HomeMy WebLinkAboutC2022-223 - 9/20/2022 - Approved MANAGEMENT AGREEMENT
between
The City of Corpus Christi,Texas, a Texas home-rule municipality
and
GLOBAL SPECTRUM, L.P.
d/b/a OVG360
Dated: September 20, 2022
SCANNED
MANAGEMENT AGREEMENT
This Management Agreement is made as of the 20th day of September 2022,by and between The
City of Corpus Christi, Texas, a Texas home-rule municipality ("Owner"), and Global Spectrum, L.P., a
Delaware limited partnership d/b/a OVG360("OVG"). Owner and OVG are sometimes referred to herein
as a "party"or the"parties".
RECITALS
WHEREAS, Owner owns a sports and entertainment complex consisting of a 2,500-seat
auditorium,a 76,500-sq.foot convention center,and a 10,000-seat multi-purpose arena,currently known
as the American Bank Center located at 1901 N.Shoreline Blvd., Corpus Christi,Texas (the"Facility");
WHEREAS, Owner desires to engage OVG to manage and operate the Facility on behalf and for
the benefit of Owner,and OVG desires to accept such engagement,pursuant to the terms and conditions
contained herein; and
WHEREAS,Owner and OVG entered into a Management Agreement,dated June 14,2022,for the
short term provision of management services at the Facility(the"Short Term Agreement"),and beginning
on the Effective Date, this Agreement shall supersede and replace the Short Term Agreement in respect
of OVG's provision of management services as set forth herein.
NOW THEREFORE,for and in consideration of the foregoing, the mutual covenants and promises
hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged,the parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions. For purposes of this Agreement, the following terms have the
meanings referred to in this Section:
Affiliate: A person or company that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, a specified person or company. An entity
is not an Affiliate solely by virtue of the fact that Owner's City Council appoints members to the entity's
board nor is an entity an Affiliate if it works as an independent contractor of the Owner.
Agreement: This Management Agreement, together with all schedules and exhibits attached
hereto, each of which are incorporated herein as an integral part of this Agreement.
Buyout Amount: shall have the meaning given to such term in Section 11.5 of this Agreement.
Capital Improvements: Permanent improvements to the Facility, including any construction as
defined by Texas Labor Code §406.096 and replacement of permanent structures and their components.
Capital Improvements include any work that requires the use of an architect or an engineer in accordance
with the Texas Occupations Code and any work with an aggregate cost in excess of$50,000.This definition
includes the remodel,replacement,or alteration of permanent improvements at the Facility,but does not
include Maintenance and Repair.
Commercial Rights:Naming rights,sub-naming rights,entitlement rights,pouring rights,branding
rights, advertising, sponsorships, premium seating (including luxury suites, club seats, loge boxes and
party suites,as applicable)and similar commercial rights at or with respect to the Facility.
Commercial Rights Fee: shall have the meaning given to such term in Section 3.3 of this
Agreement.
CPI: "Consumer Price Index"for the South region CPI-U, all items index, not seasonally adjusted
as published by the United States Department of Labor,Bureau of Labor Statistics or such other successor
or similar index.
Effective Date:shall have the meaning given to such term in Section 4.1 of this Agreement.
Emergency Repair: The repair of a condition which, if not performed immediately, creates an
imminent danger to persons or property and/or an unsafe condition at the Facility threatening persons or
property.
Event Account: A separate interest-bearing account in the name of Owner and under Owner's
Federal ID number in a local qualified public depository,to be designated by Owner,where advance ticket
sale revenue and rental deposits are deposited by OVG.
Event of Force Majeure: An act of God, fire, earthquake, hurricane, flood, riot, civil commotion,
terrorist act, terrorist threat, storm, washout, wind, lightning, landslide, explosion, epidemic, inability to
obtain materials or supplies, accident to machinery or equipment, pandemic or epidemic, any law,
ordinance, rule, regulation, or order of any public or military authority stemming from the existence of
economic or energy controls,war or hostilities,a labor dispute which results in a strike or work stoppage
affecting the Facility or services described in this Agreement, or any other cause or occurrence outside
the reasonable control of the party claiming an inability to perform and which by the exercise of due
diligence could not be reasonably prevented or overcome.
Existing Contracts: Service Contracts, Revenue Generating Contracts, and other agreements
relating to the day-to-day operation of the Facility existing as of the Effective Date,as set forth on Exhibit
B attached hereto.
Facility:shall have the meaning given to such term in the Recitals to this Agreement,and shall be
deemed to include the entire American Bank Center complex, including but not limited to the (i)Arena,
the Bayfront Convention Center, and the Selena Auditorium, including premium seating areas, meeting
and conference rooms, locker rooms, box office,common areas, lobby areas,executive and other offices,
storage and utility facilities, and (ii) the entrances,grounds, sidewalks and parking areas of the Arena as
specifically identified on Schedule 1 hereto.
FF&E: Furniture,fixtures and equipment to be procured for use at the Facility.
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General Manager: The employee of OVG acting as the full-time on-site general manager of the
Facility.
Improvements and Equipment: shall have the meaning given to such term in Section 11.4 of this
Agreement.
Incentive Fee: shall have the meaning given to such term in Section 3.2 of this Agreement.
Initial Investment: shall have the meaning given to such term in Section 11.4 of this Agreement.
Investment:shall have the meaning given to such term in Section 11.4 of this Agreement.
Laws: federal, state, local and municipal laws, statutes, rules, regulations and ordinances
applicable to the Facility or either party.
Maintenance and Repair:Scheduled, periodic,or day-to-day work that is necessary to sustain or
support safe, efficient, continuous operation of the Facility or to prevent the decline, failure, lapse, or
deterioration of the Facility, equipment, machinery, or landscaping. Maintenance and Repair includes
replacement of equipment, machinery, or components that are equal in grade, quality, and capacity
without the addition of newer, upgraded equipment, machinery, or components with an aggregate cost
of less than$50,000,except that for any Maintenance or Repair work that has an aggregate cost in excess
of$5,000, if funding is not available in the current Operating Budget,OVG may seek funding from Owner
and will not be obligated to complete such work unless and until such funding is made available to OVG,
and any failure of OVG to perform as a result of thereof shall not be deemed a default hereunder. For
avoidance of doubt,Maintenance and Repair does not constitute any Upgrades or Capital Improvements,
to the Facility.
Management-Level Employees: The General Manager, Assistant General Manager, Business
Manager (or employees with different titles performing similar functions), and any department head
employed by OVG to perform services at the Facility (including, if applicable, employees performing the
function of the Director of Operations, Director of Sales and Marketing, Director of Security, Finance
Director, Event OVG and Director of Food and Beverage).
Monthly Management Fee:The fixed monthly fee Owner shall pay to OVG under this Agreement,
as more fully described in Section 3.1 of this Agreement.
Notice of Underperformance: shall have the meaning given to such term in Section 2.4 of this
Agreement.
Operating Account: A separate interest-bearing account in the name of Owner and under
Owner's Federal ID number in a local qualified public depository, to be designated by Owner, where
Revenue is deposited and from which Operating Expenses are paid.
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Operating Budget:A line-item budget for the Facility that includes a projection of Revenues and
Operating Expenses, presented on a monthly and annual basis.
Operating Expenses: All expenses incurred by OVG in connection with its operation,
management, staffing, promotion, and maintenance of the Facility, including but not limited to the
following: (i) employee payroll, benefits, relocation costs, severance costs, bonus and related costs, (ii)
cost of operating supplies,(iii)advertising,marketing,group sales,and public relations costs,(iv)cleaning
expenses, (v) data processing costs, (vi) dues, subscriptions and membership costs, (vii) printing and
stationary costs,(viii)postage and freight costs,(ix)equipment rental costs,(x)repairs,maintenance,and
equipment servicing, (xi) security expenses, (xii) telephone and communication charges, (xiii) cost of
employee uniforms and identification, (xiv) travel and entertainment expenses of OVG employees, (xv)
exterminator,snow and trash removal costs(xvi)computer, software, hardware and training costs, (xvii)
parking expenses, (xviii) utility expenses, (xix)office expenses, (xx)audit and accounting fees, (xxi) legal
fees and costs as set forth in Section 14.4, (xxii)all bond and insurance costs (including but not limited to
personal property, liability, and worker's compensation insurance, as well as the other insurance
coverages required hereunder)that are required specifically for this Agreement, including the amount of
any deductible or self-insured retention under insurance policies, (xxiii) commissions and all other fees
payable to third parties (e.g. commissions relating to food, beverage and merchandise concessions
services and Commercial Rights sales, including the Commercial Rights Fee),(xxiv)cost of complying with
any Laws, (xxv) costs incurred under Service Contracts and other agreements relating to Facility
operations,(xxvi)applicable Taxes, and(xxvii)the Monthly Management Fee.
The term"Operating Expenses"does not include debt service on the Facility,Capital Expenditures,
the Incentive Fee, property taxes, property insurance on the Facility itself, or the contents within the
Facility owned by Owner, all of which costs shall be borne by Owner and, if incurred by OVG, shall be
promptly reimbursed to OVG by Owner.
Operating Year:Each 12-month period during the Term commencing on October 1 and concluding
on the following September 30.
OVG:shall have the meaning given to such term in the Recitals to this Agreement.
Owner:shall have the meaning given to such term in the Recitals to this Agreement.
Performance Measures: shall have the meaning given to such term in Section 2.4 of this
Agreement.
Renewal Investment: shall have the meaning given to such term in Section 11.4 of this
Agreement.
Revenue: All revenues generated by OVG's operation of the Facility, including but not limited to
event ticket proceeds income, rental and license fee income, merchandise income, gross food and
beverage income, gross income from any sale of Commercial Rights, gross service income, equipment
rental fees, box office income, and miscellaneous operating income, but shall not include event ticket
proceeds held by OVG in trust for a third party promoter/licensee and paid to such third party.
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Revenue Generating Contracts:Vendor,concessions and merchandising agreements,user/rental
agreements, booking commitments, licenses, and all other contracts or agreements generating revenue
for the Facility and entered into in the ordinary course of operating the Facility.
Short Term Agreement: shall have the meaning given to such term in the recitals of this
Agreement.
Service Contracts: Agreements for services to be provided in connection with the operation of
the Facility, including without limitation agreements for ticketing, web development and maintenance,
computer support services, FF&E purchasing services, engineering services, electricity, steam, gas, fuel,
general maintenance, HVAC maintenance, telephone, staffing personnel including guards, ushers and
ticket-takers, extermination, elevators, stage equipment, fire control panel and other safety equipment,
snow removal and other services which are deemed by OVG to be either necessary or useful in operating
the Facility.
Taxes: Any and all applicable governmental assessments, franchise fees, excises, license and
permit fees, levies,charges and taxes, of every kind and nature whatsoever,which at any time during the
Term may be assessed, levied, or imposed on, or become due and payable out of or in respect of, (i)
activities conducted on behalf of Owner at the Facility, including without limitation the sale of
concessions, the sale of tickets, and the performance of events (such as any applicable sales and/or
admissions taxes,use taxes,excise taxes,occupancy taxes,employment taxes,and withholding taxes),or
(ii) any payments received from any holders of a leasehold interest or license in or to the Facility, from
any guests,or from any others using or occupying all or any part of the Facility.
Term:shall have the meaning given to such term in Section 4.1 of this Agreement.
Trailing Commercial Rights Commission:shall have the meaning given to such term in Section
3.3 of this Agreement.
Upgrades:New, updated equipment and replacement of any non-permanent improvements to
the Facility, including flooring, painting,and landscaping with an aggregate cost in excess of$5,000.
ARTICLE 2
SCOPE OF SERVICES
Section 2.1 Engagement. Owner hereby engages OVG during the Term to act as the sole and
exclusive manager and operator of the Facility, subject to and as more fully described in this Agreement,
and, in connection therewith, to perform the services described in Exhibits A and A-1 attached hereto.
OVG hereby accepts such engagement,subject to the terms herein.
Section 2.2 Commercial Rights Sales. In addition to OVG's other rights and duties hereunder,
OVG shall act as the sole and exclusive representative for marketing of the Commercial Rights. OVG will
keep Owner apprised of its sales prospects and the status of any potential sales of Commercial Rights.
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Additionally,OVG shall deliver to Owner monthly reports detailing OVG's sales hereunder of Commercial
Rights. Owner hereby acknowledges and agrees that OVG is not guaranteeing any level of purchase of,
or the receipt of payment for, any Commercial Rights marketed by OVG pursuant to this Agreement.
Section 2.3 Limitations on OVG's Duties. OVG's obligations under this Agreement are
contingent upon and subject to Owner making available, in a timely fashion, the funds budgeted for
and/or reasonably required by OVG to carry out such obligations during the Term. OVG shall not be
considered to be in breach or default of this Agreement, and shall have no liability to Owner or any other
party, in the event OVG does not perform any of its obligations hereunder due to failure by Owner to
timely provide such funds.
Section 2.4 Performance Measures. In performing its obligations hereunder, OVG agrees to
be evaluated based on the performance measures 1 through 5 listed in Exhibit A-2 (the "Performance
Measures").OVG agrees that, during each Operating Year, it will use its commercially reasonable efforts,
subject in all instances to Owner's continued performance hereunder (including, without limitation,
funding a mutually agreed Operating Budget, each Operating Year) to meet the Performance Measures
as mutually agreed by Owner and OVG during the budget process each Operating Year. For purposes of
Performance Measures 1, 2, 3 and 5, OVG will be considered to have met that goal if it achieves at least
80%of the stated number or dollar amount. If OVG fails to meet at least three of the five Performance
Measures in any Operating Year, and such failure is not due in whole, or in part, to Force Majeure or any
other cause reasonably outside of OVG's control,the Owner may provide written notice to OVG outlining
with reasonable detail and substantiation any missed Performance Measures within 90 days of the end of
such Operating Year(a"Notice of Underperformance")with such notice to include an outline of how OVG
may improve its performance under such Performance Measures during the following Operating Year. If,
during such following Operating Year OVG again fails to meet at least three of the five Performance
Measures,Owner may terminate this Agreement in accordance witti and subject to Section 4.2(d) below.
ARTICLE 3
COMPENSATION
Section 3.1 Monthly Management Fee. As consideration for the performance by OVG of its
duties hereunder,Owner shall pay OVG a fee each month during the Term equal to$12,000(the"Monthly
Management Fee"). The Monthly Management Fee, shall be payable to OVG in advance, beginning on
the Effective Date, and payable on the first day of each month thereafter(prorated as necessary for any
partial months), and shall be remitted by check or electronic payment as directed by OVG. Beginning in
the second Operating Year, the Monthly Management Fee shall be increased over the Monthly
Management Fee from the previous Operating Year in accordance with the percentage increase in the CPI
over the previous Operating Year up to 3% annually (i.e., the difference, expressed as a percentage,
between the value of the CPI published most recently prior to the commencement of the preceding
Operating Year and the value of the CPI published most recently prior to the commencement of the
Operating Year for which the CPI adjustment will apply).
Section 3.2 Incentive Fee. In addition to the other fees described herein, OVG shall be
entitled to receive an Incentive Fee each full or partial Operating Year of the Term equal to 20% of
improvement in Revenue in any Operating Year over the Incentive Fee Benchmark (the"Incentive Fee"),
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excluding only Revenue derived exclusively from the sale of Commercial Rights,which shall be handled in
accordance with Section 3.3. The "Incentive Fee Benchmark"shall equal$4,000,000 which is the agreed
benchmark based on the average Revenue from fiscal years 2017, 2018, and 2019, adjusted for inflation
based on the CPI.The parties agree that for purposes of calculating the Incentive Fee Benchmark and the
Incentive Fee each Operating Year, the Commercial Rights Fee shall be excluded. The Incentive Fee
Benchmark, once established, will remain unchanged throughout the Initial Term, except that it shall be
pro-rated for any Operating Year(s) of less than a full 12 months based on the actual number of days
elapsed in such Operating Year(s) out of 365. Prior to the Renewal Term (if applicable) the Incentive Fee
Benchmark shall be renegotiated by OVG and Owner in good faith based on the Revenue averages for the
Initial Term, with such renegotiated Incentive Fee Benchmark to remain in effect for the full Renewal
Term. Owner shall pay OVG the Incentive Fee no later than 90 days following the receipt of OVG's annual
audit.
Section 3.3 Commercial Rights Fee. In consideration for OVG's marketing of the Commercial
Rights as described in Section 2.2, OVG shall receive 20% of all Revenue (including cash and budget-
relieving trade, with such trade valued at its retail price in an arms-length transaction) from the sale of
Commercial Rights (the "Commercial Rights Fee"). The Commercial Rights Fee shall be paid to OVG for
all years of each Commercial Rights agreement secured by OVG, including any years that extend beyond
the end of the Term of this Agreement. The Commercial Rights Fee due to OVG following the conclusion
of the Term is referred to herein as the "Trailing Commercial Rights Commissions". The Commercial
Rights Fee shall be paid to OVG on a bi-annual basis, on or about the last day of June and December each
calendar year, and OVG shall be entitled to pay itself such amount from the Operating Account upon
providing documentation of such Commercial Rights Fee to Owner.The parties shall also hold a settlement
at the conclusion of the Term,at which time Owner shall pay to OVG any portion of the Commercial Rights
Fee due to OVG but not yet paid to OVG as of such date (other than Trailing Commercial Rights
Commissions). Following the conclusion of the Term, Trailing Commercial Rights Commissions shall be
paid to OVG within 30 days of receipt by Owner of the corresponding Revenue arising from any
Commercial Rights agreements which were secured by OVG. In connection with the Commercial Rights
Fee and Trailing Commercial Rights Commissions, Owner agrees (i) to maintain books and records in
accordance with generally accepted accounting practices,and(ii)to permit OVG to audit and inspect such
books and records during normal business hours and on reasonable advance notice, to confirm amounts
due hereunder,including,following the conclusion of the Term (as it relates to Trailing Commercial Rights
Commissions). To the extent any such audit reveals an underpayment Owner shall promptly pay OVG the
amount of the underpayment, and if such underpayment to OVG is greater than two percent (2%) of
amounts owed to OVG, Owner shall reimburse OVG for the reasonable costs of such audit. The terms in
this Section 3.3 shall survive termination or expiration of this Agreement.
Section 3.5 Late Payments. Owner will ensure that all payments required under this
Agreement are made in accordance with the Texas Prompt Payment Act. Late payments will accrue
interest in accordance with the Texas Prompt Payment Act.
ARTICLE 4
TERM;TERMINATION
Section 4.1 Term;Renewal. The term of this Agreement shall begin effective October 1,2022
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("Effective Date") and conclude on September 30, 2027 (the "Initial Term"). This Agreement will renew
automatically for an additional 5-year period beginning October 1, 2027 and ending September 30,2032
(the"Renewal Term"), unless Owner provides written notice of non-renewal to OVG on or before March
1, 2027. The Initial Term, together with the Renewal Term (as applicable) shall be referred to herein as
the"Term."
Section 4.2 Termination. This Agreement may be terminated:
(a) by either party upon 30 days written notice, if the other party fails to perform or comply
with any of the material terms,covenants, agreements or conditions hereof,and such failure is not cured
during such 30 day notification period, provided, however, if such failure cannot reasonably be cured
within such 30 day period,then a longer period of time shall be afforded to cure such breach,up to a total
of 90 days, provided that the party in default is diligently seeking a cure and the non-defaulting party is
not irreparably harmed by the extension of the cure period;
(b) by either party immediately by written notice upon the other party being judged bankrupt
or insolvent, or if any receiver or trustee of all or any part of the business property of the other party
shall be appointed and shall not be discharged within 120 days after appointment,or if either party shall
make an assignment of its property for the benefit of creditors or shall file a voluntary petition in
bankruptcy or insolvency,or shall apply for bankruptcy under the bankruptcy or insolvency Laws now in
force or hereinafter enacted, Federal, State or otherwise, or if such petition shall be filed against either
party and shall not be dismissed within 120 days after such filing;
(c) by Owner upon 30 days written notice and subject to payment of the Buyout Amount
prior to the effective date of termination if during any Operating Year,Owner fails to allocate appropriate
funds sufficient to fund the full Operating Budget for the following Operating Year;provided if such funds
are subsequently allocated within 60 days following such termination,then such termination right shall
be voided,and the Agreement shall remain in full force and effect;
(d) by Owner upon 120 days written notice, and subject to payment of the Buyout Amount
prior to the effective date of termination if OVG fails to meet the requisite Performance Measures during
at least 2 consecutive Operating Years, as set forth in Section 2.4; provided that Owner must exercise
such right within 6 months of the conclusion of the second Operating Year or shall be deemed to have
waived such right; or
(e) as otherwise specifically provided for herein.
Section 4.3 Effect of Termination. Upon expiration or termination of this Agreement,for any
reason,the following shall apply:
(a) OVG shall promptly discontinue the performance of all services hereunder, and make
available to Owner all data, electronic files, documents, procedures, reports, estimates, summaries, and
other such information and materials with respect to the Facility as may have been accumulated by OVG
in performing its obligations hereunder, provided that (i) OVG shall own and may retain all employment
files/records relating to employees of OVG during the Term,and(ii)OVG may retain copies of all materials
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pertinent to its operation of the Facility during the Term, such as materials documenting its performance
and those relating to claims or potential claims that have been or may be asserted related to OVG's
operation of the Facility, including contracts and event incident reports.
(b) Owner shall promptly pay OVG (i) all fees due OVG up to the date of termination or
expiration, including the Monthly Management Fee through the last month in which OVG provides
services and a pro-rated portion of the Incentive Fee for the last Operating Year if not a full 12-months,
and (ii) all Operating Expenses incurred by OVG through the end of the Term that have not previously
been paid by Owner or reimbursed to OVG, including the cost of accrued but unused vacation time to the
extent due under OVG's policies to any employees whose employment is ceasing with OVG as a result of
expiration or termination of this Agreement.
(c) Owner shall reimburse OVG for any actual ordinary and necessary expenses incurred by
OVG in withdrawing from the provision of services hereunder following such termination. Such ordinary
and necessary expenses shall include (i) to the extent any Management-Level Employee's employment
with OVG will cease as a result of the termination or expiration of this Agreement, Owner shall reimburse
OVG for any severance paid to such employees, not to exceed 4 months per employee, and (ii) other
reasonable costs actually incurred by OVG in withdrawing from the provision of services hereunder,such
as those incurred in connection with the termination and/or assignment of Service Contracts, Revenue
Generating Contracts, or other contracts or leases entered into by OVG pursuant to this Agreement.
Owner's payment of such expenses will occur only after OVG has provided reasonable evidence of the
incurrence of such expenses.
(d) without any further action on part of OVG or Owner, Owner shall, or shall cause the
successor Facility manager to, assume all obligations arising after the date of such termination or
expiration, under any Service Contracts, Revenue Generating Contracts, booking commitments and any
other Facility agreements entered into by OVG in furtherance of its duties hereunder.
(e) Owner shall pay to OVG, unconditionally and without set-off, the Buyout Amount as
further described in Section 11.5.
(f) Any obligations of the parties that are specifically intended to survive expiration or
termination of this Agreement shall survive expiration or termination hereof.
ARTICLE 5
OWNERSHIP; USE OF THE FACILITY
Section 5.1 Ownership of Facility, Data, Equipment and Materials. Owner will at all times
retain ownership of the Facility and all Facility FF&E. Any data, equipment, supplies and materials
furnished by Owner to OVG or acquired by OVG as an Operating Expense shall remain the property of
Owner,and shall be returned to Owner when no longer needed by OVG to perform under this Agreement.
Notwithstanding the above, Owner recognizes that OVG intends to license certain third-party software
for use with respect to OVG's obligations at the Facility,the costs of which are paid on a monthly basis,
and upon expiration or termination of the Term such software licenses shall remain with OVG.
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I
Section 5.2 Right of Use by OVG. Owner hereby gives OVG the right and license to use the
Facility, and OVG accepts such right of use, for the purpose of performing the services herein specified,
including the operation and maintenance of all physical and mechanical facilities necessary for, and
related to,the operation, maintenance and management of the Facility. Owner shall provide OVG,at no
cost to OVG,a sufficient amount of suitable office space in the Facility and with such office equipment as
is reasonably necessary to enable OVG to perform its obligations under this Agreement. In addition,
Owner shall make available to OVG,at no cost, parking spaces adjacent to the Facility for all of OVG's full-
time employees and for the Facility's event staff.
Section 5.3 Observance of Agreements. Owner agrees to pay,keep,observe and perform all
payments, terms, covenants, conditions and obligations under any leases, use agreements, bonds,
debentures, loans and other financing and security agreements to which Owner is bound in connection
with its ownership of the Facility.
Section 5.4 Use by Owner. Owner shall have the right to use the Facility or any part thereof
rent-free for meetings, seminars, training classes or other non-commercial uses, provided that Owner
shall promptly reimburse OVG, for deposit into the Operating Account, for any out-of-pocket expenses
incurred by OVG (such as the cost of ushers, ticket-takers, set-up and take-down personnel, security
expenses and other expenses) in connection with such use. Such non-commercial use of the Facility by
Owner shall (i) not compete with or conflict with the dates previously booked by OVG for paying events,
(ii) not consist of normally touring attractions (such as concerts and family shows), and (iii) be booked in
advance upon reasonable notice to OVG pursuant to the Facility's approved booking policies and subject
to availability. Upon request of Owner, OVG shall provide to Owner a list of available dates for Owner's
use of the Facility. To the extent that OVG has an opportunity to book a revenue-producing event on a
date which is otherwise reserved for use by Owner,OVG may propose alternative dates for Owner's event,
and Owner shall use best efforts to reschedule its event to allow OVG to book the revenue-producing
event. In addition to this right to use the Facility by Owner, OVG will make a suite in the Arena available
at no charge for the Owner's exclusive use throughout the term of this Agreement.
Section 5.5 Use of Facility at Direction of Owner. At the direction of the Owner, upon
reasonable advance notice and subject to availability, OVG shall provide use of the Facility or any part
thereof to civic, special interest groups and nonprofit organizations located in Corpus Christi area at
reduced rates, subject to the calendar of events already established at the Facility and provided such
reduced rates are negotiated in good faith.
ARTICLE 6
PERSONNEL
Section 6.1 Generally. All Facility staff and other personnel shall be engaged or hired by OVG,
and shall be employees, agents or independent contractors of OVG (or an Affiliate thereof), and not of
Owner. OVG shall select, in its sole discretion the number, function, qualifications, and compensation,
including salary and benefits,of its employees and shall control the terms and conditions of employment
(including without limitation termination thereof) relating to such employees. OVG agrees to use
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reasonable and prudent judgment in the selection and supervision of such personnel. Owner specifically
agrees that OVG shall be entitled to pay its employees,as an Operating Expense, bonuses and benefits in
accordance with OVG's then current employee policies,which may be modified by OVG from time to time
in its sole discretion. A copy of OVG's current employee policies related to bonus and benefits shall be
provided to Owner upon request.
Section 6.2 General Manager. Personnel engaged by Manager will include a qualified
individual to serve as a full-time on-site General Manager of the Facility. Hiring of the General Manager
shall require the prior approval of Owner,which approval shall not be unreasonably withheld or delayed;
provided, however, in the event of a vacancy in the General Manager position, OVG may temporarily fill
such position with an interim General Manager for up to 90 days without the necessity of obtaining
Owner's approval. The General Manager will have general supervisory responsibility for OVG and will be
responsible for day-to-day operations of the Facility, supervision of employees, and management and
coordination of all activities associated with events taking place at the Facility.
Section 6.3 Non-Solicitation/Non-Hiring. During the Term and for a period of 1 year after the
end of the Term, neither Owner nor any of its Affiliates shall solicit for employment,or hire,any of OVG's
Management-Level Employees. Notwithstanding the foregoing, the Parties acknowledge and agree that
this Agreement will not prohibit non-targeted solicitations through advertising or other publications of
general circulation and employment resulting thereof.
Section 6.4 Use of P-Cards. Upon request of OVG, Owner may make its purchasing credit
cards (P-Cards) available to OVG Management-Level Employees or other Personnel. In authorizing its
Management-Level Employees and Personnel to use such P-Cards, OVG will require such persons to
comply with the Owner's P-Card policies and execute such P-Card user agreements as may be reasonably
required by Owner.
ARTICLE 7
OPERATING BUDGET
Section 7.1 Establishment of Operating Budget. Attached hereto as Exhibit C is the Operating
Budget for the first Operating Year,which Operating Budget is hereby approved by both OVG and Owner.
OVG agrees that it will work with the Owner in setting the Operating Budget each year and, at least 120
days prior to the commencement of each subsequent Operating Year in respect of such year, that it will
prepare and submit to Owner its proposed Operating Budget for such Operating Year,except that,so long
as OVG is in communication with the Owner regarding its Operating Budget, it will not be in default under
this Agreement if it does not provide a full and complete proposed Operating Budget by the deadline.
Each annual Operating Budget shall include OVG's good faith projection of Revenues and Operating
Expenses, presented on a monthly and annual basis,for the upcoming Operating Year. Owner agrees to
provide OVG with all information in its possession necessary to enable OVG to prepare each Operating
Budget.
Section 7.2 Approval of Operating Budget. Each annual Operating Budget shall be subject to
the review and approval of Owner's City Council and/or the Corpus Christi Business and Job Development
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Board (the "Type A Board") in its sole discretion. In order for Owner to fully evaluate and analyze such
budgets or any other request by OVG relating to income and expenses, OVG agrees to provide to Owner
such reasonable financial information relating to the Facility as may be requested by Owner from time to
time. If events occur during any Operating Year that could not reasonably be contemplated at the time
the corresponding Operating Budget was prepared, OVG may submit an amendment to such budget for
review and approval by Owner's City Council and/or the Type A Board. Owner agrees to present the
requested items to the City Council and Type A Board, but cannot guarantee approval of the funding by
either governing body. If Owner's City Council or Type A Board fails to approve any annual Operating
Budget (or any proposed amendment thereto), then, to the extent such governing body provided
reasoning for the action, Owner shall promptly provide OVG the specific reasons therefor and its
suggested modifications to OVG's proposed Operating Budget or amendment in order to make it
acceptable. OVG will not be responsible for any failure to perform to the extent such failure is directly
related to a failure of the Owner's City Council or Type A Board to approve a requested amendment to
the Operating Budget.
Section 7.3 Adherence to Operating Budget. OVG shall use all reasonable efforts to manage
and operate the Facility in accordance with the Operating Budget. However, Owner acknowledges that
notwithstanding OVG's experience and expertise in relation to the operation of facilities similar to
the Facility, the projections contained in the Operating Budget are subject to and may be affected by
changes in financial, economic and other conditions and circumstances beyond OVG's control, and
that OVG shall have no liability if the numbers within the Operating Budget are not achieved. Any
variances that require appropriation of additional funds require a budget amendment, which could
require approval of both the Owner's City Council and the Type A Board; provided Owner will promptly
present such requested appropriations to the City Council and/or the Type A Board, and ensure that to
the extent modifications are needed, it shall attempt to identify available funding to accommodate such
modifications. OVG will not be responsible for any failure to perform to the extent such failure is directly
related to a failure of the Owner's City Council or Type A Board to approve a requested amendment to
the Operating Budget.
ARTICLE 8
PROCEDURE FOR HANDLING INCOME
Section 8.1 Event Account. OVG shall deposit as soon as practicable following receipt, in the
Event Account, all revenue received from ticket sales and advance deposits which OVG receives in
contemplation of,or arising from,an event. Such monies will be held in escrow for the protection of ticket
purchasers,Owner and OVG,to provide a source of funds as required for payments to performers and for
payments of direct incidental expenses in connection with the presentation of events that must be paid
prior to or contemporaneously with such events. Promptly following completion and settlement of such
events, OVG shall transfer all funds remaining in the Event Account, including any interest accrued
thereon, into the Operating Account.
Section 8.2 Operating Account. Except as provided in Section 8.1, all Revenue derived from
operation of the Facility shall be deposited by OVG into the Operating Account(s) as soon as practicable
upon receipt (but not less often than once each business day). The specific procedures (and authorized
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individuals) for making deposits to and withdrawals from such account shall be agreed between the
parties in writing but the parties specifically agree that OVG shall have authority to sign checks and make
withdrawals from such account, subject to the limitations of this Agreement, without needing to obtain
the co-signature of an Owner employee or representative.
ARTICLE 9
FUNDING
Section 9.1 Source of Funding. OVG shall pay all items of expense for the operation,
maintenance,supervision and management of the Facility from the funds in the Operating Account,which
OVG may access periodically for this purpose. The Operating Account shall be funded with amounts
generated by operation of the Facility (as described in Article 8 above), or otherwise made available by
Owner. To ensure sufficient funds are available in the Operating Account, Owner will deposit in the
Operating Account, on or before the Effective Date, the budgeted expenses for the 3-month period
beginning on the Effective Date. Owner shall thereafter, on or before the 1st day of each succeeding
month following the Effective Date, deposit (or allow to remain) in the Operating Account the budgeted
or otherwise approved expenses for each such month, at all times maintaining sufficient funds in the
Operating Account to pay the anticipated expenses for the then-upcoming month plus the immediately
following 2 months. OVG shall have no liability to Owner or any third party in the event OVG is unable to
perform its obligations hereunder, or under any third-party contract entered into pursuant to the terms
hereof, due to the fact that sufficient funds are not made available to OVG to pay such expenses in a
timely manner. OVG understands that some funds made available to it are strictly limited by law to
certain uses. OVG agrees that any funds identified for use in the Arena, particularly any Type A funds
provided to OVG for the Arena, may only be used in the Arena.Similarly,OVG understands that any funds
identified for use at the Convention Center or Auditorium,particularly hotel occupancy tax funds provided
to OVG for the Convention Center,may only be used at the Convention Center or Auditorium.
Section 9.2 Advancement of Funds. Under no circumstances shall OVG be required to pay for
or advance any of its own funds to pay for any Operating Expenses. In the event that, notwithstanding
the foregoing,OVG agrees to advance its own funds to pay Operating Expenses and such advance of funds
is approved by the Owner in writing, Owner shall within 10 days of request from OVG showing actual
expenditures made, reimburse OVG for the full amount of such advanced funds.
ARTICLE 10
FISCAL RESPONSIBILITY; REPORTING
Section 10.1 Records. OVG shall keep and maintain complete and accurate records of Facility
operations. OVG will retain said records for not less than 5 years following the last day of each Operating
Year during which the record was generated, unless the Owner reasonably requests longer retention, in
which event OVG shall make best efforts to comply. Owner shall be entitled,at its sole cost and expense,
to receive copies of, inspect, and audit the records during the Term of this Agreement and for 5 years
thereafter,at OVG's office during reasonable times upon not less than 24-hours' notice. Alternatively, at
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or after the termination of this Agreement,OVG may convey to Owner copies of all of the financial records
relating to the Facility in which case it shall no longer be required to retain such records.
Section 10.2 Monthly Financial Reports. OVG agrees to provide to Owner,within 30 days after
the end of each month during the Term,financial reports for the Facility including a balance sheet, aging
report on accounts receivable, and statement of revenues and expenditures (budget to actual) for such
month and year to date in accordance with generally accepted accounting principles. Additionally, OVG
shall submit to Owner,or shall cause the applicable public depository utilized by OVG to submit to Owner,
on a monthly basis, copies of all bank statements concerning the Event Account and the Operating
Account.
Section 10.3 Audit. OVG agrees to arrange to provide to Owner,within 90 days following the
end of each Operating Year, a certified audit report on the accounts and records as kept by OVG for the
Facility. Costs associated with obtaining such certified audit report shall be an Operating Expense of the
Facility.Such audit shall be performed by an external auditor approved by Owner,and shall be conducted
in accordance with generally accepted accounting principles. In addition to the foregoing, OVG shall
cooperate with Owner in the preparation of the portion of the Owner's annual audit related to the Facility
and provide access to any and all financial records necessary to finalize that audit.
ARTICLE 11
CAPITAL IMPROVEMENTS;OVG INVESTMENT
Section 11.1 Schedule of Capital Improvements and Upgrades. In accordance with Exhibit A-
1, OVG shall provide to Owner a schedule of proposed Capital Improvements and Upgrades to be made
at the Facility by February 1 of each year,for the purpose of allowing Owner to consider such projects and
to prepare and update a long-range Capital Improvement budget.
Section 11.2 Responsibility for Capital Improvements. Owner shall be solely responsible for all
Capital Improvements at the Facility; provided,however,Owner shall be under no obligation to make any
Capital Improvements proposed by OVG and provided further that OVG shall have no liability for any
claims,costs or damages arising out of a failure by Owner to make any Capital Improvements. OVG may
not make any Capital Improvements without specific authorization from the Owner. Notwithstanding the
foregoing, OVG shall have the right (but not the obligation), upon approval of the Owner, to make
Emergency Repairs at the Facility,for which Owner shall reimburse OVG for the cost of such Emergency
Repairs, within 15 days' after written notice that such Emergency Repairs were completed (including
reasonable proof).
Section 11.3 Responsibility for Upgrades and Maintenance and Repair.OVG will be responsible
for all Upgrades and Maintenance and Repair work, which must be accomplished in accordance with
Exhibit A-1.
Section 11.4 OVG Investment. During the Initial Term,OVG will make a capital contribution of
up to US$650,000 (the "Initial Investment") in connection with various improvements and investments
at the Facility as mutually agreed by the parties, including without limitation, for equipment and other
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related tangible personal property (collectively, the "Improvements and Equipment"). OVG will use
commercially reasonable efforts to provide a recommendation of Improvements and Equipment within
90 days following the Effective Date. If this Agreement is extended for the Renewal Term,OVG will,during
the Renewal Term, invest an additional total of up to US$250,000(the"Renewal Investment"and,as and
if applicable,together with the Initial Investment the"Investment")in connection with various additional
Improvements and Equipment at the Facility, as mutually agreed by the parties. The Initial Investment
shall be amortized on a straight-line, monthly basis over 120-month period commencing on the Effective
Date. The Renewal Investment(if applicable) shall be amortized on a straight-line, monthly basis over a
60-month period beginning on the first date of the Renewal Term. All Improvements and Equipment,
including any replacements or substitutions thereof, shall be owned by OVG until payment of the Buyout
Amount (as described below), and Owner agrees to execute such documents as OVG shall reasonably
request evidencing OVG's ownership interest in such Improvements and Equipment, including financing
statements. For the sake of clarity, nothing in this paragraph shall be construed as requiring OVG to
replace any equipment or other personal property at its own cost.
Section 11.5 Buyout Amount. Within 30 days of the expiration of early termination of this
Agreement (for any reason whatsoever, including without limitation if due to a breach, default, or
bankruptcy event by or affecting OVG),Owner shall immediately pay to OVG the unamortized amount of
the Investment (the "Buyout Amount"). In the event that Owner fails to pay OVG the Buyout Amount
when due, the Buyout Amount shall accrue interest at the rate of 1.5% per month, or the highest rate
permitted by law, whichever is less. In such event, and without limiting any other rights or remedies
available to it,OVG may reenter the Facility,with or without process of law,and remove in a commercially
reasonably manner any portion of the Improvements and Equipment and retain or dispose of such
Improvements and Equipment as OVG sees fit. In such event, OVG shall retain its right to receive the
Buyout Amount, but any proceeds from the sale of such Improvements and Equipment, less the cost to
OVG of removing, storing, and selling such Improvements and Equipment, shall reduce the Buyout
Amount. Owner covenants and agrees not to permit any liens or encumbrances to attach to the
Improvements and Equipment purchased with the Investment,and hereby waives any right to attach any
claim, lien,or attachment to such Improvements and Equipment. Once the Investment is fully amortized
or the Buyout Amount is paid in full to OVG,title to the Improvements and Equipment will become vested
in Owner, and OVG agrees to execute all necessary documents to evidence same. The rights of OVG set
forth in this Section shall be in addition to any other rights of OVG at law or in equity.
Section 11.6 Procurement Process. Once identified, the specific Improvements and
Equipment shall be set forth in a writing to be signed by the parties and updated by the parties from time
to time as necessary to reflect any replacements or substitutions thereof.The parties shall mutually agree
on a procurement process in connection with the specific Improvements and Equipment to be purchased
and Owner represents that such process and OVG's disbursement of the Investment in compliance
therewith will comply with all applicable laws, rules, and regulations, including without limitation any
state-specific procurement guidelines applicable to Owner.
Section 11.7 Sale of Obsolete or Unusable Equipment and Machinery. If OVG determines that
any equipment, machinery, or other item of Owner's property at the Facility is no longer of use to the
Facility,OVG shall provide a memo to the Owner's Contract Administrator detailing the desire to sell the
equipment, machinery, or other item, stating the apparent value of the equipment, machinery, or other
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item, and detailing the proposed method of sale. In all events, OVG must adopt a method of sale that is
consistent with City of Corpus Christi Code of Ordinances§17-6.OVG may not sell any of Owner's property
without explicit permission of the Owner. In selling property, OVG will use its best efforts to get the best
price for the property. Proceeds from any sale of Owner's property must be deposited in the Operating
Account. Revenue from sale of Owner's property will not be included in the calculation of revenues for
purposes of calculating the Incentive Fee, except that any Revenue in excess of fair market value (with
such value to be mutually agreed by the parties)shall be included in Revenue for purposes of the Incentive
Fee calculation.
ARTICLE 12
FACILITY CONTRACTS;TRANSACTIONS WITH AFFILIATES
Section 12.1 Existing Contracts. Owner shall provide to OVG,on or before the Effective Date,
copies of all Existing Contracts as set forth in Exhibit B,attached hereto. OVG shall administer and make
commercially reasonable efforts to ensure compliance with such Existing Contracts.
Section 12.2 Execution of Contracts. OVG shall have the right to enter into Service Contracts,
Revenue Generating Contracts and other contracts related to the operation of the Facility. All such
contracts shall be entered into by OVG, as agent on behalf of Owner. Any such material contracts shall
contain indemnification and insurance obligations on the part of each vendor,licensee or service provider,
as is customary for the type of services or obligations being provided or performed by such parties,naming
each of OVG and Owner as indemnified parties and additional insureds, respectively. OVG shall have the
right to enter into,execute,and deliver contracts with users of the Facility which extend beyond or relate
to dates falling after the expiration of the Term; provided that such agreements allow for assignment to
Owner or a future successor manager,as appropriate.OVG must obtain written approval of Owner for all
contracts with Major Users. Major Users include any professional sports team, franchise, or university
using the Facility as the site of its home games, as well as any event held at the Facility whose use thereof
consists of more than ten days during any Operating Year and any entity with which OVG has a multi-year
or annual agreement for use of the Facility.
Section 12.3 Transactions with Affiliates. In connection with its obligations hereunder relating
to the purchase or procurement of services for the Facility (including without limitation food and
beverage services, ticketing services, Commercial Rights sales, web design services and graphic design
services),OVG may purchase or procure such services,or otherwise transact business with, an Affiliate of
OVG, provided that the prices charged and services rendered by such Affiliate are competitive with those
obtainable from any unrelated parties rendering comparable services. OVG shall,at the request of Owner,
provide reasonable evidence establishing the competitive nature of such prices and services, including, if
appropriate,competitive bids from other persons seeking to render such services at the Facility.
ARTICLE 13
AGREEMENT MONITORING AND OPEN RECORDS ACT
Section 13.1 Contract Administrator. Each party shall appoint a contract administrator who
shall monitor such party's compliance with the terms of this Agreement. OVG's contract administrator
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shall be its General Manager at the Facility, unless OVG notifies Owner of a substitute contract
administrator in writing. Owner shall notify OVG of the name of its contract administrator within thirty
(30) days of execution hereof. Any and all references in this Agreement requiring OVG or Owner
participation or approval shall mean the participation or approval of such party's contract administrator.
Section 13.2 Texas Public Information Act. OVG acknowledges that, under current law, it is
subject to the Texas Public Information Act, Chapter 552, Texas Government Code (the "Open Records
Act"). Specifically, OVG understands that the requirements of Subchapter J, Chapter 552, Government
Code, apply to this Agreement and agrees that the Agreement can be terminated if OVG knowingly or
intentionally fails to comply with a requirement of that subchapter. If OVG receives a request under the
Open Records Act for any information pertaining to the Facility or Owner, in connection with this
Agreement or the services to be provided hereunder (including, without limitation, with respect to any
personnel files or the management by OVG of their accounts and accounting and legal services or in
connection with any of the operations of the Facility), prior to releasing any information,OVG shall notify
Owner of such request in writing within 5 business days of receipt of such request, in which case it shall
promptly and timely inform Owner if any of the requested information might constitute confidential,
proprietary or trade secret information of Owner and/or OVG which may be exempted from disclosure
under the Open Records Act,and further shall notify Owner in writing whether OVG intends to request a
determination from the Texas Attorney General as to whether the requested information must be
disclosed pursuant to the Open Records Act. If OVG decides to seek an open records determination from
the Texas Attorney General as to whether the requested information is excepted from public disclosure,
OVG must seek an Attorney General decision ("Open Records Determination")to the extent and within
the deadlines required by law. OVG must also identify any possible third party whose privacy or property
interests may be involved and they will,to the extent OVG determines appropriate,timely furnish to any
such third party any statutory notice required by the Open Records Act. Further,should Owner receive a
request for disclosure of information in its possession related to OVG or its services under this Agreement
pursuant to the Open Records Act,Owner will promptly provide OVG notice of such request in accordance
with Section 552.305 of the Texas Government Code so that OVG may avail itself of any opportunities to
establish reasons why the information should be withheld prior to disclosing such information.The burden
of establishing the applicability of exceptions to the disclosure of confidential information under the Open
Records Act resides with OVG. Should OVG be unable to establish a valid exception from disclosure or
exclusion from the Open Records Act, then Owner may release the information, solely to the extent
necessary to comply with the Open Records Act.
Section 13.3 Attendance at Open Meetings. OVG acknowledges that Owner is subject to the
Texas Open Meetings Act and that the funding for activities at the Facility may come from multiple
different sources that require OVG's attendance at public meetings. Upon Owner's request,and provided
that such request is made with reasonable notice, OVG agrees that its Management-Level Employees will
attend meetings of the City Council,the Corpus Christi Business and Job Development Board(the"Type A
Board"), and other Owner boards and commissions to discuss activities at the Facility and make budget
or funding requests, as reasonably requested and noticed in advance; provided that to the extent any
Management-Level Employee is unavailable for such meetings the parties shall agree on such other
employees to attend. Further, OVG agrees not to engage with a quorum of any Owner governing body,
including the City Council and the Type A Board, outside of any properly posted open meeting. In the
event that OVG is contacted by a City Council member or a member of the Type A Board or any other City
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4
Board regarding the terms of this Agreement or requesting a formal meeting, OVG will direct the person
to contact the Owner's Contract Administrator.
ARTICLE 14
INDEMNIFICATION
Section 14.1 Indemnification by OVG. OVG ("INDEMNITOR") SHALL INDEMNIFY AND
HOLD THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES
("INDEMNITEE")HARMLESS AND DEFEND THE INDEMNITEE FROM AND AGAINST ANY AND ALL
THIRD-PARTY CLAIMS, DEMANDS, SUITS, AND CAUSES OF ACTION OF ANY NATURE
WHATSOEVER ON ACCOUNT OF PERSONAL INJURIES (INCLUDING DEATH AND WORKERS'
COMPENSATION CLAIMS), PROPERTY LOSS OR DAMAGE, OR ANY OTHER KIND OF INJURY,
LIABILITY, LOSS, OR DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS,
REASONABLE OUTSIDE ATTORNEY'S FEES, AND EXPERT WITNESS FEES, WHICH ARISE OR ARE
CLAIMED TO ARISE OUT OF OR IN CONNECTION WITH OVG'S PERFORMANCE OF THIS
AGREEMENT, EXCEPT TO THE EXTENT SUCH INJURIES, DEATH, OR DAMAGES ARE CLAIMED TO
ARISE FROM THE ACT OR OMMISSION OF AN INDEMNITEE. INDEMNITOR MUST, AT ITS OWN
EXPENSE, INVESTIGATE ALL CLAIMS AND DEMANDS, ATTEND TO THE SETTLEMENT OR OTHER
DISPOSITION OF SUCH CLAIMS, DEFEND ALL ACTIONS BASED THEREON WITH COUNSEL
REASONABLY SATISFACTORY TO THE OWNER'S CITY ATTORNEY(AS PROVIDED IN SECTION 14.2)
AND PAY ALL REASONABLE CHARGES OF SUCH ATTORNEYS AND ALL OTHER COSTS AND
EXPENSES OF ANY KIND ARISING DIRECTLY FROM ANY SAID LIABILITY, DAMAGE, LOSS, CLAIM,
DEMAND, SUIT, OR ACTION.
Section 14.2 Conditions to Indemnification. With respect to each separate matter brought by
any third party against which Indemnitee is indemnified by Indemnitor under this Article 14, the
Indemnitor shall be responsible, at its sole cost and expense, for controlling, litigating, defending and/or
otherwise attempting to resolve, through counsel of its choice, but satisfactory to the Owner's City
Attorney, any proceeding, claim, or cause of action underlying such matter, except that (a) approval by
the City Attorney over any counsel shall not be unreasonably withheld and in any event shall be provided
(or assumed) within 2 days of submission of counsel by Indemnitor; (b)the Indemnitee may, at its option,
participate in such defense or resolution at its expense and through counsel of its choice; (c) the
Indemnitee may, at its option, assume control of such defense or resolution if the Indemnitor does not
promptly and diligently pursue such defense or resolution, provided that the Indemnitor shall continue to
be obligated to indemnify the Indemnitee hereunder in connection therewith; and (d) neither Indemnitor
nor Indemnitee shall agree to any settlement without the other's prior written consent. In any event,
Indemnitor and Indemnitee shall in good faith cooperate with each other and their respective counsel
with respect to all such actions or proceedings, at the Indemnitor's expense. With respect to each and
every matter with respect to which any indemnification may be sought hereunder, upon receiving notice
pertaining to such matter, Indemnitee shall promptly give reasonably detailed written notice to the
Indemnitor of the nature of such matter and the amount demanded or claimed in connection therewith.
Section 14.3 Limitation on Indemnity. To the extent that OVG maintains the required
insurance for the term of the Agreement and the insurance complies with all of Owner's requirements in
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Section 15.1 and Exhibit D, OVG's liability under the indemnification is limited to the amount of the
aggregate insurance coverage under that applicable insurance policy.
Section 14.4 Legal Costs. Notwithstanding the other provisions of this Agreement,if legal costs
associated with operation of the Facility are being incurred by OVG (but excluding any incurred in
connection with a third party claims for which Owner is claiming indemnity by OVG or incurred in
connection with any claims by OVG against the Owner) such costs shall be considered an Operating
Expense; provided that to the extent any such legal costs are associated with a third party claim relating
to the Facility operations, such legal costs shall be subject to Owner's prior approval, not to be
unreasonably withheld.
Section 14.5 Survival. The obligations of the parties contained in this Article 14 shall survive
the termination or expiration of this Agreement.
ARTICLE 15
INSURANCE; PERFORMANCE BOND
Section 15.1 Insurance. Before performance can begin under this Agreement, OVG must
deliver a certificate of insurance ("COI"), as proof of the required insurance coverages, to the Owner's
Risk Manager and the Contract Administrator. The Owner must be named as additional insureds. The
Owner's City Attorney must be given certificates of insurance or binders for all insurance required herein
within 10 business days of the Owner's written request. Insurance requirements are as stated in Exhibit
. the content of which is incorporated by reference into this Agreement as if fully set out here in its
entirety. Notwithstanding anything to the contrary herein, the cost of all insurance specifically required
for this Agreement shall be an Operating Expense, including, without limitation, the cost of premiums,
and the cost of any coverage deductibles, coinsurance penalties or self-insured retentions.
Section 15.2 Performance Bond. OVG will obtain and maintain a performance bond in the
amount of twelve months of the Monthly Management Fee, as annually adjusted, for the benefit of the
Owner. Such performance security shall be maintained in effect and held by the Owner until the
expiration of the Term or earlier termination of the Agreement, and thereafter until all audits have been
completed and any claims or disputes have been finally resolved. The cost thereof will be an Operating
Expense.
ARTICLE 16
REPRESENTATIONS,WARRANTIES AND COVENANTS
Section 16.1 OVG Representations and Warranties. OVG hereby represents, warrants and
covenants to Owner as follows:
(a) that it has the full legal right, power and authority to enter into this Agreement
and to grant the rights and perform the obligations of OVG herein, and that no third-party consent or
approval is required to grant such rights or perform such obligations hereunder;and
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(b) that this Agreement has been duly executed and delivered by OVG and
constitutes a valid and binding obligation of OVG,enforceable in accordance with its terms,except as such
enforceability may be limited by bankruptcy,insolvency,reorganization or similar Laws affecting creditors'
rights generally or by general equitable principles.
Section 16.2 Owner Representations,Warranties and Covenants. Owner represents,warrants
and covenants to OVG as follows:
(a) that it has the full legal right, power and authority to enter into this Agreement
and to grant the rights and perform the obligations of Owner herein,and that no other third-party consent
or approval is required to grant such rights or perform such obligations hereunder.
(b) that this Agreement has been duly executed and delivered by Owner and
constitutes a valid and binding obligation of Owner, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally or by general equitable principles.
(c) except as specifically set forth in this Agreement,the Owner has not made,does
not make, and hereby specifically disclaims any representations, warranties, promises, covenants,
agreements, or guarantees of any kind or character whatsoever, whether express or implied, oral or
written, past, present,or future,to,as to,concerning,or with respect to(i)the nature,quality or condition
of the Facility and the Facility's personal property, (ii) the suitability of the Facility and the Facility's
personal property for any and all activities and uses which OVG may conduct; (iii) the accuracy or
completeness of any materials provided to OVG under the provisions of this Agreement or otherwise.
OVG acknowledges and consents to such disclaimer of warranties by the Owner,and OVG accepts Facility
management and the Facility property AS IS, WHERE IS, WITH ALL FAULTS, based solely on its own
inspection thereof. Notwithstanding the foregoing, OVG is not responsible for and does not accept or
assume any liability for structural or construction defects (latent or patent), environmental claims, non-
compliance with applicable Laws, or any other unsafe conditions existing at Facility as of or prior to the
Effective Date or arising thereafter through no fault of OVG.
ARTICLE 17
FEDERAL TAX REQUIREMENTS
Section 17.1 Compliance with Federal Tax Requirements. OVG understands that, as of the
Effective Date,all or a portion of the Facility has been financed on a tax-exempt basis(such financing,the
"Tax-Exempt Bonds")and,as a result, until such time as the Facility is no longer financed under such Tax-
Exempt Bonds, Owner must comply with the Internal Revenue Code of 1986, as amended, and certain
treasury regulations promulgated thereunder (collectively, the "Code"), with respect to the use and
management of the Facility by OVG or any other service provider that may be engaged by Owner or OVG
with respect to all or a portion of the Facility. OVG agrees to cooperate with Owner in complying with the
requirements of the Code with respect to private business use of property financed with the Tax-Exempt
Bonds at the Facility and maintaining the safe harbor conditions provided in Revenue Procedure 2017-13
(as modified,amplified and/or superseded,the "Rev. Proc."), and acknowledges that, as of the Effective
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Date,the Rev. Proc. includes the following safe harbor conditions that ensure that the Tax-Exempt Bonds
will maintain their tax-exempt status:
(a) No third-party manager shall take a tax position with respect to the Facility or any
management agreement that is inconsistent with being a service provider to Owner that provides services
at the Facility,including,without limitation,taking any depreciation or amortization,investment tax credit
or deduction for any payment as rent with respect to the Facility.
(b) In connection with any third-party manager's services at the Facility and as described in
the Rev. Proc.,Owner will approve: (i)each disposition of any portion of the Facility, (ii) rates charged for
the use of all or any portion of the Facility,and (iii) and the general nature and type of use of the Facility
by OVG.
(c) Owner bears risk of loss of the Facility.
(d) No third-party manager shall have any role or relationship with Owner that, in effect,
substantially limits Owner's ability to exercise its rights under any management agreement.
OVG agrees to cooperate in good faith with Owner in order to ensure that this Agreement and OVG's
services hereunder comply the requirements of the Code with respect to private business use of property
financed with the Tax-Exempt Bonds at the Facility and maintaining the safe harbor conditions provided
in the Rev. Proc(collectively,the"Private Use Requirements"). If Owner reasonably determines that any
of OVG's services or actions hereunder violate the Private Use Requirements, OVG shall reasonably
cooperate (without expenditure of material funds) to cease such services or actions following notice
thereof from Owner. If following a good faith negotiation period of not less than ninety (90) days (a
"Negotiation Period"), Owner continues to reasonably determine that OVG's services or actions
hereunder violate the Private Use Requirements notwithstanding OVG's reasonable cooperation efforts,
Owner may terminate this Agreement in its sole discretion and without penalty for a period of 30 days
following the end of the Negotiation Period;provided Owner shall be responsible for all costs of OVG in
connection therewith as set forth in Section 4.3(c). If Owner does not terminate this Agreement during
such 30-day period,such termination right shall expire.
If Owner reasonably determines that the terms of this Agreement violate the Private Use Requirements,
the parties shall proceed in accordance with Section 17.2 below as if Changes (as defined below) had
occurred.
Section 17.2 Future Changes in Federal Tax Requirements. OVG agrees to negotiate in good faith
with Owner to amend this Agreement from time to time (an "Amendment") to address any
interpretations, modifications or other changes in federal tax requirements regarding tax-exempt bonds,
which may include any modifications and amplifications of the Rev. Proc. or requirements superseding
the Rev. Proc.taking place after the Effective Date(collectively,"Changes")to ensure that the tax-exempt
status of the Tax-Exempt Bonds utilized to finance all or a portion of the Facility is maintained.The parties
acknowledge and agree that the terms of an Amendment shall be limited to modifying this Agreement in
order to (i) maintain the tax-exempt status of the Tax-Exempt Bonds notwithstanding such Changes, and
(ii) ensuring that the financial arrangements under this Agreement are materially maintained.
Notwithstanding anything herein to the contrary, if following a Negotiation Period this Agreement is
Page 21 of 40
unable to be amended to the satisfaction of Owner with respect to clause (i) above,or OVG with respect
to clause(ii)above,then this Agreement may be terminated by the applicable dissatisfied party in its sole
discretion and without penalty for a period of 30 days following the end of the Negotiation Period;
provided Owner shall be responsible for all costs of OVG in connection therewith as set forth in Section
4.3(c). If neither party terminates this Agreement during such 30-day period,such termination right shall
expire.
Section 17.3 Remedies. Owner acknowledges and agrees that OVG is not responsible for
determining whether this Agreement or the services hereunder comply with the Code or the Rev. Proc.
Or otherwise with the requirements of the Tax-Exempt Bonds, and is relying on Owner's good-faith,
reasonable determinations as to such matters. As such, OVG shall bear no responsibility with respect to
maintaining the tax-exempt status of the Tax-Exempt Bonds, under no circumstances shall OVG be liable
for any failure by Owner to maintain the tax-exempt status of the Tax-Exempt Bonds, notwithstanding
anything to the contrary in this Agreement (including in connection with OVG's indemnification
obligations set forth in Section 14), and Owner's sole remedies under this Agreement in relation to the
Tax-Exempt Bonds or pursuant to this Section 17 shall be termination of the Agreement as set forth in
Sections 17.1 and 17.2 above.
Section 17.4 Severability. If at any time during the Term, Owner elects to re-finance the Facility
with bonds that are not tax-exempt and therefore no longer subject to the Private Use Requirements,
then the foregoing Article 17 shall be deemed deleted from this Agreement after the date any Tax-Exempt
Bonds are no longer outstanding on the Facility.
ARTICLE 18
MISCELLANEOUS
Section 18.1 PCI Compliance. OVG agrees to comply with all current Payment Card Industry
Data Security Standards ("PCI Standards") and guidelines that may be published from time to time by
Visa, MasterCard or other associations as they relate to the physical storage of credit card data. For PCI
Standards compliance purposes, Owner will provide on a segmented network, an appropriate number of
wired data connections to the Internet for point of sale devices to be used by OVG and any contractors at
the Facility. Owner shall be responsible for the security of its network, including, without limitation,
applicable PCI-DSS compliance, and for procuring and installing point of sale(POS) payment systems that
are compliant with the latest PCI-DSS requirements. If at any time either party determines that card
account number or other information has been compromised,such party will notify the other immediately
and assist in providing notification to the proper parties as deemed necessary.
Section 18.2 No Discrimination. OVG agrees that it will not discriminate against any employee
or applicant for employment for work under this Agreement because of race,religion,color,sex,disability,
national origin, ancestry, physical handicap, or age, and will take affirmative steps to ensure that
applicants are employed,and employees are treated during employment,without regard to race,religion,
color, sex,disability, national origin, ancestry, physical handicap,or age.
Section 18.3 Use of Facility Names and Logos. OVG shall have the right to use throughout the
Term (and permit others to use in furtherance of OVG's obligations hereunder),for no charge,the name
Page 22 of 40
and all logos of the Facility,on OVG's stationary,in its advertising of the Facility,and whenever conducting
business of the Facility; provided, that OVG shall take all prudent and appropriate measures to protect
the intellectual property rights of Owner relating to such logos. All intellectual property rights in any
Facility logos developed by OVG or Owner shall be and at all times remain the sole and exclusive property
of Owner. OVG agrees to execute any documentation requested by Owner from time to time to establish,
protect or convey any such intellectual property rights. Use of the name and logo must be in compliance
with the Naming Rights Agreement with American Bank.
Section 18.4 Facility Advertisements. Owner agrees that in all advertisements placed by
Owner for the Facility or events at the Facility, whether such advertisements are in print, on radio,
television,the internet or otherwise, it shall include a designation that the Facility is a "Managed by OVG
360".
Section 18.5 Force Majeure;Casualty Loss.
(a) Neither party shall be liable or responsible to the other party for any delay, loss,
damage,failure or inability to perform under this Agreement due to an Event of Force Majeure, provided
that the party claiming failure or inability to perform provides written notice to the other party within
thirty(30) days of the date on which such party gains actual knowledge of such Event of Force Majeure.
Notwithstanding the foregoing, in no event shall a party's failure to make payments due hereunder be
excusable due to an Event of Force Majeure. If either party's obligation is affected by any Event of Force
Majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the
force majeure as soon as possible after the occurrence of the cause or causes relied upon.
(b) In the event of damage or destruction to a material portion of the Facility by
reason of fire, storm or other casualty loss that renders the Facility (or a material portion thereof)
untenantable, Owner shall inform OVG within a reasonable period of time if the Owner will make the
necessary repairs to the Facility. If the Owner determines that it will not make such repairs, then this
Agreement will terminate, provided that Owner shall pay to OVG its costs of withdrawing from services
hereunder, as described in Section 4.3(c) above. If the Owner decides to repair the Facility, but such
damage or destruction is expected to render the Facility(or a material portion thereof) untenantable for
a period estimated by an architect selected by Owner at OVG's request,of at least 180 days from the date
of such fire,storm or other casualty loss, either party may terminate this Agreement upon written notice
to the other, provided that Owner shall pay to OVG its costs of withdrawing from services hereunder, as
described in Section 4.3(c)above.
Section 18.6 Assignment; Binding on Successors and Assigns. Neither party may assign this
Agreement without the prior written consent of the other, which consent shall not be unreasonably
withheld or delayed, except that either party may, without the prior written consent of the other party
but upon at least 30 days'written notice to the other party, assign this Agreement in connection with a
sale,merger or other business combination involving all or substantially all of its assets or equity interests.
Any purported assignment in contravention of this Section shall be void. This Agreement is binding on
successors and permitted assigns of the parties.
Page 23 of 40
Section 18.7 Notices. All notices required or permitted to be given pursuant to this Agreement
shall be in writing and delivered personally or sent by registered or certified mail, return receipt
requested, or by generally recognized, prepaid, overnight air courier services, to the address and
individual set forth below. All such notices to either party shall be deemed to have been provided when
delivered, if delivered personally,three(3)days after mailed, if sent by registered or certified mail,or the
next business day, if sent by generally recognized, prepaid,overnight air courier services.
If to Owner: If to OVG:
City of Corpus Christi OVG360
1201 Leopard St 150 Rouse Blvd.
Corpus Christi,TX 78401 Philadelphia, PA 19112
Attn:Assistant City Manager Attn: Chief Operating Officer
With a copy to: With a copy to:
City Attorney OVG360
1201 Leopard St. 150 Rouse Blvd.
Corpus Christi,TX 78401 Philadelphia, Pennsylvania 19112
Attn: General Counsel
The designation of the individuals to be so notified and the addresses of such parties set forth above may
be changed from time to time by written notice to the other party in the manner set forth above.
Section 18.8 Severability. If a court of competent jurisdiction determines that any term of this
Agreement is invalid or unenforceable to any extent under applicable law, the remainder of this
Agreement(and the application of this Agreement to other circumstances)shall not be affected thereby,
and each remaining term shall be valid and enforceable to the fullest extent permitted by law.
Section 18.9 Entire Agreement. This Agreement (including the exhibits attached hereto)
contains the entire agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior negotiations, correspondence, conversations, agreements, and
understandings concerning the subject matter hereof. Accordingly, the parties agree that no deviation
from the terms hereof shall be predicated upon any prior representations,agreements or understandings,
whether oral or written.
Section 18.10 Governing Law. The Agreement is entered into under and pursuant to, and is to
be construed and enforceable in accordance with, the laws of the State of Texas, without regard to its
conflict of laws principles and such form and venue for any disputes is the appropriate district,county,or
justice court in and for Nueces County,Texas.
Section 18.11 Amendments. This Agreement may not be amended except by an instrument in
writing signed by an authorized representative of each of the Parties.
Page 24 of 40
Section 18.12 Waiver; Remedies. No failure or delay by a party hereto to insist on the strict
performance of any term of this Agreement, or to exercise any right or remedy consequent to a breach
thereof,shall constitute a waiver of any breach or any subsequent breach of such term. No waiver of any
breach hereunder shall affect or alter the remaining terms of this Agreement, but each and every term of
this Agreement shall continue in full force and effect with respect to any other then existing or subsequent
breach thereof. The remedies provided in this Agreement are cumulative and not exclusive of the
remedies provided by law or in equity.
Section 18.13 Relationship of Parties. OVG and Owner acknowledge and agree that they are
not joint venturers, partners, or joint owners with respect to the Facility, and nothing contained in this
Agreement shall be construed as creating a partnership, joint venture or similar relationship between
Owner and OVG. In operating the Facility, entering into contracts, accepting reservations for use of the
Facility, and conducting financial transactions for the Facility, OVG acts on behalf of and as agent for
Owner(but subject to the limitations on OVG's authority as set out in this Agreement),with the fiduciary
duties required by law of a party acting in such capacity.
Section 18.14 No Third Party Beneficiaries. Other than the indemnitees listed in Sections 14.1
and 14.2 hereof(who are third party beneficiaries solely with respect to the indemnification provisions in
such sections),there are no intended third party beneficiaries under this Agreement, and no third party
shall have any rights or make any claims hereunder, it being intended that solely the parties hereto (and
the aforementioned indemnitees with respect to the indemnification provisions hereof) shall have rights
and may make claims hereunder.
Section 18.15 Attorneys Fees. If any suit or action is instituted by either party hereunder,
including all appeals, each party will be responsible for its own attorneys'fees.
Section 18.16 Limitation on Damages. In no event shall either party be liable or responsible for
any consequential, indirect, incidental, punitive, or special damages (including, without limitation, lost
profits)whether based upon breach of contract or warranty, negligence,strict tort liability or otherwise,
and each party's liability for damages or losses hereunder shall be strictly limited to direct damages that
are actually incurred by the other party, provided that the foregoing shall not limit or restrict any claim by
OVG for the Monthly Management Fee through the original expiration date of this Agreement upon a
breach or default of this Agreement by Owner,which shall be deemed a claim for direct damages.
Section 18.17 Counterparts; Facsimile and Electronic Signatures. This Agreement may be
executed in counterparts, each of which shall constitute an original, and all of which together shall
constitute one and the same document.This Agreement may be executed by the parties and transmitted
by electronic transmission, and if so executed and transmitted, shall be effective as if the parties had
delivered an executed original of this Agreement.
[Signature Page Follows]
Page 25 of 40
IN WITNESS WHEREOF, each party hereto has caused this Management Agreement to be
executed on behalf of such party by an authorized representative as of the date first set forth above.
THE CITY OF CORPUS CHRISTI, GLOBAL SPECTRUM,L.P.,
A Texas home-rule municipality d/b/a OVG360
By:Global Spectrum, LLC, its general
partn r
•
By: By: . /4/Mi7----
Nam . kr Nam : Brian Rothenberg
Title: Ct}t4 tA..du.o� Title: President
ATTEST:__ e r�y,,Y
REBECCA HUERTA
proved as to on.1013/22 CITY SECRETARY
: '..."s.n3 1O AUTHORItc.
Assistant City Attorney SY MUNCH. C\ t1°- .)'
.. For City Attorney ia
SECRET/My
Page 26 of 40
SCHEDULE 1
MAPS DEFINING OUTDOOR AREAS UNDER OVG'S MANAGEMENT
Facility Map:
Chaparrel
r
.1 r
Arena Convention Center
1
Selena
p Auditorium
Shoreline Blvd
Aerial Map:
•
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y-�. . �:
rte"t ' •
n. j h 3+}` t£�.` q •{ •
L 101‘...:4 A.a�:�C': Fi 0,07 J
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r i 411
,.......:-.'":„..`',.—•''''A.
j\ x 'IVr
.ij - A . '1., - "s ,. 1.;"'-*:..:-
A
Page 27 of 40
Parking Lot Map:
1R1a" `] Primary Lots
--,� xtor Me exdou a use of
4 the American Bank Center
❑ secondary Lots
t■i. [equines r:oonCnation
r vett,other er,t.•hes
(Jc�
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Page 28 of 40
EXHIBIT A
OVG DUTIES
OVG's obligations under the Agreement shall consist of the following obligations,all of which are
subject to the terms hereof:
(a) Manage all aspects of the Facility in accordance with the terms of this Agreement,
including but not limited to managing purchasing,payroll,fire prevention,security,crowd control, routine
repairs, preventative maintenance, landscaping, janitorial services, promotions, advertising, energy
conservation,security,box office,admission procedures,parking(if applicable),and general user services.
(b) Establish and adjust prices, rates and rate schedules for user, license, concessions,
occupancy, and advertising agreements, and booking commitments. OVG may deviate from the
established rate schedule when entering into any such agreements if determined by OVG, using its
reasonable business judgment,to be necessary or appropriate with respect to the specific situation.
(c) Procure, negotiate, execute, administer and assure compliance with Service Contracts,
Revenue Generating Contracts,and other contracts related to the operation of the Facility.
(d) Require that all material vendors and licensees of the Facility execute vendor/license
agreements containing standard indemnification and insurance obligations on the part of each such
vendor/licensee.
(e) Utilize Owner-provided standard form advertising and sponsorship contracts and
user/rental agreements for use at or with respect to the Facility. Owner shall submit such form
agreements to OVG for review and comment, and the parties shall work together to finalize such forms.
Once finalized, OVG shall use such forms in furtherance of its duties hereunder, and shall not materially
deviate from the terms contained in such forms without obtaining the prior approval of Owner (which
shall not be unreasonably withheld). For avoidance of doubt,OVG shall be under no obligation to provide
legal advice or assistance with respect to the forms or any other Revenue Generating Contracts.
(f) Operate and maintain the Facility, including the equipment utilized in connection with its
operation and any improvements made during the term of this Agreement, in the condition received,
normal wear and tear excepted.
(g) Arrange for and otherwise book events at the Facility in accordance with a booking
schedule to be developed by OVG.
(h) Hire or otherwise engage, pay, supervise, and direct all personnel OVG deems necessary
for the operation of the Facility in accordance with Article 6 of the Agreement,and conduct staff planning,
retention and training programs as determined to be necessary by OVG in its sole discretion.
(i) Maintain detailed, accurate and complete financial and other records of all its activities
under this Agreement in accordance with generally accepted accounting principles, which records shall
be made available to Owner upon request, in accordance with Section 10.1 of the Agreement.
Page 29 of 40
(j) Submit to Owner in a timely manner financial and other reports detailing OVG's activities
in connection with the Facility, as set forth in Section 10.2 of the Agreement.
(k) Pay all Operating Expenses and other expenses incurred in connection with the operation,
maintenance, supervision and management of the Facility from the Operating Account or with funds
otherwise made available by Owner.
(I) Secure,or assist Owner(or any other third party,as applicable)to secure,all licenses and
permits necessary for the operation and use of the Facility for the specific events to be held therein,and
for the general occupancy of the Facility, provided that any necessary food and liquor licenses shall be
secured by the food and beverage concessionaire at the Facility. Owner shall cooperate in this process
to the extent reasonably required. All costs associated with this process shall be Operating Expenses.
(m) Collect,deposit and hold in escrow in the Event Account any ticket sale revenues which it
receives in the contemplation of or arising from an event pending the completion of the event, as more
fully described in Section 8.1 of the Agreement.
(n) Collect in a timely manner and deposit in the Operating Account all Revenue, as more
fully described in Section 8.2 of the Agreement.
(o) Pay all applicable Taxes from the Operating Account.
(p) OVG shall document all major damage to, or loss in, such inventory during the Term as
soon as such damage or loss is discovered by OVG, and OVG shall promptly notify Owner of any such
damage or loss.
(q) Purchase, on behalf of Owner and with Owner funds, and maintain during the Term, all
materials,tools, machinery, equipment and supplies necessary for the operation of the Facility.
(r) As agent for Owner,manage risk management and Facility insurance needs,as more fully
described in Article 15 of the Agreement.
(s) Make and be responsible for all routine and minor repairs, maintenance, preventative
maintenance, and equipment servicing. OVG shall be responsible for ensuring that all repairs,
replacements, and maintenance shall be of a quality and class at least equal to that of the item being
repaired,replaced or maintained. Any replacement of an item in inventory,or any new item added to the
inventory,which is paid for by Owner,shall be deemed the property of Owner.
(t) Cause such other acts and things to be done with respect to the Facility, as determined
by OVG in its reasonable discretion to be necessary for the management and operation of the Facility
following the Effective Date.
Page 30 of 40
Exhibit A-1
DUTIES RELATED TO MAINTENANCE AND REPAIR,CAPITAL IMPROVEMENTS,AND UPGRADES
1. Maintenance and Repair
a. OVG to complete all Maintenance and Repair as Operating Expenses in accordance with
the Operating Budget and Exhibit A,except for any Emergency Repairs which are subject
to Section 11.2.
2. Capital Improvements
a. In the annual budget process, OVG will recommend Capital Improvements for inclusion
in the Owner's annual operating budget. The recommendations will include information
related to the priority of the individual Capital Improvements to assist the Owner in
determining which Capital Improvements to include for any given Operating Year.
b. Throughout the year, as additional issues are discovered, OVG may recommend other
Capital Improvements for either the current or a future Operating Year. Each
recommendation will include a recommended date by which the Capital Improvement
should be completed.
c. Owner will consider the recommendations and present budget recommendations to
Owner's City Council and/or the Type A Board. Capital Improvements recommended
outside the budget process will require budgetary amendments and appropriation of
funds approved by City Council and/or the Type A Board.
d. Upon approval and appropriation of funding, Owner's Engineering Department will
procure and manage all aspects of the completion of the Capital Improvements.
3. Upgrades
a. In the annual budget process,OVG will recommend Upgrades for inclusion in the Owner's
annual operating budget. The recommendations will include information related to the
priority of the individual Upgrades to assist the Owner in determining which Upgrades to
include for any given Operating Year.
b. Throughout the year, as additional issues are discovered, OVG may recommend other
Upgrades for either the current or a future Operating Year. Each recommendation will
include a recommended date by which the Upgrade should be completed.
c. Owner will consider the recommendations and present budget recommendations to
Owner's City Council and/or the Type A Board. Upgrades recommended outside the
budget process may require budgetary amendments and appropriation of funds
approved by City Council and/or the Type A Board.
d. Upon approval and appropriation of funding, OVG shall procure and manage all aspects
of the completion of the Upgrades except that Owner may review and approve the
specifications of any Upgrades at the Owner's discretion.
Page 31 of 40
1
Exhibit A-2
PERFORMANCE MEASURES
1. Customer Satisfaction Scores. OVG shall demonstrate quality service to customers of the Facility on
evaluations related to Facility operations and services, including servicing of conventions and meetings.
Owner and OVG shall cooperate in determining the form and components of the service evaluations and
the process for administering such service evaluations. No more than 60 days following the start of each
Operating Year,the parties shall mutually agree in writing (email shall be sufficient) upon the Customer
Satisfaction Score Goal for the Operating Year.
2. Room Night Goal. OVG shall work together with the Owner and the Corpus Christi Area Convention
and Visitors' Bureau to support national, regional,or tourism-related events,which increase hotel night
stays in the City. In doing so, OVG will work to meet or exceed the Room Night Goal for the Facility. No
more than 60 days following the start of each Operating Year,the parties shall mutually agree in writing
(email shall be sufficient) upon the Room Night Goal for the Operating Year.
3. Event Day Goals. OVG shall work to increase the number of days the Arena and Convention Center is
utilized. No more than 60 days following the start of each Operating Year,the parties shall mutually agree
in writing(email shall be sufficient) upon the Event Day Goals for the Arena and Convention/Trade Shows
for the Operating Year. Further, at the time of the approval of the Event Day Goals, OVG will provide its
updated booking policy related to all events at the Facility for Owner's review and approval of any
changes.
4. Repairs and Maintenance Implementation. OVG shall demonstrate quality maintenance and operation
of the Facility and equipment therein,normal wear and tear excepted.OVG shall demonstrate compliance
with the provision of this Agreement based upon annual review and the quarterly walkthroughs by the
Contract Administrator and an annual report from OVG on the maintenance and repairs at the Facility. If
there is a dispute as to whether OVG provided quality maintenance and operation of the Facility sufficient
to meet this Performance Measure, then Owner may hire a mutually agreeable third party to conduct a
review of the Facility(which shall be paid for by Owner).
5. Revenue. OVG shall work to increase the Revenue at the Facility. No more than 60 days following the
start of each Operating Year,the parties shall mutually agree in writing(email shall be sufficient)upon the
Revenue goal for the Operating Year.
In the event the parties cannot mutually agree in good faith on a Performance Measure for#1,#2,#3 or
#5 above for any Operating Year then the Performance Measure shall remain the same from the previous
Operating Year.
Page 32 of 40
Exhibit B
EXISTING CONTRACTS
Unique 10 Nm Account Start End State
17256544557 Halestor,, Outback Presents 10/1/2022 10/1/2022 De`inde
1225-6545741 ce Rays Practice ice Ran , 10/1/2022 10/172022 Definite
17294545715 :tet Ran vs New Merino to Rays 10/1/2022 10/i/2022 Definite
122565.42636 Team-Ortega Wedding Stephanie Taylor 101/2022 10/1/2022 Definite
1275.6546159 Ice Ran Pradke ice Rays 10/3/2022 10/3/2072 Definite
1229-65-44971 State of the District Corpus Christi lndepencen:Smog District 101/7027 10/4/7022 Definile
1225 65-46127 :a Rays Practice ice Rays 10/4/2022 10/4/2022 Definite
122565.46063 be Rays awake to Rays 10/5/2022 10/5/21022 Definite
1725.65.43824 Gabriel ildnai, non Concerts 10/6/2027 10/6/2072 Definite
17256545614 ore Ran Franke ice Rays 10/7/2022 101/2072 Definite
1225 65-45651 ice Rays n Lone Star ice Rays 10/7/2022 10/7/2072 Definite
1225.65-45582 ice Rays Practice ice Rays 10/81077 1018/2022 Definite
1225-65-45588 Ino Rays n tame Star 0e Rays 10/8/2022 10/8(2012 Definite
1225-65-45808 PrideCapus Parade(Parking tot Usage; City of Corpus Christi 10/9/2022 10/8/2022 Definite
1225.65.43125 Dwight SDeLm AFC five 0/4/2022 10/14/2022 Definite
12756542812 Corpus Christi Souvenir and Recon Show Pinnacle Shows,lIC 0/16/2022 10/20/2622 Definite
122565-46064 e-:Rays Practice ice Rays 0/17/2022 10/17/2022 Definite
127565.46128 Ino Rays Practice ice Rays 0/18/2022 10/18/2022 Definite
122545-43150 Gas Department Safey Meetings G.y of Corpus Christi 0/19/2022 10/19(2022 Definite
1225.65.46034 ion Rays Practice let Rays 0/19/2072 10/19/7022 Definite
12254545710 ice Rays Practice Ira Rays 0/70/2022 10/20/2022 Definite
12216545678 ce Ran aractk7 re Ran 0/21/2022 1021/2022 Definite
122565-45747 :ce Rays vs Oklahoma Ire Rays 0/21/2022 1011/2022 Definite
122565-44908 Menopause,The A..74a1 Innovation Arts&Entertainment 0/21/7022 10/21/2072 Definite
122545-42513 New Were 0p0 Comic Con New Wave Rpo 011/2022 10/22/2022 Definite
122545.37488 Blackladet Symphony Errporiun Presents 012/7072 1017/7022 Definite
12254545645 :ce Rays Practice ice Rays 0/221072 10/22/7022 021306o
122545.44751 Ice Rays vs Oklahoma ice Rays 0/22/2022 10/72/2022 Definite
1275-28876 TCOL6 Texas Commission on Law Enforcement 0/22/2022 10/27/2022 Definite
1225-6544850 Air Form Band of the west Recording Session Ai Force Band OF The West Conan Band 0/24/2022 10/28/2022 Definite
12254543566 Reba McEntire live Nation 0/28/2022 10/291072 Definite
1225-65-35133 Clime,on Ice Feld Entertainment,Inc 11/2/2022 11/6/2022 Definite
12254543436 Ng Summit W7 JMed Medical Management 11(2/2022 11/31022 Define
12254545549 The Blue Man Group Innovation Arts6EMenMtnent 1U4/2022 1114/2022 Definite
1225-65-31950 NA2SAAssodalicn of international Educators.Pehi0n 602072 NAF9A'.Association of hternrtinnal Educators 11/6/7022 11/91022 Definite
127545.45011 Marin Caps Ball MATSG-22 11/10/2027 21/2010220211151e
122545-44719 Ia Raysys Amaralo ice Rays 11/11/2022 11/111022 Definite
1225-65-43309 rads Wilms Awakening Erelle 11/11/2022 11/11(2022 Definite
12254543825 Galvau-Buenteb Wedding Alexandra Gahan 11/12/2022 11/12/2022 Definite
122545.44783 Ice Rays n Amarillo kz Rays 11/12/2022 11/12/2022 Definite
122545-32118 Southern Baptists oe Texas Convention Southern B<plists Of Texas 11/13/2022 11/15/7022 Definite
1225-6545036 TAMUCC Basketball TAMUCC Basketball 11/13/2072 11/13/2022 Definite
12254544972 TAMUCC Basketball TA MUCO Basketball 11/14/2072 11/14/2022 Definite
1725-65-44881 TAMUCC Men',Bask,1b3I TAMUCC Basketball 11/16/2077 11/16P022 Deride
172565.44851 TAMUCC Men's Basketball TAMUCC Basketball 11/17/2022 11/17/2022 0211467
17254543761 PeraOlvea Wedding Stephanie Pena 11/18/702211/19/2022 Derek*
/2254544814 Ice Rays vs New gamin, 0e Rays 11/25/2022 11/25/2021 Defkite
12254543341 Intone-01e Wva EMm
er.ainent Network 11/25/2022 /1/251022 Definite
177545.43695 Deck The Nags-Disney Featuring DCappega CM 11/26/2022 11/261022 Definite
12754544846 Ice Rays ys New Mexico son Rays 11/26/2022 11/26/2022 Definite
1225.65-40973 Laregora-Medina Wedding Aaron Medina 11/26/2022 11/76/2022 Definite
12236 TAMPERE Texas 20106010*for Health,Physical Education,Recreation and Dana 11/29/2022 12/3/2022 Definite
122545-44877 Ice Ran as 0 Pao to Rays 12/1/2022 12/1/2022 0216067
12254944752 Ice Raysn N Paso ice Rays 12/2/2022 12/2/2022 Definite
222565.45039 TAMUCC Basketball TAMUCC Basketball 12/3/2022 12/3/2022 Definite
/7254544973 TAMUCC Basketball TAMUCC Basketball 17/6/2022 12(7/2022 Define
122545-39660 Cher1ere lokday/fmpioyee App-edition Party Cheniere 171/2022 12/10/2022 Definite
12256540172 CC Beget The Nutcracker Corpus Ongtl Ballet 12/8/2022 12/18/2022 Definite
1225.6542604 AFGE 1406day Party An•erken Fede ma Mort ofGovemmm7 Employees 12/9/2022 12/10/2022 Definite
1229.65.35876 TAMUCC Cracked., Tea**A&M University•COMO Christi 12/9/2022 12/101022 Orr.rte
12254545773 A Dreg Qu me Christmas Mop Presents 12/12/2022 6/12(222 Definite
172545.43726 The lk,iarists Tobin Entertainment 17/151072 12/15/2022 Definite
12254545772 Coastal O,46was 2022 American Bark Center 12/190022 12/23/2022 Definite
/2256542940 Fent of Sharing 1E8 Grocery Company 12/22/2022 12/240022 071301,
1225-65.45836 A Magical Cinque Ovhtnas live Nation 12/26/2022 12/26/2022 Definite
122545-46030 Ice Ran ys Shreveport Ice Rays 12/29/2022 12/29/2022 Definite
122545-45970 Ice Rays rt Shreveport ice Rays 12/30/2022 12/30/2072 Def1:le
1229.65.44815 Ice Rays vs Odessa re Rays 1/5/2073 1/5(2023 Deficit.
17254544847 Ice Rays as Odessa sex Rays 1/6/2023 1/6/2023 021141n
172545-44946 TAMUCC easkelbat TAMUCC Basketball 1/11/2023 1/12/2023 Definite
122565-44974 TAMUCC Basketball TAMUCC Basketball 1/13/2023 1/14/023 Definite
122565.43410 Dr.)Eider P.Garda foundation Luncheon lector P.Garda Memorial Foundation 1/19/2023 1/701023 Dei4e
112545-44878 Ice Rays vs lone Star Ino Rays 1/201023 1/20/2023 021307e
12254544753 ice!lays n lane Star sex Rays 1/21/7023 1/21/2023 Definite
12254543120 Sophia Rojas Quince Edith Rojas 1/21/2023 1/21/2023 Definite
13847 ECCIA Region Famlr,Caren and Commin ity Leaders of Ameria 1151023 1/28/2023 Definite
12254545042 TAMUCC Basketball TAMUCC Basketball 6/75/2073 1/76/2023 Definite
122545.45004 TAMUCC Basketball TAMUCC Basketball 1/27/2023 1/28/2023 Definite
12254545685 to Roy Ion Canons 1/29/2073 1191023 Degte
12254542965 Haden Globetrotter, Harlem Globetrotters 21/2023 2/2/1023 Definite
12254544721 Ice Rays n Cklahom4 ice Rays 2/3/2023 2/3/1073 Definite
17254544785 ice Ran vs Oklahoma ice Rey, 2/4/2023 2/4/203 Definite
1275-65.44911 TAMUCCBasketbae TAMUCC 9askebail 2181073 2/9/2023 Definite
12254545073 TAMUCC Basketball TAMUCC Bsfketbeg 2/10/7023 7/11/023 Definite
122945.39340 51,en 750 Epod,times 7/13/2023 2/141023 Definite
Page 33 of 40
1225-65.29712 Episcopal Diocese of West Texas Episcopal Diocese of West Texas 2/15/2023 2/18/2023 Definite
122565.44816 Ice Rays vs Odessa Ice Rays 2/17/2023 2/17/2023 Definite
1225.65.44848 Ice Rays vs Odessa Ice Rays 2/18/2023 2/18/2023 Definite
1225-65-44947 TAMOCC Basketball TAMUCC Basketball 2/22/2023 2/23(2023 Definite
1225-65-43344 Anime Copus Christi Nigh Tide Events LLC 2/23/2023 2/26/2023 Definite
172565.44976 TAMUCC Basketball TAMUCC Basketball 2/24/2023 2/25/2023 Definite
1225-65-41388 Charity League Style Show&Luncheon Charity League 7/27/2073 3/2/2023 Definite
122565.44879 Ice Rays vs Shreveport ice Rays 3/3/2023 3/3/2023 Definite
172565-44754 Ice Rays vs Shreveport Ice Rays 3/4/2023 3/4/2023 Definite
14117 Sk)BsUSA Texas State Leadership&Skills Conference Texas SkilsUSA 3/27/2023 4/2/2023 Definite
1225-65-44722 Ice Rays Game(Regular Season) Ice Rays 3/30/2023 3/30/2023 Definite
122565-44786 Ire Rays Game(Regular Season) ice Rays 3/31/2023 3/31/2023 Definite
1225-65-39891 Texas Transit Association Conference Texas Transit Association 4/11/2023 4/14/2023 Definite
1225-65-45809 For King and Country teff Roberts&Associates
4/15/2023 4/16/2023 Definite
1225-65-37871 TEMA Confereece Texas Energy Managers Association 4/25/2023 4/28/2023 Defirite
1225.22434 Buc Days Rodeo&Carnival Buccaneer Commission 5/3/2023 5/15/2023 Definite
122565-31022 Buc Days Parade PadsanRa Buccaneer Commission 5/5/2023 5/6/2023 Definite
1225-65-37744 TAMUCC Graduation Texas A&MUriversity-Corpus Christi 5/20/2023 5/20/2023 Definite
1225-65-42764 VPPPA Region V Conference Voluntary Protection Program Participant Region VI 5/21/2023 5/24/2023 Definite
1225-65-29709 Flour Bluff NS Flexr Bluff Nigh School 5/25/2023 5/25/2023 Definite
1225-65.44718 London HS Graduation London 15O 5/25/2023 5/26/2023 Definite
13033 UMC-United Methodist&o Texas United Methodist Rio Texas Conference 6/5/2023 6/10/2023 Definite
127565.43501 TxSWANA Conference Lone Star Chapter of the Solid Waste Association of tenth America 6/11/2023 6/16/2023 Definite
1225-26538 AWED Association Of Water Board Directors/Texas 6/19/2023 6/24/2023 Definite
1225-65-42939 DPS Challenge Texas Trucking Association 6/26/2023 6/27/2023 Definite
1225-65-45998 8 National Talent 8 National Talent 6/27/2023 7/2/2023 Definite
122565.37426 Copus Christi Conic Con high Tide Events LLC 7/27/2023 7/30/2023 Definite
172565.35907 TAMUCC Graduation Texas A&M University•Corps Christi 8/11/2023 8/12/2023 Definite
122565.43692 Coastal Bend Creator Con Coastal Bend Creator Con 8/18/2023 8/19/2023 Definite
1225-23878 TX Water Utilities Association Annual School Texas Water Utilities Association 9/18/2023 9/21/2023 Definite
122565-43001 TASBO 2023 Operation Academy&faality Masten Texas Association Of School Bushes Officials 10/17/2023 10/20/2023 Definite
1225-65-35372 TCOLE Texas Commission on Law Enforcement 10/21/2023 10/26/2023 Definite
122565-42973 International REI Productions,Inc Imemational REI Productions.inc. 11/14/2023 11/16/2023 Definite
122565-41740 CC Baaet The Nutcracker Corpus Christi Ballet 12/7/2023 12/17/2023 Definite
1225-65-35939 TAMUCC Graduation Texas A&M University-Corpus Christi 12/16/2023 12/16/2023 Definite
122565-44716 FCCIA Region V Famiy,Career and Community Leaders of America 1/31/2024 2/3/2024 Definite
14337 BPA Convention Business Professionals of America 2/26/2024 3/2/2024 Definite
14110 TX Water UtiiOes Association Annual School Texas Water Ulities Association 3/3/2024 3/7/2024 Definite
14118 SkalsUSA Texas State Leadership&Skills Conference Texas SkIsUSA 4/1/2024 4/6/2024 Definite
122565.30990 (kW Days Parade Pad,anga Buoaneer Camvnission 5/3/2024 5/4/2024 Definite
13034 VAC-United Methodist Rio Texas United Methodist Rio Teras Conference 6/3/2024 6/9/2024 Definite
14586 TAPT Conference Texas Association for Pupa Transportation 6/20/2024 6/25/2024 Definite
122565.37901 The Samoyed Cub of America.Inc National Specialty Seswyed Club of America,Inc 10/20/2024 10/26/2024 Definite
127565-44717 FCCLA Region V Family,Career and Community Loaders of America 1/29/2025 1/31/2025 Definite
1225.23910 TX Water Utilities Association Annual School Texas Water UtBities Association 3/2/2025 3/6/2025 Definite
13182 TKOC Knights Of Columbus-Texas State Council 4/28/2025 5/4/2025 Definite
172565.31053 Buc Days Parade Parhanga Buccaneer Caranission 5/2/2025 5/3/2025 Definite
13835 ATAT Agriculture Teachers Association of Texas 7/19/2025 7/25/2025 Definite
122565.44621 fCCIA Region V Family,Career and Community Leaders of Amerna 1/28/2026 1/31/2026 Definite
1225-65-29713 Episcopal Diocese of West Texas Episcopal Diocese of West Texas 2/25/2026 2/29/2026 Definite
1225-23942 TX Water Utilities Association annual School Texas Water Utilities Association 3/1/2026 3/4/2026 Definite
1225-65-43601 TEMA Conference Texas Energy Managers Association 4/20/2026 4/23/2026 Definite
122565.31054 Buc Days Parade Padsanga Buccaneer Commission 5/1/2026 5/2/2026 Definite
122565.310.55 Buc Days Parade Pachanga Buccaneer Commission 4/30/2027 5/1/2027 Definite
I
Page 34 of 40
Exhibit C
OPERATING BUDGET
City of Corpus Christi-Budget
Visitors Facilities Fund 4710
Original Amended
Account Actuals Budget Budget Estimated Proposed
Number Account Description 2020-2021 2021-2022 2021-2022 2021-2022 2022-2023
Beginning Balance $ 8,832,813 $ 3,053,775 $ 10,660,901 $ 10,660,901 $ 6,910,209
Revenues:
302350 Special events permits $ 5,000 $ 12,750 S 12,750 $ 13,700 $ 9,500
311500 Multicultural Center rentals 32,510 32,845 32,845 17,540 16,765
311510 Heritage Park maint contract 40,646 22,200 22,200 39,954 42,876
311600 Operating Revenues-Convention Center 2,479,722 2,542,684 2,542,684 2,120,639 2,460,950
311760 Operating Revenues-Arena 1,714,500 2,002,389 2,002,388 1,800,000 2,699,581
312000 Pavilion rentals 11,465 2,500 2,500 6,550 2,500
360030 HOT Reimbursements 2,499,996 3,000,000 3,000,000 3,000,000 1,000,000
340900 Interest on investments 17,421 5,829 5,829 25,727 137,109
340995 Net Inc/Dec in FV of Investments (1,982) - - - -
341000 Interest earned other than Investments 459 2,990 2,990 1,236 -
344000 Miscellaneous 55 - - -
TOTAL REVENUES S 6,799,791 $ 7,624,186 $ 7,624,186 S 7,025,345 S 6,369,281
Interfund Charges:
352000 Transfer from Arena/General Fund $ 6,680,812 $ 3,723,705 5 3,723,705 S 3,723,705 $ 1,043,836
TOTAL INTERFUND CHARGES $ 6,680,812 9 3,723,705 $ 3,723,705 $ 3,723,705 $ 1,043,886
Total Funds Available $ 22,313,416 $ 14,401,666 $ 22,008,792 $ 21,409,951 $ 14,323,376
Expenditures:
12930 Bayfront Arts&Sciences Park 748,432 978,272 1,068,839 916,412 -
13600 Convention Ctr/Auditorium Ops 4,090,895 4,665,963 4,805,228 4,243,639 4,122,591
13610 Arena Capital 3,571,172 2,282,085 8,333,187 6,051,102 4,231,908
13615 Arena-Marketing/Co-Promotion 130,720 650,000 1,540,000 100,000 650,000
13616 Convention Ctr Content Development 20,000 - 125,000 • -
13625 Arena Operations 2,510,674 2,697,641 2,711,145 2,513,401 3,449,479
13710 Cultural Facility Maintenance 164,132 180,420 304,878 275,738 170,647
50010 Uncollectible accounts 3,673 - - - -
60010 Transfer to General Fund 229,781 216,198 216,198 216,198 236,736
60130 Transfer to Debt Service 183,036 183,252 183,252 183,252 182,100
10830 Cash Management 2,990 2,990 - -
TOTAL EXPENDITURES S 11,652,515 $ 11,856,821 $ 19,290,717 $ 14,499,742 S 13,043,461
Gross Ending Balance $ 10,660,901 S 2,544,845 S 2,718,075 S 6,910,209 $ 1,279,916
Encumbrances 8,358,226
Net Ending Balance S 2,302,675 S 2,544,845 4 2,718,075 S 6,910,209 S 1,279,916
Note. Funding source is from Convention and Arena operations,as well as transfers from Arena Fund and HOT Fund.
I
I
Page 35 of 40
I
City of Corpus Christi - Budget
Hotel Occupancy Tax Fund 1030
Original Amended
Account Actuals Budget Budget Estimated Proposed
Number Account Description 2020-2021 2021-2022 2021-2022 2021-2022 2022-2023
Beginning Balance $ 2,280,777 $ 1,938,977 $ 5,702,259 $ 5,702,259 5 4,517,197
Revenues:
i 300500 Hotel occupancy tax $ 13,834,119 $ 12,752,148 $ 12,752,148 $ 13,492,631 $ 13,491,825
300501 Hotel occ tx-conv exp 3,%2,499 3,643,289 3,643,289 3,649,504 3,654,615
300530 Hotel tax penalties-current yr 45,394 36,000 36,000 70,777 60,072
300531 Hotel lx penalties CY-conv exp 12,959 10,285 10,285 19,792 17,163
340900 Interest on Investments 1,568 233 233 13,463 135,256
340995 Net Inc/Dec In FV of Investment (542) - - - -
TOTAL REVENUES $ 17,855,997 5 16,441,955 $ 16,441.955 $ 17,446,168 5 17,558,931
Total Funds Available $ 20,136,774 5 18,380,932 $ 22,144,214 $ 23,148,427 $ 22,076,128
Expenditures:
11305 Administration $ 107,784 $ 150,000 $ 150,000 $ 136,225 $ 150,000
12930 Bayfront Arts E.Sciences Park - - - - 995,537
13010 Special Events - - - - 20,000
13012 Texas Amateur Athletic Federation-Games of Texas 300 250,000 250,000 250,000 -
13013 Museum of Science&History 48,899 550,000 550,000 550,000 550,000
13492 Art Museum of South Tx 350,000 350,000 350,000 350,000 375,000
13495 Botanical Gardens 40,000 65,000 65,000 65,000 70,000
13601 Convention Center 2,499,996 3,000,000 3,000,000 3,000,000 1,000,000
13605 Convention Ctr.Plaint 202,911 250,000 347,676 347,676 250,000
13606 Convention Ctr.Capital 514,812 1,275,000 2,573,771 1,298,771 3,275,000
13616 Group Incentive Program(GIP) 228,482 575,000 730,825 575,000 575,000
13616 Seawall Programming - 100,000 100,000 50,000 100,000
13640 Harbor Playhouse - 15,000 15,000 - -
13641 Heritage Park-Historic Tour Guides - 6,000 6,000 - -
13800 Convention promotion 5,299,473 5,570,077 5,570,077 6,366,812 5,933,586
13812 Texas State Aquarium 300,000 300,000 300,000 300,000 310,000
13815 Arts Grants/Projects 17,950 200,000 200,000 200,000 300,000
13816 Multicultural Services Support 358,860 378,318 378,318 378,316 365,084
13817 City Wide WaytInding - 500,000 500,000 50,000 450,000
13818 North Beach Plaza Historical Signs 6,396 100,000 107,753 92,625 -
13826 Baseball Stadium Including Insurance - 175,000 350,000 175,000 358,653
13835 Beach Cleaning(HOT) 1,950,000 1,950,000 1,950,000 1,950,000 1,950,000
15100 Economic Development - 225,000 225,000 201,000 225,000
60010 Transfer to General Fund 166,191 136,715 136,715 136,715 214,668
60130 Transfer to Debt Service 2,342,460 2,138,088 2,138.088 2,138,088 2,097,312
TOTAL EXPENDITURES $ 14,434,515 $ 16,259,198 5 19,994,224 $ 18,631,230 6 19,564,840
Gross Ending Balance $ 5,702,259 $ 121,733 $ 2,149,991 6 4,517,197 $ 2,511,287
Encumbrances 3,682,476 - - - -
Net Ending Balance $ 2,019,783 5 121.733 5 2,149.991 $ 4,517,197 5 2.511,287
4
Page 36 of 40
4
0
0
OVG 360
AMERICAN BANK CENTER- CUMULATIVE
PRO FORMA OPERATING STATEMENT
Year 1
Number of Events 261
Total Attendence 415,750
Arena Event Revenue $ 2,302,801.00
Convention Center Event Revenue $ 2,304,450.00
Total Event Revenue $ 4,607,252.00
Total Sponsorships&Premium Seating $ 446,280.00
In Kind Revenue $ 297,000.00
TOTAL OPERATING REVENUE $ 5,350,532.00
Indirect Operating Expenses
Total Indirect Operating Expenses $ 6,091,752.00
Net Before Management Fee $ (741,221.00)
OVG 360 Management Fee $ (144,000.00)
OVG Hospitality F&B Annual Fee $ (240,000.00) *Assumpti
Net After Management Fee $ (1,125,221.00)
Page 37 of 40
Exhibit D
INSURANCE
OVG'S LIABILITY INSURANCE
A. OVG must not commence work under this Agreement until all insurance required has been
obtained and such insurance has been approved by the Owner. OVG must not allow any
subcontractor to commence work until all similar insurance required of any subcontractor has
been obtained.
B. OVG must furnish to the Owner's Risk Manager and Contract Administer one (1) copy of
Certificates of Insurance (COI) with applicable policy endorsements showing the following
minimum coverage by an insurance company(s) acceptable to the Owner's Risk Manager. The
Owner must be listed as additional insureds on all applicable policies, except for Workers'
Compensation and Crime coverage,by endorsement,or by coverage through a blanket additional
insured endorsement offering additional insured coverage as required by written contract. A
waiver of subrogation is required on all applicable policies. Endorsements, where blanket
coverage is not provided, must be provided with COI. Project name and or number must be listed
in Description Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
Commercial General Liability Including: $5,000,000 Per Occurrence
1. Commercial Broad Form $5,000,000 Aggregate
2. Premises—Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury-Advertising Injury
Auto Liability Including: $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
Worker's Compensation Statutory and complies with Part II of this
(All State's Endorsement if OVG is not domiciled Exhibit D.
in Texas)
Employer's Liability
$500,000/$500,000/$500,000
Excess Liability $9,000,000 Per Occurrence
$9,000,000 Aggregate
Page 38 of 40
Crime/Employee Dishonesty $1,000,000 Per Occurrence
Contractor shall name the City of
Corpus Christi,Texas as Loss Payee. _
Liquor Liability $1,000,000 Combined Single Limit
$5,000,000 Aggregate
OVG and Any Subcontractors Are
Responsible for All Damage to Their
Own Equipment or Property
C. In the event of accidents of any kind related to this agreement, OVG must furnish the Risk
Manager with copies of all reports of any accidents within 10 days of the accident.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, OVG must obtain workers' compensation coverage through a
licensed insurance company. The coverage must be written on a policy and endorsements
approved by the Texas Department of Insurance. The workers'compensation coverage provided
must be in an amount sufficient to assure that all workers'compensation obligations incurred by
OVG will be promptly met.
B. OVG shall obtain and maintain in full force and effect for the duration of this Contract, and any
extension hereof, as an Operating Expense, insurance coverage written on an occurrence basis,
by companies authorized and admitted to do business in the State of Texas and with an A.M.
Best's rating of no less than A-VII.
C. OVG shall be required to submit a copy of the replacement certificate of insurance to Owner at
the address provided below within 10 days of the requested change. OVG shall pay any costs
incurred resulting from said changes.All notices under this Article shall be given to Owner at the
following address:
City of Corpus Christi
Attn: Risk Manager
P.O. Box 9277
Corpus Christi,TX 78469-9277
D. OVG agrees that with respect to the above required insurance,General and Liquor liability,Auto
Liability, and Excess Liability, are to contain or be endorsed to contain blanket additional
insured status to Owner as required by written contract the following required provisions:
• List the Owner and its officers, officials, employees, volunteers, and elected representatives as
additional insureds by endorsement, as respects operations, completed operation and activities
of, or on behalf of, the named insured performed under contract with the Owner, with the
exception of the workers' compensation policy;
Page 39 of 40
• Provide coverage on a primary, non-contributory basis;
• Workers' compensation and employers' liability policies will provide a waiver of subrogation in
favor of the Owner; and
• Provide 30 calendar days advance written notice directly to Owner of any, cancellation, non-
renewal, reduction in coverage below the minimum required herein or termination in coverage
and not less than 10 calendar days advance written notice for nonpayment of premium.
E. Within 5 calendar days of a cancellation, non-renewal, material change or termination of
coverage, OVG shall provide a replacement Certificate of Insurance and applicable endorsements
to Owner.Owner shall have the option to suspend OVG's performance should there be a lapse in
coverage at any time during this contract. Failure to provide and to maintain the required
insurance shall constitute a material breach of this contract.
F. In addition to any other remedies the Owner may have upon OVG's failure to provide and
maintain any insurance or policy endorsements to the extent and within the time herein required,
the Owner shall have the right to order OVG to withhold any payment(s) if any, which become
due to OVG hereunder until OVG demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which OVG may
be held responsible for payments of damages to persons or property resulting from OVG's or its
subcontractor's performance of the work covered under this agreement.
H. It is agreed that OVG's insurance shall be deemed primary and non-contributory with respect to
any insurance or self-insurance carried by the City of Corpus Christi for liability arising out of
operations under this agreement.
I. It is understood and agreed that the insurance required is in addition to and separate from any
other obligation contained in this agreement.
2021 Insurance Requirements
Ins. Req. Exhibit
Contract for Management of American Bank Center
4/6/2022—ALA Legal Dept.
Page 40 of 40