HomeMy WebLinkAboutC2017-373 - 6/29/2017 - NA MEMORANDUM OF UNDERSTANDING
RE: University License Agreement
This Memorandum of Understanding ("MOU") is entered into by and between Texas
A&M University— Corpus Christi ("TAMU-CC"), a member of the Texas A&M
University System, an agency of the State of Texas, and the City of Corpus Christi, a
Texas home rule municipal corporation (the "City").
Recitals
WHEREAS, the City entered into a Management Agreement with SMG in 2012
for the management of the American Bank Center, located at 1901 N. Shoreline;
WHEREAS, the Management Agreement expires on January 31, 2018, and the
City intends to issue a Request for Proposals ('RFP") to procure a management
company for the American Bank Center;
WHEREAS, TAMU-CC entered into a University License Agreement with SMG
dated September 8, 2015 and amended three times in 2016 (the "License
Agreement"), which expires on January 30, 2018, and includes two optional one-
year renewals. A true and correct copy of the License Agreement and the current
amendments to the License Agreement are attached hereto as Exhibit A; and
WHEREAS, TAMU-CC would like to exercise the optional renewal of the
License Agreement and is requesting assurance that it can do so despite the
issuance of the RFP.
NOW, THEREFORE in consideration of the mutual covenants in this
Memorandum of Understanding, the undersigned parties (the "Parties") hereby
aoree as follows:
1. Purpose. The purpose of this Memorandum of Understanding ("MOU") is to lay
out the understanding of the Parties regarding the License Agreement, the
Management Agreement, and any relevant future agreements.
2. Assurances by the City. The City will include in the RFP a requirement that all
proposers agree to accept assignment of the License Agreement. The City will
promptly inform TAMU-CC of the name of the independent contractor selected by City
Council to manage the American Bank Center following the RFP ("Independent
Contractor"). The City will include in its management agreement with the Independent
Contractor a requirement that the Independent Contractor execute an agreement with
TAMU-CC assuming the responsibilities and obligations of SMG under the License
Agreement until final expiration or termination pursuant to the terms and conditions of
the License Agreement. The City will not be a party to the License Agreement or any
other agreement between TAMU-CC and SMG or the Independent Contractor. In the
event that there is a time during which no management agreement is applicable to the
A 2017-373 iter due to termination or expiration of the current Management
6/29/17
TAMU-Corpus Christi INDEXED
Agreement prior to the start of a subsequent management agreement, the License
Agreement will be automatically assigned to the City until a new management
agreement is in place.
3. Assurances by TAMU-CC. TAMU-CC will renew the License Agreement for at
least one of the optional one-year renewal periods. TAMU-CC will not attempt to hold
the City responsible for any failure of SMG or the Independent Contractor to comply
with the terms of the License Agreement or any other agreement between TAMU-CC
and SMG or the Independent Contractor. TAMU-CC's assurance not to hold the City
responsible for any failure of SMG or the Independent Contractor shall survive the
expiration of this MOU.
4. Expending Funds. Each Party which performs services under this MOU will do
so with funds available from current revenues of the Party.
5. Term of MOU. This MOU takes effect once approved by all Parties. This MOU
shall expire upon the final expiration or termination of the License Agreement,•unless
terminated sooner. This MOU may be terminated by written notice of either Party upon
any of the following events: (1) the execution of an assignment agreement between
TAMU-CC and the Independent Contractor, (2) the execution of a subsequent
agreement between TAMU-CC and the City regarding the License Agreement, or (3)
the execution of a new management agreement between the City and SMG.
6. Entire Agreement. This MOU represents the entire agreement between the.
Parties.
7. Severability. If any provision of this MOU is held invalid for any reason, the
invalidity does not affect other provisions of the MOU, which can be given effect
without the invalid provision. To this end the remaining provisions of this MOU are
severable and continue in full force and effect.
8. Immunity not Waived. Nothing in this MOU is intended, nor may it be deemed,
to waive any governmental, official, or other immunity or defense of any of the Parties
or their officers, employees, representatives, and agents as a result of the execution
of this MOU and the performance of the covenants contained in this MOU.
9. Civil Liability to Third Parties. Each Party will be responsible for any civil liability
for its own actions under this MOU, and will determine what level, if any, of insurance
or self-insurance it should maintain for such situations.
10. Amendments to MOU.
A. This MOU may not be amended except by written MOU approved by the governing
bodies of the Parties.
B. No officer or employee of any of the Parties may waive or otherwise modify the
limitations in this MOU, without the express action of the governing body of the Party.
CITY OF CORPUS CHRISTI
01444i) e 1740. v t �J
Margie C. Kose Date
City Manager
Approved as to Legal Form
1A;NA)-` al-ZekvA-4?-dloIn-
Aimee
Alcorn-Reed Date
Assistant City Attorney for City Attorney
Texas A&All University - Corpus Christi
Pt-) - I3 " I �
Kelly QuinyaniIla Date
Interim President/CEO
91,1•1,A'
EXHIBIT A
UNIVERSITY LICENSE AGREEMENT
between SMG and TEXAS A&M UNIVERSITY-CORPUS CHRISTI
This LICENSE AGREEMENT ("Agreement" or "License") is effective S opts nrber I,
20 15 - between SMG, as an independent contractor of the City of Corpus Christi, Texas and
having its primary address al 1901 N. Shoreline Boulevard., Corpus Christi, 'texas 78401
("SMG"), and TEXAS A&M UNIVERSITY-CORPUS CHRISTI, a member of The Texas
A&M University System, all agency of the Slate of Texas whose address in 6300 Ocean Drive.
Capes Christi,Texas 78412("TAM1I-CC").
WITNESSETH:
WHEREAS, the City of Corpus Christi,T ens (the"City") is the owner of a certain sports
and entertainment facility in Corpus Christi,Texas(the "Arend'); and
WHEREAS, SMG entered into that certain Management Agreement by and between
he
City and SMG dated December IS, 2001 (as amended tram time to time by the parties, the
Management Agreement"), pursuant to which SMG has certain rights to operate and manage the
Arena as snecitied in the Management Agreement and
WHEREAS, upon the terms and conditions set forth in this Agreement, TAMU-CC
desires to use the Licensed Premises (as hereinafter defined) for the purposes hereinafter set forth
in connection with TAb1U-CC's men's and women's basketball team and other functions hosted
by TAMU-CC, and SMG desires to license the use of the Licensed Premises to TA MU-CC for
such proposes;
NOW THEREFORE, SNIG and TAMU-CC hereby acknowledge and agree, intending to
be legally bound,that the above recitals are tate and correct and further agree as follows:
ARTICLE 1
LICENSED PREMISES
I. For and in consideration of the sunt hereinafter specified, SMG gnats to TAMU-
CC the use of the following areas and Ibcilhies (collectively, the "Licensod Premises") located at
the Arena solely for the purposes and in accordance with the terms and conditions hereinafter set
forth:
(a) That portion of the Arena necessarily required for (i) Practice Sessions (as defined
below), (ii) the basketball contests or TAMU-CC's men's basketball team ("Men's Team") and
women's basketball team (the"Wonted. Team" and,together with the Men's team,the"Teams")
scheduled to be played at the Arena, either individually or as port of a Double-Header or
Tonmamont(each as defied herein) (each such contest a "Game"), and(iii) spectator attendance
and seating and media reporting during Games (including a press lounge or a reasonable equivalent
substituted by SMG therefor);
(h) During each National Collegiate Athletic Association ("NCAA") basketball season
(covering both the mats and the women's seasons, a "Season"), the use of one(I) team locker
room (including an office and training room located therein) and a storage menu with lock and
key for TAMU-CC's use. SMG will use commercially reasonable etTorts to locule an off-season
storage will within the Licensed PiCilliSeS for any equipment and van related items identified! by
TAMU CC- SMG shall b• responsible for the placement of such items in such storage wn4 if
available. SMG sha II be responsible for damages to basketball floor, baskets, scorers and
equipment due to improper storage or from lack of care while setting up or taking dawn the
floor. TAMU-CC shall have a representative Inspect the floor before each game and at the end of
each game. An inspection form will be used to keep a record of the floors condition. A copy of this
Coral will he given to SNfG each time the inspection is done.
TAM U-CC shall receive a credit for damages to the floor and shall deduct that amount
from SMG 's compensation. In no event shall SMO be hdd responsible for normal wear and
tear of any of such items, and the cost of any damages that are to be the subject of a credit or
deduction against SMG's compensation shall be muhally agreed upon at a reasonable amount
by SMG and TAMU-CC,
(e) During the period of time on the day of a Game from 11:00 A.M. twin 11159 P.M.
local time (the "Game Times") and at other Butes as permitted in SMG's sole discretion, provided
TAMU-C C's use does not interfere with other users of the Arena, the use (such use shall be
exclusive during such times as the visiting mum is present at the Arena) of one (I)
visiting team
locker room, the use of the officials' dressing ropms and the non-exclusive use of the
existing laundry facilities and equipment'..
(d) On an as-available basis, during the Caine _lines, up to three hundred (300)
parking spaces on site or at a mutually acceptable location, subject to SMG finalizing an
arrangement to use such parking facility, sueh parking is to be provided by SMG at no cost to
TAMU-CC. TAMU-CC will be able to purchase additional parking tickets at$3 00/ear during
TAMU-CC basketball games, from SMG;
(c) Subject to the teats and conditions set forth in the Suite License Agreement
attached hereto as Exhibit "A" to be executed by the potties hereto and availability, three (3)
luxury suites at the best available locations comprised of a total of thirty-six (36) suite seats
("Suite Seats") at the Arena at no charge during Game Times, and all luxury suites and Suite
Seals at the Arena at no charge during graduation ceremonies. (TAMU-CCshall have the
right to use the Suite Seats for Home Games and graduation ceremonies only). SMO's
general manager has the sole discretion to determine which Suite Seats will be available for use,
and the availability of such Suite Scots is subject to their nut being sold by SMG to third parties.
TAMU-CC shall have the right to transfer use of said Suite Seats to a third party for each Gane
provided that fifteen ( 5) days notice thereof is given to SMG);
(t) Subject to Section 62 hereof; that portion of the Arena requested by TAMU-CC
fur use for commencement exercises on the dates specified in Exhibit "B" attached hereto.
I_. This Agreement grants 'TA MU-CC use only of the Licensed Premises for the uses
specified in Sect Mn 1.1 above and necessary ingress and egress to the Licensed Premises and does
not extend to or include other areas or any surrounding or contiguous areas, provided, however, that
if 1'A NIU-CC desires to use the Licensed Premises for any purpose that is not specified in Section
1.1 above or to use any portion of the Arena (whether or not during Gaines) That is not part of the
Licensed Promises (e.g. meeting rooms at Ilse Arena or Convention Center), TAMU-CC shall
have the,ight to use the Licensed Premises andtor such other areas of the Arena, as the case may be,
subject to(1)SNMCi's prier written approval; and (2) TAMU-CC's payment to SMG of the going rate
for such additional use plus all out-of-pocket expenses Incurred by SMG as a result of .such use
(including but not limited to the cost of air conditioning, heating, lighting, and janitorial and other
personnel) (the events described in Section 1.1 above, together with any additional events that occur
pursuant to this Section 1.2 shall he collectively referred to as the"'I'AtMU-CC Events.") Except as
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specifically sot Paull in this Agceunent or in the Suite License Agreement, the use of all suites at
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the Arena shall he under the exclusive control of SMG. SMG shall control the marketing and sale
of all tickets to all suites (except for TANIU-CC's suite) and remit by check to TAMU-CC, the
actual value of the suite tickets for each home game.
13. SMG shall lender the Licensed Premises to TANIU-CC, and pursuant to the terms and
conditions or this Agreement e xcept as stated herein, SMG makes no wananty or representation of
any kind (express or implied) to TAMU-CC regarding the suitability of the Arena, the Licensed
Premises, or of any portion thereof, for any aspect of the use'fAMU-CC expects or intends to make
of the Lice n'ed Premises-SMG shall(i)provide to TAMU-CC the Licensed Premises (as defined in
Section 1.I) in good working condition, and(ii) uminla in the Licensed Premises, subject to the
terms and conditions of this Agreement, in good working condition, except for reasonable Wear
and tear and Force Majeure Events (as defined in Article 25.1). Notwithstanding anything else
to the contrary contained herein, in no event shall SMG be obligated or responsible to make
any alterations necessary in order for the Licenser) Premises to comply with NCAA
specifications or requirements. EXCEPT AS HEREIN ABOVE PROVIDED, TAMU-CC
AGREES THAT THE LICENSED PREMISES WILL BE DELIVERED BY SMG TO
TAMU-CC WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED AS TO THE
MERCHANTABILITY OR FITNESS FOR THE USE THEREOF FOR ANY PARIICULAR
PURPOSE. SMG shall provide, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED,
AS TO MERCHANTABILITY OR FITNESS FOR THE USE THEREOF FOR ANY
PARTICULAR PURPOSE, as part 01 the Licensed Premises, a scoreboard (jumbo-troll type
arrangement with "basketball video package"), video replay access (including three (3) video
cameras), one(1)taping table per locker room(tor a total of lour (4) tables), a public address
system (which ties into the locker room). two (2) shot clocks, one (1) clock per locker room
(including official's locker room) and access to one(I) ice machine (Which will be located in
the Arena). TAMU-CC shall provide, at its sole cost and expense, a surface for basketball
contests and two (2) basketball goals, scorer 's tables, whirlpools and all training room
supplies.
t.1. TAMU-CC hereby grants to SMG the right to use the basketball court surface and
related equipment in connection with other basketball events such as the Harlem Globetrotters,
high school tournaments, and the like at SMG's sole cost,liability and expense. TAMU-CC shall
General
r
he compensated for such use as uudnn Ily agreed upon by the Ma aer sato MCanthe Director of TAMU-CC. In connection with such use,TAMU- g
right and license to display on the basketball surface in ovi clod by TAMU-CC, those
trademarks and logos of TAMU-CC and its sponsors that have been placed on the court surface,
aid in connection with such events and performances SMG shall be under no obligation to
remove from display any of TANIU-CC's trademarks and/or logos. SMG will provide notice
to TAMU-CC of all sponsorship agreements entered into for surface displays on the
basketball court prior to their execution, and that I hose agreements cannot obligate the
University past the dates of their agreement. TAMU-CC further agrees that the
"SP,G/American Bank Center" name and logo shall retrain on the court surface throughout the
term of this Agreement.
ARTICLE 2
TEAM PRACTICE
The Teams may practice in the Licensed Premises beginning at 9:00 A.M. on the day of
each Game or at such other times as to witch SNIG grants its written consent, which written
consent shall not be unreasonably withheld, but in all events- shall be subject to Force Majeure
(the "Practice Sessions"). AWithout limitation, it shall be deemed reasonable for SMG to refuse
to give TAMU-CC permission for a Practice Session if (i) the usage and practice limes will
interfere with the usage of the Arena by other users and/or would interfere tvilli the preparation
of the Arena for usage by other users to which TAMU-CC has had prior written notice of,
m' (ii) SMO needs to convert the Arena surface for a previously scheduled event. In
miner lion with the use of the Licensed Premises for Caine day Practice Sessions, SMG
shall provide, at no additional expense to TAMU-CC, appropriate heating and/or air
conditioning service, lighting and water for the basketball court area, Team lockerr and
equipment rooms,coaches office and training rooms only. If requested by TAMU-CC
G
will provide heating and/or air conditioning service, lighting and water for non-Gene day
Practice Sessions', provided, however, that TAMU-CC will be solely responsible for
reimbursing SMG for the costs of such utilities- SMG shall provide such services to
)'AMU-CC at the same cost as SMG incurs for such services.
ARTICLE 3
TERM
The terns of this Agrdenwnt (the "Terns") shall commence on September I, 2015,
and shall terminate, unless sooner terminated pursuant to the provisions of this Agreement, at
midnight, Central Time Zone, on January 30, 2018. This Agreement shall be eligible for two (2)
additional one-year periods upon torecinent in Willing by both parties.
ARTICLE 4
LICENSE FEE AND PAYMENTS
- 41 Minimum Fee.
(a) Except as provided herein, TAMU-CC agrees to pay to SFICI a minimum sten per
single Caine utilizing the lower bowl configuration (as nay he adjusted by the following
provisions. the "Minimum Fee") equal to Two Thousand Three !Mildred Dollars (.52. 00.00)
for years 1 and 2 of this agreement together with any and MI applicable sales, use, and
State tax charges, and customary building expenses accruing during the Term resulting lion
TAMU-CC's use of the Licensed Premises, and TAMU-CC's activities or payments ns
described herein. For year 3, the fee will be Two Thousand Four Hundred Fifteen Dollars 02,415.00). (ti
year 4 and 5, the tee may increase by 3% or the CPI Rate if lower. In the event that the 'TAMU-CC
desires to utilize the full arena (i e., the upper and lower bowls) for any such Gaines,the Minimum
fee for such single Game shall be increased by an nnronnt not to exceed One Thousand Five Hundred
Dollars($1,500.00).
(b) The Minimum Fee that TAMU-CC agrees to pay SMG in connection with a
Double-Header or a Tournament(each as defined below)each using only the lower bowl configuration,
TAMIL-CC agrees to pay SMG a Minimum Fee of Iliree Thousand Four Ifundred Filly Dollars
(83,450.00) for years I and 2 of contract. In year 3,the fee will be 53,600. in year 4 and 5. the
fee may increase by 3% or the CPI Rote if lower, which will cover all applicable Games, together
with any and all applicable sales, use and state lox charges,and custounmy building expenses resulting
Rota TA NIU-CC's use of the Licensed Premises. In the event that TAMU-CC des'ir'es to utilize the
full steno(i.c..upper and lower bowls), the minimum fee for such Gaines shall he increased by an amount
not to exceed One Thousand Five hundred Dollars (51,500.110).
(c) For purposes of ILSs Agreement, the term (i) "Double-Slender" means two Gunnel
played on the same day, in which the Mctis Teum plays in one Game and the Women's Teams
plays in the other Gone, and (ii) "Tournament" memo any tournament sponmmd by TAMU-
CC, and shall be limited to no more than tiny (4) Gaines per Tournament day; provided,
however, that the NCAA tournament will not be considered c "Toanamenl" for purposes of this
Agreement and is not permitted under the terms of this Agreement, but the NIT wilt be
considered a "Tournament" for purposes of this Agreement as is permitted under the tams
of this Agreement. If TAMU-CC denims to host an NCAA tournament, the teens and conditions
thereof shall be mutually agreed upon by the parties hereto.
(d) TANIU-CC agrees to pay to SAG a license fee of Two Thousand Three
Hundred Dollars(52,300.00) per day (utilizing the lower bowl configuration) together with any
and all applicable sales,use, and S tate tax charges, and customary building expenses accruing
resulting from TANIU-CCCN use of the Licensed Premises, and TAMU-CCs activities or
paymmtts described in the License Agreement, for any and all TAMU-CC graduations during
the 'Pert. In the event that the TAMU-CC desires to utilize the full arena (i.e, the upper and
lower bowls) foi any such graduation, the fee for such graduation shall he increased by Seven
Hundred Fitly Dollars (S750.00). SMCi reserves the right to require TAMU-CC personnel to assist
SMG in staffing any such graduation.
(c) In the event 'TAMU-UC is unable to use the facilities, for TAMU-CC basketball games only,
for reasons other than Acts of God or circumstances beyond SNI(P's control, SMO agrees to reduce or waive
the rental fee by mutual agreement of bosh parties.
1_g Facility Maintenance Fee. With respect to all Gane played by the Teams.
whether individually, or as part of a Double-lleader or Tournament, TAMU-CC maces to pay
to SMG the per- Caine aggregate soul (the "Facility Maintenance Fee") of (i) T w o Dollars (S
52.00) fur each Game ticket sold with a total face value of at least Ten Dollars (SI0.00), plus (ii)
One Dollar (Sl 00) for each Game ticket sold with a face value of less that Ten Dollars
(510.00). SNIG agrees to provide a rebate to TAMU-CC in the amount of$0,25 lbr each game ticket
sold with a face value of at (east SI 0.00. The change will be included in the ticket price as pact of
facility fees,
1.3. Staffing pees_ TAMU-CC agrees to pay to SMG far certain stalling services
and personnel to be provided by SMG, which personnel shall be limited
Intosy security
personnel, sound operators. cleas-up personnel, .set-tip personnel, ushers, ticket takers,
sellers. Stiff personnel, door gurards, and parking lot attendants at such levels as SMG may
reasonably determine, with the prior consultation °ITAMU-CC, are appropriate (the "Staffing
Fees"). TAMU-CC will, at its sole expense, pity for two (2) TAMU-CC security guards per Game,
specifically to guard the Team benches.
The Stalling Fees paid by ']AMU-CC will lie the same cost as SMG incus for such
services and for personnel. tit the event that TAMU-CC shall request additional services nndor
personnel over that which is customarily provided by SMO for similar events at the Arena, SMG
shill provide such services and for personnel to TAMU-CC at the same cost as SMG incurs
for such services anther persm rued. TAM17-CC shill pay the going rate fur the camera crew That
operates during Games.
4A. Practice Fee. SMO shall not charge TAMP-CC a practice fee on Creme days. All
other practices will be based on Arena availability and TAMU-CC agrees to pay to SMG the
amount of two Hundred Dollars ($200.00) fir two limas of use of the Licensed Promises for
Practice Sessions on non- Gana days (and 575.00 for each hour thereafter) (the "Practice
Fees"), plus die cost of utilities. SMG's sole obligation with respect to Practices is to unlock the
doors before Practice and to lock the doors alter Practice. The cost and expense for any other action
requested of SMG will he borne by TAMU-CC.
4.5. Box Office Receipts- Box office receipts received by SMG will be held by SNIG
through thirty (30) days after the end of each Season (regular and post-season) during the Term of
this Agreement, and applied to the payments due under this Agreement as such amounts are due,
provided, however, -that SMG shall first reduce the Deposit (defined below) to SO before
applying box office receipts to cover amounts due hereunder. TANIU-CC agrees That it has no
rights to that portion of the box office receipts necessary to pay sinus due pursuant to this
Agreement. If for any reason, such box office receipts and deposits are insuOicient to pay all
sums clue under this Agreement (including but not limited to the Nlinnmm Fee, the Facility
Maintenance Fee, the Staffing Fees and the Pi notice Fees), TAMU-CC agrees to pay SMG any
sums chit within Twenty (20) nmrkine days of receipt of an invoice Ibr payment or such fees.
All payments to he made to SMG under this Agreement shall he made in the form of cash,
ani versi ly check,or money order payable to SMG at the address set forth in Section 34.3 hereof.
If TAMU-CC fully and faithfully complies with all of the terms, covenants, provisions, and
conditions of this License, an amount equal to the box office receipts received by SMG with
respect to each Gane, less any amounts due to SMG under this Agreement, shall be tendered to
TAMU-CC within thirty (30) days alter each Game dunng the applicable Season . TAMU-CC
also agrees to pay interest at the maximum rate allowable per annum by law for any sums due.
Payment shall be made pursuant to Texas Government Code,Chapter 2251, Prompt Payment Law. TAMIL
CC hereby acknowledges and agrees that SMG shall have no obligation to pay any amounts to
the Teams in connection with the Games at the Arena.
4E. If. Ibr any reason (other than S:vJG's sole negligence). SN[U is requ,,ed,
due to TA N1 U-CC's failure to vacate the Arena, to provide staffing after midi iglu, Men
TAMU-CC shall reimburse SMG for all out-of-pocket expenses ineuaed by SMG for such
failure to vacate the Arena.
ARTICLE 5
SCHEDULE
5_I, SMG will reserve for,use by TAMU-CC a total of ten (IO) dates for Game days
(Eve (5)of such dates to he Mondays, Tuesdays, Wednesdays or Thursdays and rive (5) of
such dates to be Fridays, Saturdays or Sundays) per season during the months of November.
December, January. February and March as submitted by TAMII-CC to SMG no later thou
January 1 of each calendar year. No Gane will be considered scheduled unless both patties
confirm sueh Gane day in mxviting After July I of each calendar year during the 'Cornu,TAMU-CC
may reserve additional dates for Gaines by notifying SMG in writing of such dates,provided,however.
that any such reservation will be in a second priority position with respect to other events to be
held at the Arena which were scheduled prior to July I of the applicable year ("Other Events"),
if such Gann dales are in conflict with the Other Events. If such a conflict exists, TAMU-
CC may reserve on available date, with the same stipulation that such reservation will be in a
second priority position with respect to Other Events- SMG agrees to put forth its best effort
to accommodate reasonable date requests Eon,TANIU-CC. Once a heal schedule for the 'learns
has been released, SMG may elect to move up to two (2) home dotes per season due
to a "blockbuster concert and/or special events provided SMO has given I'AMUCC no
less than forty five(45) calendar days swine, notice of such reschedule. In the event SMG moves
a home date,the next rental fee dale will be at no cost to the University.
• SMG may elect to move up to two(2)Lome dates per season due to a significant event (multiple
gapes cit one date reflect one hone date). A significant event is categorized as one that enables
SMGllhcility to generate substantial economic impact to the community, or an event that is considered
"high profile". Examples of high profile events are included,but not thrilled to,live performances such as
concerts, comedians, speakers{ and major sporting events. The Facility Manager will act in good faith in
determining whether as game should be relocated due to a high profile event.
5_2 (a) The dates lbr TAMU-CC commencement exercises during the term of this
Agreement are set forth in Exhibit "B" attached hereto. The dates for the first three (3) years of
en rune nttntent exercises are confirmed and may not be changed, unless mutually agreed to in
writing via amendment. The location for commencement exercises shall be the Arena.
(b) For each commencement exercise, the Arena will be reserved for TAMU-
CC's use no Tess than five (5) hours, with the start and end times being established upon
mutual agreement of SMO and'fANIU-CC. at least one hunched twenty (120) calendar days prior
thereto.
(c) Normally two (2) commencement exercises are held on each date listed in Exhibit
B. It is anticipated that due to number of graduates, TAMU-CC )v i I 1 have to expand to three (3)
commencement exercises on some dates, particularly in the month of May. SMG will work
cooperatively with TAMU-CC to have the facility appropriately staffed during the additional hours
necessary for operation of three (3) commencement exercises. TAMU-CC will notify SMG at
East one calendar month in advance to allow for adequate planning for set-up, maintenance,
management, and staffing.
ARTICLE 6
DEPOSIT
6.1. Upon written notice from SMG, TAMU-CC agrees to make a deposit (due
"Depose, to SMG or lite City of such snots as are necessary to cover those costs which
SMG will reasonably be expected to incur on behalf of TAMU-CC with respect to the Games
Mr services requested by TAMU-CC or for Needed Reimbu rsemems (as defined below). but
only to the extent that such costs are reasonably expected to exceed the as tieipa ted revenue from
such Gaines.
6.2. The Deposit shall be reaincd by SMG to cover, and against which could be
debited, any and all fees, charges and other amounts due to SMG Goma TAMU-CC under
the Agreement. ifTAMU-CC shall, for oily reason whatsoever, fail. to pay amounts due
under this Agreement, provided. however, that any retention by SMG of any portion of the
Deposit shall not act to limit the rights et SMG to seek a full and complete remedy for a Default
of TAMU-CC pursuant to the terns ha'eoF.. In the event of any cn neella l ion by TAMU-CC
regardless of notice given,TAMt1-CC shall reimburse SMG 11w any expenditure undertaken by SMG
nn TAMU-CC's behalf(the "Needed Reimbursements"). In this regard, SMG my deduct Needed
Reimbursements from any Deposit ph ovi ded by TAMU-CC pursuant to this Agreement. Any
Deposit in excess of Needed Reimbursements or the amounts needed by TAMU-CC with
respect to the Gimes for set vices requested by TAMU-CC shall be refunded to TAMU-CC.
In the event that the Deposit, if any, does not cover Needed Reimbursements or the
amounts needed by TA NI U-CC with respect to the Ga nets for services u eques ted by TAMU-CC,
TAMU-CC shall immediately pay SMG the money needed to fully pay such amounts. provided
Mat SMG has given TAM U-CC on invoke with supporting documentation of the costs incurred.
TAMU CC shall pay SMG interest at the maximum rate allowed by law per annum pursuant to
Texas Ca elmum Code,Chapter 2251 Prompt Payment l,aw for any such sums due which are not paid.
ARTICLE 7
INSURANCE
SMG ml deist ands and accepts than TAMU-CC is a member of The Texas
A&M University System, n Texas public institution of higher education, whirli is subject to
sovereign immunity and self-insured to the extent of the sovereign immunity waiver of the
Teras Tort Claims Act (Chapter 101, Texas Civil Practice& Remedies Code).
ARTICLE 8
COVENANTS
&I TAMU-CC shall conduct its activities within the Licensed Premises in a dignified
and orderly manner %Pith full regard for public safety and in conformity with SMG's
General Rules and Regulations, including fire end safety rules as required by SMG and/or local
fire regulations, as such may exist from time to time, so as not to endanger ally person
thereon. No portion of sidewalks, entries, passageways, doors, aisles, elevators, vestibules, or
ways of access to the public utilities of the Arena shall be permitted to be obstructed or used
for any purpose other than ingress and egress, tar 'shall any windows, ventilators, or lighting
fixtures be obstructed_ Tail waiting on the premiss is not permitted upon start of game time.
8.2. TAMU-CC shall not cause or permit any Hazardous Material to be used.
stored, or generated on, ur transported to and from the Arena. "Hazardous Material"
shall mean, without limitation, those substances included within the denmtioiis or
'hazardous substances' "hazadous materials", "toxic substances", or "solid waste in any
applicable state or federal environmental law.
With respect to any Game, TAMU-CC shall comply hilly with any and all laws,
ordinances and regulations applicable to the reproduction or perfonnanee of proprietary or
copyrighted materials and works of third parties (the "Wocs"),and to the protection of the
intellectual property rights associated with such AYorks. The fees payable by TAMU-CC under
this Agreement do not include royalty, copyright or other payments which may be payable on
behalf of third party owners of such Works, and T AMU-CC agrees hereby to make any and
all such payments to third parties and/or clearinghouse. ar Agencies as may be neeessamy to
lawfully perforin, publish, or reproduce any such Works. TAMU-CC specifically agrees,
undeitakes, and assumes the responsibility to make any and all reports to such agencies
mud/or parties, including specifically by way of example only (and not by way of limitation)
ASCAP, RMI, SAG, SESAC and other similar agencies. TAMU-CC agrees hereby to produce
evidence of such reports and payments to SMG. including evidence of compliance with the
requirements of this paragraph to be provided to SMO in advance of any such Game. Provision
of such evidence is a material condition of this Agreement.
8.1. During the penfomwuce of this Agreement,TAMU-CC shall comply (illy with Title VI
and Title VII of Ila Civil Rights Act of 1964 as a mended and all other regulations promulgated
thereunder, in addition to all applicable state and local ordinances concerning Civil Rights,
8 With ucspcc1 to any Game at the Arena, TANTO-CC recognizes that it is subject
to the provisions of Title III of the Americans With Disabilities Act, as amended, and all similar
applicable state and local kuvs (collectively, the "ADA"). TAMU-CC represents that it has viewed
or olh n 5/ISC apprised itself of the cess into the Arena, together with the common areas
inside, td accepts such access,common anms, and other conditions of the Arena as adequate for
TAMU CCs responsibilities iliti-s under the ADA. If TAN I I-CC modifies, rearranges or sets up iii
the Arena in order to accommodate TAM tI-CC's usage, then TAMO-CC shall be responsible for
ensuring that the Arena complies and Pontinues to comply in all respects vviih the ADA, including_
accessibility, usability, and configuration. T AMU r C shall be responsible for any violations of the
•
ADA that arise from TAMU-CC's recotdiguration of the seating areas or modification of other
portions of the Arena in order to riccommodate
TAM the procedures usage TAMU-C CCshnalplies he
e
responsible for ensuring that the policies, practices
providing auxiliary aids and services that are ancillary to TANIU-CC's usage ne in compliance
with the ADA.
TAMIL-CC shall play all of its M en's Bask e tbal I home Games in the Arena,
except That TAMU-CC shall not be obligated to play any Men's Basketball home Games
in the Arena if the Arena is not available, unless the Arena is not available for reason of any act
or neglect of TAMU-CC. TA MU-CC covenants to use its diligent efforts to assure maximum
occupancy during its entire hone Ganes schedule at the Arena TAMU-CC's diligent efforts
for purposes of this subsection shall not require 't-AMII-CC to do anything that is commercially
unreasonable. Notwithstanding the foregoing, TAMII-CC will schedule a minimum of five (5)
Women's Basketball Games each Season in the Arena (Games may be part of a double
header). All other Women's Basketball home names nay y(- e played on
the rio teres uponpus
A MU-CC.TAMU-CC. In addition to the foregoing, y agree
• additional Gama` to be relocated each year as.needed.
F_i. Nohvithstanding anything to the contrary in this Agreement or ahenvise,
any improvement, maintenance, repair, replacement, equipment or other thing resulting from or
by reason of any change to the future NCAA rules shall he at the sole cost and expense of
TAMU-CC, even though SMG might otherwise he obligated therefor under the provisions of this
Agreement. Such costs shall be advanced by TAMU-CC to SMG prior to SMG performing any
snob maintenance, repair or,replacement or providing any such equipment. In the event that damage
to the floor is caused by SNIG during placement, removal, storage.repairs or improvements, SMG
shall be responsible for costs associated to have Flooring resit/red to its former condition.
ARTICLE 9
TICKET SALES
91. Ticket Stiles. SMG shall provide certain ticket soles services (including box
office, advance, day-o f-Ga are, evening-of-Gane and outlet (including bite fact and charge by
phone) ticket sales) for the Gaines and rill such ticket sales by SMG will be made and
administered in accordance with the ticket sales procedures established, from time to time, by
SMG for other comparable sporhug events held at the Arena and of such times as SMG may
determine in its reasonable discretion. TAMU-CC shall provide all season and group ticket sales
services and provide SMG reports of such sales at intervals and nn such forms that are
reasonably satisfactory to SMG SMG agrees that with respect to the Game ticker's. (n)
TAMU-CC shall, subject to the provisions set forth herein, set prices and (ii) subject to SMG's
right to reasonably approve the seating designations for all Game tickets, all levels and all
seats in the Arena shall he made reasonably available for Gatie ticket sales. SMG shall be
entitled to (i) collect and retain a three percent (3°/o) change on all Game tickets sold by SMO
at the .Arena's box office to covet the costs of credit card processing and (ii) collect and retain a
charge equal to the going rote charged by TickciM as ter for ticket sale orders at the Arena phis
SI 1111 for postage and handling on all ticket order sales mode by SMG at the Arena's box
office. SMG shall accept personal checks and cried it cad charges under procedures reasonably
established by SMG and shall not include hinds paid by means of personal checks or credit
cards in the Adjusted Gross Box Office Receipts until such thuds are actually received.
9.2 Ticket Sales Information. Within a reasonable time (rot to exceed forty-eight
(d$) hours) after each Genre, SMG and TAMU_CC shall exchange all available ticket
sales iulbrumlion in order to produce 'a statement detailing: (i) the number of tickds sold or
•
bartered by TAMU-CC and SMG for such Game; (ii) the number of complimentary tickets
distributed by TAMU-CC for such Gane; and (iii) the Adjusted Gross Box Office Receipts to
assist SMG in the production of the Came invoice.
9.3. Ticket Supply- With respect to Gane tickets to he sold by SMG, SMG, at its
sole cost and expense, shall secure the printing of an adequate supply of tickets to all Games.
SNIG shall have the right to exercise complete control over all such ticket stock for all
advertising and/or to the extent necessary to ensure proper seating designations. SMG svill
use commercially reasonable efforts to provide a list of ad vatisers to TAMU-CC. All advert isutg
revenues derived from the ticket stock for any and all Gane ticket sales shall belong to SMG.
9A. Complimentary Tickets. TAMU-CC shall have the right to use, btu not as a
source of revenue, complimentary tickets for each Game for use by TAMU-CC at its sole
discretion. SMG acknowledges drat the Complimentary Tickets also i n elides TAMIL-CC students
who will be admitted free of charge to the Games with valid strident identification. TAMU-CC
shall provide to SMG at the stone time other advance tickets or Season tickets, whichever is
earlier, me issued, fifty (50) tickets for each Ganite at no cost or expense to SMG (which SMG
shall share with the City) for each Gane during the Tenn. In no event call the use of
complimentary tickets be in violation of NCAA rules.
ARTICLE 10
UTILITIES AND EQUIPMENT
In consideration for the Miniutuur Fee and other payments called for by tins
Agreement, SMG agrees to furnish the oar-site electric lights, heat and!or air conditioning and
other utilities and equipment customarily provided by SMG for public events and determined
necessary by SNIG for the presentation of the Ganes. SMG shall not he liable for failure to
furnish any of the foregoing when such a failure is caused by conditions beyond the control of
SMG, including but not limited to Force Majeure Events. Such failure shall not constitute a
breach of this Agreement nor shall SMG be liable, under any circumstances. for loss
of injury to property, however occurring, trough or in connection with or incidental to the
urnishing of or failure to furnish any of the utilities provided by Iris section, forany
interruption to 'FA MU-CC's business, however it may occur.
ARTICLE II
RETURN OF LICENSED PREMISES
TAMU-CC .shall, at the conclusion of each Cants return the Licensed Premises to the
condition received at the beginning of each Game, mints normal wear and tear and post-
Game clean-up, and LAURI-CC shall bear all reasonable costs related to the clean-up and any
repairs due from TAMU-CC's use.
ARTICLE 12
COOPERATION WITH OTHER USERS
TANIU-CC understands that ,SNIG nay make available for use by others such
portions, areas and facilities of and at the Arena that arc not subject to this Agreement, provided,
however, that on Game Days,SMO must provide TAMU-CC written notice as to any such use of
the Arena. TAMU-CC ogress to cooperate in good faith with SNIG and e.ith those persons that
may be using other poraioas and areas of the Arena, especially during periods of ingress and
egress, in order to make mutual use of the Arena harmonious and agreeable,t provided the
sum does not motet'illy interfere with TAMIUCCbs use of the licensed Pi amiss-' SMG shall
not be responsible for any actions of any other users of the Arena.
ARTICLE 13
MOTION PICTURES,RADIO AND TELEVISION
13_I. Subject to the terms hereof, TAMU-CC shall have the right to enter into
agreements granting to motion picture, radio, television or recording entities (collectively,
"Media") rights solely in connection hvitlt the filming, taping or broadcasting of any TAMIL
CC Event hosted in the Arena under Ibis Agreement with the prior written permission of
SNIG. TAMU-CC understands however, that SNIG shall be reimbursed for all direct ont-ol-pocket
cuss incurred by SNIG in providing space and/or services to accommodate Media in the Arena_
132. Notwithslmiding the foregoing, SNIG agrees that, in connection
with live television broadcasts of any TAMU-CC Event hosted at the Arena during
the Tenn of this Agreement, SNIG shall only charge TAMU-CC for out-ot-pocket
costs incurred by SNIG in connection therewitlh. TAMU-CC agrees to make all
arrangements with all Media which may be necessary for the broadcasting or fijming of
any TAMU-CC event hosted at the Arena, and shall give SMG at least five (5) business
days' notice of its intent to broadcast or Pilin a TANIU-CC Event. SMG shall provide one (I
media room for TAMU-CC's use before. during and after TAMU-CC's Event, provided,
Imhvever, that TANIU-CC shall pay all long distance phone charges and one-half of all local
phone charges insured at the Arena on the date of such TAMU-CC Event_
ARTICLE 14
OBSERVANCE OF LAWS,ORDINANCES AND REGULATIONS
NA. -LAMU-CC and its agents, guests and employees will observe and cc uply with
all laws, ordinances, and regulations adopted or established by the United Stares, the State of
Texas, the City of Corpus Christi and Nueces County, Texas; and with all rules and
regulations as promulgated by SMG, mid with ill rules and regulations of the City of
Corpus Christi Departments of health and Safety and Permits as pertain to the Arena.
TANIU-CC shall not in l c nt ion ally permit anything to be done at the Arena that is in violation
of any such laws, statutes, ordinances, rules or regulations_ TANIII-CC shall further cause its
servants, agents, employees or TANIU-CCs to, and act reasonably to insure that its patrons
and guests abide by such rules and regulations which rise adopted from time to time for the
use, occupancy and operation of the Arena_
14.2. ifAM Li-CC will obtain at its own expense any licenses, permits and union
and trade organization clearances required by any public body or by contract for use by
TAMU-CC of the Licensed Premises_
ARTICLE 15
STAFFING
1515=1. SNIG oh ay employ, cause to employ, or contract with one or note independent
contractors to employ the staff necessary to provide the set vices required under this Agreement
(SMO will consult with TAMII-CC in connection with determining the appropriate level of
staffing). SMG shall provide, and hill to rAmu-ccis expense,staffing n ecess ry k convert or set
up the facilities, perform housekeeping and other building services as customarily provided by
SERE and all of the following patron mems in the Arena' ticket sellers, ticket takers, door
guards, ushers, medical personnel, security and police. SMG shall not lie responsible and will
•
not pay for police and security inside or outside or the Licensed Premises. TAMU-CC shall
pay for any other staffing which SMG has not expressly agreed to pay for as sat forth above and as
otherwise set forth in this Agreement.
15.2. Upon the written consent of SMG, which may be withheld, TAMU-CCon its agent
may provide or hire TAMU-CC event staff
b.3. No agent, servant or employee of TAMU-CC or any of its subcontractors shall
under any circumstances be deemed at agent servant, or employee of SMO or the City. Further,
SMG shall not be construed or held to be o partner, agent or associate by joint venture or
011101 Wise with TAMU-CC in the conduct of its business, it being expressly understood that the
relationship between the parries hereto is,and shall remain that of SMG aid TAMU-CC.
ARTICLE 16
GAMES APPROVAL
TA•M11-CC agrees that no TAMU-CC Event shall take place in the,Arena if SMG gives
TA.MU-CC written objection to such event a minimum of seven (7) calendar days prior to
the TAMU-CC lived, specifying the grounds on which SMG deems the TAMU-CC Event
to be unlawful or dangerous to spectators, or materially inconsistent with TAMIS-ccs
.advertising claims presented to the public (e.g., incorrect advertisement as to the opponent In
any Game). In the event of such occurrence, TAMU-CC shall forfeit all rights related to use of
the Arena for such date, and shall have no legal claim against SMG for any damages or for the
return of any deposits for such Game.
ARTICLE 17
CONCESSIONS AND MERCHANDISE
17.1. Subject to the TAMU-CC's rights under Section 18.3SNIG has, among other
rights, h1 exclusive right to sell all Rod, beverages (alcoholic and non-alcoholic) catering
and merchandise (inwuling T-shirts and programs) a the Arena. TAMU-CC shall not itself
(or through any other party) sell refreshments, beverages, catering, tobacco products,
flowers, candies, printed matter of any kind, novelties souvenirs, t-shirts, photographs or
any other materials, items or promotions; provided, however, that the foregoing shall 0ot
apply to those "give-away" and promotional items that have been approved by SMG in
writing or as are otherwise permitted pursuant to the terms of this Agreement. S11(1
specifically permits TAMU-CC's alumni tusocialion to sell flowers during graduation exercises-
17.2. TAMU-CC shall not be entitled to receive ally portion of the sales proceeds derived
from iter sale of food and beverages of any kind or eatenng at the Arena except as provided by
this AAgreenent, All pouring rights at the Arena are similarly reserved to SMG. During each
Season of the 'Term of this Agreement, TAM II-CC will be paid, on a monthly basis on or
before the thirtieth (70111) day of each month with respect to the revenues generated during
the immediately przcoding calendar month, len percent (10%) of the net concession revenues
(defined as gross revenues less taxes, credit enrd charges, tips, gratuities, and wrvice charges)
actually received by SMG on account of the sale al We Arena of food and drinks (alco hal is and
mmm:lcoholic) (including catering) during Games. SMG shall accompany each payment with
appropriate supporting documentation relative to the revenue generated during tie applicable
period. Payments due tender this Section IS.2 may be held by SMG and applied to any other
payments and amounts due under or in connection with this Agreement by TAMU-CC and not
yet paid by TAMU-CC. In the event anendrince (actual tickets scanned) at the game day exceeds
3,000 , TAMU-CC should be entitled to 13% of the net concession ICYCIIIICS. In the event
attendance (actual tickets scanned) at the game day exceeds 4,1)00, TAMU-CC should be entitled
to I5% of the tel concession revenues. In the event attendance (actual tickets scanned) at the
mune day exceeds 5,000,'J AMU-CC should be entitled to 17%of the net concession revenues.
17.3. Subject to the terms and conditions hereof, ''AMll-CC shall have the exclusive
right to sell, supply and provide 'f AMU-CC game programs and TAMU-CC merchandise (to the
extent TAMU-CC is properly licensed and authorized to sell the same) for sale by TAMU-CC in
the Arena dudng TA NI U-CC Events; provided, however, dun TAMU-CC may only sell such
items of TAMU-CC merchandise as SMO may approve. Nothing herein shall reshi0t the rights
of SMG to supply or sell any items of merchandise al any lime other than during the limes of
TAMU-CC Events at the Arena. TAMU-CC .shall retain one hundred percent (100%) of all
revenues derived from the sale of any TAMU-CC merchandise sold or supplied by TAMIL-CC
for sale during the limes of TAMU-CC Events al the Arena. SMG recognizes anti agrees Ihat
from time to tine TA MU-CC itself may desire and shall be allowed to give away certain
pronrol ions I items. TAMI1-CC recognizes and agrees that prior to giving away any
promotional items; TAM U-CC must receive SMG's prior written consent. SMG may only
withhold its consent if SMG determines, in its reasonable discretion that the giveaway item in
question will have an adverse effect on safety, or interfere in any way with the operation of the
Arena SMG shall provide reasonable locutions within the Arena rind a reasonable number of
Iabies for nsc by TAMU-CC in connection with the sale of TAMU-CC merchandise. SMG
shall act reasonably to permit TAMU-CC and IAMU-CCS agent sponsored events and
promotions during such TAMU-CC Events_
17.4 SNIG agrees sale and distribution of all alcoholic beverages will cease no later than 10
minutes remaining in any genie as indicated by I'he official game clock.
ARTICLE IS
ADVERTISING,SIGNS AND DECORATIONS
18.1. TA MU-CC agrees that all :nivel lisine and promotion of the Gaines will be Ituthtil
and accurate, and at the expense of TAMU-CC. SNIT',shall not be responsible for any advertising
campaign or the content thereof. SMO must have specifically approved, which opproval
shall not be unreasonably withheld, the use of SMG's name(s) and for logo(s) as well
as game descriptions,game limes, and hours of operation. S:dCi will have fifteen (15) calendar
days after receipt of a request for approval to provide such approval or specify in writing wiry
such approval is not granted. If SMC:does not respond to TAMU-CC within such fifteen (15)
calendar day period, SNIC7s approval will be deemed to be given. At no time shill such
advertising material or programs be distributed or circulated by 'IA MU-CC in the parking facilities
at sidewalks adjacent to the Arena.
18.2With prior permission of TAMU-CC athletics, SMG, at such times that it
demes reasonably appr'opri rite. may announce, describe and advertise over the sound system
and any other Medlin]] in and around the Arena, any descriptions and advertisements
cancel any other event being held in the Arena or elsewhere. SMG additionally may
announce any emergency massages. During basketball games, TAMU-CC athletics may, with
prior SMG approval, use the ribbon boards for messages during media Unicorn periods.
lS.3. SMG shall have the exclusive right to erect and/or display, and TAMU-CC .shall
neither post nor erect nor display, any decorations, signs, advertisements or posters of any kind
or d 'riplien in the Licensed Premises or Arena or other properties of SMG, provided,
however, subject to SMCI's prior V. itch approval as to content size, location and liming. and to
Section 19.5 below, 'TAMU-CC may sell "temporary game only" idem hsng in the Arena'
banners, scorer'5 able, basketball court, basketball nets and video game promotional features.
Lm no event shall TAMU-CC grant or attempt to grant any exclusive product sales rights in
Ilse Arena without the express prior written approval of the SMG, ;tad any attempt to do so shall
be void and afno effect.
18 t1. When refiring to the Arena during the Icon of this Agreement, TAMU-CC
shall use the name "Amer icon Bank Center" (or such replacement name as designated by SMG)
and no other name, and shall use reasonable best efforts to require third parties that TAMU-
CC contracts with iu connection with the Arena to do the same. The use and designation of the
Arena's mine by TAMU-CC shall, to the extent applicable, include without limitation
printed materials, advertising, admission tickets, television. intermit, newspaper, magazine
and other broadcasting methods, and public relations and promotional press releases. To the
extent that TAMU-CC uses the Arena logo on any of the foregoing materials, adver t i sine,
tickets, broadcasting and press releases, TAMU-CC will only use .such logo in exactly the
manner provided by SMG to TAMU-CC and 'It/AMU-CC shall not alter the design, color or
quality of such logo. In the event that the Arena name or logos change, SMG will not be
liable to 'FAMU-CC for any of TAMU-CC's costs regarding TAMU-CO's modification of any
• advertising or similar approved uses thereof TANiU;CC's rights to use the Amelia nine and
logo is limited to the specific, express purpose set out in this Section 19.4 and any other use
by TAMU-CC must have the prior written approval of SMG.
185. TAMU-CC acknowledges and agnxs and covenants to accept, observe,
comply. and conform with the terns of any Naming Rights Agreement ("Naming Rights
Agreement") and Pouring Rights Agreement("Pouring Rights Agreement") entered into or to
be entered into by SANG in respect of the facility including the Arena, and TAMU-CC tinnier
ncka owl edges and agrees that this Agrcemem shall be subject in all respects to the terms and
conditions of such Naming Rights Agreement end Pouring Rights Agreement. The terms of the
Naming Rights Agreement and Pouring Rights Agreement and Other Advertising Agreements
shall, in the event of a conflict,supercede the terms of this Agree cent.'I he parties acknowledge
that any party to the Naming Rights Agreement and Pouring Rights Agreement shall have all of
the rictus of a third party beneficiary alloyed by applicable law. A copy of the relevant
provisions of the Naming Rights Agreement and Pouring Rights Agreement will be provided by
SNIG to TAMU-CC.
ARTICLE 19
RESERVATION OF RIGHTS
Except as otherwise provided in this Agreement, SMC reserves to itself all ri tris,
privileges,pferogahu s and authority to use, enjoy, have possession of, derive revenue and Gain
from, contract with respect to and generally deal with the Arena and related parking
facilities, including. hut in no way limited to, the right to contract with any and all potential abets
Of the Arena without regent to 'TAMU-CC's proposed or actual use of the Licensed Premises. TAMU-
CC agrees to respect in every particular the tights, prerogatives and authority of SMG and
l AMU-CC shall not take or authorize any other person to lake any action which would conflict
with or tend to impede or impair the exercise of such rights,prerogatives and authority of
SMG or which would reduce or tend to reduce such revenues and financial benefits. Similarly,
SW; agrees to respect, in every particular, the rights, prerogatives and authority expressly
granted to TAMU-CC hereunder (but not otherwise) and SMG shall not take or authorize any
other person to take any action that would con Viet with 01 tend to impede the exercise of
such rights, prerogatives and authority expressly granted to TAMU-CC hereunder.
ARTICLE 20
CC/LLECPIONS
No collections. whether to charity or otherwise, shall be made, attempted,
authorized or announced by TAMU-CC on the Licensed Premises, without prior, written consent
of SMO.
ARTICLE 21
CONTROL OF ARENA
SNMG reserves the right to control the management and operation or the Arena and to
enforce all necessary and proper rules for its management and operation. SMG reserves to the
City, itself,and its employees the right to cater any part of the Arena at any time.
ARTICLE 22
COPYRIGHTS,TRADEMARKS,TRADE NAMES AND PATENTS
TANIU-CC assumes all responsibility and liability for use of any trademark, trade name,
copyright or patented material in connection with TAMU-CCS use of the Licensed
Premises or promotion or advertisement thereof.
ARTICLE 23
BUILDING OR EQUIPMENT DEFACEMENT OR DAMAGE
23A. TAMU-CC agrees not to damage, mar, nor in any rummer deface the Arena or its
equipment and shall not cause nor permit anything to be done whereby the Licensed Premises
or equipment in the Arena is in any manner, damage t marred
ar rredes or defaced,
norrt shallaid MU-CC
drive or permit to be driven any nails, hooks, o
uilding,
parking area or equipment, nor shall TAMU-CC make or allow to be made any alteration or
improvement of any kind therein without express permission of SMG-, Damage to the Arena,
equipment Cr licensed Premises caused by the acts or omissions of TAMU-CC, its officers,
employees, agents, subcontractors or contractors.shall be the liability of TAMI]-CC and 'fAMU-
CC will reimburse SMG the cost of replacement or repairing damage to the Arena, equipment
or licensed Premise+- TAMU-CC shall also reimburse SNIG for the reasonable costs of renting
or lensing any replacement equipment and SMG's actual loss Of revenue from its inability to use
such equipment or portion of the Arena damaged by the acts or omissions of TAMIL-CC, its
officers, agents, employees, subcouhuc torus or contractors, provided that SMG provides evidence
to TAMU-CC of such actual lost revenue.
23.2. Ir the Licensed Premises or any portion of the Arena is damaged by the act,
mission, dc fail l or tie glige ice of TAMU-CC or TAMU-CC's agents, subcontractors,
employees, patrons, invitees, guests or any person admitted to the Licensed Premises by TAMt1-
CC, then TAMU-CC will, to the extent permitted by Texas law, a ft c r the application of
AM.II-CC and then SMG's insurance proceeds, and otherwise subject to the tans hereof pay
to SMG, upon demand, in cash, a sunt equal to the costs of repairing rind restoring it to its
condition prior to such damage; or TAMU-CC will, at Ow option of and with the approval of
SMG, make or cause to be made such restoration and repairs at its own expense in accordance
with the specifeatlm ns set Ibriil by SNI G.
23.3. TAMU-CC shall not, without the written coastal of SMG, place or operate
any engine,motor in. machinery on the Licensed Premises or use oils, busing fluids, camphene,
kerosene- naphtha or gasoline Cr any purpose. All decorative equipment and materials must
he flame retardant and meet specifications set forth by the City of Corpus Christi Fire Code
before such equipment or machinery is allowed on the Licensed Premises.
ARTICLE 24
LOSS OF USE OF BUILDING
24_I Should the space covered by this Agreement or any part thereof be destroyed or
damaged by fire or by any other cause, or if any other casualty, riot or civil disturbance, force
majenre, strike, act of God, or exercise of the police power of other unforeseen occurrence,
should render the fulfillment of this Agreement by SMG impracticable (a "Forte Majeure
Event"), SMG shall not be liable or responsible to TA NIU-CC for any damage or loss caused
thereby. fA MU-CC further agrees that all of its property or property of others in the Arena shall
be at the tisk of TAMU—CC and SMG shall not be liable or ally loss or damage by theft,
vandalism, fires, steam, electricity, gas, water, rain, or other Force Majeure Evcuts.
213. SMG can extinguish all utilities and order evacuation of all or any portion of the
Licensed Premises, or cause to the removed therefrom any person or croup of persons, any ,
materials, equipment or other items, if, in the SMG:s judgment, danger is inmminent,
or
danwerous circumstances have already occurred, and such net ion is necessary to secure the
safely end welfare of persons or property- In such event, TANIU-CC waives any Tight or claim
fur damages against SMG,its agents or servants.
ARTICLE 25
DEFAULT BY TAMIT-CC
TAMU-CC shall be in default if it (i) partially or totally abandons (i.e. does not play anv
or all of the Tennis' home Ganes at the Arena and such failure to play is not the direct result of
a Force Majeure Event or the nets or omissions of SMG or its employees, representatives
or agents) the Licensed Pte inises, (ii) has any of its checks returned for insufficient funds,
(iii) materially breaches ally of its representations, (iv) fails to perform or observe any of
the obligations, covenants, a rcements, or conditions to he performed or observed by TA MU-
CC under this Agreement within thirty (30) days after written notice from SMG of such
failure; provided, that if such performance or observance cannot reasonably be accomplished
tyithin such thirty (30) day period, then the failure In commence such performance or
observance within such thirty (30) day period and to diligently pursue such performance or
observance to conclusion retrain an additional sixty (60) days, (v) ceases its business as a going
concern, or (el) becomes insolvent or bankrupt or a bankruptcy or other insolvency Proceeding is
initiated against TAMU-CC (each of these events sometimes referred to as a "D eta alt"), In
the event of a Default, SNIG may apply all moneys held hereunder to any and all sums due
hereunder, including license fees, sales tax or other charges due. Further.SMG shall hove the option
to terminate this A gree rn e n t. In the event of such termination, TAMU-CC shall he obligated to
pay to SNRT, on demand, any actual damages sustained by SMG by reason of TAMU-C e's de fauIi.
An election by SMG to adopt one or inure of these remedies does not prevent the enforcement of
other remedies or rights available concurrently or thereafter. Lm the event 'TAMU-CC should
terminate its NCAA Division I Intercollegiate Athletic Basketball program or in the event
TAME-CC should he prohibited by nary ruling of the NCAA from competing for any period of
time in Division 1 Intercollegiate Basketball, TAMU-CC shall have the right, on written
notice to SNIG, to terminate this Agreement and such termination shall not constitute an
event of default hereunder.
ARTICLE 26
DEFAULT BY SNIG
26.1. The following shall constitute a default under this Agreement by SNIG:cuts, m
thee failure of SMG to perform or observe any of the obligations, covenants, agreements,
conditions to he performed or observed by SNIG under this Agreementif within
Ditty itty (30) days
ys
after written notice from TA MU-CC of such failure; provided, such 1
observance cannot reasonably be accomplished within such thirty (30) day period, then
Ole failure to commence such performance or observance within such thirty (30) day period
and to diligently pursue such performance or observance to conclusion within an additional
sixty (611) days; or (ii) the material breach by SMG of any of the representations or
,vnrtaritiCS conlnined ill this Agreement.
262. To the extent not in contravention of applicable law, TANIU-CC agrees
that the City, its officials, employees, agents, officers and affiliates and the City Council of
De City and SWIG and SMG's employees, officers, partners, affiliates and agents shall nut
he liable to pay damages to TAMU-CC or anyone claiming by, through pr under
TAMU-CCby reason of any default by SMG under this Agreement, any obligation
of SMO to TA MU-CC, or for any amount that may become due to TANIU-CC by SNIG
under the terms of this Agreement or otherwise. However, in recognition that the
limitations on damages set forth in this Section 27.2 may eliminate the ability ofTAMU-
CC to recover its loss in the event of any default by SMG, SMG specifically agrees that
TAMU-CC shall (i) upon a default (beyond any required period of notice, grace or cure
granted to SMG under the tent's of this Agreement) by SMG, have the right,
not the obligation to terminate the Agreentnn, (ii) be entitled to any and all
equitable relief, including but not limited to injunctive relief and specific performance
of any and all obligations of SMG under this Agreement, to remedy such default, (iii)
have the right, but not the obligation, to remedy any default (beyond any required period of
notice, grace or cure granted to SMG under the tons of this Agreement) mit, upon n
default (beyond any such required petiod vi notice, grace or cure as aforesaid) by
S NIG,offset the actual, necessary and reasonable cost of such remedy against any
payment TANIU-CC thereafter owes SMO under this Agreement, and.'or (iv) upon a
default (beyond any such required period of notice, grace or cure as aforesaid) by SMG,
offset any actual damage claim against any payment TAMU-CC thereafter owes SMG
under this Agreement. To the extent not in contravention of applicable les m, TAM U-CC
expressly waives all claims fir nota-actual consequential damages (including without
limitation speculative lost profits, special, or punitive damages).
This Agreement is governed by the following Alterative Dispute ResoIution
provisions fe agencies of the State of Texas:
The dispute resolution process provided for in Chapter 2260, 'Lbws Government
Code, shall be used, as further described heroin, by TAMU-CC and SMG to attempt to
resolve any claim for breach of contract made by SMG:
(A) SMO 's claims for breach of this Agreement that the parties cannot resolve in the
ordinary course of business shall be submitted to the negotiation process provided in
Chapter 2260, subchapter B, Teras Government Code. To initiate the process, SMG shell
submit written notice, as requiced by subchapter D. to Director of Contracts and
Property, 63011 Ocean Drive, 14 S .57 31 , Corpus Christi, Texas 78412 Said notice shall
specifically state that the provisions of Chapter 2260, subchapter B, are being invoked.
Compliance by SMG with subchapter Ii is a condition precedent to the filing of a
contested case proceeding ondet Chapter 2260, subchapter C. Texas UmernmemccC,
(B) 'IIs contested case process provided in Chaplet 260, subchapter
Terns G01'071111011 Cade, is SMCIN sole and exclusive process bhr seeking a remedy for any
and all alleged breaches of contract by TAMU-CC if the parties arc unable to resolve their
disputes under subpaagraph(A) of this paragraph.
(C) Compliance with the contested case process provided in subchapter C is a
condition precedent to seeking consent to sue from the Legislatane mater Chapter 107 of the
Texas Civil Practices and Remedies Code. Neither the execution of this Agreement by TAMI)-
CC nor any other conduct of any representative of T ANTU-CC relating to this Agreement
shall be considered a waiver of sovereign inanity to suit.
The submission, processing and resolution of SMG'' claim is governed by the
published tines adopted by the Office of the Attorney General pursuant to Chapter 2260, as
currently effective, het-caller enacted or subsequently amended. These rules are found ill the Teem
Administrative Code.
Neither the non-occurrence nor occun'ene- of an event nor the pendency of a china
constitutes grounds for the suspension of performance by SMO, in whole or in port
ARTICLE 27
RESPONSIBILITY FOR PERSONAL PROPERTY
vim. SNICI stall not be responsible for any loss or damage to persom0 properly
placed in or about the Arena belonging to TAMU-CC, its servants, agents, subcontractors, guests,
patrons and invitees.
222. TAMU-CC shall remove from he Licensed Premises immediately upon the
termination of this A^_eemenl, all property belonging to TAMU-CC and all property brought
into or unto'the Licensed Premises by TAMU-CC or by persons associated with FAMll-CC in its
use and occupancy of the Licensed premises. If T AMCT-CC fails to remove all such property,
SMG shall have the right to cause the removal and storage of the property at TAMU-CC's sole
risk, cost and expense; but nothing herein shall in any way constitute SMO as a bailee of any such
properties whether owned by TA MU-CC or any other person.
ARTICLE 23
ASSIGNMENT AND SUBLETTING
This Agreement shall not be assigned nor shall the Licensed Premises be sublicensed without
the prim'written consent ofSNIG. Further, SNIG shall not be deemed to have negotiated in bad
faith on account of failing to approve any proposed transfer, assignment or sublicense. The Ictus
"assignment" or "sublicense' as used in this License, shall include any and all transfers of
TAMU-CC's interest in and/or obligations under this License whether voluntary or involuntary,
but shall not include any so beenti actors, advertisers, or licensees of TA NIU-C C. If SMO is
subsequently substituted by a newly named SMG, "[AMC-CC shall be held to the sane provisions
of this Agreement.
ARTICLE 29
TAX RETURN
"TAMU-CC shall be solely responsible for filing any had all federal, slate and local tax
returns amt payment of all loxes due, if any. If al any time TAMU-CC is no longer a iax exempt
entity, SMG reserves the right to prepare and file with any governmental agency any admission
tax return required, and to pay said taxes from funds to be deducted and retained from the sale of
admission tickets, but SMG shall have no obligation to file any tax return or pay nay tax due
by TAMIL-CC All amounts payable ander this Section shall not be credited against rent of
any oilier amounts provided for in this Agreement and shall be paid by TAhfU-CC in
addition thereto.
ARTICLE 30
AUDITS
TANIU-CC shall make available to SMG, upon request, all records and books
related to this Agreement during business hours and at the offices of TAMU-CC in Corpus
Christi, Texas for the purpose of an audit to be performed by an auditor designated by
SMG, at SMO's sole expense. TAMU-CC shall inform all of its service contractors that
they must also agree to the above-referenced covenant upon reques I of SMG . 31his
provision shall remain in force Por a period of three(3)years after expiration of this Agreement.
30.2. SMG shall make available to TAMU-CC, Ilse Texas A&M University
System Office of the System Auditor, and for the Slate of Texas Office of the Aucli101 upon
reasonable request, all records and books related to this Agreement during normal
business haus, for the purpose of an audit to he performer) at TA MU-CC's sole expense.
This provision shall rennin in force fora period of three (3) years alter expiration of this
Agreement.
ARTICLE 31
REPRESENTATION AND WARRANTY
31.1 SMG represents to TAMU-CC that to the best of its knowledge_ (i) SMG is
duly organized and existing and has the power and authority to enter into and
perform this Agreement; (ii) this Agreement has been duly at, homed, executed and
delivered on behalf of SMG and constitutes a valid, legal and binding agreement and
obligation of SMG, enforceable in accordance with its terms; and (iii) execution and
performance of this Agreement by S MG will not violate any judgment, order, law or
regulation applicable to SMG.
112 TAMU-CC represents to SMG that to the best of its knowledge: (i)
TAMU-CC is duly organized and existing and has the power and authority to enter
into and perform this Agreement; (ii) this Agreement has been duly authorized,
executed and delivered on beta If of TAMU-CC and constitutes a valid, legal and
binding agreement and obligation of TAMU-CC, enforceable in accordance with its Cr'ts;
and (n) execution and performance of this Agreement by TAMU-CC will not violate any
judgment.order law or r egld ethyl applicable to "FAMU-CC.
ARTICLE 32
MISCELLANEOUS
32.1- H=adndines. The headings of the sections of this Agreement are inserted fur
convenience only and shall not be deemed to constitute a part of this Agreement_
12.2. No Waiver. The failure of SMG or TAMU-CC to seek a redress for a
violation of, or to insist neon the strict performance nl, any covenant, agreement, provision,
or condition of this Agreement, shall not constitute a waiver of the Ions of such
covenant, agiecnmut, provision, or condition at subsequent times or for the terns of any
covenant, agreement, provision, or condition, and SMG and TANIU-CC shall have all
remedies provided herein with respect to any subsequent act which would have originally
constituted the violation hereunder.
32.3. Assignment by,RIG. The tern ",NIG" shall mean the named SMG herein,
and in the event of a voluntary transfer of such interest and the written assumption of the
Ict'ms and conditions or this Agreement and delivery of same lu T AMU-CC pursuant to
such transfer, SMO as transferor shall thereupon be released and discharged from all
covenants,
duties and obligations of SMG thereafter accruing; provided, however, that the
transferor shall be liable for such obligations as accrued under Ibis Agreement that were not
discharged as of the dale of such transfer and all covenants and obligations or SMG under
this Agreement accruing aper such transfer shall he binding during the remainder of the Term
upon the transferee for the duration of such transferee's period as SMG hereunder.
32.4. Discharge of Liens. Should any uncchanids limns or other hens or
a rftdo vits claiming liens he filed against the Licensed Premises or the Arena or any
portion thereof or interest therein resulting from or in connection with TAMU-CC or any
contractor of TAIIU-CC or nay such contract ot's subcontractor performing labor or
materi olmen furnishing materials at or for the Licensed Premises on behalf of TAMU-CC
by reason of specially fabricated materials, whether or not placed at the Licensed
Premises on behalf of TANIU-CC, TAMU-CC shall cause the same to be cancelled and
discharged of record by payment, bonding or otherwise, within thirty (30) days after receipt
of written notice from SMG or at such earlier time as is necessnny to prevent the foreclosure
thereof.
325. Recovery of Pees. To the extent pennitted by the Constitution and Ilse Laws of
Me State of Texas, in case a suit or action is instituted by SMG against TANIU-CC or by
TAMU-CC against SMG to enforce compliance with this Agreement, the substantially
prevailing party shall be entitled to recover reasonable attorneys' fees and
sts on lie
e
other in addition to the costs and disbursements provided by statute, both at trial
appellate levels,
32,. No Partnership. Subordination of Acreeatent. The relationship created by tlds
Agreement is that of SMG and TAMU-CC. None of the provisions of this Agreement shall
he construed in such a way as to constitute SMG or TAMU-CC joint venturers or partners
or
to make either party liable for the debts of the outer.
327. Attornment. In the event the liens of any debt or security instruments
of SMO arc foreclosed for any reason or in the event SMG's rights shall be terminated
such that SMG cannot or will not perforin SMG's obligations under this Agreement and
one of the Other Beneficiaries or any such bate ficiary or holder (or purchaser of the
interests thereof) (each a "Successor") succeeds to the interest of ,NIG under this
Agreement, Ilan. TAMU-CC shall be bound to such Successor under all of the terms of this
Agreement for the balance of the Term remaining with the .same force and effect as if such
Successor was SMG under the Agreement and TAMU-CC hereby agrees to and does hereby
atone to such Successor as the.then SMG, such atonement to be effective and self-operative,
without the execution of any further instrument on the pair of the panties hereto, or
their successors or assigns, immediately upon the Successor succeeding to the interests,
rights and obligations of SMG hercundlei.
32.3 Nolicc. Any notice required or permitted under this Agreement must be in
writing, and shall be deemed to be delivered (whether actually received or not) when
deposited with the United States Postal Service, postage prepaid, certified nail. return receipt
requested rind addressed to the intended recipient at the address set out below. Nance any
also be given by regular nail, personal delivery, courier delivery. facsimile transmission,
email or other commercially reasonably Means and will be effective when actually received.
'F AMU-CC and SMli can change their respective notice address by sending to the other party a notice
of the new address. Notices should he addressed as follows:
For SMMG
SbIG
1901 Noi th Shoreline Boulevard
Corpus Christi,Texas 75401
Attention: General Manager
TEL: (361)326-4100
FAX: (:361)326-490;'
With copies to:
SMG
101 Market Street,4th Floor
Philadelphia,Pennsylvania 19106
Attention: President
and CEO EL:
(215)592-6604
FAX: (215)
592-0361
and
John 1). 1.1e11
Wood, Boykin & Wolter,P.C.
615 N. Upper Broadway, Suite 1100
Corpus Christi.Texas
78401
and
Slrmlley Potion Stevens& Yonne, 1.I.P
30 Valley Strewn Parkway
Malvern, PA 19355
Attention: Steven A. Scolari, Esquire
For TAMU-CC: Texas A&M IInivcrsity-Corpus Christi
6300 Ocean Drive
Corpus Christi,Texas 75412
Atm: Executive VP for Finance and Administration
Telephone: (361)825-2321
Facsimile: (361)825-5925
With a copy M.
Texas A&M University- Corpus Christi
6300 Ocean Drive.MS 5731
Corpus Christi, Texas 7841.2
Attn: Three tot Contracts & Properly
Telephone: (361)825-2422
Email' contractsuilantcc.edu
32.9. TAMU-CC Representative. TA MU-CC, upon written notice to SNIG, shall
designate one (1) person to be TAMU-CC's representative ("TAMU-CC Representative"),
who shall be authorized to act on behalf u1' TAMU-CC under this Agit entent TAMU-CC
shall have the right, from time to time, to change the person who is the TAMU-CC
Representative by giving SMO written notice thereof TAMU-CC hereby designates as its
initial T AMU-CC Representative, John A. Casey, Director of Contracts & Property, who
shall be authorized to act on behalf of TAMU-CC under this Agreement. Any action,
consent or approval by the TAMU-CC Representative under this Agreement shall be
binding on TAMU-CC.
32_10. SMG Representative_ SMG, upon written notice to TAMU-CC, shall
designate one (I) person to be SMG's representative ("SMC Representative"), who shall be
authorized to act on behalf of SMG under this Agreement. SMG shall have the right, from time
to time, to change the person who is the SM0 Representative by giving TAMU-CC written
notice thereof. SIM hereby designates as its initial SMIG Representative the position of
General Manager, who .shall be authorized to act on behalf of SMG under this Agreement. Any
action, consent or approval by the SMG Representative ander this Agreement shall he
binding on SMCi.
32.11. Severn bit itv_ If my of the terms or provisions of this Agreement, or
the application thereof to any particular party or circumstance, shall to any extent,be
ound by a court of compelent jurisdiction to be invalid or unenforceable, then
the remainder of this Agreement, or the application of such term or provision to such
parties or circumstances other titan those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement shall be
and remain valid and enforced to the fullest extent permitted by Applicable Law.
32.12. Terminology. Titles of articles and sections of this Agreement are for
convenience and reference only and in no way define, limit, amplify, or describe the scope
or intent of this Agreement, and in no tray affect or constimlc a part of this Agreement.
Pronouns used in this Agreement shall he understood and construed to apply whether
the party referred to is on individual, partnership, venture, corporation, or an individual,
doing business under a tine or node name, and the masculine, feminine and neuter pronouns
shall each include the other and may be used interchangeably with the some meaning. The
use of the words "hereof," "herein" "hereunder" and words of similar import shall refer to
this entire Agreement and not any particular section or provision of this Agreement,
unless the context clearly indicates otherwise.
32.13_ Bindinn Effect. This Agreement shall intoe In the benefit of and be
binding upon the parties hereto and their respective legal representatives, successors and
•
permitted assigns (as herein expressly permitted).
32.14. No Third Paly Benefi cimy. Any agreement to pay an amount, any assumption
of liability herein contained, express or implied) and/or any other covenant, agreement or
duty expressed in this Agreement shall be only for the benefit of SMG, TAMU-CC and
any party signatory to an agree inent referenced in Section 19.5 (collectively, the "Other
Parties"), and then respective successors and permitted assigns (as herein expressly
permitted), and such agreements, assumptions, covenants and duties shall not inure to the
benefit of the oblige of ally ether party, whomsoever, it being the i ttenti on of the
undersigned that no one (other than the Other Parties) shall be or be deemed to he a
third-party beneficiary of this Agreement.
32IS IS. Eutirc Agreement. lLis Agreement, including the attached exhibits,
constitutes the entire agreement between the parties hereto relating to the subject matter
hereof. No prior or contemporaneous written or oral promises, understandings,
representations or agreements shall be binding, it being intended that this Agreement
s upeise des and merges all such prior and contemporaneous promises, representations and
agreements. SMG and T \MU-CC further agree that this Agreement may not in any way be
explained on supplemented by a prior or existing course of dealing between the parties or by any
prior performance between the parties pursuant to this AgreeniCM or otherwise. SMG and
TANIU-CC further agree that this Agreement may not be modified or amended except as set forth in
this Agreement.
32.16. A Inc id I lie 5. This Agreement Inay he amended only by the written consent of the
parties.
-- -
32.17. Governing Law. The validity of this Agreement and all matters pertaining
to this Agreement. including but tot limited to, unifiers of performance, non-performance, breach,
remedies, procedures, rights, duties, and interpretation or construction, shall be governed and
determined by the Comstihnion and tie laws of the State of Texas. This Agreement is
performable in Nueces County,Texas. Pursuant to Section 85.IS, Texts Education Ode. venue for
any suit filed against TAMU-CC shall be in the county ill which the primary office of the chief
executive officer of TAMU-CC is located.
=.IS. Cnnshuction. 'Elie parties have participated jointly in the negotiation and drafting of
this Agreement_ In the event all ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local or foreign statute or lax/
shall be deemed also to refer to all ales and regulations promulgated thereunder, unless the context
requires otherwise,
32i9 SMG as independent Contractor of the City_ TAMU-CC acknowledges that SMG
operates and manages the Arena pursuant In the Management Agreement. Furthermore, TANIU-
CC acknowledges and agrees that O SMG's obligation to provide services for and in
connection with the Arena is limited to the express terms of the Management Agreement,and, in
any event, by the availability of funds, which SMG is under no obligation to provide, (ti) this
Agreement is subject to the approval of the City, and SMG acknowledges that it has received
such approval on or before Skill's execution end delivery of this Agreement, (iii) in the event of
ierminalion or expiration of the Management Agreement during the Team of this Agreement. this
Agreement, without further action by the panties hereto, shall be automatically assigned to the
City ouhout recourse to SAID and for puiposes o.ses of this Agreement the City shall '.caume all of the
responsibilities of the SMG and (iv) SMO after such nssi nment.'he and is, in no way,
liable or responsible or any of the obligations or liabilities of the City pmvidcd or incurred
under or pursuant to the terms of tins Agreement (either in the event of termination of the
Management Agreement or not) or the Management Agreement. Notwithstanding
e any colter or
provision herein, TANIU-CC agrees thol no board member,partner,agent, director
affiliate or the SMG shall be personally liable to lAMIJ-CC or anyone claiming by, through up
under TAMIJ-CC by reason orally default by SMG under this Agreement, for any obligation of
SMG m ']AMU-CC, or for any amount that may become due to TANIU-CC by SMG under the
terms of this Agreement or otherwise.
3220- Child Support. A child support obligor who is more than 30 days delinquent in
paying child support and a business entity in which the obligor is a sole proprietor, partner,
shareholder, or owner with an ownership interest of at least 25 percent is not eligible In
receive payments from state funds under an Agreement to provide property, materials, or
services until all ntrcarages have been paid or the obligor is in compliance with a written
repayment agreement or court order as to any existing delinquency. The Tents Family Code
requires the following statement "Under Section 231.006. Teras Family Code, the vendor or
applicant certifies that Ilse individual or business entity mined in this contract, bid, or
application is not ineligible to receive the specified grant, loan, or payment and
acknowledges that 'this contract may be terminated and payment may be withheld if this
certification is inaccumle"
:221. Debts or Delinquencies. I'utsnaat to Section 2251903, Texas Govern:nent Code,
SNIG agrees that any payments owing ro SNIG tinder this Agreement may be applied directly
toward certain debts or delinquencies that SMG owes the State of'texas or any agency of the
Slate of Texas regardless of when it arises, until such debt or delinquency is paid in full.
3/22, Franchise Tax Certification. If SMG is a taxable entity subject to the Texas
Franchise Tax (Chapter 171, Texas Tax Code), then. SMG certifies that it is not currently
delinquent in the payment of any franchise luxes or that SMG is exempt from the payment of
franchise taxes.
32.23. Loss of I''nodius. Perini-Malice by TANIU-CC under this Agreement may be
dependent upon the appropriation mid allotment of Rinds by the Texas State Legislature (the
"Legislature"). If the Legislature fails to appropriate or allot the necessary Rinds then
TANIU-CC will issue written notice to SMG and TANG I-CC may temivate this Agreement
without further duty or obligation hereunder. SNIG acknowledges that nppropi ial'mn of funds is
beyond the control of TAMU-CC.
(continued on next page)
3224. Limitations. SMG is aware that there are constitutional and statutory
limitations on the authority of TAMU-CC, a state agency, to enter into certain terms
and conditions of this Agreement, including, but not limited to, those terms and conditions
relating to liens on TAMU-CCs property; disclaimers and limitations of warranties;
disclaimers and limitations of liability for damages; waivers, disclaimers and limitations
of legal rights, remedies, requirements and processes; Iiinitations of periods to bring legal
action; granting control of litigation or settlement to another party; liability for acts or
omissions of third parties; payment of attorney's fees; disputa resolution: indeinnities; and
confidentiality (collectively, the "Limitations"), and terms and conditions related to the
Limitations will not be binding on TAMU-CC except to the extent authorized by the
Constitution and the laws of the State of Texas. Neither the execution of this Agreement by
TAMUCC nor any other conduct, action, or inaction of any representative of TA MU-CC
relating to this Agreement constitutes or is intended to constitute a waiver of TA MU-CC's
or the states sovereign immunity to sail.
1N WITNESS WHEREOF,the parties have affixed their signatures below:
TEXAS A&M UNIVERSITY- SMG,pursuant to its independent
CORPUS CHRIST Contractor Authority under the
Management Agreement
,5N,‘'‘,,,,, By; _...,w- _..._ By: .
v ��
Name: Planus C.Killebrew .me: un ala menta
Title: Presider)/CEO Title: Gene r
Dated: 4t -y_ .I S' Da d: `b 51 LS
EXHIBIT A
Luxury Suite License agreement
This Luxury Suite License Agreement (the "Agreement") is made and entered into by
and between SVIC ("SMIG"), as ni a ger of the American Bank Center) owned by the
City of Corpus Christi (die "Owner") and located at 1901 N Shoreline Corpus
Christi, Texas 78401 and Texas A&M University-Corpus Christi, a member of The Texas
A&M University System, an agency of the State of Texas TAMU-CC"), located at
located at 6300 Ocean Drive Corpus Christi,.l Sxas 734 t
Intending to be legally bound.the parties agree as f nllows:
Article 1: License
Subject to the provisions of the University License Agreement, SNIG hereby grants In
TAMU-CC, and TANIU-CC hereby accepts from SMG, an exclusive license for the right to
use. for the purpose of viewing all regular season home games and home exhibition games
played and any tournaments by the NCAA Division I Men's and Women's Basketball1
Texas A&M Islanders (individually and collectively, the 'ream"), graduation exercises, an
and
outer selected events provided Ira' herein, two (2) Luxury Suites (jointly the "Suite"),
Arena portion of the Amcricau Bank Center (the "Comptes") commencing with Ihe2015-
2018 Season for the Terni, as defined in Article 2 below. The right of TAMU-CC to use
he Suite, together with all other rights of the TAMU-CC hereunder, is defined herein as the
"License". SMG and TAMU-CC acknowledge that the Owner has actively participated in the
negotiations for the Agreement.
-- - -_-- Article 2: Terni of Agreement
'flu: Tenn of this Agreement is as specified in Article 3 of the
University License Agreement.
Article 3: License Fee: Additional Tenants of
Complex
Mc use of the Suite by TAMU-CC shall be contingent on payment by TAMU-CC to SMG of Ices
as outlined in the coining' for use of the arena.
Article 4: Furnishings. Fixtures and
)1911111 1111911.
4.1. Suite Description.
The Smite is a private suite with open-air seats facing the arena floor and parlor area behind
The Suite shall contain the following furnishings, fixtures and aqui pix bent at SMG's expense.
SMG reserves the right to make minor modifications mid changes from this Suite description
without the approval of the TANIU-CC.
Twelve(12)premum padded scats, fixed in place and lacing the playing area, in the open
area of die Suite.
2. Accessible seating that will accommodate one wheelchair.
3. 'There will be zero VIP parking passes.
4. One coker television with cable hookup.
5,
hi Suite telephone and litre access.
6. Bar sink with countettops and refrigerator.
Z Lot and cold Binning water, elect,icity, heat and air-conditioning
d.
App mprinto furniture, eabineny. wall finishes, cat pet and millwork.
9, Subscription to facility news lett cr.
10. Private Suite concourse.
II. I lousekeeping services.
42. No Alterations.
TAMU-CC agrees that there will be no alterations, intproveutenls or installations made
to the Suite svilltoot prior written approval of SMG. TAMU-CC must provide written
assurance that all approver) alterations shall he fully paid for by TAMU-CC. SMG must approve
the dales and times of any approved alterations. TAMU-CC agrees That upon termination of the
Agreement may alterations become the property of SM G.
Article 5: Services and Amenities
5.1 Services
SMG shell provid,or cause to be provided to TAM(t-CC, the following services In the
Suite:
Heating,air-conditioning, ventilation, hot and cold manning water, tuhd electricity.
? Repair and maintenance of the Suite made necessary by normal wear and tear.
t. Complete housekeeping,Janitorial a nd cleaning services after each event.
4. frond and Beverage as described in Article 7.
5. Private entrance for Suite holders and their guests.
G. A key for those authorized to have one(maximum of three(3) keys).
7. Other special services SMG may offer to TAN[U-CC at prevailing
rates and tenns established hem time to time.
5.2 Extraordinary Items.
SMG reserves the light to charge TAMU-CC for, and TAMU-CC agrees to pay, the cost of
extraordinary repairs, maintenance, replacements and cleaning of the Suite resulting from
any act or omission of TANltl-CC.as determined by S MG in its reasonable judgment.
Article 6: Special Pnrhi nq
For all events during the Tom, SMG shall provide TAMU-CC, al no additional cost to
TAMU-CC, acro parking tickets for designated private parking areas. Additional passes
may be made available for an additional fee.
Article 7: Fount Service
SNIG will make available to TANIU-CC food and bevelage catering soh vices from the caterer
designated by SMG at rates established by caterer and approved by SMO. All food and beverages
(alcoholic and non-alcoholic beverages) consumed in the Suite shall be purchased from the
Catering service designated by SMG. Na food or beverage other than those purchased Nom the
designated calmer may be brought tato,prepared, or consumed in the Suite. TANIU-CC shall
be solely responsible for anti shill paomptly pry to the caterer all bills for food , beverages
and services rendered in Connect loll with TAMU-CC's' use of the Sung
Article 8: Covenants
During the Tenn,'JAMU-CC covenants nnd agrees with SMCi as follows:
S.1 TAMU-CC shall use reasonable efforts to keep and maintain the Suite in good order and
condition. TAMU-cc twill reintbut se SMG for reasonable costs incurred by SMG to repair or
replace any damage or destruction caused directly by TA NI U-CC or its invitees.
g2 TAMU-CC and TA MU-CC's invitees shall abide by all rules and regulations pertaining
to the use and occupancy of the Suite est alli shed from tiara to lima by SMG. TA MU-CC
shall not commit or allow to be committed any nuisance or other act or oilier thing, which
may disturb outer TA MU-CCs of suites or interfere with their use and enjoyment of their
suite or which may disturb other spectator's use and enjoyment of his or het 116enSc.
Shonld the TAMU-CC or any of its invitees create, or arc involved in, a distillbarce er cause
objects to he thrown or dropped from the Suite, SNIG shall have the right to eject the
responsible patties, or all persons in the Suite, lloun the confines of the Complex or if such
dismr banes occur on more than three occasions during one year of the term, then SMG has
the nght to exercise any of SMG's rights upon default in accordance with the provisions of
Article ID hereof, including, without limitation, termination of This Agreement. TAMU-CC
andits invitees shall comply with all applicable present and future laws, ordin mm es, orders
Rules and regulations and shall not permit any violation thereof. TAMU-CC shall cause its
inn tees to comply with TAMU-CC's responsibilities under this Agreement and agrees to be
responsible for any non-compliance thereof.
S i TA1MU-CC and its invitees shall not attach in any fashion or otherwise display any
signs, notices or advertisements on the exterior or the interior of the Suite, other than those
approval in advance in writing by SMG
8.4 TAMU-CC and its invitees shall not place any of its property or any other
materials, (including without limitation, any waste product generated by TAMU-CC or
its invitees) at any location in the Complex outside of the Suite.
8.5 Alcoholic beverages may be present, served, or consumed in the Suite only in
accordnice with the tyles and regttlmions of the SMG, the concessionaire and any local,
state or federal governmental authority exercising jurisdiction over the Complex. TANIU-
CC shall ensure that all guests consuming alcohol are of 21 years of age.
3.6 TAMU-CC rig'ccs to pay on a timely basis any cliargcs and expenses, including
:any applicable taxes, for catering, cable television and telephone services incurred in
connection with TAMU-CC's use of the Suite.
S.7 TAMU-CC shall surrender possession of the Suite and all keys to SMG upon
expiration or termination of this Agreement, in the some. condition as when initially
occupied by TAtbN-CC, normal wear and tear and damage by casualty excepted.
Article 9: Reference to Name of l hr Complex
When wterring to the Complex dein, the Tenn of this Agreement,TAMU-CC shall use the
name "American Bank Center" (or such replacement nave, as designated by the SMG) and no
other name and shall use reasonable best efforts to require third parties that it contracts with
in connection with the Complex to do the same. 'Ore ase and designation of the Complex's name
shall inhale, but not be limited to, printed materials, advertising, admission tickets, television,
Internet, and other broadcasting methods, and public relations or promotional press releases.
Notwithstanding anything to the contrary herein, the parties hereto acknowledge that American
Bank is a third party beneficiary of this section of this Agreement and that American Bank
shall have all the rights of a third party beneficiary allowed by law.
Article 10:Unavailabilide or lhmvahilih'of Suite:: Cancellation of Ganes
10.1 if at any time during the Term, Suite shall be damaged or destroyed by fire or other
casualty beyond the control of the SMG, which prevents the use of the Suite for any regular
season Team home game, SMG may elect to repair and reconstruct the Suite to substantially the
same condition in which it existed immediately prior to such damage or destruction except the
SMG shall not be required to repair or replace any personal property, furniture or wall fixtures
located in the Suite which are the•properties of TAMU-CC or its invilees. If SMG elects to repair ,
and restore the Suite the Agreement shall continue in lull force and effect and SMG shall use
reasonable efforts to effect such repairs within a reasonable time, and all license Fees will be
abated during the period or time that the Suite is rendered unusable; provided, however, That no
compensation shall be claimed by or payable to TANIU-CC by reason of any
ineonvenieuce or annoyance arising from the construction of, repairs to, or alterations of the
Suite, any adjacent suites or the Complex. S MO reserves the unlit to make repairs or
alterations to the Suite and any part of the Complex when it may deem necessary, but it will
use its best efforts not to disrupt TAMIJ-CC'S use and enjoyment of the Suite. If SMIG elects
not to repair and restore the Suite, this Agreement will terminate as of date of damage or
destruction, and all License Fees will be rent aded to TAMRI-CC as provided in the agreement.
10.2 If the Suite is rendered unusable, SMG shall offer to TAMU-CC the number of seats set
forth in 4.1 hereof for admission to the Complex al such locations that the SMG may
determinc for such Regular Season home games played in the Complex during the period of
unnsribitity- If TAMU-CC accepts such tickets, the aggregate face value of the tickets issued in
exchange shall reduce the amount of the abatement or credit due to TAMU-CC hereunder.
10.3 If the Suite is unavailable for any other event where tickets arc available to the public
due to production requirements or show restrictions, twelve (12) seats will be made available
for purchase nt such locations that the SMG may determine and must he purchased by deadlines
set by die SMG.
[0.4 II this Agreement is terminated by SMG, SMG shall refund to TAMU-CC any
prepaid consideration deposit as of the date of damage or destruction computed in accordance
with Article 12.6 hereof, less any sum then owing by TMIU-CC to SMG.
10.5 If one or more l cantor season hone gapes are not played by reason of a strike or by a
lockout of the applicable player's association (including, without limitation, the NCAA) o'
members thereof, and are not rescheduled and played at the Complex, SMG shall abate h e Lilcense
Pees attributable to the games in question its accordance with this agreement,
not
otherwise be liable in -FAMU-CC in any manner except as otherwise provided herein_
J Of, If for any reason any menhir season home game is not played or is halted (except if such
gang is suspended), and is rescheduled to be played at the Complex during the year, then there
shall be no rebate. It such game is not rescheduled, thea upon lac retain of applicable game
tickets, SMG shall credit to TAMU-CC's account an amount equal to the cost of such tickets. The
amount of such ered it, less any sum then owing by TAMC-CC to SMIG under this Agreement,
nay he used by TAM U-CC towards the purchase of tickets for any other regular season home
games during that season. The amount of any unused credit will be refunded to TAMU-CC alter the
end of the regular season.
10.7 The amount of the abatement of the License Fees for any year provided in in this
a gIeement shall be equal to the License Fees attributable to such year, multiplied by a
fraction, the denominator of which is the number of regular season -Pearn home games scheduled
during such year, and the numerator of which is the number of such home gapes lost to strike
or lockout and not replayed, or the number of such bona games during which the Suite was
unusable. Any such abatement shall be paid in the loran of an offset against the next succeeding
installments of License Fees payable by TAMU-CC, except in the case of a termination as
specified in the University License Agreement or the absence of succeeding
installments of License Fees, the amount of the abatement shall be refunded to TAMU-CC
immediately upon determination of the amount thereof less any sums then owing to SMG by
TAMU-CC
10.3 lithe Suite is available for l"AMIJCC's use hot far any reasons other than that descni bed under
Articles 12.6 and 12; hereof, one or more regular season Paine games are not played,TAVdll-CC shall
not be entitled to a refund, abatement or other compensation far such regular season home gnnres.
Article II: Insurance
SN IG understands and accepts that TAMU-CC is a member of The Texas
A&NI University System,a Texas public institution of higher education, which is subject to
sovereign inununity and self-insured to the extent of the sovereign immunity waiver of the
Texas Tort Claims Act (Chapter ID!,Texas Civii Practice Sc Remedies Code).
Article 12: R12111 of Entry
TAMU-CC agrees that the SNIG and its employees shall have the right to enter the
Suite to any and all limes, and when it is not in use, (A) to examine the sonic and
make repairs, alterations or improvements as may be deemed necessary by SMG, (13) to
investigate any suspected violations of the provisions of this Agreement and (C) to generally
inspect the Suite and is conditions,
Article 13: bliscell.menus
13.1 TAMU-CC and its invitees shall have no right to resell any of the Suite admission tickets
or perking passes purchased by or provided to TANIU-CC.
•
EXHIBIT B
•
COMMENCEMENT DATES
Saturday, December 12,2015
Saturday, May 14, 2016
Saturday August 6,2016
Saturday, December 17, 2016
Saturday, /Slay 20,2017
Saturday, August 5.2017
Saturday, December 16, 2017
Saturday, May 12,2018
Saturday, August 4,2018
Saturday, December IS,2018
Saturday, May II,2019
Saturday, August 10, 2019
Saturday, December 14, 2019
Li Ell WI(HH
FIRST AMENDMENT TO AGREEMENT BETWEEN TEXAS A&M UNIVERSITY-
CORPUS CHRISTI AND SMG
Re: University License Agreement 2015-2018 .
THIS AMENDMENT is made and entered into this 19TH day of February, 2016, by
and between TEXAS A&M UNIVERSITY- CORPUS CHRISTI ("TAMU-CC"), and SMG
(hereinafter referred to as "SMG").
WHEREAS, this First Amendment is to the original University license Agreement
between TAMU-CC, and SMG with an initial term of September 1, 2015 through
January 30, 2018 with the option to renew two (2) additional one-year periods; and
WHEREAS, the Parties: mutually agree to amend the Agreement to retie-et the
revision described below;
1) Exhibit 8 Commencement Dates:
Change commencement date from May 20, 2017 to May 13, 2017;
All other commencement dates shall remain the same.
NOW THEREFORE, al! other terms and conditions of the Agreement that are not
modified in this Amendment, shall remain in full force and effect, and he considered
incorporated herein as part of the Agreement.
Texas A&M University SMG, pursuant to its independent
Corpus Christi Contractor Authority ander the
jr Management Agreement
r
Cay yt ):.;. ( .L,t By
Name: Kelly Quintanilla Nage J S I
Its: Provost& VP for Academic mic Affairs Its. - e0
Dated: ) ) N l �-— — — DLJ: ren.
res ISt.:1 MUSH
ir<
SECOND) AMENDMENT TO AGREEMENT BETWEEN TEXAS A&nil UNIA'ENSPTY-
CORPUS CHRISTI AND SMG
Re: University License Agreement 2015-2018
THIS AMENDMENT is made and entered into this __day of 2016, by
and between TEXAS A&M UNIVERSITY- CORPUS CHRISTI (`TAMU-CC"), and SMG
(hereinafter referred to as "SMG").
WHEREAS, this Second Amendment is to the original University License
Agreement between TAMU-CC, and SMG with an initial term of September 1, 2015
through January 30, 2018 with the option to renew two (2) additional one-year periods;
and V Amendment effective February 19, 2016; and
WHEREAS, the Parties; mutually agree to further amend the Agreement to reflect
the revision described below;
1Exhibit B Commencement Dates: Add one additional commencement to
December 2016, December 2017, and December 20118 as follows—
Saturday, December 17, 2016 shall have a morning and afternoon
commencement;
Saturday, December 15, 2017 shall have a morning and afternoon commencement; and
Saturday, December 15, 2018 shall have a morning and afternoon
commencement.
All other commencement dates shall remain the same pursuant to the Agreement and
First Amendment.
NOW THEREFORE, all other terms and conditions of the Agreement and First
Amendment that are not modified herein, shall remain in full force and effect, and be
considered incorporated.
Texas A&M University SMG, pursuant to its independent
- Corpus Christi Contractor Authority under the
Management Agreement
f
r�
.�-
'Flavma c(Killebrew Jim S flame
President I CEO Genera-Erin Igor
Dated: Nay 2 201b— _ __ ; ted: 7 71(„._ -__---...
THIMM AMENDMENT TO AGREEMENT BETWEEN TEXAS A&MMi UNIVERSITY-
CORPUS CUJUST1 AND SMG
Re: University License Agreement 2015-2013
THIS AMENDMENT is made and entered into this 22m day of November, 2016,
by and between TEXAS A&M UNIVERSITY- CORPUS CHRISTI (`TAMU-CC"), and SMG
(hereinafter referred to as "SMG").
WHEREAS, this Third Amendment is to the original University license Agreement
between TAMU-CC, and SMG with an initial term of September 1, 2015 through
January 30, 2018 with the option to renew two (2) additional one-year periods: 1s'
Amendment effective February 19. 2016; and 2°tl Amendment dated July 7, 2016;
WHEREAS, the Parties; mutually agree to further amend the Agreement to reflect
the revision described below;
1j Exhibit B Commencement Dates: Add the following commencement dates:
Saturday, May 9, 2020— need two ceremonies en this date.
Saturday, August 8, 2020 — need one ceremony on this date
Ali other commencement dates shall remain the same pursuant to the Agreement and
First and Second Amendments.
NOW THEREFORE, ail other terms and conditions of the Agreement and First and
Second Amendments that are not modified herein., shall remain in full force and effect,
and be considered incorporated.
Texas A&M University SMG, pursuant to its independent
- Corpus Christi Contractor Authority under the
Management Agreement
'. 5 �i�,=
B
riavius C Killebrew Eric aramillo
President I CEO General Manager
Dated: / 2-iv_/c Dated: --- ---