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
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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
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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
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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:
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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.
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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
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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.
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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.
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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.
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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
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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).
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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
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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
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