HomeMy WebLinkAboutAD09-175 - Original - VisionOne dba ShoWare - Arena Naming Agreement between Thunderbird Hockey Enterprises, LLC & City of Kent - 05/27/2009 Management
ecords
KENT Document
WASHINGTON
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name Vision One, Inc. dba ShoWare
Vendor Number: 7D Edwards Number
Contract Number: ADOOI- 1-7 5
This is assigned by City Clerk's Office
Project Name: Arena Naming Agreement
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment 5/27/2009
Contract
❑ Other: RW Agreement
Contract Effective Date Date: 7/31/19
Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: Ben Wolters Department: Econ & Comm. Dev.
Contract Amount:
Approval Authority: (CIRCLE ONE) Department Director Mayor City Council
Detail: (i.e. address, location, parcel number, tax id, etc.):
As of: 08/27/14
ARENA NAMING AGREEMENT
This ARENA NAMING AGREEMENT is entered into as of the Effective Date as
defined in Section 19 below, between and among Thunderbird Hockey Enterprises,
LLC, a Washington limited liability corporation ("Team"), CITY OF KENT, a
Washington municipal corporation ("City"), and VisionOne, d/b/a/ "ShoWare," a
California corporation ('ShoWare" or "Naming Sponsor").
RECITALS
The Team is a party to a franchise agreement with the Western Hockey
League ("WHL") pursuant to which the Team has been granted the right to own and
operate a hockey team presently known as the Seattle Thunderbirds
('Thunderbirds"). The Team intends to play its home games at an arena being built
in Kent, Washington ("Arena"), which will be owned by the City. Team and City
have agreed to designate the naming sponsor of the Arena pursuant to a Lease
Agreement between the City of Kent and Thunderbirds Hockey Enterprises, LLC,
dated August 7, 2007 (the "Arena Agreement"). City and Team desire to grant the
Naming Rights described herein to ShoWare, and ShoWare desires to acquire the
Naming Rights from City and Team, all as described in more detail, and for the
consideration set forth in this Agreement.
ShoWare is the owner and licensor of a proprietary ticketing software
solution and related products and services. The City and Team's exclusive use of
ShoWare's ticketing solution products during the term of this Agreement is critically
important to ShoWare and a condition precedent to ShoWare's obligations
hereunder as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, rights and obligations established in this Agreement, and intending to be
legally bound, the parties agree as follows:
AGREEMENT
1. Definitions. The following capitalized terms will have the meaning
indicated:
"Arena" means the events center currently under construction in and
by the City of Kent, located at 625 W. James Street, in Kent, Washington, and
designed to be capable of seating approximately 6,000 to 8,000 persons per event,
depending upon event configuration.
"Arena Name" means 'ShoWare Center at Kent."
"Arena Marks" means any logo, trademark, service mark, trade name,
or other identifications of the Arena that incorporates any portion of the Arena
Name.
ARENA NAMING AGREEMENT - 1
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
"Contract Year" means the Initial Period and any annual period
thereafter from August 1 of a year to July 31 of the succeeding year.
"Designated Services" means the event ticket sales, ticketing solution
software, marketing services and related products, and services now or hereafter
offered by ShoWare or ShoWare's affiliates during the term of this Agreement.
"Force Majeure" means a fire or other casualty, act of God, strike
involving employees other than those of a Party, lockout, war or civil disturbance,
or other cause entirely beyond the control of City and Team.
"Initial Period" means the period from the effective date hereof
through July 31, 2009, the commencement of the first Contract Year as defined
above.
"Naming Rights" means the rights granted by City and Team to
ShoWare hereunder with respect to the naming of the Arena, as described in
Section 4.
'Naming Sponsor Fee" means the amounts that ShoWare has agreed
to pay for the Naming Rights, as set forth in Section 3 and Exhibit 1, attached and
incorporated by this reference.
"ShoWare Ticketing Contract" shall mean the contractual agreement to
be entered into concurrently with the execution of this Agreement by City and
ShoWare pursuant to which the City shall agree to use ShoWare's ticketing
products and solutions exclusively for all ticketed events in the Arena and on the
Arena grounds and parking areas during the entire term of this Agreement.
"Standards" shall mean the quality standards imposed generally by the
WHL in its licensing of the marks of the member clubs of the WHL as such
standards may be amended by mutual agreement of the parties from time to time.
"WHL" means the Western Hockey League.
2. Term. This Agreement shall take effect on the Effective Date and shall
terminate on July 31, 2019 ('Term"), unless sooner terminated or extended in
accordance with the provisions set forth in this Agreement.
3. Naming Sponsor.
(a) ShoWare will acquire the Naming Rights for the Arena for the
Term. In consideration for those rights, subject to the conditions precedent set
forth herein, ShoWare agrees to pay to City a Naming Sponsor Fee set forth on
Exhibit 1. Each installment of the Naming Sponsor Fee shall be paid by ShoWare
to the City not later than the due dates shown on Exhibit 1. The City will be
responsible for sharing the Naming Sponsor Fee with Team.
ARENA NAMING AGREEMENT - 2
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
One Hundred Seventy-Five Thousand and no/100 dollars
($175,000.00), which is the sum of the first three installment payments shown on
Exhibit 1, shall be due and payable on the Effective Date of this Agreement. The
remaining installments of the Naming Sponsor Fee, as set forth in Exhibit 1, shall
be due and payable on the installment due dates shown on Exhibit 1, except that if
an installment due date falls on a weekend or holiday, the payment shall be due the
next business day. Subject to the provisions of subsection (b) below, the Naming
Sponsor Fee is the full amount due and ShoWare shall be solely responsible to pay
all installments on time. ShoWare shall be liable for all applicable federal, state, or
local taxes or charges, if any, levied, assessed, or otherwise due with respect to the
installment payments made by ShoWare, except for any tax on income to the City.
Any installment of the Naming Sponsor Fee or other payment required to be made
by ShoWare to the City hereunder, which is not paid within ten (10) days of when
due, shall be subject to a service charge of one percent (1%) per month from the
due date until paid in full.
In addition, as collateral for, and in order to secure the outstanding
payments due pursuant to this Agreement, ShoWare grants the City an
unencumbered and exclusive interest (Security Interest") in all of the ticketing
equipment and software purchased or utilized by Vision One and located on the
Arena premises and/or in the possession of the Cityor the Seattle Thunderbirds as
listed in Exhibit 3. This Security Interest shall attach on the Effective Date of this
Agreement and shall remain in full force and effect until the City is in receipt of the
full payment of the amounts due on August 1, 2009 and November 1, 2009, as set
forth in Exhibit 1, and therefore, ShoWare shall not further encumber, and shall
retain possession of, all of the equipment and software to which this Security
Interest applies. The value of the equipment and software subject to the Security
Interest is $105,000. The equipment and software shall be made available to the
City with or without cause on the City's demand in the event that ShoWare fails to
make either of the installment payments due August 1, 2009, or November 1,
2009, as set forth in Exhibit 1, within thirty (30) calendar days from the due date
of the installment. The City's failure to exercise its rights to execute on the
Security Interest for one payment shall not affect its rights to execute on the
Security Interest for another payment
Also, the Seattle Thunderbirds will provide the City of Kent with $20,000 from the
funds it holds that are due to ShoWare for ticket services in the event that ShoWare
fails to pay the installments due August 1, 2009, or November 1, 2009, within
thirty (30) calendar days from the due date of the installments.
ShoWare shall nevertheless reserve its absolute right to commence litigation to
dispute the City's use of the claimed funds and to seek their return.
(b) As additional consideration for entering into this Agreement, and
as a condition precedent to ShoWare's obligations under this Agreement, City will
execute the ShoWare Ticketing Contract on or before the Effective Date, and
pursuant thereto, will exclusively use ShoWare's ticketing sales and distribution
ARENA NAMING AGREEMENT - 3
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
services for all events at the Arena, on the Arena grounds, and parking areas
(excluding ticketed parking on area grounds) throughout the Term of this
Agreement, or unless terminated earlier as provided for in this Agreement.
Notwithstanding the provisions of the ShoWare Ticketing Contract, a minimum of
230,000 tickets will be sold through the ShoWare Ticketing System in each of the
first five contract years (commencing August 1, 2009) and a minimum of 200,0000
tickets will be sold through the ShoWare Ticketing System in each of the next five
contract years. If in any given year the total ticket sales falls below the minimum
number, the Arena may make up any shortfall in sales by selling more than the
minimum number in the following year and applying that excess to the previous
year's number or by taking the excess over the minimum number from the previous
year and applying that excess to the shortfall year, or both. In the event the City
and the Team are unable to make up the shortfall in ticket sales by the end of the
succeeding Contract Year, the Naming Sponsor Fee in the subsequent Contract year
shall be reduced to an amount equal to actual ticket sales in the prior year divided
by the minimum ticket sales for that year multiplied by the Naming Sponsor Fee.
The amount of any adjustment will then be credited against the next quarterly
installment payment(s) to become due according to the Exhibit 1 schedule. If in
the year the naming sponsor fee has been reduced the Arena sells in excess of the
minimum number, the sponsor fee in the following year will be increased by the
same ratio up to the amount equal to the reduction.
(c) The remaining specific terms of the ticketing sales and
distribution services has been negotiated and included in the ShoWare Ticketing
Contract that generally reflects the approved Proposal submitted by ShoWare in its
response to City's Request for Proposal, dated August 12, 2008. A copy of the
ShoWare Ticketing Agreement is attached and incorporated as Exhibit 2. In
furtherance of this obligation, the City and Team will require their existing Arena
operator, SMG, Inc., and all future operators, to employ ShoWare's Designated
services and be a party and adhere to the terms of the ShoWare Ticketing Contract
and any renewal or extension thereof throughout the Term of this Agreement.
(d) All Sign Faces shall be fabricated, designed, and installed to
specifications reasonably acceptable to ShoWare, Team, and the City. The City
shall be responsible for all reasonable costs and expenses, and will have the right to
manage the costs of design, fabrication and installation to stay within the
limitations of the Arena's budget for capital construction. If ShoWare should
request an upgrade to the sign faces beyond the Arena's budget, ShoWare shall be
responsible to pay for all costs associated with that upgrade.
(e) City shall be responsible for ongoing maintenance, repair and
replacement of and the cost to illuminate and operate the Sign Faces, all pursuant
to the terms of the Arena Agreement. The City shall at all times during the term of
this Agreement maintain the Sign Faces in good and operable condition.
ARENA NAMING AGREEMENT - 4
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
4. Naming Rights. The City and Team grant to ShoWare, subject to the
terms and conditions in this Agreement, the Naming Rights described in this
Section.
(a) ShoWare shall have the right to designate the name of the
Arena ('Arena Name"). ShoWare has designated "ShoWare Center at Kent" as the
Arena Name. The style, appearance, and color scheme of all depictions of the
Arena Name on all places where it appears shall be designed to specifications
reasonably acceptable to ShoWare, the Team, and the City.
(b) ShoWare shall have the right to have the Arena Name and/or
the Arena Marks on only the following signage, which dimensions, appearance,
illumination, and placement are subject to applicable laws, rules, and regulations,
and also subject to ShoWare's approval and City approval, both approvals of which
shall not be unreasonably withheld:
(i) Front of the Arena at James Street over the main
entrance;
(ii) On the upper fagade facing south toward James Street
and Highway 167;
(iii) On the roof, if the City, Team, and ShoWare mutually
agree on the physical signage characteristics;
(iv) Any marquee, if a marquee is erected at the Arena;
(v) Directional signs to the Arena under the City's control;
(vi) On the score clock inside the Arena;
(vii) One name under the ice; and
(viii) One name on each Zamboni.
(c) Team, at its expense, will prominently include and display the
Arena Name and or Arena Marks on all publications, advertisements, promotions,
billboards, banners, posters, postcards, letterhead, tickets, pocket schedules,
phonebook and directory listings, websites, and brochures of Team and its affiliated
sports team entities, and will encourage the use of the Arena Name and/or Arena
Marks on appropriate merchandise.
(d) City will erect street and area directional signage under its
control which contains the Arena Name and/or Arena Marks. City will prominently
include and display the Arena Name and/or Arena Marks on all publications,
advertisements, promotions, billboards, banners, posters, postcards, letterhead,
tickets, schedules, phonebook and directory listings, websites, and brochures
relating to the Arena or events in the Arena that are promoted by the City. City
ARENA NAMING AGREEMENT - 5
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
shall be responsible for the cost of complying with the undertakings under this
subsection (d).
(e) Team will use best efforts to place ShoWare's logo on the Key
Arena ice for the 2008-2009 Thunderbirds hockey season to promote the new
Arena, subject to any and all restrictions imposed by the Seattle Center.
5. Future Name Change.
(a) ShoWare shall have the right to change the Arena Name, but
only as provided herein. In the event of a change in ownership or a change in the
ShoWare name or logo, color scheme, or depiction, or an assignment or sale of the
Naming Rights by ShoWare or VisionOne to a third party, ShoWare may change the
Arena Name (or the logo, color scheme, or depiction of the Arena Name) with the
written consent and approval of the City, which consent shall not be unreasonably
withheld or delayed, and also subject to the following conditions:
(i) The City may withhold consent because the proposed
name is associated with alcoholic beverages, cigarettes, gambling, or any other
name that the City reasonably determines to be associated with public health and
safety concerns or significant controversy, and in that event, the City's withholding
of consent that will be considered "reasonable" under this Section 5.
(ii) The City may withhold consent if the proposed name or
the company it represents interferes with the operations or operating policies of the
Arena. For example, and without limitation, the proposed name should not conflict
with the products or services provided by an advertiser or vendor with a long-term
contract at the Arena, or a ticketing company that has a fee structure approach at
odds to the City and Team's philosophy to limit ticket fees in order to maintain a
family-friendly venue for Arena events.
(iii) The new name may not violate any WHL rule or policy
then in effect and may not be a name that could not be a sponsor of Team under
the rules of such leagues then in effect.
(iv) Unless Team specifically consents, the new name may not
include the name or trade name of a major competitor to the then-current Team
sponsors.
(b) If all of the conditions of this Section 5 are satisfied, then the
Team and City agree that they will consent to the change of the name of the Arena.
The Team and City agree to evidence their consent in writing within thirty (30) days
of the satisfaction of the above conditions. All costs associated with any name
change will be the sole responsibility of ShoWare or its successor, including those
costs identified above in Sections 3 and 4, and specifically including, without
limitation, all costs related to removal of existing signage and design, fabrication,
and installation of new signage. ShoWare will further be responsible for reasonable
ARENA NAMING AGREEMENT - 6
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
replacement cost of any pre-printed or pre-produced stationary, brochures,
promotional materials, tickets, advertising or marketing materials, and any pre-
produced or constructed goods or products intended for sales and marketing
purposes by either the Team or the City, but only if the Team or the City could not,
in good faith, have avoided those costs.
(c) If the Arena Name is changed, the new name shall become the
Arena Name for all purposes of this Agreement from that day forward, including,
without limitation, the licenses granted hereunder to use the Arena Name.
6. Trademarks and Licensing.
(a) ShoWare is the owner of the mark "ShoWare TM11 for the products
and services it offers, and is the owner of the mark ShoWare and design,
registration number 2,865,738, registered on the Principal Register of the United
States Patent and Trademark Office. ShoWare's marks, business name, and logos
(the "Marks") are famous, enjoy very substantial and favorable public acceptance,
and represent invaluable goodwill to ShoWare. ShoWare shall be the owner of the
Arena Name and any logo, trademark, service mark, trade name, or other
identifications of the Arena that incorporate any portion of the Marks or Arena
Name that may be developed mutually or by any of Team, City, or ShoWare or any
combination thereof (collectively, the "Arena Marks"). ShoWare shall, at its sole
cost and expense, take all necessary and appropriate steps to file applications to
obtain trademark or trade name registration or otherwise protect the Arena Name
and the Arena Marks for any use authorized under this Agreement, and will
continue or renew those registrations. The parties agree that these registrations
will be made in the categories under which the WHL generally files registrations for
the marks of Team. Team agrees to notify ShoWare of such categories from time
to time. If appropriate, during the term of this Agreement or any extension, City
and Team agree to cooperate with ShoWare in its prosecution and maintenance of
such applications and registrations, and shall furnish any documents, specimens,
samples, or information reasonably required to register the Arena Marks.
(b) Team and City acknowledge that ShoWare is the owner of the
Marks and the Arena Marks, and that all goodwill relating to the Marks and the
Arena Marks shall be and remain the sole and exclusive property of ShoWare. .
Team and City do not have any licenses granted to them with respect to the Marks
and Arena Marks. Team and City agree to use the Arena Marks only in accordance
with the terms of this Agreement.
(c) ShoWare hereby provides Team with a royalty-free, worldwide
license to use and authorizes Team to sublicense others to use the Arena Marks,
and to subcontract others to manufacture products incorporating or bearing the
Arena Marks, for food service, related supplies, Arena supplies, furniture and
equipment, novelties, souvenirs, publications, and other products used in the
operation of the Arena, or promotion of the Arena alone or in conjunction with the
promotion of Team, the WHL, and the presentation of professional and amateur
hockey events in the Arena, or as may be approved from time to time by ShoWare.
ARENA NAMING AGREEMENT - 7
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
All of these products may be used, consumed, or given away, or may be sold or
held for sale. This license shall be a non-exclusive license to Team. Team shall not
be obligated to pay or to cause any sublicensee to pay any royalty or other fee to
ShoWare with respect to this use. Team will use the Arena Marks in a manner
consistent with the Standards and will require its sublicensees to use Arena Marks
in the same manner. ShoWare shall have the right to revoke the license or curtail,
restrict, or suspend its use if ShoWare determines in its reasonable business
judgment that any use of any of the Arena Marks by Team or any of its
sublicensees is detrimental to ShoWare, the Marks, its image or reputation.
(d) ShoWare hereby provides City with a royalty-free, worldwide
license to use and authorizes City to sublicense others to use the Arena Marks, and
to subcontract others to manufacture products incorporating or bearing the Arena
Marks, for food service, related supplies, Arena supplies, furniture and equipment,
novelties, souvenirs, publications, and other products used in the operation of the
Arena, the promotion of City and the Arena and the presentation of other events in
the Arena, or as may be approved from time to time by ShoWare. All of such
products may be used, consumed, or given away or may be sold or held for sale.
This license shall be a non-exclusive license to City. City shall not be obligated to
pay or to cause any sublicensee to pay any royalty or other fee to ShoWare with
respect to this use. City will use the Arena Marks in a manner consistent with the
Standards and will require its sublicensees to use the Arena Marks in the same
manner. ShoWare shall have the right to revoke the license or curtail, restrict or
suspend its use if ShoWare determines in its reasonable business judgment that
any use of any of the Arena Marks by City or any of its sublicensees is detrimental
to ShoWare, the Marks, its image or reputation.
(e) The Team and City represent and warrant that ShoWare will be
the sole party with the right to designate and use any name for the Arena during
the Term, and the Team and City will not enter into a similar agreement with any
other party designating such party as the "named Arena sponsor," "main Arena
sponsor" or the "official sponsor of the Arena." However, the Team and City may
enter other sponsorship agreements, advertising agreements or signage
agreements that do not otherwise violate the foregoing or anything else under this
Agreement for naming rights deals to any other part of the Arena not specifically
granted herein to ShoWare; however, any other sponsorship agreement and/or
advertising shall not authorize or advertise any provider of any product or service
that competes with any product or service provided by ShoWare. The foregoing
limitation upon the Team and City shall not apply to the right of any third parties to
purchase tickets for any Team games and the right to be identified during those
games by public announcements or on the scoreboard in a manner no .different
from any similar purchaser of tickets.
(f) ShoWare agrees that it will not use or sublicense any person or
entity other than Team and City to use the Arena Marks on any products that are
sold or intended to be sold at retail. This restriction applies only to the Arena Marks
but does not apply to the Marks or other derivatives of the Marks. ShoWare,
however, may use the Arena Marks on promotional products dispersed for the
ARENA NAMING AGREEMENT - 8
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
purpose of marketing and promoting ShoWare. ShoWare may use the Arena Marks
on any products intended solely for use by employees or its affiliates.
(g) Unless otherwise agreed, no party shall have the right to use in
any way the corporate or trade name(s), trademark(s), service mark(s), logo(s), or
other identifications of the other party or its affiliates without the owner's written
consent.
7. Indemnification.
(a) The Team will defend, indemnify, and hold harmless ShoWare
and the City, their subsidiaries, affiliates, officers, directors, employees, agents,
and assigns from and against any and all claims, costs, liabilities, suits, actions,
judgments, losses, demands, expenses and damages of every kind, including,
without limitation, reasonable attorneys' fees, that result from, arise out of or relate
to: (i) any breach or alleged breach by the Team of any provision of this Agreement
or any representation or warranty made by it herein; (ii) any act or omission to act
of the Team, its sublicensees, subsidiaries, affiliates, officers, directors, employees,
agents or assigns; or (iii) Team's use of the Arena under this Agreement, but only
to the extent of Team's negligence or willful misconduct. The foregoing sentence
notwithstanding, Team shall not be liable for any matter for which ShoWare is
obligated to indemnify Team under Section 7(b) below, or for a failure to pay
amounts due City, if ShoWare has failed to pay City under this Agreement.
(b) ShoWare will indemnify and hold harmless the Team and City,
and their respective sublicensees, subsidiaries, affiliates, officers, directors,
employees, agents, and assigns from and against any and all claims, costs,
liabilities, suits, actions, judgments, losses, demands, expenses, and damages of
every kind, including, without limitation, reasonable attorneys' fees, that result
from, arise out of, or relate to any claims: (i) of infringement or unfair competition
by third parties relating to ShoWare's ownership of the Marks; (ii) any breach or
alleged breach by ShoWare of any provision of this Agreement or any
representation or warranty made by it in this Agreement; and (iii) any act or
omission to act of ShoWare, its employees, servants and agents under or in respect
to this Agreement, but only to the extent of ShoWare's negligence or willful
misconduct.
(c) The City will indemnify and hold harmless Team and ShoWare,
and their respective sublicensees, subsidiaries, affiliates, officers, directors,
employees, agents, and assigns from and against any and all claims, costs,
liabilities, suits, actions, judgments, losses, demands, expenses and damages of
every kind, including, without limitation, reasonable attorneys' fees, that result
from, arise out of or relate to any claims for: (i) property damage, personal injury
or death relating to the design or operation of the Arena, installation or
maintenance of the Sign Faces or use of the Arena by City or its agents and
invitees; (ii) any breach or alleged breach by City of any provision of this
Agreement or any representation or warranty made by it in this Agreement; and
(iii) any act or omission to act of City, its employees, servants and agents under or
ARENA NAMING AGREEMENT - 9
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
in respect to this Agreement, but only to the extent of the City's negligence or
willful misconduct.
(d) Each party shall give the other parties proper notice of any
claim or suit coming within the purview of these indemnities. The indemnitor will
assume the defense of any claim, demand, or action against such indemnitees and
will, upon the request of the indemnitees, allow the indemnitees to participate in
the defense thereof, such participation to be at the expense of the indemnitees.
The indemnitees will in any case cooperate fully with the indemnitor in the defense
and will, at their expense, provide all relevant documents, witnesses, and other
assistance within their possession or control upon the reasonable request of the
indemnitor. Settlement by the indemnitees without the indemnitor's prior written
consent shall release the indemnitor from the indemnity as to the claim, demand,
or action so settled. Termination of this Agreement shall not affect the continuing
obligations of each of the parties as indemnitors hereunder with respect to those
indemnities and which shall have occurred prior to such termination.
8. City's Additional Covenants. City agrees further that it shall:
(a) operate, maintain, and keep the Arena and all of its components
in good operation and repair as a first class events center during the term of this
Agreement;
(b) cause the Arena manager to promote the Arena and attempt to
maximize its utilization for ticketed events; and
(c) based on availability of luxury suites and with reasonable prior
notice from ShoWare, the City and Team will permit ShoWare and its invitees to
use a luxury suite at the Arena for ten (10) events in each Contract Year without
charge except for food and beverages consumed by ShoWare, charged at normal
rates charged other luxury suites.
9. End of Term and Termination.
(a) Upon the expiration or earlier termination of this Agreement, the
licenses granted under this Agreement shall immediately terminate, and the Team
and City, and their respective sublicensees, shall cease to use the Arena Marks,
including, but not limited to, the making of necessary physical changes to the Arena
and its components and the discontinuance of the use of stationery, tickets, and
advertising and promotional materials then on hand. In the event of a termination
under this Section 9, the Team and City shall have a reasonable time, not to exceed
ninety (90) calendar days (unless extended by mutual agreement of all parties), in
which to comply with the foregoing sentence. During the period prior to
termination or expiration of this Agreement, the parties will each comply with all of
the requirements of this Agreement. ShoWare shall have no expense to remove
the Sign Faces or replace other materials on which the Arena Name or Arena Marks
appear, except as provided in subsection 9(d) below.
ARENA NAMING AGREEMENT - 10
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
(b) The following shall constitute "ShoWare Defaults:"
(i) ShoWare fails to make any payment by its due date set
forth on Exhibit 1;
(i i) ShoWare fails to make any payment under any other
agreement with the Team or with the City when due, if such failure is not cured
within ten (10) calendar days after receipt of written notice as provided in Section
12 to ShoWare of that default;
(iii) ShoWare fails to comply with any other obligation set
forth in this Agreement, including any of ShoWare's representations and warranties
under this Agreement, when that failure continues for a period of twenty (20)
calendar days after written notice has been tendered to ShoWare as provided in
Section 12 of this Agreement;
(iv) ShoWare makes an assignment for the benefit of
creditors, or a trustee, receiver, or similar officer of any court that is appointed for
ShoWare or for a substantial part of its property, whether with or without its
consent, or an action for bankruptcy, composition, reorganization, insolvency, or
liquidation proceedings is instituted by or against ShoWare, if such proceedings
shall not be dismissed within sixty (60) calendar days from the date the proceeding
is instituted.
(c) In the event of the occurrence of a ShoWare Default, the Team
and/or the City shall have the right, if the City determines the default to be
material, to cause this Agreement to end on a date designated in that notice, which
date may be not less than twenty (20) calendar days after the date of such notice.
(d) In the event that this Agreement terminates due to ShoWare's
default, ShoWare, in addition to any other damages for which it may be held liable,
shall be obligated to pay all costs, losses, and expenses incurred by the Team and
the City in complying with the provisions of this Section 9, including but not limited
to the cost of removing all signs and disposing of other displays and materials
containing the Arena Marks and the cost of any materials containing the Arena
Marks which must be discarded as a result of the termination.
(e) The following shall constitute 'Team Defaults":
(i) Team fails to comply with any of its obligations under this
Agreement, and that failure shall continue for a period of twenty calendar (20) days
after ShoWare tenders notice to Team as provided for in Section 12; provided,
however, that if the cure of a default not susceptible of completion within this
twenty (20) calendar day period is undertaken within the twenty (20) calendar day
period and is diligently pursued to completion, then reasonable time for that cure
shall be allowed;
(ii) Team ceases, other than as a result of Force Majeure,
ARENA NAMING AGREEMENT - 11
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
(A) playing its home hockey games at the Arena; or
(B) to hold a WHL franchise (except pursuant to an
assignment in accordance with the terms of this Agreement) or moves more than
five (5) of the Team's home games per year to another location, unless such
relocation is as a result of a closure of the Arena for which the Naming Rights
Sponsor Fee has been abated and forgiven hereunder.
(iii) The occurrence of an event involving the Team (including
players, coaches, etc.) that shows a repeated illegal or morally reprehensible
activity as to demonstrably damage ShoWare, the Marks, their image, or
reputation. It is the intent of the parties that this Section 8(e)(iii) is to clarify that
the relationship between the parties is based on the overall image of the parties in
the public, and is not focused on one individual employee or action.
(iv) The ShoWare ticketing contract between Team and
ShoWare is terminated or not renewed by the Team for any reason other than
ShoWare's deliberate and intentional breach.
Notwithstanding subsections (i), (ii), (iii) and (iv) above, should
a default by the City, as defined in the License Agreement between the City and the
Team signed on August 7, 2007, under Article 4.1 of the License Agreement, cause
the Team to move its home games to another Arena, Team shall not be deemed to
be in default of this Agreement, and shall not be liable to ShoWare for any damages
whatsoever.
(f) In the event of the occurrence of a Team Default, ShoWare shall
have the right to terminate this Agreement by written notice to Team and City, in
which event ShoWare shall be entitled to receive a refund proportionate to the
unused portion of the applicable quarterly payment term for that Contract Year.
Any refund due shall be paid to ShoWare by Team within thirty (30) calendar days
after the termination. In addition, and at ShoWare's request, all Sign Faces, the
Arena Name and Arena Marks will be removed from all usages and displays as soon
as possible with no cost to ShoWare.
(g) The following shall constitute "City Defaults:"
(i) City fails to comply with any of its obligations under this
Agreement, and such failure is material and continues for a period of twenty (20)
calendar days after ShoWare tenders notice to City as provided in Section 12;
provided, however, that if the cure of a default not susceptible of completion within
this twenty-day period is undertaken within that twenty-day period and is diligently
pursued to completion, then reasonable time for the cure shall be allowed.
(i i) The ShoWare Ticketing Contract is terminated or not
renewed by the City or its Arena Manager for any reason other than ShoWare's
deliberate and intentional breach.
ARENA NAMING AGREEMENT - 12
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
NOW
(iii) The Arena Manager takes any action that is an actionable,
unfair business practice.
(iv) A default by the City under the License Agreement
between the City and the Team signed on August 7, 2007, results in the Team
moving to another arena.
(v) The City builds, sponsors, or permits the building of
another Arena within the City limits that will compete with the Arena for ticketed
events.
(h) In the event of the occurrence of a City Default, ShoWare shall
have the right to terminate this Agreement by written notice to Team and City, in
which event ShoWare shall be entitled to receive a refund proportionate to the
unused portion of the applicable quarterly payment term for that Contract Year.
Any refund due shall be paid to ShoWare by City within thirty (30) calendar days
after the termination. In addition, and at ShoWare's request, all Sign Faces, the
Arena Name, and Arena Marks will be removed from all usages and displays as
soon as possible with no cost to ShoWare.
(i) In the event that ShoWare undertakes a new or different
business or industry, or undertakes new or different activities such that Team is, as
a result of ShoWare's new or different business or activities, restricted by the WHL
Constitution and Bylaws or rules and regulations, from having a sponsorship
relationship with ShoWare, or a change in such WHL Constitution and Bylaws or
rules and regulations otherwise results in a material restriction of the ability of the
Team to perform its obligations under this Agreement because ShoWare undertakes
a new or different business or industry, the parties shall negotiate in good faith to
modify this Agreement so as to comply with the WHL Constitution and Bylaws or
rules and regulations, provided that should these modifications cause this
Agreement to fail in its essential purpose or purposes or should the parties be
unable to reach an agreement after negotiating in good faith and reach impasse,
then Team may terminate this Agreement upon written notice to ShoWare. In that
event, ShoWare shall be entitled to receive a refund proportionate to the unused
portion of the applicable quarterly payment term for that Contract Year.
(j) Should this Agreement or any provision hereof violate any
federal, state, or local law or regulation, or as the result of amendment or revision
to the WHL Constitution, Bylaws, rules, or regulations, this Agreement or any
provision hereof violates the amended or revised WHL Constitution, Bylaws, rules,
or regulations, the parties shall then negotiate in good faith to modify this
Agreement to the extent reasonably necessary to bring about compliance with such
law, rules, constitution, bylaws, and/or rules and regulations; provided, however,
that if such modification would cause this Agreement to fail in its essential purpose
or purposes, or the parties are unable to reach agreement after negotiating in good
faith and reach impasse, either ShoWare or Team may elect to terminate this
Agreement. In the event of such termination, Team (and not the City) shall refund
ARENA NAMING AGREEMENT - 13
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
to ShoWare an amount proportionate to the unused portion of the applicable
quarterly payment term for that Contract Year.
(k) This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington. If the parties are unable to
settle any dispute, difference, or claim arising from the parties' performance of this
Agreement, the exclusive means of resolving that dispute, difference, or claim, shall
only be by arbitration in accordance with applicable rules of the American
Arbitration Association with such arbitration taking place in King County,
Washington, unless the parties agree in writing to a different alternative dispute
resolution process. In any claim or lawsuit for damages arising from the parties'
performance of this Agreement, each party shall pay all its legal costs and
attorney's fees incurred in defending or bringing such claim or lawsuit, in addition
to any other recovery or award provided by law; provided, however, nothing in this
paragraph shall be construed to limit the parties' rights to indemnification under
Section 7 of this Agreement.
10. Assignment.
(a) Subject to the terms and conditions of this Section 10, this
Agreement and all of its terms and provisions will be binding upon, enforceable
against, and will inure to the benefit of all parties and their respective successors
and assigns.
(b) Team shall have the right to assign this Agreement to any
purchaser of Team's interest in the WHL Thunderbirds' franchise if the WHL and
ShoWare first approve assignment to the purchasers of the Thunderbirds franchise
and the purchasers assume all obligations of Team under this Agreement. In that
event, Thunderbird Hockey Enterprises, LLC, shall be fully released from any
liability hereunder. Prior to the use or sublicense of the Arena Marks by the Team's
successor, ShoWare may require the successor to execute a document specifically
agreeing to be bound by the license provisions of this Agreement.
(c) ShoWare shall have the right to assign or sublicense/sell this
Agreement, in whole but not in part, (i) to an Affiliate, as defined in this paragraph;
(ii) to the purchaser of the ShoWare software solution; (iii) to the purchaser or
merger partner in a transaction in which all or substantially all of its stock or assets,
or all or substantially all of its business is acquired by such purchaser; or (iv) a
third party approved by City in the exercise of its reasonable discretion,
(collectively, for this section 10, 'Assignee"). No such assignment will be effective
unless the assignee or sublicensee first executes and delivers to Team and City
those assignments, assumptions and other documents as the Team and the City
reasonably request to evidence those transactions and only so long as Assignee
assumes, in writing, all of the liabilities and obligations of ShoWare under this
Agreement. The assignment of this Agreement pursuant to this Section 10 shall
include the right to change the Arena Name, subject to the provisions and
limitations set forth in Section 5 above. For purposes of defining an assignment
under this paragraph, no exchange or trade of shares in stock, other than those
ARENA NAMING AGREEMENT - 14
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
that result in a material change in control, shall be deemed to effect an assignment
of this Agreement, nor shall any transfer of control of any Affiliate to which this
Agreement has not been assigned be deemed to constitute an assignment of this
Agreement. For purposes of this Agreement, an "Affiliate" shall mean any person
or entity that directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, another person or entity. 'Control,"
for this purpose, shall be defined as holding at least a majority of voting power or
operating control.
11. Independent Contractor. The parties shall be and act as independent
contractors, and under no circumstances shall this Agreement be construed as one
of agency, partnership, joint venture or employment between the parties. The
parties shall each be solely responsible for the conduct of their respective
employees, agents and contractors in connection with the performance of their
obligations hereunder.
12. Notices. All notices, offers, consents or other communications
required or permitted hereunder shall be in writing and shall be deemed duly given
if delivered personally or by nationally recognized overnight courier service or if
sent by certified mail, then three business days after deposit in the U.S. mail,
postage fully prepaid, addressed to the appropriate address set forth below, or to
such other person or address as either party may designate by written notice to the
other party given as herein provided:
If to Team: With a copy to:
Thunderbird Hockey Enterprises, LLC Peterson Russell Kelly PLLC
[Address] 10900 NE 4th Street, Suite 1850
Bellevue, WA 98004-8341
Attn: Colin Campbell Attn: David Bowman
If to VisionOne (ShoWare): With a copy to:
6781 N. Palm #120 Hal H. Bolen II
Fresno, CA 93704 Bolen Fransen LLP
Attn: Bruno Boehi 1322 E. Shaw Suite 430
Fresno, CA 93710
If to City: With a copy to:
City of Kent Tom Brubaker, City Attorney
220 Fourth Avenue South City of Kent
Kent, WA 98032 220 Fourth Avenue South
Attn: City Administrator Kent, WA 98032
ARENA NAMING AGREEMENT - 15
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
*..
13. Representations and Warranties.
(a) Team represents, warrants and covenants to ShoWare as
follows:
(i) It has the full right and legal authority to enter into and
fully perform this Agreement in accordance with its terms.
(i i) It has the right with City to grant Naming Rights to
ShoWare.
(iii) This Agreement, when executed and delivered by the
Team and City, will be its legal, valid and binding obligation, enforceable against
them in accordance with its terms, except to the extent that enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally.
(iv) The execution and delivery of this Agreement has been
duly authorized by the Team, and the execution and delivery and the performance
by the Team of its obligations hereunder does not and will not violate or cause a
breach of the WHL Constitution and Bylaws, or any other agreements or obligations
to which it is a party or by which it is bound, and no approval or other action by any
governmental authority or agency is required in connection herewith.
(v) Each of the foregoing representations, warranties and
covenants shall be true at all times during the Term of this Agreement. Team
acknowledges that each of these representations, warranties and covenants are
material and have been relied upon by ShoWare notwithstanding any investigation
made by ShoWare.
(b) ShoWare represents, warrants and covenants to the Team and
City as follows:
(i) It has the full right and legal authority to enter into and
fully perform this Agreement in accordance with its terms.
(i i) This Agreement, when executed and delivered by
ShoWare, will be its legal, valid and binding obligation enforceable against ShoWare
in accordance with its terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting creditors' rights.
(iii) The execution and delivery of this Agreement has been
duly authorized by ShoWare, and such execution and delivery and the performance
by ShoWare of its obligations hereunder do not and will not violate or cause a
breach of any other agreements or obligations to which it is a party or by which it is
bound, and no approval or other action by any governmental authority or agency is
required in connection herewith.
ARENA NAMING AGREEMENT - 16
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
I. `'
(iv) Each of the foregoing representations, warranties and
covenants shall be true at all times during the Term of this Agreement. ShoWare
acknowledges that each of these representations, warranties and covenants are
material and have been relied upon by Team and City notwithstanding any
investigation made by Team and City.
(c) City represents, warrants and covenants to Team and ShoWare
as follows:
(i) It has the full right and legal authority to enter into and
fully perform this Agreement in accordance with its terms.
(ii) It has the right with Team to grant the Naming Rights to
ShoWare.
(iii) This Agreement, when executed and delivered by City
and Team, will be its legal, valid and binding obligation, enforceable against the
City in accordance with its terms, except to the extent that enforcement against the
City may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally.
(iv) The execution and delivery of this Agreement has been
duly authorized by the City, and the execution and delivery and the performance by
the City of its obligations under this Agreement does not and will not violate or
cause a breach of any agreements or obligations to which it is a party or by which it
is bound, and no additional approval or other action by any governmental authority
or agency is required in connection herewith.
(v) Each of the foregoing representations, warranties, and
covenants shall be true at all times during the Term of this Agreement. City
acknowledges that each of these representations, warranties and covenants are
material and have been relied upon by ShoWare notwithstanding any investigation
made by ShoWare.
14. Compliance with the Law. Whenever possible, each provision of this
Agreement shall be interpreted to be effective and valid under applicable law, but if
any provision of this Agreement or its application to any party or circumstance is
prohibited by or invalid under applicable law, that provision shall be ineffective only
to the extent of the prohibition or invalidity, without invalidating the remaining
provisions of this Agreement or without invalidating the application of that provision
or portion to other parties or circumstances.
15. Failure to Object Not a Waiver. The failure or delay of either party to
object to, or to take affirmative action with respect to, any conduct of the other
party that is in violation of any of the terms or provisions of this Agreement, or to
exercise rights or powers under this Agreement, shall not be construed, taken or
held to be a waiver of any default or acquiescence therein, or to impair the right or
ARENA NAMING AGREEMENT - 17
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
power or to waive any other default or any future breach of any terms or provisions
or of any other wrongful conduct.
16. Governing Law. This Agreement will be deemed to have been
executed and delivered in the State of Washington and will be construed and
interpreted exclusively according to the laws of that State.
17. WHL Constitution and Rules. The parties hereto expressly agree that
this Agreement is subject to the Constitution and Bylaws of the WHL and any
modifications that may be made to that Constitution or those Bylaws that may be
made from time to time during the term of this Agreement.
18. Entire Agreement.
(a) This Agreement constitutes the entire understanding and
agreement between the parties with respect to the grant of the Naming Rights to
ShoWare and supersedes any and all prior negotiations, understandings or
agreements. This Agreement may be amended only by written instrument signed
by all parties, specifically referring to this Agreement. The parties acknowledge
that separate agreements may be contemplated between Team and ShoWare and
the City will be provided copies of those agreements.
(b) City agrees that ShoWare has not, and by reason of entering
into this Agreement shall not, be deemed to have assumed any obligations to City
_ for the performance of any of the obligations of Team or City under the Arena
Agreement or otherwise.
19. Effective Date. This Agreement will take effect on the last date
entered below (the "Effective Date").
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives on the date first above written,
and each of the individuals executing this Agreement certifies that he or she is duly
authorized to do so.
THUNDERBIRD HOCKEY ENTERPRISES, LLC
By
Date 1,79 J `/ -2 2
VisionOne, Inc., d/b/a "ShoWare"
By
Its C T-- a
Date S1 17 O I Cc,
ARENA NAMING AGREEMENT - 18
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
CITY OF KENT
By
Its
Da S� 7 0
P:\0vil\Files\OpenFiIm\1071\N=ingRi ghtsAgmt-Final 0 5 0 809,docx
ARENA NAMING AGREEMENT - 19
Between Thunderbird Hockey Enterprises, City of Kent, and ShoWare
EXHIBIT 1
Naming Sponsor Fees
Year One (prorated): Jan. 1, 2009-July 31, 2009 (Total Payment: $175,000.00)
Installments: Nov. 1, 2008--$75,000.00
Feb. 1, 2009--$75,000.00
May 1, 2009--$25,000.00
Year Two: August 1, 2009-July 31, 2010 (Total Payment: $300,000.00)
Installments: Aug. 1, 2009--$75,000.00
Nov. 1, 2009--$75,000.00
Feb. 1, 2010--$75,000.00
May 1, 2010--$75,000.00
Year Three: August 1, 2010-July 31, 2011 (Total Payment $300,000.00)
Installments: Aug. 1, 2010--$75,000.00
Nov.1, 2010--$75,000.00
Feb. 1, 2011--$75,000.00
May 1, 2011--$75,000.00
Year Four: August 1, 2011-July 31, 2012 (Total Payment: $300,000.00)
Installments: Aug. 1, 2011--$75,000.00
Nov.1, 2011--$75,000.00
Feb. 1, 2012--$75,000.00
May 1, 2012--$75,000.00
Year Five: August 1, 2012-July 31, 2013 (Total Payment: $300,000.00)
Installments: Aug. 1, 2012--$75,000.00
Nov.1, 2012--$75,000.00
Feb. 1, 2013--$75,000.00
May 1, 2013--$75,000.00
Year Six: August 1, 2013-July 31, 2014 (Total Payment: $300,000.00)
Installments: Aug. 1, 2013--$75,000.00
Nov.1, 2013--$75,000.00
Feb. 1, 2014--$75,000.00
May 1, 2014--$75,000.00
Year Seven: August 1, 2014-July 31, 2015 (Total Payment: $300,000,00)
Installments: Aug. 1, 2014--$75,000.00
Nov.1, 2014--$75,000.00
Feb. 1, 2015--$75,000.00
May 1, 2015--$75,000.00
Year Eight: August 1, 2015—July 31, 2016 (Total Payment: $300,000.00)
Installments: Aug. 1, 2015--$75,000.00
Nov.1, 2015--$75,000.00
Feb. 1, 2016--$75,000.00
May 1, 2016--$75,000.00
Year Nine: August 1, 2016—July 31, 2017 (Total Payment: $300,000.00)
Installments: Aug. 1, 2016--$75,000.00
Nov.1, 2016--$75,000.00
Feb. 1, 2017--$75,000.00May 1, 2017--$75,000.00
Year Ten: August 1, 2017—July 31, 2018 (Total Payment: $300,000.00)
Installments: Aug. 1, 2017--$75,000.00
Nov.1, 2017--$75,000.00
Feb. 1, 2018--$75,000.00
May 1, 2018--$75,000.00
Year Eleven: August 1, 2018—July 31, 2019 (Total Payment: $300,000.00)
Installments: Aug. 1, 2018--$75,000.00
Nov.1, 2018--$75,000.00
Feb. 1, 2019--$75,000.00
May 1, 2019--$75,000.00
r.•
EXHIBIT 2
TICKETING AGREEMENT
TICKET SYSTEM USER AGREEMENT
This Ticketing Services Agreement(the"Agreement") is effective as of the 1 st day of
December, 2008 (the "Effective Date") by and between VISIONONE, Inc., (hereinafter "V-1"),
a California corporation, at 6781 North Palm Avenue, Suite 120, Fresno, California 93704-1074,
and SMG, a Pennsylvania general partnership at 625 W. James Street,Kent, Washington, 98032
("SMG"), an independent contractor managing the Kent Events Center, which name may be
subsequently changed pursuant to a naming rights agreement with V-1 (the"Facility") located
in the City of Kent, Washington(the "City").
In consideration of the mutual promises and covenants contained in this Agreement,the parties,
intending to be legally bound, agree as follows:
1. FACILITY: This Agreement pertains to the Facility located at: 625 W. James Street,
Kent, Washington, 98032.
2. DEFINITIONS: For purposes of this Agreement,the following terms will have the
respective meanings set forth below:
Access Control System: A computerized system using wireless handheld scanners,
which interfaces with the Ticket System for the purpose of verifying the authenticity of a
Ticket presented by a Customer for admission to the Facility.
Available Seats: Each and every Ticket that is offered for sale to the general public for a
particular Event.
Box Office: The location(s) at the Facility (as herein defined)where Tickets are sold.
Contract Year: For purposes of this Agreement, a Contract Year shall be defined as
October 1 through September 30 of each year this Agreement remains in effect.
Customer: A person, organization or other entity which purchases Tickets for Events
held at the Facility.
Distribution Channels: A point of sale including but not limited to, Retail Outlets, Call
Centers, and Internet.
Email Marketing Service: A comprehensive third party electronic communications
platform which enables SMG to create, deploy and manage electronic messaging
programs targeted to a designated group of recipients in the form of email marketing
campaigns, website "blogs," Customer survey and poll creation, at the discretion of the
SMG.
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TICKETING AGREEMENT
Equipment: The equipment listed or described in Exhibit A attached hereto and any
other equipment furnished by V-1 to SMG pursuant to this Agreement.
Event: Any performance, event or other entertainment activity that is scheduled to take
place, be presented or performed at the Facility, for which SMG has authority to sell
Tickets to the general public.
Facility: The building or venue at which SMG presents Events, and to which admission is
granted by the presentation of a Ticket.
Fan Club: A group of members officially recognized by a particular artist, band,
performer etc. or artist management to whom exclusive Ticket offers are provided.
Gross Ticket Proceeds: The total of all charges paid by a Customer, which include the
Ticket price, taxes, facility,parking or any other similar fees included during the sale of
Tickets purchased through the Ticket System.
House Seats: Tickets that are held by the SMG (e.g., complimentary, band holds and
venue holds) or provided to the promoter or presenter of an Event,the performing act or
Event or members thereof, or their managers or agents, or to others for legitimate
promotional or business purposes (collectively, "House Seat Recipients");provided,
however, that at no time shall such Tickets be sold or issued to the general public and
provided further that House Seats shall not include Tickets provided to fan clubs or
similar organizations.
Internet: the internet or any other online system whereby Customers can purchase
Tickets using Online Payment.
Kiosk: A computerized terminal contained in a cabinet and connected to the Ticket
System, which enables a Customer to purchase a Ticket or retrieve will-call Tickets.
Online Payment: online payment by means of a credit/debit card or other like online
payment method, using cards or a method approved in writing by SMG.
Per-Order Fulfillment Fee: The Per-Order amount payable by SMG to V-I fulfill
Ticket orders which are purchased through V-1 Internet as set forth on Exhibit B.
Per-Order Processing Fee: The Per-Order amount payable by SMG to V-1 for SMG's
use of V-I's third party Call Center as set forth on Exhibit B.
Per-Order Print at Home Fee: The Per-Order Print at Home Fee payable by SMG to V-
1 for SMG's use of print at home electronic ticket delivery as set forth on Exhibit B.
Per Ticket Fee: Per Ticket Fee is the amount charged by V-1 to SMG for the use of the
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EXHIBIT 2
TICKETING AGREEMENT
Ticket System as set forth on Exhibit B.
Primary Market: The initial purchases of Tickets to an Event sold by the venue or
performer.
Primary Ticketing: The initial sale of Tickets to an Event using a computerized
ticketing application.
Remote Administration: To remotely control or monitor a computer for the purpose of
support, maintenance, and troubleshooting via a third parry software such as
PCAnywhere, Terminal Services, or similar application.
Retail Outlet: A retail location that either SMG or a tenant of the facility has contracted
with to sell Tickets to Events (i.e. the same tickets made available through the Ticket
System).
Season/Contract Subscription Tickets: Specifically designated Tickets sold directly by
SMG or tenant on an annual, semi-annual or periodic basis.
Secondary Ticketing. The resale by a Ticket holder of a previously purchased and/or
unused Ticket to an Event utilizing an SMG approved computerized ticketing application.
Set-Up Fee: The amount charged by V-1 for establishment of SMG's access into the
Ticket System.
Software: V-1's proprietary software: ShoWareTM Software ticketing solution, which
includes a combination of various computer software modules, including a print at home
module where Tickets purchased online to be delivered to the Ticket purchaser's
computer and printed on the Ticket purchaser's printer, and electronic or"on-line"
documentation and reference materials (collectively, the "ShoWareTM Software").
V-1's Third Party Call Center: The service with which V-1 has contracted with to
enable a Customer to call a phone number, and communicate by live telephone operators
or automated Interactive Voice Response systems, if applicable, and purchase Tickets.
Ticket: Tangible evidence of the right to admission to and/or to participate in or occupy
seating at Events.
Ticket System: Ticket System shall mean exclusively,the ShoWareTM Software which is
a proprietary product, owned by V-1 and which is a complete box office ticketing solution
which provides for total in-house management of event schedules, advanced bookings,
reserve seating,ticket sales, report generation, and other business functions associated
with ticket sales. For the sake of clarity and notwithstanding anything to the contrary
contained herein, this Agreement and the Ticket System as presently designed, does not
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cover the secondary sale of Tickets by, or to, Customers.
3. LICENSE TO USE TICKET SYSTEM:
A. Grant of Non-exclusive License and Agreement to Use the Ticket System
Exclusively. In consideration of payment of the Per Ticket Fee as described in
Exhibit B,and in further consideration of SMG's agreement to abide by the
terms and conditions of this Agreement, V-1 hereby grants to SMG,and SMG
hereby accepts, a non-exclusive,non-transferable and non-assignable (except as
set forth in Section 19 below) license to use the ShoWareTM Software (the
"License"), in connection with the sale of Tickets to Events, but only in
accordance with the terms and conditions of this Agreement, including any
Exhibits attached hereto. SMG shall not have the right to grant sublicenses
under the License. Except as provided in Section 33 below, SMG agrees that it
will only sell Tickets to Events in the Primary Market through the Ticket System.
SMG agrees that it will not enter into any agreement with any other computerized
ticketing service or agency to issue or cause to be issued Tickets in the Primary
Market for any Events, nor permit any other party to sell by allocation,voucher or
otherwise, Tickets for any Event, except through the use of the Ticket System.
SMG further warrants that, at the time of execution of this Agreement, it is not
bound contractually with any other ticketing service, agency or software provider.
B. Sales by SMG Without Use of the Ticket System. Notwithstanding Subsection
3.A above, SMG may sell Tickets without use of the Ticket System as follows:
(1) With regard to Secondary Ticketing, SMG will have the discretion to
contract with any third party computerized ticketing service.
(2) In the event that SMG is required by the terms of a separate promotional,
ticketing services or similar agreement for Ticket sales to legitimate Fan
Clubs,then SMG may sell Tickets through a ticketing services provider
other than V-1,provided however,that any such sale shall be through a
"Web only"promotional On Sale; (the"Promotional Allocation").
Promotional Allocation tickets may not to exceed Ten Percent(10%) of
total Tickets sold for each Event.
(3) It is understood and agreed that from time to time, an individual Event
(other than a concert or family event), such as a sporting Event(e.g.,
NCAA tournament),trade/consumer show, certain charitable functions,
and certain gospel and Christian attractions,may by the nature of the
event, require that pre-printed tickets or registrations be issued or
distributed for sale through ticket distribution channels other than the
Ticket System that are more appropriate for sales of tickets to that
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particular event,provided that the sale of such tickets are in accordance
with past practices for such types of attractions and are mutually agreed
upon in advance by the parties hereto,and provided further that no other
computerized ticketing service is used for such distribution.
(4) SMG may provide a reasonable number of House Seats for any Event to
House Seat Recipients.
C. Ticket Price. SMG will establish the face price of all Tickets sold through the
Ticket System. SMG will collect the face price of each Ticket plus any and all
other fees associated with such Tickets as applicable from each Customer.
4. TERM: This Agreement shall commence on the Effective Date and shall remain in
effect through September 30, 2013 (the "Term"). Upon mutual written agreement by
the parties hereto at least ninety(90)days prior to the end of the Term,this Agreement
may be extended for an additional five (5)year term and the defined term"Term" shall
upon such renewal be deemed to refer to such extension period.
5. CHARGES PAID BY SMG: From the Gross Ticket Proceeds, SMG shall pay to V-1,
the fees set forth on Exhibit B attached hereto and made a part hereof. V-1 has waived
all Set-Up Fees. All invoices will be due and payable within thirty (30) days of their
date. In the event that any invoice is not paid within the above thirty (30)day period,
then V-1 shall provide written notice to SMG and in the event that SMG does not pay the
amount due and payable under such invoice within ten(10) days of such notice from V-1,
then V-1 shall have the right to charge interest on past due amounts at the rate of one and
one-half percent(1 %2%)per month until paid. All payments will be in U. S. Dollars,
payable to VisionOne,Inc., 6781 North Palm, Suite 120,Fresno, CA 93704.
6. TICKET SALES PROCEDURES:
A. Box Office Sales. All Box Office Ticket sales will be through the Ticket System
pursuant to the terms and conditions of this Agreement. SMG will be responsible for the
staffing and management of the Box Office.
B. V-1 Distribution Channel Sales.
(1) Internet Sales. V-1 may offer Tickets for sale through the Internet. All
Internet sales will be paid for by an Online Payment.
(2) V-1 Third Party Call Centers. At SMG's option and upon thirty (30)
days prior written notice from SMG to V-1,V-1 will make available to
SMG V-1's Third parry Call Center(s) and shall provide staffing and
service levels consistent with prevailing industry standards and practices.
V-1 agents will enter all telephone sales into the Ticket System. All
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telephone sales will be paid for by an Online Payment.
Call Center Hours:
Weekdays:
PST: 8AM-4PM(2PM FRI)MST: 9AM-5PM(3PM FRI)
CST: LOAM-6PM (4PM FRI) EST: 11AM-7PM(5PM FRI)
In the event that a public on sale for an event occurs outside of the posted
week day times,then the call center will be available on that day from
PST: LOAM to 4PM without any additional charge. In such event, SMG
will promptly provide as much notice as possible once such on sale date is
established.
Extended hours or days are available for an additional flat charge.
All telephone sales will incur online fees and call center fees as set forth
on Exhibit B, all of which shall be paid to V-1 by SMG
(3) Kiosk Sales. At the request and expense of SMG, V-1 will make
available properly equipped kiosks for the sale and/or delivery of Tickets
employing the Ticket System. All Kiosk sales will be paid for by an
Online Payment.
(4) Fulfillment. Unless otherwise mutually agreed in writing in advance by
SMG and V-1,Tickets purchased through V-1 Third Party Call Centers or
the Internet eight(8)days or more in advance of an Event will, at the
Customer's request,be mailed by V-1 or the V-1 Third Party Call Center
to the Customer, and V-1 will be responsible for all initial costs of
delivering such Tickets, subject to reimbursement as provided on Exhibit
B. SMG will pay V-1 the fees for fulfillment as outlined in Exhibit B.
All Tickets not delivered to Customers will be pulled off the Ticket
System by SMG and/or tenant and held for the Customer at a"will call"
window at the Box Office or such other method that the Facility uses to
admit such Customers.
C. Chargebacks. V-1 shall be responsible for any Chargebacks that SMG is
assessed by its merchant bank due to a Ticket System error, V-1's negligence or
misconduct. SMG shall be responsible for any Chargebacks resulting from its
negligence or misconduct or related to the Event(e.g., Chargebacks related to
Ticket purchaser's dissatisfaction with the Event) as opposed to the Ticket
purchase process. V-1 will not be responsible for any chargebacks other than
those resulting directly from V-1's negligence or misconduct.
D. For purposes of this Agreement, "Chargebacks" shall mean the amounts that the
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merchant bank is charged back by a cardholder or a card issuer under the card
organization's rules (e.g., cardholder dispute, fraud, declined transaction,returned
Tickets for cancelled events, etc.). With respect to those Chargebacks for which
the V-1 is responsible hereunder, SMG will have the right to invoice V-1 for such
Chargebacks or set-off against monies owed to V-1. If invoiced,V-1 agrees to
pay all such Chargeback invoices within fifteen(15)days of receipt. SMG will
furnish V-1 with all documentation concerning such Customer Chargebacks
pertaining to such Events. SMG agrees that it will take all commercially
reasonable steps to collect such Chargebacks. SMG agrees that its Box Office
staff will verify Customer identification against any credit card, which is
presented for payment of Tickets. The parties acknowledge that due to credit card
association rules, standard Chargebacks under this Agreement may occur up to
twelve (12)months from the date in which a Customer has purchased a Ticket
through the Ticket System. Those Chargebacks,which are the result of fraud,
have no timeframe limitation on Customer's ability to recover such charges.
E. Cancellations. If an Event is cancelled or closed after Tickets have been sold,
SMG agrees to assume all responsibilities with regard to refunds, exchanges
and/or resolution of Customer inquiries or issues. V1 agrees to process such
refunds (for which SMG will provide the funding therefor) or exchanges for sales
processed through the call center and on line for a period of up to one (1)year
after the originally scheduled date of the Event. Such refunds may be processed
by VI on behalf of SMG without charge. If an Event is cancelled or closed after
Tickets have been sold, SMG may instruct V-1, and V-1 agrees,to communicate
with Customers regarding such cancellation or closure.
F. Postponed/Rescheduled Events/Exchanges. If an Event is postponed and/or
rescheduled,V-1 will process refunds (for which SMG will provide the funding
therefor) and/or exchanges call center and on line refunds or exchanges if,and as,
directed by SMG. An exchanged Ticket may be returned to the Ticket System
without charge. No additional compensation shall be payable to, or fee assessed
by, V-1 with respect to such exchange or refund of Tickets hereunder.
7. Financial Conditions.
A. Account Procedures.
(1) SMG will be responsible for the collection and distribution of all revenues
for Tickets.
(2) V-1 will invoice SMG for all Fees set forth in Section 5 above on a
monthly basis with regard to the previous month. V-1 will provide a
report of all Ticket transactions performed under the Ticket System.
Payments to V-1 shall be remitted on a net thirty(30) day basis.
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B. Taxes.
(1) SMG Purchased Products and Services. SMG will be responsible for
the payment of any and all business license fees, gross receipt,personal
property, sales, and use taxes based on the products and services provided
in connection with the operation of the Facility with respect to Events
which are chargeable to SMG under applicable law. V-1 will be
responsible for the payment of any and all business license fees, gross
receipt,personal property, sales, and use taxes based on the products and
services provided to SMG by V-1 pursuant to this Agreement which are
chargeable to V-1 under applicable law(including the provision of
equipment described herein).
(2) Consumer Ticket Sales. If any governmental entity imposes a sales,
excise,use, amusement, entertainment or other tax or assessment or
charge on the admission, Ticket, right to occupy a seat at an Event, SMG
is responsible for determining any required tax or assessment, ensuring
that the tax or assessment is included in the face value of the Ticket or in
the full Ticket purchase price, and that such tax information is provided to
V-1. Tax amounts are included in the Gross Ticket Proceeds at the time of
settlement. SMG is responsible for remitting any such tax to the
appropriate taxing authority and make, execute, and complete any and all
reports or returns required by law and shall indemnify, defend and hold V-
1 harmless therefrom
8. Equipment.
A. Equipment Provided to SMG. V-1 will provide, at its expense, the Equipment
listed in Exhibit A in the time frames described on such Exhibit. Also, if V-1
develops new technologies for the sale and distribution of Tickets and/or
otherwise alters its Ticket System, SMG shall have the right to approve the use of
such technologies with respect to the Facility and the terms of such usage which
approval shall not be unreasonably withheld or delayed.
B. V-1's Property. SMG understands and acknowledges that all Equipment is and
will remain V-1's property. SMG will acquire no ownership interest in, and will
have no right to transfer, license the use of, or encumber any Equipment. V-1 will
be responsible for the repair and maintenance of all Equipment.
C. SMG's Responsibilities. SMG will provide, at its expense, an electrical and data
connection to furnish power to the Equipment. SMG will pay the cost of all
electricity and other utilities consumed by the operation of the Equipment.
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D. Training and Use of the Equipment. V-1 will provide training for SMG's
personnel in the use of the Ticket System and the care and operation of the
Equipment. Only those employees of SMG and tenants of the Facility who have
been trained by V-1, or by a V-I trained employee of SMG, will use the
Equipment. SMG will not permit any person not employed by SMG, or any
untrained employee of SMG,to use the Equipment. SMG will only use and will
only permit the use of the Equipment for operating the Ticket System and no
other purpose. SMG will use the Equipment strictly in accordance with the
instructions of V-1.
E. Loss and Damage. SMG assumes and will bear the entire risk of loss and
damage to the Equipment, ordinary wear and tear excepted,whether or not
insured against, until the Equipment is returned to V-1.
F. Equipment Tags. SMG will not remove, cover or alter any labels, plates or
other markings identifying each item of Equipment.
G. Location and Right of Inspection. SMG will not move any Equipment from
the location where it is installed, or make any addition or alteration without V-1's
prior written consent. V-1 will have the right, at any time during normal
business hours and upon reasonable notice,to inspect or service the Equipment
and for that purpose to have access to the Equipment.
H. Return of Equipment. Upon the expiration or termination of this Agreement,
SMG will return all Equipment to V-I in good working condition, reasonable
wear and tear excepted.
I. Remote Administration. SMG acknowledges that V-I's ability to perform
support for the Access Control System will require the use of Remote
Administration on the Access Control System server. It is understood that V-I
or one of its authorized partners has the right to perform Remote Administration
to the Access Control System server as required.
9. Right to Use the Ticket System,Access Control System,Kiosks and Email
Marketing Service.
A. Ticket System,Access Control System and Kiosks.
1. Access. Access to the Ticket System,Access Control System, Kiosks and
the use of V-1 software is provided to SMG as a licensed user only. V-I
hereby grants to SMG a nonexclusive, royalty-free license to use the
Ticket System,Access Control System and Kiosks, including all software
provided by V-1, only in connection with services provided pursuant to
this Agreement.
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2. Ownership. All software provided by V-1, either separately or embedded
within the Ticket System,Access Control System and Kiosks, is the
property of V-1 and SMG nor any other party,will not acquire any rights
or licenses,except as expressly granted herein. SMG agrees not to copy,
reverse compile or reverse assemble all or any portion of such software.
B. Email Marketing.
1. Email Marketing. V-1 will provide SMG with a unique user ID to access
Marketing tools which shall be selected by V-1, subject to SMG's
reasonable approval.
2. Access to Email Marketing Service. SMG acknowledges and agrees that
access to the Email Marketing Service is provided to SMG as a registered
user only. Subject to the provisions of this Agreement,V-1 hereby grants
to SMG a nonexclusive, non-transferable, limited,revocable right to
access and use the Email Marketing Service only in connection with
services provided pursuant to this Agreement and to the extent that SMG
is not in default under this Agreement.
3. Ownership. The Email Marketing Service and any and all software that is
or may become embedded therein is the proprietary property of V-1.
SMG will not acquire any rights or licenses other than the right to use the
Email Marketing Service as expressly provided herein. SMG agrees that it
will not, nor will it enable or otherwise allow any other person or entity to
distribute, copy, reverse engineer,reverse compile, disassemble, enhance,
modify or make derivative works of the Email Marketing Service or any
portion thereof.
4. Unique User Login ID. V-1 agrees to provide to SMG a unique user
login ID which will enable SMG to access the Email Marketing Service
for the limited purposes as described herein. SMG acknowledges and
agrees that it will not enable itself or any other party to access the Email
Marketing Service without the use of a user login ID issued from V-1 in
accordance with the terms of this Agreement. V-1 reserves the right to
disable any user login ID in the event V-1 determines that SMG has
breached any provision of this Agreement and has not cured such breach
as set forth in Section 15 below. SMG acknowledges and agrees that V-1
disabling any such user login ID will not limit any other remedy available
to V-1 either under this Agreement, at law or in equity.
5. Training. V-1 will provide training for SMG's personnel in the use of the
Email Marketing Service on dates and at times as mutually agreed
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between the parties. The parties agree that initial training on use of the
Email Marketing Service will be provided by V-1 at no cost to SMG. Any
additional training and associated charges will be mutually agreed
between the parties prior to the commencement of any such additional
training. Only those employees of SMG who have been trained by V-1, or
by a V-1 trained employee of SMG will be authorized to use the Email
Marketing Service.
6. Permitted Use. SMG agrees that in its use of the Email Marketing
Service it shall remain at all times in compliance with all applicable
Federal and State privacy and anti-spam legislation, including but not
limited to adhering to the requests of any recipients that have opted-out
from receiving any further communications distributed by SMG. In
addition to the foregoing,V-1 reserves the right to refuse to distribute any
communications distributed through the Email Marketing Service,which
in its reasonable discretion violates any applicable law or regulation,
contains malicious content or false advertising. SMG acknowledges and
agrees that the Email Marketing Service is only available for use for
Events for which Tickets are sold through the Ticket System.
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10. Advertising.
A. V-1. V-1 may list Events in its promotional displays located on the Internet,mail-
out envelopes, and other advertising and promotional materials used by V-1, and
may otherwise promote and advertise the SMG, Facility and any Events in
advertisements placed directly by V-1 or in conjunction with others. Under
separate agreement, V-1 and SMG will negotiate in good faith the use, if any,by
V-1 of SMG's logo pursuant to a license agreement that includes appropriate
provisions dealing with quality control,whereby the licensee provides warranties
as to quality and the licensor has prior rights to inspection of use and monitoring.
11. Other Obligations of V-1.
A. Central Computer Facility. V-1 will, at its expense, install and maintain a
central computer facility, at a location selected by V-1,for the operation of a
computerized ticketing system capable of serving SMG and tenants and otherwise
performing V-1's obligations under this Agreement. V-1 will host the Ticket
System for SMG on one or more of V-I's servers. Given V-1's performance
criteria set forth in Section 11.1 and its other obligations set forth herein,V-1 will
determine if solution is hosted on a non-exclusive application service provider
basis or if solution will require a dedicated server. V-1 will allocate sufficient
bandwidth to optimize the application in its reasonable discretion. V-1 agrees to
take commercially reasonable steps to cause the Ticket System to be available as
set forth herein during the term of this Agreement and to provide back-up on a
regular basis in accordance with V-I's normal and customary procedures. SMG
will pay the cost of installing and maintaining a dedicated data line from V-1's
central computer to each Ticketing Terminal with DSL or faster speed.
B. Software. V-1 will provide necessary software and support for Ticket System
programming to be performed by SMG's Box Office personnel for Ticket sales
for each Event.
C. Ticket Stock. V-1 will furnish, free of charge, all ticket stock necessary to sell
Tickets through the Ticket System. SMG shall have the right to sell advertising
on Ticket stock printed or sold at the Facility Box Office and Ticket envelopes
and(ii) Tickets printed at home provided by V-1. If SMG chooses to use ticket
stock other than that provided by V-1, SMG agrees that such ticket stock must
meet V-1's specifications and will be paid for by SMG
D. Ticket Sales to General Public. V-1 will not remove any Tickets from the
Available Seats inventory in the Ticket System for purposes other than
completing a sale to a member of the general public who appears in person at the
Box Office, or through the V-1 Call Center or Internet Sales unless otherwise
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agreed to by SMG.
E. No Minimum Sales. It is understood that SMG does not guarantee that any
minimum or fixed number of Tickets will be sold through the Ticket System.
F. Access Control. V-1 will provide SMG with a hand-held Access Control
System. Specific Access Control System Equipment to be provided is set forth in
Exhibit A.
G. Accounting Records/Audit. V-1 shall maintain full and accurate records for all
Tickets sold under the Ticket System. Such records shall be subject to audit by
SMG following prior reasonable written notice to V-1. Any such audit shall be
conducted during regular business hours at V-1's corporate offices and in such a
manner as not to interfere with V-1's normal business activities. In no event shall
the audits be made hereunder more frequently than once annually, nor shall the
records supporting any statements be audited more than once.
H. Insurance. V-1 agrees to procure and maintain without the additional expense to
SMG,throughout the term of this Agreement, insurance of the kinds and in the
amounts provided under Exhibit C attached hereto.
1. Ticket System Availability and Service Interruption. The Ticket System will
be available to complete transactions seven(7) days per-week,twenty-four(24)
hours per-day, for an average of ninety-nine percent(99%) of the time per-
calendar year throughout the term of this Agreement,with the exception of
Scheduled Maintenance (as hereafter defined). V-1 represents and warrants that
the Ticket System will be available as stated in this Section 11.I,provided
however,V-1 disclaims any warranty provided herein to the extent that any
unavailability of the Ticket System is the result of a Force Majeure Event(as
hereafter defined), the negligence or misconduct acts of SMG, its employees and
agents or any third party, or the failure of equipment which is beyond the direct
control of V-1. Notwithstanding the foregoing sentence, if V-1 has actual
knowledge, or under the circumstances should reasonably know that any repeated
unavailability of the Ticket System is due to the nonperformance of a third party
service provider, or the failure of an identifiable component of equipment
necessary for the continued availability of the Ticket System,then in such
instances, V-1 will use commercially reasonable efforts to promptly replace such
non-performing third party service provider or failed equipment as soon as
reasonably practicable.
J. Scheduled Maintenance. From time to time during the Term and with at least
seventy-two(72)hours prior written notice to SMG,V-1 will conduct scheduled
maintenance of its systems for the purposes of, among other things, software
updates, hardware maintenance, data back-up, system integrity validation,
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security updates and any other maintenance and/or repairs deemed reasonably
necessary by V-1 ("Scheduled Maintenance"). All such Scheduled Maintenance
shall occur after 11:00pm Pacific Time.
K. Email Marketing Service. As part of the Email Marketing Service described
above,V-1 agrees to (i)perform all required set up and configuration functions,
(ii)provide training on use of the Email Marketing Service, (iii)provide support
services, (iv) assist SMG in obtaining one (1)whitelisted IP address, and (iv)
create three (3) standard templates for SMG(calendar template, single event
template and general information template)which will include SMG's logo
(subject to l0A). SMG acknowledges and agrees that the Email Marketing
Service is licensed by V-1 from a third parry provider and is subject to such third
party provider's regularly scheduled maintenance. V-1 agrees to use
commercially reasonable efforts to include in its agreement with such third party
provider a provision requiring 72 hours advance notice of any scheduled
maintenance and V1 will immediately pass on such notice to SMG. V-1 and its
licensor agrees that any and all patron data created and stored within the Email
Marketing Service by SMG is owned by SMG, and V-1 will have no rights to
utilize any such patron data for any purpose unless otherwise expressly agreed to
by SMG. V-1 has provided or will provide upon request SMG a copy of V-1's
disaster recovery plan,which shall in all material respects be reasonably
acceptable to SMG.
12. Other Obligations of SMG.
A. Access. SMG will give V-1 reasonable access to the SMG's offices,the Facility
and the Box Office to provide training, maintenance, repair, assistance or other
related services for the purpose of effectuating this Agreement and performing V-
1's duties hereunder.
B. Insurance. SMG will maintain throughout the term hereof, at its expense,
primary insurance coverage,with V-1 as an additional named insured thereunder,
insuring the Equipment and all supplies and materials provided by V-1 to SMG
against loss or damage by fire,theft and all other risks embraced by extended
coverage. Such insurance policy will provide full replacement value coverage
and will include a specific endorsement to the effect that V-1 will receive at least
30 days prior written notice of the modification or cancellation thereof. SMG will
furnish to V-1 a certificate of insurance from the insurer evidencing the insurance
coverage required by this Subsection.
C. Box Office. SMG agrees to maintain only one location serving as the Box Office
where Customers who appear in person may purchase Tickets to Events without
payment of a Convenience Charge. Subject to Section 11.0 above, SMG agrees
to use Ticket stock and envelopes provided by V-1 for all Ticket Box Office sales.
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D. Compliance. SMG warrants that it has all necessary rights to authorize the sale
of Tickets for all Events and that the number of seats put on sale for an Event will
not exceed the legal, fire or other limits or restrictions of capacity at the Facility.
E. Ticket Availability. SMG agrees that all Available Seats will be open for sale
through the Ticket System and that subject to Section 3.13 above,no Tickets will
be pre-pulled for the Box Office or any other ticket agency. Tickets will go on
sale to the general public through the Ticket System at the same time they are first
available at the Box Office. SMG agrees that it will honor or cause to be honored
all Tickets properly issued by the Ticket System for all Events.
F. Use of SMG's Hardware. If SMG elects to use its own computer workstations
to connect to the Ticket System, SMG will assume all risks of damage or loss to
its own equipment, data or software resulting from such use and will indemnify
V-1 for any damage done to its Equipment.
G. Access Control. SMG will work with V-1 to incorporate the applicable online
offerings, as mutually agreed.
H. Access Control System Data Communication. SMG will be responsible for all
costs of data connectivity(including any required cabling)between the Access
Control System server and Access Control System wireless access points as well
as all providing the applicable power supply connections. SMG to provide V-1
with FTP access to Access Control System Data Communication. FTP will be
used to transfer ShoWare tickets to Access Control System Data Communication.
13. Reports. V-1 will make available to SMG standard industry reports detailing
patron information and Ticket sales information. SMG may request additional
reports that are customary in the industry and V-1 shall fulfill such report requests
without additional expense to SMG in a mutually agreed time frame.
14. Indemnification.
A. SMG. To the extent allowed by applicable law, SMG will defend, indemnify and
hold V-1, its owners, officers, directors, employees and agents harmless from and
against any and all claims, suits, damages, liabilities, costs, and expenses,
including reasonable attorneys' fees,resulting directly or indirectly from(i)any
material breach of SMG's covenants, warranties and representations under this
Agreement; (ii) SMG's intentional or negligent acts,mistakes, or omissions in
performance of this Agreement, or(iii)the violation by SMG of any Federal,
State or local statute,rule or ordinance involving the activities of SMG and its
agents in connection with any Event or the sale of Tickets to any Event. V-1 will
give SMG prompt notice of any claim or suit coming within the purview of this
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indemnification, will furnish SMG with all relevant facts in its possession or
under its control, and will cooperate fully with SMG in the defense of any matter
covered by this indemnification. The respective indemnification rights and
obligations set forth herein will continue in full force and effect notwithstanding
the expiration or termination of this Agreement.
B. V-1. To the extent allowed by applicable law, V-1 will defend, indemnify and
hold SMG, its owners, officers, directors, employees and agents harmless from
and against any and all claims, suits, damages, liabilities, costs and expenses,
including reasonable attorneys'fees, resulting directly or indirectly from(i) any
material breach of V-1's covenants,warranties and representations under this
Agreement, (ii) failure of the Ticket System to perform as provided in this
Agreement,provided, however,that such failure was not caused by any acts or
omissions of SMG, or its agents or employees, (iii)V-1's intentional or negligent
acts, mistakes, or omissions in performance of this Agreement, or(iv)the
violation by V-1 of any Federal, State or local statute, rule or ordinance involving
the activities of V-1 and its agents in connection with the performance of its
services hereunder. SMG will give V-1 prompt notice of any claim or suit
coming within the purview of this indemnity,will furnish V-1 with all relevant
facts in its possession or under its control, and will cooperate fully with V-1 in its
defense of any matter covered by this indemnity.
C. Survival. The respective indemnification rights and obligations set forth herein
will continue in full force and effect notwithstanding the expiration or termination
of this Agreement.
15. Default.
A. The following shall constitute an event of default under this Agreement:
(i) If either party fails to perform any of its obligations contained herein and
such failure continues for a period of thirty (30)days after the defaulting
party has received written notice thereof,then that party will be deemed in
default; or
(ii) In the case of V-1, all as determined by SMG in its reasonable discretion:
(a) any two (2)consecutive Ticket Systems Failures (which are
defined as SMG's inability to process Ticket orders for an Event
during the first thirty (30)minutes of Ticket sales for such Event
attributable to an error,breakdown, flaw,or other defect in the
Ticket System or the lack of capacity of the Ticket System to
handle the volume of requested ticket sales that is not due to(1)
any matter described in Section 20 below, (2) any breakdown,
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interruption, failure, shutdown or defect in utility service or
internet access to the Facility or other location where the Ticket
System is running, or(3)that is due in whole or in part to any act
or omission of SMG or its agents),where such Failures materially
prevent the sale of Tickets or an inordinate delay in the operation
of the Ticket System during pre-sale or public on-sale to fulfill
Ticket requests (defined as a delay that materially prevents the
Ticket System to fulfill Ticket orders), or
(b) excluding scheduled Ticket System maintenance, where the Ticket
System is unable to process Ticket sales for a continuous period of
two (2)hours in any twenty-four(24)hour period, or for a
cumulative period of twenty-four(24)hours during any rolling
thirty (30) day period, except to the extent that such failure to
process Ticket sales is that is not due to any matter described in
Section 20, or any breakdown, interruption, failure, shutdown or
defect in utility service or internet access to the Facility or other
location where the Ticket System is running, or caused in whole or
part,by the acts or omissions of SMG or its Agents.
(iii) The filing of any voluntary or involuntary petition against the other party
under the bankruptcy or insolvency laws of any applicable jurisdiction,
which petition is not dismissed within sixty (60)days of filing, or upon
any appointment of a receiver for all or any portion of the other party's
business, or any assignment of all or substantially all of the assets of such
other party for the benefit of creditors;
B. Upon the occurrence of an event of default,the non-defaulting party will have all
the remedies available at law or in equity and, in addition,the non-defaulting
party may terminate this Agreement immediately upon thirty (30)days prior
written notice to the defaulting party. Without limiting the generality of the
foregoing, if SMG is the party in default, V-1 may after such notice period
suspend the sale of Tickets for Events, and enter the Facility, Offices or any other
location to repossess and remove any Software and all supplies and other
materials that were furnished by V-1 to SMG. Additionally,without limiting the
generality of the foregoing, if V-1 is the party in default, SMG may after such
notice period require V-1, at its own cost and expense, to remove all Equipment
and if applicable, all software from the Facility and leave the Facility in a clean,
proper and orderly condition.
C. Notwithstanding anything to the contrary contained herein, in connection with the
expiration or termination of this Agreement for any reason, V-1 agrees to and
shall cooperate with SMG in effecting a smooth transition to another ticketing
company, including without limitation providing reasonable assistance in the
17
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
transfer of any outstanding Ticket sale information and historical Ticket purchaser
information(including email addresses of past Ticket purchasers)to such
successor company.
16. Disclaimer of Warranties. V-I DISCLAIMS AND EXCLUDES ANY AND ALL
WARRANTIES,EXCEPT FOR THOSE EXPRESSLY SET FORTH HEREIN,
INCLUDING WITHOUT LIMITATION,IMPLIED WARRANTIES OF
MERCHANTABILITY WITH RESPECT TO THE TICKET SYSTEM AND THE
EQUIPMENT,TICKET STOCK, SUPPLIES,MATERIALS AND SERVICES
PROVIDED BY V-1 PURSUANT TO THIS AGREEMENT.
17. Independent Contractors. Both parties are independent contractors.Nothing in this
Agreement will be deemed to create an agency,partnership,joint venture, or
employer/employee relationship. Neither party will be liable for the debts or obligations
of the other.
18. Compliance with Law. SMG and V-I will comply with all laws,regulations and
ordinances applicable to each of them in connection with the operation of the Ticket
System and their respective business activities,and each will obtain any permits and
licenses required by any applicable law, regulation, statute,or ordinance, including,
without limitation,the Americans With Disabilities Act.
19. Assignment.
A. SMG. SMG may not assign,transfer,pledge, or encumber all or any part of its
interest in this Agreement, or any proceeds from the sale of Tickets without V-1's
prior written consent,which consent will not be unreasonably withheld or
delayed. Notwithstanding the foregoing,no consent will be required where
SMG's successor-in-interest acquires all or substantially all of SMG's business
and assets,whether by purchase,merger, operation of law, or otherwise. In such
an event, SMG's successor will assume all the rights and obligations of SMG
under this Agreement,and,provided V-1 consents to such successor in writing
(which consent will not be unreasonably withheld or delayed), SMG will be
relieved of any further obligations hereunder.
B. V-1. V-I may not assign,transfer,pledge, or encumber all or any part of its
interest in this Agreement without SMG's prior written consent,which consent
will not be unreasonably withheld or delayed. Except for the assignment to a
direct competitor of SMG, including companies that substantively engage in the
management of public assembly facilities, no consent will be required where V-
1's successor-in-interest acquires all or substantially all of V-1's business and
assets,whether by purchase,merger, operation of law, or otherwise. In the event
of a transfer for which SMG's consent is required, SMG shall have ninety (90)
days from its notification of the transfer within which to give or withhold its
18
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
1*4W_ NNW
EXHIBIT 2
TICKETING AGREEMENT
consent. Failure to respond will be deemed SMG's consent. In the event that
SMG declines to consent to such transfer,this Agreement shall terminate without
such termination being deemed a default by either party. In such an event,V-1's
successor will assume all the rights and obligations of V-1 under this Agreement,
and,provided that SMG consents to such successor in writing(which consent will
not be unreasonably withheld or delayed),V-I will be relieved of any further
obligations hereunder.Notwithstanding the foregoing further,V-I may
collaterally assign its rights to revenues hereunder to its lender(s),provided such
assignment does not include V-1's other rights hereunder or its obligations
hereunder.
C. Successors. Subject to the foregoing provisions,this Agreement will be binding
upon and inure to the benefit of the parties and their respective successors and assignees.
20. Force Majeure. Neither party will be liable to the other for damages in the event of any
loss, damage, claim, delay or default arising by reason of Acts of God, storm, fire, flood,
earthquake, labor disturbance(including strikes,boycotts, lockouts, etc.),war or
terrorism,vandalism to V-I's computer system, civil commotion, shortages or
unavailability of labor,present or future governmental law, ordinance, rule, or regulation,
disruption of postal, banking, electrical,telephone or other utility service (each, a"Force
Majeure Event").
21. Bankruptcy. If either party is adjudged bankrupt,makes an assignment for the benefit of
creditors, files a petition for reorganization, arrangement or other relief under any
bankruptcy or insolvency law, or if a receiver, custodian, or trustee is appointed for either
party, such party will give the other party prompt written notice thereof. In the event of
any of the foregoing,this Agreement will not be deemed an asset of such party and the
other party may terminate this Agreement immediately upon written notice to such party.
If SMG is the party involved in those proceedings, none of the Equipment will be deemed
an asset of SMG.
22. Miscellaneous.
A. Notices. Any notice or other communication to V-1 or to SMG will be deemed
properly given if such notice or communication is in writing and is sent by first
class mail,postage pre-paid,return receipt requested, or by traceable courier
service (such as UPS or FedEx)to the address set forth herein or such other
address as each party may designate by notice given in accordance with this
Section.
B. Attorneys' Fees. In the event of any action at law or in equity in relation to this
Agreement,the substantially prevailing party will be entitled to a reasonable sum
for its attorneys' fees.
19
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
C. Severability. If any one or more of the provisions of this Agreement or the
application of any such provision to a specific situation will be held invalid or
unenforceable, such provision will be modified to the minimum extent necessary
to make it or its application valid, and the enforceability of all other provision of
this Agreement and all other applications of such provision will not be affected
thereby.
D. No Waiver. Unless specifically agreed to the contrary in writing, (i)the failure
by either party at any time to require performance by the other of any provision of
this Agreement shall not affect such party's right thereafter to enforce such
provision; (ii)no waiver by either party of any subsequent default; and(iii)no
extension of time granted by either party for the performance of any obligation of
the other shall be deemed to be an extension of the time for performance of any
other obligation hereunder
E. Applicable Law. This agreement is governed by, and construed in accordance
with,the laws of the state of Washington.
F. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior agreements,written or oral,relating to the
subject matter hereof. This Agreement may not be altered or amended in any
manner except by a written instrument signed by the parties hereto. The headings
contained in this Agreement are inserted only as a matter of convenience and
reference, and in no way define, limit or describe the scope or intent of this
Agreement.
G. Counterparts. This Agreement may be executed in any number of counterparts,
each of which,when executed,will be an original and all of which together will
constitute one and the same agreement.
H. Confidentiality. SMG agrees that the terms of this Agreement will be
confidential and will not be disclosed to any third party, unless required by law,
without the prior written approval of V-1.
I. Protection of Proprietary Interests. Each party agrees that all code, inventions,
algorithms,know-how, documentation and all other business,technical and
financial information obtained from the other party during the Term of this
Agreement are the confidential and proprietary property of the disclosing party
("Proprietary Information' of the disclosing party). Except as expressly
provided herein,the receiving party will hold in confidence and not use or
disclose any Proprietary Information of the disclosing party and will similarly
bind its employees in writing. The receiving party will not be obligated under this
Section with respect to information the receiving party can document: (i) is or has
become readily publicly available without restriction through no fault of the
20
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
receiving parry or its employees or agents; (ii) is received without restriction from
a third party lawfully in possession of such information and lawfully empowered
to disclose such information; or(iii)was rightfully in the possession of the
receiving party without restriction prior to its disclosure by the other party; or(iv)
was independently developed by employees or consultants of the receiving party
without access to such Proprietary Information.
J. Authority. Each party represents and warrants that it has full right and authority
to enter into and perform this Agreement in accordance with the terms hereof.
K. Compliance with Privacy Laws: SMG agrees to comply with all privacy laws
with respect to the personal information of ticket purchasers that is collected by
V-1 and subsequently shared with SMG for any reason. SMG agrees to
indemnify and hold harmless V-1 with respect to SMG's use of the personal
information of ticket purchasers that is collected by V-1 and subsequently shared
with SMG for any reason.
IN WITNESS WHEREOF,V-1 and SMG have each executed this Agreement on the date set
forth below.
SMG VISIONONE,Inc.
�- Authorized Signature Authorized Signature
Name (Type or Print) Name (Type or Print)
Title (Type or Print) Title (Type or Print)
With a copy to
SMG
300 Four Falls Corporate Center
300 Conshohocken State Road
21
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
West Conshohocken, PA 19428
Attention: CFO
22
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
Exhibit A
Equipment
This document provides a summary of all hardware provided to Kent / ShoWare
Arena by ShoWare by VisionOne, Inc.
Box Office Workstations QTY 6
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 800MHz DDR2, 2X1 GB OptiPlex
Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 80GB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: 8X DVD-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1708FP Flat Panel with Height Adjustable Stand, 17.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
Box Office Workstations QTY 1 SPARE
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 800MHz DDR2, 2X1 GB OptiPlex
Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 80GB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: 8X DVD-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1708FP Flat Panel with Height Adjustable Stand, 17.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
Office Workstations QTY 3
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 800MHz DDR2, 2X1 GB OptiPlex
Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 80GB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: 8X DVD-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1908FP Flat Panel with Height Adjustable Stand, 19.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
23
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
Dell Services Tags (10 Workstations)
1- 38CFPH1 2- 48CFPH1 3- 58CFPH1 4- 68CFPH1 5- D8CFPH1 6- 88CFPH1
7- 98CFPH1 8- B8CFPH1 9- C8CFPH1 10 — 78CFPH1
Access Control Server
PowerEdge 2900 III: Quad Core Intel@ Xeon® E5410, 2x6MB Cache, 2.33GHz, 1333MHz
FSB
OS: Windows Server@ 2003 R2, Standard Edition with SP2, Includes 5 CALs
Additional Processor: Single Processor only
Memory: 4GB 667MHz (4xIGB), Dual Ranked DIMMs
MISC: Keyboard and Optical Mouse, USB, Black, English, with 17 LCD Monitor
Hard Drive RAID 5: 3 160GB 7.2K RPM Serial ATA 3Gbps 3.5-in Hof Plug Hard Drive
Network Adapter: Dual Embedded Broadcom@ NetXtreme II 5708 Gigabit Ethernet NIC
Tape Drives: PowerVault l OOT, DAT72 Tape Backup, 36/72GB, w/Controller, Internal
Controller: SAS 6/i Integrated
DVD Drive: Combo CDRW / DVD Drive, SATA
Tape Backup Software: Symantec Backup Exec v12.5 Quickstart Edition Suite
Warranty: 3 Year ProSupport for End Users 4HR 7x24 Onsite
MS SQL Server: Microsoft@ SQL ServerTm 2005 Standard (5 CAL)
Power Supply: Redundant Power Supply with Y-Cord
Chassis Configuration: Tower Chassis Orientation
Media: Tape Backup DAT72, Tape media cartridge, 36/72GB, 5PK
Uninterrupted Power Supply: 1500VA UPS 120 Volt, Battery Backup & Protection
Access Control Software: SKIDATA ver. 3.2 installed on server
Service Tag: COJLQHI
Box Office Printers
Printers: Boca Mini MB USB QTY 10
Serial Number 207275 — 207284
Box Office Credit Card Swipe
Swipes: Credit Card Swipe QTY 10
Symbol/Motorola Scanners, cradle, batteries
Scanner Unit Model Serial #
PPT8846-R3BZOOWW SA01 19W833
PPT8846-R3BZOOWW SA0119M957
PPT8846-R3BZOOWW SA0119W800
PPT8846-R3BZOOWW SA0119W809
PPT8846-R3BZOOWW SA0] 19W835
PPT8846-R3BZOOWW SA0119W804
PPT8846-R3BZOOWW SA0119W80B
PPT8846-R3BZOOWW SA0119W79V
24
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B 9 872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
PPT8846-R3BZOOWW SAO] 19W831
- PPT8846-R3BZOOWW SA01 19W831
QTY 10
Scanner Battery Model Serial #
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
QTY 10
Serial Charging Cradle Serial #
CRD880OB-1OOOS S99A794164
CRD880OB-1OOOS S99A794005
CRD880OB-I OOOS S99A794145
CRD880OB-I OOOS S99A794018
CRD880OB-IOOOS S99A794025
CRD880OB-1OOOS S99A794161
CRD880OB-I OOOS S99A796340
CRD880OB-I OOOS S99A796312
CRD880OB-IOOOS S99A796339
CRD880OB-1OOOS S99A796332
QTY 10
25
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
EXHIBIT B
V-1 Fees
Software:
One-time license fee: Waived
Set-up Processing Fee: Waived
Online/Call Center/Outlet per Ticket Fee $2.50 per ticket
Box Office per Ticket Fee $0.15 per ticket
Minimum Annual Online Tickets Sold NA
Minimum Annual Offline Tickets Sold NA
Optional Services:
Per Order Fulfillment Fee: $3.50
Call Center/Charge by Phone Fee: $4.00 per order(plus postage if used)
Content Management: NA
Custom Development $150.00 per hour(optional)
Subscription Package Fee/per package Sold: $5.00 per package
Print at Home per order Fee: $1.25 per order
26
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
EXHIBIT 2
TICKETING AGREEMENT
EXHIBIT C
Insurance Coverage
The kinds and amounts of insurance to be provided are as follows:
1. Workers' Compensation and Employer's Liability Insurance: A policy or policies
providing protection for employees in the event of job-related injuries.
2. Automobile Liability Insurance: A policy or policies with limits of not less than
$500,000 for each accident because of bodily injury, sickness, or disease, including death at
any time, resulting therefrom, sustained by any person caused by accident, and arising out of
the ownership, maintenance, or use of any automobiles and with limits of$500,000 for damage
because of injury to or destruction of property, including the loss of use thereof, caused by
accident and arising out of the ownership, maintenance, or use of any automobiles.
3. General Liability Insurance: A policy or policies including comprehensive all-risk
insurance with limits of not less than $2,000,000 for bodily injury, property damage and
personal injury and advertising liability.
4. Errors and Omissions Insurance: A policy or policies with limits of not less than
$2,000,000.
5. Business Interruption/Earnings and Extra Expense Insurance: A policy or policies with
limits of one million dollars ($1,000,000)per claim and per location for all processing sites used
to service this agreement, including outage endorsements for electrical,telephonic, and loss to
environmental integrity and processing location.
6. Crime/Fidelity: A policy or policies with limits of one million dollars ($1,000,000)per
claim covering all V-1 employees and endorsed with the City and SMG as loss payees.
27
SMG—Kent Events Center
Ticketing Services Agreement
B#850501 v.2
B#872788 v.3
I
EXHIBIT 3
TICKETING EQUIPMENT AND SOFTWARE
This document provides a summary of all hardware provided to Kent/ ShoWare
Arena by ShoWare by VisionOne, Inc.
Box Office Workstations QTY 6
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 80OMHz DDR2, 2X1GB OptiPlex
Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 8OGB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: 8X DVD-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1708FP Flat Panel with Height Adjustable Stand, 17.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
Box Office Workstations QTY 1 SPARE
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 80OMHz DDR2, 2X1 GB OptiPlex
Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 8OGB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: 8X DV_D-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1708FP Flat Panel with Height Adjustable Stand, 17.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
Office Workstations QTY 3
PC Model: OptiPlex 755 Ultra Small Form Factor, Core 2 Duo E7200/2.53GHz,
3M,1066FSB
Memory: 2GB, Non-ECC, 80OMHz DDR2, 2X1GB OptiPlex
I Video: Integrated Video, GMA 3100, Dell OptiPlex 755
Hard Drive: 80GB SATA 3.OGb/s and 8MB DataBurst Cache, Dell OptiPlex 755
Mouse: Dell USB 2-Button Mouse with Scroll, Black, OptiPlex
Keyboard: Dell USB Keyboard English, Black, Optiplex
CD-DVD: BX DVD-ROM, OptiPlex, Ultra Small Form Factor Vista Business, Service
Pack 1
Monitor: Dell UltraSharp 1908FP Flat Panel with Height Adjustable Stand, 19.0 Inch
Warranty: Dell Hardware Limited Warranty plus Onsite Service 3 Year
1
i
I
EXHIBIT 3
TICKETING EQUIPMENT AND SOFTWARE
Dell Services 10 Tags Workstations
g � )
1- 38CFPH1 2-48CFPH1 3- 58CFPH1 4-68CFPH1 5- D8CFPH1 6- 88CFPH1
7- 98CFPH1 8- B8CFPH1 9- C8CFP1H1 10—78CFPH1
Access Control Server
PowerEdge 2900111: Quad Core Intel@ Xeon®E5410, 2x6MB Cache, 2.33GHz, 1333MHz
FSB
OS: Windows Server@ 2003 R2, Standard Edition with SP2, Includes 5 CALs
Additional Processor:Single Processor only
Memory: 4GB 667MHz (4x1GB), Dual Ranked DIMMs
MISC: Keyboard and Optical Mouse, USB, Black, English, with 17 LCD Monitor
Hard Drive RAID 5: 3 160GB 7.2K RPM Serial ATA 3Gbps 3.5-in HotPlug Hard Drive
Network Adapter: Dual Embedded Broadcom@ NetXtreme II 5708 Gigabit Ethernet NIC
Tape Drives: PowerVault I OOT, DAT72 Tape Backup, 36/72GB, w/Controller, Internal
Controller: SAS 6/i Integrated
DVD Drive: Combo CDRW / DVD Drive, SATA
Tape Backup Software: Symantec Backup Exec v12.5 Quickstart Edition Suite
Warranty: 3 Year ProSupport for End Users 4HR 7x24 Onsite
MS SQL Server: Microsoft@ SQL ServerT'" 2005 Standard (5 CAL)
Power Supply: Redundant Power Supply with Y-Cord
Chassis Configuration:Tower Chassis Orientation
Media: Tape Backup DAT72,Tape media cartridge, 36/72GB, 5PK
Uninterrupted Power Supply: 1500VA UPS 120 Volt, Battery Backup & Protection
Access Control Software: SKIDATA ver. 3.2 installed on server
Service Tag: COJLQH 1
Box Office Printers
Printers: Boca Mini MB USB QTY 10
Serial Number 207275 — 207284
Box Office Credit Card Swipe
Swipes: Credit Card Swipe QTY 10
Symbol/Motorola Scanners, cradle, batteries
Scanner Unit Model Serial #
PPT8846-R3BZOOWW SAO]19W833
PPT8846-R3BZOOWW SA01 19M957
PPT8846-R3BZOOWW SAOI 19W800
PPT8846-R3BZOOWW SA0119W809
PPT8846-R3BZOOWW SA0119W835
PPT8846-R3BZ00WW SA0119W804
PPT8846-R3BZOOWW SA0119WBOB
1
i
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i
EXHIBIT 3
TICKETING EQUIPMENT AND SOFTWARE
PPT8846-R3BZOOWW SA0119W79V T
PPT8846-R3BZOOWW SAO119W831
PPT8846-R3BZOOWW SA0119W831
QTY 10
Scanner Battery Model Serial#
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
1PKT-61579-01 N/A
1 PKT-61579-01 N/A
1 PKT-61579-01 N/A
QTY 10
Serial Charging Cradle Serial #
CRD880OB-1ODDS S99A794164
CRD880OB-1000S S99A794005
CRD880OB-1 ODDS S99A794145
CRD880OB-1ODDS S99A794018
CRD880OB-1ODDS S99A794025
CRD880OB-1ODDS S99A794161
CRD880OB-I000S S99A796340
CRD880OB-1ODDS S99A796312
CRD880OB-1ODDS S99A796339
C R D880OB-l ODDS-S99A796332
QTY 10
I
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1
i
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REQUEST FOR MAYOR'S SIGNATURE
KEN T Please Fill in All Applicable Boxes
WASHINGTON
Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT)
Originator:` , k�� Phone (Originator): Wc
Date Sent: b� Date Required: /I�sA-/
Return Signed Document to: ��W�,� �`'eU, CONTRACT TERMINATION DATE:
VENDOR NAME: � DATE OF COUNCIL APPROVAL: 3f r
Brief Explanation of Document:
VP�i v,`/L lid
All Contracts Must Be Routed Through the Law Department
c Completed By the Law DepartmPht)
Received: � � RECEIVED
Approval of Law Dept.:
Law Dept. Comme,,
.� � � pity Of Kent`
Office of the Mayor
[Date Forwarded to Mayor:
Shaded Areas to Be Completed by Administration Staff
� 1
Received: `
l:
Recommendations &Comments:
Disposition:
Date Returned: UU
lage5870 3j105