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HomeMy WebLinkAboutResolution - 2003-R0131 - Mackenzie Amphitheatre Naming Agreement With Wells Fargo Bank Texas - 03/27/2003Resolution No. 2003-RO131 March 27, 2003 Item No. 38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute on behalf of the City of Lubbock a Mackenzie Amphitheatre Naming Agreement with Wells Fargo Bank Texas, National Association, and any associated documents, which Agreement is attached hereto and which shall be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 27th day of ATTEST: ReYecca Garza, City APPROVED AS TT: r2 Randy TAesdell, Parks and Recreation Director APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney AmpWFNamingRes -ccdocs March 11, 2003 12003. UGAL, MAYOR Resolution No. 2003—RO131 March 27, 2003 Item No. 38 MACKENZIE AMPHITHEATRE NAMING AGREEMENT This MACKENZIE AMPHITHEATRE NAMING AGREEMENT (this "Agreement") by and between the City of Lubbock, a corporate body politic of the State of Texas (the "City") and Wells Fargo Bank Texas, National Association, a national banking association ("Naming Sponsor"), is executed to be effective as of the 27th day of March '2003. WHEREAS, the City Council of the City of Lubbock was authorized in a Capital Improvements Bond Election, September 18, 1999, by the citizens of Lubbock to issue general obligation bonds of the City in the principal amount of $14,765,000 for permanent public improvements and public purposes to acquire or improve, or both land for park purposes; and WHEREAS, one of the proposed public improvement projects for the park presented to the voters at that time was the development of an outdoor theatre in Mackenzie Park; and WHEREAS, the City intends that the outdoor theater be a first class amphitheater facility meeting the needs of high quality theatrical dramas, and meeting the standards described in the letter of the City to Mr. Gary Lawrence, President and CEO of Wells Fargo, dated April 11, 2002, signed by Mayor Windy Sitton and the six Lubbock city councilmen, stating "We stand committed to making this a first-class facility, one of which will not only make Lubbock proud, but will make the region proud, and will truly exemplify the history of Lubbock and West Texas and will draw people not only from the region but from the entire state, and hopefully from across the nation;" and WHEREAS, City desires to grant the Naming Rights for this project described herein to Naming Sponsor, and Naming Sponsor desires to acquire the Naming Rights from City, all as hereinafter described in more detail, and for the consideration set forth herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the parties agree as follows: 1. Definitions. The following capitalized terms will have the meaning indicated: "City" means the City of Lubbock, Texas "Commercial uses" means uses (of Amphitheatre Marks) for profit or intended for profit which are not, in Naming Sponsor's opinion, directly related to supporting the performance of a City- or County- sponsored or approved Amphitheatre event. "Designated Products" means the products and services currently offered by Naming Sponsor and its affiliates. "First Payment Date" means the due date of the first installment of the Naming Sponsor Fee, as described in Section 3. "Naming Rights" means the rights granted by City to Naming Sponsor hereunder with respect to the naming of the Amphitheatre, as described in Section 6. "Naming Sponsor" means Wells Fargo Bank Texas, National Association. "Naming Sponsor Fee" means the amounts which Naming Sponsor has agreed to pay for the Naming Rights, as set forth in Section 3. "Amphitheatre Name" means the name of the Amphitheatre site, selected by Naming Sponsor pursuant to the terms of this Agreement. 2. Term This Agreement shall, unless sooner terminated in accordance with the provisions set forth elsewhere in this Agreement, be effective on the date hereof and shall continue in effect until it expires and is not extended. The initial term of this Agreement shall be for a term of years ending on January 14 of the third year following the First Payment Date. The term shall automatically extend for successive three year periods so long as Naming Sponsor continues to pay the Naming Sponsor Fee, unless proper notice is given pursuant to this paragraph by either party that the term should not automatically extend. In the event either party desires in its discretion to not extend this Agreement after the expiration of the initial term or any subsequent extended term, the party desiring not to extend this Agreement agrees to give the other party advance notice of such intention at least 120 days prior to the next January 15th automatic extension date. 3. Naming Sponsor Responsibilities (a) Naming Sponsor agrees to acquire the Naming Rights granted hereunder for the period from the date hereof until this Agreement expires or is terminated. In consideration for such rights, Naming Sponsor agrees to pay to City the Naming Sponsor Fees. Naming Sponsor shall pay 100% of each installment of the Naming Sponsor Fees to the City. (b) The City anticipates that the initial production of the historical play will open at the Amphiteatre in 2004. If this occurs, then the initial installment of the annual Naming Sponsor Fee shall be due on January 15, 2004. If the opening of the historical play is postponed, then the initial installment will be due on January 15 of the year in which the historical play opens at the Amphitheatre. (This initial installment due date is referred to herein as the "First Payment Date"). Subsequent installments of the Naming Sponsor Fee shall be due and payable on January 15th of each year thereafter for so long as this Agreement remains in effect. The amount of the annual Naming Sponsor Fee shall be $16,000.00, to be paid annually to the City, in cash, commencing on the First Payment Date. None of the Naming Sponsor Fees shall include any fees and commissions payable to third parties engaged by or claiming through Naming Mackenzie Amphitheatre Naming Agreement Page 2 of 15 Sponsor, if any, which shall be the sole responsibility of, and paid by, the Naming Sponsor. Naming Sponsor shall be liable for all applicable federal, state or local taxes or charges, if any, levied, assessed or otherwise due with respect to the payments made by Naming Sponsor hereunder. 4. City Responsibilities (a) City will build a first class outdoor amphitheater facility meeting the needs of high quality theatrical dramas in Mackenzie Park substantially in accordance with Carter -Burgess Project No. 020136, dated January 11, 2002 as prepared for Parkhill, Smith & Cooper, Inc. in response to City of Lubbock Invitation to Bid for Mackenzie Park Amphitheatre, ITB Number 010-02/RS, Project Number 9145.9211.20000. A rendering of said design is attached as Exhibit 1; (b) City will operate the Amphitheatre in good working order and in a clean, sanitary and safe condition in accordance with all applicable laws, ordinances and regulations, and maintain it as a first class facility during the term of this Agreement; (c) City will contract with an outside entity to produce at least one theatrical drama and/or musical from June through August (or a similar summertime period as agreed with the entertainment entity) that will highlight Lubbock's history. The play may begin with one act, but will expand to three or more acts and open in its entirety during Lubbock's 100 -year birthday in 2009. If by the year 2009, the summer production as described herein is not in place, Naming Sponsor may cancel this Agreement without penalty, in which case this Agreement will become null and void. If at any time after the summer of 2009, the frequency of productions declines or diminishes significantly in Naming Sponsor's judgement, Naming Sponsor may cancel this Agreement without penalty. City will work toward a long-term contract with a suitable outside entity for production of a suitable drama. The annual drama or musical commencing with the 2009 season will be a major high quality theatrical production intended to draw visitors and tourists from across the region and the state, and hopefully from across the nation. If the annual drama or musical is not presented in the intended manner, or if the Amphitheatre facility is not maintained as a first class facility, as reasonably determined by Naming Sponsor, then Naming Sponsor may cancel this Agreement without penalty. City may also work toward securing additional long-term theatrical events. (d) City will ensure that the Amphitheatre and the theatrical drama or musical are marketed on a local, regional, statewide, and national level. Mackenzie Amphitheatre Naming Agreement Page 3 of 15 (e) City will ensure that there are enough parking spaces for events at the Amphitheatre on city -controlled land within a reasonable proximity to the Amphitheatre; (f) As funding is available, City will continue to develop Mackenzie Park with the Centennial Project that will graphically interpret Lubbock's rich history and heritage, including working toward locating the 4th U.S. Cavalry Regiment Memorial re-enactment group at the Outdoor Center and the locating of an Agricultural Heritage Museum in Mackenzie Park to prominently display a collection of rare and antique farm implements. 5. Trademarks and Licensing (a) Naming Sponsor warrants that it is a licensed user of the trademarks, service marks, trade names and logos set forth on Exhibit 2 (the "Marks"), which Naming Sponsor shall provide to City prior to the First Payment Date. The Marks are famous, enjoy very substantial and favorable public acceptance, and represent invaluable goodwill to Naming Sponsor and its affiliates. Naming Sponsor, or one of its affiliates, shall be the owner of the Amphitheatre Name and any logo, trademark, service mark, trade name or other identifications of the Amphitheatre that incorporates any portion of the Marks or Amphitheatre Name that may be hereafter developed (collectively including the Amphitheatre Name, the "Amphitheatre Marks"). (b) City acknowledges that Naming Sponsor, or one of its affiliates, is the sole owner of the Marks and the Amphitheatre Marks, and that all goodwill relating to the Marks and the Amphitheatre Marks shall be and remain the sole and exclusive property of Naming Sponsor or its affiliates. City does not and shall not have any right, title, interest or claim of ownership in the Marks or the Amphitheatre Marks, .except for the license granted to them under this Agreement. City agrees to use the Amphitheatre Marks only in accordance with the terms of this Agreement. The use by City and by its respective sublicenses of the Amphitheatre Marks, and all goodwill arising from the use, shall be solely for, and shall inure to the benefit of Naming Sponsor and its affiliates and shall be the sole and exclusive property of Naming Sponsor and its affiliates. City agrees not to use the Amphitheatre Marks in an altered or modified form, not to misuse the Amphitheatre Marks, and not to bring the Amphitheatre Marks into disrepute. (c) Naming Sponsor hereby licenses City to use and authorizes City to sublicense others to use the Amphitheatre Marks, but not the Marks except insofar as the Marks are part of the Amphitheatre Marks, and to subcontract others to manufacture products incorporating or bearing the Amphitheatre Marks, for food service, related supplies, Amphitheatre supplies, furniture, and equipment, novelties, souvenirs, publications and other products used in the operation of the Amphitheatre, the promotion of City and the Amphitheatre Mackenzie Amphitheatre Naming Agreement Page 4 of 15 and the presentation of other events in the Amphitheatre, such products being of the types listed on Exhibit 3 attached hereto and incorporated as if fully set forth herein, or as may be approved from time to time by Naming Sponsor. All of such products may be used, consumed, given away, 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 sublicense to pay any royalty or other fee to Naming Sponsor with respect to any such use, unless Naming Sponsor determines that particular uses are commercial uses (as defined in Section 1), in which case Naming Sponsor may withhold or withdraw its consent and license for such use, or impose reasonable fees for such use, in either case after reasonable notice to City. (d) The City agrees that all products and/or services offered by the City or its sub licensees that use or contain the Amphitheatre Marks shall generally be of a nature and quality commensurate with the nature and quality of the current products and/or services offered by the City or its sublicensees. Naming Sponsor will negotiate with City the specific terms of the standards for the use of the Amphitheatre Marks by City and its sublicensees. Naming sponsor shall have the right to supplement or change the standards for the use of the Amphitheatre Marks from time to time upon agreement by City. City agrees that it will use, and will cause its sublicensees to use, the Amphitheatre Marks in accordance with the terms of this Agreement and such standards. Before using the Marks or the Amphitheater Marks, City and any sublicensees shall deliver drafts or samples of any materials or products containing the Marks or the Amphitheater Marks to Naming Sponsor for prior approval in Naming Sponsor's discretion. The City agrees that neither it nor its sub -licensees will use any logo design listed on Exhibit 2 except the camera-ready logo design provided to the City by Naming Sponsor. City further agrees that in sublicensing the use of the Amphitheatre Marks it will: i) Not sublicense the use of the Amphitheatre Marks other than in accordance with this Agreement, and reserve in all sublicenses the right to modify, cancel or withdraw the license in the sole discretion of City or Naming Sponsor, upon reasonable notice; ii) Make reasonable efforts to choose sub -licensees who are financially and by experience likely to meet the standards then in effect, to comply with the terms of such sublicense, not to use the Amphitheatre Marks other than in connection with licensed products and to follow in all material respects any graphics guidelines as to color and display of those marks as Naming Sponsor requires; ill) In the event that they become aware that a sub -licensee has violated the terms of its sublicense or has violated the rights of Naming Sponsor in the Marks or the Amphitheatre Marks, notify the sub licensee that it must cease and desist from such violation, and Mackenzie Amphitheatre Naming Agreement Page 5 of 15 thereafter, if such violation is not terminated, cooperate with Naming Sponsor to obtain compliance; and iv) In the event that Naming Sponsor notifies City that a sub -licensee is using the Amphitheatre Marks in a manner that it does not want the Amphitheatre Marks to be used, whether or not such use is in accordance with the terms of a sublicense or does not violate the terms of this Agreement, City will make reasonable attempts to obtain the agreement of sub -licensee to cease use of the Amphitheatre Marks in such a manner. (e) The Naming Sponsor agrees and understands that the City must comply with all federal and state laws in granting a sublicense to a potential sub -licensee. Nothing in this Agreement prohibits the City from granting a sublicense in accordance with federal and state law. (f) Except as otherwise agreed in this Agreement or as otherwise agreed in writing, neither 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 other party prior written consent. 6. Naming Rights. The City grants to Naming Sponsor, subject to the terms and conditions hereof, the Naming Rights described in this Section. (a) Naming Sponsor shall have the right to designate the Amphitheatre Name. Naming Sponsor. has designated "Wells Fargo Amphitheatre" as the Amphitheatre Name. City shall cause the name of the Amphitheatre to be so designated and will not employ nicknames or encourage others to employ nicknames or other names for the Amphitheatre, so long as this Agreement shall be in effect. (b) Naming Sponsor shall have the right, subject to approval by the Zoning Board of Adjustment of the City of Lubbock when required, to have the Amphitheatre Name and/or the Amphitheatre Marks on all signage identifying the Amphitheatre. (c) City will use its best efforts to see that the tickets to all events in the Amphitheatre include the Amphitheatre Name and/or Amphitheatre Marks. City will use its best efforts to see that programs, advertisements and correspondence regarding other events in the Amphitheatre include the Amphitheatre Name and/or the Amphitheatre Marks. Mackenzie Amphitheatre Naming Agreement Page 6 of 15 (d) City will require that the stationery, brochures and correspondence for the Amphitheatre advertising materials for all Amphitheatre events include the Amphitheatre Name and/or Amphitheatre Marks, and will use reasonable efforts to have the Amphitheatre Name and/or Amphitheatre Marks included on appropriate other items which are used by the City in the course of its business. City will insert requirements in contracts and Agreements with respect to the Amphitheatre that the contracting parties use the Amphitheatre Name and/or Amphitheatre Marks in all references to the Amphitheatre. (e) Naming Sponsor reserves the right, at its own expense, to locate a statue or other three dimensional symbol of the corporation in a mutually agreed upon design and venue location. (f) Naming Sponsor acknowledges the right of City to designate advertisers in the Amphitheatre. Unless approved by Naming Sponsor, City agrees that it will not accept or allow advertising in the Amphitheatre for products or services that are directly competitive with the Designated Products, with the following permitted exceptions: (i) The display during an event of banners, placards, signs or other displays, temporary in nature, erected by an event sponsor, promoter, sponsor or participant, even though such display may constitute competitive advertising; (ii) The advertising materials naming an event sponsor for a particular event developed and distributed by a sublicensee of City. 7. Future Name Change. (a) Naming Sponsor agrees that it shall have no right to change the Amphitheatre Name except as provided herein. During the entire term of this Agreement, including any extensions, Naming Sponsor shall have the right to cause the name of the Amphitheatre to be changed once in compliance with all the terms of this Section. In order to change the name of the Amphitheatre, Naming Sponsor shall notify City that it desires to change the name of the Amphitheatre and disclose the new name. City shall not unreasonably withhold approval of the new name if the following conditions are satisfied: (i) The new name may only be the brand name under which Naming Sponsor, or its successor in interest, actively markets the Designated Products, or a significant portion thereof, then being marketed by Naming Sponsor or its successor in interests. Mackenzie Amphitheatre Naming Agreement Page 7 of 15 (ii) The new name cannot be of a nature which would seriously offend the reasonable sensibilities of the public at large, or which would violate Federal, state or local law. (b) In any other circumstances in which the conditions of Section 7(a) are not satisfied, either because the name has already been changed once or the name chosen does not satisfy the above criteria, or for any other reason, City will consider requests by the Naming Sponsor to change the name. However, Naming Sponsor acknowledges that the continuity of the name of a facility such as the Amphitheatre, once it has been established is of primary importance and that consent to change is not likely to be granted. (c) If City consents, it agrees to evidence its consent in writing within forty- five days and promptly submit all necessary requests for the approval of all governmental agencies whose approval is necessary at such time. (d) In the event that Naming Sponsor proposes to change the Amphitheatre Name, Naming Sponsor agrees that it will be solely responsible for all costs and expenses that may be incurred by City, or any of its affiliated entities as a result of such change. (e) If the Amphitheatre Name is changed, the new name shall become the Amphitheatre Name for all purposes of this Agreement from that day forward, including, without limitation, the licenses granted hereunder to use the Amphitheatre Name 8. Termination (a) Upon the expiration, termination or cancellation of this Agreement, the licenses granted under this Agreement and any sub -licenses granted by the City shall immediately terminate, and City and its respective sublicenses shall cease to use the Amphitheatre Marks, including, but not limited to, the making of necessary physical changes to the Amphitheatre and its components and the discontinuance of the use of stationary, tickets and advertising and promotional materials then on hand. In the event of a termination under paragraph (b) below, City shall have a reasonable time, not to exceed ninety (90) days, 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 the Agreement. (b) The following shall constitute "Naming Sponsor Defaults." Mackenzie Amphitheatre Naming Agreement Page 8 of 15 (i) Failure to make any payment hereunder when due, if such failure is not cured within thirty (30) days after written notice to Naming Sponsor of such default; (ii) Naming Sponsor fails to comply with any obligation of Naming Sponsor set forth in this Agreement other than the failure to make payment, including any representations and warranties of Naming Sponsor under this Agreement, and such failure shall continue for a period of sixty (60) days after written notice to Naming Sponsor; or (iii) Naming Sponsor makes an assignment for the benefit of creditors, or a trustee, receiver or similar officer of any court is appointed for Naming Sponsor 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 Naming Sponsor, if such proceedings shall not be dismissed within sixty (60) days from the date of the institution thereof. (c) In the event of the occurrence of a Naming Sponsor Default and Naming Sponsor's failure to timely cure such default, City shall have the right, if such failure is material, to cause this Agreement to end on a date designated in such notice, which date may be not less than thirty days after the date of such notice. (d) In the event that this Agreement terminates due to Naming Sponsor default, or failure to renew after the first three year term, Naming Sponsor shall, in addition to any other damages for which it may be held liable, be obligated to pay all costs, losses and expenses incurred by City in complying with the provisions of Section 8(a), including but not limited to the cost of removing all signs and disposing of other displays and materials containing the Amphitheatre Marks and the cost of any materials containing the Amphitheatre Marks which must be discarded as a result of the termination. The City shall retain ownership of the all signage materials upon termination of this Agreement, but may not use signage bearing the Marks or the Amphitheatre Marks without first removing them, except with Naming Sponsor's prior consent. (e) The following shall constitute "City Defaults." (i) If City fails to comply with any of its obligations under this Agreement, and such failure shall continue for a period of thirty (30) days after notice thereof to City from Naming Sponsor; or (ii) As a result of a Force Majeure, City fails to reopen the Amphitheatre for normal operations within twelve (12) months. Mackenzie Amphitheatre Naming Agreement Page 9 of 15 (f) In the event of the occurrence of a City Default, Naming Sponsor shall have the right to terminate this Agreement by written notice to City, in which event Naming Sponsor shall be entitled to renegotiate the Naming Sponsor Fees going forward. Any such negotiations shall be completed within thirty (30) days after the termination. (g) In the event that the City discontinues use of the Amphitheatre, this Agreement shall terminate immediately and all rights and responsibilities of the parties shall terminate immediately. If it should appear that the City might discontinue use of the Amphitheatre, City will discuss such plans with Naming Sponsor in advance of termination and help explore possibilities for Naming Sponsor to continue the sponsorship with any replacement user of the Amphitheatre. (h) Should this Agreement or any provision hereof violate any federal, state or local law or regulation, 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; 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, either Naming Sponsor, City may elect to terminate this Agreement. (i) In the event that a party is successful in a court of competent jurisdiction in obtaining legal or equitable relief from a default by another party, the successful party shall be entitled to recover the fees and expenses of its counsel in such proceedings. 9. Limitation on Assi ng_ment (a) Subject to the terms and conditions of this Section, this Agreement and all of the terms and provisions hereof will be binding upon, enforceable against, and will inure to the benefit of, the parties hereto and their respective successors and assigns. (b) Naming Sponsor shall have the right to assign this Agreement, in whole but not in part in a transaction in which all or substantially all of its assets in the Lubbock area, or all or substantially all of its business in the Designated Products in the Lubbock area, are acquired by the assignee. If assignment of this Agreement is made pursuant to this Section, it shall not include the right to change the Amphitheatre Name, other than specifically in accordance with the provisions of Section 7 hereof. It shall be a condition precedent to any such assignment and transfer that the assignee specifically assume all of the liabilities and obligations of the Naming Sponsor hereunder, and that the Naming Sponsor and the assignee execute and deliver to City such assignments, assumptions, and other documents as City reasonably requests Mackenzie Amphitheatre Naming Agreement Page 10 of 15 10. 11 to evidence such transactions and the assumptions. In addition, no assignment or change in control shall be deemed to have occurred if Naming Sponsor continues to be owned, directly or indirectly, by Wells Fargo & Company. Independent Contractor; Indemnification (a) The parties shall be and act as independent contractors, and under no circumstances shall this Agreement by 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. (b) Naming Sponsor shall have no responsibility for the maintenance or operation of the Amphitheatre or related park facilities, or any related activities, productions or events. In the event that any party should ever assert any claim or action for damages or injuries arising from or relating to with the maintenance, use or operation of the Amphitheatre or related park facilities, or any related activities, productions or events, to the extent permitted by law, City hereby agrees to indemnify and hold Naming Sponsor harmless from and against any and all such claims and related costs and fees, including attorney's fees incurred in the defense of any such claim. City also agrees, when it is reasonable to do so, to cause responsible parties leasing or using the Amphitheatre to provide and maintain adequate insurance coverage, and to indemnify Naming Sponsor for such claims on terms substantially equivalent to those contained in this paragraph. 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 messenger or if sent by certified 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 notice to the other party given as herein provided: If to Naming Sponsor: Wells Fargo Bank Gary Lawrence, President 1500 Broadway Lubbock, Texas 79401 If to City: The City of Lubbock With a copy to: Wells Fargo Bank Allan E. Ball, Senior Counsel 1500 Waugh Drive Houston, Texas 77019 Mackenzie Amphitheatre Naming Agreement Page 11 of 15 PO Box 2000 Lubbock, Texas 79457 Attention: Tommy Gonzalez, Assistant City Manager 12. Representations and Warranties (a) Naming Sponsor represents, warrants and covenants to the 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. (ii) This Agreement, when executed and delivered by Naming Sponsor, will be its legal, valid and binding obligation enforceable against Naming Sponsor in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, or other similar laws affecting creditors' rights generally. (iii) The execution and delivery of this Agreement has been duly authorized by Naming Sponsor, and such execution and delivery and the performance by Naming Sponsor 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. (iv) Each of the foregoing representation, warranties and covenants shall be true at all times during the term hereof. Naming Sponsor .acknowledges that each of such representations, warranties and covenants are deemed to be material and have been relied upon by City notwithstanding any investigation made by City. (b) City represents, warrants and covenants to Naming Sponsor 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 to grant the Naming Rights to Naming Sponsor. (iii) This Agreement, when executed and delivered by the City, will be its legal, valid and binding obligation, enforceable against the City 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. Mackenzie Amphitheatre Naming Agreement Page 12 of 15 (iv) The execution and delivery of this Agreement has been duly authorized by the City 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 hereof. City acknowledges that each of such representations, warranties and covenants are deemed to be material and have been relied upon by Naming Sponsor notwithstanding any investigation made by Naming Sponsor. 13. Compliance with the Law Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application thereof to any party or circumstance is prohibited by or invalid under applicable law, that provision shall be effective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or the application of such provision to other parties or circumstances. 14. 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 which is in violation of any of the terms or provisions of the 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 power or to waive any other default or any future breach of any such term or provisions or of any other wrongful conduct. 15. Governing Law This Agreement will be deemed to have been executed and delivered in the State of Texas and will be construed and interpreted according to the laws of that State. 16. Entire Agreement; Amendments This Agreement constitutes the entire understanding and agreement between the parties with respect to the Naming Rights and supersedes any and all prior negotiations, understandings or agreements in regard hereto, including any prior agreements. This Agreement may be amended only by written instrument signed by the parties hereto, specifically referring to this Agreement. Mackenzie Amphitheatre Naming Agreement Page 13 of 15 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. THE CITY OF LUBBOCK: WELLS FAR90 BANK TEXAS, Z9 �� NATIQNAJASSOCIATION 52 Mayor i By: ZO-�' Rebecca Garza, City Secretary APPROVED AS TO CON NT: C4& fAl JJZ Corbin Pemberton, Community Projects Manager APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney Mackenzie Amphitheatre Naming Agreement Page 14 of 15 , President Resolution No. 2003-RO131 March 27, 2003 Item No. 38 SUMMARY OF EXHIBITS Exhibit 1: Rendering of the design of the outdoor amphitheater facility in Mackenzie Park; Carter -Burgess Project No. 020136, dated January 11, 2002 as prepared for Parkhill, Smith & Cooper, Inc. in response to City of Lubbock Invitation to Bid for Mackenzie Park Amphitheatre, ITB Number 010-02/RS, Project Number 9145.9211.20000. Exhibit 2: Naming Sponsor's trademarks, service marks, trade names and logos (the "Marks") This Exhibit is to be provided by Naming Sponsor prior to the First Payment Date. Exhibit 3: Product Types which may incorporate or bear Amphitheatre Marks, subject to approval of Naming Sponsor. C:\ABCdrive\Contracts\AmphithNamingAgr-031003.doc Mackenzie Amphitheatre Naming Agreement Page 15 of 15 6r� r- W C o �� n o _N. > CD X =' CD w r CD EMJ,.IBIT 1 Resolution No. 2003-RO131 Resolution No. 2003-R0131 Exhibit 3 Product Types Which May Incorporate or Bear Amphitheatre Marks Subject to Approval by Naming Sponsor Potential Convention and Tourism Uses of the Name "Wells Fargo Amphitheater " by the City of Lubbock or Convention and Visitors Bureau as part of a facility name include, but are not limited to: Electronic Advertising . EX: Television Radio Web -site Print Advertising Trade Publications EX: Facilities & Event Management Aud-Arena Guide Trade Show Weekly Billboard Pollstar Amusement Business TSAE Directory and publications Chamber of Commerce publications Newcomers Guide Other Facility Directories Group Tour Manual Meeting Planners Guide Travel/Tourism/Special Interest Publications EX: Texas Highways Texas Monthly Southern Living Midwest Living Adventure Road West Texas Travel Guide Southwest Spirit Other Airline on -board publications Telephone Directories Local Newspapers Area Newspapers Exhibit Booth Display to promote use of facility Other Local, National and International Magazines, Newspapers and Printed Publications Facility Brochure Schedule of Events Letterhead Stationary/Envelopes Business Cards Outdoor/Indoor Electronic Message Centers Signage on the facility itself Interior Signage Concession Stands/Menus Drinking Cups Facility Souvenir and Promotional Items Employee Uniforms Employee Nametags Event Programs Dedication Plaque Invitations to performances, receptions or events Tickets printed to events/Ticket Envelopes Notepads Banners, both interior and exterior Advertising placed by Promoters/Lessees: The facility has no control over which media and/or publications that Promoters/Lessees use to advertise an event at the facility. The advertising would include both electronic and print advertising, posters, flyers, tickets, or anything that would identify the name of the facility as the location of the event.