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HomeMy WebLinkAboutC2021-356 - 11/24/2021 - NA USE LICENSE AGREEMENT No. 12192 BY AND BETWEEN SMG and BUCCANEER COMMISSION, INC. CONVENTION CENTER &PARKING LOTS DATED: November 24, 2021 1 SCANNED AMERICAN BANK CENTER CONVENTION CENTER & PARKING LOTS LICENSE AGREEMENT This CONVENTION CENTER & PARKING LOTS LICENSE AGREEMENT ("Agreement" or"License") is made as of this 24'1' day of November, 2021 between SMG, as an independent contractor of the City of Corpus Christi, Texas and having an address of 1901 North Shoreline Boulevard, Corpus Christi, Texas 78401 ("SMG"), and the BUCCANEER COMMISSION, INC. whose address is P.O. Box 30404, Corpus Christi, Texas 78463 ("Licensee"). WITNESSETH: WHEREAS, the City of Corpus Christi, Texas (the "City") has developed a sports and entertainment facility located at the American Bank Center in Corpus Christi, Texas(such sports and entertainment facility known as the"American Bank Center"); and WHEREAS, SMG entered into that certain Management Agreement by and between the City and SMG dated December 8, 2017, pursuant to which SMG has certain rights to operate and manage the American Bank Center as specified in the Management Agreement and enter into this Agreement with Licensee; and WHEREAS, upon the terms and conditions set forth in this Agreement, Licensee desires to use the Licensed Premises (as hereinafter defined)for the purposes hereinafter set forth in connection with Licensee's Carnival and certain other functions hosted by Licensee, and SMG desires to license the use of the Licensed Premises to Licensee for such purposes; NOW THEREFORE, SMG and Licensee, intending to be legally bound, hereby acknowledge and agree that the above recitals are true and correct and further agree as follows: ARTICLE I LICENSED PREMISES 1.1. As used in this Agreement: (a) "Buccaneer Days"means a Festival and Carnival scheduled during the Buccaneer Days. Parking Lot Convention Center Festival & Event Tear Setup Setup Carnival Down Ends April 30, 2022 May 2, 2022 May 5— 15,2022 May 17,2022 April 29, 2023 May 1, 2023 May 4— 14, 2023 May 16, 2023 April 27, 2024 April 29, 2024 May 2— 12,2024 May 14,2024 April 26, 2025 April 28, 2025 May 1 — 11,2025 May 13,2025 April 25, 2026 April 27, 2026 April 30—May 10,2026 May 12,2026 2 The above dates may be modified by Licensee by giving six (6) months'prior written notice to SMG, subject to SMG's confirmation that any such modified dates do not conflict with other bookings for the American Bank Center. Licensee to have first right of refusal for the following dates that include setup and teardown: Parking Lot Convention Center April 24—May 11,2027 April 26—May 11,2027 April 29—May 16,2028 May 1 —May 16, 2028 April 28—May 15,2029 April 30—May 15, 2029 April 27—May 14,2030 April 29—May 14, 2030 April 26—May 13, 2031 April 28—May 13, 2031 The above dates are tentatively held and will serve as first right of refusal for the Licensee. Licensee is given seven (7) business days' written notice to contract these dates should a conflicting event wish to book the American Bank Center. SMG will require written notice of Licensee to release the hold on any of the above-mentioned dates. 1.2. For and in consideration of the sums hereinafter specified, SMG grants to Licensee the use of the following areas and facilities(collectively,the"Licensed Premises") located at the American Bank Center during each Buccaneer Days: (a) The part of the American Bank Center necessary for the proper exhibition of Shopping, Attractions and Carnival, including, but not limited to,the American Bank Center: • Convention Center (Exhibit Hall, Henry Garrett Ballroom, Water Garden Rooms, etc.) • Parking Lots 2, 3, 5 —Carnival 1.3. SMG shall tender the Licensed Premises to Licensee pursuant to the terms and conditions of this Agreement. Except as expressly stated herein, SMG makes no warranty or representation of any kind (express or implied)to Licensee regarding the suitability of the American Bank Center, the Licensed Premises, or of any portion thereof, for any aspect of the use Licensee expects or intends to make of the Licensed Premises. SMG shall (i) provide to Licensee the Licensed Premises in good working condition, and (ii) maintain the Licensed Premises, subject to the terms and conditions of this Agreement, in good working condition, except for reasonable wear and tear and Force Majeure Events (as defined in Article 18.1). EXCEPT AS HEREINABOVE PROVIDED, LICENSEE AGREES THAT THE LICENSED PREMISES WILL BE DELIVERED BY SMG TO LICENSEE WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR 3 THE USE THEREOF FOR ANY PARTICULAR PURPOSE. SMG SHALL PROVIDE, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR THE USE THEREOF FOR ANY PARTICULAR PURPOSE, AS PART OF THE LICENSED PREMISES, SCOREBOARD, VIDEO REPLAY ACCESS AND MEDIA ACCESSORIES. ARTICLE II TERM 2.1 Initial Term. The initial term of this Agreement shall be for a period of five years during the periods covered by the Convention Center, and Parking Lots defined in Section 1.1 (the"Initial Term"). 2.2 Renewal Term. Upon the mutual written agreement of both parties on or prior to the expiration of the Initial Term, the parties hereto may extend the term of this Agreement for additional years upon mutual written agreement of the parties. The Initial Term, together with any Renewal Term, shall be the"Term" of this Agreement. ARTICLE III LICENSEE FEES AND PAYMENTS 3.1. Base Fee. Licensee agrees to pay to SMG a base fee (the "Base Fee") of Twenty-nine Thousand and 00/100 ($29,000) for 2022 Buccaneer Days with the following base fees for each additional year: • 2023 —$30,000 • 2024—$31,000 • 2025—$32,000 • 2026--$33,000 Licensee to provide proper tax exemption documentation prior to the Carnival on sale. The BaseFeeshall cover rental of convention center and parking lots, utilities, and basic staffing levels sufficient to provide for the adequate and safe operation of the American Bank Center, (i.e.,janitorial/basic housekeeping, maintenance, and managerial). Any additional staffing requested by Licensee above and beyond basic staffing levels exceeding annual license fee, as mutually agreed upon in writing by SMG and Licensee will result in additional labor costs to Licensee.Licensee will contract separately with SMG at American Bank Center prevailing rates for certain needs that include box office and certain security personnel . Licensee is responsible for additional labor cost regarding advance production, with advance notice. Should agreed upon staffing positions not be filled by SMG, Licensee will only pay for staffing positions fulfilled. No mark up of temporary staffing will be charged to Licensee. No charges for salaried employees of SMG will be charged to Licensee. 3.2 Additional Fees. Applicable service charges shall apply to any tickets sold through Ticketmaster: 4 A 3.5%Credit Card Fee will be assessed for each credit card used at the American Bank Center Box Office. This fee shall be passed on to the consumer at all Ticketmaster outlets except for the American Bank Center Box Office. The Licensee will be responsible for the 3.5% Credit Card Fee at the American Bank Center Box Office. 3.3. Box Office Receipts. Box office receipts received by SMG will be held by SMG for no more than three(3)business days following the end of each Buccaneer Days and may be applied to any outstanding payments due under this Agreement. Licensee waives all rights to that portion of the box office receipts necessary to pay sums due pursuant to this Agreement. If for any reason, such box office receipts are insufficient to pay all sums due under this Agreement (including but not limited to the Base Fee and the Ticket Fees, Licensee agrees to pay SMG by certified check or money order any sums 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 maximum rate allowable per annum by law for any sums due and not paid within thirty (30) working days of receipt of an invoice for payment. 3.4. .Other Charges. If, for any reason,SMG is required,due to Licensee's failure to vacate the American Bank Center, to provide staffing after one and one-half hours after the conclusion of Buccaneer Days, then Licensee shall reimburse SMG for all out-of-pocket expenses incurred by SMG for such failure to vacate the American Bank Center on a timely basis. Further,if SMG is required to provide any additional services,such as doctors,nurses, ambulances,food and beverage services, special facilities, equipment and materials, or extra services at the request of Licensee,Licensee shall reimburse SMG for actual costs incurred by SMG in connection with any such additional services. Other charges including those identified above shall be agreed upon in writing with additional cost disclosed. One of the following authorized representatives of the Buccaneer Commission must agree to other charges by way of signature prior to incurring charges: Johnny Philipello Tricia Aitken Denise Shelby Erica DeLuna Joseph Johnson Other charges will only be paid that have been approved in writing by one of the authorized representatives. Modification to list of Authorized representatives must be submitted to Licensor from President and CEO of Buccaneer Commission. 3.5. Use of Fees and Payments. The City has financed the American Bank Center through the issuance of tax-exempt obligations by a related and controlled entity. Accordingly, to ensure compliance with the federal tax laws applicable to such obligations, SMG hereby allocates and agrees to use any and all payments received by SMG from the Licensee 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 for the Licensee. 5 ARTICLE IV CERTIFIED OR CASHIER'S CHECK 4.1 In the event that there are insufficient funds in the box office receipts to cover the fees and expenses due by Licensee hereunder, SMG hereby reserves the right to require Licensee to pay all remaining funds due with a certified or cashier's check payable to SMG. ARTICLE V INDEMNIFICATION AND INSURANCE 5.1. Indemnification. (a) Licensee hereby indemnifies 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 "Licensor Parties"), from and against any and all losses, liabilities, claims, damages, demands, liens, judgments, and expenses (including, without limitation reasonable attorney's fees) (collectively, the "Losses") occurring at the American Bank Center(whether within or without the Licensed Premises)and/or incurred by any one or more of the Licensor Parties resulting from or by reason of(i) Licensee's failure to comply with any and all federal, state, local, and municipal regulations, ordinances, statutes, rules, laws, constitutional provisions, and common laws (collectively, the "Laws") applicable to Licensee's performance of this Agreement and/or activities at the American Bank Center,(ii) any violation of this Agreement by Licensee (including, without limitation, the provisions of Section 6.8 hereof(relating to intellectual property matters), Section 6.10 hereof(relating to the Civil Rights Act), and Section 6.11 hereof(relating to the Americans with Disabilities Act)), (iii) death of or injury to any person or damage to any property whatsoever arising out of the willful or negligent acts or omissions of Licensee, and/or any 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 or any fixture thereto, set-up, alterations, and/or improvements at or to the American Bank Center necessitated by and/or performed with respect to a Carnival Performance. (b) SMG hereby indemnifies and agrees to hold harmless and to defend Licensee, and each of its directors, officers, employees, consultants, and 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 (whether within or without the Licensed Premises) resulting from or by reason of (i) SMG's failure to comply with any and all federal, state, local, and municipal regulations, ordinances, statutes, rules, laws, constitutional provisions, and common laws applicable to SMG's performance of this Agreement and/or activities at the American Bank Center, or (ii) death of or injury to any person or damage to any property whatsoever arising out of the willful or negligent acts or omissions of SMG, and/or any of its officers, directors, or employees. (c) The provisions of this Section 5.1 shall survive the expiration or earlier termination of this Agreement. 6 5.2. Insurance. (a) Licensee Insurance. Licensee agrees to secure and deliver to SMG at least thirty (30) days prior to each Buccaneer Days and to keep in force at all times during each Buccaneer Days during the Term of this Agreement,policies of the following insurance: (i) Commercial General Liability. Commercial General Liability insurance including, without limit thereto, products and completed operations, contractual liability, broad form property damage, independent contractor's coverage, personal and bodily injury, 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 less than $1,000,000 per occurrence with $5,000,000 in the aggregate. (ii) Workers' Compensation. 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 of Texas and which shall include Broad Form All States and voluntary compensation endorsements. (iii) Automobile Insurance. Comprehensive automobile liability insurance insuring against liability arising from the maintenance and use of all owned, non-owned, hired, leased and rented trucks, automobiles and other vehicles brought to or operated at the American Bank Center by or on behalf of Licensee with a combined single limit for each occurrence of not less than One Million Dollars ($1,000,000) for bodily injury, death or property damage, with the Licensor Parties as additional insured. (iv) Licensee's Property. Property insurance, insuring Licensee's personal property located at the American Bank Center, on a so-called all risk basis including fire, vandalism and malicious mischief, in an amount equal to not less than eighty percent (80%) of the agreed upon insurance value. Licensee hereby specifically waives any right of recovery from SMG hereunder with respect to its personal property located at the American Bank Center in the event of flood,hurricane,or earthquake. Licensee shall be the named insured and SMG and the City(collectively, the"Other Beneficiaries") shall be named as additional insureds (as well as other designation by such parties) on each applicable insurance policy required under this Agreement. An insurance certificate reflecting the insurance policies required hereunder shall be delivered to SMG within thirty (30) days of 7 the execution of this Agreement but in any event prior to Licensee's entry upon the Licensed Premises or the American Bank Center. (b) SMG Insurance. SMG shall maintain its current levels of American Bank Center insurance in place at the inception of this Agreement and shall promptly notify the Licensee of revisions or cancellations in any American Bank Center insurance. SMG will retain overall authority and control over the safety of the persons and property of all spectators, SMG's workers, attendants, agents and employees, as well as members of the public in attendance at any of the Buccaneer Days governed by this Agreement. Licensee shall obtain prior written approval from SMG for any pyrotechnic displays and shall obtain specific general liability insurance for fireworks displays to the benefit of SMG in amounts to be mutually decided and verified by SMG. SMG shall also obtain all necessary pennits as required for the operation of the American Bank Center. (c) Best Rating. The insurance coverages to be maintained pursuant to the provisions of this Agreement shall be obtained from insurance companies rated A or better by the then most current Best's Key Rating Guide (or if A is not available at commercially reasonable rates, then the highest rating available at commercially reasonable rates). (d) Subrogation Waiver. All policies of SMG and Licensee shall be endorsed to provide that the underwriters and insurers waive any subrogation rights against each of the additional insureds or loss payees thereunder. (e) Notice of Modification or Cancellation. Each policy to be maintained pursuant to this Agreement shall provide that such policy shall not be modified or terminated except after(30)days prior written notice to each insured and additional insured or los s payee as the case may be. (f) Replacement Policies. SMG and Licensee shall each deliver to the other certificates of insurance evidencing replacement policies not less than thirty (30) days before existing policies expire. (g) Primary Coverage. All insurance coverage to be maintained by Licensee shall provide that such insurance is primary to any valid and collectible insurance maintained by SMG and that Licensee's insurance carrier will not seek contribution from SMG's insurance carrier for any such claims. 5.3. Licensee shall conduct its activities within the Licensed Premises in a dignified and orderly manner with full regard for public safety and in conformity with SMG's General Rules and Regulations, including fire and 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 the public utilities of the American Bank Center shall be permitted to 8 be obstructed or used for any purpose other than ingress and egress,nor shall any windows, ventilators,or lighting fixtures be obstructed. 5.4. SMG shall have the continuing obligation and responsibility to maintain and keep the American Bank Center in good order and repair, reasonable wear and tear excepted; provided,however, that (i) the failure by SMG to accomplish the foregoing, said failure resulting from circumstances beyond the control of SMG, shall not be considered a breach of this Agreement by SMG, and(ii)any damages to the American Bank Center and its appurtenances caused by Licensee or its officers,directors,agents,employees, subcontractors, licensees,or invitees shall be paid for by Licensee at the actual cost of repair. 5.5. Licensee shall not make any alterations or improvements to the American Bank Center without the prior written consent of SMG. 5.6. Licensee shall not cause or permit any Hazardous Material to be used, stored, or generated on, or transported to and from the American Bank Center. "Hazardous Material" all mean,without limitation,those substances included within the definitions of"hazardous subst ances", "hazardous materials", "toxic substances", or "solid waste" in any applicable state or federal environmental law. 5.7. Licensee is granted the right to broadcast by television, radio or live stream internet any Buccaneer Days events, so long as said broadcasts do not violate any of SMG's obligations and agreements with the City. 5.8. 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 Bank Center except upon prior written permission of SMG. VIP area will be used in a designated area outside of the American Bank Center that Licensor will ensure is unlicensed by TABC. 5.9. Licensee shall not operate any equipment or materials belonging to SMG without the prior written approval of SMG. 5.10. With respect to any Buccaneer Days events, Licensee shall comply fully with any and all Laws applicable to the reproduction or performance 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 Licensee under this Agreement do not include royalty, copyright or other payments which may be payable on behalf of third-party owners of such Works,and 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 the responsibility to make any and all reports to such agencies and/or parties, including specifically by way of example only (and not by way of limitation) ASCAP, BMI, SAG, SESAC and other similar agencies. 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 9 any such Buccaneer Days Events. Provision of such evidence is a material condition of this Agreement. Licensee agrees to indemnify, defend, protect and hold harmless SMG and the Licensor Parties of and from all and all manner of Losses arising in any way from the use by Licensee 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 means of publication or performance by Licensee, and shall include specifically and without limitation the use of recordings, audio broadcasts, video broadcasts, Works on other magnetic media, sounds or images transmitted via the worldwide web, chat rooms, webcast, or on-line service providers, satellite or cable, and all other publication or performance means whatsoever,whether now known or developed after the date of this Agreement. 5.11. When referring to the American Bank Center during the term of this Agreement, Licensee shall use the name "American Bank Center" (or such replacement name, as designated by SMG) and no other name and shall use reasonable best efforts to require third parties that Licensee contacts with in connection with the American Bank Center to do the same. The use and designation of the American Bank Center's name by Licensee shall, to the extent applicable, include without limitation printed materials, advertising, admission tickets, television, internet, and other broadcasting methods, and public relations or promotional press releases. Without limiting the generality of the foregoing, Licensee shall use the name and logo of(i)the American Bank Center and (ii)such party(ies) as may be given naming rights to the American Bank Center (collectively, the"American Bank Center Logos") in all advertising controlled by or done on behalf of Licensee relating to a Buccaneer Days, including, but not limited to, television, internet, newspaper, magazine,and outdoor advertising. Licensee's right to use the American Bank Center Logos shall be limited to the specific, express purpose set forth in the foregoing sentence and/or as otherwise authorized by SMG in writing prior to the use thereof. In connection with Licensee's use of the American Bank Center Logos as permitted in this Section 6.9,Licensee shall use only the form of the American Bank Center Logos as provided by SMG to Licensee in any artwork or other depiction thereof and shall not alter the design,color or quality of such logo. 5.12. 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 Buccaneer Days events at the American Bank Center Licensee recognizes that it is subject to the provisions of Title III of the Americans With Disabilities Act, as amended, and all similar applicable state and local laws (collectively, the "ADA"). Licensee represents that it has viewed or otherwise appraised itself of the access into the American Bank Center, together with the common areas inside, and accepts such access, common areas, and other conditions of the American Bank Center as adequate for Licensee's responsibilities under the ADA. Licensee shall be responsible for ensuring that the American Bank Center complies and continues to comply in all respects with the ADA, including accessibility,usability, and configuration insofar as Licensee modifies, rearranges or sets up in the American Bank Center in order to accommodate Licensee's usage. 10 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 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 the policies, practices, and procedures it applies in connection with Carnival Performance are in compliance with the ADA. 5.14. Licensee covenants to use its diligent efforts to assure maximum occupancy during its entire Carnival Series schedule at the American Bank Center. Licensee's diligent efforts for purposes of this subsection shall not require Licensee to do anything that is commercially unreasonable. 5.15. Except as specifically provided herein, Licensee acknowledges and agrees and covenants to accept, observe,comply,and conform with the terms of any Naming Rights Agreement("Naming Rights Agreement") in existence as of the date hereof(whether of a permanent or temporary nature)or to be entered into by SMG in respect of the facility (including the American Bank Center) of a permanent nature, and Licensee further acknowledges and agrees that this Agreement shall be subject in all respects to the terms and conditions of such Naming Rights Agreement. The terms of the Naming Rights Agreement shall, in the event of a conflict, supersede the terms of this Agreement. The parties acknowledge that any party to the Naming Rights Agreement shall have all the rights of a third-party beneficiary allowed by applicable law. A copy of the relevant provisions of the Naming Rights Agreement will be provided by SMG to Licensee. ARTICLE VI TICKET SALES 6.1. Ticket Sales. SMG shall provide certain ticket sales services (including box office,advance, day-of-Buccaneer Days, evening-of-Buccaneer Days and outlet(including internet and charge by phone) ticket sales) for the Buccaneer Days and all such ticket sales by SMG will be made and administered in accordance with the ticket sales procedures established,from time to time,by SMG for other comparable sporting events held at the American Bank Center and at such times sufficient to adequately provide for Licensee's needs as SMG and Licensee may determine. SMG agrees that with respect to the Buccaneer Days tickets, Licensee shall, subject to the provisions set forth herein, set prices. SMG shall be entitled to payment from Licensee's patrons for all costs and expenses incurred by SMG in connection with the use of credit cards for the purchase of Buccaneer Days tickets. SMG shall accept personal checks and credit card charges under procedures reasonably established by SMG and such checks and charges shall be deemed box office receipts at such time when such funds are actually received. 6.2. Ticket Sales Information. Within a reasonable time (not to exceed twenty- four (24) hours) after each Buccaneer Days, SMG and Licensee shall exchange all available ticket sales information in order to produce a statement detailing: (i) the number of tickets sold or bartered by Licensee and SMG for such Buccaneer Days; (ii) the number of complimentary tickets distributed by Licensee for such Buccaneer Days; and (iii) the box 11 office receipts, in order to assist SMG in the production of the Buccaneer Days invoice and or payment. 6.3. Ticket Supply. With respect to Buccaneer Days tickets to be sold by SMG, SMG, at its sole cost and expense, shall secure the printing of an adequate supply of tickets to all Buccaneer Days Events. SMG shall have the right to exercise complete control over all such ticket stock for all advertising and/or to the extent necessary to ensure proper seating designations. All advertising revenues derived from the ticket stock for any and all Carnival Performance ticket sales shall belong to SMG. ARTICLE VII RETURN OF LICENSED PREMISES 7.1 Licensee shall, at the conclusion of each Carnival Performance, clear the American Bank Center of the Licensed Premises and return it to the condition received at the beginning of each Carnival Performance, subject to normal wear and tear, and shall bear all reasonable costs related thereto including but not limited to additional clean up fees. ARTICLE VIII COOPERATION WITH OTHER USERS 8.1 Licensee understands that SMG may make available for use by others such portions, areas and facilities of and at the American Bank Center that are not subject to this Agreement, provided, however, that on Carnival Performance dates, SMG must provide Licensee written notice as to any such use of the American Bank Center. Licensee agrees to cooperate in good faith with SMG and with those persons that may be using other portions and areas of the American Bank Center, especially during periods of ingress and egress, in order to make mutual use of the American Bank Center harmonious and agreeable, provided the same does not materially interfere with Licensee's use of the Licensed Premises. ARTICLE IX OBSERVANCE OF LAWS, ORDINANCES AND REGULATIONS 9.1. Licensee and its agents, guests and employees will observe and comply with all Laws. Licensee shall not permit anything to be done at the American Bank Center that is in violation of any such Laws. Licensee shall further cause its servants, agents, employees or licensees to, and act reasonably to ensure that its patrons and guests abide by such rules and regulations which are adopted from time to time for the use,occupancy, and operation of the American Bank Center. 9.2. Licensee will obtain at its own expense any licenses, permits and union and trade organization clearances required by any public body or by contract for use by Licensee of the Licensed Premises. 12 ARTICLE X CARNIVAL PERFORMANCE APPROVAL 10.1 Licensee agrees that no Carnival Performance or part thereof shall take place if SMG files reasonable written objections within a reasonable time frame with Licensee on the grounds that it deems the Carnival Performance to be unlawful or dangerous to spectators, or materially inconsistent with Carnival Performance advertising claims presented to the public. In the event of such occurrence, Licensee shall forfeit all rights related to that Carnival Performance under this Agreement and shall have no legal recourse against SMG for any damages. ARTICLE XI CONCESSIONS AND MERCHANDISE 11.1. SMG has, among other rights, the exclusive right to sell all food and beverages (alcoholic and non-alcoholic) and catering inside the American Bank Center, excluding events such as Buccaneer Days as per the contract with the City of Corpus Christi. Licensee agrees to use SMG's exclusive caterer for all team related"catering needs"in the Licensed Premises. Licensee shall have the sole right to sell food and beverage inside the Convention Center and the exterior of the American Bank Center including the right to allow a third party (i.e., Buccaneer Commission Foundation, other) to hold a temporary TABC license within the Convention Center and the exterior of the American Bank Center. For each Buccaneer Days during the Term of this Agreement, SMG will be paid, on or before the thirtieth (30th) day after conclusion of each Buccaneer Days, a percentage of 20% gross concession income on alcohol sales received by Licensee inside the Convention Center and the exterior of the American Bank Center, to exclude alcohol sales for BBQ on the Bay Teams. Gross income being defined as revenues less tax. Licensee shall accompany each payment with appropriate supporting documentation relative to the attendance during the applicable period. SMG retains TABC license within the Arena and Selena Auditorium. Vendors participating in the Exhibit Hall Trade Show may sell their food products at their booth. 11.2. Subject to the terms and conditions 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 Bank Center during each Buccaneer Days and in the space described in Section 1.2 above; Licensee shall retain one hundred percent (100%) of all revenues derived from the sale of any merchandise sold or supplied by Licensee for sale during the Buccaneer Days. Licensee,or third party vendor, shall be responsible for paying SMG for any set-up and take-down costs and booth rental fees in connection with any kiosks or other facilities used for such sales that are provided by SMG. 13 Electrical/Equipment Service Pricing Power Source Prepaid Rate Day of Event Rate 120 Volts 20 AMPS Duplex $75.00 $100.00 120 Volts 30 AMPS Single $80.00 $105.00 208 Volts Single Phase 10 AMPS $90.00 $120.00 208 Volts Single Phase 20 AMPS $100.00 $130.00 208 Volts Single Phase 30 AMPS $110.00 $150.00 208 Volts 3 Phase 10 AMPS $100.00 $130.00 208 Volts 3 Phase 20 AMPS $110.00 $150.00 208 Volts 3 Phase 30 AMPS $120.00 $160.00 Spider Electric Drop $250.00 $300.00 Water $65.00 $90.00 Compressed Air $65.00 $90.00 Drain Connection $80.00 $110.00 Analog Phone Line $160.00 $210.00 Analog Fax Line $160.00 $210.00 Internet Line $160.00 $210.00 SMG recognizes and agrees that from time to time Licensee itself may desire and shall be allowed to give away certain promotional items. 11.3. Concession Charges. (a) Licensee shall have exclusive rights to sell Food and Non-Alcoholic Beverages and retain 100%of sales. ARTICLE XII ADVERTISING, SIGNS AND DECORATIONS 12.1. Licensee agrees that all advertising and promotion of the Buccaneer Days will be truthful and accurate, and at the expense of Licensee. SMG shall not be responsible for any advertising campaign or the content thereof. In all printed, radio and television advertising material and until otherwise notified in writing by SMG, the American Bank Center shall be designated and referred to as the "American Bank Center." In the event that the American Bank Center name changes, SMG shall not be liable for any related costs of Licensee with respect to the modification of any advertising or similar approved uses of the name of the American Bank Center. SMG must have specifically approved, which approval shall not be unreasonably withheld, the use of SMG's name(s) and/or logo(s) as well as game descriptions, game times, and hours of operation. In connection with SMG's approval, SMG agrees to proceed with reasonable diligence in delivering its approval or disapproval to Licensee. At no time shall such advertising 14 material, programs be distributed, circulated, or displayed by Licensee in the parking facilities or sidewalks adjacent to the American Bank Center and Licensed Premises (to include surrounding exterior of venue) without written permission from Licensor. 12.2. SMG, at such times that it deems reasonably appropriate, may announce any emergency messages; provided that, no non-emergency announcements shall be made. Licensee shall have full control of the sound system throughout the duration of the each Buccaneer Days. 12.3. SMG shall have the exclusive right to erect and/or display, and/or cause to be erected and/or displayed, and Licensee shall neither post nor erect and/or display, nor cause to be posted,erected and/or displayed, any decorations, signs, advertisements or posters of a permanent nature in the Licensed Premises or American Bank Center or other properties of SMG. Subject to the Naming Rights Agreement and Pouring Rights Agreement, Licensee may sell the following advertising during Buccaneer Days: (a) Exclusive Sponsorship Categories. SMG agrees to allow Licensee to authorize sponsorship exclusivity in the following categories for the Buccaneer Days: Automotive, Alcoholic Beverages, Fast Food, Tobacco, Health Care (i.e. Hospitals&Emergency Rooms)and Grocery. No competitive advertising will be displayed in the American Bank Center by SMG during Buccaneer Days if Licensee has notified SMG that it has made 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 ten (10) days prior to each Buccaneer Days in order to allow SMG sufficient time to modify any of its existing signage. 12.4. In no event shall Licensee grant or attempt to grant any product sales rights or advertising rights of a permanent nature in the American Bank Center(outside the period of any Performances) without the express prior written approval of SMG, and any attempt to do so shall be void and of no effect. Licensee is authorized to grant certain exclusive rights during Performances for sponsorships or advertising for automobiles, alcoholic beverages, tobacco products, Health Care (i.e Hospitals & Emergency Rooms) and grocery; provided that, no such activities shall in any event impair the rights granted by SMG pursuant to the Naming Rights Agreement and the Pouring Rights Agreement. ARTICLE XIII RESERVATION OF RIGHTS Except 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 and related parking facilities, including, but in no way limited to, the right to contract with any and all potential users of the American Bank Center without regard to Licensee's proposed or actual use of the Licensed Premises. Licensee agrees to respect in every particular the rights, prerogatives and authority of SMG and Licensee shall not take or authorize any other person to take any action which would conflict with or tend to impede or 15 impair the exercise of such rights, prerogatives, and authority of SMG or which would reduce or tend to reduce such revenues and financial benefits. Similarly, SMG agrees to respect, in every particular, the rights, prerogatives and authority expressly granted to Licensee hereunder (but not otherwise) and SMG shall not take or authorize any other person to take any action that would conflict with or tend to impede the exercise of such rights, prerogatives and authority expressly granted to Licensee hereunder. ARTICLE XIV CONTROL OF AMERICAN BANK CENTER SMG reserves the right to control the management and operation of the American Bank Center and to enforce all necessary and proper rules for its management and operation. SMG reserves to the City, itself and its employees the right to enter any part of the American Bank Center at any time. ARTICLE XV BUILDING OR EQUIPMENT DEFACEMENT OR DAMAGE Licensee agrees not to damage, mar, nor in any manner deface the American Bank Center or its equipment and shall not cause nor permit anything to be done whereby the Licensed Premises or equipment in the American Bank Center is in any manner, damaged, marred or defaced, nor shall Licensee drive or permit 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 any 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 any other casualty, riot or civil disturbance, force majeure, strike, act of God, or exercise of the police power of other unforeseen occurrence, should render the fulfillment of this Agreement by SMG impracticable (a"Force Majeure Event"), 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 in the American Bank Center 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 Majeure 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 therefrom any person or group of persons, any materials, equipment or other items, if, in the SMG's judgment, danger is imminent, or dangerous circumstances have already occurred, and such action is necessary to secure the safety and welfare of persons or property. In such event, Licensee waives any right or claim for damages against SMG, its agents or servants. 16 16.3. If the impossibility of performance described in this Article XVIII shall be due to the act or omissions of Licensee, its agents, employees, members, licensees, or invitees, then, Licensee shall be liable for all sums, fees or costs that would have been paid by Licensee to SMG had the impossibility ofperformance not occurred in addition to such other damages as may result from such acts or omissions. ARTICLE XVII DEFAULT BY LICENSEE The following shall constitute default under the Agreement by Licensee: Licensee shall be in default if it partially or totally abandons(i.e. does not conduct any Buccaneer Days Events when scheduled)the Licensed Premises, fails to carry the insurance required under this Agreement, has any of its checks returned for insufficient funds, breaches any of its representations and warranties, fails to perform in a timely manner 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 "Default"). In the event of a Default, SMG may apply all moneys held hereunder to any and all sums due hereunder. Further, SMG shall have the option to terminate this License and all of Licensee's rights 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 License, whether arising because of SMG's inability to re-license the Licensed Premises or otherwise. An election by SMG to adopt one or more of these remedies does not prevent the enforcement of other remedies or rights available concurrently or thereafter. ARTICLE XIII DEFAULT BY SMG 18.1. The following shall constitute a default under this Agreement by SMG: (i)the failure of SMG to perform or observe any of the obligations, covenants, agreements, or conditions to be performed or observed by SMG under this Agreement within thirty (30) days after written notice from Licensee of such 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 such thirty (30) day period and to diligently pursue such performance or observance to conclusion within an additional sixty (60) days; or (ii) the material breach by SMG of any of the representations or warranties contained in this Agreement. 18.2. Notwithstanding any contrary provision herein, Licensee agrees that the City, its officials, employees, agents, officers and affiliates and the City Council of the City and SMG and SMG's employees, 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 any default by SMG under this Agreement, 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. However, in recognition that the limitations on 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 17 SMG, SMG specifically agrees that Licensee shall, as its sole and exclusive remedies and relief, (i) upon a judicial finding (which finding shall be subject to appeal) of default (beyond any required period of notice, grace or cure granted to SMG under 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 SMG under this Agreement, to remedy such default, (iii) have the right, but not the obligation, to remedy any default (beyond any required period of notice, grace or cure granted to SMG under the terms of this Agreement)and,upon a judicial finding (which finding shall be subject to appeal) of default (beyond any such required period of notice, grace or cure as aforesaid)by SMG, offset the actual, necessary and reasonable cost of such remedy against any payment Licensee thereafter owes SMG under this Agreement, and/or(iv)upon a judicial finding(which finding 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-actual consequential (including without limitation speculative lost profits, special, or punitive damages) against any payment Licensee thereafter owes SMG under this Agreement. ARTICLE XIX RESPONSIBILITY FOR PERSONAL PROPERTY 19.1. SMG shall not be responsible for any loss or damage to personal property placed in or about the American Bank Center belonging to Licensee, its servants, agents, subcontractors, guests, patrons and invitees. 19.2. Licensee shall remove from the Licensed Premises immediately upon the termination of this Agreement, all property belonging to Licensee and all property brought into or unto the Licensed Premises by Licensee or 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 expense; but nothing herein shall in any way constitute SMG as a bailee of any such properties whether owned by Licensee or any other person. ARTICLE XX ASSIGNMENT AND SUBLETTING This Agreement shall not be assigned nor shall the 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 hereunder to the City. The terms "assignment" or "sublicense" as used in this License, shall include any and all 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. 18 ARTICLE XXI TAX RETURNS 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 governmental agency any admission tax return required, and to pay said taxes from fiends to be deducted and retained from the sale of admission tickets, but SMG shall have no obligation to file any tax return or pay any tax due by Licensee. All amounts payable under this Section 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 PRIVILEGE AND RIGHT TO WITHHOLD FUNDS Licensee hereby confers upon SMG a first lien,pledge and privilege on all box office r eceipts,collected from any and all box office locations for any sums due it under this License and shall have the right to retain so much of same as shall be necessary to discharge Licensee's obligations to SMG hereunder. Further, Licensee hereby authorizes SMG to withhold from any other funds that may be due Licensee such sums as may be due SMG pursuant 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 sums due and owing by Licensee. ARTICLE XXIII AUDITS Licensee shall make available to SMG, upon request, all records and books related to this Agreement during business hours and at the offices of Licensee in Corpus Christi,Texas for the purpose of an audit to be performed by an auditor designated by SMG. Licensee shall inform all of its service contractors that they must also agree to the above-referenced covenant upon request of SMG. This provision shall remain in force for a period of three(3) years after expiration. ARTICLE XXIV REPRESENTATION AND WARRANTY 24.1. SMG represents and warrants to Licensee that: (i) SMG is a general partnership organized in the Commonwealth of Pennsylvania and that SMG has the power and authority to enter into and perform this Agreement; (ii) this Agreement has been duly authorized, executed and delivered on behalf of SMG and constitutes a valid, legal and binding agreement and obligation of SMG, enforceable in accordance with its terms; and (iii) execution and performance of this Agreement by SMG will not violate any judgment, order, law or regulation applicable to SMG. 19 24.2. Licensee represents and warrants to SMG that: (i) Licensee is a non-profit corporation and that Licensee has the power and authority 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 or regulation applicable to Licensee. ARTICLE XXV MISCELLANEOUS 25.1. Headings. 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 SMG or Licensee to seek a 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 the terms of such covenant, agreement, provision, or condition at subsequent times or for the terms of any covenant, agreement,provision,or condition, and SMG and Licensee shall have all remedies provided herein with respect to any subsequent act which would have originally constituted the violation hereunder. 25.3. Assignment by SMG. The term "SMG" shall mean the named party herein, and in the 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 Licensee pursuant to such transfer, SMG as transferor shall thereupon be released and discharged from all covenants, duties and obligations of SMG thereafter accruing; provided, however, that SMG shall be liable for such obligations as accrued under this Agreement that were not discharged as of the date of such transfer and all covenants and obligations of SMG under this Agreement accruing after such transfer shall be binding during the remainder of the Term upon the transferee for the duration of such transferee's period as licensor hereunder. 25.4. Discharge of Liens. Should any mechanic's liens or other liens or affidavits claiming liens be filed against the Licensed Premises or the American Bank Center 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 men furnishing materials at or for the Licensed Premises on behalf of Licensee by reason of specially fabricated materials, whether or not placed at the Licensed Premises on behalf of Licensee, Licensee shall cause the same to be cancelled and discharged of record by payment, bonding or otherwise,within thirty(30)days after receipt of written notice from SMG or at such earlier time as is necessary to prevent the foreclosure thereof. 20 25.5. Recovery of Fees. In case a suit or action is instituted by SMG against Licensee or by Licensee against SMG to enforce compliance with this Agreement, the substantially prevailing party shall be entitled to recover reasonable attorneys' fees and costs from the other in addition to the costs and disbursements provided by statute, both at trial and appellate levels. 25.6. No Partnership. Subordination of Agreement. The relationship created by this Agreement is that of SMG and licensee. None of the provisions of this Agreement shall be construed in such a way as to constitute SMG or Licensee joint ventures or partners or to make either party liable for the debts of the other. 25.7. Attornunent. In the event the liens of any debt or security instruments of SMG are foreclosed for any reason or in the event SMG's rights shall be terminated such that SMG cannot or will not perform SMG's obligations under this Agreement and one of the Other Beneficiaries or any such beneficiary or holder(or purchaser of the interests thereof) (each a "Successor") succeeds to the interest of SMG under this 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 same force and effect as if such Successor was licensor under the Agreement and Licensee hereby agrees to and does hereby attorn to such Successor as the then licensor, such attornment to be effective and self-operative,without the execution of any further instrument on the part of the parties hereto, or their successors or assigns, immediately upon the Successor succeeding to the interests, rights and obligations of SMG hereunder. 25.8. Notices. Any notice which may or shall be given under the terms of this Agreement shall be in writing and shall be either delivered by hand to the named party or sent by United States certified 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: SMG American Bank Center 1901 North Shoreline Boulevard Corpus Christi,TX 78401 Attention: Paul Turner, Interim General Manger With copies to: Wood, Boykin & Wolter, P.C. 615 N. Upper Broadway, Suite 1100 Corpus Christi,Texas 78477 Attention: John D. Bell For Licensee: Buccaneer Commission,Inc. P.O. Box 30404 Corpus Christi,Texas 78463 Attn: Johnny Philipello 21 Any of the addresses above may be changed from time to time by such party giving notice as provided above to the other party. Notice given or served by United 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 deemed received upon delivery if such delivery is not accepted. 25.9. Licensee Representative. Licensee, upon written notice to SMG, shall designate one (1) person to be Licensee's representative ("Licensee Representative"), who shall be authorized to act on behalf of Licensee under this Agreement. Licensee shall have the right, from time to time, to change the person who is the Licensee Representative by giving SMG written notice thereof. Licensee hereby designates as its initial Licensee Representative, Johnny Philipello,who shall be authorized to act on behalf of Licensee under this Agreement. Any action, consent or approval by the Licensee Representative under this Agreement shall be binding on Licensee. 25.10. SMG Representative. SMG, upon written notice to Licensee, shall designate one (1)person to be SMG's representative("SMG Representative"),who shall be authorized to act on behalf of SMG under this Agreement. SMG shall have the right, from time to time, to change the person who is the SMG Representative by giving Licensee written notice thereof. SMG hereby designates its' General Manager as its initial SMG Representative who shall be authorized to act on behalf of SMG under this Agreement. Any action, consent or approval by the SMG Representative under this Agreement shall be binding on SMG. 25.11. Severability. If any of the terms or provisions of this Agreement, 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 unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be and remain valid and enforced to the fullest extent permitted by Applicable Law. 25.12. Terminology. Titles of articles and sections of this Agreement are for convenience and reference only and in no way define, limit,amplify, or describe the scope or intent of this Agreement,and in no way affect or constitute a part of this Agreement. Pronouns used in this Agreement shall be understood and construed 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 neuter pronouns shall each include the other and may be used interchangeably with the same meaning. The use of the words "hereof," "herein," "hereunder" and words of similar import shall refer to this entire Agreement and not any particular section or provision of this Agreement, unless the context clearly indicates otherwise. 25.13. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives, successors and permitted assigns (as herein expressly permitted). 22 25.14. No Third Party Beneficiary. Any agreement to pay an amount, any assumption of liability herein contained, express or implied, and/or any other covenant, agreement or duty expressed in this Agreement shall be only for the benefit of SMG, Licensee, the Other Beneficiaries and any party signatory to an agreement referenced in Section 6.13(collectively, the "Other Parties"), and their respective successors and permitted assigns (as herein expressly permitted), and such agreements, assumptions, covenants and duties shall not inure to the benefit of the oblige of any 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. Entire Agreement. This Agreement, including the attached exhibits, constitutes the entire agreement between the parties hereto relating to the subject matter hereof. No prior or contemporaneous written or oral promises, understandings, representations or agreements shall be binding, it being intended that this Agreement 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 the parties or by any prior performance between the parties pursuant 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. Amendments. This Agreement may be amended only by the written consent of the parties. 25.17. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Texas, calls for performance in Nueces County, and jurisdiction shall exclusively lie in the State Courts of Texas. 25.18. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. 25.19. SMG as Independent Contractor of the City. Licensee acknowledges that SMG operates and manages the American Bank Center Arena pursuant to the Management Agreement. Furthermore, Licensee acknowledges and agrees that (i) SMG's obligation to provide services for and in connection with the American Bank Center is limited to the express terms of the Management Agreement, and, in any event, by the availability of funds pursuant to the 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 23 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:_ 1 Johnny hilipel , President &CEO Paul timer, Interim General Manager DATE SIGNED: Il /Vt Z I DATE SIGNED: ///Z y Zi CONCUR for purposes of required City approval under the Management Agreement B Peter Zanoni, Cit . anager City of Corpus Christi DATE SIGNED: '2'-16 24