1 . A A. v !Las s ison Gallaway ssistant City Attorn AG\97\5000.266.1a y LEASE AGREEMENT The City of Corpus Christi, Texas, a municipal corporation (the "City"), whose address is 1201 Leopard Street, P. 0. Box 9277, Corpus Christi, Texas 78469, leases the following described property within the Memorial Coliseum, whose address is 402 S. Shoreline Drive Corpus Christi, Texas (the "Premises"), under the following terms and conditions and in consideration of the covenants and agreements expressed, unto Corpus Christi Professional Hockey Club, Inc., a Texas state corporation, and its permitted assigns (the "Lessee"), whose address is #210 1628 West 1st Avenue, Vancouver, B.C., Canada V6J 1G1, for the purpose of conducting professional ice hockey games, practices and recreational programs in accordance with the terms and provisions of this Lease Agreement. The Premises are more particularly described in the attached Exhibit A, Floor Plan, which is incorporated herein by reference for all purposes. 1. TERM 1.1. The term of this Agreement shall be five (5) years beginning September 1, 1998, and ending on August 31, 2003, unless sooner terminated as provided in this Lease Agreement. Lessee shall have exclusive use of the Premises subject to the conditions of this Lease for all home games (approximately thirty-four [34] regular season home games each season) which constitute half of Lessee's games each season. Each year during this Lease, Lessee agrees to deliver to the City at least six months in advance the schedule for its regular season games (the "Schedule of Games") which shall be incorporated by reference herein for all purposes). Lessee shall have exclusive use of the Premises subject to the conditions of this Lease for such additional games as may be established by the Western Professional Hockey League including exhibition and playoff games. Dates for such additional games shall be mutually agreed upon by all parties subject to pre -reserved dates and times for the Premises as described below. Hours of use shall be as provided in Section 5. 1.1.1. Exception. In the event weather or sudden, unexpected travel delay causes Lessee to fail to take possession of Premises on the date and time specified in the Schedule of Games, the game will be rescheduled subject to space availability. 1.1.2. Exception. In the event that a new City, County, University or privately owned facility is made available to Lessee in or around the community of Corpus Christi, Lessee retains the right to enter into a lease agreement with said new facility, and terminate this Agreement upon one year's written notice to the City, subject to the conditions provided below. 1.2. Option to Renew 1.2.1. If no event of default on the part of Lessee exists, Lessee shall have the option to renew and extend the term of the Lease Agreement for an additional five (5) years beginning September 1, 2003, and ending August 31, 2008, under the terms and conditions of this Lease Agreement in effect at the time of the exercise of the option, except as provided herein. 1.2.2. Lessee shall give written notice to City of intention to exercise its option on or before September 1, 2002. 1.3. If Lessee wishes to terminate this Lease at any time during its term, Lessee shall give at least one year's written notice of such termination to City. City agrees to allow the leasing company of the improvements described in Article 3 to sell back such improvements under the terms of a buy-back agreement with the vendor of such improvements, such buy-back agreement to be in a form acceptable to the City Attorney. Lessee shall be responsible for payment of the outstanding balance of the lease between City and said leasing company, minus the value of the buy-back at time of termination of this Lease. In any event, Lessee shall indemnify the City from any expense or cost in connection with such improvements in the event of such termination by Lessee. 2. FEES 2.1. Lessee shall pay to City at its designated address the sum of $153,824.00 (representing the current revenue received by the City for rent of the Premises from September 1 to April 30) as rent for the Premises from September 1 to April 30 during each year of the term of this Lease, subject to adjustment as provided herein. Said annual amount shall be subject to increase each year based on increases in the Consumer Price Index (the "CPI") calculated by the U.S. Department of Commerce for the urban area of Houston, Texas, utilizing September 1, 1996 as the base. Said annual amount shall be reduced by other revenues that the City receives from other tenants for use of the Premises from September 1 to April 30 of each year during the term of this Lease. The City shall provide Lessee with a summary of the income from rental of the Premises for each month during the term of this Lease after the end of the each month. Lessee shall make monthly payments equal to one-eighth (1/8th) of the annual amount due, minus the revenues received by the City from other tenants for rental of the Premises during the preceding month. Lessee's payment shall be due within seven (7) days from notification by the City of the amount due. (The credit for revenues received by the City from any delayed payments received during the summer months shall be credited on the invoice due for the following September). 2.1.1. City retains the right to rent the Premises to the following tenants, on the following dates of each year during the term of this Lease, at the same rates that were charged such events during the period September 1, 1996, through April 30, 1997, subject to adjustment based upon CPI as provided above. Shrine Circus - Second Wednesday of September to the following Monday. Coastal Bend Council of Native Americans - Last Weekend of September. Corpus Christi Caged Bird Club - Third Sunday of October. 2 Texas A&M CC Commencement - Second Friday of December. Golden Gloves - Third Weekend of February (Friday through Sunday). Czech Heritage Festival - Fourth Weekend of February (Friday through Sunday). Sesame Street - Second week of March (Monday through Wednesday). Black Belt Karate Tournament - Third Saturday in March. Gulf Coast Humane Society - Fourth weekend of March (Friday through Sunday). Arts and Crafts - Second weekend in October (Saturday and Sunday); Last weekend in October (Friday through Sunday); First weekend in November (Friday through Sunday); Third weekend in November (Saturday and Sunday); Fourth weekend in November (Friday through Sunday); First weekend in December (Saturday and Sunday); Second weekend in December (Saturday and Sunday); Second weekend in January (Saturday and Sunday); First weekend in February (Saturday and Sunday); Second weekend in March (Saturday and Sunday). Head Start Family Day - Fourth Tuesday in November. Corpus Christi Kennel Club - Second Saturday of February. Dare Rally - Second Tuesday of April. Rodeo and Buccaneer Days - Second Friday in April through end of April. The foregoing dates are estimates only, and City and Lessee agree to accommodate such events within ten (10) days of such schedule; provided that such tenants reserve their events at least one year in advance. (In connection with the Buccaneer Days Rodeo, Lessee agrees to remove the ice rink from the Premises to the extent required for the use of such Premises by the Rodeo.) 2.1.2. City shall continue to make the Premises available for events other than those recurring events listed in Section 2.1.1, and City agrees to maintain its staff at the Premises and have its staff work with Lessee to schedule ice -related, and non -ice -related events at the Premises. 2.1.3. Lessee shall have the right to use the Premises, for no additional fee, on those dates not listed in 2.1.1, and keep all revenues generated by ice and non -ice related events Lessee schedules on those dates. 2.1.4. In the event Texas A & M University Corpus Christi initiates a basketball program in the NCAA and needs the Coliseum for such events during the term of the Lease, Lessee agrees to accommodate such schedule on the same basis as for an event described in Section 2.1.1 above. 2.2. Lessee shall pay for ticket takers, ushers, sound technicians, light technicians, stage hands and security personnel for all events scheduled by Lessee. Such personnel shall be hired by Lessee. All security, guards or protective services shall be the responsibility of Lessee. Lessee agrees to submit a crowd control and security plan to the City at least one month prior to each game or other event, and the City reserves the right, based upon the professional judgment of its Police Department, to require changes in such plan to assure adequate crowd control and security. 2.3. Lessee shall hire and pay for the ice machine operator, box office and sales personnel for all events scheduled by Lessee. 2.4. Lessee shall hire and pay for game personnel and ice officials including, but not limited to referees, timekeepers, scorekeepers, goal attendants and the public address system announcer for all hockey games scheduled by Lessee. Said personnel will be maintained in sufficient numbers, in professional attire and properly trained for efficient service. 2.5. Lessee shall hire and pay for any medical equipment, services and attendants they may deem necessary, including, but not limited to, physicians, physician assistants, trainers, paramedics, emergency medical technicians and ambulance attendants during hockey games and other ice -related events scheduled by Lessee. 2.6. Lessee shall pay for ticket printing and/or computerized ticket services for hockey games. 2.7. Lessee agrees that the City may deduct any costs incurred by City in connection with the above items (including any unpaid rent) from ticket sale income should Lessee fail to reimburse said costs or pay such rent within five (5) days of the due date. 3. IMPROVEMENTS 3.1. City agrees and covenants that it will enter into a lease agreement with a leasing company to equip and furnish and install in the Premises an indoor ice arena suitable for professional hockey, which shall include an ice floor, refrigeration equipment, hockey dasherboards, scoreboards, insulated floor, ice re -surfacing machine and edger, and goals. Pursuant to applicable laws, City shall solicit competitive bids for such items on a lease -purchase basis. A bid package will be sent to Lease Finance Group of Minneapolis, Minnesota and to Ice Systems of America, Inc. 3.1.1. City agrees to obtain written concurrence from Lessee prior to the award of the lease -purchase contract for the improvements. In the event Lessee does not concur in an award, the bids will be rejected and this Lease shall terminate. 4 3.1.2. In addition to all other fees and rentals due under this Lease, Lessee agrees to pay the City a monthly fee equal to the actual amount of lease payment for said improvements for duration of such lease -purchase agreement. 3.2. All precautions shall be taken in making the improvements to insure the structural integrity of the Premises to the satisfaction of the City Engineer. Any damage to the Premises or any equipment owned by the City caused by Lessee shall be repaired promptly by Lessee. All piping, conduit, refrigeration equipment and other improvements shall be installed in a manner to minimize conflicts with other uses of the Premises. 3.3. All plans and specifications shall have prior approval of the City Manager or his designee and the City Engineer and shall be in compliance with all building, electrical, mechanical, plumbing and health codes of the City and with the laws of the State of Texas. 3.4. The improvements shall be completed and ready for use on the earliest possible date, but no later than September 1, 1998. 3.5. Lessee shall make all reasonable dressing room improvements, as necessary. Plans and specifications shall be approved by the City Manager or his designee prior to construction of such improvements. 3.6. All of the permanently -installed improvements (including all property of any type not listed on Exhibit B) shall become the property of City upon installation, inspection and acceptance by Public Facilities Director. 3.7. All equipment specified in Exhibit B shall become the property of Lessee at the end of this Lease, free and clear of all liens and encumbrances. Maintenance of the equipment during the term of this Lease shall be the responsibility of Lessee. 4. USE OF PREMISES 4.1. City grants to Lessee the exclusive right to promote and perform professional ice hockey at the Premises. Lessee may also perform and promote other activities and scheduled events in accordance with the City's policies applicable to the Premises and similar facilities generally. 4.2. Lessee agrees to schedule its game dates as far in advance as possible so that game dates can be coordinated with other events. Lessee shall have access to the ice floor from 10:00 am to 12:00 midnight on game days for practice and the game. 4.3. Lessee may schedule and promote other events at the Premises from September 1 to April 30 of each year during the term of this Lease, except for the dates of those events listed in Section 2.1.1. All such events shall be scheduled with the City Manager or his designee pursuant to Sections 2.1.2 through 2.1.4 of this Lease. 5 4.4. Lessee shall have the exclusive use of one home team dressing room as improved pursuant to Section 3.5 above during each hockey season. 4.5. Lessee shall have peaceful and quiet possession of the Premises for the purpose and terms herein, including corridors and restrooms necessary to accommodate patrons and which are customarily open to the general public. 4.6. If the City is unable to deliver possession of the Premises on the dates and times specified as a result of causes beyond City's reasonable control, City shall not be liable for any damage caused for failing to deliver possession, and this Lease shall not be invalidated. The term of this Lease shall not be extended by any such delay. In no event shall the City be held liable for any lost profits or consequential damages in such event. 4.7. Lessee may reserve a VIP parking area for it's hockey games, not to exceed (20%) of the Memorial Coliseum parking lot, and charge and collect a parking fee for the entire parking area. All such parking fees collected may be retained by Lessee. 4.8. Lessee is granted the right to establish a club room on all game nights for members to meet before, during and after the games. All revenue from the proposed club room will be the sole right of Lessee. 4.9. Lessee is granted the right to establish a full-time merchandising outlet on the Premises. Plans and specifications shall be approved by the City Manager or his designee prior to construction of such improvements. 4.10. Lessee is granted the right to establish permanent outdoor signage on the Premises to promote events and the on-site merchandise outlet. Plans and specifications shall be in conformity with the City's sign ordinances and shall be approved by the City Manager or his designee prior to construction of such improvements. 4.11 Lessee may construct temporary seating on the arena floor surrounding the hockey rink, subject to compliance with all applicable fire codes and building codes and approval by the City Manager or his designee. 5. LIMITATIONS OF LESSEE IN PREMISES 5.1. No Assignment or Subletting. Lessee shall not assign or sublet this lease, in whole or in part, without the written consent of the City and the Western Professional Hockey League, Inc. City shall not unreasonably withhold its consent to assign or sublet this Lease. 5.2. Conditional Assignment. City agrees to enter into a conditional assignment of this Lease between City, Lessee, and Western Professional Hockey League in the form attached as Exhibit C. 6 5.3. Encumbrances. Lessee shall not have the right to encumber the Premises; provided however, this provision shall not prohibit Lessee from encumbering its personal property and equipment. 5.4. City's Right to Enter. At all times during the term of this Iease, City and its agents shall have the right to enter the Premises during reasonable hours for the purpose of examining and inspecting same and determining whether Lessee shall have complied with all of its obligations under this Lease. The entire building, including the Premises covered by this Lease, shall be at times under the charge and control of the City Manager or his designee. 5.5. Alterations, Additions, Improvements and Fixtures. Any required alterations, additions or improvements to the Premises, which are in addition to those specified in Section 3 of this Lease, shall be made only with the prior written consent of the City Manager or his designee, which consent shall not be unreasonably withheld. 5.6. Waste, Nuisance or Illegal Uses. 5.6.1. Lessee shall not use, or permit the use of, the Premises in any manner that results in waste of the Premises, constitutes a nuisance or hazard or increases the rate of insurance. Lessee shall not use, or permit the use of, the Premises for any illegal purpose. Lessee will comply, and will cause its officers, employees, agents and invitees to comply, with all applicable laws and ordinances and with all applicable rules and regulations of governmental agencies concerning the use of the Premises. 5.6.2. City shall retain the right to cause the interruption of any game or to terminate a performance when, in the sole judgment of the City Manager or his designee, such act is necessary in the interest of public health, safety or welfare. 5.7. Animals. Lessee shall not bring or permit anyone to bring any animal onto the Premises, except for working, seeing -eye dogs, unless approved in writing by the City Manager or his designee. 5.8. City shall have the right to collect and save articles left on the Premises by persons attending any performance, exhibition or entertainment on the Premises. 5.9. Compliance with ADA. Lessee agrees to comply fully with the provisions of the Americans with Disabilities Act in its operations. 5.10. Non -Discrimination. Lessee agrees that in conducting its operation, hereunder it will not discriminate against employee, applicant for employment, customer or patron due to age, sex, race, color, handicap, religion, or national origin. 5.11. Storage. Lessee assumes all responsibility for any of its goods or materials which may be left or stored on the Premises at such locations as may be authorized by the City Manager, or his designee. Lessee agrees that the equipment obtained pursuant to Section 7 3 may be stored outside the Premises on a temporary basis as needed to accommodate other users of the Premises. During the period from May 1 through August 31 each year, Lessee agrees to store all equipment, including the ice rink and refrigeration equipment, at an off-site location at its own expense. 6. CONDITION OF PREMISES 6.1. Maintenance. City agrees to provide janitorial and maintenance services and agrees to keep and maintain all areas in a reasonably good and tenantable condition and appearance, and further agrees to keep said Premises in a reasonably neat, clean and respectable condition by prompt removal of all trash, litter, debris and junk. The standard for such janitorial and maintenance services shall be on the same basis as performed by the City prior to this Lease. 6.2 De -Humidification Equipment. In the event the use of the refrigeration equipment and maintenance of an ice rink requires the installation of de -humidification or other special equipment in order to maintain the Premises in a safe and dry manner, Lessee agrees to pay the cost of such equipment. Such equipment may be financed directly by Lessee or may be purchased by City subject to an appropriate adjustment in the equipment lease terms and the letter of credit as required under this Lease. 7. DEBTS RELATED TO PREMISES 7.1. Taxes. 7.1.1. Lessee shall pay and discharge all taxes, general and special assessments, and other charges of every description which during the term of this Lease may be levied on or assessed against the leasehold estate and other personal property, furniture or fixtures placed by Lessee in or on the Premises. 7.1.2. Lessee shall pay all such taxes, charges and assessments to the public officer charged with the collection thereof not less than (7) days before the same shall become delinquent. 7.1.3. Lessee shall pay all taxes on tickets and other items sold or used in connection with any performance, exhibition or entertainment on the Premises. 7.2. Incidental Charges. Lessee shall pay or cause to be paid all incidental charges; such as permit fees, incurred in connection with its operation and use of the Premises. 7.3. Utilities. 7.3.1. Lessee shall pay utility costs associated with the refrigeration system installed in Premises. Lessee shall install a separate meter to determine electrical costs associated with the refrigeration system. 8 Lessee also shall pay for any increases in air conditioning and water costs incurred by the City in connection with the Premises from September 1 to April 30 of each year during the term of this Lease. City shall supply Lessee with monthly air conditioning and water bills for the period of September 1, 1997 to April 30, 1998, and such expenses will be used to determine any increase in air conditioning and water costs that may be the result of use of the Premises by Lessee. Lessee and City agree to add 3% each year to the air conditioning and water costs that the City incurs in connection with the Premises from September 1, 1997 to April 30, 1998 as an estimate of potential utility cost increases due to inflation. 7.3.2. Lessee shall pay for any additional telephone, cable and any similar service (including any connection fees) that Lessee requires in the Premises. 7.4. Janitorial and Other Expenses. Lessee agrees to pay any increases in janitorial, maintenance, set-up and other expenses incurred by the City in connection with the Premises during the period from September 1 through April 30 each year during the term of this Lease. City shall supply Lessee with monthly costs for each such item for the period of September 1, 1997 to April 30, 1998, and such expenses will be used to determine any increase in such costs that may be the result of use of the Premises by Lessee. Lessee and City agree to add 3% each year to such costs that the City incurs in connection with the Premises from September 1, 1997 to April 30, 1998 as an estimate of potential cost increases due to inflation. 8. TICKETING 8.1. Lessee shall have the right to sell tickets (advance, outlet, telephone and door) at its ticket office and all outlets it establishes. 8.2. Lessee shall not admit to the Premises a greater number of persons than the seating capacity (approximately 3200 seats) will accommodate without prior written approval of the City Manager or his designee. 9. CONSTRUCTION BONDS 9.1. City shall require that the contractor selected to construct the improvements described in Article 3 execute a construction payment and performance bonds in the amount of the contract as let by a surety company naming the City as obligee. These construction bonds shall serve as a guarantee for all of the following: 9.1.1. for the faithful performance and completion of the work in accordance with Section 3; 9.1.2. for guarantee of payment of all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the work performed in Section 3 herein; and 9.1.3. for the work or any part of it found at any time before acceptance of the whole work referred to in Section 3 to be defective or to contain defective materials. 10. PERFORMANCE DEPOSIT 10.1. Lessee shall deposit with City of upon execution of this Lease Agreement a Performance Deposit in the amount of twenty-five thousand dollars ($25,000). The performance deposit shall be in cash or a certified or cashier's check payable to City. The Performance Deposit shall be conditioned upon the faithful performance by Lessee of all the terms of the Lease Agreement. No interest shall accrue on such funds to Lessee, and any earnings on such Deposit shall be the property of City. 10.2. Said Performance Deposit shall be returned after Lessee has fully performed all covenants and conditions in this Lease Agreement. 11. LETTER OF CREDIT 11.1. Lessee will provide City with a letter of credit or acceptable security in the amount of the difference between the principle owing on the lease -purchase agreement for the improvements described in Article 3 and the amount that the vendor of such equipment agrees it will pay to buy back such equipment listed in Exhibit B during the first year after installation of the equipment. 11.2. Lessee and City agree that the value of this letter of credit will be adjusted semi- annually as the principle owing on the equipment lease -purchase agreement reduces, subject to any reductions in the buy-back amount. 12. ADVERTISING 12.1. Lessee shall be entitled to all advertising revenue generated from the ice floor, hockey dasherboards, banners, signs, posters, ice re -surfacing machine, scoreboards, programs and merchandise on the Premises. The cost of creating, installing and changing advertising signs will be paid by Lessee. Plans and specifications for all such advertising installations shall be approved by the City Manager or his designee prior to the installation of such. 10 13. CONCESSION COMMISSION 13.1. The Lessee will be entitled to the City's share of concession revenue, 40% of gross revenue from food sales, and 45% of gross revenue from alcohol sales from September 1 to April 30 of each year during the term of this Lease as per the Concession Agreement with Noble Foods, a copy of which has been furnished to Lessee. The City reserves the right to amend, modify, terminate or enter into a new concession agreement covering the Premises during this Lease. The City's sole obligation to Lessee hereunder shall be to assign to Lessee the actual amount of the City's share of concession revenues pursuant to any such concession agreement; provided that the above percentages of concession revenues shall not be reduced by the City without Lessee's approval unless such reduction is made after seeking competitive proposals. (The City agrees that concession revenues for the Memorial Coliseum shall be treated in the same manner as other similar facilities operated by the City in connection with any new, amended, modified or terminated concession agreement.) 13.1.1. Lessee shall pay to the City $106,093 (representing City's share of concession revenue from September 1, 1996 to April 30, 1997) during each year of the term of this Lease for the rights to the City's concession commission for all events from September 1 to April 30 of each year during the term of this Lease. Said amount shall be subject to increase each year based on increases in the CPI in the same manner as provided in Section 2.1. 13.1.2. Lessee shall pay the fee mentioned in 13.1.1 by making monthly payments equal to one-eighth (1/8th) of said annual amount on or before the last business day of the month from September through April during the term of this Lease. 13.2. Lessee shall have the right to sell non-food merchandise and non -beverage merchandise on the Premises, and City or City's concessionaire shall not be entitled to any proceeds from such sales; provided that, the City's concessionaire currently possesses the exclusive rights to sell novelties, souvenirs, programs, records and tapes at public concert events. Lessee reserves the right to host activities in parking area that could include sales of food and beverage, City and City's concessionaire shall not be entitled to any such revenues. 14. BROADCASTING 14.1. Lessee shall have the rights to broadcast or cablecast home games and will retain one hundred percent (100%) of any fees received for such rights. Lessee shall pay all costs incurred for broadcasting and/or cablecasting. 11 15. INDEMNIFICATION AND INSURANCE 15.1. Indemnification. Lessee further agrees to indemnify, save, hold harmless and defend City, its officers, agents and employees from and against any and all claims, demands, suits and judgements asserted by any person or persons, including agents or employees of Lessee or City, by reason of death or injury to persons, or loss or damage to property, resulting from Lessee's operation hereunder, regardless of whether such claims, demands, suits or judgments arise out of matters of strict liability, or from Lessee's sole negligence, or from City's sole negligence, or from some combination of the foregoing. Lessee shall, at its sole risk and expense, defend any and such suits and actions with legal counsel reasonably acceptable to City. 15.2. Commercial General Liability. Lessee shall obtain and maintain continuously in effect at all times during the term hereof minimum commercial general liability insurance in the amounts of at least the following: General Liability $ 1,000,000 per occurrence $ 5,000,000 aggregate Bodily Injury $ 1,000,000 per person $ 1,000,000 per accident Property Damage $ 5,000,000 This insurance policy shall protect City against liability which may accrue against City under this Lease. 15.3. Property Insurance. Lessee shall also obtain and maintain continuously in effect at all times during the term hereof, casualty insurance upon the improvements thereon in such amounts as to insure the repair or replacement thereof in the event of casualty. 15.4. Excess Umbrella Insurance. Lessee shall obtain and maintain continuously in effect at all times during the terms hereof, excess umbrella liability insurance in the amount of $5,000,000. 15.5. Additional Insureds. All insurance policies required herein shall be drawn in the name of Lessee, with City and its employees named as additional insureds. 15.6. Certificates. Lessee shall furnish City with certificates of insurance evidencing that all of' the policies required herein are in full force and effect and provide the required coverage and limits of insurance. The certificates shall provide that any company issuing an insurance policy shall provide not less than 30 days advance notice in writing to City and Lessee of cancellation, non -renewal or material change in the policy. In addition, Lessee shall immediately provide written notice to City upon receipt of notice of cancellation of an insurance policy, or of a decision to terminate or alter any insurance policy. 12 15.7. Survival. The provisions of Article 15 herein shall survive the termination of this Lease Agreement. 16. DEFAULT/ABANDONMENT OF PREMISES 16.1. In the event Lessee shall (1) abandon the Premises or (2) default in performance of any of the covenants or conditions required herein to be kept and performed by Lessee and such default continues for a period of fifteen (15) days, City shall have the right to terminate this Lease. 16.2. In the event of a default, City agrees to give Lessee fifteen (15) days written notice of its intention to terminate the Lease, and Lessee will have fifteen (15) days within which to cure such default and thereby avoid termination; provided City will allow Lessee a greater period of time which may be reasonably necessary, in City's determination, to cure a default which can not be cured within fifteen (15) days if Lessee specifies to City with ten (10) days of receiving notice of default the attempted cure being made by Lessee, the reasons for delay and the estimated time such default may take to cure. Any extension granted by City shall be conditioned upon Lessee's exercising all due diligence in proceeding to cure said default. 16.3. Notwithstanding the foregoing, the absolute cure period for any monetary default by Lessee shall be five (5) days from the date of notice of default by the City. More than three monetary defaults by Lessee in one year shall entitle City to terminate this Lease without further notice or opportunity to cure. 17. SURRENDER OF PREMISES/ABANDONED PROPERTY 17.1. The Premises and any buildings and improvements including, but not limited to those constructed by Lessee and any fixtures including, but not limited to, those installed by Lessee, shall remain the property of City and at all times during this Lease shall remain in good condition (reasonable wear and tear, acts of God, or casualties associated with civil disorders or military activities excepted). Lessee agrees to pay any costs of restoration of the Premises due to removal of the equipment and temporary improvements (reasonable wear and tear, acts of God, or casualties associated with civil disorders or military activities excepted) upon termination of this Lease. 17.2. Lessee agrees to promptly and peacefully deliver possession of the Premises and all buildings, 'improvements and fixtures to City upon termination of this Lease. All items of personal property, including furniture, machinery, equipment and trade fixtures remaining in or on the Premises after the expiration of fifteen (15) days following the termination of this Lease shall be deemed abandoned by Lessee and shall become the property of City. 13 18. MISCELLANEOUS 18.1. Invalid or Illegal Provisions. If any clause or provision of this Lease is determined to be illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intent of the parties that the remainder of this Lease shall not be affected. 18.2. Books and Records. 18.2.1. For the purpose of ascertaining the amounts payable to City under the terms of this Lease, Lessee will prepare and maintain during the term of this I pace and for at least three (3) years following the end of such term, adequate records showing receipts and revenues from all such sales and other transactions on or from the Premises conducted by Lessee during those periods of use by Lessee authorized by this Lease. 18.2.2. Lessee will also maintain during the term of this Lease Agreement and for at least three (3) years at the termination of this Lease, all sales, use, value- added, gross receipts and occupation -tax returns with respect to each year covered by this Lease and all pertinent original sales records. 18.2.3. City and its authorized representatives may examine all such records during regular business hours of Lessee. Lessee agrees to make such records available for inspection in Corpus Christi, Texas upon reasonable notice. 18.3. Force Majeure. 18.3.1. Neither party hereto shall be liable to the other for any failure, delay, or interruption in the performance of any of the terms, covenants or conditions of this Iease due to causes beyond the control of that party including, without limitation, strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage, or any other circumstance for which such party is not responsible or which is not in its power to control (a "Force Majeure" event.) 18.3.2. The parties agree that they will use and continue to use their best efforts to remove, change, correct, repair, etc. the condition of Force Majeure preventing performance in order to make performance under this Lease once again possible. 18.3.3. Should the condition of Force Majeure render the fulfillment of this Lease by City impossible, then the term of this Lease shall end and Lessee shall be liable to pay rent only up to the time of such termination and make the termination payment under the equipment lease -purchase agreement as required in Section 1.3. 14 18.4. Notices. Any notice or demand that either party desires or is required to be given by this Lease shall be in writing and shall be deemed sufficient and delivered at the end of three business days if sent to United States certified mail, return receipt requested, postage prepaid to the following: If to City of Corpus Christi: If to Lessee: City Manager City of Corpus Christi 1201 Leopard Street P. 0. Box 9277 Corpus Christi, Texas 78469 Corpus Christi Professional Hockey Club, Inc. #210 1628 West 1st Avenue Vancouver, B.C., Canada V6J 1G1 18.5. Amendments. No modification of this Lease shall be binding unless it be in writing and executed in due form by all of the parties hereto. 18.6. Relationship of City and Lessee. The relationship between City and Lessee at all times shall remain solely that of landlord and tenant and shall not be deemed a partnership or joint venture. Nothing in this Lease shall be construed as Lessee being an agent or employee of City in any manner whatsoever. No part of this Lease shall be construed as giving Lessee any authority to bind City in any manner whatsoever. 18.7. Headings. The paragraph headings contained herein are for convenience and reference and are not intended to define, extend or limit the scope of any provisions of this Pace. 18.8. Interpretation. This Agreement shall be construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Nueces County, Texas. Exclusive venue for the resolution of any dispute under this Lease shall be in the state district courts in Nueces County, Texas. 18.9. Holdover. It is understood and agreed by and between City and Lessee that any holding over by Lessee of the Premises after the expiration of this Lease shall operate and be construed only as a tenancy from month to month at a rate equal to 150% of the last rentals due under this Lease. 18.10. The City agrees not to lease any other of its facilities, now or in the future, to any other party for professional hockey during the term of this J Pace. In the event Lessee temporarily vacates the Premises for one or more seasons by mutual agreement with the City in order to occupy new facilities, this clause shall remain in force for the duration of the term of this Lease. 15 18.11. Entire Agreement. This Lease Agreement constitutes the entire agreement between the parties hereto. EXECUTED in duplicate originals on this the day of 1997. ATTEST: CITY OF CORPUS CHRISTI, TEXAS By: By: Armando Chapa Bill Hennings City Secretary City Manager APPROVED AS TO LEGAL FORM: By: James R. Bray City Attorney CORPUS CHRISTI PROFESSIONAL HOCKEY CLUB, INC. By: J. Johnson President 16 Ek IT ' k/VYYC: U� E x 1 T J Err Exhibit A COLISEUM TV..' P 1 iiws[ WM(l evsc EXHIBIT B IMPROVEMENTS MADE TO MEMORIAL COLISEUM 1. Single Feed Icemat, Insulation, Vapor Barrier, System Glycol Charge. 2. Chiller package, pumps, expansion tanks, controls, header system, and machine room piping. 3. Freon 22, fittings, hose, pipe insulation, digital read out system, and all required hardware. 4. Dasher board system, players, penalty and scorers boxes, 8 ft. glass, benches, scorers table, sleeves and mounting hardware, goal judges boxes. 5. Goals, nets, pegs, line kit, zone kit, ice paint, and ice malting tools. 6. Seven carts for glass system and board removal and storage. 7. Two ice re -surface units. 8. Homosote insulated floor covering. 9. Arena Scoreboard Package. 10. Lighting equipment. 1 EXHIBIT C CONDITIONAL ASSIGNMENT OF ARENA LEASE THIS AGREEMENT is made effective concurrently with the arena lease for the Memorial Coliseum, City of Corpus Christi, and forms part of that agreement AMONG: CITY OF CORPUS CHRISTI, a municipal corporation, whose address is 1201 Leopard Street, P 0 Box 9277, Corpus Christi, Texas 78469 (the "Arena Owner") AND: CORPUS CHRISTI PROFESSIONAL HOCKEY CLUB, INC. a Texas Corporation, having its office at #210 1628 West 1st Avenue, Vancouver, B.C., Canada V6J 1G1 (the "Team Owner") AND: WESTERN PROFESSIONAL HOCKEY LEAGUE, INC., a Texas Corporation, having its head office at 100-14040 North Cave Creek Road, Phoenix, Arizona 85022 ("WPHLI") WHEREAS: A. By a lease agreement dated as of , 1997 (the "Arena Lease"), the Team Owner did lease from the Arena Owner the premises therein described (the "Leased Premises") which have a street address of 402 South Shoreline Drive, Corpus Christi, Texas 78401. B. By a license agreement made effective May 1, 1997 (the "WPHL License Agreement"), WPHLI has granted or will grant a license to operate a Western Professional Hockey League ("WPHL") ice hockey team (the "Licensed Team") at the Leased Premises to the Team Owner. The WPHL License Agreement contains a condition that this agreement be executed by the Arena Owner, the Team Owner and the WPHL concurrently with the Team Owner executing the Arena License. NOW, THEREFORE, THIS AGREEMENT WITNESSES THAT for valuable consideration (the receipt and sufficiency of which are acknowledged by each of the parties), the parties agree as follows: 1. The Arena Owner acknowledges that execution of the WPHL License Agreement by the WPHLI constitutes a substantial indirect benefit to the Arena Owner, in that revenue generated from operation of the Licensed Team at the Leased Premises will assist the Team Owner to pay amounts payable to the Arena Owner under the Arena Lease. 2. The Arena Owner and the Team Owner certify to the WPHLI that, as of the date hereof: (a) no amendment or addition has been made to the Arena Lease and, accordingly, the executed copy of the Arena Lease herewith provided to WPHLI by the Arena Owner and the Team Owner constitutes the full agreement between the Arena Owner and the Team Owner with respect to use and occupancy of the Leased Premises by the Team Owner. (b) the Arena Lease is in full force and effect; and (c) there is no existing default under the Arena Lease by the Arena Owner or the Team Owner. 3. The Team Owner covenants with WPHLI that the Team Owner will at all times observe and perform all provisions of the Arena Lease and that the Team Owner will not at any time agree to sublease, surrender, amend or add to the Arena Lease without obtaining the WPHLI's prior written consent thereto, which the WPHLI may withhold arbitrarily in the case of a proposed sublease or surrender but will not withhold arbitrarily or unreasonably in the case of a proposed amendment or addition to the Arena Lease. 4. The Arena Owner agrees with the WPHLI that: (a) the Arena Owner will not sell, assign or subleacr, either in whole or in part, its interest in the Incrd Premises or the Arena 1Pace without arranging for the execution of an agreement substantially in the form of this agreement among the purchaser, assignee or sublessee, the Team Owner and the WPHLI at least 21 days before completion of such sale, assignment or sublease; (b) the Arena Owner will not agree to any amendment or addition to the Arena Lease without obtaining the prior written consent of the WPHLI thereto, such consent not to be withheld unreasonably. (c) the Arena Owner will not accept a surrender of the Arena Lease, or seek to terminate the Arena Lease without giving at least fifteen (15) days prior written notice thereof to the WPHLI, during which period the WPHLI may cure any default of the Team Owner. 2 (d) if the Arena Owner at any time gives written notice of default under the Arena I pace (a "Default Notice") to the Team Owner, then the Arena Owner will concurrently give a copy of the Default Notice to the WPHLI; and (e) in the event of default under the Arena IPase by the Team Owner (a "Default"), the Arena Owner will not accelerate future payments until it has given the WPHLI at least fifteen (15) days prior written notice and the opportunity, during such period, to cure the Default and, at its option, to become the Team Owner under the Arena Lease. 5. If the WPHLI, or a receiver or receiver -manager appointed pursuant to the WPHL License Agreement, takes possession of the Leased Premises pursuant to a Default of the WPHL License Agreement by the Team Owner, then the Arena Owner, provided that all payments owing under the Arena Lease have been paid in full through the date of any such assignment and the proposed new licensee possesses the same or similar financial and professional experience as the Team Owner, hereby irrevocably consents to an assignment of the Arena Lease to a purchaser whom the WPHLI approves to becomes its new licensee in place of the Team Owner, and upon such new licensee's agreeing in writing to be bound by the Arena Lease, the WPHLI and its receiver or receiver -manager (if applicable) will be released from further liability thereunder. WPHLI agrees to provide to the City Manager information on the financial and professional qualifications of the proposed new licensee to show compliance with the above requirements. The new team owner shall execute a new arena lease, with the same terms and conditions plus any amendments as the prior Team Owner had executed. The new arena lease shall then be substituted as the official lease on file with the City Secretary. 6. During any curative period, the Arena Owner will not distrain against or remove from the Leased Premises any chattels, equipment, furnishings or other property of the Team Owner, without the prior written consent of the WPHLI. 7. Immediately upon receiving a Default Notice, the Team Owner will forward a copy of it to the WPHLI with a brief written explanation of what the Team Owner intends to do or not do regarding the Default or Defaults alleged thereby. 8. The Team Owner consents to all provisions of this agreement which create rights and obligations between the Arena Owner and the WPHLI. 9. Any notice required or permitted to be given hereunder shall be in writing addressed to the party to whom it is to be given (the "intended recipient") and shall be effective upon (a) delivery to the address of the intended recipient shown on page 1 of this agreement or to such other address in one of the continental States of the United States of America as the intended recipient may have specified by notice to the other parties given in the same manner, or (b) three 3 days following the deposit of such notice in the U.S. mail, postage prepaid, certified mail, return receipt requested, properly addressed to the address of the intended recipient as stated on page 1 or such other address as may be specified in the manner provided above. 10. This agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, permitted successors and permitted assigns. 11. This agreement may be executed in two or three counterparts, each of which will constitute an original and all of which will constitute one and the same agreement. Any party may execute this agreement by utilizing facsimile transmission facilities and such execution shall constitute sufficient execution hereof by that party. 12. This agreement shall be deemed to have been made in the State of Texas and shall be construed and interpreted according to the laws of Texas and the Federal laws of the United States of America in force therein, which the parties hereby choose to be the proper law of this agreement. This agreement is performable in Nueces County, Texas, and the Courts of the State of Texas in Nueces County, shall have jurisdiction to hear all matters relating to this agreement. IN WITNESS WHEREOF, the parties have executed this agreement as of the effective date first above written. ATTEST: CITY OF CORPUS CHRISTI, TEXAS By: By: Armando Chapa Bill Hennings City Secretary City Manager APPROVED AS TO LEGAL FORM: By: James R. Bray City Attorney CORPUS CHRISTI PROFESSIONAL HOCKEY CLUB, INC. By: J. Johnson President 4 F: \ I 1 \AGMT.97\HOCKEY.171-15 WESTERN PROFESSIONAL HOCKEY LEAGUE, INC. By: R. Kozuback, President 5 State of Texas County of Nueces } } PUBLISHER'S AFFIDAVIT CITY OF CORPUS CHRISTI ss: Ad # 1421492 PO # Before me, the undersigned, a Notary Public, this day personally came Darrell G. Coleman, who being first duly sworn, according to law, says that he is Vice - President and Chief Financial Officer of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE NO. 022967 which the annexed is a true copy, was inserted in the Corpus Christi Caller -Times on 29TH day(s) of JUNE, 1997. ONE (1) Time(s) $53.46 Vice -President and Chief Financial Officer Subscribed and sworn to before me this 18TH �day(s)'ice1s)of July, 1997. t Q \\J v \�1� l Notary Public, Nueces County, Texas CONNIE HARALSON Print or Type Name of Notary Public My commission expires on 5/14/01. J O 0 ;Win1.911 24n�16p^ 2o3�i1V:_:��ggm�i a- voi�v g 18dmn1$ Situ i $ 31 State of Texas County of Nueces } } PUBLISHER'S AFFIDAVIT CITY OF CORPUS CHRISTI ss: Ad # 1355984eA PO# Before me, the undersigned, a Notary Public, this day personally came Darrell G. Cole+man, who being first duly sworn, according to law, says that he is Vice -President and Chief Financial Officer of the Corpus Christi Caller -Times, a daily newspaper published at Corpus Christi in said County and State, generally circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio San Patricio, Victoria and Webb Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE ON FIRST READING...SOUTHERN HOCKEY MANAGEMENT, INC. in which the annexed is a true copy, was inserted ip. the Corpus Christi Caller - Times on the 1ST day(s) of JUNE, 1997. ONE (1) Time(s) $45.54 \o�ENARAtSoo��J V�C�.47 _o�PPV PUSL? %APP" z\ y sr r qrF OFA fXP\9 .•' � Vice -President and Chief Financial Officer Subscribed and sworn to before me this 11TH day(s) of June, 1997. cu,c_a_t_ecy Notary Public, Nueces County, Texas CONNIE HARALSON Print or Type Name of Notary Public My commission expires on 5/14/01.