HomeMy WebLinkAbout1983 Authorizing the City to Amend a Certain Lease Agreement and Execute a Development Agreement with Live Nation BILL NO. 2024-012 ORDINANCE NO. I !
AN ORDINANCE AUTHORIZING THE CITY TO AMEND A CERTAIN LEASE AGREEMENT
AND EXECUTE A DEVELOPMENT AGREEMENT RELATED THERETO
WHEREAS, the City of Riverside, Missouri, a fourth-class city organized and existing
under the laws of the State of Missouri (hereinafter referred to as "Landlord"), and Live Nation
Entertainment, Inc., a Delaware corporation (hereinafter referred to as "Tenant") (collectively the
"Parties") entered into a Lease Agreement ("Lease") attached hereto as Exhibit A and
incorporated herein, authorized pursuant to Ordinance No. 1884 duly passed and approved by
the Board of Aldermen and approved and signed by the Mayor on the 6th day of December, 2022
("Lease").; and
WHEREAS, the Parties wish to amend the lease in order to finalize and confirm the
financial, construction, operation and maintenance obligations related thereto as provided for in
the agreement amending the Lease Agreement, attached hereto as Exhibit B, and incorporated
herein; and
WHEREAS, the Parties wish to enter into a Development Agreement, attached hereto as
Exhibit C and incorporated herein, for the development of the Amphitheater Project Site and the
adjacent parcels dedicated to a commercial mixed use site; and.
WHEREAS, the Board of Aldermen find it is in the best interest of the City to authorize
such amendment to the Lease in substantially the same form as Exhibit B and to further authorize
the execution of the Development Agreement in substantially the same form as Exhibit C.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1. BEST INTEREST OF THE CITY AND APPROVAL OF AMENDMENT TO
THE LEASE AUTHORIZED PURSUANT TO ORDINANCE NO. 1884 AND THE DEVELOMENT
AGREEMENT RELATED THERETO. The Board of Aldermen find it is in the best interest of the
City, in order to further the economic development objectives of the City, and further, the Board
of Aldermen hereby approve and authorize the execution of an amendment to the Lease in
substantially the same form as that attached hereto and incorporated herein as Exhibit B, and
the Development Agreement attached hereto and incorporated herein as Exhibit C, between the
City and the Tenant.
SECTION 2. AUTHORITY GRANTED. The Mayor is hereby authorized and directed to
execute the amendment to the Lease in substantially the same form as that attached hereto and
incorporated herein as Exhibit B, and the Development Agreement attached hereto and
incorporated herein as Exhibit C, between the City and the Tenant, and the Mayor, City
Administrator, Special Counsel to the City - Spencer Fane LLP, and other appropriate officials
and employees of the City are hereby authorized and directed to take such further action related
thereto as is otherwise necessary or desirable to carry out and comply with the intent of this
Ordinance.
SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect from
and after its passage and approval.
PASSED AND APPROVED: the 7' day March, 2024.
K hleen L. Rose, Mayor
ATTEST'
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Rdbrd/cineai�},, i.ty Clerk
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Approved as to form:
Spenc ne LLP,
Speci C unsel to the City
by Jo ednar
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EXHIBIT A
THE LEASE
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LEASE AGREEMENT
This LEASE AGREEMENT(this"Lease") is made this CII- day of December, 2022 (the
"Effective Date"),by and between the City of Riverside,Missouri,a fourth-class city organized and existing
under the laws of the State of Missouri (hereinafter referred to as "Landlord"), and Live Nation
Entertainment, Inc., a Delaware corporation (hereinafter referred to as "Tenant") (collectively the
"Parties").
RECITALS:
A. Landlord is the owner of certain real property located at the northwest intersection of
Horizons Parkway and 1-635 in the City of Riverside, Missouri,and more particularly described in Exhibit
A attached hereto and made a part hereof(the"Project Site").
B. Landlord and Tenant intend for Tenant to cause the development of the Project Site to
include: (I)a live entertainment venue amphitheater having a sellable, visible general admission capacity
of approximately 12,000 fixed seats and approximately 6,000 lawn seats for a total capacity of
approximately 18,000 seats, subject to reasonable adjustments in such fixed seat and lawn capacities as
determined by Tenant(the"Amphitheater"); (2)additional ancillary structures along with associated food
and beverage areas to serve the Amphitheater and its customers (the "Ancillary Structures"); (3) 1,920
paved and striped parking spaces and 4,446 grass or paved parking spaces for a total of 6,366 parking spaces
(collectively, the "Parking Areas"); (4) a separate future development parcel illustrated and described in
the Development Agreement (defined below)(the "Future Development Parcel") upon which Tenant
intends to develop such Parcel and vertical improvements which Tenant may desire to sublease to retail and
hospitality subtenants serving the general public, not solely customers of the Amphitheater,and the design
and location of the vertical improvements may be altered from time to time in connection with subleases
and licenses entered with third parties for the use of such Future Development Parcel pursuant to and
consistent with the Development Agreement; (5)the installation of public gas, water, electric, storm water
and sanitary sewer facilities to the Project Site (collectively, "Utilities") in capacities sufficient for the
operation of the Amphitheater Site(as defined below)and the Future Development Parcels; and(6)offsite
and onsite vehicular roadways providing public access to the Project Site from the adjacent public street
(the "Roadways"). Collectively, the Amphitheater, Ancillary Structures, Parking Areas, Utilities,
Roadways and Future Development Parcel are the "Project" and are generally depicted on Exhibit B
attached hereto and made a part hereof(the"Project Site Plan").
C. Tenant has developed a "Project Budget", which identifies certain components of the
Tenant's estimate of the hard and soft costs currently anticipated to be necessary to complete the Project
("Project Costs"), attached hereto and made a part hereof as Exhibit C, and Landlord and Tenant have
developed the anticipated revenue sources to pay for such costs ("Project Budget"), attached hereto and
made a part hereof as Exhibit D.
D. Landlord and Tenant desire to enter into this Lease to lease the Project Site,and enter into
a separate development agreement providing for a development plan for the development of the Project
Site (the "Development Agreement"), all of which will be leased to the Tenant by the Landlord. Tenant
desires to subdivide and sublease parcels of the Future Development Parcel to retail and hospitality
subtenants serving the general public, not solely customers of the Amphitheater (in addition the Parties
acknowledge there may be a need for the Tenant to enter into another separate agreement with the State or
an agency or subdivision thereof relating to the construction, operation and maintenance of the Parking
Areas), upon the terms and conditions set forth herein and therein.
NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged,
Landlord and Tenant hereby agree as follows:
I.
RECITALS AND DEFINITIONS
1.0 Incorporation of Recitals. The Recitals above are hereby acknowledged and accepted by
the Parties and are hereby incorporated into this Lease as if fully set forth in this Section 1.
1.1 Definitions. Except as otherwise provided in this Lease, certain words and terms shall
have the meanings as set forth below:
(a) "Additional Rent", means all amounts due to Landlord, payable by Tenant under the
provisions of this Lease, in addition to the Base Rent.
(b) "Amphitheater", means an outdoor live entertainment amphitheater structure having a
sellable, visible general admission capacity of approximately 12,000 fixed seats and approximately 6,000
lawn seats for a total capacity of approximately 18,000 seats (subject to reasonable adjustments in such
fixed seat and lawn capacities as determined by Tenant)to host concerts and other events;
(c) "Amphitheater Site", means the parcels upon which the Amphitheater and Ancillary
Structures are constructed as illustrated in Exhibit B;
(d) "Ancillary Structures",means food and beverage areas and other structures to serve the
Amphitheater and its customers, provided, however, Tenant may alter the design and location of the
Ancillary Structures from time to time in connection with subleases and licenses entered into by Tenant
with third parties for the use of such areas;
(e) "Base Rent", means the amount due from the Tenant to the Landlord for the use of the
Amphitheater Site during the Term of this Lease set out in Section 5.0 of this Lease;
(f) "Chapter 100" means the tax relief incentives to be utilized to construct vertical
improvements upon the Amphitheater Site pursuant to Sections 100.010-100.200 RSMo. and collectively
with Article VI Section 27(b)of the Missouri Constitution(the"Act");
(g) "Commencement Date"means the first date by which all of the conditions precedent in
favor of Landlord and Tenant in Section 22.15 have been satisfied or waived by the party which they
benefit;
(h) "Conceptual Project Budget"or"Project Budget",means the Tenant's estimate of the
cost to construct the Amphitheater Site, the Parking Areas, and the Utilities, and Roadways to be built to
serve the Project Site,and the anticipated revenue sources to pay for such costs,as illustrated in Exhibit C
attached hereto and incorporated herein;
(i) "Development Agreement", means the agreement by that name between the Landlord
and Tenant relating to the development of the Project Site or any portion thereof;
(j) "Landlord", means the City of Riverside, Missouri, a fourth-class city organized and
existing under the laws of the State of Missouri;
(k) "Landlord Permitted Uses", means civic uses and events including, without limitation,
school musicals,graduations and ceremonies;
(I) "Lease",means this Lease Agreement and its attachments,as may be amended;
(m) "Lease Expiration Date",means the 20th anniversary of the Rent Commencement Date;
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(n) "Parking Agreement", means any agreement in effect at any time between Tenant and
the State or any agency or subdivision thereof relating to Tenant's parking operations and the construction
and/or maintenance of the Parking Areas by the State or any agency or subdivision thereof.
(o) "Parking Areas",means 1,920 paved and striped parking spaces and 4,446 grass or paved
parking spaces for a total of 6,366 parking spaces, which may be owned,constructed and maintained by a
public entity,and which may be leased by(but shall in all cases be managed and operated by)Tenant;
(p) "Permitted Use"is defined in Section 4.0;
(q) "Plans", means plans, specifications, and construction drawings to be agreed on by
Landlord and Tenant during the period contemplated in Section 22.15 hereof;
(r) "Premises", means the Amphitheater, Ancillary Structures and Parking Areas shown as
part of the Project Site in Exhibit B(which exhibit more fully shows the boundaries of the Premises);
(s) "Project", means the Amphitheater, Ancillary Structures and, to the extent desired by
Tenant (or required by the Development Agreement), the mixed used developments on the Future
Development Parcel ("Vertical Improvements"), as well as the Parking Areas, Roadways, Utilities and
other infrastructure constructed to serve the Project("Horizontal Improvements");
(t) "Project Costs",means Tenant's estimate of the hard and soft costs necessary to complete
the Project,as set forth on Exhibit C;
(u) "Project Site", means the land parcels, as illustrated and depicted on Exhibit A, upon
which the Project shall be constructed;
(v) "Project Site Plan" is illustrated and depicted on Exhibit B;
(w) "Renewal Options", means the right and option to extend the Initial Term for five (5)
consecutive and individual periods of 10 years each;
(x) "Rent",means the amount of money paid to the Landlord for the use and enjoyment of the
Project Site;
(y) "Rent Commencement Date"shall have the meaning given in Section 2.2 of this Lease;
(z) "State", means the State of Missouri;
(aa) "Tenant",means Live Nation Entertainment, Inc.,a Delaware corporation;
(bb) "Tenant Contribution", means the funds required to pay for the completion of the
Vertical Improvements to be constructed and maintenance of the Project Site by Tenant as provided for in
this Lease and/or the Development Agreement,and as described in 3.2
(cc) "Term"is defined in Section 2.1 and Section 2.3 of this Lease.
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GRANT AND TERM
2.0 Grant. Landlord, for and in consideration of the Rent herein reserved and of the covenants and
agreements herein contained on the part of the Tenant to be performed,hereby leases to Tenant,and Tenant
hereby lets from Landlord the Project Site (other than public Roadways and Utilities for which utility
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companies are responsible), TOGETHER WITH AND GRANTING, as rights appurtenant to the Project
Site,the non-exclusive right to use in common with others entitled thereto,all easements and rights of way
now or hereafter benefiting the Project Site, including, without limitation, all utility, water, sewage and
storm water easements and rights of way and the non-exclusive right to use in common with others entitled
thereto all rights of ingress and egress for pedestrians and vehicular ingress and egress, as permitted by
applicable law,over the sidewalks, walkways, alleyways and roadways adjacent to the Project Site.
2.1 Initial Term and Term. The"Initial Term"of this Lease shall commence on the Commencement
Date and continue through the Lease Expiration Date. The Term shall include all timely exercised Renewal
Options(as hereinafter defined),so long as Tenant is not in default under this Lease beyond any applicable
cure period at the time of exercise of a Renewal Option.
2.2 Rent Commencement Date. The"Rent Commencement Date",shall be the earlier of(a)six(6)
months after the completion of construction of the Premises and Project or(b) the date on which Tenant
holds the first concert open to the public at the Amphitheater at which a majority of seats are sold. Tenant
and Landlord shall use diligent efforts to satisfy their contingencies in Sections 3.7 and 22.15 so that if and
when such contingencies are satisfied, Tenant may promptly commence and complete construction of the
Premises within a commercially reasonable time thereafter, and then promptly hold the first concert open
to the public at the Amphitheater.
2.3 Renewal Options. Tenant shall have the right and option to extend the Initial Term for five
individual and consecutive periods of 10 years each (each such option is a "Renewal Option" and the
Initial Term as extended by any Renewal Option is the "Renewal Term"), by giving Landlord at least
eighteen (18) months prior written notice of Tenant's election to exercise a Renewal Option. The Initial
Term,as extended by any Renewal Term shall be referred to as the"Term."
2.4 Landlord's Title. The Landlord hereby represents and warrants to Tenant, as of the
Commencement Date,that the Landlord has all requisite right,title and interest to the land comprising the
Project Site and that such rights, title and interest is free from all encumbrances and liens, except as
disclosed on Exhibit E attached hereto and made a part hereof (the "Permitted Encumbrances").
Landlord hereby acknowledges and agrees that the exclusive rights granted to Tenant in this Lease are to
be rights which will run with, bind and burden the land comprising the Project Site and will inure to the
benefit of Tenant, its successors and assigns, subject only to the Permitted Encumbrances.
This Lease shall be subject to and subordinate to the mortgages or other indentures which hereafter may
affect the Project Site, subject to Tenant's quiet possession and use of the Project Site not being disturbed
or hindered thereby for so long as Tenant is not in default of this Lease beyond any applicable notice and
cure periods. The effectiveness of the foregoing subordination shall be subject to all holders of any lien
upon or superior title to the Project Site executing and delivering to Tenant,in recordable form,a reasonable
and customary subordination, non-disturbance and attornment agreement, which agreement shall provide
that Tenant's interest in the Project Site pursuant to this Lease shall not be terminated or disturbed or
hindered thereby for so long as Tenant is not in default of this Lease beyond any applicable notice and cure
periods. It shall be a condition precedent to the obligation of Tenant to pay Rent that Landlord causes a
non-disturbance agreement to be delivered to Tenant from all then existing lienholders and superior title
holders.
2.5 Landlord Authority. Landlord hereby represents and warrants to Tenant that Landlord has full
power and authority to enter into this Lease and the person signing on behalf of such party has been fully
authorized to do so by all necessary legislative action, inclusive of Ordinance No. , dated ,
2020.
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2.5 Tenant Authority. Tenant hereby represents and warrants to Landlord that Tenant has full power
and authority to enter into this Lease and the person signing on behalf of such party has been fully
authorized to do so as evidenced by the certificate of incumbency of the Tenant provided to Landlord on or
before the Commencement Date.
2.6 Ownership of the Certain Improvements and Project Site. During the Term,the Landlord will
own the Project Site, provided that the Amphitheater, Ancillary Structures and fixtures, furniture and
equipment ("FF&E") constructed and/or located upon the Amphitheater Site shall be and remain the
property of the Tenant,subject to Section 20.0 of this Lease. Landlord and Tenant shall cooperate to cause
the assessor's and collector's offices of Platte County, Missouri to recognize this split in ownership of the
land versus the improvements thereon, including the creation of separate tax parcels for the Amphitheater
Site,the Parking Areas and the Future Development Parcel.
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POSSESSION AND IMPROVEMENTS
3.0 Possession. On the Commencement Date, Landlord shall deliver exclusive possession of the
Project Site (other than public Roadways and Utilities for which utility companies are responsible) to
Tenant in "AS IS, WHERE IS" condition. The Landlord covenants and agrees not to grant or permit or
suffer to attach to the Project Site or the use thereof any easement, restriction, lien or other encumbrance
affecting the title to the Project Site during the Term of this Lease other than the Permitted Encumbrances.
3.1 [INTENTIONALLY DELETED[
3.2 Tenant Contribution. Subject to satisfaction of Tenant's contingencies in Sections 3.7 and 22.15,
Tenant shall be solely responsible for funding the Project Costs of the design and construction of the
Vertical Improvements of the Project, provided, however such a responsibility shall not prohibit Tenant
from seeking and agreeing to third party financing or contributions from the State or other public or private
parties. Landlord shall use commercially reasonable efforts to assist Tenant in obtaining the maximum
funding from the State of Missouri available to fund the design and construction of the Horizontal
Improvements.
3.3 Tenant's Work. Subject to satisfaction of Tenant's contingencies in Sections 3.7 and 22.15,
Tenant shall be responsible, at its sole cost and expense (however such a responsibility does not prohibit
Tenant from seeking and accepting public or private third party financing, or seeking and accepting
contributions from the State for certain public infrastructure) for developing and constructing the Project
inclusive of fixturing and equipping the Amphitheater Site and performing Tenant's work as Tenant may
desire in order to develop the Amphitheater Site for the Permitted Uses, all of which shall be effected in
compliance with all applicable laws, rules, regulations and ordinances and in compliance with the Plans
approved in advance, in writing, by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. If the parties do not agree on the Plans by March 1,2023,then Landlord or Tenant
may terminate this Lease by written notice given on or before May 1,2023.
3.4 Amphitheater Site Multifunctional. It is the intent of the parties that the Amphitheater Site will
be multifunctional to allow for varied entertainment consistent with the Permitted Uses delineated within
this Lease.
3.5 Use of Funds. It is the express intention of the parties to this Lease that the amount of the Tenant's
Contribution shall be solely used to pay for the development, construction, fixturing and equipping of the
Project.
3.7 Approval of Critical Documents. The Parties acknowledge and agree that a material
consideration for entering into this Lease is the condition that Landlord and Tenant, each in its sole
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discretion, approves the final documents constituting the Development Agreement, the construction
contract for Tenant's work,the Parking Agreement and the final plans for Tenant's work,and in the event
that either Party does not give written approval of any of the foregoing documents or any such documents
are not executed by the parties thereto, on or before December 31, 2023, then either Party may terminate
this Lease upon written notice to the other Party delivered thirty days prior to such termination.
IV
PURPOSE
4.0 Permitted Use. Tenant shall use the Amphitheater Site for the operation of a live entertainment
venue together with ancillary uses thereto, including, without limitation, operation of food and beverage
service(including, without limitation, food storage,preparation, service and consumption,bar service and
the sale and consumption of alcoholic beverages), operation for dining and bar facilities, VIP rooms and
facilities, private and public rental events such as musical concerts, comedy acts,club nights, film debuts,
film festivals, art festivals, corporate rentals, private parties, product exhibitions, meetings, fund raising
events,charity events, broadcasting, recording, sale of concessions, and sale of merchandise related to the
operations or events at the Amphitheater Site, exhibiting of pay-per-view events, events for viewing on a
screen,or in an auditorium generally, the display and sale of works of art, videotapes, promotional items,
music, CDs, DVDs, and other items sold generally from time to time at live entertainment venues,
conducting parking operations at the Parking Areas,subleasing and licensing such areas and improvements
as Tenant may desire to retail and hospitality subtenants serving the general public (not solely customers
of the Amphitheater), and the Landlord Permitted Uses, all in accordance with, and as permitted by
applicable law.
4.1 Licenses and Permits; Compliance. In connection with Tenant's operation of the Amphitheater
Site for the Permitted Use, Tenant shall obtain and maintain in good standing all required licenses and
permits which relate to Tenant's operation and Permitted Use of the Amphitheater Site, including without
limitation, live entertainment business activity, any permit or licenses required to promote live
entertainment events and to sell and serve food and beverages for on-premises consumption, and other
applicable laws. Landlord shall not be responsible for the cost of any compliance, improvement,alteration
or repairs due to a change in use of the Amphitheater Site by Tenant or due to any alterations or installations
by Tenant of matters such as speakers, seats, video equipment, lighting equipment, concession equipment
and similar items. Landlord agrees to use reasonable good faith efforts to assist Tenant in timely obtaining
all necessary permits and licenses for the development and operation of the Amphitheater Site and Project
Site as contemplated by this Lease. In the event that unforeseen site conditions or entitlement issues arise
due to the physical condition of the Amphitheater Site or the nature of Landlord's title thereto, Landlord
shall be responsible to resolve such conditions or issues in a manner acceptable to Tenant in its reasonable
discretion.
4.2 Uses Prohibited. Tenant shall not use or occupy the Amphitheater Site contrary to any
governmental statute,rule,order,ordinance,requirement or regulation applicable thereto,or in any manner
which would violate any certificate of occupancy affecting the same.
4.3 Landlord Use Rights. Landlord(or its designee for any such purpose)may,pursuant to a written
rental agreement substantially similar to that form attached hereto as Exhibit F and incorporated herein,or
by using Tenant's then current form of rental agreement, rent the Amphitheater Site from Tenant at no
"rental"charge for the Landlord Permitted Uses, with capacities up to the lawful maximum depending on
the specific use and configuration of the spaces within the Amphitheater Site. In all circumstances of
Landlord renting or using the Amphitheater Site as provided above, Landlord shall reimburse Tenant for
any cost incurred by Tenant as a result of Landlord's usage.
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a. The Landlord Permitted Uses will be subject to availability and Landlord or the end user
entering into a written rental agreement substantially similar to that attached hereto as Exhibit F
or Tenant's then current form of rental agreement.
b. In no event, without prior written consent of the Tenant, which may be withheld at Tenant's
sole discretion, may a Landlord Permitted Use include the presentation of live music other than
talent which is local and not a professional live music entertainer.
4.4 Tenant's Exclusive Right to Possession and Use of Project Site. Except as otherwise specifically
provided in this Lease relating to remedies for events of default under this Lease, or as provided in any
subordination agreement affecting this Lease,during the Term of this Lease,Tenant shall have the exclusive
right to the possession and use of the Project Site(other than public Roadways and Utilities for which utility
companies are responsible).
4.5 Promoter Agreement. Landlord represents and warrants that as of the Commencement Date there
shall be no other promoter agreement which affects the use or occupancy of the Project Site or any portion
of the Project Site, exclusive of this Lease and any other agreements between Landlord and Tenant.
4.6 Restriction On Other Occupants Use of Site. Notwithstanding anything to the contrary contained
in this Lease,during the Term of this Lease,Landlord shall not allow for a period in excess of three minutes
any music,public address systems,or sounds of bells,whistles or sirens to be emitted from Landlord owned
or controlled property which is audible from the outdoor event areas of the Project Site at a volume that
exceeds normal speaking level at any time during a period commencing one hour prior to any outdoor event
at the Project Site and continuing through the conclusion of such event; provided there shall be excluded
from item(ii)any sounds emanated due to life-safety or emergency response systems.
4.7 Exclusive Use. Tenant shall have the exclusive right to operate a live music or entertainment venue
at the Project Site,which exclusive right shall include the presentation of live entertainment.
4.8 Operating Covenant. Tenant shall operate the Amphitheater Site for its intended use as a first
class amphitheater during the Term of the Lease.
4.9 Ticketing. Tenant shall have the exclusive right to perform or contract for all ticketing activities
at the Premises for Tenant events, which will not limit the Landlord's reasonable use of the Parking Areas
during non-event times(but subject to the parking rights of any retail or hospitality sublessees or licensees
of any Ancillary Structures or Future Development Parcels).
4.10 Revenues. Tenant shall be entitled to all revenues, exclusive of taxes collected, from events and
activities at the Premises (other than Landlord Permitted Uses to the extent provided in Section 4.3),
including, without limitation,(a)the Parking Areas,and the Ancillary Structures for Tenant events serving
food and beverages and selling merchandise, and (b) from retail and hospitality subleases and licenses at
the Premises entered into by Tenant with third parties, in each case less the taxes, rents and fees payable
under this Lease by Tenant to the Landlord.
4.11 Naming Rights. Tenant shall have the absolute and exclusive right to name the Amphitheater and
Ancillary Structures and to sell such right. Notwithstanding the foregoing, Tenant shall not enter into any
such naming agreement which depicts or includes the name of (i) tobacco or tobacco products or
manufactures or distributors thereof, (ii) fire arms or fire arm products or manufactures or distributors
thereof, (iii) sexually oriented businesses(as defined by law)or sexually oriented products(e.g. condoms,
pornographic materials, sex toys, etc.),or(iv)a discriminatory name by nature(as defined by law).
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4.12 Sponsorships. Tenant shall have the absolute and exclusive right to enter into any sponsorship
agreements affecting the Amphitheater, Ancillary Structures, any other portions of the Premises and the
operations therein,and all revenues from such sponsorships shall be the sole property of Tenant.
4.13 Exterior Signage. Tenant may erect any exterior signage permitted by law and subject to(a)such
signage being similar to signage of similar facilities operated by Tenant (or, as applicable, customary for
any retail or hospitality areas subleased or licensed by Tenant to third parties) and (b) applicable code
requirements and Landlord's prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed,provided that marquees and name signage may include scrolling information as to
upcoming events at the Amphitheater Site.
4.14 Use of Tenant's Logo. Landlord shall not have the right to use the Tenant's logo for any purpose
whatsoever, unless as reasonably approved by the Tenant.
V
RENT
5.0 Base Rent. The Base Rent due from Tenant to Landlord on an annual basis is Six Hundred Twenty-
One Thousand, Five Hundred and 00/100 Dollars($621,500.00)which is due in equal monthly payments
on the first day of each calendar month through the Term commencing on the Rent Commencement Date.
The Base Rent shall be compounded by two percent (2%) annually beginning in Year 2. By way of
example:
Year Base Rent
1 $621,500
2 ($621,500 x 1.02=) $633,930
3 ($633,930 x 1.02=) $646,608.60
In the event that the Commencement Date falls on any date other than the first day of a calendar
month, Rent for such partial month shall be pro-rated based on the actual number of days in such
month.
5.1 [Intentionally Deleted[.
5.2 [Intentionally Deleted].
5.3 Late Charge; Interest on Late Payments. Each and every payment of Rent hereunder then due
and payable under this Lease, which shall not be paid within five(5)business days of the date that Tenant
receives written notice thereof from Landlord, shall carry a late charge in the amount of One Thousand
Dollars($1,000.00),which late charge and delinquent installment of payment shall bear interest at the rate,
from time to time, of the UMB, N.A. prime rate of interest plus four percent (4%), per annum from the
tenth(10th)day following the date the payment of Rent was due under the terms of this Lease until the same
shall be paid.
5.4 [Intentionally Deleted].
5.5 [Intentionally Deleted].
5.6 Additional Rent. The various components of Additional Rent shall be payable at the times
specified in this Lease for such payment,or if not so specified with respect to any particular component of
Additional Rent,within 10 business days after Tenant receives a notice from the Landlord as to the amount
owed.
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5.7 General Rent Provisions. Except as specifically provided in this Lease,all payments of Rent shall
be made without deduction, set off, discount or abatement in lawful money of the United States.
Notwithstanding the obligation of Landlord,if any,to provide services under this Lease,except as otherwise
specifically provided in this Lease,no temporary interruption of such services shall abate Tenant's duty to
pay Rent or render Landlord liable for such temporary interruptions.
5.8 Triple Net Lease. This Lease is and shall be construed as a "triple net lease" and Tenant
shall pay all expenses to maintain the Project Site(other than public Roadways and Utilities for which
utility companies are responsible)throughout the Term, except as otherwise provided herein.
VI
OPERATING COSTS; PARKING; PROPERTY TAXES
6.0 Operating Costs. Tenant shall be responsible for and pay for all operations of the Premises by
Tenant or anyone claiming under Tenant, including, without limitation,cleaning,repairs and maintenance
to the Amphitheater and Ancillary Structures, all required insurance of Tenant (as set forth below) and
security for the Amphitheater Site. Tenant will pay any impact taxes, hook-up fees and similar one-time
costs associated with the development of the Amphitheater Site which are due to Tenant's work.
6.1 Parking Access. Tenant may enter into an agreement for the State, or an agency or subdivision
thereof,regarding the construction,maintenance and operation of the Parking Areas for all Tenant events held
at the Amphitheater Site for the exclusive use of Tenant's patrons and other individuals;provided,however,
if no such agreement is entered into by the time Tenant desires to obtain its building permits for
Amphitheater Site, Tenant may construct, maintain and operate the Parking Areas. Tenant shall have the
ability to charge such Tenant patrons and other individuals a fee for parking and to keep all revenue
collected, exclusive of applicable taxes and any payment due the Landlord or the State pursuant to any
parking agreement entered into by and between the State or an agency thereof,and Tenant, if any.
6.2 Real Estate Taxes. Except for the Levee Assessment imposed by the Riverside Quindaro Bend
Levee District ("RQBLD"), the land comprising the Project Site is anticipated to be exempt from ad
valorem property taxes by virtue of ownership by the Landlord. Other than the Levee Assessment,Tenant
will not be responsible for the payment of such taxes or impositions levied against the land comprising the
Project Site or any non-Amphitheater-improvements made by the Landlord or any other party and not by
the Tenant. Tenant shall be responsible to pay all real estate taxes and similar impositions attributed to
Tenant's improvements of every kind assessed against the improvements of Tenant, such as the
Amphitheater and Ancillary Structures, at the Premises and associated with the ownership or operation
thereof, specifically including all such taxes and impositions levied against Tenant's fee interest in the
Tenant's improvements at the Premises.
6.3 Taxes on Leasehold and Personal Property.Tenant shall be responsible for and shall pay before
delinquent all ad valorem taxes coming due during or after the Term against Tenant's interest in this Lease
or against personal property of any kind owned or placed in, upon or about the Project Site by Tenant.
VII
SALES AND USE TAX
7.0 Sales and Use Tax. Tenant hereby covenants and agrees to pay when due,any sales, use or other
such tax (excluding state and/or federal income tax) now or hereafter imposed upon its operations at the
Project Site by the United States of America, the State of Missouri or any political subdivisions thereof,
notwithstanding the fact that the statute,ordinance or enactment imposing the same may endeavor to impose
9
the tax on Landlord. Any such amounts as may be paid by Landlord shall be reimbursed to Landlord by
Tenant and shall constitute Additional Rent under this Lease.
VIII
INSURANCE
8.0 Tenant's Insurance. Tenant covenants and agrees to provide and maintain in full force and effect,
at its sole cost and expense, throughout the Term, (i)comprehensive general liability insurance and liquor
legal liability insurance insuring against liability for personal injury and death in limits of not less than
$1,000,000 for death of or injury per occurrence, and $5,000,000 in the annual aggregate, (ii) from
commencement of construction of and upon the Project Site(other than public Roadways and Utilities for
which utility companies are responsible)until the completion thereof, a policy or policies of builder's risk
insurance,either on a"completed value"form with coverage based on the estimated value of the completed
Premises,including any and all Tenant's improvements,fixtures,furnishings,equipment and other property
in or on the Amphitheater Site, or on a"reporting" form with coverage based on the then-current value of
the Premises, including any and all Tenant's improvements, fixtures, furnishings, equipment and other
property in or on the Amphitheater Site, at the time of each report (provided that the Tenant may comply
with the requirement to maintain builder's risk insurance by arranging for its construction contractor to
maintain such coverage),(iii)after completion of the Premises,"all risk"casualty insurance covering all of
the Project Site(other than public Roadways and Utilities for which utility companies are responsible)and
all Tenant's improvements, fixtures, furnishings,equipment and other property in or on the Premises in an
amount not less than the total aggregate insurable value thereof, and (iv) insurance covering Landlord in
amounts no less than required pursuant to Section 537.610 RSMo(subject to loss deductible clauses not to
exceed $50,000). Tenant shall also carry at least a $5,000,000 umbrella covering general, liquor and
property liability insurance.
8.1 Form of Insurance;Waiver and Indemnity. All insurance required to be carried by Tenant under
this Lease shall be effected under valid and enforceable policies issued by insurers licensed to do business
in the State of Missouri or generally recognized international insurers or reinsurers with an A.M.Best rating
of B+ or the equivalent thereof or better. At least 10 days prior to the expiration of any policy required
under this Lease, Tenant shall endeavor to provide Landlord certificates of insurance showing renewal or
replacement coverage. Tenant covenants and warrants that it will pay or cause to be paid the premiums
payable with respect to each such policy when due and, upon written request of Landlord, will provide
Landlord with evidence of such payment within ten (10) business days after Landlord's request therefor.
In the event Tenant fails to pay any such premiums or to exhibit such evidence of payment as aforesaid,
Landlord may,but shall not be obligated to,upon ten(10)days prior written notice to Tenant,procure such
insurance and/or pay such premiums,respectively,on Tenant's behalf,and the amounts expended therefor
by Landlord shall constitute Additional Rent hereunder and shall be immediately payable by Tenant to
Landlord upon Tenant's receipt of Landlord's statement therefor. All policies of insurance required to be
carried by Tenant hereunder shall name Landlord and Tenant as the insureds or additional insureds,as their
respective interests may appear. Each policy of insurance required to be carried by Tenant hereunder shall
contain an agreement, to the extent possible, by the insurer thereunder that such policy shall not be
cancellable except upon thirty(30)days prior written notice to Landlord and Bond Trustee.
IX
UTILITIES
9.0 Utilities. Tenant, at its sole cost and expense, shall arrange for and obtain service for electric
current,water and sewer,and gas directly from the public utility companies furnishing service to the Project
Site and lighting of the Parking Areas, subject however, to any contrary provisions of any agreement
regarding the Parking Areas between Tenant and the State or any agency or subdivision thereof(to the
extent such provisions require the State or its agency or subdivision to arrange for and/or obtain such
10
services, for example). The costs of such services shall be paid by Tenant directly to such public utility
companies. Any charge for utilities not paid when due by Tenant and assessed against the Landlord may
be paid by Landlord, and the amount of such charge, together with any interest or penalties thereon, plus
Landlord's administrative charge of One Hundred Dollars(S 100),shall be immediately due and payable by
Tenant to Landlord,as Additional Rent hereunder,upon Tenant's receipt of Landlord's statement therefor.
Landlord shall not be liable in any way to Tenant for any failure or defect in the supply or character of
utility service furnished to the Project Site by reason of any act or omission of the utility company serving
the Project Site or for any other reason not attributable to the negligence or willful misconduct of Landlord.
X
REPAIRS AND ALTERATIONS
10.0 Alterations. Without the consent of Landlord,Tenant may perform such improvements,alterations
and changes to the Premises as Tenant may desire as long as such matters complement the operation of the
Amphitheater as a live music or entertainment venue for the Permitted Uses. Tenant will give Landlord
written notice and a general summary of such alterations prior to making them.
Any such improvements, alterations, and changes shall be done by Tenant at its sole cost and
expense and in a good and workmanlike manner, in compliance with all applicable laws, rules,codes and
regulations applicable to the Premises and lien free(and Tenant shall bond or discharge any liens promptly
within 30 days of same).
10.1 Maintenance. During the Term,Tenant will operate and maintain the Premises and Amphitheater
Site in an orderly and first class manner;provided,however,that a third party agreed to by the Tenant(such
as the State or any agency or subdivision thereof entering into an agreement with Tenant regarding the
Parking Areas), may throughout the Term, provide and maintain the Parking Areas in good condition and
repair,reasonable wear and tear excepted.
XI
DAMAGE OR DESTRUCTION
11.0 Destruction. (a) If the Premises or any part thereof shall be damaged by fire or other casualty,
Tenant shall give prompt notice thereof to Landlord and this Lease shall continue in full force and effect
except as hereinafter set forth. (b) If the Premises is partially damaged or rendered partially unusable by
fire or other casualty,the damages thereto shall be repaired by and at the expense of Tenant,and the Rent,
shall be equitably abated(for purposes of this section,"partially"shall mean affecting at least 10%,but no
more than 50% of the Premises). (c) If the Premises is totally damaged or rendered wholly unusable by
fire or other casualty, then the Rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the Amphitheater and/or Ancillary Structures shall have been
repaired and restored by Tenant;provided,however, if such damage occurs in the final five(5)years of the
Initial Term or during any Renewal Term, either Tenant or Landlord may elect to terminate this Lease by
written notice to the other given within 90 days after such damage occurs, specifying a date for the
expiration of this Lease,which date shall not be more than 60 days after the giving of such notice,and upon
the date specified in such notice the term of this Lease shall expire as fully and completely as if such date
were the date set forth above for the termination of this Lease and Tenant shall forthwith quit, vacate and
surrender the Premises without prejudice however to Landlord's rights and remedies against Tenant under
the Lease provisions in effect prior to such termination, and any Rent owing shall be paid up to such date
and any payments of Rent made by Tenant which were on account of any period subsequent to such date
shall be returned to Tenant. Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss or damage resulting from fire
or other casualty,and to the extent that such insurance is in force and collectible and to the extent permitted
by law, Landlord and Tenant each hereby releases and waives all right of recovery against the other or any
11
one claiming through or under each of them by way of subrogation or otherwise. The foregoing release
and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance and also, provided that such a policy can be obtained
without additional premiums. Tenant acknowledges that Landlord shall not be obligated to carry insurance
covering any loss to Tenant or to repair any damage to the Amphitheater Site or Tenant's property located
therein. Additional Rent,specifically including the Additional Rent due under Section 5.4 and Section 5.5,
shall not be subject to abatement for any reason.
XII
CONDEMNATION
12.0 Condemnation. If the whole or part of the Amphitheater Site or Parking Areas shall be acquired
or condemned by eminent domain or transfer in lieu thereof to such extent that the Tenant cannot reasonably
and in an economically feasible manner continue its operations on the Amphitheater Site in substantially
the same scale and manner as originally anticipated by the parties to this Lease, then and in that event,
Tenant shall have the right to terminate this Lease whereupon the term of this Lease shall cease and
terminate from the date of Tenant's termination notice and Tenant shall have no claim for the value of any
unexpired term of this Lease.
XIII
ASSIGNMENT AND SUBLETTING
13.0 Sublease or Assignment. Tenant, except as herein provided, shall not, without Landlord's prior
written consent(which shall not be unreasonably withheld,conditioned or delayed),sublease all or any part
of the Premises or assign any of it rights or obligations under this Lease. Notwithstanding the foregoing or
anything to the contrary contained in this Lease,Tenant shall have the right at any time to sublease,assign,
license or otherwise permit occupancy of all or any portion of the Premises, without Landlord's approval
or consent,to any(i)related entity,affiliate,subsidiary or parent company of Tenant,(ii)company in which
Tenant has a controlling interest or is under common control with,(iii)successor entity,whether by merger,
consolidation or otherwise, (iv) person or entity that purchases all or substantially all (defined as 51% of
Tenant's assets or a controlling interest in Tenant's stock, as applicable)of Tenant's assets or stock,(v)to
an entity which is set up to hold the liquor license for the Premises(any of the foregoing herein referred to
as a"Permitted Transfer")or(vi)any retail or hospitality company or operator who will occupy all or any
portion of an Ancillary Structure under a sublease or license with Tenant and serve the general public(not
solely customers of the Amphitheater);provided,however,that any such sublease,assignment or permitted
occupancy shall not relieve Tenant of its obligations under this Lease. Further notwithstanding anything to
the contrary contained in this Lease, Tenant shall have the right to grant licenses, concessions,
operating/management agreements, and rentals for events and concession services without Landlord's
approval or consent, and all of the foregoing shall be deemed to not be an assignment or sublease or a
violation of this Lease,provided that the same shall not relieve Tenant of its obligations under this Lease.
XIV
MECHANIC'S LIENS
14.0 Mechanic's Liens. (a) Nothing in this Lease shall be construed in any way as constituting the
permission,consent or request of Landlord,express or implied,through act or omission to act,by inference
or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor
services or the furnishing of any materials for any alteration to the Project Site, or as giving Tenant any
right, power or authority to contract for or permit the rendering of any such labor or services or the
furnishing of any materials that could give rise to the filing of any mechanic's lien against the Project Site.
(b) Tenant shall keep the Project Site (other than public Roadways and Utilities for which
utility companies are responsible)free from any liens arising out of the work performed,materials furnished
12
or obligations incurred by,through or under Tenant,and shall protect,defend,indemnify and hold Landlord
harmless from and against any claims, liabilities, judgments or costs (including, without limitation,
reasonable attorneys' fees and costs) arising out of same or in connection therewith. Tenant shall remove
any such lien by bond or otherwise within thirty(30)days after notice by Landlord,and if Tenant shall fail
to do so, Landlord may pay the amount necessary to remove such lien without being responsible for
investigating the validity thereof. The amount so paid shall be deemed Additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to Landlord under this Lease.
XV
INDEMNITY AND RELEASE
15.0 Tenant's Indemnity. Tenant shall defend and indemnify Landlord and its elected or appointed
officials, officers, employees, and agents, and hold them harmless from and against any and all claims,
actions, damages, liability, losses, suits, obligations, fees, and expenses (including reasonable attorneys'
fees), including claims for death or injuries to person or property, to the extent arising from Tenant's
operations at the Project Site(but excluding public Roadways and Utilities for which utility companies are
responsible)except to the extent caused in whole or in part by the gross negligence or willful misconduct
of Landlord, its officials, agents, contractors, invitees or employees. This Section shall survive the
termination of this Lease with respect to any damage, bodily or personal injury, illness or death occurring
prior to such termination.
15.1 [Intentionally Deleted'
XVI
RIGHTS RESERVED TO LANDLORD
16.0 Rights Reserved to Landlord. Without limiting any other right reserved or available to Landlord
under this Lease, at law or in equity, Landlord, on behalf of itself and its agents reserves the following
rights to be exercised at Landlord's election:
(a) To inspect the Amphitheater and Project Site from 8:00 am to 5:00 pm upon at least 48 hours
prior notice and at any time in the event of an emergency;
(b) To show the Amphitheater Site from 8:00 am to 5:00 pm upon at least 48 hours prior notice to
prospective purchasers, or mortgagees, and within eighteen(18)months prior to the expiration of
the Term, from 8:00 am to 5:00 pm upon at least 48 hours prior notice to persons wishing to rent
all or any portion of the Amphitheater Site. Landlord shall have the right to place a "For Rent"
sign on the Amphitheater Site during such eighteen(18)month period.
Landlord may enter upon the Amphitheater Site for any and all of said purposes and may exercise any and
all of the foregoing rights hereby reserved in a reasonable manner without being deemed guilty of an
eviction or disturbance of Tenant's use or possession of the Amphitheater Site.
XVI1
QUIET ENJOYMENT
17.0 Quiet Enjoyment. So long as Tenant is not in default under the covenants and agreements of this
Lease relating to the manner in which Tenant operates the Premises, Tenant's quiet and peaceable
enjoyment of the Premises shall not be disturbed,hindered or interfered with by Landlord or by any person
claiming by,through or under Landlord.
XVIII
INTENTIONALLY DELETED
13
18.0 [INTENTIONALLY DELETED.)
XIX
ENVIRONMENTAL COMPLIANCE
19.0 Environmental Compliance. Subject to and in reliance on the Phase I Environmental Site
Assessment for the Project Site,a copy of which will be delivered to Tenant promptly after the date hereof,
Landlord hereby represents and warrants to Tenant that as of the date of this Lease, Landlord has no
knowledge, nor has reasonable cause to believe, that a release of hazardous materials has occurred at the
Project Site or that hazardous materials are otherwise present at the Project Site. Landlord further represents
and warrants, to the best of its actual knowledge, without independent inquiry, that the Project Site is in
compliance with all federal, state and/or local statues, regulations, rules, and/or ordinances and with all
orders,decrees or judgments of governmental authorities or courts having jurisdictions,relating to the use,
generation, storage, control, removal or clean-up of hazardous materials. To the extent any hazardous
materials are present in,at,on or about the Project Site through no fault of Tenant or a third-party affiliated
with Tenant's operations, Landlord shall be responsible for removing or otherwise remediating such
hazardous materials to the extent required by,and in full compliance with,all environmental laws at no cost
to Tenant.
Tenant agrees, during the Term, that it will not use, generate, store, control, release, or dispose of
any hazardous materials at the Project Site, except in such condition and quantities permitted by and in
compliance with applicable law. In the event of a release of hazardous materials by Tenant or a third-party
affiliated with Tenant's operations, Tenant shall indemnify and hold Landlord harmless from and against
any and all costs and/or liabilities of any kind or nature in any way related to the existence, removal,
transportation or disposal of such releases of hazardous materials. Except in compliance with applicable
laws,Tenant shall not permit or cause any party to bring any Hazardous Substances upon the Project Site
or Premises or transport, store, use, generate, manufacture, dispose or release any Hazardous Substances
on or from the Project Site or Premises.
XX
SURRENDER
20.0 Surrender. Upon the termination of this Lease for any reason(whether by forfeiture or lapse of
time, upon the termination of Tenant's right to possession of the Amphitheater Site or Project Site by
Landlord or termination of this Lease by Tenant,or otherwise)Tenant will at once surrender and deliver to
Landlord in good condition and repair, reasonable wear and tear excepted, the Amphitheater and Project
Site and/or Premises, together with all alterations therein or thereto, which shall at such point become the
absolute property of Landlord.
20.1 Removal of Tenant's Property. Upon the termination of this Lease,Tenant may remove Tenant's
articles of personal property, trade fixtures, furniture and equipment; provided, however,that Tenant shall
repair any injury or damage to the Project Site which may result from such removals. If Tenant does not
remove its trade fixtures from the Amphitheater Site prior to the end of the Term, Landlord may treat such
trade fixtures as having been conveyed to Landlord with this Lease as a bill of sale,without further payment
or credit by Landlord to Tenant.
20.2 Holding Over. Any holding over by Tenant of all or any portions of the Amphitheater or Project
Site after the expiration of this Lease shall operate and be construed to be a tenancy from month to month
only, at 150% of the monthly rate of Base Rent payable hereunder for the Term, plus 100% of all other
Rent components. If Tenant continues to hold over after a written demand by Landlord for possession at
the expiration of the Lease or after termination by either party of a month-to-month tenancy created pursuant
to this Section,or after termination of the Lease or of Tenant's right to possession pursuant to Section 21.0
14
hereof, Tenant shall pay monthly rental at a rate equal to twice the rate of Base Rent payable hereunder
immediately prior to the expiration or other termination of the Lease or Tenant's right to possession.
Nothing contained in this Section 20.2 shall be construed to give Tenant the right to hold over after
expiration of this Lease, and Landlord may exercise any and all remedies at law or in equity to recover
possession of the Amphitheater Site and Project Site.
XXI
REMEDIES AND TENANT'S PROPERTY
21.0 Defaults. Tenant agrees that any one or more of the following events shall be considered events
of default as said term is used herein,that is to say, if:
(a) Tenant shall be adjudged an involuntary bankrupt,or a decree or order approving,as properly
filed, a petition or answer filed against Tenant asking reorganization of Tenant under the federal
bankruptcy laws as now or hereafter amended,or under the laws of any state,shall be entered,and
any such decree or judgment or order shall not have been stayed pending appeal, vacated or set
aside within sixty(60)days from the date of the entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the material allegations contained in
any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the federal
bankruptcy laws as now or hereafter amended,or Tenant shall institute any proceedings or give its
consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or
insolvency laws or under laws relating to the relief of debtors, readjustment of indebtedness,
reorganization, arrangements,composition or extension; or
(c) Tenant shall make any assignment for the benefit of creditors or shall apply for or consent to
the appointment of a receiver for Tenant or any of the property of Tenant;or
(d) A decree or order appointing a receiver of the property of Tenant shall be made and such decree
or order shall not have been vacated or set aside or stayed pending appeal within sixty (60) days
from the date of entry or granting thereof; or
(e) Tenant shall default in any payment of Rent or in any other payment required to be made by
Tenant hereunder when due as herein provided and such default shall continue for ten (10) days
after written notice thereof from Landlord to Tenant; or
(f) Tenant shall default in keeping, observing or performing any of the other covenants or
agreements herein contained to be kept,observed and performed by Tenant and such default shall
continue for thirty (30) days after written notice thereof is sent in writing to Tenant, unless such
performance shall reasonably require a longer period, in which case Tenant shall not be deemed in
default if Tenant commences the required performance promptly and thereafter pursues and
completes such action diligently; or
Upon the occurrence of any one or more of such events of default, Landlord may, at its election,
terminate this Lease,or terminate Tenant's right to possession only, without terminating this Lease. Upon
termination of this Lease, or upon termination of Tenant's right to possession without termination of this
Lease, Tenant shall surrender possession and vacate the Amphitheater and Project Site immediately, and
deliver possession thereof to Landlord.
Upon termination of this Lease,Landlord shall be entitled to recover as damages,all Rent and other
sums due and payable by Tenant on the date of termination, plus: (1) an amount equal to the value of the
Rent and other sums provided herein to be paid by Tenant for the balance of the then-current Term hereof,
15
less the fair rental value of the Amphitheater, Premises and Project Site for the balance of the then-current
Term (taking into account the time and expenses necessary to obtain a replacement tenant or tenants,
including expenses hereinafter described relating to recovery of the Amphitheater, Premises and Project
Site,preparation for reletting and reletting itself);and,(2)the cost of performing any other covenants to be
performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only, without terminating this Lease,
Landlord may, at Landlord's option, enter into the Amphitheater and Project Site, remove Tenant's signs
and other evidences of ownership or tenancy,and take hold and possession thereof as hereinabove provided,
without such entry and possession terminating this Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the Rent hereunder for the full Term or from any other of its obligations under
this Lease. Landlord shall use commercially reasonable efforts to relet all or any part of the Amphitheater
and Project Site and Premises for such rent and upon such terms as shall be reasonably satisfactory to
Landlord(including the right to relet the Amphitheater and Project Site and Premises for a term greater or
lesser than that remaining under this Lease Term). For the purposes of such reletting, Landlord may
decorate or may make any repairs, changes, alterations or additions in or to the Amphitheater and Project
Site and Premises that may be necessary or convenient. If Landlord does not relet the Amphitheater and
Project Site and/or Premises,Tenant shall pay to Landlord,on demand,damages equal to the amount of the
Rent,and other sums provided herein to be paid by Tenant for the remainder of the Lease term less the fair
rental value of the Amphitheater and Project Site and Premises for the balance of the then-current Term. If
the Amphitheater and Project Site and/or Premises are relet and a sufficient sum shall not be realized from
such reletting after paying all of the expenses of such reletting (but excluding decorating, changes,
alterations,additions or improvements)and the collection of the rent accruing therefrom(including,but not
by way of limitation,attorney's fees and broker's commissions),to satisfy the Rent and other charges herein
provided to be paid for the remainder of this Lease Term, Tenant shall pay to Landlord on demand any
deficiency and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms
of this Section from time to time.
Landlord hereby covenants and agrees that Landlord will use its commercially reasonable efforts
to mitigate its damages in the event of default by Tenant.
21.1 Remedies Cumulative. No remedy herein or otherwise conferred upon or reserved to Landlord
shall be considered to exclude or suspend any other remedy but the same shall be cumulative and shall be
in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity or by
statute, and every power and remedy given by this Lease to Landlord may be exercised from time to time
and so often as occasion may arise or as may be deemed expedient.
21.2 No Waiver. No delay or omission of Landlord to exercise any right or power arising from any
default shall impair any such right or power or shall be construed to be a waiver of any such default or any
acquiescence therein. No waiver of any breach of any of the covenants of this Lease shall be construed,
taken or held to be a waiver of any other breach, or as a waiver, acquiescence in or consent to any further
or succeeding breach of the same covenant. The acceptance by Landlord of any payment of Rent or other
charges hereunder after the termination by Landlord of this Lease or of Tenant's right to possession
hereunder, shall not, in the absence of agreement in writing to the contrary by Landlord, be deemed to
restore this Lease or Tenant's right to possession hereunder,as the case may be,but shall be construed as a
payment on account,and not in satisfaction of damages due from Tenant to Landlord.
213 Events of Default by Landlord. Landlord agrees that any one or more of the following events
shall be considered a"Landlord Default"as said term is used herein:
(a) Landlord fails to pay any amount owing to Tenant hereunder within thirty(30)days following
written notice from Tenant that the applicable payment was not timely made;or
16
(b) Landlord shall be in default in the performance of or compliance with any of the agreements,
terms, covenants or conditions in this Lease other than those referred to in the foregoing
subparagraph(a)of this Section for a period of thirty(30)days after written notice from Tenant to
Landlord specifying the items in default, or in the case of a default which cannot, with due
diligence, be cured within said thirty (30) day period, Landlord fails to proceed within said thirty
(30) day period to cure the same and thereafter to prosecute the curing of such default with due
diligence but in any event within sixty(60)days; or
(c) Landlord fails to commence to perform,keep or observe any covenants,conditions,agreement
or obligations and diligently pursue completion under any agreement that would adversely affect
the ability of Tenant to use the Premises for Permitted Uses for a period of twenty(20)days after
written notice from Tenant to Landlord specifying the items in default, or in the case of a default
which cannot, with due diligence, be cured within said twenty (20) day period, Landlord fails to
proceed within said twenty(20)day period to cure the same and thereafter to prosecute the curing
of such default with due diligence but in any event within forty-five(45)days; or
(d) Landlord is in default under the Development Agreement or the Parking Agreement.
21.4 Tenant Remedies. Upon the occurrence of any Landlord Default, Tenant shall, except as
otherwise expressly provided herein,have all rights and remedies provided hereunder and by law and equity
from time to time.
XXII
MISCELLANEOUS
22.0 Amendments must be in Writing. None of the covenants, terms or conditions of this Lease,to
be kept and performed by either party, shall in any manner be altered, waived, modified, changed or
abandoned unless by a written instrument,duly signed and delivered by the parties.
22.1 Notices. Any notices, communications and waivers under this Lease shall be in writing and shall
be delivered either by(i) registered or certified mail, return receipt requested, or(ii) by overnight express
carrier,addressed in each case as follows.
To Landlord: City of Riverside, Missouri
2950 N.W. Vivion Road
Riverside, Missouri 64150
Attn: City Administrator
With a copy to: Spencer Fane, LLP
304 East High Street
Jefferson City, Missouri 65101
Attn: Joe Bednar
To Tenant: Live Nation Entertainment, Inc.
do Live Nation
9348 Civic Center Drive
Beverly Hills, California 90210
Attn: President
17
with a copy to: Live Nation Entertainment, Inc.
325 N. Maple Drive,2nd Floor
Beverly Hills,CA 90210
Attn: Chief Counsel -Concerts
or to any other address as to any of the parties hereto,as such party shall designate in a written notice to the
other party hereto. All notices sent pursuant to the terms of this Section shall be deemed received (i) if
personally delivered,then on the date of delivery, (ii) if sent by overnight,express carrier,then on the next
federal banking day immediately following the day sent, or(iii) if sent by registered or certified mail,then
on the earlier of the third federal banking day following the day sent or when actually received.
22.2 Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal, or of joint venture by the parties
hereto, it being understood and agreed that no provision contained in this Lease nor any acts of the parties
hereto shall be deemed to create any relationship other than the relationship of landlord and tenant.
22.3 Captions. The captions of this Lease are for convenience only and are not to be construed as a part
of this Lease and shall not be construed as defining or limiting in any way the scope or intent of the
provisions hereof.
22.4 Severability. If any term or provision of this Lease shall, to any extent, be held invalid or
unenforceable,the remaining terms and provisions of this Lease shall not be affected thereby,but each term
and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
22.5 Law Applicable. This Lease shall be governed by,construed and enforced in accordance with the
laws of the State of Missouri.
22.6 Covenants Binding on Successors. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs, distributees,
executors,administrators, successors, and except as otherwise provided in this Lease,their assigns.
22.7 Brokerage. Each of the parties to this Lease warrants and represents that it has had no dealings
with any broker or agent in connection with this Lease. Each party covenants to pay, hold harmless and
indemnify the other from and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any broker or agent claiming through such party with respect to this
Lease or the negotiation thereof.
22.8 No Personal Liability of Landlord. It is specifically understood and agreed that there shall be
no personal liability of Landlord, its elected or appointed officials, and/or employees in respect to any of
the covenants,conditions or provisions of this Lease; in the event of a breach or default by Landlord of any
of its obligations under this Lease, Tenant shall look solely to the interest of Landlord in the Project Site
for satisfaction of Tenant's remedies.
22.9 Waiver of Jury Trial. It is mutually agreed by and between Landlord and Tenant that they and
their respective successors and permitted assigns and any permitted subtenant of Tenant hereby knowingly
waive trial by jury in any proceeding or counterclaim brought by any of them in any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Project Site,and any emergency statutory or any other statutory remedy.
22.10 Estoppel Certificate. Tenant, at any time and from time to time, upon at least 20 days' notice by
Landlord, shall execute, acknowledge and deliver to Landlord, and/or to any other person, firm or
corporation specified by Landlord,a statement certifying that this Lease is unmodified and in full force and
18
effect(or, if there have been modifications, that the same is in full force and effect as modified and stating
the modifications),stating the dates to which the Rent has been paid,and stating whether or not there exists
any defaults by Landlord under this Lease,and, if so, specifying each such default.
22.11 Mutual Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, IN NO EVENT SHALL EITHER PARTY BE
ENTITLED TO CLAIM OR MAKE A RECOVERY FOR ANY CONSEQUENTIAL, PUNITIVE
OR SPECIAL DAMAGES, AND EACH PARTY HEREBY UNCONDITIONALLY AND
ABSOLUTELY WAIVES ALL CLAIMS FOR ANY CONSEQUENTIAL, PUNITIVE AND
SPECIAL DAMAGES.
22.12 Time is of the Essence. Time is of the essence in Tenant's and Landlord's performance of this
Lease.
22.13 Public Announcements. All press releases and public announcements relating to this Lease will
be agreed to and prepared jointly by Landlord and Tenant. Tenant may elect to require that no such
announcements are made.
22.14 Force Majeure. If by reason of any event of Force Majeure either party to this Lease is prevented,
delayed or stopped from performing any act which such party is required to perform under this Lease, the
deadline for performance of such act by the party obligated to perform shall be extended for a period of
time equal to the period of prevention, delay or stoppage resulting from the Force Majeure event and the
payment of any sums due or accruing will be abated and not accrue during the continuance of such Force
Majeure event. As used in this Lease,the term"Force Majeure"shall include,but not be limited to, fire or
other casualty,weather conditions(including dry-out periods),inability to secure materials, strikes or labor
disputes(over which the obligated party has no direct or indirect bearing in the resolution thereof,or if said
party does have such bearing,said dispute occurs despite said party's good faith efforts to resolve the same),
acts of God,acts of the public enemy or other hostile governmental action,civil commotion, terrorist acts,
governmental restrictions,regulations or controls,judicial orders,epidemics,pandemics,disease outbreaks,
and/or other events over which the party obligated to perform (or its contractor or subcontractors) has no
control.
22.15 Landlord and Tenant Contingencies.
a. Landlord's obligations under this Lease are contingent upon:
(i) The execution and delivery of this Lease and the Development Agreement by Landlord and
Tenant.
If any of the foregoing contingencies has not been satisfied(or waived in writing by Landlord)on or before
September 1,2023,the date Tenant notifies Landlord that Tenant's contingencies in Section 22.15(b)below
have been satisfied or waived by Tenant, then within sixty (60) days thereafter, upon written notice to
Tenant, Landlord may terminate this Lease effective as of the date in the written notice.
b. Tenant's obligations under this Lease are contingent upon:
(i) Landlord's approval of Tenant's final plans and specifications for the construction at the Project
Site (including, without limitation, the Amphitheater, Ancillary Structures, Parking Areas, Utilities and
Roadways); provided, however, that Landlord acknowledges and agrees that Tenant may, if it so desires,
cause one or more private or public third parties, including, without limitation, the State or any agency or
subdivision thereof, to design and/or perform the construction of Horizontal Improvements;
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(ii) Tenant's receipt (in form satisfactory to Tenant in its sole and absolute discretion) of all
governmental approvals, permits and any consents (a) for the construction of the Project Site (including,
without limitation, the Amphitheater, Ancillary Structures, Parking Areas, Utilities and Roadways) and
(b)that are a prerequisite to the issuance of a certificate of occupancy for(1) the Amphitheater having a
sellable, visible general admission capacity of 12,000 fixed seats and 6,000 lawn seats for a live
performance and (2) the Parking Areas, Utilities, Roadways and improvements on Future Development
Parcel in a manner such that such areas and improvements will comply with the requirements of this Lease
and,as applicable,the Development Agreement;
(iii)Tenant's receipt of a license for the sale of beer,wine and liquor at the Amphitheater Site and
Premises and an entertainment services business license,each under conditions satisfactory to Tenant in its
sole and absolute discretion;
(iv)The execution and delivery of the Development Agreement by Landlord and Tenant;
(v)There being no sound ordinance or other law which would preclude or curtail Tenant's normal
and customary operations of the Amphitheater Site;
(vi) Tenant determining it will obtain economically favorable capital expense and/or AOI
accounting treatment for the Tenant Contribution (as determined by Tenant's accountants and auditors in
their sole discretion);and
(vii) Sufficient funding to satisfy the costs of construction to complete the Vertical and Horizontal
Improvements to the satisfaction of Tenant in its sole and absolute discretion. Landlord acknowledges that
Tenant may elect to finance all costs of construction and development through a multi-venue financing
program Tenant is currently establishing. In such case, the lender may desire that Landlord enter into
reasonable and customary documents relating thereto (including, without limitation, agreeing to Tenant
and/or its parent entity pledging all of its assets (or the ownership interests in it as an entity)as collateral
for such financing); Landlord's willingness to enter into such documents shall be an element of Tenant
considering the contingency in this paragraph satisfied, as shall the acceptability to Tenant of all of the
financing documents which such lender may require Tenant and/or its parent entity to execute and deliver.
If any of the foregoing contingencies has not been satisfied (or waived in writing by Tenant) by July 1,
2023, then upon sixty(60)days' written notice to Landlord, Tenant may terminate this Lease at any time
prior to such satisfaction or waiver,effective as of the date in the written notice.
[counterpart signature pages to follow!
20
IN WITNESS WHEREOF,Landlord and Tenant have,with the requisite authority,respectively signed this
Lease as of the day and year first above written.
LANDLORD:
CITY OF RIVERSIDE, MISSOURI
By:
Printed Name and Title
TENANT:
LIVEN I T T ENT, INC.
By:
Michael Rowles
EVP,General Counsel and Secretary
Printed Name and Title
21
JC 17511434 3
IN WITNESS WHEREOF,Landlord and Tenant have,with the requisite authority,respectively signed this
Lease as of the day and year first above written.
LANDLORD:
CITY OF RIVERSIDE, MISSOURI
By:
114-11 <_ , L. QoseY
1)1 a(log—
Printed Name and Title
TENANT:
LIVE NATION ENTERTAINMENT, INC.
By:
Printed Name and Title
21
EXHIBIT A
PROJECT SITE LEGAL DESCRIPTION
Landlord shall provide Tenant with a current ALTA Title Commitment within 30 days of the
Effective Date. Tenant shall notify Landlord of any objections to the legal description therein within forty-
five(45)days thereafter. The agreement of Landlord and Tenant on a final legal description shall be part
of Tenant's contingencies in Section 22.15(b)of this Lease.
22
EXHIBIT B
PROJECT SITE PLAN
[Please See Attached]
23
EXHIBIT D
SOURCES OF FUNDS
25
EXHIBIT E
PERMITTED ENCUMBRANCES
(Easements,restrictions or other encumbrances mutually approved by Landlord and Tenant, in their sole
discretion.)
Landlord shall provide Tenant with a current ALTA Title Commitment within 30 days of the
Effective Date. Tenant shall notify Landlord of any objections to the scheduled B-II exceptions in said
Commitment within twenty(20)days of receipt thereof. All B-II exceptions not objected to by Tenant shall
be the"Permitted Encumbrances".
26
ACCESS AND INDEMNITY AGREEMENT
This ACCESS AND INDEMNITY AGREEMENT("Agreement")is made and entered into as of
the 6`"day of December,2022(the"Effective Date''),by and between the City of Riverside. Missouri.a
fourth-class city organized and existing under the laws of the State of Missouri ("Landlord'), and Live
Nation Entertainment, Inc.,a Delaware corporation ('Tenant") (individually a"Party"and collectively
"Parties').
RECITALS:
A. Landlord and Tenant have entered into that certain Lease Agreement as of the Effective
Datc regarding the Project Site
B Tenant intends to perform or cause to be performed various investigations and due
diligence in,on or regarding the Project Site
C. Landlord acknow ledges and agrees that Tenant.its employees,consultants,contractors and
agents shall have access to the Project Site from and after the Effective Date.
NOW,THEREFORE,for and in consideration of the mutual terms and covenants set forth herein
and other good and valuable consideration,the receipt and sufficiency of which is acknowledged the Parties
agree as follows:
1. Defined Terms Defined terms set forth in this Agreement shall have the meaning ascnbed
in the 1 eacr Agreement unless expressly defined in this Agreement.
2. Access. Landlord does hereby consent to access to the Project Site by Tenant, its
employees,consultants,a contractors and agents to perform customary investigations of the Project Site,
both intrusive and non-intrusive in nature(`Tenant's Due Diligence")from and after the Effective Date
Tenant agrees to provide Landlord with written notice of the date and identity of the Party for each access
to the Project Site.not less than twenty-four(24)hours prior to such access.
3. Indemnity. Tenant does hereby agree to hold harmless and indemnify Landlord from any
and all costs.damages.causes of action,claims,liabilities,or judgments of any nature whatsoever arising
from or out of,directly or indirectly,Tenant's Due Diligence,exclusive of those matters arising from the
gross negligence or willful misconduct of Landlord. Nothing in this Agreement shall lessen Tenant's
insurance requirements under the Lease Agreement. Further,nothing in this Agreement shall be a waiver
of any sovereign-immunity defense available to Landlord or its governing body members,officers,agents,
attorneys,employees or independent contractors
IN WITNESS WHEREOF,the Parties hereto have executed this instrument as of the Effective Date
LANDLORD: TENANT-
C OF RIVERSID , SS LIVE NATION ENTERTAINMENT,INC.
' (Ca iPai/ ' --------c"--- -2-----
lcen L.Rose Michael-Ro v.l Nit k oc_i' 2 U+M 14 N�S
Mayor EV P,
��E wp t.u.-C.ems
IC 17512740 I
EXHIBIT B
AMENDMENT TO THE LEASE
4
s.
AMENDED AND RESTATED GROUND LEASE AGREEMENT
This AMENDED AND RESTATED GROUND LEASE AGREEMENT (this "Lease") is made
this_day of March, 2024 (the "Effective Date"), by and between the City of Riverside, Missouri, a
fourth-class city organized and existing under the laws of the State of Missouri (hereinafter referred to as
"Landlord" or the "City"), and Live Nation Entertainment, Inc., a Delaware corporation (hereinafter
referred to as"Tenant")(collectively the"Parties"and each,a"Party").
RECITALS:
A. Landlord and Tenant executed that certain Lease Agreement dated as of December 6,2022
(the"Original Lease");
B. Landlord and Tenant now desire to hereby amend and restate the Original Lease in its
entirety;
C. Landlord is the owner of certain real property consisting of approximately one hundred
thirty five(135)acres generally located at the northwest intersection of Horizons Parkway and I-635 in the
City of Riverside,Missouri,and more particularly described in Exhibit A attached hereto and made a part
hereof(the"Project Site")within which is land(the"Premises" as that term is more fully defined within
Section 1.1 hereof)the Landlord and Tenant intend for Tenant to ground lease:
D. Landlord and Tenant intend for Tenant to ground lease the Premises from Landlord,and:
1. The Tenant to cause the design, construction and development of the Premises to
include the following improvements:
(a) a live entertainment venue amphitheater of not less than a capacity of 15,000 people
(the"Amphitheater"); and
(b) such additional ancillary structures and/or associated food and beverage areas as
Tenant deems necessary to serve the Amphitheater and its customers(collectively,the
"Ancillary Structures").
The Amphitheater and Ancillary Structures are collectively referred to as the"Tenant Improvements".
2. The Landlord in coordination with the Tenant's design team shall be responsible
for:
(a) the construction of approximately 6,366 paved and striped parking spaces, or other
amount deemed sufficient pursuant to the Plans,to serve Tenant's intended use of the
Premises and other uses as authorized herein(the"Parking Areas");
(b) the construction and installation of such public gas, water, electric, storm water and
sanitary sewer facilities as necessary to serve the Premises in capacities sufficient for
Tenant's intended uses thereof including, for the operation of the Amphitheater and
Ancillary Structures, as more particularly described in the Project Budget (defined
herein) with respect to the specific scope of improvements comprising the same
(collectively,"Utilities");
(c) the earthwork and site improvements including grading and excavation necessary to
prepare the Project Site for construction of the Project (collectively, "Site
Improvements");
(d) such vehicular roadways providing access within and to and from the Premises from
and to the adjacent public street network, as generally shown on the Project Site Plan
(defined herein)and more particularly described in the Plans and Project Budget with
respect to the specific scope of improvements comprising the same("Roadways");and
(e) the construction of all improvements and work associated with the
relocation/installation of new traffic signals,wiring of relocated/new traffic signals and
signal timing coordination,and a new rectangular rapid flashing beacon for pedestrian
crossing and Amphitheater Way(collectively,the"Signalization Improvements").
Collectively the Parking Areas, Utilities, Site Improvements and Roadways are referred to herein as the
"Public Infrastructure". Collectively, the Amphitheater, Ancillary Structures and the Public
Infrastructure,as the same are more particularly described in the Project Budget with respect to the specific
improvements comprising the same and will be more fully defined in the Plans(defined herein),are referred
to herein as the"Project"and are generally depicted on Exhibit B attached hereto and made a part hereof
(the"Project Site Plan"). For avoidance of doubt, it is the intent of the Parties that Tenant will, on behalf
of the City and in coordination therewith,design,bid,and contract directly for the construction of the Public
Infrastructure in compliance with applicable State law (including, without limitation, requirements of the
Missouri Development Finance Board).
E. Tenant has developed a "Project Budget", which identifies its estimate of the total costs
and expenses(including,but not limited to,all hard and soft construction costs)currently anticipated to be
necessary to design,construct and complete the Project(with the total amount of all such costs and expenses
actually incurred for such purposes referred to herein as the"Project Costs"),a copy of which is attached
hereto and made a part hereof as Exhibit C (the "Project Budget" as more fully defined herein), and
Landlord and Tenant have agreed on the anticipated revenue sources to pay for such Project Costs
(collectively,the"Sources of Funds"),attached hereto and made a part hereof as Exhibit D.
F. Landlord and Tenant desire to enter into this Lease to lease the Premises, and enter into a
separate agreement providing for the development and financing of the Premises (the "Development
Agreement") which shall be leased to the Tenant by the Landlord. In addition, the Parties acknowledge
there may be a need for the Tenant to enter into another separate agreement with the State or an agency or
subdivision thereof relating to the construction, operation and maintenance of the Parking Areas,upon the
terms and conditions set forth herein and therein.
NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree this Lease amends, restates and replaces the Original
Lease in its entirety,and further agree as follows:
I.
RECITALS AND DEFINITIONS
1.0 Incorporation of Recitals. The Recitals above are hereby acknowledged and accepted by
the Parties and are hereby incorporated into this Lease as if fully set forth in this Section 1.0.
1.1 Definitions. Except as otherwise provided in this Lease, certain words and terms shall
have the meanings as set forth below:
(a) "Additional Rent",means any amounts due to Landlord,and payable by Tenant under the
provisions of Sections 7.0, 8.1, 9.0 or 14.0 of this Lease, in addition to the Base Rent;
2
(b) "Amphitheater",means an outdoor live entertainment structure,having a sellable,visible
capacity of fixed seats and lawn seats of not less than 15,000 people, to host concerts and other events as
provided for herein;
(c) "Amphitheater Site", means the portion of the Premises upon which the Amphitheater
and Ancillary Structures are constructed,pursuant to and consistent with Recital D;
(d) "Ancillary Structures", means the food and beverage areas and/or other ancillary
structures which Tenant elects to develop (or to cause to be developed)to serve the Amphitheater and its
customers,pursuant to and consistent with Recital D;
(e) "Base Rent", means the amount due from the Tenant to the Landlord for the lease of the
Premises during the Term of this Lease,as defined and set forth in Section 5.0 of this Lease;
(f) "Chapter 100 Incentives" means the tax relief incentives to be utilized to construct the
Project and operate the Tenant Improvements, including (i) a 10-year, 100% exemption from ad valorem
real property taxes for all Tenant Improvements upon the Premises, and (ii) a sales tax exemption on
materials and FF&E used in constructing and equipping/furnishing the Project,together with the associated
resolutions, ordinances, bond documents, exemption certificate(s) and all other documents, actions and
approvals to effect and implement the same,pursuant to the Development Agreement and Sections 100.010
to 100.200,RSMo.,Article VI,Section 27(b)of the Missouri Constitution,Section 144.062,RSMo,Section
144.054.3, RSMo and other applicable State law, all as more particularly described in the Development
Agreement;
(g) "CID & TDD Revenues", means all revenues (less any administrative charges collected
by the State Department of Revenue) generated from (i) the 1% Horizons' Community Improvement
District (CID) sales and use tax imposed within the CID District (as defined in the Development
Agreement), inclusive of the Premises, pursuant to the Development Agreement and Sections 67.1401 to
67.1571 of the Revised Statutes of Missouri, as amended ("CID Revenues"), and (ii) the 1% Horizons'
Transportation Development District (TDD) sales and use tax imposed or to be imposed within the TDD
District (as defined in the Development Agreement), inclusive of the Premises, pursuant to the
Development Agreement and Sections 238.200 to 238.275 of the Revised Statutes of Missouri,as amended,
all as more particularly described in the Development Agreement("TDD Revenues");
(h) "CID", means the Horizons' Community Improvement District formed pursuant to the
provisions of Sections 67.1401 to 67.1571 of the Revised Statutes of Missouri, as amended, as the same
may be expanded pursuant to the Development Agreement and in accordance with the CID Act;
(i) "City Code",means the Code of Ordinances of the City of Riverside,adopted by the City
pursuant to the Revised Statutes of Missouri;
(j) "City Funds", means the Five Million and 00/100 Dollars ($5,000,000.00) contribution
by the City to pay for those costs of the Public Infrastructure that are in excess of the State Funds,as herein
defined, and for which the City is entitled to reimbursement with CID & TDD Revenues pursuant to the
terms and conditions of the Development Agreement;
(k) "Commencement Date"means the first date by which all of the conditions precedent in
favor of Landlord in Section 22.15(a) and in favor of Tenant in Section 22.15(b) of this Lease have been
satisfied or waived by the respective Party as set forth therein;
3
(1) "Development Agreement", means that certain Development Agreement between the
Landlord and Tenant, of even date herewith,relating to the development of the Premises and financing of
the Project,including,without limitation,the State Funds,City Funds,CID&TDD Revenues and Chapter
100 Incentives;
(m) "Landlord", means the City of Riverside, Missouri, a fourth-class city organized and
existing under the laws of the State of Missouri;
(n) "Landlord Permitted Uses", means civic uses and events including, without limitation,
school musicals, graduations and ceremonies, as set forth in Section 4.3 of this Lease and subject to the
terms and conditions thereof;
(o) "Lease",means this Amended and Restated Ground Lease Agreement and its attachments,
as the same may be amended from time to time in accordance with the terms and provisions set forth herein;
(p) "Lease Expiration Date",means the 20th anniversary of the Rent Commencement Date;
(q) "Parking Agreement", means any agreement in effect at any time between Tenant and
the Landlord or the State or any agency or subdivision thereof relating to Tenant's parking operations and/or
the construction and/or maintenance of the Parking Areas by the State or any agency or political subdivision
thereof;
(r) "Parking Areas", means the approximately 6,366 paved and striped parking spaces or
such other total number of parking spaces sufficient to serve the intended use of the Amphitheater and
Ancillary Structures,pursuant to the Plans and consistent with Recital D of this Lease;
(s) "Permitted Uses"is defined in Section 4.0;
(t) "Plans", means the preliminary and final development plan approved for the Project,
pursuant to Ordinance No. 1966 passed and approved by the City's Board of Aldermen on December 19,
2023, as the same may be modified or amended from time to time with Tenant's approval and subject to
the City's normal planning and zoning process in accordance with applicable City Code requirements,and
any such accompanying specifications and construction drawings as required thereunder to be submitted
for review and/or approval in connection with the Tenant's development submission(s);
(u) "Premises", means, collectively: (i)the land described in Exhibit A attached hereto, less
that part dedicated for public road right of way, and/or public utility purposes, pursuant to the final plat
submitted by Tenant and approved(or to be approved)by the City,(ii)the easements,rights,hereditaments
and other appurtenances now or hereafter appurtenant to,benefitting or serving such land,and(iii)any pre-
existing improvements located on such land constituting the Premises on the Effective Date (e.g. sewers
and utility lines etc. located within the land constituting the Premises), but not including any Tenant
Improvements;
(v) "Project", means collectively the Amphitheater, Ancillary Structures and the Public
Infrastructure constructed pursuant to the Plans and consistent with Recital D;
(w) "Project Budget", means estimates of the total costs and expenses (including, but not
limited to, all hard and soft construction costs) currently anticipated to be necessary to design, construct
and complete the Project in accordance with the Plans(with the total amount of all such costs and expenses
actually incurred for such purposes referred to herein as the"Project Costs"), a copy of which is attached
hereto and made a part hereof as set forth in Exhibit C, which the Parties acknowledge and agree are
4
estimates only and subject to change by Tenant and/or Landlord with Tenant's prior written approval,
including as Plans are formally approved and funding and Project Costs are actually received and incurred,
respectively;
(x) "Project Costs", means the total amount of all costs and expenses (including, but not
limited to, all of the hard and soft construction costs) actually incurred to design, construct and complete
the Project in accordance with the Plans,estimates of which are as set forth on the Project Budget attached
hereto as Exhibit C and subject to change as provided herein;
(y) "Project Site Plan",means the conceptual site plan for the Project,as generally illustrated
and depicted on Exhibit B;
(z) "Public Infrastructure", means, collectively, the Parking Areas, Utilities, Site
Improvements and Roadways to be constructed pursuant to the Plans and consistent with Recital D, but
specifically excluding the Signalization Improvements;
(aa) "Renewal Options",means the right and option of Tenant to extend the Initial Term(and
Term of this Lease) for up to five (5)consecutive and individual periods of 10 years each, as defined and
set forth in Article II;
(bb) "Rent",means the amount of Base Rent and any Additional Rent payable under this Lease
by Tenant to the Landlord for the use and enjoyment of the Premises;
(cc) "Rent Commencement Date"shall have the meaning given in Section 2.2 of this Lease;
(dd) "Signalization Improvements", means, collectively, the improvements and work
associated with the relocation/installation of new traffic signals,wiring of relocated/new traffic signals and
signal timing coordination, and a new rectangular rapid flashing beacon for pedestrian crossing and
Amphitheater Way;
(ee) "Sources of Funds",means the anticipated sources of funds to pay for(and/or reimburse,
as applicable)the Project Costs,as illustrated in Exhibit D attached hereto and incorporate herein;
(ft) "State",means the State of Missouri;
(gg) "State Funds",means$20,000,000 in direct grant assistance appropriated by the State for
the Project as more particularly described in Section 7.143 of truly agreed and finally passed CCS SCS
HCS FIB 7 as signed and approved by the Governor of the State of Missouri;
(hh) "TDD", means the Horizons' Transportation Development District formed (or to be
formed,as provided in the Development Agreement)pursuant to and in compliance with Sections 238.200
to 238.275 of the Revised Statutes of Missouri, as amended;
(ii) "Tenant",means Live Nation Entertainment, Inc.,a Delaware corporation;
(jj) "Tenant Contribution",means the funds required to pay for the design and construction
of the Project, less the State Funds and City Funds, and subject to Tenant's right to reimbursement with
CID&TDD Revenues,as provided for in this Lease and the Development Agreement;
(kk) "Tenant Improvements", means collectively the Amphitheater and the Ancillary
Structures designed, constructed and operated by or through Tenant;
5
(11) "Tenant's Share of CID & TDD Revenues", means reimbursement from CID & TDD
Revenues to Tenant of Tenant's Contribution to the costs of the design and construction of the Public
Infrastructure actually incurred in completing the Project,and reimbursement from CID&TDD Revenues
to Tenant of such ongoing maintenance and/or other costs,which are eligible for reimbursement under the
CID Act or TDD Act(as defined in the Development Agreement);provided,however,the first Five Million
and 00/100 Dollars ($5,000,000.00) of the Tenant's Share of CID & TDD Revenues, shall be reimbursed
to Tenant on a dollar for dollar basis at the same time as the Five Million and 00/100 Dollars
($5,000,000.00) of City Funds actually contributed to pay Project Costs of the Public Infrastructure are
reimbursed(i.e.,for a total of$10,000,000),unless otherwise agreed to in writing by the Parties,all as more
particularly described in Section 4.3 and Section 4.7 of the Development Agreement; and
(mm) "Term"means the Initial Term,as extended to include the Renewal Term associated with
any Renewal Options exercised by Tenant, as defined in Section 2.1 and Section 2.3 of this Lease,
respectively.
II
GRANT AND TERM
2.0 Grant. Landlord, for and in consideration of the Rent herein reserved and of the covenants and
agreements herein contained on the part of the Tenant to be performed,hereby leases to Tenant,and,subject
to the terms and conditions set forth herein,Tenant hereby lets from Landlord,the Premises situated in City
of Riverside, County of Platte, State of Missouri, and described more fully in Exhibit A attached hereto
and made a part hereof,TOGETHER WITH AND GRANTING, as rights appurtenant to the Premises,the
non-exclusive right to use in common with others entitled thereto, all easements and rights of way now or
hereafter benefiting the Premises, including,without limitation, all utility, water, sewage and storm water
easements and rights of way and the non-exclusive right to use in common with others entitled thereto all
rights of ingress and egress for pedestrians and vehicular ingress and egress,as permitted by applicable law,
over the sidewalks, walkways, alleyways and roadways adjacent to the Premises, TO HAVE AND TO
HOLD unto Tenant and its successors and assigns, for the duration of the Term of this Lease.
2.1 Initial Term and Term. The"Initial Term"of this Lease shall commence on the Commencement
Date and continue through the Lease Expiration Date. The Term shall include all timely exercised Renewal
Options, so long as Tenant is not in default under this Lease beyond any applicable cure period at the time
of exercise of a Renewal Option.
2.2 Rent Commencement Date. The "Rent Commencement Date", shall be the earlier of(a) the
date which is six(6)months after the completion of construction of the Project,as evidenced by the issuance
of a final certificate of occupancy for the Amphitheater, or(b)the date upon which Tenant holds the first
concert open to the public at the Amphitheater at which a majority of seats are sold. Tenant and Landlord
shall use diligent, good-faith efforts to satisfy their respective contingencies in Section 22.15, and to
cooperate with and support such efforts by the other Party hereto to satisfy their contingencies, so that if
and when such contingencies are satisfied or waived as provided therein,Tenant may promptly commence
and complete construction of the Project within a commercially reasonable time thereafter, and then
promptly hold the first concert open to the public at the Amphitheater. Landlord agrees to complete (or
cause to be completed)the Signalization Improvements prior to the Rent Commencement Date,and to use
diligent efforts to cause Magellan to complete the improvements and work associated with relocating the
Magellan gas pipeline at the Project Site by such time and in such a manner as to avoid interfering with
Tenant's construction at the Project Site(and in all events before the Rent Commencement Date).
2.3 Renewal Options. Tenant shall have the right and option to extend the Initial Term for up to five
individual and consecutive periods of 10 years each (each such option is a "Renewal Option" and the
6
Initial Term as extended by any Renewal Options is the "Renewal Term"), by giving Landlord at least
eighteen (18) months prior to the then-current Term written notice of Tenant's election to exercise a
Renewal Option. The Initial Term,as extended by any Renewal Term shall be referred to as the"Term."
2.4 Landlord's Title. The Landlord hereby represents and warrants to Tenant, as of the
Commencement Date,that the Landlord has all requisite right,title and interest to the land comprising the
Premises and access to and from the Premises, and that such rights, title and interest are free from all
encumbrances and liens, except as otherwise approved by Tenant in writing and disclosed on Exhibit E
attached hereto and made a part hereof(the"Permitted Encumbrances"). Landlord hereby acknowledges
and agrees that the exclusive rights granted to Tenant in this Lease are to be rights which will run with,bind
and burden the land comprising the Premises and will inure to the benefit of Tenant, its successors and
assigns, subject only to the Permitted Encumbrances.
This Lease shall be subject to and subordinate to the mortgages or other indentures which are permitted
hereunder and hereafter may affect the Premises, subject to Tenant's quiet possession and use of the
Premises not being disturbed or hindered thereby,this Lease and Tenant's interest herein continuing in full
force and effect for so long as Tenant is not in default of this Lease beyond any applicable notice and cure
periods,and Tenant's ownership of the Tenant Improvements as provided herein. The effectiveness of the
foregoing subordination shall be subject to all holders of any lien upon or superior title to all or any portion
of the Premises first executing and delivering to Tenant,in recordable form,a commercially reasonable and
customary subordination, non-disturbance and attornment agreement, which agreement shall provide that
Tenant's interest in the Premises pursuant to this Lease,and its use,possession and enjoyment thereof shall
not be terminated or disturbed or hindered by any such subordination,mortgage or other indenture,and that
this Lease shall continue in full force and effect(notwithstanding any event of any foreclosure, sale under
power of sale,or transfer in lieu of any of the foregoing),for so long as Tenant is not in default of this Lease
beyond any applicable notice and cure periods. It shall be a condition precedent to the obligation of Tenant
to pay Rent that Landlord causes a non-disturbance agreement as described above to be delivered to Tenant
from all then existing lienholders and superior title holders.
2.5 Landlord Authority. Landlord hereby represents and warrants to Tenant that Landlord has full
power and authority to enter into and perform this Lease and the person signing on behalf of Landlord has
been fully authorized to do so by all necessary legislative action, inclusive of Ordinance No. /eM dated
3- 7, 2024.
2.5 Tenant Authority. Tenant hereby represents and warrants to Landlord that Tenant has full power
and authority to enter into this Lease and the person signing on behalf of Tenant has been fully authorized
to do so as evidenced by the certificate of incumbency of the Tenant provided to Landlord on or before the
Commencement Date.
2.6 Ownership of the Certain Improvements and Premises. During the Term, the Landlord will
own the Premises,subject to this Lease,the Chapter 100 Bond Documents,any other agreement(s)entered
into by and between the Parties expressly providing for such agreement between the Parties (the
"Agreements") and Tenant's interest in the Premises, and, subject to Article XX of this Lease and the
City's titular ownership solely for purposes of the Chapter 100 Incentives, Tenant will own and hold title
to all Tenant Improvements and fixtures, furniture and equipment ("FF&E") constructed and/or located
upon the Premises and be entitled to all depreciation, deductions, investment tax credits, any other tax
advantages associated with ownership of the Tenant Improvements or FF&E. Landlord and Tenant shall
cooperate to cause the assessor's and collector's offices of Platte County, Missouri to recognize this split
in ownership of the land versus the improvements thereon.
III
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POSSESSION AND IMPROVEMENTS
3.0 Possession. On the Commencement Date, Landlord shall deliver exclusive possession of the
Premises to Tenant and, subject only to the representations and warranties from Landlord herein, Tenant
shall accept the Premises in an"AS IS, WHERE IS" condition. The Landlord covenants and agrees not
to grant or permit or suffer to attach to the Premises (or any Tenant Improvements)or the use thereof any
easement,restriction,lien or other encumbrance affecting the title to the Premises or Tenant Improvements
during the Term of this Lease,other than the Permitted Encumbrances.
3.1 Intentionally Omitted.
3.2 Intentionally Omitted.
3.3 Tenant's Work. Subject to the terms and conditions of this Lease and the Development
Agreement, Tenant shall be responsible, at its sole cost and expense, for the actual Project Costs (less the
State Funds, the City Funds, the benefits of the Chapter 100 Incentives, and subject to Tenant's right to
reimbursement with CID & TDD Revenues) of designing, developing and constructing the Project
described in this Lease and the Project Budget and Sources of Funds attached hereto,as well as the Chapter
100 Bond Documents inclusive of fixturing and equipping the Amphitheater Site,and performing Tenant's
work,as Tenant may desire in order to develop the Amphitheater Site for the Permitted Uses,all of which
shall be effected in compliance with all applicable laws,rules,regulations and ordinances and in compliance
with the Plans approved in advance, in writing(such as the adoption of a resolution or ordinance, or other
formal action, by the approving authority for such Plans), by Landlord pursuant to the City's normal
planning and zoning process in accordance with applicable City Code requirements. For avoidance of
doubt,Tenant shall not have any obligation,and nothing in this Lease shall require Tenant to pay any costs
or bear any other responsibility,related to the Signalization Improvements,which the Parties acknowledge
and agree shall be designed,constructed and paid for by the City and separate and apart from its contribution
of City Funds to pay(or reimburse Developer for)the costs of the Public Infrastructure.
3.4 Amphitheater Site Multifunctional. It is the intent of the Parties that the Amphitheater Site will
be multifunctional to allow for varied entertainment consistent with the Permitted Uses delineated within
this Lease.
3.5 Use of Funds. It is the express intention of the Parties to this Lease that: (a)the full amount of the
State Funds and City Funds shall be solely used to pay for the design,development and construction of the
Public Infrastructure;and(b)the full amount of the CID&TDD Revenues shall be solely used to reimburse
the City Funds and Tenant's Share of CID & TDD Revenues, and, subject to the terms and conditions of
this Lease and the Development Agreement, such other uses authorized by the CID Act and/or TDD Act.
3.7 Approval of Critical Documents. The Parties acknowledge and agree that a material
consideration for entering into this Lease is that the contingencies in favor of Landlord and Tenant set forth
in Section 22.15(a)and Section 22.15(b)hereof,respectively,be satisfied or waived by the respective Party
as provided therein.
ry
PURPOSE
4.0 Permitted Uses. Tenant shall be permitted to use the Premises for uses consistent with the
operation of a live entertainment venue together with ancillary uses thereto, including, without limitation,
operation of food and beverage service (including, without limitation, food storage, preparation, service
and consumption, bar service and the sale and consumption of alcoholic beverages), operation for dining
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and bar facilities, VIP rooms and facilities, private and public rental events such as, but not limited to,
musical concerts, comedy acts, club nights, film debuts, film festivals, art festivals, corporate rentals,
private parties,product exhibitions,meetings, fund raising events, charity events,broadcasting,recording,
sale of concessions,and sale of merchandise related to the operations or events on the Premises,exhibiting
of pay-per-view events, events for viewing on a screen, and/or in an auditorium generally,the display and
sale of works of art,videotapes,promotional items,music,CDs,DVDs,and other items sold generally from
time to time at live entertainment venues, conducting parking operations at the Parking Areas, and to fully
use and enjoy such other portions of the Premises,including subleasing and licensing such areas therein as
Tenant may desire, all in accordance with,and as permitted by applicable law.
4.1 Licenses and Permits; Compliance. In connection with Tenant's operation of the Premises for
the Permitted Uses, Tenant shall obtain and maintain in good standing all required licenses and permits
which relate to Tenant's operation and its intended Permitted Uses of the Premises, including without
limitation, as applicable, live entertainment business activity, any permit or licenses required to promote
live entertainment events and to sell and serve food and beverages for on-premises consumption,and other
applicable laws. Landlord shall not be responsible for the cost of any compliance,improvement,alteration
or repairs due to a change in use of the Premises by Tenant or due to any alterations or installations by
Tenant of matters such as speakers,seats,video equipment,lighting equipment,concession equipment and
similar items. Landlord agrees to use reasonable good faith efforts to assist Tenant in timely obtaining all
necessary permits and licenses for the development and operation of the Premises as contemplated by this
Lease. In the event that unforeseen site conditions or entitlement issues arise due to the physical condition
of the Premises or the nature of Landlord's title thereto, Landlord shall be responsible to resolve such
conditions or issues in a manner acceptable to Tenant in its reasonable discretion.
4.2 Uses Prohibited. Tenant shall not use or occupy the Amphitheater Site contrary to any
governmental statute,rule,order,ordinance,requirement,or regulation applicable thereto,or in any manner
which would violate any certificate of occupancy affecting the same.
4.3 Landlord Permitted Use Rights. Landlord(or its designee for such purpose)may,pursuant
to a written rental agreement with Tenant substantially similar to that form attached hereto as Exhibit F
and incorporated herein or Tenant's then current form of rental agreement,rent the Amphitheater Site from
Tenant at no "rental" charge for the Landlord Permitted Uses, with capacities up to the lawful maximum
depending on the specific use and configuration of the spaces within the Amphitheater Site, and in each
case subject to the terms and conditions of the written rental agreement between Tenant and Landlord(or
such designee). In all circumstances of Landlord or any such designee renting or using the Amphitheater
Site as provided above, Landlord or such designee(whichever is the party to the written rental agreement
with Tenant) shall reimburse Tenant for any costs incurred by Tenant as a result of Landlord's or its
designee's rental and usage, including, without limitation, any costs, expenses or amounts provided to be
paid by Landlord or its designee in the rental agreement with Tenant for the event in question.
Notwithstanding the foregoing:
a. The Landlord Permitted Uses will be subject to availability and Landlord (or such designee)
entering into a written rental agreement with Tenant substantially similar to that attached hereto as
Exhibit F or Tenant's then current form of rental agreement; and
b. In no event, without prior written consent of the Tenant, which may be withheld at Tenant's
sole discretion,may a Landlord Permitted Use include any(i)ticketed entertainment events or(ii)
the presentation of live music other than talent which is local and not a professional live music
entertainer.
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4.4 Tenant's Exclusive Right to Possession and Use of Premises. Except as otherwise specifically
provided in this Lease relating to remedies for a Tenant Default (defined herein)under this Lease, during
the Term of this Lease,Tenant shall have the exclusive right to the possession and(together with its invitees,
successors and assigns) use of the Premises (other than public Roadways and Utilities for which the City
or utility companies are responsible).
4.5 Promoter Agreement. Landlord represents and warrants that as of the Commencement Date there
shall be no other promoter agreement which affects the use or occupancy of the Premises,exclusive of this
Lease and any other written agreements between Landlord and Tenant.
4.6 Restriction On Other Occupants' Use of Site. Notwithstanding anything to the contrary
contained in this Lease, during the Term of this Lease, Landlord shall not cause or allow for a period in
excess of three minutes any music, public address systems, or sounds of bells, whistles or sirens to be
emitted from Landlord owned or controlled property which is audible from the outdoor event areas of the
Amphitheater Site at a volume that exceeds normal speaking level at any time during a period commencing
one hour prior to any outdoor event at the Amphitheater Site and continuing through the conclusion of such
event; provided there shall be excluded from the foregoing restrictions any sounds emanated due to life-
safety or emergency response systems of a political subdivision or the State.
4.7 Exclusive Use. Tenant(and its affiliates) shall have the exclusive right to operate a live music or
entertainment venue at the Premises, which exclusive right shall include but not be limited to the
presentation of live entertainment.
4.8 Operating Covenant. Tenant shall operate(or cause to be operated)the Amphitheater Site for its
intended use as a first-class amphitheater during the Term of the Lease.
4.9 Ticketing. Tenant(together with its affiliates)shall have the exclusive right to perform or contract
for all ticketing activities at the Premises (other than Landlord Permitted Uses to the extent provided in
Section 4.3 and subject to the terms and conditions of the written rental agreement between Tenant and
Landlord or its designee as provided therein), and which will not limit the Landlord's (or its designee's)
reasonable use of the Parking Areas during non-event times(but subject to the parking rights of any retail
or hospitality sublessees or licensees of any Ancillary Structures)with Tenant's prior written approval.
4.10 Revenues. Tenant shall be entitled to all revenues(exclusive of taxes collected in accordance with
applicable law and not inconsistent with this Lease or the Development Agreement) from events and
activities at the Premises (other than Landlord Permitted Uses to the extent provided in Section 4.3 and
subject to the terms and conditions of the written rental agreement between Tenant and Landlord or its
designee as provided therein),including,without limitation, (a) from the Amphitheater,the Parking Areas,
and the Ancillary Structures, (b) from retail and hospitality and/or other commercial leases, subleases and
licenses or similar contractual arrangements,relating to the Premises or any Permitted Uses thereof entered
into by Tenant with third parties, in each case subject to any taxes, rents and/or fees actually levied and
payable under this Lease by Tenant to the Landlord.
4.11 Naming Rights. Tenant shall have the absolute and exclusive right to name the Amphitheater and
Ancillary Structures and to sell, assign or otherwise transfer to, or contract with, third parties selected by
Tenant for all or a portion of such rights. Notwithstanding the foregoing, Tenant shall not enter into any
such naming agreement which depicts or includes the name of (i) tobacco or tobacco products or
manufactures or distributors thereof, (ii) fire arms or fire arm products or manufactures or distributors
thereof, (iii) sexually oriented businesses(as defined by law) or sexually oriented products(e.g. condoms,
pornographic materials, sex toys, etc.),or(iv)a discriminatory name by nature(as defined by law).
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4.12 Sponsorships. Tenant shall have the absolute and (together with its affiliates) exclusive right to
enter into any sponsorship agreements affecting the Amphitheater, Ancillary Structures, and/or any other
portions of the Premises and the operations therein, and all revenues from such sponsorships shall be the
sole property of Tenant.
4.13 Exterior Signage. Tenant may erect any exterior signage permitted by law and subject to(a)such
signage being similar to signage of similar facilities operated by Tenant (or, as applicable, customary or
reasonable for any retail or hospitality or other commercial uses within areas of the Premises subleased or
licensed by Tenant to third parties) and(b) applicable City Code requirements and, to the extent required
thereby,Landlord's prior written approval,which approval shall not be unreasonably withheld,conditioned
or delayed, provided that marquees and name signage may include scrolling information as to upcoming
events at the Amphitheater Site.
4.14 Use of Tenant's Logo. Landlord shall not have the right to use the Tenant's logo for any purpose
whatsoever, except as first expressly approved by the Tenant in writing and subject to any terms and
conditions accompanying any such approval if granted.
V
RENT
5.0 Base Rent. The Base Rent for the Premises due from Tenant to Landlord on an annual basis and
which shall be compounded by two percent (2%) annually on the first day of the calendar month
following each twelve (12) month consecutive period from and after the Rent Commencement Date is
Six Hundred Twenty-One Thousand,Five Hundred and 00/100 Dollars($621,500.00)which is due in equal
monthly payments on the first day of each calendar month through the Term commencing on the Rent
Commencement Date. By way of example and with Year 1 referring to the consecutive (12) month
period immediately following the Rent Commencement Date:
Year Annual Base Rent Monthly Installment*
1 $621,500 $51,791.67
2 ($621,500 x 1.02=) $633,930 $52,827.50
3 ($633,930 x 1.02=) $646,608.60 $53,884.05
*In the event that the Rent Commencement Date falls on any date other than the first day of a calendar
month, Base Rent for such partial month shall be pro-rated based on the actual number of days in
such month and payable on or before the first day of the calendar month following the month in
which the Rent Commencement Date occurs.
5.1 [Intentionally Deleted].
5.2 [Intentionally Deleted].
5.3 Late Charge; Interest on Late Payments. Each and every payment of Rent hereunder then due
and payable under this Lease,which shall not be paid within five(5)business days of the date that Tenant
receives written notice thereof from Landlord specifying such non-payment, shall carry a late charge in the
amount of One Thousand Dollars ($1,000.00), which late charge and delinquent installment of payment
shall bear interest at the rate, from time to time, of the UMB, N.A. prime rate of interest plus four percent
(4%),per annum from the tenth(10t)day following the date the payment of Rent was due under the terms
of this Lease until the same shall be paid.
5.4 [Intentionally Deleted].
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5.5 [Intentionally Deleted].
5.6 Additional Rent. The various components of any Additional Rent owed hereunder shall be
payable at the times specified in this Lease for such payment, or if not so specified with respect to any
particular component of Additional Rent, within 10 business days after Tenant receives a notice from the
Landlord as to the amount owed.
5.7 General Rent Provisions. Except as specifically provided in this Lease,all payments of Rent shall
be made without deduction, set off, discount or abatement in lawful money of the United States.
Notwithstanding the obligation of Landlord,if any,to provide services under this Lease,except as otherwise
specifically provided in this Lease, no temporary interruption of such services shall abate Tenant's duty to
pay Rent or render Landlord liable for such temporary interruptions.
5.8 Triple Net Lease. This Lease is and shall be construed as a "triple net lease" and Tenant
shall pay or cause to be paid all expenses to maintain the Premises (other than public Roadways and
Utilities for which the City or utility companies are responsible) throughout the Term, except as
otherwise provided herein.
VI
OPERATING COSTS; PARKING; PROPERTY TAXES
6.0 Operating Costs. Tenant shall be responsible for and pay for all operations of the Premises by
Tenant or anyone claiming under Tenant (exclusive of Landlord Permitted Uses), including, without
limitation, cleaning, repairs and maintenance to the Amphitheater and Ancillary Structures, all required
insurance of Tenant (as set forth below) and security for the Premises, as applicable. Tenant will pay any
impact taxes, hook-up fees and similar one-time costs, required in accordance with applicable City Code
provisions or this Lease or separate Development Agreement executed by and between the Parties,
associated with the development of the Project Site which are due to Tenant's work.
6.1 Parking Access. Tenant and/or Landlord with Tenant's express prior written approval may from
time to time, enter into an agreement for the State,or an agency or political subdivision thereof,regarding
the construction,maintenance and/or operation of the Parking Areas or portions thereof for Tenant events
held on the Premises for the exclusive use of Tenant and Tenant's patrons and other individuals;provided,
however,if no such agreement is entered into by the time Tenant desires to obtain its building permits for
Amphitheater Site,Tenant may construct,maintain and operate the Parking Areas unless and until such an
agreement(if any)is entered into between Tenant and the State or an agency or political subdivision thereof.
Tenant shall have the ability to charge such Tenant patrons and other individuals a fee for parking in the
Parking Areas and to keep all revenue collected, exclusive of any applicable taxes levied and due in
accordance with State law.
6.2 Real Estate Taxes. Except for the existing levee assessment imposed by the Riverside Quindaro
Bend Levee District (the "Levee District") in effect as of the Effective Date of this Lease (the "Levee
Assessment"),the land comprising the Premises is anticipated to be exempt from ad valorem property taxes
by virtue of ownership by the Landlord,and the Tenant Improvements thereon as well as the materials used
in the construction and furnishing and equipping of the Project are anticipated to be exempt from ad valorem
property taxes and sales and use taxes,respectively, by virtue of the Chapter 100 Incentives and/or use of
the City's project exemption certificate with respect to purchases for the Public Infrastructure. Other than
the Levee Assessment levied against the Premises, Tenant will not be responsible for the payment of any
such taxes or impositions levied against the land comprising the Premises or any non-Amphitheater
improvements made to the Premises by the Landlord or any other party other than the Tenant. Subject to
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the terms and conditions of this Lease (including, without limitation, the tax abatements to be provided
pursuant to Section 6.2(a)hereof and the Development Agreement),Tenant shall be responsible to pay(or
cause to be paid) all real estate taxes and similar impositions assessed against the Tenant Improvements,
such as the Amphitheater and Ancillary Structures at the Premises and associated with the ownership or
operation thereof, specifically including all such taxes and impositions levied against Tenant's fee interest
in the Tenant Improvements at the Premises.
a) Notwithstanding the foregoing or anything in this Lease to the contrary, in
consideration of the Tenant Contribution to the design and construction of the Project,the
City shall promptly take all of the necessary legal steps to effectuate Chapter 100
Incentives and provide the benefits thereof for the Tenant including a Ten(10)year 100%
abatement of property taxes on the Tenant Improvements.
6.3 Taxes on Leasehold and Personal Property. Subject to the terms and conditions of this Lease
(including, without limitation, Section 6.2 hereof), Tenant shall be responsible for and shall pay(or cause
to be paid)before delinquent all ad valorem taxes levied against Tenant's interest in this Lease or against
personal property of any kind owned or placed in,upon or about the Premises by Tenant.
VII
SALES AND USE TAX
7.0 Sales and Use Tax. Tenant hereby covenants and agrees to pay (or cause to be paid) when due,
any sales,use or other such tax(excluding state and/or federal income tax)now or hereafter imposed upon
its operations at the Premises by the United States of America, the State of Missouri or any political
subdivisions thereof, notwithstanding the fact that the statute, ordinance or enactment imposing the same
may endeavor to impose the tax on Landlord. Any such amounts as may be paid by Landlord shall be
reimbursed to Landlord by Tenant and shall constitute Additional Rent under this Lease, subject to the
terms and conditions hereof(including, without limitation, Section 7.0(a) of this Lease) and Landlord's
obligations under the Development Agreement.
a) Notwithstanding the foregoing or anything in this Lease to the contrary, in
consideration of Tenant's agreement to construct the Public Infrastructure on behalf of
the City and the Tenant Contribution to the design and construction of the Project,the
City shall (i) as soon as reasonably practicable following the execution of this Lease,
provide the City's sales and use tax exemption certificate(s)to Tenant for Tenant and
its contractors to purchase materials for such Public Infrastructure exempt from sales
and use tax (outside of the Chapter 100 Incentives); and (ii) in coordination with the
Tenant,promptly upon the execution of this Lease,diligently take all of the necessary
legal steps to effectuate the Chapter 100 Incentives and provide the benefits thereof for
the Tenant, including a sales and use tax exemption on construction materials for the
Project and FF&E for the Tenant Improvements.
VIII
INSURANCE
8.0 Tenant's Insurance. Tenant covenants and agrees to provide and maintain (or cause to be
provided and maintained) in full force and effect, at no cost or expense to Landlord,throughout the Term,
(i) comprehensive general liability insurance and liquor legal liability insurance insuring against liability
for personal injury and death in limits of not less than$1,000,000 for death of or injury per occurrence,and
$5,000,000 in the annual aggregate, (ii) from commencement of construction of the Project upon the
Premises (or the Effective Date of this Lease, whichever is later) until the completion thereof, a policy or
policies of builder's risk insurance, either on a "completed value" form with coverage based on the
13
estimated value of the completed Amphitheater Site, including any and all Tenant Improvements in or on
the Amphitheater Site, or on a "reporting" form with coverage based on the then-current value of the
Amphitheater Site, including any and all Tenant Improvements, in or on the Amphitheater Site,at the time
of each report (provided that the Tenant may comply with the requirement to maintain builder's risk
insurance by arranging for its construction contractor to maintain such coverage), (iii) after completion of
the Amphitheater Site, "all risk" casualty insurance covering all of the Amphitheater Site and all Tenant
Improvements thereon in an amount not less than the total replacement value thereof, and (iv) insurance
covering Landlord in amounts no less than required pursuant to Section 537.610 RSMo (subject to loss
deductible clauses not to exceed$50,000). Tenant shall also carry at least a$5,000,000 umbrella covering
general, liquor and property liability insurance.
8.1 Form of Insurance;Waiver and Indemnity. All insurance required to be carried by Tenant under
this Lease shall be effected under valid and enforceable policies issued by insurers licensed to do business
in the State of Missouri or generally recognized international insurers or reinsurers with an A.M.Best rating
of B+ or the equivalent thereof or better. At least 10 days prior to the expiration of any policy required
under this Lease, Tenant shall endeavor to provide Landlord certificates of insurance showing renewal or
replacement coverage. Tenant covenants and warrants that it will pay or cause to be paid the premiums
payable with respect to each such policy when due and, upon written request of Landlord, will provide
Landlord with evidence of such payment within ten(10) business days after Landlord's request therefor.
In the event Tenant fails to pay or cause to be paid any such premiums or to exhibit such evidence of
payment as aforesaid, Landlord may, but shall not be obligated to, upon the continuance of such non-
payment for a period of ten(10)days following written notice to Tenant specifying the same,procure such
insurance and/or pay such premiums in such amounts, respectively, on Tenant's behalf, and the amounts
actually expended therefor by Landlord shall constitute Additional Rent hereunder and shall be immediately
payable by Tenant to Landlord within ten (10) business days following Tenant's receipt of Landlord's
statement therefor. All policies of insurance required to be carried by Tenant hereunder shall name
Landlord and Tenant as the insureds or additional insureds, as their respective interests may appear. Each
policy of insurance required to be carried by Tenant hereunder shall contain an agreement, to the extent
reasonably possible at no or no more than a reasonable additional cost,by the insurer thereunder that such
policy shall not be cancellable except upon thirty (30) days prior written notice to Landlord.
Notwithstanding the foregoing, as an alternative to maintaining the insurance required to be carried by
Tenant under this Lease, Tenant may elect to self-insure for all or any portion of the coverage so required
pursuant to a commercially reasonable self-insurance program as approved in writing by the City (such
approval not to be unreasonably withheld,conditioned or delayed).
IX
UTILITIES
9.0 Utilities. Tenant, at its sole cost and expense, shall arrange for and obtain service for electric
current, water and sewer, and gas directly from the public utility companies furnishing service to the
Premises, including but not limited to the lighting of the Parking Areas, subject however, to any contrary
provisions of any agreement regarding the Parking Areas between Tenant and the State or any agency or
political subdivision thereof (to the extent such provisions require the State or its agency or political
subdivision to arrange for and/or obtain such services, for example). The costs of such services shall be
paid by Tenant directly to such public utility companies. Any charge for utilities services not paid when
due by Tenant and assessed against the Landlord may be paid by Landlord,and the amount of such charge,
together with any interest or penalties thereon, plus Landlord's administrative charge of One Hundred
Dollars($100),shall be immediately due and payable by Tenant to Landlord,as Additional Rent hereunder,
upon Tenant's receipt of Landlord's statement therefor. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of utility service furnished to the Premises by reason of
14
any act or omission of the utility company serving the Premises or for any other reason not attributable to
the gross negligence or willful misconduct of Landlord.
X
REPAIRS AND ALTERATIONS
10.0 Alterations. Without the consent of Landlord,Tenant may perform such improvements,alterations
and changes to the Premises and Tenant Improvements as Tenant may desire as long as such matters
complement or are reasonably consistent with the operation of the Amphitheater as a live music or
entertainment venue for the Permitted Uses. In the case of material alterations for which applicable City
Code provisions require additional City review and approval, Tenant will comply with the City Code and
all applicable law,regulations and ordinances prior to making them.
Any such improvements, alterations, and changes shall be done by Tenant, its successors or assigns, as
applicable, at its/their sole cost and expense and in a good and workmanlike manner, in compliance with
all applicable laws,rules, codes and regulations applicable to the Premises and lien free(and Tenant shall
bond or otherwise cause to be discharged any such liens filed against the Premises in connection therewith
promptly within 30 days of same).
10.1 Maintenance. During the Term, Tenant will operate and maintain (or cause to be operated and
maintained)the Premises and Amphitheater Site in an orderly and first class manner consistent with other
live music or entertainment venues in the United States; provided, however,that one or more third parties
selected by the Tenant (such as the State or any agency or political subdivision thereof entering into an
agreement with Tenant regarding the Parking Areas), may provide and maintain the Parking Areas or
portions thereof in good condition and repair,reasonable wear and tear excepted.
XI
DAMAGE OR DESTRUCTION
11.0 Destruction. (a) If the Amphitheater and/or Ancillary Structures or any part thereof shall be
damaged by fire or other casualty,Tenant shall give prompt notice thereof to Landlord and this Lease shall
continue in full force and effect except as hereinafter set forth. (b) If the Amphitheater and/or Ancillary
Structures("Improvements")or any part thereof shall be partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the expense of Tenant, and the
Rent,shall be equitably abated(for purposes of this section,"partially"shall mean the cost of repairing and
restoring the damaged Improvements to their condition existing prior to such fire or other casualty is an
amount equal to at least 10%, but no more than 50%, of the fair market value of such Improvements
preceding such fire or other casualty). (c) If the Amphitheater and/or the Ancillary Structures are totally
damaged or rendered wholly unusable by fire or other casualty,then the Rent shall be proportionately paid
up to the time of the fire or other casualty and thenceforth shall cease until the date when the Amphitheater
and/or Ancillary Structures shall have been repaired and restored by Tenant; provided, however, if such
damage occurs in the final five(5)years of the Initial Term or during any Renewal Term and/or is due to
flood or flood impacts,Tenant may elect to terminate this Lease by written notice to Landlord given within
90 days after such damage occurs, specifying a date for the termination of this Lease,which date shall not
be earlier than 10 days or more than 60 days after the giving of such notice,and upon the date specified in
such notice this Lease shall terminate as fully and completely as if such date were the date set forth above
for the termination of this Lease and Tenant shall forthwith quit,vacate and surrender the Premises without
prejudice however to either Party's rights and remedies against the other Party for any default by such other
Party under this Lease prior to such termination, and any Rent owing shall be paid up to such date of the
fire or other casualty and any payments of Rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Notwithstanding the foregoing, each Party
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shall look first to any insurance in its favor,before making any claim against the other Party for recovery,
for loss or damage to such Party's property resulting from fire or other casualty,and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Landlord and Tenant each hereby
releases and waives all right of recovery against the other or any one claiming through or under each of
them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the
insurance and also,provided that such a policy can be obtained without additional premiums or cost. Tenant
acknowledges that Landlord shall not be obligated to carry insurance covering any loss to Tenant or to
repair any damage to the Amphitheater Site or Tenant's property located therein. Additional Rent shall not
be subject to abatement for any reason.
XII
CONDEMNATION
12.0 Condemnation. If the whole or part of the Premises (including, without limitation, the
Amphitheater Site or Parking Areas)shall be acquired or condemned by eminent domain or transfer in lieu
thereof to such extent that the Tenant cannot reasonably and in an economically feasible manner continue
its intended uses and operations on the Amphitheater Site or elsewhere on the Premises in substantially the
same scale and manner as originally anticipated by the Parties to this Lease,then and in that event,Tenant
shall have the right to terminate this Lease whereupon the term of this Lease shall cease and terminate from
the date of Tenant's termination notice and Tenant shall have no claim for the value of any unexpired term
of this Lease.
XIII
ASSIGNMENT AND SUBLETTING
13.0 Sublease or Assignment. Tenant, except as herein provided, shall not, without Landlord's prior
written consent(which shall not be unreasonably withheld,conditioned or delayed),sublease all or any part
of the Premises or assign any of it rights or obligations under this Lease. Notwithstanding the foregoing or
anything to the contrary contained in this Lease,Tenant shall have the right at any time to sublease,assign,
license or otherwise permit use or occupancy of all or any portion of the Premises, without Landlord's
approval or consent,to any(i)related entity,affiliate,subsidiary or parent company of Tenant,(ii)company
in which Tenant has a controlling interest or is under common control with, (iii) successor entity,whether
by merger, consolidation or otherwise, (iv) person or entity that purchases all or substantially all (defined
as 51% of Tenant's assets or a controlling interest in Tenant's stock, as applicable) of Tenant's assets or
stock, (v)to an entity which is set up to hold the liquor license for all or a portion of the Premises,(vi)any
retail or hospitality company or operator who will occupy all or any portion of an Ancillary Structure under
a sublease or license or other contractual arrangement with Tenant and serve the general public(not solely
customers of the Amphitheater);provided,however,that any such sublease,assignment or other permitted
use or occupancy shall not relieve Tenant of its obligations under this Lease. Further, notwithstanding
anything to the contrary contained in this Lease,Tenant shall have the right to grant licenses,concessions,
operating/management agreements, and rentals for events and concession services, and the right to assign
all or a portion of its interest in the Premises and Tenant Improvements and/or this Lease to lenders as
collateral for financing purposes,without Landlord's approval or consent,and all of the foregoing shall not
be deemed to be an assignment or sublease,or otherwise,in violation of this Lease,provided that the same
shall not relieve Tenant of its obligations under this Lease. In addition to and without limitation of the
preceding sentence, Landlord acknowledges that Tenant may elect to finance all or a portion of its Project
Costs through a multi-venue financing program Tenant is currently establishing, and Landlord agrees to
cooperate with Tenant in connection therewith, including to enter into and execute such reasonable and
customary agreements and other documents as may be required by the lender or reasonably requested by
Tenant in connection therewith,including(without limitation),consenting or otherwise agreeing to Tenant
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(and/or a parent or other affiliate)pledging all of its assets,the ownership interests in it as an entity and/or
or similar transactions.
XIV
MECHANIC'S LIENS
14.0 Mechanic's Liens. (a) Nothing in this Lease shall be construed in any way as constituting the
permission,consent or request of Landlord,express or implied,through act or omission to act,by inference
or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor
services or the furnishing of any materials for any alteration to the Premises,or as giving Tenant any right,
power or authority to contract for or permit the rendering of any such labor or services or the furnishing of
any materials in such fashion as would permit the filing of any mechanic's lien or making a claim against
the Premises in respect thereto or Landlord as the owner of the Premises.
(b) Tenant shall keep the Premises free from any liens arising out of the work performed,
materials furnished or obligations incurred by, through or under Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities, judgments or costs
(including, without limitation, reasonable attorneys' fees and costs) arising out of same or in connection
therewith. Tenant shall remove(or cause to be removed)any such lien by bond or otherwise within thirty
(30)days after written notice from Landlord specifying the same,and if Tenant shall fail to do so,Landlord
may pay the amount necessary to remove such lien without being responsible for investigating the validity
thereof. The amount actually paid by Landlord shall be deemed Additional Rent under this Lease payable
upon demand,without limitation as to any other remedies available to Landlord under this Lease.
XV
INDEMNITY AND RELEASE
15.0 Tenant's Indemnity. Tenant shall defend and indemnify Landlord and its elected or appointed
officials, officers, employees, and agents, and hold them harmless from and against any and all claims,
actions, damages, liability, losses, suits, obligations, fees, and expenses (including reasonable attorneys'
fees) (collectively, "Claims"), including Claims for death or injuries to person or property, to the extent
arising from Tenant's operations at the Premises,except to the extent of any Claims arising from or caused
in whole or in part by the gross negligence or willful misconduct of Landlord, its officials, agents,
contractors,invitees or employees. This Section shall survive the termination of this Lease with respect to
any damage,bodily or personal injury, illness or death occurring prior to such termination.
15.1 Intentionally Deleted
XVI
RIGHTS RESERVED TO LANDLORD
16.0 Rights Reserved to Landlord. Without limiting any other right reserved or available to Landlord
under this Lease, at law or in equity, Landlord, on behalf of itself and its agents reserves the following
rights to be exercised at Landlord's election:
(a) To inspect the Premises from 8:00 am to 5:00 pm upon at least 48 hours prior notice and at any
time in the event of an emergency;
(b) To show the Premises from 8:00 am to 5:00 pm upon at least 48 hours prior notice to
prospective purchasers, or mortgagees, of Landlord's interest therein, and within eighteen (18)
months prior to the expiration of the Term, from 8:00 am to 5:00 pm upon at least 48 hours prior
17
notice to persons wishing to rent all or any portion of the Premises. Landlord shall have the right
to place a"For Rent"sign on the Premises during such eighteen(18)month period.
Landlord may enter upon the Premises for any and all of said purposes and may exercise any and all of the
foregoing rights hereby reserved in a reasonable manner without being deemed guilty of an eviction or
disturbance of Tenant's use or possession of the Premises.
XVII
QUIET ENJOYMENT
17.0 Quiet Enjoyment. So long as Tenant is not in default under the covenants and agreements of this
Lease relating to the manner in which Tenant operates the Premises beyond any applicable cure period,
Tenant's quiet and peaceable enjoyment of the Premises shall not be disturbed,hindered or interfered with
by Landlord or by any person claiming by,through or under Landlord.
XVIII
INTENTIONALLY DELETED
18.0 [INTENTIONALLY DELETED.]
XIX
ENVIRONMENTAL COMPLIANCE
19.0 Environmental Compliance. As used herein, the term "Hazardous Materials" means and
includes any,each and all substances or materials now or hereafter regulated pursuant to any Environmental
Laws, including, but not limited to, any such substance or material now or hereafter under any
Environmental Laws defined or as deemed to be a"regulated substance,"pesticide,"hazardous substance"
or"hazardous waste"or included in any similar or like classification or categorization thereunder. Except
to the extent disclosed in the Phase I Environmental Site Assessment prepared by and dated
for the Premises delivered to Tenant prior to the Effective Date hereof, Landlord hereby
represents and warrants to Tenant that as of the Effective Date of this Lease, Landlord has no knowledge,
nor has reasonable cause to believe, that any release of any Hazardous Materials has occurred at the
Premises or that any Hazardous Materials are otherwise present at the Premises, except in quantities in
compliance with Environmental Laws. Landlord further represents and warrants, to the best of its actual
knowledge, without independent inquiry, that the Premises is in compliance with any and all applicable
requirements of the Resource Conservation Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984,and the Comprehensive Environmental Response,Compensation and Liability Act,
Hazardous Materials Transportation Act,Toxic Substances Control Act,Federal Insecticide,Fungicide and
Rodenticide Act and all other applicable federal, state and local laws, statutes, regulations, rules,
requirements and ordinances, as any of the foregoing have been or may be from time to time amended,
supplemented or supplanted,and with all orders,decrees or judgments of governmental authorities or courts
having jurisdictions, relating to the preservation of the environment or the regulation, use, generation,
storage, control,removal or clean-up of Hazardous Materials (collectively, "Environmental Laws"). To
the extent any Hazardous Materials are present in, at, on or about the Premises through no fault of Tenant
or a third-party affiliated with Tenant's operations,Landlord shall be responsible for removing or otherwise
remediating such Hazardous Materials to the extent required by, and in full compliance with, all
Environmental Laws at no cost to Tenant. In addition to and without limiting its obligations under Section
15.1 above, Landlord shall defend all actions against the Tenant and any Tenant mortgagee, and pay,
protect, indemnify and save harmless Tenant,its directors,officers,employees and agents,and any Tenant
mortgagee, from and against any and all Claims (including, without limitation, reasonable attorneys' and
consultants' fees, and response and cleanup costs), of any nature relating to any action brought against
18
Tenant or such other party or parties arising out of or in any way relating to any environmental condition,
or violation, or claimed violation, of Environmental Laws, existing or arising prior to the Commencement
Date("Pre-Term Condition").
Tenant agrees, during the Term, that it will not cause or permit any Hazardous Materials to be
placed,held,located,released,transported or disposed of at the Premises in violation of any Environmental
Laws. Tenant shall contain or remove from the Premises and/or the Improvements or perform any other
necessary remedial action regarding any Hazardous Materials in any way affecting the Premises and/or the
Improvements if such containment, removal or other remedial action is required of the owner and/or
operator of the Premises and/or the Improvements under any Environmental Laws and,to the extent Tenant
takes any remedial action with respect to any Hazardous Materials whether or not so required,Tenant shall
perform any containment, removal or remediation of any involving any Hazardous Materials in any way
affecting the Premises and/or Improvements in accordance with the requirements of all applicable
Environmental Laws unless such violation of the Environmental Laws was caused by Landlord's or its
agents negligence or willful misconduct or was a Pre-Term Condition in which case Landlord shall be
responsible for any and all remediation and other costs.Tenant shall indemnify and hold Landlord harmless
from and against any and all Claims (including,without limitation, reasonable attorneys' and consultants'
fees, and response and cleanup costs) in any way related to any violation or claimed violation of
Environmental Laws by Tenant that occurs during the Term and other than in connection with a Pre-Term
Condition.
XX
SURRENDER
20.0 Surrender. Upon the expiration of the Term(as extended to include any Renewal Term associated
with any Renewal Options exercised by Tenant)or earlier termination of this Lease in accordance with its
terms for any reason (whether by forfeiture or lapse of time, upon the termination of Tenant's right to
possession of the Premises by Landlord or termination of this Lease by Tenant, or otherwise)Tenant will
at once surrender and deliver to Landlord in good condition and repair, reasonable wear and tear excepted
(or such other condition as provided in Section 11 if terminated pursuant to same),the Premises and upon
such expiration of the Term or such earlier termination of this Lease, subject to Section 20.1 below,title to
the Tenant Improvements located on the Premises and then held by Tenant and located on the Premises will
automatically vest in Landlord,together with all alterations therein or thereto, in their"AS IS,WHERE IS
CONDITION,"which Tenant Improvements shall at such point,subject to Section 20.1 below,become the
absolute property of Landlord without the requirement of any deed or other instrument of conveyance to
effect the transfer of title to the same to Landlord.
20.1 Removal of Tenant's Property. Upon or before the scheduled expiration of the Term(inclusive
of the Renewal Term associated with any Renewal Options exercised by Tenant),or within ninety(90)days
after the earlier termination of this Lease,Tenant may remove Tenant's articles of personal property,trade
fixtures, furniture and equipment; provided,however,that Tenant shall repair any damage to the Premises
or Tenant Improvements which may result from such removals. If Tenant does not remove its trade fixtures
from the Premises within the applicable timeframe specified above, Landlord may treat such trade fixtures
as having been conveyed to Landlord with this Lease as a bill of sale,without further payment or credit by
Landlord to Tenant.
20.2 Holding Over. Any holding over by Tenant of all or any portions of the Amphitheater Site or
Premises after the expiration of this Lease shall operate and be construed to be a tenancy from month to
month only, terminable by either Party in accordance with applicable State law, at 150% of the monthly
rate of Base Rent payable hereunder as of the date immediately preceding such expiration or earlier
termination, plus any Additional Rent attributable to the applicable month of holding over by Tenant. If
Tenant continues to hold over after a written demand by Landlord for possession at the expiration of the
19
Lease or after termination by either party of a month-to-month tenancy created pursuant to this Section, or
after termination of the Lease or of Tenant's right to possession pursuant to Section 21.0 hereof, Tenant
shall pay monthly rental at a rate equal to twice the rate of Base Rent payable hereunder immediately prior
to the expiration or other termination of the Lease or Tenant's right to possession. Nothing contained in
this Section 20.2 shall be construed to give Tenant the right to hold over after expiration of this Lease,and
Landlord may exercise any and all remedies at law or in equity to recover possession of the Amphitheater
Site and Premises.
XXI
REMEDIES AND TENANT'S PROPERTY
21.0 Defaults. Tenant agrees that upon the occurrence of any one or more of the following events that
continues beyond any applicable cure period Tenant shall be considered in default under this Lease(each,
a"Tenant Default")as said term is used herein,that is to say, if:
(a) Tenant shall be adjudged an involuntary bankrupt, or a decree or order approving, as properly
filed, a petition or answer filed against Tenant asking reorganization of Tenant under the federal
bankruptcy laws as now or hereafter amended,or under the laws of any state, shall be entered,and
any such decree or judgment or order shall not have been stayed pending appeal, vacated or set
aside within sixty(60)days from the date of the entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the material allegations contained in
any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the federal
bankruptcy laws as now or hereafter amended,or Tenant shall institute any proceedings or give its
consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or
insolvency laws or under laws relating to the relief of debtors, readjustment of indebtedness,
reorganization,arrangements,composition or extension; or
(c) Tenant shall make any assignment for the benefit of creditors or shall apply for or consent to
the appointment of a receiver for Tenant or any of the property of Tenant; or
(d) A decree or order appointing a receiver of the property of Tenant shall be made and such decree
or order shall not have been vacated or set aside or stayed pending appeal within sixty(60) days
from the date of entry or granting thereof; or
(e) Tenant shall fail to make any payment of Rent or any other payment required to be made by
Tenant hereunder when due as herein provided and such failure to pay shall continue for ten(10)
days after written notice thereof from Landlord to Tenant; or
(f) Tenant shall fail to keep, observe or perform any of the other covenants or agreements herein
contained to be kept, observed and performed by Tenant, other than those referred to in the
foregoing subparagraph(e)of this Section,and such default shall continue for thirty(30)days after
written notice from Landlord to Tenant specifying such default and requiring that it be remedied,
unless such default shall reasonably require a longer period to cure as agreed to in writing by the
Parties, in which case Tenant shall not be deemed in default and shall have such agreed upon
additional reasonable period of time as is necessary to cure such default provided Tenant
commences the required performance promptly and thereafter diligently pursues and completes
such action.
Upon the occurrence of any one or more of such Tenant Defaults, Landlord may, at its election,
terminate this Lease, or terminate Tenant's right to possession only,without terminating this Lease. Upon
20
termination of this Lease, or upon termination of Tenant's right to possession without termination of this
Lease, Tenant shall surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord.
Upon termination of this Lease for a Tenant Default, Landlord shall be entitled to recover as
damages,all Rent and other sums due and payable by Tenant on the date of termination,plus:(1)an amount
equal to the value of the Rent and other sums provided herein to be paid by Tenant for the balance of the
then-current Term hereof, less the fair rental value of the Amphitheater, Amphitheater Site and Premises
and all other Improvements thereon for the balance of the then-current Term(taking into account the time
and expenses necessary to obtain a replacement tenant or tenants, including, if applicable, expenses
hereinafter described relating to recovery of the Amphitheater and Premises, preparation for reletting and
reletting itself); and,(2)the cost of performing any other covenants to be performed by Tenant.
If Landlord elects to terminate Tenant's right to possession only,without terminating this Lease,Landlord
may, at Landlord's option, enter into the Amphitheater and Amphitheater Site and Premises, remove
Tenant's signs and other evidences of ownership or tenancy, and take hold and possession thereof as
hereinabove provided, without such entry and possession terminating this Lease or releasing Tenant, in
whole or in part, from Tenant's obligations to pay the Rent hereunder for the full Term or from any other
of its obligations under this Lease. Landlord shall use good faith, commercially reasonable efforts to relet
all or any part of the Amphitheater and Amphitheater Site and Premises for such rent and upon such terms
as shall be reasonably satisfactory to Landlord (including the right to relet the Amphitheater and
Amphitheater Site and Premises for a term greater or lesser than that remaining under this Lease Term).
For the purposes of such reletting, Landlord may, at its sole cost, decorate or make any repairs, changes,
alterations or additions in or to the Amphitheater and Amphitheater Site and Premises that may be necessary
or convenient. If Landlord does not relet the Amphitheater and Amphitheater Site and/or Premises,Tenant
shall pay to Landlord,on demand,damages equal to the amount of the Rent,and other sums provided herein
to be paid by Tenant for the remainder of the then-current Lease Term less the fair rental value of the
Amphitheater and Amphitheater Site and Premises and all other Improvements thereon for the balance of
the then-current Term. If the Amphitheater and Amphitheater Site and/or Premises are relet and a sufficient
sum shall not be realized from such reletting after paying all of the expenses of such reletting(but excluding
decorating, changes, alterations, additions or improvements) and the collection of the rent accruing
therefrom(including,but not by way of limitation,attorney's fees and broker's commissions),to satisfy the
Rent and other charges herein provided to be paid for the remainder of the then-current Lease Term,Tenant
shall pay to Landlord on demand any deficiency and Tenant agrees that Landlord may file suit to recover
any sums falling due under the terms of this Section from time to time.
Notwithstanding the foregoing or anything in this Lease to the contrary, Landlord's right to
terminate this Lease (or Tenant's right of possession hereunder) upon the occurrence of a Tenant Default
shall only be available to Landlord in the event that all other remedies available to Landlord hereunder, or
at law or in equity (including, without limitation, monetary damages, and any specific performance, self-
help, injunctive and equitable remedies available at law or in equity) are inadequate to reasonably
compensate Landlord for its actual damages due to such Tenant Default. Landlord hereby covenants and
agrees to Tenant that Landlord will use its good faith, commercially reasonable efforts to mitigate its
damages to the greatest extent reasonably possible in the event of any default by Tenant.
21.1 Remedies Cumulative. No remedy herein or otherwise conferred upon or reserved to Landlord
or Tenant shall be considered to exclude or suspend any other remedy but the same shall be cumulative and
shall be in addition to every other remedy given hereunder,or now or hereafter existing at law or in equity
or by statute,and every power and remedy given by this Lease to Landlord(in the case of a Tenant Default)
or Tenant(in the case of a Landlord Default)may be exercised from time to time and so often as occasion
may arise or as may be deemed expedient by Landlord or Tenant,as the case may be. No provision of this
21
section 21.1 or any other provision of this Lease shall be construed to waive the defense of sovereign
immunity of Landlord.
21.2 No Waiver. No delay or omission of Landlord or Tenant to exercise any right or power arising
from any default event by the other Party hereunder shall impair any such right or power or shall be
construed to be a waiver of any such default or any acquiescence therein. No waiver of any breach of any
of the covenants of this Lease shall be construed, taken or held to be a waiver of any other breach,or as a
waiver, acquiescence in or consent to any further or succeeding breach of the same covenant. The
acceptance by Landlord of any payment of Rent or other charges hereunder after the termination by
Landlord of this Lease or of Tenant's right to possession hereunder, shall not, in the absence of agreement
in writing to the contrary by and between the Landlord and Tenant, be deemed to restore this Lease or
Tenant's right to possession hereunder,as the case may be,but shall be construed as a payment on account,
and not in satisfaction of damages due from Tenant to Landlord.
21.3 Events of Default by Landlord. Landlord agrees that upon the occurrence of any one or more of
the following events that continues beyond any applicable cure period, Landlord shall be considered in
default of this Lease(each,a"Landlord Default")as said term is used herein:
(a) Landlord fails to pay any amount owing to Tenant hereunder within thirty (30) days
following written notice from Tenant that the applicable payment was not timely made; or
(b) Landlord shall fail to comply with any of the terms,covenants or conditions in this Lease,
other than those referred to in the foregoing subparagraph(a)of this Section, for a period of thirty
(30)days after written notice from Tenant to Landlord specifying such failure, or in the case of a
failure which cannot, exercising diligence, reasonably be cured within said thirty(30) day period,
if Landlord fails to proceed within said thirty (30) day period to cure the same or to thereafter to
prosecute the curing of such default with due diligence or in any event fails to complete the curing
of such default within sixty(60)days following Tenant's initial written notice; or
(c) Landlord fails to commence to perform, keep or observe any covenants, conditions,
agreements or obligations or diligently pursue the same to completion under any agreement that
would adversely affect Tenant,the Premises or any Tenant Improvements,or the ability of Tenant
to use the Premises for Permitted Uses,and such failure continues for a period of twenty(20)days
after written notice from Tenant to Landlord specifying the items in default, or in the case of a
failure which cannot,exercising diligence,reasonably be cured within said twenty(20)day period,
Landlord fails to proceed within said twenty (20) day period to commence to cure the same or
commences to cure within said period but thereafter fails to prosecute the curing of such failure
with due diligence or in any event to actually complete the curing of such failure within forty-five
(45)days of such initial notice from Tenant; or
(d) Landlord is in default under the Development Agreement or the Parking Agreement; or
(e) Following Board of Aldermen approval of the Chapter 100 Incentives,if the City takes,or
fails to take, any act that results in the termination or reduction of any benefits of the Chapter 100
Incentives; or
(f) Upon receipt of a proper petition and consent of the CID board for the addition of the 38+/-
acre Argosy Riverside Casino property to the boundaries of the CID, if the City fails to (i) give
proper notice of and hold a public hearing for such addition, (ii)adopt an ordinance effecting such
addition,or(iii)take any other act required on the part of the City for the addition of such property
22
to the CID in accordance with the CID Act, and such failure continues for a period of thirty(30)
days following written notice from Tenant; or
(g) If the City imposes,or provides any approval or other authorization required on the part of
the City for the City or another political subdivision to impose,any special assessments other than
the Levee Assessment(as defined in Section 6.2 hereof),or any special sales taxes and/or use taxes,
other than the CID Sales Tax and the TDD Sales Tax, on all or any portion of the Premises or
Tenant Improvements; or
(h) Any act or omission by the City which,through no fault of Tenant,results in the land within
the Premises no longer being exempt from real property taxation pursuant to Section 6.2 of this
Lease.
21.4 Tenant Remedies. Upon the occurrence of any Landlord Default, Tenant shall, except as
otherwise expressly provided herein,have all rights and remedies provided hereunder and by law and equity
from time to time.Notwithstanding the foregoing or anything in this Lease to the contrary,in the event any
Landlord Default occurs under Sections 21.3(e)-(j) above and Tenant incurs additional taxes, assessments
and/or other costs due to any one or more such Landlord Defaults(collectively"Additional Costs"),Tenant
shall be entitled to a credit against the Base Rent in the amount of such Additional Costs actually incurred
by Tenant(each,a"Rent Credit"),which shall be credited against the Base Rent otherwise payable under
this Lease, as the same becomes due monthly, until the entirety of the Rent Credit has been so applied;
provided,however,that the Rent Credits described above shall only be available to Tenant in the event that
all other remedies available to Tenant hereunder, or at law or in equity (including, without limitation,
monetary damages,and any specific performance, self-help, injunctive and equitable remedies available at
law or in equity) are inadequate to reasonably compensate Tenant for its actual damages due to such
Landlord Default.
21.5 Public Sources of Funds.Notwithstanding anything in this Lease to the contrary,in the event that
all or any portion of the public Sources of Funds(consisting of the State Funds, City Funds, and Tenant's
Share of CID&TDD Revenues)does not come to fruition,Tenant shall not have any obligation to proceed
with the development of the Project or to expend all or any portion of Tenant's Contribution or other funds.
Without limiting the generality of the foregoing, Landlord agrees to contribute(or cause to be contributed)
the City Funds to the costs of the Public Infrastructure pursuant to the cost certification process set forth in
the Development Agreement and the other terms and conditions thereof and set forth in this Lease.
XXII
MISCELLANEOUS
22.0 Amendments must be in Writing. None of the covenants,terms or conditions of this Lease, to
be kept and performed by either Party,shall in any manner be amended,altered,waived,modified,changed
or abandoned unless by a written instrument, duly signed and delivered by all of the Parties hereto.
22.1 Notices. Any notices, communications and waivers under this Lease shall be in writing and shall
be delivered either by(i) registered or certified mail, return receipt requested, or(ii)by overnight express
carrier,addressed in each case as follows.
To Landlord: City of Riverside,Missouri
2950 N.W.Vivion Road
Riverside,Missouri 64150
Attn: City Administrator
23
With a copy to: Spencer Fane, LLP
304 East High Street
Jefferson City,Missouri 65101
Attn: Joe Bednar
To Tenant: Live Nation Entertainment,Inc.
do Live Nation
9348 Civic Center Drive
Beverly Hills,California 90210
Attn: President
with copies to: Live Nation Entertainment,Inc.
325 N.Maple Drive,2nd Floor
Beverly Hills,CA 90210
Attn: Chief Counsel—Concerts
Polsinelli PC
Attn: Korb Maxwell
900 W. 48th Place, Suite 900
Kansas City,MO 64112
or to any other address as to any of the Parties hereto, as such Party shall designate in a written notice to
the other party hereto. All notices sent pursuant to the terms of this Section shall be deemed received(i)if
personally delivered,then on the date of delivery,(ii)if sent by overnight,express carrier,then on the next
federal banking day immediately following the day sent,or(iii) if sent by registered or certified mail,then
on the earlier of the third federal banking day following the day sent or when actually received.
22.2 Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties
hereto, nor by any third party, as creating the relationship of principal, or of joint venture by the Parties
hereto,it being understood and agreed that no provision contained in this Lease nor any acts of the Parties
hereto shall be deemed to create any relationship other than the relationship of landlord and tenant.
22.3 Captions. The captions of this Lease are for convenience only and are not to be construed as a part
of this Lease and shall not be construed as defining or limiting in any way the scope or intent of the
provisions hereof.
22.4 Severability. If any term or provision of this Lease shall, to any extent, be held invalid or
unenforceable,the remaining terms and provisions of this Lease shall not be affected thereby,but each term
and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
22.5 Law Applicable. This Lease shall be governed by,construed and enforced in accordance with the
laws of the State of Missouri.
22.6 Covenants Binding on Successors. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant and their respective heirs, distributees,
executors,administrators, successors,and except as otherwise provided in this Lease,their assigns.
22.7 Brokerage. Each of the Parties to this Lease warrants and represents that it has had no dealings
with any broker or agent in connection with this Lease. Each party covenants to pay, hold harmless and
indemnify the other from and against any and all cost, expense or liability for any compensation,
24
commissions and charges claimed by any broker or agent claiming through such party with respect to this
Lease or the negotiation thereof.
22.8 No Personal Liability of Landlord. It is specifically understood and agreed that there shall be
no personal liability of Landlord's elected or appointed officials, and/or employees, agents or other
representatives in respect to any of the covenants, conditions or provisions of this Lease; in the event of a
breach or default by Landlord of any of its obligations under this Lease, Tenant shall look solely to the
Landlord's interest in the Premises and Project (including, without limitation, the issues and proceeds
thereof) for satisfaction of Tenant's remedies.
22.9 Waiver of Jury Trial. It is mutually agreed by and between Landlord and Tenant that they and
their respective successors and permitted assigns and any permitted subtenant of Tenant hereby knowingly
waive trial by jury in any proceeding or counterclaim brought by any of them in any matters whatsoever
arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant,Tenant's
use or occupancy of the Premises,and any emergency statutory or any other statutory remedy.
22.10 Estoppel Certificate. Tenant, at any time and from time to time,upon at least 20 days' notice by
Landlord, shall execute, acknowledge and deliver to Landlord, and/or to any other person, firm or
corporation specified by Landlord,a statement certifying that this Lease is unmodified and in full force and
effect(or,if there have been modifications,that the same is in full force and effect as modified and stating
the modifications),stating the dates to which the Rent has been paid,and stating whether or not there exists
any defaults by Landlord under this Lease,and,if so, specifying each such default.
22.11 Mutual Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, IN NO EVENT SHALL EITHER PARTY BE
ENTITLED TO CLAIM OR MAKE A RECOVERY FOR ANY CONSEQUENTIAL, PUNITIVE,
REMOTE(INCLUDING,WITHOUT LIMITATION,ANY LOST FUTURE TAX REVENUES)OR
SPECIAL DAMAGES, AND EACH PARTY HEREBY UNCONDITIONALLY AND
ABSOLUTELY WAIVES.ALL CLAIMS FOR ANY CONSEQUENTIAL, PUNITIVE, REMOTE
OR SPECIAL DAMAGES.
22.12 Time is of the Essence. Time is of the essence in Tenant's and Landlord's performance of this
Lease.
22.13 Public Announcements. All press releases and public announcements relating to this Lease will
be agreed to and prepared jointly by Landlord and Tenant. Tenant may elect to require that no such
announcements are made.
22.14 Force Majeure. If by reason of any event of Force Majeure either party to this Lease is prevented,
delayed or stopped from performing any act which such party is required to perform under this Lease, the
deadline for performance of such act by the party obligated to perform shall be extended for a period of
time equal to the period of prevention, delay or stoppage resulting from the Force Majeure event and the
payment of any sums due or accruing will be abated and not accrue during the continuance of such Force
Majeure event. As used in this Lease,the term"Force Majeure" shall include, but not be limited to, fire
or other casualty, weather conditions (including dry-out periods), inability to secure materials, strikes or
labor disputes(over which the obligated party has no direct or indirect bearing in the resolution thereof,or
if said party does have such bearing, said dispute occurs despite said party's good faith efforts to resolve
the same), acts of God, acts of the public enemy or other hostile governmental action, civil commotion,
terrorist acts, governmental restrictions, regulations or controls, judicial orders, epidemics, pandemics,
disease outbreaks, and/or other events over which the Party obligated to perform (or its contractor or
subcontractors)has no control.
25
22.15 Landlord and Tenant Contingencies.
a. Landlord's obligations under this Lease are contingent upon:
(i) The execution and delivery of this Lease and the Development Agreement by Landlord and
Tenant.
If any of the foregoing contingencies has not been satisfied(or waived in writing by Landlord)on or before
January 1, 2024, then within thirty (30) days thereafter, upon written notice to Tenant, Landlord may
terminate this Lease effective as of the date in the written notice which shall not be less than ten(10)days
or more than twenty(20)days following the date of such notice.
b. Tenant's obligations under this Lease are contingent upon:
(i) Landlord's approval of Tenant's Plans for the Premises (including, without limitation, the
Amphitheater, Ancillary Structures, and the Public Infrastructure) pursuant to the City's normal planning
and zoning process in accordance with applicable City Code requirements; provided, however, that
Landlord acknowledges and agrees that Tenant may, if it so desires, cause one or more private or public
third parties,including,without limitation,the State or any agency or political subdivision thereof,to design
and/or perform the construction of all or a portion of the Public Infrastructure;
(ii) Tenant's receipt (in form satisfactory to Tenant in its sole and absolute discretion) of all
governmental approvals,permits and any consents(a)required or that Tenant reasonably deems necessary
for the construction of the Project (including, without limitation, the Amphitheater, Ancillary Structures,
Parking Areas, and the other Public Infrastructure) and Tenant's intended operation and uses thereof,
including,but not limited to,any and all rezoning,special use permit,development plan,plat,Levee District
or other governmental or quasi-governmental approvals required for compliance with the City's Levee
Critical Area Regulations (to the extent applicable to and required for the Project) and any other permits
and approvals to construct and operate the Project pursuant to applicable City Code provisions (together
with any waivers,variances or other form of relief from the strict application thereof that Tenant reasonable
deems necessary for the construction and/or operation of the Project); and(b)that are a prerequisite to the
issuance of a certificate of occupancy for(1)the first class Amphitheater(including,but not limited to,with
respect to holding live performances for not less than a capacity of 15,000 people) and (2) the Parking
Areas,and the other Public Infrastructure,in each case in a manner such that such areas and improvements
will comply with the requirements of this Lease and, as applicable,the Development Agreement;
(iii)Tenant's receipt of a license for the sale of beer,wine and liquor at the Amphitheater Site and
Premises, and Tenant's intended uses thereof, and an entertainment services business license, each under
conditions satisfactory to Tenant in its sole and absolute discretion;
(iv)The execution and delivery of the Development Agreement simultaneously with the execution
and delivery of this Lease Agreement by Landlord and Tenant;
(v)There being no sound ordinance or other law which would preclude or curtail Tenant's normal
and customary operations of the Amphitheater Site;
(vi)Tenant's satisfaction that there are not any defects, liens or other encumbrances affecting the
Premises(or any portion thereof)which are objectionable to Tenant in its sole and absolute discretion,nor
will there be as of the Commencement Date,except to the extent expressly provided otherwise in this Lease;
26
(vii) Finalization of the process and procedure for the Landlord to receive the State Funds, and
Tenant's receipt of supporting documentation evidencing the same and confirming all such State Funds are
readily available to pay or reimburse(as the case may be)the Public Infrastructure costs in accordance with
the Development Agreement and agreement with the State;
(viii) Landlord acknowledges that Tenant may elect to finance all costs of construction and
development through a multi-venue financing program Tenant is currently establishing. In such case,the
lender may desire that Landlord enter into reasonable and customary documents relating thereto(including,
without limitation, agreeing to Tenant and/or its parent entity pledging all of its assets (or the ownership
interests in it as an entity) as collateral for such financing); Landlord's willingness to enter into such
documents shall be an element of Tenant considering the contingency in this paragraph satisfied, as shall
the acceptability to Tenant of all of the financing documents which such lender may require Tenant and/or
its parent entity to execute and deliver;
(ix) Expansion of the CID District to include the 38 +/- acre Argosy Riverside property, and
adoption of a resolution,and/or such other actions,by the CID District,its Board of Directors,and the City,
as necessary to extend imposition of the CID Sales Tax to the entirety of the CID District as so expanded,
all in accordance with the CID Act(as such terms are defined in the Development Agreement);
(x) An agreement being executed and delivered by and between Tenant and the CID District
providing assurances with respect to Tenant's reimbursement with CID Revenues, as more particularly
described in the Development Agreement, in form and substance acceptable to Tenant;
(xi)Establishment of the TDD District pursuant to a proper petition in form and substance approved
in advance,in writing,by Tenant,and the adoption of a resolution,and/or such other documents and actions
by the TDD District, as necessary to impose the TDD Sales Tax therein (as such terms as defined in the
Development Agreement);
(xii) An agreement being executed and delivered by and between Tenant and the TDD District
providing assurances with respect to Tenant's reimbursement with TDD Revenues, as more particularly
described in the Development Agreement,in form and substance acceptable to Tenant;
(xiii) Tenant having had a sufficient opportunity to review and provide comments to the Grant
Agreement to be entered into by and between the City and Missouri Development Finance Board,and any
other documents to which the City or MDFB is or will be a Party,related to the State Funds (collectively,
the "Grant Agreement"), and Tenant's receipt of a fully executed copy of the Grant Agreement in form
and substance acceptable to Tenant;
(xiv) The City's approval and passage of an ordinance authorizing the issuance of the Bonds (as
defined in the Development Agreement), and approving the form of Bond Documents and such other
authorizations and documents as necessary to close the issuance of the Bonds and effect the Chapter 100
Incentives and for Tenant to realize the full benefits thereof,all in form and substance acceptable to Tenant;
(xv) Such approvals from the Missouri Department of Economic Development as necessary in
accordance with the Act (as defined in the Development Agreement) to provide a sales and use tax
exemption on FF&E(in addition to materials)for the Tenant Improvements in connection with the Chapter
100 Incentives; and
(xvi) Final Agreement between the Parties on the legal description of the Premises to be inserted
as Exhibit A hereto,the Permitted Encumbrances to be inserted as Exhibit E hereto,and the form of rental
27
agreement to inserted as Exhibit F hereto, and the same actually being so inserted as Exhibit A, Exhibit E
and Exhibit F to this Lease,respectively.
If any of the foregoing contingencies,excluding contingency(iii),has not been satisfied in Tenant's
sole discretion (or expressly waived in writing by Tenant), by July 15, 2024, then upon sixty (60) days'
written notice to Landlord,Tenant may terminate this Lease at any time prior to such satisfaction or waiver,
effective as of the date in the written notice.
22.16 Memorandum of Lease. Landlord and Tenant shall,concurrently with the execution of this Lease,
execute a memorandum of this Lease in a form reasonably acceptable to Tenant and Landlord for recording
in the chain of title of the Premises, setting forth the Parties hereto, the Effective Date hereof, the Term
hereof, the Renewal Options provided hereunder, any options, rights of purchase or first refusal, or
reversionary interests, and any other specific terms the Parties reasonably agree in good faith to include
therein. Said memorandum shall be promptly recorded by Landlord against the entirety of the Premises,not
later than ten (10) days following the full execution of this Lease in any event or Tenant shall have and
Landlord does herby grant to Tenant the right to record a memorandum of this Lease against the Premises.
[counterpart signature pages to follow]
28
IN WITNESS WHEREOF, Landlord and Tenant have,with the requisite authority,respectively
signed and entered into this Lease to be effective as of the Effective Date.
LANDLORD:
CITY OF RIVERSIDE,MISSOURI
By:
M4Noa _
Printed Iclame and Title
TENANT:
LIVE NATION T ENT,INC.
By:
Michael Rowles
EVP, General Counsel And Secretary
Printed Name and Title
[Signature Page to Amended and Restated Ground Lease Agreement]
IN WITNESS WHEREOF, Landlord and Tenant have,with the requisite authority, respectively
signed and entered into this Lease to be effective as of the Effective Date.
LANDLORD:
CITY OF RIVERSIDE,MISSOURI
By:
n+hLE-L, L.+7 E
Printed ltlame and Title
TENANT:
LIVE NATION ENTERTAINMENT, INC.
By:
Printed Name and Title
[Signature Page to Amended and Restated Ground Lease Agreement]
EXHIBIT A
PREMISES LEGAL DESCRIPTION
[The Premises consists of approximately 135.58 acres at the northwest corner of NW Horizons Parkway
and I-635 in the City,as generally depicted below. The agreement of Landlord and Tenant on a final legal
description of the Premises shall be part of Tenant's contingencies as set forth in Section 22.15(b) of this
Lease.The fmal legal description will be inserted herein as Exhibit A,without the need for any amendment
to this Lease,and serve as the legal description of the Premises for all purposes of this Lease.]
_ uo14001.00 ' ---�_
40,West at Y
it II 111 � a
~ t ♦1 l Horizons 1
?�i��Zi� i��1 � �1 vr ,l,1 M
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4 •
= PREMISES 'L"t.000 Z
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•
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EXHIBIT B
PROJECT SITE PLAN
0 E
E R A
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C05
EXHIBIT C
PROJECT BUDGET
(See Exhibit C-1 for additional line item detail)
General Line Item Category Estimated Project Costs
Public Infrastructure Tenant Improvements Total Project Budget
Constuction Costs
Pre-Construction Services $ 341,839 $ 543,229 $ 885,068
Construction Cost-Phase 1 Surcharging $ 2,826,089 5 - $ 2,826,089
Construction Cost-Phase 2 Infrastructure $ 27,000,000 $ - $ 27,000,000
Asphalt Car Parking 5 3,980,000 $ - $ 3,980,000
Prevailing Wage Requirement 5 3,250,000 $ • $ 3,250,000
Phase 3 Vertical(Amphitheater) $ - 5 58,887,064 5 58,887,064
Subtotal-Construction Costs $ 37,397,928 $ 59,430,293 $ 96,828,221
Soft Costs
Branding $ - $ 150,000 $ 150,000
Architecture&Engineering $ 1,194,299 $ 1,897,900 $ 3,092,199
Pre-Construction $ 77,718 $ 123,504 $ 201,222
Site&Civil $ 152,001 $ 241,549 $ 393,550
Project Management 5 38,623 $ 61,377 $ 100,000
Kitchen Equipment Design $ - $ 79,600 $ 79,600
Arch&Production Lighting Design $ - 5 164,020 5 164,020
Acoustic Design $ - 5 14,800 $ 14,800
Signage/Wayfinding Design $ 77,246 $ 122,754 $ 200,000
Environmental Impact Assessment $ 18,945 $ 30,105 $ 49,050
Zoning/Permit Fees $ 141,746 $ 225,254 $ 367,000
Testing/Quality Control $ 57,934 $ 92,066 $ 150,000
Reimbursable Expenses $ 23,174 5 36,826 5 60,000
Subtotal•Soft Costs $ 1,781,685 $ 3,239,756 $ 5,021,441
FF&E $ - $ 10,880,718 S 10,880,718
Contingency $ 2,703,461 $ 4,296,159 $ 6,999,620
TOTAL ESTIMATED PROJECT COSTS: $ 41,883,075 $ 77,846,925 $ 119,730,000
•
EXHIBIT C-1
PROJECT BUDGET (CONTINUED)
Riverside Amphitheater
Rivers:1e, Missouri
4tiastW Project Costs
Total Propel Cost PNee 1.SurUurgsrg Ruse 2•Infrastructure Phase 3•Vencaal
100 Building&Fit-Out Costs
A Trade Costs
I Pre-Construction Services Sea5.068
Phase r.Surcnergn9 S26 070
Phase 1-trfressruclure 5315 769
Phase 3•Vance, S543 229
II Coostructl0n Cost-Phase 1 Surcharg og S2.826.089
Constructor Dwsons nc Prevning Wage
Eannwaw SI 990.408
Dewarerng Abwence $150.000
Seasonslweerner abwance __ S150.000
GRs 6 GC's
Gannet Condtons S254.435
Feu Enyneererq Surveying 57.800
Ong
11e4r0000 S32 353
Overhead S104.823
Prole S136.270
ill Coosf octron Cost-Phase 2 Infrastructure Sac 230.000
Con structon DAsons cc Pmvaing Woos
Eannwon S4.413.304
See Oates S4.501 179
Comers Pevng 6 Curbs 53.157.282
Major nardscepeg.Sn111pn9 $4.064.722
Groom/irons.Penang Lot Surlecn9 f2,709.815
Revsed Aspnae Car Partn9 So5ton 53.980 000
Lendscapeg 6 Ingeron 52.132.196
['renege Layer A1wence S948 319
Oewelerng Abwance SI 345.023
Ground improvement Abeam-. Sr.793 364
Season/VA/bean. SI 681 279
sk's A(C't
General Corgeons 5595 768
Fed Engneorng'Surveyn9 S80.701
On.y
assurance 5310.820
Overhead S1.007.056
Prole SI 309 173
al Cor sfluctrOn Cost•Phase 3 Vertical(Ar7lph theater) $58 687.064 S58.88/064
396.828.221 S2.812.160 034.149,189 159.430,293
200 Soft Costs
Branding $150.000 4 $150.000
Arcnnenwe 6 Engeleenrg SI092.199 S90.251 SI 1039,5 $1,698033
Re-Constructon S201222 S5873 S71.836 $123513
Site 6 CM S393.550 S11.486 0140 497 S241 566
Rotes Management 5100.000 S2.919 $35 700 S61,381
Kitchen Egtapment Owego 1 T1Martl 579600 S79.600
Arch 6 Pf04oc0Un Lghurg Des,gn I Banda Laps $164 020 S164 020
Acoustic Creston S14.800 514.800
Songs Way5rqug['asap S200000 S5.837 S71.598 $122.564
Eneronmentar Impecr Assessment $49.050 $1.432 SI7.511 S30.108
lonug9erma Fees S367000 $t0.11t S131.019 S225.270
Tesusg Guam,Contra 5150 000 S4 378 S53.550 S92.072
Rnmbursebie Expenses 560.000 51 751 521 420 $36.829
Desgn Contingency 50 So
35.021.441 5134.63E S1,047,047 33.239,756
300 FF0E Costs
Fired Seating S2 726.548 S2.726 548
Box Seating•VIP Lounge Intl el above
Wtcnen 6 Bar Egu,pnenl S2.335.000 S2.315.000
P05 5165 000 S165.000
Pomade Bars S240.000 S240 000
CCTV $650 000 S650000
Entry uudggsecuray systems 5300 000 S300.000
Oata teeth 6 Netwonl Systems St 324 170 S1.324.170
Office Furniture 175.000 S75.000
Exlenor S,9nage Wayhrggg•Monument Son S590.000 5590000
Feature An Sculptors(Icon.gutter 001I S125000 $125000
Loose furniture Si 000 000 SI 000 000
Production•Sal Goods Inc1 in afore
ROductgn•Audio 6 Video Systems S800.000 $800 000
ROOUcuon•Lighting 5550.000 S550.000
810.880.718 50 SO 830,680.718
400 Contingency I 16.249.620 I S204 295 I S2 499.t65 I S4.296.159
Total Estimated Cost of the Project S119,730,000 $3,191,094 S38,691,981 S77,846,926
$48,887,075 Total Estimated Cosl of the
Public Infrastructure
EXHIBIT D
SOURCES OF FUNDS
PROJECT USES' PROJECT SOURCES`
General Line Item Category Estimated Cost Sources of Funds Dollar Amount
Public Infrastructure Budget State Funds` $ 20,000,000
Constuction Costs 5 37,397,928 City Funds' $ 5,000,000
Soft Costs S 1,781,685 Developer's Private Funds' $ 94,730,000
Contingency S 2,703,461
Subtotal-Public Infrastructure $ 41,883,075
Tenant Improvements Budget
Constuction Costs S 59,430,293
Soft Costs S 3,239,756
FF&E S 10,880,718
Contingency S 4,296,159
Total Estimated Project Costs of the Tenant Improvements: $ 77,846,925
TOTAIUSES: $119,730,000 TOTAL SOURCES: $119,730,000
'Subject to the restrictions in footnotes 2&3 below,the descriptions of line item categories,dollar amounts and allocation of sources to uses above are estimates only,and
subject to change in Tenant's discretion,including(without limitation)as actual pricing is obtained,as Project Costs are actually incurred,and State Funds and City Funds are
actually disbursed and/or reimbursed for such purposes.
'The State Funds shall be used exclusively to pay(or reimburse Tenant,as the case may be)for the Project Costs incurred(or to be incurred)to construct the Public
Infrastructure(as defined in this Lease),including,but not limited to parking,roadways,lighting,utilities and sidewalks,and to remediate and improve soil conditions to support
the Amphitheater.
'The City Funds shall be used exclusively to pay(or reimburse Tenant,as the case may be)for those Project Costs which:
(a)to the extent proposed to be reimbursed with CID revenues generated from CID Sales Tax,fall within the powers of a Missouri community improvement district pursuant
to the Community Improvement District Act,RSMo 67.1401 to 67.1571,inclusive,or are otherwise payable or reimbursable thereunder(collectively,"CID Costs");and
(b)to the extent proposed to be reimbursed with revenues generated from TDD Sales Tax,constitute costs of a'Project'as described in the Missouri Transportation
Development District Act,RSMo Sections 238.200 to 238.275,inclusive,or are otherwise payable or reimbursable thereunder(collectively,"TDD Costs").
"The portion of Tenant's private funds to be reimbursed with CID Sales Tax or TDD Sales Tax shall be used exclusively for Project costs,ongoing maintenance and improvements
and/or such other costs that constitute CID Costs or TDD Costs,respectively.
EXHIBIT E
PERMITTED ENCUMBRANCES
[Landlord shall provide Tenant with a current ALTA Title Commitment within 30 days of the
Effective Date. Tenant shall notify Landlord of any objections to the scheduled B-II exceptions in said
Commitment within twenty(20)days of receipt thereof. All B-II exceptions noted on such current ALTA
Title Commitment timely provided to Tenant by Landlord and not objected to by Tenant shall be the
"Permitted Encumbrances." Landlord and Tenant reaching agreement on the final list of Permitted
Encumbrances shall be part of Tenant's contingencies as set forth in Section 22.15(b)of this Lease.Upon
such agreement,the final list of Permitted Encumbrances shall be inserted herein as Exhibit E, without the
need for an amendment to this Lease, and shall serve as the Permitted Encumbrances for all purposes of
this Lease.]
EXHIBIT F
RENTAL AGREEMENT FORM
[To Be Agreed on by Landlord and Tenant,and such agreed upon form of Rental Agreement inserted herein
as Exhibit F to this Lease,without the need for an amendment to this Lease,Prior to Expiration of Tenant's
Contingencies in Section 22.15]
EXHIBIT C
DEVELOPMENT AGREEMENT
5
A
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT("Agreement"), dated this 7 day of March, 2024
("Effective Date"), is entered into by and between the City of Riverside, Missouri, a fourth-class
city ("City") organized and existing under the laws of the State of Missouri ("State"), and Live
Nation Entertainment, Inc., a Delaware corporation ("Developer"). The City and Developer are
referred to in this Agreement individually as a"Party" and collectively as the"Parties."
RECITALS
WHEREAS, City is the owner of certain real property consisting of an approximately one
hundred thirty five (135) acre collection of parcels generally located at the northwest intersection
of Horizons Parkway and I-635 in the City (the "Development Site") and more particularly
described on Exhibit A,attached hereto and made a part hereof(the portion of the Development
Site upon which the Amphitheater and Ancillary Structures, Parking Areas and Utilities are
actually constructed are referred to herein as the"Project Site"); and
WHEREAS,The City and Developer intend for Developer to cause the development of the
Development Site to include:
(1) a first-class live entertainment venue amphitheater of not less than a capacity of
15,000 people(the"Amphitheater"), generally depicted on Exhibit B attached hereto and
made a part hereof, and as more particularly described in the Plans and Exhibit C, the
Tenant Improvements Budget, attached hereto and incorporated herein, with respect to the
specific scope of improvements comprising the same;
(2) such additional ancillary structures and/or associated food and beverage areas as
Developer deems necessary to serve the Amphitheater and its customers (the "Ancillary
Structures"), as generally depicted on Exhibit B attached hereto and made a part hereof,
and as more particularly described in the Plans and said Exhibit C, the Tenant
Improvements Budget attached hereto and incorporated herein, with respect to the specific
scope of improvements comprising the same;
(3) approximately 6,366 paved and striped parking spaces, or other amount deemed
sufficient pursuant to the Plans, to serve Developer's intended use of the Project Site
(defined herein) (collectively, the "Parking Areas") as generally depicted on Exhibit B
attached hereto and made a part hereof, and as more particularly described in Exhibit D,
the Public Infrastructure Budget, attached hereto and incorporated herein, with respect to
the specific scope of improvements comprising the same;
(4) the installation of such public gas, water, electric, storm water and sanitary sewer
facilities (collectively, "Utilities") as necessary to serve the Development Site in capacities
sufficient for the Developer's intended uses thereof including for the operation of the
Amphitheater and Ancillary Structures,as generally depicted on Exhibit B attached hereto and
made a part hereof, and as more particularly described in the Plans and said Exhibit D, the
Public Infrastructure Budget, attached hereto and incorporated herein, with respect to the
specific scope of improvements comprising the same;
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(5) the earthwork and site improvements including grading and excavation necessary to
prepare the Project Site for construction of the Project, as more particularly described in the
Plans and said Exhibit D(collectively, the"Site Improvements");
(6) such vehicular roadways providing public access within and to and from the
Development Site from and to the existing public street network (collectively the
"Roadways"),as generally depicted on Exhibit B attached hereto and made a part hereof, and
more particularly described in the Plans and Exhibit D, the Public Infrastructure Budget,
attached hereto and incorporated herein, with respect to the specific scope of improvements
comprising the same. Collectively, the Parking Areas, Utilities, Site Improvements and
Roadways are referred to herein as the "Public Infrastructure". Collectively, the
Amphitheater, Ancillary Structures, Parking Areas, Utilities, Site Improvements and
Roadways, as the same are (or will be) more fully defined with the Plans and Final Design
(defined herein), and are referred to herein as the"Project"; and
WHEREAS,Developer and its contractor have developed a Tenant Improvements Budget,
attached hereto and made a part hereof as Exhibit C (as more fully defined herein, the "Tenant
Improvement Budget"); the City and Developer have developed a Public Infrastructure Budget
attached hereto and made a part hereof as Exhibit D (as more fully defined herein, the "Public
Infrastructure Budget", and together with the Tenant Improvement Project Budget,the"Project
Budget"); and the City and Developer have further developed a "Project Sources and Uses of
Funds" spreadsheet, attached hereto and made a part hereof as Exhibit E, which Project Budget
and Project Sources and Uses identify (i) the various line item categories and estimated total
amount of costs and expenses (including, without limitation, all hard and soft construction costs)
currently anticipated to be necessary to design, construct and complete the Project(the actual total
amount of all such costs and expenses referred to herein as "Project Costs"), and (ii) the sources
of revenue the Parties hereby agree will be used to pay for the Project Costs,respectively; and
WHEREAS, in addition to the Public Infrastructure, the City and Developer intend for the
City to design, construct and pay for all improvements and work associated with the
relocation/installation of new traffic signals, wiring of relocated/new traffic signals and signal
timing coordination, and a new rectangular rapid flashing beacon for pedestrian crossing and
Amphitheater Way(collectively, the"Signalization Improvements"); and
WHEREAS, the City and Developer have entered into that certain Amended and Restated
Ground Lease Agreement dated of even date herewith (the "Lease" or "Lease Agreement"),
which sets forth the terms and conditions between the Parties relating to the City leasing the
Development Site to Developer; and
WHEREAS,the Parties desire to plan, design, develop, construct and complete the Project
on the Development Site,subject to the applicable terms and conditions of the Lease, and upon the
terms and conditions set forth herein; and
WHEREAS,the Parties agree that the Project is not financially feasible without the public-
private partnership set forth in this Agreement, and therefore wish to enter into this Agreement to
provide the necessary financing for the Project.
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NOW THEREFORE, for and in consideration of the foregoing recitals, the mutual
agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
I.
PURPOSE OF AGREEMENT; PROJECT AND DEVELOPMENT SITE DEFINED
1.1 Purpose of Binding Agreement.This Agreement sets forth certain material terms
of the mutual agreement between the Parties with respect to the(a)planning,design,development,
construction and completion of the Project and(b)public assistance necessary to make the Project
financially feasible for the Developer. Developer agrees to design, develop, fixture and construct
the Project's Tenant Improvements, inclusive of the fixturing and equipping of the Amphitheater
and Ancillary Structures in accordance with and subject to the terms and conditions herein and in
the Lease. The City, through or in coordination with Developer, shall be responsible for the
construction of the Public Infrastructure, all as more particularly described in this Agreement.
Subject only to the City's express representations and covenants in this Agreement and the Lease,
Developer agrees to accept the Premises (as defined in the Lease) in its "As is, Where is"
condition. Developer, exclusive of the City Funds and the State Funds and subject to Developer's
rights to CID Revenues and TDD Revenues, and in consideration of the granting of the property
tax abatement and Chapter 100 sales tax abatement described in this Agreement and as otherwise
expressly set forth herein or in the Lease, shall be solely responsible for (a) the cost of design,
development,permitting,construction,and fixturing and equipping the Project,including any cost
overruns, such that no part of such cost of the Project will ever become an obligation of the City,
and (b) any construction defects in the Project.
1.2 Premises.City is leasing to Developer the Development Site described in the Lease
as the "Premises" subject and pursuant to the terms and conditions contained therein. This
Agreement is supplementary to the Lease and does not separately grant any leasehold interest.
Developer's use of the Project Site hereunder is also subject to the terms, conditions, and
limitations of this Agreement, including, but not limited to, certain City access requirements and
certain temporary requirements as may be necessary during the construction process by the laws,
rules and regulations of the City.
1.3 Temporary Construction Staging, Loading, and Access Areas. Developer shall
conduct construction staging and loading activities on, and shall access, the Development Site
during the construction period in accordance with applicable City Code provisions and other
applicable governmental laws, rules and regulations, and the City hereby grants Developer a
temporary construction license and right of ingress and egress over, under, upon, across and
through the Development Site for Developer and affiliates,and their respective successors,assigns,
agents, employees, contractors, material men, suppliers, and other representatives to enter the
Development Site for purposes of all construction activities as reasonably necessary or desirable
to plan, locate, design, construct, install, use, repair, remove, replace and/or reconstruct all such
improvements, facilities, and other work and activities as necessary or reasonable for completion
of the Project (collectively, (collectively, the "License"), which License shall expire upon the
earlier of the date of issuance of a final certificate of occupancy for the Amphitheater and three(3)
years from the Effective Date hereof. Developer does not have rights hereunder to use areas outside
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of the Development Site except (a) as provided in the Lease or other separate agreement between
the Parties, and(b) for temporary access rights as provided herein. Developer and City anticipate
that from time-to-time Developer may require temporary access and use of areas located outside
the Development Site and which may not be specifically addressed in the Lease or(if applicable)
such other separate agreement between the Parties. City will provide temporary access to such
areas conditioned upon the following: (i)the access or use of the areas must be for work described
or anticipated under this Agreement and/or the Lease, such as the utilities plan or roadway
construction, or other work authorized by the City or other governmental agency having
jurisdiction over the same; (ii) Developer must obtain written approval from the City Project
Coordinator prior to accessing areas outside the Development Site,which approval may be subject
to reasonable conditions regarding time, location, duration, and protection of property; (iii)
Developer will repair any damage caused to areas outside the Development Site and restore such
areas to substantially the condition existing immediately prior to Developer's use or to such other
condition as requested in writing by Developer and approved in writing by the City in its
commercially reasonable judgment;and(iv) Section 12("General Indemnities")will apply to all
such use by Developer.
1.4 Mitigation of Construction Impacts.Developer shall conduct or shall cause to be
conducted all construction activities related to the Project's Tenant Improvements to be performed
in accordance with applicable requirements of the Code of Ordinances of the City of Riverside as
adopted and in effect at the time of the approval of the Plans ("City Code"), any Construction
Impact Mitigation Plan to be developed and mutually agreed to by the Parties in writing (the
"Construction Impact Mitigation Plan"). The Construction Impact Mitigation Plan is intended
to reduce or eliminate certain anticipated impacts (to the extent feasible) arising from the Project,
including impediments to transportation,noise and impacts on neighboring properties. In the event
that the City notifies Developer of a failure to comply with the Construction Impact Mitigation
Plan, City and Developer shall promptly meet and confer to discuss such failure and how to bring
the Project back into compliance. Moreover, in the event that the City notifies Developer, its
contractors or subcontractors, that the nature of such alleged non-compliance has a material
adverse effect on the City or the neighboring properties or poses an immediate danger to persons
or property in and around the Project Site, then upon written notice, an email shall satisfy this
requirement for a written notice from City (and without limitation of other remedies under this
Agreement) Developer shall immediately cease any such alleged non-complying construction
activities for a period not to exceed twenty-four(24)hours until such issue can be investigated and
a mutually agreed upon cure implemented by Developer and/or its contractors.
II.
TERM OF AGREEMENT
2.1 Term. This Agreement is binding and effective from and after the Effective Date
and, will continue for a term, unless earlier terminated pursuant to the terms hereof, that expires
on the later of the following (the "Term"): (a) expiration of the Chapter 100 Lease and
consummation of Developer's repurchase option thereunder,(b)the date on which the full amount
of the State Funds and the City Funds have been expended to pay(or reimburse Developer for)the
costs of the Public Infrastructure, (c) the date on which the aggregate amount of CID Revenues
and TDD Revenues actually received by Developer equals or exceeds Tenant's Share of CID &
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TDD Revenues(as defined in the Lease);and(d)the date on which the entirety of the Development
Site has been removed from both the CID District and TDD District and the CID Sales Tax and
TDD Sales Tax have been terminated as to the Development Site and the improvements thereon
(including, without limitation, the Amphitheater and Ancillary Structures).
III.
PROJECT SCHEDULE AND COORDINATION
3.1 Design and Construction Schedule.Attached hereto as Exhibit F is the estimated
design and construction schedule for the Project (the "Design and Construction Schedule").
Developer shall provide to the City Engineer, not less frequently than monthly through Final
Completion pursuant to Section 9.5 of this Agreement Developer's most current updates to the
Design and Construction Schedule. Developer acknowledges that the City, when acting in its
regulatory capacity, is not limited in its regulatory authority by this Agreement and will not under
any circumstance be responsible for any costs associated with Project delays caused by
Developer's, its Contractor's or subcontractors' failure to comply with City laws, rules or
regulations applicable to the Project, inclusive of timely application and diligent pursuit of all
applicable permits for the Project.
3.2 Force Majeure. "Force Majeure" will mean, whenever any time period or
deadline is set forth in this Agreement,that such period or deadline will be extended by the number
of days that completion of an obligation is actually delayed due to acts of nature or of the public
enemy; governmental action or inaction not reasonably anticipated, including by the City in its
capacity as a regulatory authority; acts of terrorism; fires; floods; tidal waves; epidemics; •
quarantine restrictions; freight embargoes; earthquakes; unusually severe weather; strikes or other
substantial interruption of work because of labor disputes; inability to obtain materials or
acceptable substitute materials on a timely basis, not reasonably anticipated; failure or delay in
delivery of utilities serving the Development Site not caused by, or outside the reasonable control
of, the Party claiming an extension; previously unknown environmental conditions discovered on
or affecting the Development Site or any portion thereof, in each case including any delay caused
or resulting from the investigation or remediation of such conditions; existing unknown or newly
discovered geotechnical conditions,including any delay caused or resulting from the investigation
or remediation of such conditions; litigation that enjoins construction or other work on the
Development Site or any portion thereof, causes a lender to refuse to fund, disburse or accelerate
payment on a loan, or prevents or suspends construction work except to the extent caused by the
Party claiming an extension; and any action or proceeding before any judicial, adjudicative, or
legislative decision-making body, including any administrative appeal, that prevents the action
that is being delayed, brought by a third party that challenges any required permit, approval or
other approval, action or consent required to implement the Project,provided the foregoing events
will only be considered Force Majeure to the extent the same (a) do not arise from the acts or
negligent omissions of the Party claiming Force Majeure delay, and (b) are not within the
reasonable control of such Party. A Party claiming Force Majeure shall provide prompt notice to
the other Party of any such claim of Force Majeure.
IV.
PROJECT FINANCING
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4.1 Estimated Cost & Financing Sources. Total Project Costs necessary to complete
the Project are estimated to be approximately $120,000,000, and shall be paid from the following
sources:
(a) $95,000,000 of Developer's private Equity Contribution and/or Debt
Financing (collectively, the "Developer's Private Funds"), at least $5,000,000 of which
shall be reimbursable with CID Revenues and TDD Revenues as more particularly
described(and subject to increase as provided)below;
(b) $20,000,000 in direct grant assistance appropriated by the State of Missouri
("State") in House Bill No. 7 of the 2023 Session of the Missouri General Assembly(the
"State Funds"); the full amount of such State Funds shall be used solely to pay for the
Project Costs of the Public Infrastructure; and
(c) $5,000,000 in direct assistance from the City (the "City Funds"),
reimbursable to the City with its share of CID Revenues and TDD Revenues as defined
herein and more particularly described below.
If the Project Costs to complete the Public Infrastructure exceed Thirty Million and 00/100
Dollars ($30,000,000.00) Developer shall pay for such excess Project Costs and the same shall be
fully reimbursed to Developer with CID Revenues and TDD Revenues as defined herein and more
particularly described in Section 4.3(c) and Section 4.7 below, after Developer and the City have
each been reimbursed for their respective Five Million and 00/100 Dollar ($5,000,000.00)
referenced in subsections 4.1(a) and 4.1(c)above. For avoidance of doubt,the terms"Roadways",
"Utilities", "Public Infrastructure", and "Project", as used herein, all specifically exclude (i) the
Signalization Improvements and the costs thereof, which shall be the responsibility of the City in
addition to and separate from its contribution of the City Funds to the costs of the Public
Infrastructure.
4.2 Equity Contribution and Debt Financing. Developer intends to fund the Project
Costs, less the State Funds and City Funds, through a combination of equity contributed by
Developer and/or its investors (collectively, the "Equity Contribution"), and indebtedness from
one or more institutional lenders (collectively, the "Debt Financing"). If and to the extent that
cost overruns result in an increase in the Project Costs for the Project scope described herein,then
Developer will in good faith seek to arrange for the Equity Contribution and/or Debt Financing to
be increased to cover the full amount of the Project Costs (less the State Funds and City Funds)
and/or other available public or private funding source(s) in an aggregate amount equal to the
Project Costs in excess of$120,000,000, or to find reasonable Project Cost savings that, alone or
in combination with any such additional funding arranged, balances total Project Costs and
Sources of Funds to pay the same. Any security instrument securing the Debt Financing will only
encumber Developer's leasehold interest in the Development Site, Developer's ownership interest
in the Amphitheater and Ancillary Structures,or both,and will not encumber the City's fee interest
in the land comprising the Development Site. Prior to execution of the Lease Agreement and this
Agreement, Developer shall provide to the City's financial consultant (which is currently
anticipated to be Columbia Capital), an updated budget for Project Costs, including a balanced
Sources and Uses showing each source of debt and equity. If and to the extent that the City requests
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that it be able to review any loan documents related to the Debt Financing, the City's review shall
be conducted in an expeditious manner and shall be limited to providing the City a reasonable
opportunity for confidential review to confirm that (i) the terms and conditions of such loan
documents are not in conflict with Developer's obligations to the City as set forth in this Agreement
and the Lease Agreement, (ii)any security instrument creating a lien to secure the Debt Financing
encumbers only Developer's leasehold interest in the Development Site, ownership interest in the
Amphitheater and Ancillary Structures,and/or other collateral,but not the City's fee interest in the
land constituting the Development Site, (iv)that the Parties have considered and agreed upon any
City and/or lender notice provisions to be incorporated into the loan documents(including,without
limitation,any agreed-upon notice provisions from lenders in favor of the City),and(v)the amount
and cost (including capitalized interest) of the Debt Financing is consistent with the then-current
Project Budget(defined herein).
4.3 Public Entity Funding. The source of funding for the Project Costs of the Public
Infrastructure, as illustrated in Exhibit E, shall be as follows:
(a) The Parties shall first utilize the Twenty Million and 00/100 Dollars
($20,000,000) in direct grant assistance appropriated by the State for the Project as more
particularly described in Section 7.143 of truly agreed and finally passed CCS SCS HCS
HB 7 as signed and approved by the Governor of the State of Missouri, pursuant to the
terms and conditions of this Agreement and any applicable conditions of disbursement as
established by the Missouri Department of Economic Development ("DED") and the
Missouri Development Finance Board ("MDFB") in the Grant Agreement (as defined in
the Lease); and
(b) For the first Ten Million and 00/100 Dollars ($10,000,000) of the Public
Infrastructure costs in excess of the State Funds, the City and Developer shall split such
costs equally on a 50/50 dollar for dollar basis, and such respective contributions shall be
reimbursed to the City and Developer on a 50/50 dollar for dollar basis with the first Ten
Million and 00/100 Dollars($10,000,000)of CID Revenues and TDD Revenues generated
as described in Section 4.7(d)below.
(c) For any and all costs of the Public Infrastructure in excess of Thirty Million
and 00/100 Dollars ($30,000,000) (such excess, the"Additional Infrastructure Costs"),
the Additional Infrastructure Costs shall be the responsibility of the Developer, and,
following the initial $10,000,000 of reimbursement described in Section 4.3(b) above, the
CID Revenues and TDD Revenues shall be reserved and exclusively available to
Developer for reimbursement of such Additional Infrastructure Costs,as more particularly
described in Section 4.7 below.
4.4 Chapter 100 Financing. The Parties intend, upon approval of the Board of
Aldermen of the Bond Documents (defined herein), to enter into and perform certain transactions
and agreements authorized by and pursuant to the provisions of Article VI, Section 27(b) of the
Missouri Constitution, as amended and Sections 100.010 to 100.200 of the Revised Statutes of
Missouri, as amended (collectively, the "Act"), including the issuance by the City of taxable
industrial development revenue bonds in an aggregate principal amount not to exceed$90,000,000
7
or such other amount agreed to by the Parties in such agreements (the "Bonds") to be utilized to
finance the Amphitheater and Ancillary Structures, and purchases of materials and FF&E used in
the construction, equipping and furnishing of the Project, as provided for in this Agreement, for
purposes of authorizing exemptions for the Project from: (a) sales and use tax on the materials and
FF&E purchased in connection with the construction,furnishing,and equipping of the Project,and
(b) 100% of ad valorem real property taxes for the Amphitheater and Ancillary Structures for a
period of ten (10) years beginning January 1 following the Substantial Completion of the
Amphitheater (collectively, the "Chapter 100 Incentives"). Upon approval of the Board of
Aldermen, and Developer's execution, of the Bond lease agreement related to the Chapter 100
Incentives,the City shall promptly secure and furnish to Developer the sales and use tax exemption
certificates for use by Developer and its contractors and subcontractors to purchase materials and
FF&E for the Project exempt from sales and use tax. The City agrees to cooperate with Developer
and use its diligent and good faith, commercially reasonable efforts to pursue and secure any
approvals or consents from DED as necessary to carry out the Chapter 100 Incentives as described
above.
4.5 Obligations Pursuant to Chapter 100 Transactions.The Parties obligations with
respect to the Chapter 100 Incentives following the issuance of the Bonds will be delineated within
the Bond transaction documents necessary to provide and carry out the Chapter 100 Incentives
(collectively, the "Bond Documents"), which shall be consistent with the Act and the terms and
provisions customarily included in Chapter 100 bond documents entered into in the State for
purposes of providing real property and sales tax exemption.
4.6 Disbursement of State and City Funds.
(a) Grant Agreement. Upon the Parties' execution of this Agreement and the
Lease, the City shall promptly request that MDFB prepare a draft of the proposed Grant
Agreement(a defined in the Lease)to be entered into between the City and MDFB related
to the State Funds. The City shall provide such initial draft (and all subsequent drafts and
proposed modifications thereof)to Developer promptly upon the City's receipt of the same
from MDFB. Prior to responding to any draft or proposed modifications received from
MDFB, the City shall first confer with Developer and submit any and all comments and
revisions that the City intends to propose to the Grant Agreement to Developer for its
review and prior written approval. In addition, the Parties acknowledge it is their mutual
desire and intent that the terms and conditions of the Grant Agreement allow for the full
amount of the State Funds to be deposited with the City ASAP (and not later than June 30,
2024 in any event), and for the City to hold such State Funds in safekeeping and disburse
the same solely to pay (or reimburse Developer for) costs of the Public Infrastructure
pursuant to the cost certification procedures set forth in this Agreement. Accordingly, the
City shall diligently negotiate in good faith with MDFB to incorporate such terms and
conditions in the Grant Agreement as necessary to achieve that result. If,however,the full
amount of the State Funds has not been so deposited with the City on or before April 1,
2024,the Parties will work cooperatively in good faith to have as much of the State Funds
drawn by that date as reasonably possible in accordance with the terms and conditions of
the Grant Agreement,and to engage in further discussions with MDFB and take such other
actions as reasonably necessary so that,prior to June 30,2024, the full amount of the State
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Funds shall have been disbursed by MDFB and either used to pay(or reimburse Developer
for) costs of the Public Infrastructure or remain on deposit with the City and be readily
available to pay(or reimburse Developer for) such costs after June 30, 2024.
(b) Disbursement. All requests to draw or receive reimbursement from State
Funds and/or City Funds will be made in a"Certificate of Project Costs"in substantially
the form attached hereto as Exhibit G along with reasonable supporting documentation
(such as copies of bills, invoices, pay applications, contracts, receipts, check stubs, wire
confirmations, lien waivers or such other documentation to confirm that the Project Costs
relating to the draw or reimbursement request constitute Project Costs which are payable
and/or reimbursable under this Agreement from the source(s) of funds requested to pay or
reimburse the same. The City shall have ten (10) business days following receipt of any
Certificate of Project Costs to review the same to confirm that the costs included therein
constitute Project Costs payable and/or reimbursable from the requested source of funds in
accordance with this Agreement, in which case the City shall approve the Certificate of
Project Costs and disburse the State Funds and/or City Funds requested thereby to
Developer, in the amount requested in the Certificate of Project Costs, within thirty (30)
days following Developer's submission of the Certificate of Project Costs. If the City
reasonably disapproves all or a portion of a Certificate of Project Costs on the basis of not
complying with the criteria in this subsection,the City shall notify the Developer in writing
of the specific reason for such disapproval within five(5) days following its initial receipt
of the Certificate of Project Costs, and the Parties shall use their best efforts, time being of
the essence, to work together to try to resolve any specific disapproved Project Cost
impediment to approval. For any Certificate of Project Costs that has been only partially
disapproved, the City shall proceed with disbursement in the amount of the approved
Project Costs listed on such Certificate of Project Costs shall proceed to payment as
described above.
4.7 Special Districts.
(a) Community Improvement District(CID)Financing.Reference is hereby
made to that certain Horizons Community Improvement District ("Horizons CID")
established pursuant to the City's adoption of Ordinance No. 1725 on June 15,2020,which
encompasses the Development Site and certain other surrounding properties, and to the
accompanying one percent(1.0%)CID sales and use tax imposed in the Horizons CID(the
"Horizons CID Sales Tax") pursuant to Resolution No. 2020-05 adopted by the City on
June 16, 2020, and thereafter submitted to and approved by a majority of the qualified
voters of such Horizons CID as of August 4, 2020, all in accordance with the Missouri
Community Improvement District Act, Section 67.1401 to 67.1571 of the Revised Statutes
of Missouri, as amended (the "CID Act"). The City shall cooperate with Developer and
diligently and in good faith advocate for the expansion of the Horizons CID to include the
38 +/- acre Argosy Riverside Casino property (the Horizons CID, as the same may be
expanded as described above,referred to herein as the"CID District"), and for expanding
the imposition of the Horizons CID Sales Tax to apply to all taxable sales occurring on or
within,or otherwise sourced to,the CID District upon such expansion thereof(the Horizons
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CID Sales Tax, as the same may be imposed within the CID District, is referred to herein
as the"CID Sales Tax"). It is the intent of the Parties that all revenues generated from the
CID Sales Tax imposed within all or any portion of the CID District (collectively, "CID
Revenues") shall be held in a separate fund (or sub-account) of the City, not commingled
with other funds of the CID District or the City, and solely used and disbursed strictly in
accordance with this Agreement. Accordingly, the City shall take, and shall diligently
advocate for the Board of Directors of the Horizons CID and other interested stakeholders
to take,all such actions and legal steps as necessary to carry out the intent of this Agreement
with respect to the CID District, CID Sales Tax and CID Revenues.
(b) Transportation Development District(TDD) Financing. In addition,the
Parties will work cooperatively to form a Transportation Development District (TDD)
coterminous with the boundaries of the expanded CID District described above (the
"Horizons TDD" or the "TDD District"), and to impose an accompanying one percent
1.0% TDD sales and use tax on all taxable sales occurring on or within, or otherwise
sourced to,the Horizons TDD(the"Horizons TDD Sales Tax"or the"TDD Sales Tax"),
all in accordance with the Missouri Transportation Development District Act, Section
238.200 to 238.275 of the Revised Statutes of Missouri, as amended (the "TDD Act"). It
is the intent of the Parties that all revenues generated from the Horizons TDD Sales Tax
imposed within all or any portion of the TDD District (collectively, "TDD Revenues")
shall be held in a separate fund (or sub-account) of the City, not commingled with other
funds of the TDD District or the City, and solely used and disbursed strictly in accordance
with this Agreement.Accordingly,the City shall take,and shall diligently and in good faith
advocate for the Board of Directors of the TDD District and other interested stakeholders
to take,all such actions and legal steps as necessary to carry out the intent of this Agreement
with respect to the TDD District, TDD Sales Tax and TDD Revenues.
(c) Board Seats. Developer (or its designee) shall have at least two (2) of the
five seats (or at least 2/5 of the total number of seats, if more than five) on the Board of
Directors of each of the CID District and the TDD District at all times while all or any
portion of the Development Site is included in the CID District or TDD District or subject
to the CID Sales Tax or TDD Sales Tax.
(d) Priority of Reimbursement. Consistent with Sections 4.1 and 4.3 of this
Agreement, the Parties acknowledge and agree that all CID Revenues and all TDD
Revenues (less any administrative charges collected by the State Department of Revenue,
or the Horizons CID and Horizons TDD (not to exceed $5,000 annually without
Developer's prior written approval)) shall be used and disbursed exclusively as follows:
i. The first Ten Million and 00/100 Dollars($10,000,000)generated shall be used
to reimburse the City and Developer, on a 50/50 dollar-for-dollar basis, in the
amount of the City Funds (not to exceed $5,000,000), and $5,000,000 of
Developer's Project Costs, actually expended on costs of the Public
Infrastructure for the Project;
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ii. Next, one hundred percent (100%) of all CID Revenues and TDD Revenues
shall be reserved and made exclusively available to Developer to reimburse
Additional Infrastructure Costs; and
iii. At such time as the City Funds and all of Developer's Project Costs attributable
to the Public Infrastructure (including, without limitation, all Additional
Infrastructure Costs, as defined in Section 4.3(c) above) have been fully
reimbursed, as evidenced by written notice from Developer to the City, any
further collection, use and disbursement of CID Revenues and TDD Revenues
thereafter shall be subject to the City and Developer (and, if applicable, any
other single revenue contributor whose taxable sales generate an amount equal
to eighty percent (80%) or more of the CID Revenues and TDD Revenues
generated from the Project and Developer's commercial activities upon the
Development Site) agreeing upon the form of and executing an amendment to
this Agreement (or other written agreement to which the City and Developer
are both parties) detailing the specific uses and allocation of such further CID
Revenues and TDD Revenues, which amendment (or other agreement, as
applicable) shall require and provide for a proportionate split of the CID
Revenues and TDD Revenues, including at a minimum: (a) that all CID
Revenues and TDD Revenues generated from the Project and Developer's
commercial activities on the Development Site shall be reserved and made
available exclusively for Developer to pay or reimburse such ongoing costs as
eligible for such payment or reimbursement under the CID Act and/or the TDD
Act (as applicable); and (b) if applicable, that all CID Revenues and TDD
Revenues generated from the property within the district owned by such other
single contributor, and its commercial activities thereon, shall be reserved and
made available exclusively for such other single contributor to pay or reimburse
such ongoing costs as eligible for such payment or reimbursement under the
CID Act and/or TDD Act(as applicable).
(e) Further Action. The City, consistent with this Agreement and the Lease
(and in all events in compliance with the Community Improvement District Act and the
Transportation Development District Act, as applicable), shall adopt and/or amend (or
cause to be adopted and/or amended) such ordinances, resolutions, agreements, and other
formation and governing documents related to the CID District and CID Sales Tax,and the
TDD District and TDD Sales Tax, as necessary to achieve and carry out the intent of this
Section 4.7, including, but not limited to, the authorization and execution by the CID
District and TDD District of such promissory notes, development agreements, or other
instruments as Developer reasonably deems necessary to provide it with a sufficient means
of enforcement for the same.
(f) CID & TDD Eligible Expenses. The Parties acknowledge and agree CID
Revenues and TDD Revenues may only be used to pay or reimburse Project Costs(and/or
ongoing maintenance and other costs) eligible for such payment or reimbursement in
accordance with the CID Act and TDD Act, respectively, and shall be held and disbursed
strictly in accordance with the terms and conditions of this Agreement. If requested by
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Developer,the City agrees to work cooperatively with and provide assistance to Developer
in seeking to maximize Developer's Project Costs eligible for reimbursement with CID
Revenues and TDD Revenues, including, by way of example and without limitation,
advancing and supporting such actions and transactions as necessary for the City to
lawfully acquire a leasehold or fee ownership interest in certain improvements(or portions
thereof)to the extent specified in any request made by Developer under this subsection and
upon the terms and conditions mutually agreed to by the Parties pursuant to a separate
agreement.
(g) No Other Impositions. Other than the Levee Assessment imposed by the
Riverside Quindaro Bend Levee District existing as of the Effective Date, and the CID
Sales Tax and TDD Sales Tax upon the terms and conditions described in this Agreement,
the City acknowledges and agrees that it shall not seek to impose, nor approve or take any
other steps in furtherance of the imposition of, any CID, TDD, special benefit district, or
other assessments, special taxes or other impositions of any kind against all or any portion
of the Development Site, Amphitheater and/or Ancillary Structures.
V.
UTILITY TERMINATION, RELOCATION,AND CONNECTION
Developer shall or shall cause all work that is needed to separate, terminate, relocate and
construct utilities in and to the Project Site required for the operation of Project, including (as
applicable) electrical and low voltage wiring, mechanical, plumbing and drainage piping, in a
manner that does not interrupt utility service to neighboring properties outside the Development
Site,except for such temporary interruption as may be specifically approved in writing by the City,
not to be unreasonably withheld, conditioned or delayed.
VI.
ROLE OF CITY PROJECT COORDINATOR AND DEVELOPER REPRESENTATIVE
6.1 Designation of City Project Coordinator. The Mayor, representing the City as
owner of the Project Site, may designate from time to time, by notice in writing to Developer, an
individual who shall serve as the City Project Coordinator(the "City Project Coordinator") for
the purposes of communicating with the Developer Representative to keep the City apprised
regarding matters related to the design,development and construction of the Project,but expressly
excluding matters in which the City is acting in its regulatory capacity. The initial City Project
Coordinator will be . Developer will so inform its principal Project architect
("Project Architect"), and contractor(s) (individually and collectively, as applicable, the
"Contractor") of the City Project Coordinator and inform its Developer Representative (defined
below)to transparently coordinate with the City Project Coordinator as provided in this Agreement
to keep such individual informed as to the Project status.
6.2 Designation of Developer Representative. Developer may designate from time to
time in writing an individual who will serve as the Developer Representative for the purposes of
communicating with the City Project Coordinator regarding matters related to the design,
development and construction of the Project (the "Developer Representative"). The initial
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Developer Representative will be . The City Project Coordinator will advise the
City staff to reasonably coordinate with the Developer Representative to keep such individual
informed as to any facts or circumstances that may be reasonably anticipated to affect the Project.
6.3 Role of City Project Coordinator and Developer Representative. The City
Project Coordinator is authorized to receive notices as specified in this Agreement and to make
decisions on behalf of the City consistent with the responsibilities as expressly designated under
this Agreement. Otherwise, only the Mayor, with granting authority from the City's Board of
Aldermen, will be authorized to make binding decisions on behalf of the City with respect to the
Project and this Agreement,provided that nothing in this Agreement will limit the City when acting
in its governmental and regulatory capacity. Only the Developer Representative is authorized to
give binding instructions or to make binding decisions on behalf of Developer hereunder with
respect to the design,development, and construction of the Project. Developer will use good faith,
commercially reasonable efforts to involve and keep the City Project Coordinator informed on a
timely basis of significant aspects of the design, development and construction of the Project.
6.4 Meetings and Briefing Materials. To enable the City Project Coordinator to
remain informed about the status of the Project, participate in discussions regarding same, and
present the City's nonbinding recommendations with respect to matters being discussed, the
Developer Representative will schedule regular meetings, not less frequently than bi-weekly or
such other interval as may be agreed by the City Project Coordinator and Developer Representative
from time to time, (which may be held by phone or video conference), with the Project Architect
and Contractor to discuss major issues related to the design, development and construction of the
Project. The City Project Coordinator, if and when so requested by the City, shall cause the City's
designated financial,legal and construction consultants,to be notified of the time and place of and
invited to all such meetings. The initial meeting shall be scheduled within thirty (30) days of the
Effective Date.
6.5 Material Construction-Related Documents and Notices. The Developer
Representative will also timely provide the City Project Coordinator with copies of material
construction-related documents and notices,including monthly Design and Construction Schedule
updates and modifications,monthly Project Budget updates,a monthly report regarding the Project
percentage of completion based on the latest information Developer has from the Project Architect
as of the date of such report, permit applications, and requests for information ("RFIs") made to
governmental agencies other than the City related to Project construction, material change order
proposals and notices of default or non-compliance to or from any party to such material
construction-related documents. Upon City's reasonable request (but no more frequently than
monthly),Developer will provide the City Project Coordinator with access to confidentially review
such documents, books, records, or similar materials in Developer's possession or control that
reasonably relate to the design, development or construction of the Project; provided, however,
that the City and Developer will meet and confer in good faith prior to any disclosure thereof to
protect the confidentiality of proprietary information that may otherwise become subject to public
records act disclosure. Receipt by the City Project Coordinator of any of the foregoing information
will not create or be the basis for any waiver or estoppel by or against the City of any express right
of the City under this Agreement or the Lease, unless and until the City issues a pertinent written
consent or waiver.
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6.6 Project Site Access. Subject to the from time to time generally-applicable safety
rules promulgated by Developer or the Contractor, the City Project Coordinator will at all
reasonable times and upon reasonable prior notice (which notice may be given by e-mail or
telephone call, receipt confirmed by reply e-mail or telephone call)have reasonable access to the
Project Site, including the opportunity to observe and inspect any and all work being performed at
the Project Site and any and all Project activity. In exercising any right of access provided herein,
the City, City Project Coordinator, and any other agents, employees or other representatives of the
City shall, prior to any such access, check-in with the on-site manager and, at all times while
present at the Project or Development Site, carry proper identification.
6.7 No Liability to City. No recommendations, approvals, or other actions under this
Agreement by the Mayor,City Administrator,City Project Coordinator,or any other representative
of the City will in any manner cause the City to waive its sovereign immunity and bear any
responsibility or liability for the design, development or construction of the Project or for any
defects related thereto or any inadequacy or error therein or any failure to comply with applicable
law, ordinance, rule, or regulation. Approval of any Project design, development or construction
documents by the City pursuant to this Agreement will not constitute an opinion or representation
as to their adequacy for any purpose other than the City's own purposes.
VII.
SELECTION OF DESIGNERS, CONTRACTORS, AND SUBCONTRACTORS
7.1 Initial Designations.Developer will have the final decision-making authority with
respect to the selection of architects, engineers, and contractors and the terms and conditions of
any contracts for the design,development and construction of the Project(collectively and as may
be amended, supplemented, or replaced from time to time, the "Project Contracts"); provided,
however, that such selections with respect to the Project Contracts for the Public Infrastructure
shall be made on behalf of and in coordination with the City and subject to Section 7.2 below.
Developer or its Contractor shall obligate all counterparties to the Project Contracts to comply
with any applicable requirements of such counterparties under this Agreement.
7.2 Contract Requirements. All Project Contracts are or will be consistent with
industry standards, and shall comply with applicable laws, rules and regulations. All Project
Contracts will include provisions for insurance consistent with the requirements of the Lease.
Developer may collaterally assign the Project Contracts to any lender(s) providing all or any
portion of the Debt Financing. All Project Contracts for the Public Infrastructure("Public Works
Contracts") shall comply with applicable laws,rules and regulations, including but not limited to
City Ordinances. The Parties acknowledge and agree that, only Public Infrastructure
Improvements shall be subject to any prevailing wage or similar wage requirements,or any public
or competitive bidding requirements. Notwithstanding anything in this Agreement to the contrary,
it is the intent of the Parties that Tenant, on behalf of the City and in coordination therewith, will
design, bid, and contract directly for the construction of the Public Infrastructure in compliance
with applicable State law (including, without limitation, requirements of MDFB).
VIII.
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DESIGN PHASE
8.1 Plan Approval Process. In addition to the City's regulatory review and approval
of the preliminary and final development plan for the Project pursuant to Ordinance No. 1966
approved and passed by the City's Board of Aldermen on December 19, 2023, as the same may be
modified, amended or supplemented from time to time in accordance with the applicable City
Code provisions (collectively, the "Plans"), the design documents, inclusive of plans and
specifications for all components of the Project, that are required to be submitted for City review
pursuant to such applicable City Code provisions (the "Project Plans") will be subject to the
review and approval of the City in its regulatory capacity pursuant to the City's normal planning
and zoning process in accordance with such applicable City Code provisions. As a result, the
Parties agree that it will be mutually beneficial to coordinate the submission and approval of the
Project Plans for the Project between Developer and the City's staff. The Parties will follow the
process in this section to coordinate the review and approvals of the Project Plans through
completion of the Final Design (as defined below). Developer, in regular consultation with the
City Project Coordinator, will direct and cause the Project Architect to prepare and develop all
Project Plans in accordance with and consistent in all material respects with the Plans (such Plans
and Project Plans collectively referred to herein as, the"Final Design").
8.2 Design Standards.The Parties agree that the Final Design of the Project,will meet
the following design standards (the"Design Standards"):
(a) comply with the design standards set forth in the City's Building Codes and
applicable to the Project;
(b) comply with all applicable laws, including,but not limited to, the requirements
of the Americans with Disabilities Act("ADA");
(c) review and approval by the City's staff, Planning and Zoning Commission and
the Board of Aldermen, as applicable, in accordance with the City's normal planning and
zoning process pursuant to applicable City Code requirements;
(d) provide pedestrian access around the circumference of the Amphitheater
and Ancillary Structures as depicted on the Plans, and, to the maximum extent reasonably
feasible and possible without disruption or interference to Developer's business operations,
Developer will use commercially reasonable efforts for the pedestrian walkways,
landscaping and hardscaping, and other amenities in the Project Site to remain reasonably
available for public use and enjoyment, festivals, and other uses consistent with the City's
purpose and Master Plan, subject in each case to the terms and conditions of the Lease; and
(e) provide vehicular access to the Parking Areas and the adjoining public street
network as depicted in the Plans.
8.3 Initial Signage Plan. The initial sign plan for the Project will be developed by the
Developer and subject to terms of the Lease and review and approval by the City(the"Initial Sign
Plan"), in its legislatively reasonable judgment in accordance with the City's normal signage
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review and approval procedures pursuant to applicable City Code requirements. Subject to the
terms of the Lease and except as otherwise permitted under the applicable signage regulations
contained in the City Code,no change from the Initial Sign Plan may be made without the approval
of the City.
VIV.
CONSTRUCTION PHASE
9.1 Conditions to Commencement of Construction. Unless expressly authorized by
the Lease or other separate agreement between the Parties, Developer may not commence any
demolition or construction activities on any portion of the Project Site until satisfaction or waiver,
in writing,by the City of all of the following conditions precedent:
(a) Construction fencing of the Project Site has been installed in accordance
with the requirements of this Agreement and the City Code;
(c) If required under the Debt Financing, Developer has provided a copy of a
payment and performance bond from the Contractor or a similar guaranty;
(d) All Project Contracts have been collaterally assigned if required by the Debt
Financing;
(d) Any pre-demolition utility relocations and terminations required prior to
such commencement and pursuant to the Plans shall have been completed in accordance
with this Agreement;
(e) Developer has obtained all permits required for demolition and for the initial
phase and/or such other phases of construction of the Project Developer seeks to
commence;
(f) Any then known Hazardous Materials remediation required pursuant to this
Agreement prior to construction has been completed in accordance with the applicable
remedial work plan; and
(g) Developer and its Contractor have executed the Project Contracts governing
the phase(s) of construction which Developer seeks to commence, with a guaranteed
maximum price that matches the amount therefor in the then current Project Budget, and a
fully-executed copy of such contract has been provided to the City and,with respect to any
Project Contract(s) for the Public Infrastructure, MDFB.
Upon request by either Party, the City will issue a written confirmation whether the foregoing
conditions have been satisfied(or waived, if applicable), and if so, the date thereof.
9.2 General Construction Obligations. Developer shall at its expense undertake and
be responsible for the management of all aspects of the construction of the Amphitheater and
Ancillary Structures portion of the Project in accordance with this Agreement, the approved Final
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Design, the Project Plans, and all applicable laws. Developer will obtain or cause to be obtained
and maintain in effect, as necessary, all building permits, licenses and other governmental
approvals that may be required in connection with construction of the Project. Developer will use
its good faith and commercially reasonable efforts to resolve issues that may arise during
construction and the City shall work cooperatively with Developer in connection therewith.
9.3 Responsibility for Construction Budget and Reporting.In the event Developer's
Private Funds are insufficient to pay Developer's actual Project Costs(exclusive of the State Funds
and City Funds),for the design,development,construction, fixturing and equipping of the Project,
Developer is responsible for any such additional Project Costs required for Developer to complete
its Project in accordance with the Final Design, including those due to unforeseen conditions.
Developer will provide updates to the Project Budget in reasonable line-item detail, including use
and remaining balance of contingencies, to the City Project Coordinator on a monthly basis. The
City and Developer have the right to confirm the adequacy of Project funding with respect to any
material change to the Project Budget. Developer will notify the City within ten (10) days of
discovering any event or condition likely to lead to increases in the Project Budget in excess of
$500,000. Developer will inform the City Project Coordinator of the circumstances leading up to
and resulting from the potential budget increases and keep the City Project Coordinator apprised
of its work and of its plans for addressing such conditions or such increase(s). Neither such notice
nor any communications to or from the City relating to any such Project Budget increase(s) will,
except as may be provided in a written amendment to this Agreement, in any way modify or limit
City's available remedies for Developer's default in the event that such increase(s) result in an
Event of Default(defined herein)by Developer under this Agreement.
9.4 Substantial Completion and Creation of Punchlist. "Substantial Completion"
means and will occur when the Project Architect has issued a "Certificate of Substantial
Completion" in the form of AIA G-704 or its equivalent; the Parties have approved the punchlist
of items to be completed as a condition of issuing a final and unconditional certificate of
occupancy; and a temporary or conditional certificate of occupancy (which may be subject to
standard and customary commercially-reasonable conditions for such temporary or conditional
occupancy) has been issued for the Project. When Developer believes that all requirements for
Substantial Completion of the Project have occurred (save for only the issuance by the Project
Architect of a Certificate of Substantial Completion, approval of the punchlist, and issuance of the
temporary or conditional certificate of occupancy), Developer will notify the City and the Project
Architect. The Developer Representative, the City Project Coordinator, the Project Architect, and
such other designee(s)as the City and Developer may select will participate in a joint walk-through
of the Project. The Project Architect will be directed to complete within ten (10) business days
after such notification a thorough inspection of the Project to determine whether a Certificate of
Substantial Completion can be issued and to prepare the punchlist for approval by the Parties.
9.5 Final Completion. "Final Completion" means and will occur when the Project
Architect has delivered to the City Project Coordinator a certificate stating that all work pursuant
to the Final Design, including,but not limited to, all punchlist work,has been finally completed in
accordance with such Final Design; and a final and unconditional certificate of occupancy should
be issued for all of the Project. When Developer believes that all punchlist work has been
completed, Developer will notify the City and the Project Architect. The Developer
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Representative, the City Project Coordinator, the Project Architect, and such other designee(s) as
the City and Developer may select will participate in a joint walk-through of the Project, and if
applicable, altered or damaged adjacent areas. If any City property or property of third persons
shall have been altered or damaged by Developer or its consultants,contractors,subcontractors,or
agents during construction of the Project (exclusive of Project alterations in accordance with the
Final Design), Final Completion will not occur until such property has been repaired or restored,
or the issue otherwise resolved between the Parties, and (if applicable)third party owner(s) of the
property so altered or damaged. The terms of this Section will survive expiration or termination of
this Agreement for a period of one (1) year. The issuance of a final certificate of occupancy for
the Project shall constitute evidence of the satisfaction of Developer's agreements and any
obligations herein to construct the Project.
9.6 Delivery of Record Drawings. Developer will keep a complete set of the Final
Design and Project Plans at the Project Site throughout the duration of construction of the Project.
Within sixty(60)days after Final Completion of the Project, Developer will provide the City with
a complete set of drawings and electronic drawing files reflecting the final "as-built" condition of
the Project. The terms of this Section shall survive expiration or termination of this Agreement.
9.7 Mechanic's Liens. (a) Nothing in this Agreement shall be construed in any way
as constituting the permission, consent or request of City, express or implied, through act or
omission to act,by inference or otherwise,to any contractor,subcontractor,laborer or materialman
for the performance of any labor services or the furnishing of any materials for any alteration to
the Project Site(other than public Roadways and Utilities or other public improvements for which
the City or utility companies are responsible),or as giving Developer any right,power or authority
to contract for or permit the rendering of any such labor or services or the furnishing of any
materials that could give rise to the making of any mechanic's lien or other claim against the
Project Site in respect thereto or the City as the owner of the Project Site.
(b) In addition to any similar provisions set forth in the Lease, Developer agrees to keep
the Project Site (other than public Roadways and Utilities and other public improvements for
which the City or utility companies are responsible) free from any liens of mechanics,
materialmen, laborers, surveyors, engineers, architects, artisans, contractors, subcontractors,
suppliers, or liens arising out of the work performed, materials furnished or obligations incurred
by, through or under Developer or any other lien of any kind whatsoever (a "Lien") that shall be
created against or imposed upon the Project Site, exclusive of any Lien or other matters existing
as of the Effective Date or arising from an act or omission of the City through no fault of Tenant
and any loan agreement or mortgage, leasehold mortgage, deed of trust or other financing
documents (together with any modifications to or replacements thereof) securing the Debt
Financing, and shall protect, defend, indemnify and hold City harmless from and against any
claims,liabilities,judgments or costs(including,without limitation,reasonable attorneys' fees and
costs) arising out of same or in connection with any such Lien(other than those matters expressly
excluded above). In the event any such Liens shall be asserted or filed by any persons, firms, or
corporations performing labor or services or furnishing material or supplies in connection with the
Project, Developer will pay off in full, bond over, or cause the same to be discharged of record
within sixty (60) days of notification thereof. Developer reserves the right to contest the validity
or amount of any such Lien in good faith provided that, within sixty (60) days after the filing of
such Lien,Developer discharges said Lien of record or records a bond which is consistent with the
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requirements of State law and City Code. In the event Developer shall fail to so remove any such
Lien, City may take such action as City may reasonably determine to remove such Lien without
being responsible for investigating the validity thereof and all costs and expenses actually incurred
by City including, without limitation, amounts paid in good faith settlement of such Lien and
attorneys' fees and costs, together with interest thereon,will be paid by Developer as provided for
herein and by the Lease Agreement.
9.8 Compliance with Law. Developer shall comply, and require its Contractor to
comply, with all laws, ordinances, rules, regulations, and orders applicable to construction of the
Project of any public body having jurisdiction over the same, including as they relate to the safety
of persons or property, or over protection from damage, injury, or loss. Nothing provided in this
Agreement shall be construed as imposing any independent duty upon the City with regard to, or
as constituting any express or implied assumption of control or responsibility over safety of other
persons or their property at or on the Project Site, or over any other safety conditions relating to
employees or agents of Developer or its contractor or any of such contractor's subcontractors, or
the public invited to the Project Site by Developer.
X.
PARKING AREAS OPERATION.
10.1 Parking Areas. Parking Areas shall be included in the Project Plans and Final
Design, and shall be designed, constructed,maintained and operated,in accordance with the terms
and conditions of this Agreement and of the Lease.
10.2 Parking Coordination. The Lease Agreement includes any provisions regarding
parking coordination and integration, and the Construction Impact Mitigation Plan will include
mutually agreed upon provisions for temporary construction parking licenses or other parking
arrangements as may be required during the construction of the Project.
XI.
HAZARDOUS MATERIALS
11.1 Environmental Compliance. As used herein, the terms "Hazardous Materials"
and "Hazardous Substances"means and includes any, each and all substances or materials now
or hereafter regulated pursuant to any Environmental Laws (defined herein), including, but not
limited to,any such substance or material now or hereafter under any Environmental Laws defined
or as deemed to be a"regulated substance,"pesticide,"hazardous substance"or"hazardous waste"
or included in any similar or like classification or categorization thereunder. Except to the extent
disclosed in the Phase I Environmental Site Assessment for the Development Site delivered to
Developer prior to the Effective Date hereof,the City hereby represents and warrants to Developer
that as of the Effective Date of this Agreement, the City has no knowledge, nor has reasonable
cause to believe, that a release of Hazardous Materials has occurred at the Development Site or
that Hazardous Materials are otherwise present at the Development Site, except in quantities in
compliance with Environmental Laws. The City further represents and warrants, to the best of its
actual knowledge, without independent inquiry, that the Development Site is in compliance with
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any and all applicable requirements of the Resource Conservation Recovery Act, as amended by
the Hazardous and Solid Waste Amendments of 1984, and the Comprehensive Environmental
Response, Compensation and Liability Act, Hazardous Materials Transportation Act, Toxic
Substances Control Act, Federal Insecticide, Fungicide and Rodenticide Act and all other
applicable federal, state and local laws, statutes, regulations, rules, requirements and ordinances,
as any of the foregoing have been or may be from time to time amended, supplemented or
supplanted,and with all orders,decrees or judgments of governmental authorities or courts having
jurisdictions, relating to the preservation of the environment or the regulation, use, generation,
storage, control, removal or clean-up of Hazardous Materials (collectively, "Environmental
Laws"). To the extent any Hazardous Materials are present in, at, on or about the Development
Site through no fault of Developer or a third-party affiliated with Developer's operations,the City
shall be responsible for removing or otherwise remediating such Hazardous Materials to the extent
required by, and in full compliance with, all Environmental Laws at no cost to Developer. The
City shall defend all actions against the Developer and pay, protect, indemnify and save harmless
Developer, its directors, officers, employees and agents, from and against any and all Claims (as
defined herein, and including, but not limited to, consultants' fees, and response and cleanup
costs),of any nature relating to any action brought against Developer or such other party or parties
arising out of or in any way relating to any environmental condition, or violation, or claimed
violation, of Environmental Laws, existing or arising prior to Developer's commencement of
construction(or other invasive) activities on the Development Site("Pre-Term Condition").
11.2 Remedial Work. Without limitation of the applicable terms of the Lease
Agreement, the Parties will comply with the terms and conditions of the Lease Agreement
applicable to Hazardous Materials and Environmental Laws. If Developer or any of its agents or
contractors discovers any existing Hazardous Materials at any time during the course of inspection,
pre-construction, demolition, excavation, or actual construction or renovation of the Project,
Developer will notify the City Project Coordinator. Designated representatives of Developer and
City will meet and confer concerning the nature and extent of the potential contamination and the
appropriate remedial work, which may include but not be limited to further characterization,
assessment, testing, responsibility for notification of appropriate regulatory authorities, and any
remediation approach. The representatives of both City and Developer will work together in good
faith to expeditiously come to agreement regarding the remedial work in order to avoid
unnecessary construction delay while still complying with all applicable Environmental Laws.The
Parties may proceed with remedial work only when an agreement has been reached and
memorialized in writing and approved by both Parties as evidenced by their respective duly-
authorized signatures thereon ("Remedial Work Plan"). As part of the Remedial Work Plan, the
Parties will use the services of an environmental consultant reasonably acceptable to both Parties.
The objective of the Remedial Work Plan shall be to achieve a cleanup that meets the standards
for unrestricted use under applicable Environmental Laws. The Remedial Work Plan will specify
which Party will notify all appropriate governmental authorities of the nature and extent of the
hazard presented, as required by and in compliance with Environmental Laws. The Parties shall
complete all work specified in the Remedial Work Plan and will conduct all construction in
compliance with the Remedial Work Plan except as otherwise provided for herein. At all times
during the Remedial Work, each Party shall be given prompt access to the environmental
professional(s) specified in the Remedial Work Plan, any contractors performing the Remedial
Work, and to the data,records, and reports generated by the environmental professional(s) for the
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Remedial Work.The Remedial Work Plan may be amended by the written agreement of Developer
and City, and each reference to the Remedial Work Plan includes any such amendments.
11.3 Environmental Indemnification. In addition to all other indemnifications
provided in this Agreement, the Lease Agreement and the Debt Financing, and notwithstanding
the expiration or earlier termination of this Agreement and to the fullest extent provided by law,
Developer shall defend,indemnify,and hold City free and harmless from any and all claims,causes
of action,regulatory demands, liabilities, fines, penalties, losses, and expenses, including without
limitation cleanup or other remedial costs (and including the fees of consultants, contractors and
attorneys, costs and all other reasonable litigation expenses when incurred and whether incurred
in defense of actual litigation or in reasonable anticipation of litigation),arising from the existence
of any Hazardous Substance placed by Developer or its contractor or any subcontractor thereof on
the Project Site, or from Developer's violation of its obligations under this Section, or from the
migration or release of any such Hazardous Substance into the surrounding environment that
results from Developer's construction,whether made, commenced or incurred(a)during the Term
of this Agreement, or(b) after the expiration or termination of this Agreement if arising out of an
event occurring during the Term of this Agreement; provided, that City will provide Developer
with prior written notice within ten (10) days of any event giving rise to Developer's
indemnification obligation hereunder; and further, provided, Developer shall not have any
obligation to defend, indemnify or hold the City free or harmless from or against any Claims,
arising from the gross negligence or willful acts or omissions of the City or any City Indemnified
Party(defined below),a breach of any representation or warranty from the City herein,or any Pre-
Term Condition.
XII.
INDEMNITIES AND REIMBURSEMENTS
12.1 General Indemnities. Without limitation of the applicable terms of the Lease,
during the Term of this Agreement, to the fullest extent permitted by law, Developer shall
indemnify,defend(using counsel reasonably acceptable to City),and hold City,its officers,agents,
employees, and elected officials (collectively, "City Indemnified Parties") harmless from and
against all claims,suits,losses,damages,fines,penalties,liabilities,and expenses(including City's
actual and reasonable personnel and overhead costs and attorneys' fees and other costs incurred in
connection with claims, regardless of whether such claims involve litigation) (collectively,
"Claims") of any kind whatsoever arising out of the design, development and construction of the
Project;provided,however,the foregoing obligation to indemnify,defend and hold harmless shall
not extend to Claims arising as a result of the City's breach of its representations, warranties, or
covenants set forth in this Agreement or the Lease,the gross negligence or willful acts or omissions
of the City or any City Indemnified Party, or any Pre-Term Condition.
12.2 Mechanic's Lien Indemnity.Developer shall indemnify,defend,and hold the City
harmless from and against any breach by Developer of its obligations in Section 9.7("Mechanic's
Liens").
12.3 Survival. The terms of this Article XII shall survive expiration or termination of
this Agreement.
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XIII.
DEFAULTS
13.1 Events of Default.The following events shall constitute an"Event of Default"of
the Agreement:
(a) With respect to any non-monetary obligations of either Party under this
Agreement, a Party shall have failed to perform or comply in any material respect with
such obligation and such failure shall have continued for thirty (30) days after written
notice thereof from the non-defaulting Party, or if the curing of such non-monetary default
is reasonably feasible by the defaulting Party, but not within such 30-day period, the
defaulting Party shall not have commenced the curing of such failure within such thirty
(30) day period, or having so commenced, shall thereafter have failed or neglected to
prosecute or complete the curing of such default with diligence and dispatch within ninety
(90)days after the original notice thereof; or
(b)Either a Party shall have made a general assignment for the benefit of creditors,
or shall have admitted in writing its inability to pay its debts as they become due or shall
have filed a petition in bankruptcy, or shall have been adjudicated bankrupt or insolvent,
or shall have filed a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall have filed an answer admitting, or shall have failed reasonably
to contest, the material allegations of a petition filed against it in any such proceeding, or
shall have sought or consented to or acquiesced in the appointment of any trustee,receiver
or liquidator for such Party; or
(c) Either (i) within ninety (90) days after the commencement of any proceeding
against a Party or any trustee, receiver or liquidator of such Party seeking any
reorganization,arrangement, composition,readjustment,liquidation,dissolution or similar
relief under any present or future statute, law,rule or regulation, such proceeding shall not
have been dismissed, or (ii) if, within ninety (90) days after the appointment without the
consent or acquiescence of either a Party or any trustee,receiver or liquidator of such party
or of any material part of its properties, such appointment shall not have been vacated; or
(d) With respect to any monetary obligation of a Party due and owing to the other
Party under the Agreement, such Party shall have failed to pay such amount within ten(10)
business days after written notice thereof from the other Party along with reasonable
supporting documentation evidencing such monetary obligation and the amount thereof.
(e)A"Tenant Default"or"Landlord Default"(as defined in the Lease)by Tenant
or Landlord,respectively,under the Lease will constitute an Event of Default by such Party
under this Agreement for so long as such Event of Default exists under the Lease or such
other document.
22
13.2 Remedies.Upon the occurrence and during the continuance of an Event of Default
by a Party,the other Party will be entitled to exercise any or all of the following remedies, as well
as any other remedies available at law or in equity, except as expressly limited hereunder:
(a) Damages. Damages resulting from such Event of Default; provided, however,
that neither Developer nor the City shall be responsible for payment to the other Party of
consequential, remote (including lost future tax revenues) special, or punitive damages in
any way arising from this Agreement or any claim of breach or failure under this
Agreement.
(b) Specific Performance and other Equitable Remedies. Specific performance
of this Agreement, as well as other injunctive relief, available to such non-defaulting Party
at law or in equity.
(c) Correction of Work, Self-Help. At the City's option, the City and its
contractors may enter upon the Project Site and cause corrective work or other correction
or mitigation of the Event of Default by Developer to be performed in accordance with the
standards set forth herein at Developer's expense. Developer shall cooperate in all respects
with any such corrective or mitigation work, and the City shall not bear any liability to
Developer, except for gross negligence or willful misconduct, on account of any such
corrective or mitigation work performed hereunder by the City.
(d) Termination. The remedy of termination of this Agreement for default under
this Agreement shall be subject to and exclusively governed by the applicable provisions
of the Lease Agreement, and this Agreement shall terminate automatically upon any
termination of the Lease Agreement prior to expiration of the Term of this Agreement.
(e)Survival.Remedies under this Agreement,other than termination, shall survive
for any Event of Default under this Agreement that shall have occurred prior to termination,
including but not limited to damages, enforcement of any security interests, and the
remedies set forth herein. All indemnities herein shall survive termination of this
Agreement with respect to any pertinent act or omission that shall have occurred prior to
termination.
(f) Default Interest. Upon the occurrence of any monetary Event of Default the
non-defaulting Party shall also have the right to interest at the Default Rate(defined below)
(subject to applicable usury laws then in effect in the State of Missouri) between the date
such payment is due and the date such payment is actually received by the non-defaulting
Party. As used herein, the term "Default Rate" shall mean an interest rate equal to the
prime rate in effect on the date that the applicable underlying payment was made or
required to be made (as reported in The Wall Street Journal or, if the Wall Street Journal
stops reporting the prime rate, then such other similar periodical agreed to by City and
Developer in their reasonable discretion) plus four percent (4%).
XIV.
INSURANCE
23
Without limitation of applicable terms of the Lease Agreement and Debt Financing
Documents,this Agreement incorporates by reference the insurance provisions set forth in Section
8.0(ii)of the Lease Agreement during the Term of this Agreement until completion of the Tenant
Improvements.
XV.
OTHER PROVISIONS
15.1 Governing Law. This Agreement shall be governed by the laws of the State of
Missouri. Venue for any action under this Agreement including any bankruptcy proceeding, will
be in Platte County, Missouri. Should any part, term, portion, or provision of this Agreement, or
the application thereof to any person or circumstances be held to be illegal or in conflict with any
governmental restrictions, or otherwise be rendered unenforceable or ineffectual, the validity of
the remaining parts, terms, portions or provisions, or the application thereof to other persons or
circumstances, shall be deemed severable and the same shall remain enforceable and valid to the
fullest extent permitted by law.
15.2 City as Regulatory Authority. Nothing in this Agreement will be interpreted to
limit, bind or change the City's codes and regulatory authority. All City legislative approvals
required or otherwise contemplated herein and not already obtained as of the Effective Date hereof
remain subject to approval by the City's Board of Aldermen in its sole discretion, subject to
compliance with applicable laws, rules and regulations applicable to the exercise of such
discretion. Nothing in this Agreement will be interpreted to limit, bind or change the City Code
and regulatory authority as a fourth-class city organizing and existing under the laws of the State.
15.3 Dispute Resolution. The Parties hereto shall make their best efforts to resolve
disputes as expeditiously as possible through negotiations at the lowest possible decision-making
level,and in the event such negotiations are unsuccessful,to participate in good faith in a mediation
process, and attempt to resolve all claims and disputes between them in a dispute resolution effort.
In the event an issue cannot be resolved by negotiations between subordinate staff of Developer
and City, the matter shall be referred to the City Administrator and Developer Representative. If
those officials are unable to resolve the dispute within a period of seven (7) days after the matter
has been formally referred to them for resolution, they shall meet during the immediately
succeeding seven(7)days to select a mediator to assist in the resolution of such dispute;provided,
that in the event they cannot agree upon a mediator within such seven (7) day period, either Party
may apply to the American Arbitration Association for the appointment of a mediator according
to the process that is established by such entity for such action. Developer and City shall share
equally the cost charged for the mediation of any dispute. Notwithstanding the existence of any
dispute between the Parties hereto, the Parties shall continue to carry out, without unreasonable
delay, all of their respective responsibilities under this Agreement to the extent not affected by the
dispute;provided that this shall not be construed as limiting any right or remedy expressly set forth
in Section. Neither Party to this Agreement shall commence any litigation against the other with
respect to any claim or dispute under this Agreement without first participating, in good faith, in
mediation as contemplated in this Section or as provided in the Lease.
24
15.4 Assignment. Developer may not transfer its interest in this Agreement, except as
additional security for the Bonds and except for any other permitted transfer of the interest of
Developer under the Lease or Debt Financing, without the approval by the City in its discretion.
For avoidance of doubt,the foregoing restriction on transfers shall not apply to, and City approval
shall not be required for,assignments of the rights,duties and obligations of Developer hereunder,
in whole or in part: (i)to an entity which controls Developer, which Developer controls, or which
is under common control with Developer or one or more of its principals; or (ii) to collateral
assignments to lenders to secure debt financing related to the Project.
15.5 Amendments and Waivers. This Agreement may not be modified or amended
except by a written instrument signed by both Parties hereto. No action other than a written
document signed by the Mayor (or her/his appointed designee) as authorized by the Board of
Aldermen in the case of the City, or by a duly authorized representative of Developer in the case
of Developer, specifically so stating shall constitute a waiver by the respective Party of any
particular breach or default by the other Party,nor shall such a document waive any failure by such
other Party to fully comply with any other term or condition of this Agreement,irrespective of any
knowledge any Party providing such document, or officer, agent, representative or employee
thereof, may have of such breach, default, or noncompliance. A Party's failure to insist upon full
performance of any provision of this Agreement shall not be deemed to constitute consent to or
acceptance of such incomplete performance in the future.
15.6 Notices. Any notice required or permitted to be delivered under this Agreement
shall be in writing and shall be considered given on the earlier of(a) actual receipt, (b) when
delivered,if delivered by hand during regular business hours,(c)three(3)days after being sent by
United States Postal Service,registered or certified mail,postage prepaid,return receipt requested
and first class mail, postage prepaid, or (d) the next business day if sent by a reputable national
overnight express mail service that provides tracing and proof of receipt or refusal of items mailed.
Notices shall be sent to the representatives and addresses listed below,or such other representative
and address as a Party may from time to time designate.
To the City: City of Riverside, Missouri
Attn: City Administrator
2950 N.W. Vivion Road
Riverside, MO 64150
With a copy to: Spencer Fane, LLP
Attn: Joe Bednar
304 East High Street
Jefferson City, MO 65101
To Developer: Live Nation Entertainment, Inc.
c/o Live Nation
Attn: President
9348 Civic Center Drive
Beverly Hills, CA 90210
25
With copies to: Live Nation Entertainment, Inc.
c/o Live Nation
Attn: General Counsel
9348 Civil Center Drive
Beverly Hills, CA 90210
and to: Polsinelli PC
Attn: Korb Maxwell, Esq.
900 W. 48°'Place, Suite 900
Kansas City, MO 64112
15.7 Non-Discrimination. Without limiting Developer's general obligation for
compliance with all applicable laws and regulations, for the Term of this Agreement,to the extent
applicable and binding against Developer and the Project, Developer shall comply with all equal
employment opportunity and nondiscrimination laws of the United States and the State of
Missouri, as they may be amended from time to time, and rules,regulations, orders and directives
of the associated administrative agencies and their officers.
15.8 Compliance with Laws, Permits, and Licenses. Developer, at no cost to City,
shall comply with all applicable laws, including, without limitation, the ADA with respect to the
Project, and any rules and regulations of any governmental entity as now or hereafter enacted or
promulgated. Whenever Developer is informed of any violation of any such law, ordinance, rule,
regulation, license, permit or authorization committed by it or any of its officers, employees,
contractors, agents, or invitees, or any of its contractor's subcontractors, Developer shall
immediately desist from and/or prevent or correct such violation. Without limiting the generality
of the foregoing, Developer, at no cost to City, shall secure and maintain in full force and effect
during the Term of this Agreement, all required licenses,permits, and similar legal authorizations
required in connection with the Project and shall comply with all requirements thereof, and shall
submit to the City reasonably acceptable evidence of Developer's satisfaction of all such
requirements whenever requested in writing by such official.
15.9 No Third-Party Beneficiaries. No third party shall be or deemed to be a third-
party beneficiary of this Agreement, such agreement being only between Developer and the City.
15.10 Counterparts.This Agreement may be executed in one or more counterparts,each
of which will be deemed an original,but all of which,when taken together,will constitute one and
the same instrument. Counterpart signature copies of this Agreement may be delivered by
facsimile or email/.pdf and shall be deemed effective upon delivery, provided that originally
executed copies shall be delivered by such party via overnight courier the following business day
if requested by the other Party.
15.11 Time is of the Essence.Time is of the essence of this Agreement and all covenants
and deadlines hereunder, including as set forth on any exhibit attached hereto.
26
15.12 No Agency or Partnership. Nothing contained in this Agreement shall be
construed to create any agency relationship,partnership,joint venture or other similar arrangement
between Developer and City. Neither Party nor its agents have authority to or shall create any
obligation or responsibility on behalf of the other Party or bind the other Party in any manner.
15.13 Partial Invalidity. If any provision of this Agreement or its application to any
person or circumstance shall be determined to be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby.
15.14 Titles. The titles of the Sections and subsections of this Agreement are for
convenience only, and do not define or limit the contents.
[SIGNATURES FOLLOW ON NEXT PAGE]
27
This Agreement is executed by the Parties as of the Effective Date.
City
City of Riv rside, Missouri
B D '
K leen L. Rose, Mayor
[City Signature Page to Development Agreement]
Developer
Live Nation Ent nt, c.
By:
Print Name: Michael Rowles
Title: EVP,General Counsel and Secretary
[Developer Signature Page to Development Agreement]
EXHIBIT A: DEVELOPMENT SITE (LEGAL DESCRIPTION)
EXHIBIT B: PROJECT SITE PLAN
EXHIBIT C: TENANT IMPROVEMENTS BUDGET
EXHIBIT D: PUBLIC INFRASTRUCTURE BUDGET
EXHIBIT E: PROJECT SOURCES AND USES OF FUNDS
EXHIBIT F: TARGET DESIGN AND CONSTRUCTION SCHEDULE
EXHIBIT G: FORM CERTIFICATE OF PROJECT COSTS
EXHIBIT A
Description of Development Site
[The Development Site consists of approximately 135+/- acres generally located at the northwest
corner of NW Horizons Parkway and I-635 in the City as generally depicted below. Upon the agreement
by Landlord and Tenant on a final legal description of the "Premises" as part of Tenant's contingencies
described in the Lease,the final agreed upon legal description will be inserted herein as Exhibit A and used
as the legal description of the Development Site for all purposes of this Agreement.]
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EXHIBIT B
Project Site Plan
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EXHIBIT C
Tenant Improvements Budget
General Line Item Category Project Cost Estimate
Constuction Costs
Pre-Construction Services $ 543,229
Phase 3 Vertical(Amphitheater) $ 58,887,064
Subtotal-Construction Costs $ 59,430,293
Soft Costs
Branding $ 150,000
Architecture&Engineering $ 1,897,900
Pre-Construction $ 123,504
Site&Civil $ 241,549
Project Management $ 61,377
Kitchen Equipment Design $ 79,600
Arch&Production Lighting Design $ 164,020
Acoustic Design $ 14,800
Signage/Wayfinding Design $ 122,754
Environmental Impact Assessment $ 30,105
Zoning/Permit Fees $ 225,254
Testing/Quality Control $ 92,066
Reimbursable Expenses $ 36,826
Subtotal-Soft Costs $ 3,239,756
FF&E $ 10,880,718
Contingency $ 4,296,159
Total Estimated Costs of the Tenant Improvements: $ 77,846,925
EXHIBIT D
Public Infrastructure Budget
General Line Item Category Project Cost Estimates
Constuction Costs
Pre-Construction Services $ 341,839
Construction Cost- Phase 1 Surcharging $ 2,826,089
Construction Cost - Phase 2 Infrastructure $ 27,000,000
Asphalt Car Parking $ 3,980,000
Prevailing Wage Requirement $ 3,250,000
Subtotal-Construction Costs $ 37,397,928
Soft Costs
Architecture & Engineering $ 1,194,299
Pre-Construction $ 77,718
Site & Civil $ 152,001
Project Management $ 38,623
Signage/Wayfinding Design $ 77,246
Environmental Impact Assessment $ 18,945
Zoning/Permit Fees $ 141,746
Testing/Quality Control $ 57,934
Reimbursable Expenses $ 23,174
Subtotal-Soft Costs $ 1,781,685
FF&E $ -
Contingency $ 2,703,461
Total Estimtaed Costs of the Public Infrastructure: $ 41,883,075
EXHIBIT E
Project Sources and Uses of Funds
PROJECT USES' PROJECT SOURCES'
General Line Item Category Estimated Cost Sources of Funds Dollar Amount
Public infrastructure Budget State Funds' $ 20,000,000
:_onstuctlonCosts $ 37,397,928 City Funds' $ 5,000,000
Soft Costs $ 1,781,685 Developer's Private Funds' $ 94,730,000
Contingency $ 2,703,461
Subtotal-Public Infrastructure $ 41,883,075
Tenant Improvements Budget
Constuction Costs $ 59,430,293
Soft Costs $ 3,239,756
FF&E $ 10,880,718
Contingency $ 4,296,159
Total Estimated Project Costs of the Tenant Improvements: $ 77,846,925
TOTAL USES: 5119,730,000 TOTAL SOURCES: 5119,730,000
'Subject to the restrictions in footnotes 2&3 below,the descriptions of line item categories,dollar amounts and allocation of sources to uses above are estimates only,and
subject to change in Developer's discretion,including(without limitation)as actual pricing is obtained,as Project Costs are actually incurred,and State Funds and City Funds are
actually disbursed and/or reimbursed for such purposes.
'The State Funds shall be used exclusively to pay(or reimburse Developer,as the case may be)for the Project Costs incurred(or to be incurred)to construct the Public
Infrastructure(as defined in this Agreement),including,but not limited to parking,roadways,lighting,utilities and sidewalks,and to remediate and improve soil conditions to
support the Amphitheater.
'The City Funds shall be used exclusively to pay(or reimburse Developer,as the case may be)for those Project Costs which:
(a)to the extent proposed to be reimbursed with CID revenues generated from CID Sales Tax,fall within the powers of a Missouri community improvement district pursuant
to the Community improvement District Act,RSMo 67.1401 to 67.1571,inclusive,or are otherwise payable or reimbursable thereunder(collectively,-CID Costs');and
(b)to the extent proposed to be reimbursed with revenues generated from TDD Sales Tax,constitute costs of a'Project'as described in the Missouri Transportation
Development District Act,RSMo Sections 238.200 to 238.275,inclusive,or are otherwise payable or reimbursable thereunder(collectively,"TDD Costs").
'The portion of Developer's Private Funds to be reimbursed with CID Sales Tax or TDD Sales Tax shall be used exclusively for Project costs,ongoing maintenance and
improvements or other costs that constitute CID Costs or TDD Costs,respectively.
Signature Page to Certification of Expenditures No.
(Riverside Amphitheater Project)
EXHIBIT F
Target Design and Construction Schedule
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EXHIBIT G
[FORM OF]
CERTIFICATE OF PROJECT COSTS
(Riverside Amphitheater Project)
Request No. Date: , 202_
Governing Body of the City of Riverside, Missouri
Pursuant to that certain Development Agreement between the City of Riverside, Missouri
("City") and Live Nation Entertainment, Inc. ("Developer"), dated , 2024
(the"Agreement"), Developer requests payment or reimbursement of Project Costs(as defined in
the Agreement) and hereby states as follows:
1. The date and number of this request are as set forth above.
2. All terms used and not otherwise defined in this request shall have the
meanings as provided in the Agreement.
3. The following information, as applicable to this request, is as set forth on
Attachment I hereto:
(a) The names of the person(s), firm(s), corporation(s) and/or other entity or
entities to whom payment has been made for which reimbursement is
requested, or is due and proposed to be paid,hereby;
(b) The amount so paid or to be paid hereby;
(c) A general description of the cost(s) so paid or to be paid hereby; and
(d) The source(s) of funds (e.g., State Funds and/or City Funds) from which
such reimbursement or payment is requested.
4. The costs identified on Attachment I (a) have been incurred and paid, or
are presently payable and proposed to be paid hereby, and (b) have not previously been
paid or reimbursed with State Funds or City Funds.
LIVE NATION ENTERTAINMENT, INC.,
a Delaware limited liability company
By:
Name:
Title:
Approved this day of , 20
CITY OF RIVERSIDE, MISSOURI
By:
Name:
Title: City Representative
ATTACHMENT I
Request No.
SCHEDULE OF PAYMENTS/REIMBURSEMENTS REQUESTED
Payee Name Amount($) General Description Source(s)of Funds