HomeMy WebLinkAboutC2021-287 - 11/1/2021 - NA [ISE LICENSE.r CRL1 MENT No. 131588
BYANDBETWEEN
SMG 'and
BUC.CANEMM COMM SSION, INC.
,NREM CONTRACT
DATED: October 4, 2 321
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AMERICAN BANK C13NTEU ARENA
LICJsNSE AGREEMENT
'11is ARENA LICFVS)-: AGIZL,L-ML�Nl'("Agt-eeiiii-,iit" or"License") is made as of this 4th
day of October,2021 between SMG, as an indolm)(1011t. Contractor of the City of Corpus Christi,
Texas and having an address of 1901 North Shoreline Boulevard, Corpus Christi, Texas 78401
("SMG"), and tile BUCCANEER COMMfSSION, INC. whose address is P.O. Box
30404, Corpus Christi,Texas 78463 ("Licerisce").
W I TN E S S E T H:
WHEREAS, 111c City of Corpus Christi, Texas (the "City") has duwloped a sports and
entcrtaijurient facility located at the American Bank Center in Corpus Christi,Texas(such shorts and
entertain mont I'acility known as the"American Bank Center Arena"); and
WAHREAS, SMG entered into flint certain Managernei)t Agreement by and between the
City and SMO dated December 8, 2017 pursuant to which SMG has certain rights to operate
and manage theAmerican Bank Center Arena as specified ki the Management Agrecinont and
enter into this Agreement with Licensee; and
WHEIWAS, upon the terms and conditions set forth in this Agreement, Licensee desires to
use the Licellse(l Premises(as here in after defined)for the purposes hereinafter set forth in connection
with,Licensee's rodeo and certain other functions hosted by Licensee,and SMG desires to license the
use of the Licemsed Premises to Licensee for such purposes;
NOW THERFFORE, SMG and Licensee, intending to be legally bound, hereby
acknowledge and agree that the above recitals are truc and correct and further agree as follows:
ARTICLE"I
LIGENSED PRF,MISES
LL As, used in this Agreement:
(a) "Perf-bi-mance" means a scheduled during Buccaileer
Days, either as a matinee performance or an eveiiing performance.
(b) "Buccaneer Days" means a series of Performances scheduled on tile
following dates during the year as indicated:
Thursday, May 5---Sunday,May 15,2022
Thursday May 4—Sunday, May 14, 2023
Thursday,May 2—Sunday, May 12,2024
Thursday,May I —Sunday,May 11,2025
Thursday, April 30—Sunday, May 10,2026
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SETUP DATE S
Monday,May 2—Wednesday, May 4,2022
Monday,May I —Wednesday, May 3, 2023
Monday,April 29—Wednesday, May 1, 2024
Monday, April 28—Wednesday,Apri 130, 2025
Monday,April 27--Wednesday,April 29, 2026
TEAR DOWN DATES
Monday, May 16—Tuesday, May 17,2022
Monday, May IS Tuesday, May 16, 2023
Monclay,May 13—J'uesday,May 14, 2024
Monday, May 12—Tuesday, May 13, 2025
Monday,May 11 Tuesday, May 12, 202E
1,110 above dates may be modified by Licensee by giving six (6) months'prior written notice,
to SMCY, subject to SMGs confirmation that ally such modified dates (to not conflict with other
bookings for the American Bank Center Arena.
No Monster Trucks show may be booked by Licensee without written collselit from SMG.
No Western .Sporting Everils (i,e, Rodeo, Dull Ridings, etc,) may be booked by SMG without prior
written consent from Licensee.
Licensee to have first right of refusal for the following dates;
April 29—May 9, 2027
May 4—May 14,2028
May 3—May 13, 2029
May 2---May 12, 2030
May I May 11, 2031
The above dates tire tentatively held and will serve as first right of relbsal for the Licensee.
Licensee is given seven (7)business days' wyitteii notice to coptract these dates should a conflicting
event wish to book the American Bank Center Arena. SMG will, require written notice of Licensee
to release the hold on any of the above-mentioned dates,
1.2. For and ill consideration of the suills licreirtafter specified, SMG grants to
Licensee the use of thefollowing areas and facilities(collectively,the"Licensed Premises")located
at the Anicrican Batik Center Arena during each Buccaneer Days:
(a) the part of the American Batik Center Arena necessary for the propel,
exhibition of neli Performance, including, but not limited to, the American Bank Center
Arena floor, and seating areas.
(b) C101 —C107 with adjacenthallway for production
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1.1 Licensee shall. be provided access to the Licensed Preilliscs beginning at 7:00am f6r
all load in/out clays, Licensee shall be provided access for move-out 1611OWhIg BUCCalicer Days
Series till-011911 8:001M, oil tile last (lay of each year's contracted dates.
1.4. This Agreement grants Licensee rise only of the Licensed Premises and necessary
ingress and egress to the Licensed Premises and does not extend to or include other areas or any
,9111TOUlldilig Or C011tigU0U.S arC88, I)tovided, however, that if LiCellSCC (ICSil-CS 10 use all)' portion of
the American Bank Center Arena that is riot part of the Licensed'Premises(e.g,mecting rooms at the
American Bank Center Arena or Convention Ccn(cr),Licensee shall have tile right to USC such Other
areas of the American Banl< Center Arena or Convention Center, subject to (1) SMG1s prior written
approval, and (2) Licensee's paynient. to SMG of the going rate. Except as specifically set forth in
this Agreement or ill the Suite License Agreement, the use of all Licensed Suite Seats at (fie
American Batik Center Arena shall be under the exclusive colitrol Of SMG for the Friday rligght
performance of the Rodeo. SMG shall control the marketing and sale of all tickets to all Suite
Licenses and'shall keel)all Suite Liconse revenue collected. Suites that are Licensed prior to Jamiary
I prior to the I-went will receive tickets to the Friday night performance of the Rodeo only.All Suites
without a Suite License Agreeniciv oil January I prior to event shall be released to Limisce for
fill use by Licensee for all Buccaneer Days Events. All Suite License Holders and Club Level
Seat Holders must purcliaw, tickets for suite and/or club level seats to 11ticcancer D I, 1 .51
Days e c it io later
than January I prior to the first Performance. Should Suite License Holders and Club Level Seat
Holders not purchase tickets to Buccaneer Days events by January 1, Suite and/or Club Level Seats
fire released to Licensee for use and safe. Licensor reserves the right to retain a suite for its owli use
for One Rodeo performance (Friday night), SMG shall also retain the VIP suite (Section 102) and
Club Lounge Suite (Section 112) for the Friday night performance provided that. the suites are
contracted within a License Agreement prior to Jalivary event.I year Of If suites are not contracted,
Licensee shall rent the suites ill the amount of face Value of suite tickets sold for the Friday might
performance.
1.5, SMO Shall tender the Licensed Premises to Licensee purstiant to the terms and
conditions of this Agreement. Except as expressly stated herein, SMG nialces no warranty or
representation of any kind(express 0i'implied) to Licensee regarding the suitability of the American
Bank Center Arena, the Licensed Premises, or of any portion tilereof, for 1- i
11), aspect of the llsG
Licensee expects or intends to make of the Licensed Promises. SMG shall. (i) provide to Licensee
the Licensed Premises ill good working condition, and (ii)maintain the Licensed Premises, subject
to the terms and conditions of this Agrcenient, in good working condition, except for reasonable
wear and tear and Force Majeure I.tvents (as defined in Article 18.1). EXCEPT AS
HEREINABOVE PROVIDED, I ICENSEE AGREES THAT THE LICENSED 1112EMISES
WILL BE DELIVERED BY SMG TO LJCF'NSJ3E WITHOUT ANY WARRANTY,
hXPRESS OR IMPLIED,
�D,AS TO THE MERCHANTABILITY OR FJTNJ--�,SS FORTE'HE US
TH17,RROF FOR ANY PARTICULAR PORPOSE. SMG SHALL PROVIDE,, wITHOUT
ANY WARJ-ANTY, EXPRE.SS. OR IMPLIED, AS TO MI-A-k.CHANTABILT'rY OR
FITNESS FOR '111E USE THEREOF FOR ANY PARTICULAR PURPOSE,AS PART
OF THE LICENSED TREMISES,SCOREBOARD,VIDEO REPLAY ACCESS AND MEDIA
ACCESSORIES,
A101CLE 11
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2.1 Inif ial Term, The terra of this Agreement shall be for a period of five (5) years
during the periods covered by the Buccaneer Days defined in Section 1.1 (the"Initial Term").
2.2 Renewal Term, Upon the imitual written agreement of both parties oil or prior to the
expiration of the Initial Torm, the parties hereto may extend the terin of this Agreement for
additional years upon inutual written agreement of the parties. The Initial 'ferm, together with ally
ReiiewalTerm, shall bO the"Tcrivi" of this Agreement.
ARTICLE III
LICENSEE F 13 ANI) PAYMENTS
M. Base Fee. Licensee agrees to pay to SMO the following base fee(tine"BFee")SUIR',dUle
per Buccaneer Days event with a minimum of five (5) Performances with any and all sales and use that
may be imposed oil such fees:
2022 $12,000
2023 $12,500
2024 $13,000
7..025 $13,500
2026 $14,000
Licensor agrecs to pay a total fee of Five Thousand Dollars ($5,000,00) for all Load In Days and
Utilities.
Licensee to provide proper tax exemption documentation prior to the oil sale, of each. Buccaneer
Days.
The Base Fee shall cover basic staffing levels sufficient to provide fior the adequate and
safe operation of the Amorican. Bank Center Arena based upon Licensee's needs as determined
and provided by SMO,such as: box office personnel,ushers, ticket takers,security,concierge,EMT,
Police, house sound and house lighting teohnician, housekeeping services to include set ill), event
uleming and post event cleaning including suites, Housekeeping services (foes not include the
American Bank Center Arena floor and pens area. Basic staffing levels jueluded are for a 3Y2 hour
event with standard preshow and post show staffing requirements. The base fee will increase by 2%
annually.
The following technical services are included in Rent for ally 11111tUally agreed upon(echnical services
vendor:
-Use of Arcna Show Control System and All Video Displays
-Video Cameras (4)
-Clear Com 11cadsets/13 eltpacks (12)
-In House Arena Lighting Design & Operator
-Television Monitor(1)
-Video Fcc;d from Show Program to Television Backstage
Aper event charp
,,e ofThree Thousand Five TILIMIM(I($3,500)per event for any non-appyoved vendor
selected by Licensor, plus any costs associated with any daniages or repairs to equipment related to
licgligeiice.
Any additional staffing requested by Licensee above and beyond basic staffing levels (i.e.
scaffolding, scl/Mrike) as mutually agreed upon it) writing by SMG and Licensee Nvill result in
additional labor costs to Licensee. Licensee will provide video Production service, and any
stagehand costs per performance. Licensee is responsible for additional labor cost in regards to
advance
, production, Willi advance notice. Liccusce shall be responsible for all Jabot, and expenses
necessary far setting up the American Bank Ccntci°Arena floor and pens area for each Pet-forinatice,
operating and maintaining the American Bank Center Arena floor area and pens during each
Performance, and removing all dirt and pens frons (lie Arnefican Bank Cujitur Arena floor and
restoring it to its original condition, norinal wear find tear excepted, at the conclusion of each
Buccalicer Days.
Licensee.will notify SMG 110 later than October I each year of(fie mirnber of Performances(i.e. Date and
Type)Licensee intends to have at the American Bank Center Arena.
3.2 Additional Fees. Licensee agrees that the following fees ((lie "Facility Fees") shall
be collected by SMG in addition to the face amount of each ticket sohl, for a Performance. SMG is
to retain that Facility Fee per sold ticket as follows.
2022-23 $2.00 per ticket sold
2024-26 $2.50 Pei,ticket sold
Applicable service charges shall apply to any tickets sold throughTicketniaster:
A 3.5%Credit Card Fee will be assessed for each credit card used at the American Bank Center Box
Office, This fec, shall be passed on to the consumer at all Ticketmaster outlets Willi the exception of
the Aincrican Bank Center Box Office. The Licensee will be responsible fbi-the 3.5% Credit Card
Fee at ilia American Bank Center Box Office,
3.3. Box Office,Receipts, Box office receipts receive(] by SMG will be held by SMG for
jio more than five (5) business days following the, end of Buccaneer Days and may be applied to
any out, 0 that I oft I
standing paynients due wider this Agreement, Licensee waives all rights t t t: ) ioi of
the box office receipts necessary to pay sunis due pursuatit to this Agreement. If f01-any TeaS011,Such
box office receipts fire insufficient to pay all,,ainis(]Lie under this AgtCUIRCIA(including but not limited to(lie
Base Fec and the Ticket Fees,Licensee agrees to pay SMG by certified check or money order ally sotils due
within thirty(30)days of receipt of an invoice for payment of such-fees.Licensee also covenants and agrees
to pay interest at the niaximuni rate allowable per anatini by law for any sums due -in(] not paid
within thirty(30) working days of receipt of fin invoice for payment.
3.4. Other C halpgqs. If,for any reason, SMO is required,due to Licensee's failure to vacate
the Anicrican Bank Center Arena, to provide, staffing after one and one-half hours after the
conclusion of a Performance, then Licensee shall reiniburse, SMG for all out-of-pocketexpenses
incurred by SMG for Such thilUll, to vacate the American Bank Center Arena on a timely basis.
Further, if SMG is required to provide any additional services, such as doctors, nurses,
ambulatices, food in(] beverage services, Special facilities, or extra service,; at the request of
Licensee,, Licensee shall f0illIbUrSO SMG for aCtUal costs incurred by SMG in comiection with
any such additional services. However, SMG acknowledges that Licensee, after all Rodeo
Perfomimices have been completed, will be removing the dirt, pars and chutes used for the Rodeo
perlbrinalices, and 110 charges will be made by SMG with respect to any additional s(affmg required
(111rilig this extended period. Other charges including those identified above most be agi-ced upon ill
writing with additional cost disclosed. One of the following authorized representatives of the
1311ccalicel.Commission must,agree to other charges by way of signature prior to incus-ijig Charges:
Jol"Uly Philipello
Tricia Perrone
Denisc Vennard
In-iGa DeLuna
Joseph Jolmson
Other charges will only be paid that have been approved in writing by <)lie of the authorized
representatives. Modification to list of Authorized representatives must be submitted to Licomor
firom President find CEO of Buccaneer Commission.
3.5. Cmicession Charms. For each Buccaneer Days during the Perin of this
Agreement, Licensee will be paid, oil or before the thirtieth (30th) (Jay after conclusion of
each Buccaneer Days, a percentage of 20% gross concession iticome received by Licensor oil
account of sale during the Buccaneer Days of food and drinks (alcoholic mid tion--alcoholic).
Gross income being defined as revenues, less tax, SMG shall accompany each payment with
appropriate supporting documentation relative to the attendance during the applicable period,
Payincrits due under this Section 3.6 may be held by SMG and applied to any other payments and
amounts due under or ill conitectim with this Agreement by Licensee and not yet paid by Licensee.
Catering will be offered to Licensee's VIP Cattlemen's Club event,-, at a discounted rate (it $15.39 per
plate from SAVOR catering menii prices with as 2% increase annually tbi-oughout the duration of the,
This is based oil the menu selection as listed in the 2021 Banquet Evcnt Orden Any changes to the ni-eirij
are stibjcct to immense ill pricing.
.3.6, P..arkiim Fees. [Intentionally Deleted],
3.7. Parkingj9pgoes. SMG grants the Licensee during the"Performances"use of Lot 10 for
VIP parking passes.(b.)40 rodeo parking spaces ill file garage,
The City has financed the American Bank Center Arenaa
through the issuance of tax-exempt obligations by a related and controlled entity. Accordingly, to
ensure compliance with 11-to federal tax laws applicable to such obligations, SMG hereby allocates
and agrees to use any and all payincrits received by SMU front the Liecrisce pursuant to Article IV
of this Agreement to the payment of ordinary and necessary expenses directly attributable to the
operation and maintenance of the American Bank Center Melia for Clio Licensee.
3.9. Anicricarl Bank Center Arena Marketing/Co-Promotion Fund. Licensor to receive
revenues from the Corpus Chjristi Busiricss and Job Development Corporation Board, otherwise
currently known las the Type A Board, ill tile aniourit of Seventy Thousand Dollars ($70,000) to
be applied amivally to Licensee. gross reveres ill order to offset event. expenses associated with
attracting talent for the. RDdeo Corwert Series, Additional Marketing/Co-Promotion Funds will be
considered for ally new event concepts being considered to increase (lie nuiliber of event (lays and
ATUIC'LE IV
CERTIFIED OR CASHIER'S CHECK
In flic event that there are insufficient funds ill the box office receipts to cover file fees and
expenses due by Licensee hereunder, SMG hereby reserves the right to require Licensee to pay 911
remaining 11inds due with a certified or cashier's check payable to SMG.
A IkTICLE? V I
INDEMNIFICATION AND INSURANCT
5.1 Ind ellilli ficat ion,
(a) Licensee hereby indeninifieN and agrees to hold harmless and to defend SMG,
the City, and each of their respective owners, directors, officers,employees, consultants, and
agents (collectively, the "Licellsol. Parties"), from as against any and all losses, liabilities,
claims, daniages, demands, Hells, judgments, and expenses (includirig, without. limitation,
reasonable a(torney's. fees) (collectively, the; "Losses") occurring at the American Bank.
Center Afeiia (whether within or without the Licensed Premises) and/or incurred by nay one
or more of the Licensor Parties resulting froin or by reason of(i)Licensee's failure to comply
with arty and all federal, state, local, and municipal regulations, ordinances, St8tUtCs, I'Liles,
laws, COY)StitLIU01181 I)MViSiOlIS, and conirtion laws (collectively, the "Laws") applicable to
LiGensec's performance of this Agreement and/or activities at the American Bank Center
Arena, (ii) any violation of this Agreement by Licensee (including, without lirr)ilatioil, the
provisions of Section 6.8 hereof (relating to intellecti)a] property matters), Section 6.10
hereof(relating to the Civil Rights Act), all(] Section 6.11 hereof(relating to the Americans
with Disabilities Act)), (iii) death of or injUry to ally PUS01) 01' damage to ally Property
whatsoever arising out of tile willful or negligent acts or oiriissioris of Licensce, and/or all)'
of its officers, directors,agents,employees, subcontractors,licensees, or invitees,and/or(iv)
any and all rigging from or to the physical structure of the American Bank Center Arcria or
ally fixture thereto, set-up, alterations, and/or improvements at or to the American Bank
Center,Arena necessitated by and/or performed Nvith respect to a Rodeo Perforinance,
(b) SMO hereby indeninifies, and agrees to hold harmless wid to defciid
Licensee, and each of its directors, officers, eInj)10yCCS, G011SUltallk, 811d agents, from and
against any and all losses, liabilities, claims, damages, demands, liens, judgments, and
expenses (including, without limitation, reasonable attorney's fees) occurring at the
American Bank Center Arena (whether within or without the Licensed Premises)
resulting from or by reason of(i) SMGS hillive to comply with ally and all kdel-kil, state,
local, and ilitwicipat regulations, ordinances, statutes, males, laws, constitutional provisions,
and cominon laws applicable to SMG's performance of this Agreement and/or activities
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at the American Bank Center Melia,or(ii)death of or injury to any purson or damage to any
property whatsoever arising out of the willful or negligent acts or omissions of SMG, mid/or
all), of its officers, directors, or employees.
(c) The provisions of this Section 5.1 shall survive the oxpir' orearlier
termination of this Agreeniont.
5.2, Insurance.
(a) Licorsee Insurance. Licensee agrees to secure and deliver to SMC1 at least thirty
(30) clays prior to each ""Buccaneer Days and to keeping force at all times during each
Buccaneer Days during the Term of this Agreement,policies of the following insurance:
(b) Commercial Cieneral.Liability. Commercial General Liability insurance
including, without limit thereto, products and completed operations, COIAMCtUal liability,
broad form property damage, independent contractor's coverage,personal acrd bodily injtiry,
advertising liability,fire,legal liability,participants legal liability coverage,with the Licensor
Parties endorsed as additional insured, in a form and with a carrier reasonably acceptable to
and approved by SMG,covering the scope of operations hereunder,with amounts of coverage
not Icss than$1,000,000 J)Or OCCUrrence.with$5,000,000 in the aggregate.
(c) Workers' CO]IIPCIISati011. Statutorily required Workers' Compensation liability
insurance with an insurance Company authorized to do business in the State of Texas,insuring
the payment of compensation to all its employees at statutory limits for the State ofTexas and
which shall include Broad Form All States and voluntary compensation endorsements,
(d) Automobile hisuratice. Comprehensive automobile liability insurance insuring
against liability avisitig from the maititenance and use of all owned, non-owned,hired, leased
HIld I'CDtCd trucks, automobiles and other vehicles broiight to or operated at the Atlicricau
Bank Center Arena by or oil behalf of Licensee with a combined single Bruit for each
occurrence of not less th'911 Ne Million Dollars ($1,000,000) for bodily injury, death or
property darringe, with the Licensor Parties as additional insured.
(c) Licensees Property, Pyoperty insurance, insuring Licensee's persoml property
located at the American Bank Center Arena, oil a so-,called all risk basis including fire,
vandalism and malicious mischief, in all amount equal to not less than eighty percent(80%)
Of the agreed Up011 jlISIIraIlGe Value.Licensee hereby specifically waives any right of recovery
from SMG hexcundw, with respect to its personal property located at the American Batik
Center Arena in the event of flood, hurricane, or earthquake.
Licensee shall be (lie natned insured and SMG and the City (collectively, the "Other
Beneficiaries") sliall be named as additional insureds (as well as other designation by such
parties)Oil Caell applicable itisuranee policy required under this Agrcenicnt. An
insurance certificate reflecting the insurance policies required hereunder shall be delivered to
SMG within thirty (30) days of the execution of this Agreement but in any event prior to
Licensee's entry upon the,Licensed Premises or the American 13,911k Center Arena.
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(f) SMG hisurance, S1w40shall maintain its current levels of Americau Bailk: Center
Mom insurance in place at the inception of this Agreeilmit, and shall promptly riotif�r the
Licensee of rovisiom or Cancellatims in any American Bank Center Arcria insurance. SMOG
will retain overall authority and control over file safety of file persons and property of all
spectators SMCY's workers, attendants, agents and employees, as well as Illembers of the
public in attendance at tiny of the Performances governed by this Agreement Licensee
shall obtain prior written approval front SMG for (my pyrolechilic displays acrd shall Obtain
Specific general liability insurance for fireworks displays to file benefit Of SMG ill,1111OLMIS
to be mutually decided and verified by SMG. SMG shall also obtain till necessary permits
as required for the operation of the American Bank Center Arena,
(g) L3.L'q a il)&. The insurance coverages to be maintained pursuant to file
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provisions of This Agreement shall be, obtained from insurance companies rated A or better
by file then most current Best's Key Rating Guide (or if A is not available at cominercially
reasonable rates, then the highest rating available at commercially reasonable rates),
(h) &ibro2ation Waiver. All policies of SMG and Licensee shall be endorsed to
provide that the underwriters and insurers waive my subrogation rights against each of the,
additional fimureds or loss payees thereunder.
(i) Notice of Modification or Cancellation. Earli policy to be maintained pursuant:to
this Agreement shall provide that such policy shall not be modified or terminated except after
(30)(lays prior written notice to each insured and additional histired or loss payee,as file(;Else
Illay be,
(i) Replacement Policies. SMG and Licensee shall each deliver to file other
certificates of insurance evidone.hig replacement policies not less than thirty (30) days
before existing policies expire.
(ii) Primary Coverage. All insurance coverage to be maintained by Licensee
shall provide (Ilat. Such itisuratiuc is primary to ally valid mid collectible insur-ance
maititained by SMG and that Licensee's insurance carrier will not seek contribution from
,9111(3's itigurame carrier for any such chinas.
5.3. Licensee shall conduct its activities within the T...iceiised Premises iti a digifflied and
orderly matmer with full regard fox public safety and in conformity with SMG's General Rules and
Regulations, including fire acid safety rules as required by SMG and/or local fire:regulations, as such
may exist from time to time, so as not to endanger any person thereon. No portion of sidewalks,
entries, passageways, doors, aisles, elevators, vestibules, or ways of access to file public utilities of
the American Batik Center Arena shall be permitted to be obstructed or used for ally PLII-POSO OtIlet
than ingress and egress,nor shall aiiy windows,ventilators,or lighting fixtures be obstructed.
5A. SMG shall have the continuing obligation and responsibility to maintain and keel)the
American Bank Center Arena iti good order and repair,reasonable wear and tear excepted;11 oyLded,
lover, that (i) the failure by SMG to accomplish the foregoing, said failure resulting from
circumstances beyond the control of SMG, shall not be considered as breach of this Agreement by
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SMG, and (4) any damages to the American Bank Center Arcria and its appurteiiatiecs caused by
Licemec 01,its officers, directors, agents, employees, subcontractors, licensees, or invitees shall be
paid for by Licensee at (lie actual cost of repair,
5.5. Licemcc shall not ji)ake any alterations or improvements to the American Bank
Center Arelia williout the prior wl'ittm consent of SMG,
5.6. Licensee shall not cause or permit any Hazardous Material to be used, stored, or
generated oil, or transported to and from [lie American Bank Center Arelia. "l fa�rtrtlotts Mater ital"'
shalt 111call, without limilation, those substances included within the definitions of "hazardous
substances", "hazardous materials", "toxic substances", or "solid waste" ill any applicable state or
federal onvirorimen(al law.
53, Licensee is granted the right to broadcast by television, radio or live stream internet
ally Performance,so long as Said broadcasts(to not violate any of M40's obligations and agreements
with the City,
S.S. Other than in designated areas approved by SMG, Licensee shall not cause or permit
food,beverages,beer,wine, or liquors of any kind to be sold,given away,or used upon the American
Batik Centel-Arena except upon prior Written permission of SMG.
5.9, Licensee shall not operate any equipment or materials belonging to SMO, without the
prior written approval of SMG, SMG owned equip ui
merit(i.e. sffolding, spot towers,camera's))are,
included as part of the rental fee. All equipment is subject to be,operational and available at the time
of each Buccaneer Days.
5.10. With respect to any Performailec,Licensce shall comply fully with any and tall Laws
applicable to the reproduction or perto nuance of proprietary or copyrighted materials and works of
third parties (the "Works"), and to the protection of the intellectual property rights associated with
such Works. The fees payable by Licensec under this Agreement do not include royalty, copyright
or other payments which may be payable oil behalf of third-party owners of such Works, and
Licensee agrees hereby to make any and all such payments to third parties and/or clearinghouse
agencies as may be necessary to lawfully perform, publish or reproduce any such Works. Licensee
specifically agrees, undertakes, and assumes (lie responsibility to make any and all reports to such
agencies and/or parties,including specifically by way of example only(aad not by way of limitation)
ASCAP,BMf, SAG,SFSAC and other similar agericies.Licensee 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 SMG in advance of all), such Performance. Provision of such
evidemce is a material condition of this Agreement. Licensee agrees to indemnify, defend, protect
and ]told harmless SMG and the Licensor Parties of,and from all and all inatiller of Losses arising in
any way from the use by Licertsee of proprietary intellectual property of third parties (whether such
claims are actual or threatened)under the copyright or other laws of the United States,The foregoing
indemnity shall apply regardless of the nicans,of publication or performance by Licensee, and shall
illel Lido specifically and without limitation the use of recordings, audio broadcasts, video broadcasts,
Works oil other magnetic media, sounds or images transmitted via the worldwide web, cleat rooms,
webeast, or on-line service providers, satellite or cable, and all other publicalior) or performance
nicalls whatsoever, whether now known or dcvoloped after(lie(late of this Agreonterit,
S.I I- When referring to the American Bank Center Arena during the term of this
Agreement, Licensee shall use the name "American Batik Centel," (or such replacement name, as
designated by SMO) and no other name and sliall use reasonable best effort,; to require third parties
that Licensee contacts Willi ill connection with the American Bank Center Arena to do the same. The
LISO and designation of(lie American Bank Center Arena's name by Licensee shall, to the extent
applicable, include without limitation printed materials, advertising, admission tickets, television,
interact, and other broadcasting methods, and public relations or promotional press releasm
without. limiting the generality of the foregoing, Licensee shall use the name and logo of(i) tile
American Bank Center Arena and (ii) such party(ics) as may be given nan-sing rights to the
American Bank Center Arena (collectively, the "American Batik Center Arena Logos") in
all advertising controlled by or done oat behalf of Licensee, relating to a Rodeo Performance,
including, but not limited to television, intertict, newspaper, magazinc, and outdoor advertising.
Licensee's right to use the American Batik Center Arena Logos shall be limited to the specific,
express purpose set forth in the foregoing sentence and/or as otherwise authorized by SMO in writing
prior to [lie Ilse thercof. In connection With Licensee's use of the American Bank Centel- Arena
Logos as permitted in this Section 6.9,Licensee shall use only the form of tile American Batik Center
Arena Logos as provided by SMG to Licensee in any artwork or other depiction fliGi-cofand shall not
alter the design, color or quality of such logo.
5,11 During the performance of this Agreement, Licensee shall comply fully with Title VI
and Title VII of the Civil Rights Act of 1964, as amended, and all other regulations promulgated
thereunder, in addition to.all applicable state and local ordinances concerning Civil Rights.
5,13. With respect to any Performance at the American Bank Center Arena Licensee
recognizes that it is silbJect to the provisions of Title Ill of the Americans With Disabilitic's
Act,as amended,and all similar applicable state and local laws(collectively, the"ADA"). Licensee
represents that it lias viewed or otherwise appraised itself of the access into the American Bank
Centel-Arena, together with the common areas inside, and accepts such access, common areas, and
other conditions of the American Bank Center Arena as adequate for Licensee's responsibilities
under the ADA. Licensee shall be responsible for ensuring that the American Bank Center Arena
Complies and Continues to Comply in all respects with the ADA, including accessibility, usability,
and configuration insofar as Licensee modifies, rearranges or sets ill) in the American Bank Center
Alum in order to accommodate Licensee's usage. Licensee shall be responsible for any violations
of the ADA, including, without limitation, those that arise from Licensee's reconfiguration of the
seating areas or modification of other portions of the American Bank Center Arena in order- to
accommodate Licensee's usage. Licensee shall be responsible for providing auxiliary aids and
services that are ancillary to its usage and for ensuring that file policies, practices, and procedures it
applies in cojuiediort with Performance are in compliance with the ADA.
5.14, Licensee covenants to use its diligent efforts to assure maximurn occupancy
during its entire Buccancer Days schedule at the Anicrican,Batik Center Arena. Licensee's diligent
efforts fbi-purposes of this subsection shall not require Licensee to do anything that is commercially
unreasollable.
5.15. ]-,,xccpt as specifically provided herein, Licensee acknowledges and agrees and
covenants to accept,observe,comply, all(]conform willi the terms of any Naming Rights Agreement
("Naming Rights Agreement") and any Pouring) Rights Agreement ("Pouring Rights
Agreement") in existence as of the date hereof(Whether of a perniallent or temporary nature), or to
be entered into by SMG in respect of the facility (including tile American, Batik Center Arena) of a
12
permanent nature,and Licensee further acknowledges and agrees that this Agreement shall be sitbJect
hi all respeols to the terms and condition of such Naming Rights Agreement and Pouring Rights
Agreement. The leans of the Naniiiig 1(ights Agreement and Pomijig Rights Agreement shall, in
the event of a conflict, supersede. the terms of this Agrecomit. The parties acktiowledge,that
my party to file Naming Rights Agreement and Pouring Rights Agmement shall lia-%?c all of the rights
of a third-party beneficiary allowed by applicable law. A copy of the mlevant. provisions of(lie
Naming Rights Agreemcut and Pow-Ing Rights Agreement will be provided by SMG to licensee.
ARTICLE VI
TICKET SALES
6.1. Ticket Sales,. SMG shall provide certaiii ticket sales services (ilicluding box office,
advaiiec, day-of-Performance, cvciiiiig-of--Pei-foi,ii)kitice and outlet(including i nternet.and cl large
by plione) ticket sales) for the Performances and all stick ticket sales by SMG will be, made, and
administered in accordance witli the ticket sales Procedures ostablislied,from time to time,by SMG
for o(hcrcomparable sporting events held at(be American Batik Center Arena and at such times
sufficient to adcquatcly provide for Licensee's needs as SMG may determine hi its reasonable
discretion. SMG agrees that with respect to the Perfortrinoce tickets, (i) Licensee shall, subject
to the provisions set forill herein, set prices and (ii) suttjcct to SMG's right to reasonably approve
the seating designations for all Performatice tickets, all price levels in the Americaji 13ank. Center
Arena shall be madc reasonably available for Performance ticket sales. MCI shall be entitled
to payment from Licensee's patrons for all costs mid expetises incurred by SMG iii connection with
the use of credit cards for the purchase of Perl'bi-mance tickets. SMG shall accept personal checks
and credit card charges under procedures reasonably established by SMG and such checks an([
chatgos shall be dec.nied box office receipts at such time when such finidsare actually received.
6.2. Ticket Sales Information. Withiii a reasonable time (not to exceed forty-eight(48)
hours) aller each Performaucc, SMG and Licensee shall exchange all available ticket sales
fi)formation in order to produce a statement detailing: (i) the number of tickets sold or bartered by
Licensee sand SMG for such Performance;(ii)the number of complimentary tickets distributed by
Licensee for sueli PerfomiancC5. and (iii) (lie box office receipts, ill order to assist SMO in (lie
productioi) of the Perfonriance invoice.
6.3. Ticket,Supply, With respect to Performance tickets to be sold by SMG, SMG, at its
sole cost and expense, shall secure the printing of an adcquate supply of tickets to all Performances.
SMG shall have the right to exercise complete control over all ticket stock prhited at the Box Office
for all adverfisiiig and/or to the extent ticcessary to ensure proper seating designations. All
advertising revenues derived from the ticket stock for any and all Performance ticket sales shall
belong to SN46. Licensee,reserves the right to print third-party specialty ticket for all Sponsor and
Scason Tickets. Licensee controls all advertising,and revenue generated from these tickets.
6.4. Cot ilgi,ilic Licensee shall have the right to lase, but not as as source of
Pl Tickets,
revenue, complimentary tickets (as needed) per Performance exclusive of tickets provided to
sponsors as patt of their Buccaticur Days sponsor package for use by Licensee officials,trustees and
employees, Licensee staff, charitable orgaiiizations or as mutually agreed upon.
Licensee shall provide to SMG at the sanic time other advance tickets or Buccamer Days tickets,
whichever is earlier, are issued, twenty (20) tickets for each Performance at no cost or expense to
SMG for each Performance during the Terns. The location of the tickets shall be in the Arena
Club 1,evel. SMG will resubmit any unused tickets back to Licensee at least 24 hours prior to cacti
performance. Club access is available for purchase through Licensee. SNICT is not allowed to include,
any ticket of Licensee in any type of sponsorship package without written consent from Licensee,
6.5 VIP Club Lounge AccessNIP Cattleman Club Program Venue's VIP Club Lounge
(currently known as the VIP Club Louage) is accessible for all Suite and. Club Seat
purchasers. Licensee's VIP pati-ons relay access the VIP Club Lounge With proper
credentials. Pricing of Suite,, Club Seats and Licensee VIP programs controlled by Licensee will be
priced a Licensee's discretion.
ARTICLE VII
Rl'iTURN Of- Lf("T'NSHM PREMISES
Licensee sliall, at the conclusion of cacti Buccaneer Days, clear the American Batik
Center Arena floor area of the Licensed Premises and return it to (fie condition received at the
beginning of cacti Buccartecr Days, Subject to normal wear and tear, and shall bear all reasonable
costs related thereto including but not limited to additional clean lip fees,
ARTICLE VIII
COOPERATION WITH O'l HER USERS
Licensee understands that SMG may make available for use by Others such portions, areas and
facilities of and at the American Bank Center Arena that are not subject to this Agreement
provided, however, that on Performance date-9,SMG must provide Licensee:written notice as to any
such use of the American Bank Center Arena. Licensee agrees to cooperate in good faith with SMG
and with those persons that may bousing other portions acid areas of the American Batik
Center Arena, CSI)CCially d0l'ilIg periods of ingress and egress, in order to utak( mutual use of the
American Bank Center Arena harmonious and agreeable, provided the same (toes not materially
interfere with Licensee's use of the Licensed Premises, SMG agrees that any such use shall not
interfere with Licensee's use of the American Dank Center Arena and American Batik Centef Arena
seating areas for each Performance, SMG shall not be responsible for any actions of any other users
of the American Battle Center Arena.
AW11CLE IX
OBSERVANCE OF LAWS, ORDINANCES AND IWOULATIONS
9.1 Licensee and its agents,guests and employees will observe and comply with all Laws.
Lioemiscc sliall riot permit anything to be done at the American Batik Center Arena that is in violation
of any such Laws. Licensee sliall ffivilier Cause its ser agents, employees 01'licensees to, and
act reasonably to ensure that its patrons and guests abide by such rules atid regulations which are
adopted from time to time for the use, occupancy, and operation of the American Bank Center
Arena.
9.2. Licensee will obtain at its own exl)ej)se any licenses, permits and union and trade
organization clearances required by any public body or by contract for use by Licensee of the
Licensed Premises.
ARTICLF X
PERFORMANCEAPPROVAL
Licensee agrees that Ito Performance or part thereof shall take place if SMO files
reasonable written objections within a reasonable time frame with Licensee oil tile grounds that it
deems file Performance to be unlawful or dangerous to spectators, or materially inconsistent Nvit'll
Performance advertising claims presented to (lie public, in file event of such occurrence, Licensee
sliall forfeit all rights related to that particular Performance under this Agreement and shall have
no legal recourse against SMG for any damages,
AI TN"'LE XI
CONCESSIONS AND MERCTIANDISE,
ILL SMG liar, Rillong, other rights, the exclusive light to sell all food and beverages
(alcoholic mid non-alcoholic) and catering in the American Batik Center Arena. Sid)'ject to
fAcensce's rights under Section 12_2 below, Licensee shall not itself (or through any other
party) sell refreshimlits, beverages, catering, or other products, except as specifically
provided beletw. Licensee agrees to use the SMG's exclusive, caterer for all team related
"catering needs" in the Licensed Promises, Licensee will provide a restricted area outside of tile
Areti,iatictitisiciethe venue(CIOOIlallwayonly)for donated product consumption for Licensee VIPs
and Sponsor. The BBQ Cook-off adjacent to the Arena will remain III a Separate license and under
the complete control of Licensee.
11,2. Subject to the terms and condition hereof, Licensee shall have the exclusive right to
Sell, supply and provide all merchandise (including novelties, souvenirs, t-shirts, photographs,
printed matter and promotions relating thereto, to the extent Licensee is properly licensed and
authorized to sell the same) in the American Batik Center Arena during each Performance and in
the space described ill Section 1.2 above.Licensee shall retain one hundred percent (100%) of all
reventles derived front tile sale of any merchandise sold or supplied by Licensee for sale during the
Rodeo Performances, Licensee shall be resl)onsible for paying SM(3 for any -set-tip all(] take-down
costs and booth rental fees in connection with any kiosks or other facilities used for such sales that
are provided by SMG. SMG recognizes and agrees that from tinic to time Licensee itself may desire
and shall be allowed to give away certain promotional items,
ARUCLEXII
ADVERTISING, SIGNS AND DECORATIONS
12.1. Licensee agrees that all advertising and proniotion of the Performances will be truthful
and accurate, and at tile expense of Licensee, SMG shall not be responsible, for any advertising
campaign or the content thereof. Its all printed, radio and television advertising material and until
otherwisenotified its writing by SMG, the American Bauk. Center Arena shall taodesignated
all(] referred to as the"American Batik Center Arena." In the event that the American Batik Center
Arena rianic changes, SMG shall not be liable for any related costs of Licemec with respect to the
modification of ally advertising or similar approved uses of(lie name of the American Batik Center
Arena. SCI triust have sltecifrcally approved,which altlirovttl sltall riot be crtircaasoriably withheld,
the use of SMs nanic(s) and/or logo(s) as well as ganic descriptions, ganic tinics, and hours; of
operation, In connection With SMG's approval, SMG agrees to procced with reasonable diligence
in delivering its approval or disapproval to Licensee. At no time shall such advertising material,
programs be distributed, circulated, or displayed by Licensee in the parking facilities or sidewalks
Pi-eiiiises(to iilcltt(leslll,l-otill(lillgexterior
of venue) without written permission from Liectisor.
12.2. SMG, at such times that it deems reasonably appropriate, may announce any
cillergallcy messages; provided Illat, no rion-emergency amiouticements shall be made. I.Acerisee
shall have full control of file sound system (hrougliollt the duration of each Performance.
12.3. SMG sball have the exclusive right to erect and/or display, and/or cause to be erected
and/or displayed, and Licensee shall neither post nor, crest arid/or display, nor cause to be posted,
erected aiid/or displayed, any decorations, signs, ad Vert i sellimts Or posters of a perillanclit
nature in the Licensed Premises or Americati Batik Center Arena or other properties of SMG.
Subject to the Naming Rights Agreement arid Pouritig Rights Agreement, fAccrisce may sell the
following advertising during Rodeo Performarices:
(a) Main Center Ijun 113D Board, SMG shall grant Licensee oppotturrity to sell
advertising ori all portions)of the main-scomboard inside the American Bank Center Arena
exclusively for Buccaneer Days sponsors for the duration of each Puformanco.
(b) Replay Screen. SMG will make, available to Licensee exclusive use of the
video screen to ruil sponsor logos and/or videos during; all of the Performances;ices; provided
that, SMOr shall retain advertising rights 111) 1,111til fiflMl (15) MillLACS prior to each
Performance air(] following five millittes after the conclusion of each Perform a lice.
(c) LED Basra Panel Sigiiagg. Licensor shall have exclusive rights of all digital
assets in the American Batik Center Arena front the duration of the tim.c. public doors open
through 15 minutes prior to tinge ofpcifirmarice and Licurisor shall have exclusive rights
of all digital assets in the American Batik Center Arena at the conclusion of file Porfoi-mance.
No SMG spoiisors will run on digital assets during the Performaticc. SM(3 agrees
that 110 competing sigilage with, the Licensec sponsors will appear on (lie LED Facia Panel
Signage during the particular Perforiwarice only, I.Acemwe shall be required to pay the
costs in connection with any required programmitig of the LED Facia Panel Signage for such
purposes. Licellsce has fill] Control of digital assets 15 mimitos prior to Performance until
COCICILISiffll Of the PfffOrlllallCe.
(d) '911pliLeprent11 Scoreboard. SMG agrees to provide space, at no additional cost
...Scoreboard,................—
to Licensee, for Licensee to bring in a supplemental,scoreboard to be installed at Licensee's
sole cost and expense. Licensee shall relaill tile exclusive. rights to sponsorships Oil tho
I
supplemental scoreboard. Upon the conclusion of each Rodeo Series, the supplemental
scoreboard shall be removed by Licensee.
(e) Other Arnericap Bartk Center Arena Sign 11Have exclusive
-qg—c. Licensce,shall. i
rights to call temporary event signage hmide the American Bank Center ArctiafieeT, includirig
the pens area. SMG agrees to cover ill) any and all signage oil the dasher- boards located
inside the American Batik Center Arena. Licutisee is responsible for the removal of till
temporary signage or subject to additional billable cXpetises associated With SMG staff'
removing it.
16
(f) !";xqwmq SMGJ agrees to allow Licensee to
authorize Sponsorship exclusivity in the following categories for each
Performauco. Automotive, Alcoholic Beverages, Past Food, Tobacco, Health Care (i.c
Hospitals& F'.niergency Rooms)and Grocery. No competitive advertising will be displayed
in the Americati Bank Center Arena by SMO during any Performances if Licensee has
notified SMG that it has imide exclusive, sponsorship arrangements in any of the above
categories. License shall be required to notify SMG of any such exclusive arrangements in
writing at least tell (1 g!) (lays prior to each Buccaneer Days in order to allow SMG sufficient
time to modify any of its existing signage.
12, 1. In iio event shall Licensee grant or attempt to grant any product sales rights or
advetlising rights of a permanent nature in the American.Bank Centel,Arena (outside the period of
ally Performances)Without the express prior written approval of SMG,and any attempt to do so (;hall
be void find of no effect. Licensee is authorized to grant cerlain exclusive rights. during
Performances for sponsorships or advertising for automobiles, alcoholic beverages, tobacco
products, Health Care (Le Hospitals & Emergeney Rooms) and grocery; provicled that, j)o such
activities shall in ally event inipah- the rights granted by SMG pursuant to the Naming Rights
Agreemwit and the Pouring 16ghts Agreement.
ARTICLE XIII
RE,SERVATION OF RIGHTS
Fxvept as,otherwise provided in this Agreement, SMG reserves to itself all rights,privileges,
Prerogatives and authority to use, enjoy, have possession of, derive revenue and gain from, contract
with respect to and generally deal with the American Bank Center Arena and related parking
facilities, including, but in jio way limited to, the right to coritr act with any and all potential users of
the American Bank Center Arena without regard to Licensee's proposed or actual use of tile Licensed
Promises, Licensee agrees to respect in every particular the rights, prerogatives and authority of
SMG and Licensee shall not take or aulliorize any other person to take ally 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 i-educe such revenues and financial benefits, Similarly,
SMG agrees to respect,in every particular, file, rights, prerogatives and authority expressly granted
to Licensee hereunder(but not otherwise) and SMG shall not take or authorize ,illY other person to
'
take any action that would conflict with or tend to impede (lie exercise of such rights, prerogatives
all([ authority expressly granted to Licensee hereuticlex,
ARTICLE XIV
CONTROL OF AMERICAN BANK CENTER ARENA
SN40 reserves the right to control the maiiagenleilt all(] operation of the American Will-,
Center Arena and to enforce all necessary and proper 1111CS fOr its lllanagCIIICIIL and operation. SMG
reserves to the City, itself and its employees the right,to enter any part of the Anicricaii Bank Center
Arena at any time.
ARTICLE XV
BUILDING OR EQUIPMENT DEFACEMENTOR DAMAGE
17
Licensee agrees not to damage, mar, nor in any manner deficice. the American Bank Center
Arena or its equipment awl shall not cause nor perink anything to be done whereby the Licensed
Promises or equipment in the American Bank Center Arena is in any manner, damaged, marred or
defaced,nor shall Licensce drive or pennit,to be driven any nails, hooks, tacks or screws in any part
of said building, parking area or equipment, nor shall Licensee make or allow to be made ally
alteration of any kind therein without express permission of SMG.
ARTICLE XVI
LOSS OF USE OF BUILDING
16.1. Should the space covered by this Agreement or any part thereof be destroyed or
damaged by fire or by any other cause, or if njiy other casualty, riot or civil disturbance, force
majeure, strike, act of God, or exercise of the police power of other imforeseen occurrence, should
render the fulfillment of this Agreement by SMG impracticable (a "Force Majeure Evcnt"), SMG
shall not be liable or responsible to Licensee for any damage or loss caused thereby. Licensee further'
agrees that all of its property or property of others i r) the American Bank Center Arena shall be at the
risk,of Licensee and SMG shall not be liable for any loss or damage by theft,vandalism,fires,steam,
electricity, gas, water, rain, or other Force Ma cure Events.
16.2. SMG can extinguish all utilities and order evacuation of all or any portion of the,
Licensed Premises,or cause to be removed thereftorn any person or group of persons,atV materials,
equipment or other itellis, if, in the SM(Ps judgment, danger is imminent, or dangerous
circumstances have already occurred, and such action is necessary to secure the safety and welfare
ofpersonsorproperty. In such event, Licensee waives any right or china for damages against SMG,
its agent's or servants.
163. If the impossibility of performance described hi this Article XV111 shall be due to the
act or omissions of Licensee, its agents, employees, members, licensees, or invitccs, then, Licelisce
shall be liable for all sums, fees or costs that would have beenP aid by Licensee to SMG had the
impossibility of performatico not occurred in addition to such other damages as may result from such
acts or oinissiorig,
ARTICLE XVII
DEFAULT,BY LICENSEE
Tile following shall constitute default under the Agreement by Licensee: Licensee shall be
in default if it partially or totally abandons(Le. does not conduct any Performance when scheduler])
the Licensed Premises, fails to carry tile insurance, required under this Agreement, has any of its
checks returned for insufficient ffinds, breaches any of its representations and warranties, fails to
Pei-form in a timely mariner any of the covenants contained in this Agreement, ceases its business as
a going concern, becomes insolvent or bankrupt or a bankruptcy or other insolvency proceeding is
initiated against Licensee (each of these events sometimes referred to as a ill tile event of
a Default, SMO may apply all moneys held here under to any and all sums duc hereunder. Further,
SMG shall have the option to terminate this License and all of Licensee's righis, hereunder, In the
event of such termination, Licensee shall be obligated to pay to SMG, on demand, any damages
sustained by SMG) by reason of Licensee's actions or inactions and the resulting termination of
the Limise, whether arising became of SMG's inability to rc-license the Licensed Premises or
otherwise. Au election by SMG to adopt one oi- more of these remedies does not prevent the
enforcement of other remedies or right,, available concurrently or(I)cYcafter,
AWFICLE XV111
DEFAULT EY SMG
I&L '17he following shall constitute default under dais Agreement by SMG: (i)the failure;
of SMG to perform or observe any of the obligations, covenants, agreements, err conditions
to be performed or observed by SMG mider this Agreement within thirty (30) days after written
notice firoin Licensee of sm;h failure; provided, that if such performance or observance cannot
reasonably be accomplished within such thirty (30) day period, then the failure to commence such
performance, or observance; within sueli thirty (30) (lay period and to diligently pursue such
performance or observance to conclusion within au additional sixty- (60) days; or (ii) the materiat
breach.by SMG of any of the representations or warranties contained in this Agreement,
18.2. Notwithstanding any contrary provision liereill,Licensee agrees that the City,its
officials, employees, agents, officers and affiliates and the City Council of the City and SMG and
SMG's employces, officers, partners, affiliates and agents shall not be liable to pay damages to
Licensee or anyone claiming by, through or under Licensee by reason of,my default by SMG under
this Agreement, any obligation of SMG to Licensee, or for any amount that may become clue to
Licensee by SMG mider the terms of this Agreement or otherwise. However, hi recognition that the
limitations our damages set forth in this Section 20.2 may eliminate.the ability of Licensee to recover
its loss in the event of any default by SMG, SMG specifically agrees that Licensee shall, as its sale
and exclusive reiric(lies and relief,(i)upon ajudiciat finding(whichfiliding shall be subject to appeal)
of default (beyond any required period of notice, grace or cure granted to SMG wider the terms of
this Agreement) by SMG, terminate the Agreement, (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
SMCJ under this Agreement, to remedy such default, (iii) have the right, but not the obligation, to
remedy tiny default (beyond any required period of notice, grace or cure granted to SMG under the
terms of this Agreement) and, upon a judicial finding (wbieli finding shall be subject to appeal) of
default (beyond any such required period of notice, grace or cure as afioresaid)by SMG, olAct (lie
actual, necessary and reasoiiable cost of such remedy against any payment Licensee thereafter oNves
SMG under this Agreement, and/or (iv) upon a judicial finding (which Trading shall be subject to
appeal) of default (beyond any such required period of notice, grace or cure as aforesaid) by SMG,
offset any actual damage claim(determined in a final judicial finding)and limited to actual damages,
Licensee expressly waiving all claims for non-arAtial. consequential (including without limitation
speculative lost profits,speciat, or punitive damages) against any payment Licemse 11 c cz ftcr owe.s
SMG under this Agreement,
ARUCLE.XIX
lU'1SPONSIBILITY FOR PERSONAL PROPERTY
19.1. SMO shall not be responsible for any loss or dainage to personal property placed in
or about[lie American Bank Centei,Arena belonging to Licensce,its servants,agents,subcontractors,
guests,patrons and invitees.
19
19.2.. Licensee shall remove from the Licensed Prenikes immediately upon the termination
of this Agreement, alt property belonging to Licensee quid all property brought into or unto the
Licensed Pi-emiscs by Licensee oi- by persons associated with Licensee in its use and occupancy of
the Licensed premises. If Licensee fails to remove all such property, SMG shall have the right to
cause the removal and storage of the property at Licensee's sole risk, cost and expertise; but nothing
herein slrarll ill any way constitute SMG as a bailee of any surch properties whether owned by Licensee
or ally other per'sorr.
ARTICLE,XX
ASSIGNAt ENT AND SUBL1 ITING
This Agrcernerrt shall not be assigned nor shall (lie Licensed premises be sublicensed without the prior
written consent of SMG, SMG shall have the right at any time to assign all of its rights and obligations
licreunder to the City. The.terms "assignment"or"sublicense"as Eased in this License,shall include ally
and fall transfers of Licensee's interest in .and/or obligations under this License,whether voluntary or
involuntary. If SMG is subsequently substituted by a newly named agent or the City, Licensee shall be
held to the same provisions of this Agreement.
TAX RETURNS
i
i
Licensee shall be solely responsible for Filing any and all federal, state and local tax returns
and payment of all taxes due. SMG reserves the right to prepare and file with any govern►trental
agency any admission tax return required, and to pay said taxes frortt fiends to be deducted and
retained froin the sale of admission tickets, but. SMG shall have. no obligation to file aay tax return
or pay any tax due by Licensee. All amounts payable tinder'tliis Sectic)rt shall not be credited against
rent of any other amounts provided for in this Agreement and shall be paid by Licensee in addition
thereto.
ARTICLE XXII
SMG'S PIUVII EEE AND RIGHT TO WITFIFIOLD FUNDS
e
Licensee hereby confers upon SMCx a fit.st Tien,pledge and privilege on cull box office receipts,
collected from any and all box office locations for any sums due it under this License and shall have
the aright to retain so march ofsame as shall be necessary to discharge Licensee's obligations to SMG
hereurider. Further, Licensee hereby auutlror'izes SMG to withhold front arty other- fluids that may
be chic Licensee such surras as may be due SMG purserant to this Agreement. In the event of
any such off-set or retention, SMG agrees to provide Licensee written notice detailing the amounts
withheld and the charges, fees or'Other 80nts clue and owing by Licensee.
i
AR`T'ICLE XXIII
AUDITS
Licensee sliall retake available to SMG, upon request,all rocords aad books related to this Agreement
during business horn-s and at the offices of Licensee in Corpus Christi, 'texas for the purpose of an
20
audit to be performed by tui auditor designated by SMG. Licemee shall inform all of its service
Contractors that they must also agree to the above-referenced COMMIlt 01)011 rC(ILICSt of SMG, This
provision shall remain in force for a period of three(3) years after expiration.
ARTICLE XXIV
REPRESENTMION AND WARRANTY
24.1. SMG represents and warratits to Licensee that: (i) SMO is a general partnership
organized in the Commonwealth of Pennsylvania and that SMG has the power and authority to enter
into and perform this Agrecinent, (ii) this Agreement has been duly authorized, executed and
delivered oil behalf of SMO 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
Agree,ment,by SMG will not violate any judgment, order, law or regulation applicabic to SMG.
24,2. Lice rtsee relaaesents stud vrarr°aclts to SMG that. (i)f icclasce is a nattTlarafrt corlaar'ation sued
that Licensee has the power andaudioi-ity to enter into and perform this Agreement; (ii) this Agreement
has been duly, authorized,executed and delivered on behalf of Licensee: and constitutes a valid, legal and
binding agreement and obligation of Licensee, enforceable in accordance with its terms; and (iii)
execution and performance of this Agreement by Licensee will not violate any judgment, order law of
re9tilation applicable to Licensee.
ARUCLE XXV
MISCI,'LLANEOUS
25.1. ileadings. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this Agreement.
25,2, No Waiver. The failure of SMO or Licensee to seek as redress for a violation of, or to
insist. upon the strict performance of, any covenant, agreement, provision, or condition of this
Agreement, shall not constitute a waiver of tile terms of such covenalit, agreement, provision, or
condition at subsequent times or for the terms of any covenant, agreement, provision, or condition,
and SMO and Licensee shall, have all remedies provided herein with respect to all), subsequent act
which would have originally constituted the violation hereunder.
25.3. Ansi-gippeillb
y-SKQ.. 'rhe terra "SMO" shall incati the mamed party herein, and ill
file event of a voluntary transfer of such interest and the written assumption of the terms and
conditions of this Agreement and delivery of same to Licetisce I)III-SLIant to such transfer, SMG as
(raiisferor shall thereupon be release(] and discharged from all covenants, duties and obligation's of
SMG thereafter accrtfltig; provided, however, that SMG shall be liable for inch obligations as
accrued under this Agreement that were not discharged as of (lie (late of such transfer and all
covenants and obligations of SMO under this Agreement accriiing after such transfer shall be binding
during the remainder of file Term tipon the transferee for the duration of such transferee's period as
liCCIISOr IM-CUIRICL
21
25A, Disel arp of Liens-, Shoold any mechanic's licits or other liens or affidavits claiming
ficiis be filed against (lie LiCODSC(I Premises or the American Bank Center Arena or any portion
thereof or interest therein for any reason whatsoever incident to the acts or omissions of Licensee or
any contractor of Licensee or any such contractor's subcontractor performing labor or material ilicli
fill-Ilishing materials at or for the Licensed .'remises oil behalf of Licensee by reason of specially
fabricated materials,whether or not Placed at the Licensed Premises oil behalf of J."icensce, Licensee
shall cause the same to be cancelled and discharged of record by payment, bonding or otherwise,
within thirty(30)(lays after receipt of written notice from SIVICT or at such earlier time as is necessary
to prevent tile foreclosure thereof,
25.5. Recovery of Fees, In cue a suit or action is instituted by SMG against Licelisee or
by Licensee against SMG to enforce compliance with this .Agreement, the substantially prevailing
party shall be entitled to recover reasonable attomeys' fees and costs from the other in addition to
the costs and disburser eiits provided by statute, both at trial and appellate levels,
25A No Partnership, Subordination of Agreement, The relationship created by this
............
Agreement is that of SMG and licensee. Nojic of the provisions of this Agrectimit.shall be construed
in such a way gas to constitute SMG or Licensee joint ventures or partners or to make either party
liable for the debts of tile other.
25.7. Attomment. In the event the liens of any debt or security instrunicilts of SMO are
foreclosed for ally reason 01'ill the Cvcii(.SMCT's rights shall be terminated such that SMG cannot or
will no(perform SMG's obligations under this Agreement and one of the Other Beneficiaries or any
such.beneficiary or holder(or purclmCr Of the interest:;tllel'COt)(CaUll 8"SLACCOSS01"')SIMCMIS to the
interest of SMO under(bis Agreement, then, Licensee shall be bound to such Successor under all of
the terms of this Agreement for the balance of the Term remaining with the sante force,and effect as
if such Successor was licensor under the Agreement and Licensee hereby agrees to and does hereby
'Ittorn to such Successor as the then licensor, such attomment to be effective and self-operative,
without the execution of any farther instrumejit oil the part of the parties hereto, or their successors
or assigns,'immediately upon the Successor succeeding to the interests, rights and Obligations of
WO hereunder,
25.8. Notices. Any notice which may or shall be given mider the terms of this
Agueenierit shall be in writing and shall be cillici, delivered by hand to Ilic named party or suit 1)),
United States cei-tificd mail, return receipt requested, adequate postage prepaid, or by a
recognized courier delivery service(e.g.Federal.Express or other similar courier service),as follows:
To SMG:
SMO American Batik Center
1901 North Shoreline Boulevard
Corpus Christi, TX 78401
Attention: Matt Dlasy, General Manger
With copies to:
Wood, Boykin.& P.C.
22
615 N. Upper Broadway, Suite 1100
Corpus Christi,'Texas 78477
Attentiou: Jolm R Bell
For Licensee;
Buccancer Commission, hic.
11.0. Box 30404
Corpus Christi, exas 78463
Attn: Johnny Pbilipello
Any of the addresses above may be changed from time to time by such party giving notice as
,provide(] above to the other party. Notice given or served by Unitecl States certified mail, return
receipt requested, adequate postage prepaid, or by recognized courier delivery service (as
provided above) shall be.deemed received upon receipt and shall be decined received upon delivery
if such delivery is not accepted.
25.9. Licensee RpPresentative. Licensee, upoll written notice to SMGY, shall designate 011C (1)
persona to be Ucenscc's teprescatative ("Licensee Representative"), who shall be autborized to act on
behalf of Licensee under this Agreement. Licensee shall have the right,ftom time to time,to change the
person who is the Licensee Representative by giving SMG writ-ten notice thereof. Licensee hereby
designates as its initial Licensee ReprCSC1WltiVO, J011111131 PhilipC110, 3AII10 SIM11 be
authorized to act oil behalf of Licensee under this AgrcemciiL Any action, consent or approval by
(lie Licensee Representative under this Agreement shall be binding on Licensee.
2.5.10. SMG' qjl
respirtativo, SMO, upoll written notice to Licensee, shall designate one (1)
persona to be SMG's representative('SMCT Representative"),who shall be authorized to act oil behalf
of S,MCY under this Agrecrimit. SMO shall have file right, from tillic to tillic, to change the person
who is (lie SMG representative by giving Licensee written notice thereof. SMOT hereby designates
if,,' General mallagm• as its iiiidal SUCT' Representative who shall be authorized to act oil behalf'
of SMO under this Agreement, Any action, consent or ap1ji-oval by the SMG-T Representative under
this Agreement shall be binding on SMG
25.11. Scverabil t T. If any of the terms or provisions of this Agrecinwit, or the application
thereof to any particular party or circumstance,shall to any extent,be found by a court of competent
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 than those as to which it is, held
invalid or imerifoi,ccab1c, shall not be affected thereby, and each term and pxovision of this
Agreement shall be and reinaiii valid and enforced to the fullest extent l3etmitted by Applicable
Law.
2SA2. Terminology. 'Fides of articles and sections of this Agreement tire for
convelliclice and reference 0111yand in no way define,limit, amplify, or describe tile scope or intej)t
of this Agreement, and in no way affect or constitute a part,of this Agreement. Pronouns used hi this
Agreement sliall be understood and C011,StrUed to apply whether the party referred to is an individual,
partnership, venture, corporation, or an individual, doing business under a firm or trade name, and
the masculine, feminine, and muter pronouns shall each include tile other and may be used
23
ill(ercharigcably with t1le'same meaning, The use of the words"hereof,""herein," "hereunder".and
Words of similar import steal l refer to this entire Agreement and not arty particular section or provision
of this Agreement, unless the context clearly indicates otherwise.
2.5.13. 'Bi'nding E This Agreement shall inure to the Imiclit of and be binding upon the
parties hereto and their respective legal representatives, successors and permitted assigns (as herein
expressly perillitted),
2514. No Dird-Partv Beite cia . Any agreement to pay all milouffl, ally assuillptioll of
liability herein contained, express or implied, and/or any other covenant, agreement or duty
expressed in this Agreement shall be only for file benefit of SMG, Licensee,
icensec, file Other Boriciriciaries
and any party signatory to an agreement reforcilcedinsection6.13(collectively, the "Other Parties"),
and their I'CSPCG(ive successors arld permitted assigns (as herein expressly permitted), and such
agreements,assuiliptiolls,eovenaii(sand duties shall not inure to the benefit of the oblige ofany other
party, whomsoever, it being the intention of the Undersigned that no one (other than the Other
Beneficiaries and the Other Parties) shall be or be deemed to be a third- party beneficiary of this
Agreement,
25.15, Rmire""Agrecip'ei'it. This Agreement, including the attached exhibits, constitutes the
entire agreement between the parties hereto relating to tile subject matter hereof No prior or
Coll tclupol'a ncous written or oral promises, undenstaildings, reprcsentatims or agreements shall be,
binding, it being intended that this Agreement supersedes and merges all such prior and
contemporaneous promises,representations and agreements. SMG and Licensee further agree that
this Agreement may not in any way be explained or supplemented by a prior or existing course of
dealing between file parties or by any prior performance between the pat-ties pursuatit. to this
Agreement or otherwise. SMG and Licensee further agree that this Agreement may not be modified
or amended except as set forth in this Agreement,
25,16. Auiendmejlts---
This Agreement may be amended only by the written consent of the
......-
parties.
25.17. (joyerning Law. This Agreement shall be: governed by, all(] COMMI'Lled and enforced
in accordance with the laws of tile State of Texas, calls for performance in Nitoccs County, and
jurisdiction shall exclusively fie in time State courts of Texas.
25.1 S. Construction, The parties have participated jointly in file iie got i ation and drafting of
this Agreement. In tile 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 shalt arise fa%,oring or disfavoring any party by virtue.of the authorship ofarty of tile provision's
of this Agreement, Any reference to any federal, state, local or foreign statute or law shall be dccj)icd
also to refer to all rules and regulations proinu]gated thereunder, unless the context requires
otherwise.
25.19. SMG as Independent Contractor of the Licensee acknowledges that SMO
operates and manages the American Bank Cuter Arena ptli'suarit to file Managenicitt
Agreement. Furthermore, Licensee acknowledges and agrees that (i) SMG's obligation to
provide services for and in connection with the American Bank Center Arena is limited to the express
terms of the Management Agreement, and, in any event, by the availability of Rinds pursuant to the
24
Management Agreement, which SMG is under no obligation to provide, (ii) this Agreement, and
SMG's execution and delivery hereof, is subject to the prior approval of the City, and SMG
acknowledges that it has received such approval on or prior to its execution and delivery of this
Agreement, (iii)in the event of termination or expiration of the Management Agreement during the
Term of this Agreement, this Agreement, without further action by the parties hereto, shall be
automatically assigned to the City without recourse to SMG and for purposes of this Agreement the
City shall assume all of the responsibilities of SMG and (iv) SMG shall, after such assignment, be
and is,in no way,liable or responsible for any of the obligations or liabilities of the City provided or
incurred under or pursuant to the terms of this Agreement (either in the event of termination of the
Management Agreement or not) or the Management Agreement, Notwithstanding any contrary
provision herein, Licensee agrees that no board member,partner, agent, director, officer or affiliate
of SMG shall be personally liable to Licensee or anyone claiming by,through or under Licensee by
reason of any default by SMG under this Agreement, for any obligation of SMG to Licensee, or for
any amount that may become due to Licensee by SMG under the terms of this Agreement or
otherwise.
IN WITNESS WHEREOF,the parties have affixed their signatures below:
LICENSEE: SMG:
BUCCANEER COMMISSION, INC. SMG,pursuant to its independent contractor
authority under the Management Agreement
By: By:
John iy Philipello,President &CEO i�ltt Bl V, Genetdi Manager
DATE SIGNED: DATE SIGNED:
CONCUR for purposes of required City
approval under the Management
Agreement
B7xj"Z2
er z
a n -dtty Manager
City of Corpus Christi
DATE SIGNED: K1Chf'CM!e&--
25
PdVate MdOdilemeoc for PublIC r4c111jjcX
EXHIBITA
FORM OF LUXLJRY SUITE SEATS LICENSE AGREEMENT
Amcrkau Bunk CenCer 1901 N. Shoreline
Corpus Christi,Texas 78401
Ll.)XtJRY SUITE'LIC ENSE AGRENEI.ffl'
.....:NSE.......
LICENSEE,: B'QCCANEER COMMISS10 JN�Q_
Contact Name, Joj)llllv Philil3C110
Address: P..0. Box 30404
City, State, Zip: Cormis Christi,Texas 78463
TelepholLU.- 361-882-3242
Fax, 361-882-5735
E-Mail Address: jul )I
p,41y@l icdays.cotn
SuiteNumbor.- li
Term of I"iceri-sc: 'JI)c Performances scheduled during (lie following Buccaneer Days
Periods:
April 30 May 10,2020
b
PAYMENT Rf,,Q1J _Z; As discussed with BUCCANE71ilt COMMISSION, INC,, for
tile initial year of the Term, a payment of$jWrt__ shall be due upon tile- execution and delivery of
the Luxury Suite License Agreement,
There is a required deposit of; . 1l/a (tile upon, the execution and delivery of tile Luxury Suitc
License:Agreement, which shall Witild as a non-iti(crest-bearing security deposit until thirty (30)
days following (i) the end of the Term or (ii) the earlier termination of the Luxury Suite License
Agreement. The deposit Shall be returned less ally deductions to cover damages to tile Suite
(ordinary wear and tear excluded) or damages arising from breaches by Licensee of the Luxury
Suite License Agreen-mit, The Licensee must sign the last page and return the Luxury
Suite License Agremimit with the security deposit to the American Batik Centel- located at
1901 N. Shoreline Corpus Christi, Texas 78401. 'I'lie Luxury Suite License Agreement is not
effective an(l binding unless the following are actually received by the American Bank(-,'enter: (i) a
properly executed Luxury Suite License Agreement, (ii) an insurance certificate conforming
to the Luxury Suite License Agreement, and (iii) the security deposit.
Deposit Received: Wa Clieck Number: — n/a
Date Received: — 411a Insurance Certificate Received:
American Bank Center
1901 N. Shoreline
Corpus Christi, Texas 78401
Luxury Suite License Apreement
Tbis Luxury Suite Liceme Agreement (tile"Agreement")is made and entered into by and between
SM0 ("SMG"), as manager of the American Bank Center, owned by the City of Corpus Christi (the
"Owner") and located at 1901 N. Shoreline Corpus Christi, Texas 78401 and BUCCANEER
COMMISSION, INC. ("Licensee"), located at P.O. Box 30404, Corpus Christi, "Texas 78463,
Intending to be legally bound,the parties agree as follow:
Article 1: License
Subject to the provisions of this Agreement, SMG hereby grants to Licensee, and Licensee hereby
accepts from SMG, an exclusive license for the right to use, for tile purpose of viewing each
Perrormance (as herein defined), tile LLIXUIy Suite (tile "Suite") that is described herein, at tile
Anicrican Batik Center Arena portion of the Ammican Bank C(;riter (tile "Complcx"). The
description above and illustration attached hereto, reflects the Suite number and location, The right
ofLicensec to use the Suite,together with all other rights of the Licensee lieremi(ler, is(defined'herein
as the"Licelise",
Article 2: 'rern, of Apreement
'riie'i,erm of this Agreement(the--ern-r")shall be for April 30-. May 10,2020,
27
Article 3, License,Fee: Additimal Teriants of Co,i lex
11 License Fm
The use of the Suite by Licensee shall be contingent on the performance by Licensee
under that Arena License Agreement of even date herewith.
Article,4: Fulni0im,Fixtures an(] EquilLir-Lgit
4.1 Suite Description.
The Suite is a private suite with open-air seats facing the American Dank Cerrim,Arena
floor and parlor area behind, I'lie Suite shall contabi the following furnishings, fixtures and
equipment at SMGs expense. SN4()'F reserves the right to make minor modifications and changes
from this Suite description without the approval of the Licensee.
I Twelve. (12)premium padded seats, fixed in place and facing the playing area,
in the open area of the Suite.
2, Accessible seating that will accommodatc one.whce.lohair,
3. On color television with cable hookup.
4. In Suite telephone and line access,
5, Bar sink with countertops and refrigerator.
6. Hot and cold rowing water, olcefricity, licatand air-conditioning.
7. Appropriate furniture, cabinctry, wall finishes, carpet and millwork.
9. Subscription to facility,newsletter.
9. Private Suite concome.
10, Housekeeping services.
4.2 No Alterations,
Licensce agrees that there will be no alterations, irriprovenicrits or installations made to the
Suite without prior written approval of SMG, Licensee must provide written assurance that all
approved alterations shall be fully paid for by Licensee. SMG mast approve the dates and tinics of
any approved alterations. Licensee agrees that iipoa termination of the Agreement any alterations
become the property of SMG.
Article 5. Use, of the Suite: Admission',('ickets
5.1 Performances
28
Dining the Term, Licensee shall be entitled to the use of file Suite for file colitfort,
Coli'Vellience and entertaijunent of Licensee and its guests at all Performances. " Perform at ices"
shall be those events scheduled during Buccaneer Days, either as a matinee performance or an
C1,011ilIg purforilla lice.
5.2 Othcr Events
`111C Suite will not be available for Ilse during ally other events except the
Performances identified herein.
5.3 Access
Licojisce's rights of access to the Suite shall begin at that time when access is first granted to
the public belbre a Performatice alld ClId OJIC 1100f of ff the Performance has concluded. Licensee's
access to the American Bank Center Arena portion of the Complex and to the Suite shall be through
the presentation of"Suite"tickets for the event. SMO and its respective officers, agents,employees
incl contractors shall be provided access to the Suite as necessary including, but not limited to,
access for tile removal of ally and all I)COODS COIICIIICtitlg thellISCIVCS ill <111 11DRIfy 01- djS1`(1ptiVC
MaMlef.
Article 6: Services and Amenities
6.1 Services
SMG shall provide, or came to be provided to Licensee, the following services to the
Suite:
L Heating, air-conditioning, Ventilation, hot and cold rutining water, and
electricity,
2. Repair and maintenance of the Suite made necessary by normal wear and tear.
3. Complete housekeeping,janitorial and cleaning services after each event.
4. Food and Beverage as described in Article S.
5, Private entrance for Suite lioldersand 11teir guests.
6. Other special services SMG may offer to Licensee at prevailing rates art(] terms
established from time to time.
6,2 Extraordinary Items
SMG reserves the right to charge Licensee for, and Licensee agrees to pay, the cost of
extraordinary repairs, maintenance, replacements and cleaning of the Suite resulting firom ally act
OT 011lission of Licensee, as determined by SMG ill its reasonable judgment,
29
AA i P Le-7_Si-a I Parkin
[intentionally Deleted].
Article 8: Food Service
SMG will make available to Licensee food and beverage catering services frons the caterer
designated by SMO at rates eslablisbed 1)), caterer and approved by SMG. All lbod and
beverages (alcoholic and non-alcoliolic beverages) consumed in the Suite, shall be purchased from
the catering service designated by SMG. No food or beverage other than those purchased from t1w
designated caterer may be brought into,prepared, or consumed in the Suite, Licensee shall be.solely
responsible for and shall promptly pay to the caterer all bills far food, beverages and services
rendered in connection with Licensee's use of the Smite.
Artiole,9: Renewal of"Femi
This License Agreement may be renewed or extended only upon the mutiml written agreement of
SMOund Licensee,
Article 10: Covenants of Licensee
During the Term,Licensee covenants and agrees with SMO as s f ollows:
10,1 Liecilsec shall use reasonable efforts to keep and maintain the Suite in good order
and Condition, Licensee will, reimburse SMG for reasonable Costs incurred by SMG to repair or
replace any damage or deStFLICti011 caused clireGtly by Licensee or its invitees,
10.2 Licensee and Licensee's invitees shall abide by all rules and regulations pertaining to
the use and occupancy of the Suite established from tinic to time by SMG. Licensee shall not
commit or allow to be committed any nuisance or other act or other thing, which may disturb otlict-
licensee of suites err interfere with their use and enjoyment of their suite or which may disturb other
speclator's Ilse and enjoyment of his or leer license. Should the Licensee or any of its invitees
create, or are involved in, as disturbance or cause objects to be thrown or dropped from file Suitc,
SmCf shall have tile right to eject tile responsible parties,or all persons in the Suite,from the confines
of the Complex or if such disturbances occur oil more dian three occasions during One year of the
term, then SMG has the right to exercise any of SMG's rights up on default in accordance with
(lie provisions of Article I I licycof, including, Without limitation,termination of this Agreement.
Licensee and its invitees shall comply with. all applicable present and future laws, ordinances,
orders, rules and regulations and shall not perillit. any Violation thereof, Licen'sce shall cause its
invitees to comply Ivith Licensee's responsibilities under this Agreement and agrees to be
YCSJ)ODSiblQ for any non-compliance thereof.
103 Licensee and its invitces shall not attach in any fashion or otherwise display aily signs,
notices or advertisements oil the exterior or the interior of the Suite, other than those approved in
advance in writing by SMG.
30
10.4 Licensee and its invitees shall nu( place, any of its pi'oporty or ally other materials,
(incladilig Without limitation, any waste product generate(] by Licellsee or its hivitecs) at ally location
In the Coiriplex Outside of the Sulte.
10..S Alcoliolic,bevel-ages tally )i"csent, served, or consumed ill the Sane only in accorda'Ice
with [lie rules and regulations ofSthe concessionaire and any local, state of federal
governmej)(al authority exercising Jurisdiction over the Complex. Licensee shall ensure that all gUCStS
consimihig alcohol are of21 years of age,
1U Licensee agrees to pay Oil a timely basis any charges and expenses, includin
any applicable taxes, for catering, cable television and telephone services iiieurred in connection witf,
Licensee's rise.of the Suite.
103 Licensee shall surrender possession of the Suite incl all keys to SMG upon expiration
of cae'll Performance, in the same condition Is When initially occupied by Licensee, normal wear
and War and damage by casualty excepted.
Article 11: Default and "Fermination
11.1 Licensee shall be in default wider this Agreement UP011 the OCCL11'rellCO Of ally One Of
more of the following events:
(a) Licensee fails to pay when due any obligation of Licciisce under the Arena
License Agreement of even(late or any food, beverage or other service charge or any other amounts
to be paid by Licensee hereunder and such failure continues for ten (10) days, after written notice
thereof is given by SMG to Licensee; oi-
(b) Licensee fails to perform or observe any of file terms,covenants or obligations
under this Agreement and such failure C011tiDLICS for thirty (30) days after written notice has been
given by SMG to Licensee; or
(c) Licensee or any of its invitees engage in illegal activity or in ally rel)cat
violation of'SMG's roles and regulations pertaining to (lie use of(lie Suite, caller having received
written notice of file initial violation, or Licensee or any of its invitees otherwise fails after written
notice from SMG to maintain proper decorum while ming tile Suite;or
(d) Licensee orally Of its gLICStS,Violate.,.; any of the covenants set forth in Article
10 hereof and such violation continues after notice thereof
11.2 Upon the occurrence of any Event of Default and at any time tliatcafter, SMG
may, in addition to all other rights and remedies that it may have,upon notice to Licensee:
(a) Withhold distribution of admissions tickets to 1..iCCJI.9CC until Licensee's
clefault is cured or, if admissions tickets for any such games or evetits have already been
distributed to Licensee, lock the Suite mid deny Licensee and its, itivitees access to the Suite until.
Licensee',,; default is cured,
31
(b) Revoke the License and terminate this Agreement, whereupon (1) all rights
and privileges of Licensee herCLUXIM and thereunder shall immediately terminate and Licensee shall
immediately return to Weir ally unused admission tickets to the Suitc;(2) SMG shall have no further
obligation of any kiiid to Licensee; (3) SMG lmvfully may enter into the Suite and recoversame and
(4) SMG may recover from Licensce, and Licensee shall pay to SMO all RCtLMl dallla&'US SMG May
illClIr by I-CaSO11 Of SMO'S default, ill(Audingwit hout limitation,the costs of recovering,redecorating
tile SL1itC,I-CaSODabIC attOXI)CYS fees mid costs incurred by SMO in the enforcement ofthe Agrecillent.
or pursuit of any remedy authorized by this Agreement; and (5) Licerisce shall continue to remain
responsible for tile amount of all License Fccs,service charges and other sums then(lite and payable
hereunder until (lie suite is re-licensed. Arty and all scums due hereunder shall bear interest at 10%per
annum from the date due until paid.
11.3 'I'lie foregoing remedies of SMG shall not be to the exclusion of ally other right or
remedy set forth herein or otherwise available to SMG at law or in equity. No waiver by A40 of any
default or breach by Licensee of its obligations hereunder, shall be construed to be a waiver or
release of a future default or breach,and any remedy provided or available therefor.
11.4 Should. SMG tail to Perform or observe any term, covenant, or obligation under
this Agreement, and such failure contilitics for thirty (30) days after wAtten notice thercof is givell
byLicensce to SMGT, Licensce may terminate this Agreement immediately and shall be refunded
License Fees paid SMG for w1lioli Licensce did not receive the intended service hereunder.
Article 12: Reference to Name of the Comvkx
When referring to the Complex during file Term of this Agreement, Licensee shall use the name
"American Bank Center"(or such replacement name,as de-sigiiated by SMCY)and no other name and
shall w9c reasonable best efforts to require third parties that it contracts with in connection with the
Complex to (to the same. The use and designation of tile Complex's name shall include, 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 here to acknowledge that American Bank is a third-party betieficiavy
of this section of this Agreciricrit and that American Bank shall have all the rights of a third party
beneficiary allowed by law,
Article 13: Uxiii,,iilibili pLor_WitUsability of Suite:
Cancellation of Rodco Pei-foymances
13.1 If at any time during the Term, the Suite shall, be damaged Or destroyed by fire or
other casualty beyond the control of 'SMCJ' which prevents the use of the Stlite for any
Performances, SMG may elect to repair and reconstruct the Suite to substantially the same
condition iie which it existed immediately prior,to such damageor destruction except SMG shall
not be required to repair or replace illy personal property, furniture or wall fiX[UrCS 10CatCd if)
the Suite Which are the properties of Licensee or its invitem If SMG elects to repair and restore
tlicSuiLcll)eAgi-ecii)cjic.,slialI continue in full force and effect and SMG shall use reasonable efforts
to effect suoli repairs within a reasonable time; provided, however, that no compensation shall be
claimed by or payable to Licensee by reason of any inconvenience or annoyance arising from the
Comtruction of, repairs to, or alterations of the Suitc, any adjacent suites, or tlic Complex. SMG
32
reserves file right 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 Licensee's use and enjoyment of
(lie Suite, If SMG elects not to repair and restore file Suite, this Agreement will terminate as of date
of damage or destruction.
Article 14: Disclaimer of Liability and Inden nity
SMG shall not be liable for ally loss, damage or injury to any person or property of Licensce or its
invitees in or around the'silito or in any part of the Complex,including,but not limited to,its parking
areas, resulting from ally cause whatsoever, itichiding, but not limited to, theft arid vandalism,
unless due to the gross negligence or willful misconduct of"SMG.Licensee shall defend,indemnify
and hold the Owner, SMG and each of their respective owners, subsidiaries, affiliates, officers,
directors,employees, agents,successors and assigns harmless from mid against any and all liability,
loss, damage, claim (whether valid or invalid), cost or action, and associated costs or expenses
(including reasonable attorney's rhes), that may arise out of or in connection with or as a r0sUlt.Of the
actions or omissions of Licensee or its invitees at the Complex, specifically including) without
limitation, claims brought relating to alcoholic beverages sold, purchased or comunied on the
promises and in the Suite. Licensee must, at its own expense, investigate all claims of which it
has actual notice, attend to their settlement or other disposition, defend the parties inden-fliffied
hereunder ill all actions base([ oil those claims with counsel satisfactory to such indemnified parties,
,in(]pay all reasonable attorneys' fees and other reasonable costs and expenses resulting from srich
claims and deniaii& 'I'lle provisions of this Article 14 shall survive the termination or expiration of
this Agreement,
Article IS: Insurance
15,1 Licensee agrees to obtain and maintain in frill force and effect during the Term, at
its own expense, a policy of general liability insurance, which shall be the primary insurance
Coverage, including public liability, personal injury, property damage and ]lost liqUOf liability
coverage, coveHlig its Ilse of the Suite, issued by a liability inSLI11111CC C01111)[Illy licensed to (10
busincs.s, in the State of Texas, Tlic insurance shall provide a minimum combined single limit of
liability of One Million Dollars ($1,000,000) f0FI)MOnal jl1jL11'iUS Or(10MIAS 01'pel'SOIIS OCCUlTing in
or about the Suite per the indemnity provisions of the Agreement. The limits of this insurance shall
not,however, limit the liability of Licensee under this Agreement. Insurance policies of the Licensee
reqUil-M for this Agreement shall manic the 0wner and SMG as additional insureds as their interests
may appear.Licensee will provide a eel-tificatc evidencing such insurmico to SMG, which shall be,
delivered at least fifteen(15)clays prior to the use of true Suite by Licensee. In addition,said insurance
Company will agree to give written notification of any cancellation or material change in coverage
to SMG at ],east tell(10)days before said cancellation or change becomes effective,
JU If Licensee shall fail to obtain or maintain therequired insurance, SMG may, after
three (3) busitiess days' notico to the Licensee, obtain the insurance on Licensee's belialf, rising
reasonable efforts to obtain such insurance at a competitive rate, and tile cost of such insurance
shall be immediately(file all(] payable by Licensee to SMG.
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Af.tjejo 16: Right of Eliti,
16.1 Licensee agrees that SM and its employees shall have tile right to enter the Suite at
any and all tinier, and whin it is not in use,(A)to examine the same and make repairs, alterations or
improvements as may be, deemed necessary by SMG, (B) to investigate any suspected violations of
the provisions of this Agreement and (C) to generally inspect tile Suite and its conditions.
Articic 17: Complex Spk�LijjoysLijp
17.1 Advertising Rights of Licensee.
In connection with its use of the Suite, Licensee is hereby granted certain advertising fights within
the American Batik Center Arena as lrrovided in the Arena License Agreement of even (late.
17.2 SMGs Right of Pre-Approval,
SMG reserves the right to approve all of Licensee's advertisements and commercials,
Article 18: 1 urdeinni float ion
18.1 Licensee shall defend, indemnify and hold harmless the City of Corpus Christi,
SMG, any station upon which Licensee commercial programming is broadcast pursuant. to
agivelliel)(8 with the Complex, and their respective directors, officers, partners, employees and
agents, from and against any and all claims, damages, liabilities, costs and expenses, including
attorney's fees and expenses and all costs of investigation,arising 11,0111, or relating to, the content of
print or broadcast advertising materials or Licensee billboard material Aimished by Licensee or
agencies acting oil its behalf, including any extempormeous remarks or conduct of any person
Whose services are furnished by Licensee, as well as any product liability defect or false
nhortising claims relating to Licensee's products.
18.2 SMO sliall defend, indemnify and hold Licensee, and its respective owners,
subsidiaries, affiliates, offleers, directors, 0111PIOYCOS, agents, successors and assigns ("SMO
jildcrilili ties")harilliess from art(] against any and all liability, loss, damage, claim (whether valid of
invalid), cost or action, and associated costs or expenses (including reasonable attorney's fees), to
[lie extent caused by the negligence or willful misconduct of SMO, its guests, invitees (excluding
Liccj)scc and Licensee's guests, invitees, subcontractors or agents), subcontractors or agents. SMG
iflust, at its own expense, investigate all claims of which it has actual notice, attend to their
settlement or other disposition, defend the SMC indemnities in all actions based oil (]lose
clainIs with counsel satisfactory to SMG Indemnitees, and pay all reasonable attorneys' fees and
other reasonable costs and expenses resulting from such claims and demands.
183 Upon receipt of notice of a claim covefcd by the indemnification provided for in this
Article 18, the indemnifying party shall promptly assullic the defense ofstich claim, K(lie indemnifying
party promptly assumes the defense, the indemnified party shall may not settle or compromise the claim
without the itidciiuiifying party's consent. If the i rid ornn i lyi i ig party does no t pro niptly assume the defense
of tile Claim, then (lie,indemnified party may settle the Claim on
ssuell terms as it sees fit, and the,indemnifying party shall promptly rciniburse the indemnified party
for all costs of such settlement, in addition to the indemnifying I)arty's other obligations hereunder.
18.4 The provisions of this Article 18 shall survive tile termination or expiration
of this Agreement,
Artitslc 19 -Miscellanco-us
19.1 Licensee. shall have the right to sell ally of the Suite admission provided to Licensee.
19.2 Licemcc may not pledge, assign, sublicense or otherwise transfer or encumbers
this Agreement or the License unless Licensee first obtains SMGs prior written consent, which
consent may be withheld in SMG's sole and absolute discretion. Notwithstanding the foregoing
SMG will not Withhold its Consent to assignment of this Agreement to any corporatioji which
controls, is controlled by or is under common control with. the Licensee, or to any corporation
resulting from a mea-ger or consolidation with (lie Licensee, or to as entity which acquires all
the assets of the Licensee.
19.3 SMO may assign this Agreement, at the 3()Ie optioll of ;SMG, to file Ow le, it
successors or assigns, or any successor or assign of SMG.
19.4 if any provision of this Agreenletit shall be held invalid or imenforceable, the
remainder ofthis Agreement shall not he affected, but shall contitirie to be valid all(] enforceable
to tile fullest extent permitted by law,
19.5 This Agreement, the Data Sheet and any other attae.11111ollts hereto c;olltlill tile G11(ire
agreement of the parties hereto with respect to the subject matter hereof and supersede all prior
understandings and agreements of[lie parties,whether oral or written,with rcsj)cct to this Agreement,
19.& This Agreement shall be governed by, construed under all(] enforced in accordance
with tile laws of the State of Texas, without regard to Conflicts of laws principles thereof
19.7 Ilic nature of the: interest grqj)ted herein is: a license only. The parties intended no
tenancy, leasehold estate, easement orany interest other than a license be created liercby.
19.8 Neither party may anleild, modify, delete, replace or supplelljolit any ter1j)
of this Agreement except in writing signed by both parties,
M9 No representations of any kind have.been made and no widerstailding or agreements have
been entered into other t1jall a[ld as set fortil Ilercill.
19.10 The trade names and marks of each party hereto shall be and remain the sole property
of such party. The use of a mark of another party must be approved, in writing, in advance and in
all respects,by the owner of such mark.
Article 20: Effective Date
This Luxury Suite License Agreement is not effbotive and binding unless the following are actually
received by SMG: (i) a properly executed Luxury Suite License Agreement, (ii) an insurance
certificate conforming to this Luxury Suite License Agreement, and(iii)the security deposit.
Licensee
BUCCANE'R COMMISSION,INC.
By:
Name: Johnnv Phi liocl lo
Title- President& CEO
Date:— o
Delivery of Notices Address:
As provided in Data Sheet
SMG
By:
Name: Matt Blasv
Title: General Manaiagr
Date:
Notices Delivery of Notices Address:
American Bank Center
1901 N. Shoreline,
Corpus Christi, Texas 78401
Phone: 361-826-4700
Fax: 361-826-4905
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