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Purchase Agreement

Ball Arena Private Event Space and Suite License Agreement

Last Updated: April 3, 2024

    1. General Terms
      1. Use. Subject to the terms and conditions herein, Licensor grants to Licensee an exclusive, revocable right and license to use the space/suite listed on the cover page (“Cover Page”) of this Agreement (the “Licensed Area”) for the sole purpose of holding the private event (the “Private Event”) or attending the concert, sporting event, or other event open to the general public (the “Public Event”). The Private Event and Public Event may be referred to herein as the “Event.”
      2. Dates of Use. Unless this Agreement is earlier terminated pursuant to the provisions hereof, Licensee’s license to use the Licensed Area for the Event is limited to the date(s) and time(s) set forth on the Cover Page (the “Term”). The Term may not be modified by Licensee without obtaining Licensor 's prior written permission (which permission may be withheld in Licensor’s sole discretion).
      3. Payment.
        1. License Fee. In consideration of the license granted hereunder, Licensee agrees to pay the sum set forth on the Cover Page, plus all costs incurred by Licensor in connection with Licensee’s use of the Licensed Area, including, without limitation, costs incurred for the provision of food and beverage and, if the Event is a Private Event, any additional services as requested by Licensee. If any payment is not received by Licensor by the date(s) listed on the Cover Page, Licensor shall have no obligation to hold the reservation of Licensee for the Event and may terminate this Agreement.
        2. (b) Deposit. As security for the prompt and full payment of all fees and other amounts payable under this Agreement, including, but not limited to, the License Fee, fees for Ancillary Services (if applicable), late charges, amounts due to Licensor or its concessionaire(s) for food and beverage services, Licensee may be required to deposit with Licensor the amounts set forth on the Cover Page (the “Deposit”).
        3. (c) Method of Payment. Licensee shall provide a valid credit card upon execution of this Agreement and hereby authorizes the use of such credit card for all charges and fees related to this Agreement. Licensor shall keep the credit card number and billing information on file in compliance with the Payment Card Industry Data Security Standard (PCI DSS). Licensee shall not be entitled to the payment of any interest whatsoever on any Deposit(s) paid to Licensor. In the event that Licensee causes damage to the Licensed Area in accordance with Section I.G, Licensor shall have the right to charge Licensee’s credit card to cover any actual expenses incurred by Licensor for the restoration, alteration, and/or repairs associated with the damaged Licensed Area.
        4. (d) Cancellation. Unless otherwise provided herein, this Agreement is non-cancellable.
      4. Compliance with Laws and Rules of the Venue. In addition to the requirements imposed by this Agreement, Licensor shall have the right to adopt and amend reasonable rules and regulations (“Rules”) as Licensor deems desirable at its reasonable discretion for the safety, care and cleanliness of the venue in which the Licensed Area is located (the “Venue”) and the preservation of good order within the Venue. Licensor shall not be liable to Licensee for any breach of the Rules by other attendees, invitees or patrons. Violation of any Rules may result in ejection from the Venue, with no refund or credit of any payments made by Licensee or Licensee’s guests. Smoking is not permitted in any part of the Venue. No flammable, dangerous or explosive materials may be brought on site. Licensee and Licensee’s guests shall, while in the Licensed Area or within the Venue or on its grounds, comply with all state and local laws, rules and regulations (including those governing the sale, possession and consumption of alcoholic beverages). Licensee, whether present or not within the Licensed Area, the Venue or on its grounds, shall be responsible for controlling its employees, guests, or invitees. Licensee and Licensee’s guests are prohibited, while in the Licensed Area or within the Venue or on its grounds, from the possession, use or sale of any illegal substance.
      5. Incident Notification. Licensee shall give prompt notice to Licensor of any accident occurring in the Licensed Area or of any deficiency in the services provided to, or associated with, the Licensed Area or Event.
      6. Licensor Access and Control. Licensor and its employees and agents shall have the continued right to enter the Licensed Area at any and all times for (a) the performance of the duties required to be performed by Licensor under this Agreement and for any and all purposes related to this Agreement; (b) to investigate any violation of the provisions of this Agreement, the Rules or any applicable governmental laws or regulations; and (c) generally, to inspect the Licensed Area and its condition.
      7. Return of Licensed Area. Licensee agrees not to do any act or suffer any act to be done prior to, during or after the Event which shall damage, deface or injure any part of the License Area or Venue. Upon expiration of the Term, Licensee shall return the Licensed Area to Licensor in as good condition and repair and in the condition received at the beginning of the Term, excepting usual wear and tear. If it becomes necessary to change, alter or rearrange any equipment or fixtures in the Licensed Area, Licensee shall so notify Licensor and obtain Licensor’s consent thereto, and Licensee shall return and restore such fixtures or equipment to its original place and condition, or repair the same if necessary, and Licensor shall have the right to approve, which approval shall not be unreasonably withheld, any restoration and repairs made by Licensee once completed. All such alterations and changes shall be performed at Licensee’s expense. In the event that Licensee returns the Licensed Area to Licensor in any condition other than the condition of the Licensed Area prior to the Event, Licensor shall have the right to make any necessary repairs and restoration and charge such actual expenses to Licensee’s account and/or credit card on file in accordance with Section I.C. Licensee shall not permit persons attending the Event to enter unauthorized areas of the Venue.
      8. Indemnification.
        1. Licensee shall at all times defend, indemnify and hold harmless Kroenke Sports & Entertainment, LLC, the Venue, each of their parent, subsidiary and affiliate companies (including specifically but without limitation the Colorado Avalanche, the Colorado Mammoth, the Denver Nuggets and the Colorado Rapids) and each of their respective members, owners, governors, officers, managers, directors, agents, representatives, employees, sponsors, vendors. shareholders, and landlords (the “KSE Entities”) harmless from any claim(s), controversies, losses, damages, liabilities, demands, liens, suits and expenses (collectively, “Claims”) arising out of or related to (a) any breach or threatened breach of any of Licensee’s covenants or obligations hereunder, (b) any negligent act or omission of Licensee, its members, partners, officers, directors, employees, contractors, agents and other persons assisting Licensee (whether on a paid or voluntary basis), patrons, guests and invitees, participants and artists appearing or participating in the Event, (c) any of Licensee’s advertisement or marketing/promotional efforts related to the Private Event; and (d) any intentional misrepresentation made by Licensee hereunder. Notwithstanding the foregoing, Licensee shall have no indemnification obligation in connection with Claims to the extent they arise from: (y) any breach by Licensor of any of its warranties, representations, covenants, agreements or obligations under this Agreement, or (z) the negligence or willful misconduct of any KSE Entity. The foregoing indemnification shall survive upon termination or expiration of this Agreement.
        2. Licensor shall at all times defend, indemnify and hold harmless Licensee its parent, subsidiary and affiliate companies and each of their respective members, owners, officers, managers, directors, agents, representatives, employees, shareholders, and landlords (the “Licensee Indemnitees”) harmless from any Claims to the extent that such Claims are caused by the gross negligence or willful misconduct by any of Licensor, its employees, contractors, agents and other persons assisting Licensor in performing its obligations hereunder (whether on a paid or voluntary basis), provided that Licensor shall have no indemnification obligation in connection with Claims to the extent they arise from: (y) any Licensee Indemnitees’ breach of any of its warranties, representations, covenants, agreements or obligations under this Agreement, or (z) the negligence or willful misconduct of any Licensee Indemnitees. The foregoing indemnification shall survive upon termination or expiration of this Agreement.
      9. Insurance. Licensee shall provide evidence of Commercial General Liability insurance with a minimum of $1,000,000 per occurrence for bodily injury and/or property damage liability. Said insurance shall also include liability arising from personal injury and contractual liability. If alcohol is being served, Licensee shall provide evidence of host liquor liability with a minimum limit of liability of $1,000,000 per occurrence. All insurance policies shall be issued by insurance carriers licensed to do business in Colorado, and which have an A.M. Best Rating of AVI or better. The KSE Entities and the City shall be named as additional insureds on such insurance policies and such policies shall be “occurrence” type policies and not “claims made” policies. Licensee shall furnish Licensor with certificates of such insurance fifteen (15) days prior to the Event date. If Licensee cannot provide insurance subject to the requirements of Licensor, Licensor may provide insurance at Licensee’s sole expense.
      10. Termination. If Licensee materially breaches this Agreement (which breach includes, but is not limited to, failure to make prompt payment of any amounts and fees required by this Agreement), Licensor, in addition to any other rights and remedies, shall have the right to terminate or cancel this Agreement.
      11. Partial Invalidity. If any provision of this Agreement is deemed invalid or unenforceable pursuant to any statute, regulation or rule of law, the remaining provisions of this Agreement will remain valid and enforceable.
      12. Limitation of Liability. NONE OF THE KSE ENTITIES WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE OR PROFIT IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM THIS AGREEMENT REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. LICENSOR’S TOTAL LIABILITY SHALL BE LIMITED TO TOTAL AMOUNTS PAID BY LICENSEE UNDER THIS AGREEMENT.
      13. Force Majeure. Licensor shall not be in breach of this Agreement if any performance required under this Agreement is prevented or preempted because of an act of God; an act of a public enemy; civil disturbance or unrest; lawsuits; injunctions; lightning; fire, explosion or other serious casualty; water damage; terrorist attack (or threats thereof); epidemics or pandemics (including COVID-19 and any variations or mutations thereof and any related epidemics/pandemics or residual effects); quarantine restrictions; other disease or illness; strike, lock-out or labor dispute (without regard to the reasonableness of any party’s demands or any party’s ability to satisfy such demands); accident or sabotage (such as a bomb threat or actual or threated cyber-attack); unusually severe weather (including hurricane, earthquake, tornado, landslide, blizzard or flood); war (whether declared or not) or threats thereof; blockades; embargoes; condemnation or other taking by the action of any governmental body on behalf of any public, quasi-governmental or private entity; any action or change in law, regulation or rule by a governmental entity or other governing body (such as a professional sports league); a day of national mourning; shortages or failures of sources of labor, material, energy, fuel, water, other vital utility, technical facilities, equipment or transportation; or any cause whatsoever, whether similar or dissimilar to the foregoing, beyond the reasonable control of Licensor (a “Force Majeure Event”). For avoidance of doubt, the parties agree that the failure of the parties to list a particular act, event or condition in the foregoing definition shall not, in of itself, preclude such unenumerated act, event or condition from qualifying as a Force Majeure Event. A Force Majeure Event shall not entitle Licensee to terminate this Agreement or change any payment obligations herein. In the case of a Force Majeure Event, the parties will work together to reschedule the Event, and shall use commercially reasonable efforts to confirm the date of the rescheduled Event within thirty (30) days following such Force Majeure Event. The rescheduled date shall not be later than one year after the originally scheduled date for the Event. If the Event is rescheduled as set forth in this Section, the entire Deposit will be applied to the rescheduled Event.
      14. Entire Agreement; Amendment; Assignment. As between Licensor and Licensee, this Agreement constitutes the entire agreement between Licensor and Licensee with respect to Licensee’s use of the Licensed Area for the Event and supersedes all prior agreements, understandings and representations relating to the subject matter. This Agreement may only be amended, modified or supplemented by a written agreement between Licensor and Licensee, signed by authorized representatives of each party. This Agreement may not be assigned by either party except with the prior written consent of the other party; provided, however, that Licensor may assign this Agreement, in whole or in part, without the prior written consent of Licensee to (a) any successor to substantially all of the business of Licensor (or the applicable KSE Entity), or (b) any entity that controls, is controlled by, or is under common control with Licensor, on the condition that such new party assumes all of Licensor’s obligations under this Agreement. Any attempted assignment in violation of the foregoing is null and void.
      15. Governing Law; Notices. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to conflicts of laws principles. Litigation regarding any dispute arising out of this Agreement shall be brought in a court of competent jurisdiction located in Denver, Colorado, and Licensee consents to the jurisdiction of such court and to the service of process by mail. Any notice, request, demand or other communication required or permitted to be given under this Agreement shall be by (i) hand delivery, (ii) registered or certified U.S. mail, or (iii) overnight courier to the receiving party at its address as set forth on the Cover Page.
      16. COVID-19 Specific Provisions. Licensee and its attendees acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that any individual attending the Event may be exposed to or infected by COVID-19 and any strains, variations, adaptations or mutations thereof, the coronavirus that causes COVID-19 and/or any other communicable and/or infectious diseases, viruses, bacteria or illnesses or the causes thereof (“COVID-19”), during or in connection with attending the Event and/or presence at the Arena and that such exposure or infection may result in personal injury, illness, permanent disability, and death. Licensee and its attendees must comply with all applicable Licensor and Arena policies and all Rules and Regulations in each case respecting COVID-19. Licensor, Arena and their designees have the right to deny admission to or eject any person who any of the foregoing determine, in their sole discretion, poses a risk to the health or safety of others and/or whose conduct violates this Agreement. Licensee and its attendees consent to any precautions that may be required by Licensor, any league or team as a condition for entry to the Arena or surrounding grounds or parking areas, including but not limited to requirements for: health screenings, social distancing, the wearing of masks in designated areas, proof of vaccination or a negative COVID test. To help further mitigate the risk of transmission of COVID-19, Licensee agrees that Licensee’s attendees will not attend the Event if any one or more of the following is true on the day of the Event:
        1. Within the 5 days prior to the Event, such individual has (or any person in such individual’s party or with whom such individual has had close contact has) tested positive for, or been exposed to someone who has tested positive for, COVID-19; or
        2. Within the 48 hours prior to the Event, such individual has (or any person in such individual’s party or with whom such individual has had close contact has) experienced symptoms of COVID-19 (e.g., a fever of 100.4⁰F or higher, cough, shortness of breath or difficulty breathing, chills, repeated shaking, muscle pain/achiness, headache, sore throat, loss of taste or smell, nasal congestion, runny nose, vomiting, diarrhea, fatigue or any other symptoms associated with COVID-19 identified by the Centers for Disease Control and Prevention).
    2. Terms Specific to Suite License. The following only applies if the Licensed Area is a suite (the “Suite”):
      1. Suite Tickets. Licensor shall provide the number of tickets and, if applicable, parking passes indicated on the Cover Page in advance of the Public Event for which the Suite is being used. Upon presentation of a suite ticket, the holder of the suite ticket shall receive access to and usage of the Suite for the Term.
      2. Payment for In-Suite Hospitality. Any alcoholic beverages or food consumed in the Suite shall be obtained only from Licensor’s designated suite concessionaire. All food, beverage and other services ordered in advance through Licensor, if indicated on the Cover Page or an exhibit to this Agreement, shall be paid as indicated on such form. Any additional food, beverage and other services requested and utilized by Licensee or any of Licensee’s guests must be paid for upon delivery, unless otherwise expressly agreed by Licensor and/or its designated concessionaire, by Visa, Mastercard, American Express or Discover.
      3. Suite Capacity. The maximum capacity of the Suite as stated on the Cover Page is based on fire code and other applicable by-laws and governmental regulations and must not be exceeded for any reason.
      4. Live Events. Use of cameras or videotape or audio recording equipment by Licensee or any of Licensee’s guests at the Public Event is strictly prohibited. Licensor and its employees and agents reserve the right to confiscate the tape or film and/or eject any person violating the foregoing provision. Licensee acknowledges that for certain events the nature of the Public Event may require Licensor to control lighting and television and to keep lighting and television off in the Suite during the performance.
      5. Promotional Use Prohibited. Licensee may not offer use of the Suite in connection with a public promotional plan without the prior written consent of Licensor.
      6. Decorations. No signs, banners, advertisements or notices shall be hung from or otherwise exhibited in or around the Suite without the prior written consent of Licensor. Licensee shall remove any such signs, banners, advertisements or notices at the request of Licensor.
      7. Relocation. Licensor reserves the right, in its sole discretion, to relocate the Licensed Area to a different suite of comparable size and capacity within the Venue at any time.
      8. Public Event Cancellation. If the Public Event is cancelled and/or rescheduled to another date for any reason, Licensee shall not have the right to use the Suite for the Event date and, if applicable, any rescheduled Event date, and this Agreement shall terminate immediately. Licensor shall provide prompt notice to Licensee of such termination and Licensor shall reimburse Licensee for any amounts paid in advance by Licensee under this Agreement. This reimbursement shall be Licensee’s sole and exclusive remedy for such termination.
    3. Terms Specific to Room Rental/Private Events. The following only applies to spaces licenses other than for suites:
      1. Provisional Event Dates. A Private Event date falling more than sixty (60) days from the date of this Agreement shall be deemed a “Provisional Event Date” until such time as the Private Event date falls within fifty-nine (59) days of the date of this Agreement. Licensor expressly reserves the right to schedule a Public Event on any Provisional Event Date. If, in the sole discretion of Licensor, such Public Event cannot simultaneously occur with the Licensee’s Private Event, the Public Event will prevail and Licensee agrees to select one (1) of the following options: a) reschedule the Private Event for the next mutually agreed upon date at the same Licensed Area; b) retain the Private Event date and, subject to availability, relocate the Private Event to another acceptable Licensor room or venue; or c) terminate this Agreement in its entirety and receive a refund equal to the Deposit received by Licensor.
      2. Postseason. In the event that an NBA, NHL, MLS or NLL playoff or finals game (“Postseason Game”) conflicts with a Private Event date and, in Licensor’s sole discretion, Licensee’s Private Event cannot simultaneously occur with such Postseason Game, the Postseason Game will prevail and Licensee agrees to select one (1) of the options set forth in Section III.A above.
      3. Cancellation. Cancellation of the Event by Licensee must be submitted to Licensor in writing at least fourteen (14) days prior to the Event Date. If the Event is cancelled by Licensee, any Deposit shall be forfeited; however, subject to availability, such Deposit may be applied towards an alternate Licensee event at the Venue within one calendar year.
      4. Food and Beverage. If food and beverage are desired, Licensee must separately contract and pay for food and beverage services. Licensee specifically acknowledges and agrees that food and beverage services may only be provided by Licensor -authorized caterers. Licensor will provide Licensee with a list of authorized caterers to select from. Licensee acknowledges that all soft beverages must be provided by Licensor’s exclusive soft beverage provider and that alcoholic beverages, if permitted, must be provided and served by Licensor’s designated concessionaire.
      5. Additional Fees. Following the Event, Licensor shall determine its actual costs incurred in connection with Licensee’s use of the Licensed Area. If such actual costs are greater than the estimated costs paid by Licensee, Licensee shall promptly pay Licensor the difference between such amounts within ten (10) days of the Event.
      6. Late Payment. In the event Licensee fails to remit payment when due of any amounts due, interest shall accrue on such overdue amounts at the rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is greater.
      7. Ancillary Services. Licensor agrees to use commercially reasonable efforts to coordinate the providing of additional services as may be requested by Licensee in connection with the Event (the “Ancillary Services”). Licensee may be required to enter into separate agreements with third party providers of Ancillary Services, and Licensor shall have no liability to Licensee for any party’s failure to execute any such agreement. Licensee acknowledges that the estimated Ancillary Service Fees are only estimates, and that Licensor may determine the actual fee for any Ancillary Service. Licensee will be billed for any missing property such as Audio/Visual equipment, signage, etc
      8. Tables and Chairs. Licensor expects, but makes no representation or warranty, that an adequate number of tables and chairs will be made available for the Event. If, for any reason, Licensor does not have adequate number of tables and chairs available for the Event, Licensor agrees to notify the Licensee, and the Licensee may request additional tables and chairs as an Ancillary Service. Upon Licensee’s request and at Licensee’s sole expense, Licensor may engage an outside contractor to provide tables and chairs.
      9. Parking. Licensor shall provide, at no additional cost to the Licensee, access to parking spaces for the number of guests identified on the Cover Page. In the case of a Private Event scheduled on the same day as a Public Event, parking may not be guaranteed or may be available for an additional charge. Upon the request of the Licensee, valet parking may be provided as an Ancillary Service.
      10. Security. If Licensor determines, in the exercise of its sole and absolute discretion, that additional security for the Event is necessary, then Licensor shall provide a minimum of ten (10) days’ advance notice to Licensee and shall include the estimated cost of the additional security as an Ancillary Service. Licensor shall provide additional security for the Event at the Licensee’s sole expense.
      11. Decorations. All displays, exhibits and decorations must conform to the City Code and Fire ordinances and should be free-standing without any attachments to walls, ceilings or floors. In the event that the Venue requires additional cleaning above and beyond the usual and customary post-event cleaning, Licensor may provide such cleaning at the Licensee’s sole expense.
      12. Damage. Any damage caused to the Venue during the Event or during setup, teardown or cleanup shall be the sole responsibility of Licensee.
      13. Capacity and Right to Relocate. Should the number of expected attendees for the Event change, Licensor reserves the right, in its sole discretion, to (i) refuse entry to any additional attendees or (ii) reassign the Event to another appropriate location and charge Licensee for any additional costs that Licensor or Licensor-authorized caterers may incur.
      14. Sponsors. Licensee acknowledges that the terms and provisions of sponsorship agreements to which Licensor is a party may place restrictions upon Licensee’s activities in connection with the Event, including without limitation, food and beverage offerings and marketing and promotional activities. To this end, Licensor, in its sole discretion, may prohibit, exclude, ban or limit certain activities in connection with the Event, and Licensor shall provide Licensee with notice any applicable restrictions at least fifteen (15) days in advance of the Event.