HomeMy WebLinkAboutC2006-296 - 7/20/2006 - NA
SMG
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FOURTH AMENDMENT TO
PRE-OPENIl\JG SERVICES AND MANAGEMENT AGREEMENT
FOR
CORPUS CHRISTL MULTI-PURPOSE ARENA
BETWEEN
CITY OF CORPUS CHRISTI, TEXAS
AND
SMG
2006-296
07120/06
t_OLRTH AMENDMENT TO PRE-OPENING SERVICES
AND MA~AGEMENT AGREEMENT
THIS FOURTH ArvlENDMENT TO PRE-OPENING SERVICES AND MANAGEMENT
\GREEMFNT ("Fourth Amendment") is made ancl entered into effective as of August 1,2006 by
,tI1d bet\\ eell SMG. ,l Penn"ylvania genera] partnership ("Operator") and the CITY OF CORPUS
CHRISTI. TEX~S ("(,itv",
RECITALS
A Reference is here made to that certain Pre-Opening Services and Management Agreement
dated December 18. 200 I. executed by and between the City and the Operator (as amended
lrol11 time to time, the "Exist1l1g Agreement"'). Words with initial capital letters used but not
defined herein -.;hall have the respective meanings ascribed to them in the Existing
\greemcm.
B Pur"lIant to ;';ectIon7.3(b! of the Existing Agreement. the City and the Operator agreed to
I1cguliate and attempt to agree upon an incentive fee formula pursuant to which Operator
ma:- earn, In aclditio!l to the monthly management fee described in Section 7.2(a) and (b) of
the Existing .\greement. an amount not in excess of. in any given year, 25% of the base
management fee paid during that year under Section 7.2(b) of the Existing Agreement; in all
nelllS the fee "halllumpl: with the provisions of Revenue Procedure 97-13,
C Pur"lIanl to Section 7.3(b) uf the Existing Agreement, the City and the Operator have
negotiated and agreed on the "budget"' benchmark to apply to the quantitative portion of the
IIlccntive fee I~mnul.l for the COI1\ ention Center operations.
NOW. THEREFORE. n consideratIon of the premises and mutual promises and covenants
sd forth below. the partIes. intending to be legally bound, agree as follows:
I. /\n)endments toExlsting Agreement.
~ection_l2 of the EXIsting Agreement is hereby amended by adding the following
paragraph:
'k) For management oj Convention Center operations, the basis upon
\\ hIeh Operator m,tY earn an incentive fee shall be based upon Operator's
"lIclTssful operation of the Convention Center with "success" being determined by
the City utilizing factors simIlar tu those outlined in clauses (i) and (ii) of Section
-;' )i ,I i of the Existing Agreement i made applicable to the Convention Center);
except (hat clause i i) (knO\\n Ll'i "the quantitative factor of the incentive fee
turmula"') IS 'illbstituted as follow,,: As to operations applicable to the Convention
('enter, Operator shall be deemed to have earned such incentive fee only if (i)
ell.tual aggregate expenditures incurred to operate the Convention Center, including
the actual costs for utilities and telecommunications services. is equal to or less
than the aggregate ,\lTIount projected in the Approved Budget for that period, and
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(11) Operator'" performance in the management of the Convention Center has been
rated "positively" ill accordance with clause (ii) Section 73(a) of the Existing
Agreement (made applicable to the Convention Center).
l\1iscdlaneous Thi~ Fourth ~mendment shall be governed by and construed in accordance
ith the la\\'-. of the State 01 Texas, Except as expressly amended hereby, the Existing Agreement
,hall remain 111 full force and effect. The Existing Agreement, as hereby amended, is hereby ratified
dnd confirmed In all respech, The Distrii...'t Courts of Nueces County, Texas shall be the exclusive
r>lace of '-('nul' for any disputes arislI1g under or with respect to this Fourth Amendment. This
hmrth An1l'ndmellt ilia) be exel'uted in olle or more i...'ounterparts, and each such counterpart shall
i no all purp\ )"es he deemed III be an (lrigllwl but all such counterparts taken together shall constitute
f'ut one ,l!ld ,al1le in..,lruI1lelil, binding UpOIl the parties, notwithstanding that all of the parties may
'iilt hdve l'x,'cUlL'd thL' same ounterpal1
'lhe undersigned ha \ l' exeulted ! hIS Fourth Amendment as of the date first set forth above,
CITY OF CORPUS CHRISTI, TEXAS
Gek);-
City Manager
date
\ppwved ,h to legal torm:
I~Y~~~
\' cronica Ocanas
\ssistant Clly Attorney
~. / "),-O-Oy>
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c1ate
SMG, a Pennsylvania joint venture
By:_
Name:
Title:
Date:
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JclAl\) "F. 1:SurzN S
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