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HomeMy WebLinkAboutResolution - 2006-R0373 - Lease Agreement With South Plains Professional Hockey Club - 07/31/2006Resolution No. 2006-RO373 July 31, 2006 Item No. 2.1 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Lease Agreement with South Plains Professional Hockey Club, Ltd., and any associated documents. Said Lease Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 31st ,day of July , 2006. DAVID A. MILLER, MAYQR ATTEST: Garza, City APPROVED AS TO CO TENT: -? Freddy Chav , Civic Services Director APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney Office Practice Section City Att l Linda Res -Hockey Lease Agreement July 19, 2006 LEASE AGREEMENT LUBBOCK MUNICIPAL COLISEUM THE STATE OF TEXAS § COUNTY OF LUBBOCK § This Agreement is made and entered into this 31st day of July , 2006, in the City of Lubbock, Lubbock County, Texas, by and between the City of Lubbock, a municipal corporation of the State of Texas, (hereinafter called "CITY") acting by and through its Mayor and other designated representatives, South Plains Professional Hockey Club, Ltd. a limited partnership (hereinafter called "LESSEE"). Whereas, it is a public purpose of the CITY to operate the Coliseum and to have regularly scheduled events therein for the public; and Whereas, the LESSEE desires to the use of the Coliseum to conduct professional ice hockey games, practices, recreational ice programs, camps and other related ice events at the Coliseum, which events will provide an economic development benefit to the CITY by bringing sports visitors to Lubbock and the surrounding area; and NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS: 1) PREMISE. That upon the terms and conditions herein expressed and in consideration of the covenants and agreements herein expressed and of the faithful performance by the LESSEE of all such covenants and agreements, the CITY does hereby grant unto the LESSEE the right to use and occupy the CITY of Lubbock, Texas Municipal Coliseum (hereinafter called the "Coliseum""), for the purpose of professional ice hockey games, practices, recreational ice programs, camps and other related ice events and for no other purpose without the written consent of the CITY. "Coliseum" shall be deemed to include use of associated available dressing rooms. Storage areas will be available to LESSEE on an "as available basis" as determined by the Civic Centers Director. This is a non-exclusive agreement and is subject to the Operational Policies hereto attached as Exhibit A. The CITY reserves the right to schedule other ice -related events during the hockey season; however the LESSEE will have the exclusive right to present a professional hockey season in the Coliseum. 2. TERM. a. The term of this Agreement shall be for a period beginning September 1, 2006 and ending May 15, 2007. LESSEE shall have the use of the Coliseum for professional ice hockey games and practices during the term of this Agreement beginning September 1, and ending March 31, of each year, which time period shall be hereafter referred to as the "SEASON," and, if necessary for playoffs, an extended time period beginning April 1, and ending May 15, of each year, hereafter referred to as "POST SEASON." LESSEE'S use of the Coliseum for professional ice hockey games and practices during a SEASON or POST SEASON shall be subordinate to any pre-existing Agreement of the Coliseum for any time period during a SEASON or POST SEASON. CITY shall make every reasonable effort to guarantee a minimum of thirty (30) game dates during a SEASON, the specific dates being subject to availability of the Coliseum as noted above 3. RENT. a. LESSEE hereby covenants and agrees to pay to CITY, without demand at its office in the Civic Center, for the use of said Coliseum, the sum of $30,000.00 per season and post season, payable in the amount of $5,000.00 monthly on the last day of each month beginning October 31, 2006 and continuing through March 31, 2007. LESSEE also agrees to pay to CITY on demand any and all sums which may be due to CITY for additional services. LESSEE understands and agrees LESSOR has the right and privilege to alter rates for services, per its discretion and established policy. LESSEE agrees that the Civic Centers Director, in case of failure to pay any additional sum due to CITY, may deduct from the box office receipts belonging to LESSEE, a sufficient amount to pay said additional sums to CITY. b. LESSEE may operate a youth or amateur ice hockey program, skating school, public skating or practice for other Central Hockey League teams. Rent for use of the facility will be charged at no charge. Days and times shall be agreed upon between the LESSEE and the Civic Centers Director and shall be subject to building availability. LESSEE shall insure that the facility is properly secured following these activities and the appropriate lights are turned off. C. Practices will be subject to building availability. On non -game days, LESSEE will be given full access to the Coliseum for itself and for practice purposes for other CHL teams. Rent for the use of the facility for practices will be at no charge. LESSEE shall insure that the facility is properly secured following these activities and the appropriate lights are turned off. d. LESSEE may wish to present and promote other events, including but not limited to ice related touring events or concerts. Use of the Coliseum will be subject to availability and will be subject to the established rental rates and ticketing fees charged to other promoters and that are in effect at the time the event is scheduled. The standard facility contracts will be executed in these instances. The CITY reserves the right to schedule, promote, or produce other professional or amateur ice events such as "Disney on Ice", "Champions on Ice", or other skating or ice shows. 4. GAME REQUIREMENTS. a. LESSEE shall file with the Civic Centers Director's office at least sixty (60) days prior to the beginning of each SEASON, a hill and detailed outline of all dates the Coliseum will be requested, and such other information as may be required by the Civic Centers Director concerning LESSEE's activities. LESSEE will work with all parties in a cooperative manner in Hockey Lease Agreement 2 scheduling dates. LESSEE will make every effort to file date requests with the Civic Centers Director as early as possible so that the CITY can maximize its utilization of the Coliseum for other events. b. LESSEE acknowledges that there are certain annual events that will continue to take place in the Coliseum and shall have priority scheduling. The CITY reserves the right to rent the Coliseum for these events during the term of this agreement provided such Lessees reserve their dates at least one (1) year in advance. The CITY reserves the right to bump practices, other than game day practices, should a major event be scheduled. The CITY will define what constitutes a major event. 5. SCHEDULE DATE. A minimum of thirty (30) home games shall be scheduled between October 1 and March 31 during each SEASON this Agreement is in force or during any extension thereof. Existing holds for events scheduled prior to the date of this Agreement or an extension thereof will not be released by the Coliseum. Pre -season game dates shall be scheduled after September 1 each season and post -season playoff dates for each year, as appropriate, will be held between April 1 and May 15. The Coliseum shall tentatively reserve available playoff game dates pending notification of non -necessity. However, LESSEE agrees to advise as soon as practicable each year if these reserved playoff game dates are unnecessary so that other events may be scheduled. LESSEE may not use the ice floor for any other purpose than the presentation of professional hockey games and practices unless written permission is given by the Civic Center Director. 6. PRACTICE SCHEDULE. a. The COLISEUM will be made available to LESSEE not later than 2:00 p.m. on agreed upon non -game days for practice and will be made available earlier if practicable. b. Any additional practice days shall be in accordance with the following guidelines: 1) Due to other events that may be scheduled, practice time other than on day of game may be limited. Availability shall be determined by the Civic Centers Director who shall consider the impact on the Coliseum schedule as it relates to meeting program schedules in a cost effective manner and minimizing operational problems and adverse relationships with other Coliseum users. 2) All requests for available practice sessions for a home or visiting team at the Coliseum shall be submitted to the Civic Centers Director or his/her authorized representative for review and written approval at least 7 days in advance, Monday through Friday - 8:00 a.m. to 5:00 p.m. NO UNAUTHORIZED PRACTICES WILL BE PERMITTED. 7. SPECIAL PROGRAMS. Subject to prior written approval of the Civic Centers Director for each special program, LESSEE shall have the right to engage in special programs, if in its judgment, such efforts will be mutually beneficial and may significantly Hockey Lease Agreement 3 increase gross ticket sales, total attendance, or be advantageous from an advertising, goodwill, and publicity point of view. Written notification as to the details of such special programs shall be submitted to the Civic Centers Director at least ten (10) days prior to the promotion. Any and all costs associated with presenting the programs shall be at the LESSEE's expense. 8. GAME DAY ACTIVITIES. To assure proper sequencing of activities on game days, LESSEE shall present a game day schedule forty eight (48) hours in advance of the game starting time to assist in providing optimum operational services required under this Agreement. LESSEE shall have access to the ice floor from 9:00 a.m. to Midnight on game days for practice and the game. 9. QUIET ENJOYMENT. a. CITY shall permit LESSEE to peaceably and quietly have and enjoy the use of the Coliseum hereinabove specifically described for the purpose and for the term aforesaid, including corridors necessary to accommodate patrons, and restroom conveniences customarily open to the general public. LESSEE understands and agrees that other ice programs may take place on the PREMISES. b. Neither the halls nor ramps of the building or surrounding premises, nor the sidewalks, entrances or lobby thereof shall be obstructed by LESSEE nor used for any other purposes than ingress or egress, and LESSEE will not permit any chairs, movable seats or other obstructions to be or remain in the passageways, and will keep such passageways clear at all times. 10. CONTROL OF PREMISES. CITY, through its Civic Centers Director, police officers, fire fighters, and other designated representatives, shall have the right at any time to enter any portion of the Coliseum for any purpose whatsoever and the entire building, including the Coliseum expressly covered by this Agreement, shall at all times be under the charge and control of the Civic Centers Director. 11. ASSIGNMENT. LESSEE shall not assign this Agreement, or any part thereof, nor allow or permit any use of said Coliseum other than herein specified, without the prior written consent of the CITY. For the purposes of this Agreement, assignment shall mean assumption of the assets of LESSEE by any person, association or entity by any means. 12. DELAY IN DELIVERY OF POSSESSION. If CITY is unable to deliver possession of the Coliseum by the date specified for the commencement of any PRE SEASON, SEASON, POST SEASON or any option period as a result of causes beyond CITY's reasonable control, CITY shall not be liable for any damage caused for failing to deliver possession, and this Agreement shall not be void or voidable. The term of this Agreement shall not be extended by any such delay. 13. FAILURE TO TAKE POSSESSION. If the LESSEE, being entitled to possession hereunder, shall fail for any reason to take possession of or use the Coliseum, without the prior Hockey Lease Agreement 4 written consent of CITY, no rent refund shall be made and any payment made to CITY shall be taken by CITY as liquidated damages; and the full rent called for by this Agreement, including any disbursements or expenses incurred by CITY in connection herewith, shall be payable by the LESSEE to the CITY. 14. LOCKS; KEYS. No additional locks or bolts of any kind shall be placed on any of the doors or windows by LESSEE. LESSEE shall, on the termination of LESSEE'S tenancy, deliver to CITY all keys to any space within the Coliseum, either furnished to or otherwise procured by LESSEE, and in the event of the loss of any keys furnished, LESSEE shall pay to CITY the cost of the keys. 15. OPENING HOURS. LESSEE must open the doors for activities and games as scheduled unless otherwise agreed upon as necessity indicates. One hour prior to Professional Hockey Game time shall serve as a minimum for opening doors. 16. CONDUCT OF PLAYERS. Conduct of players should not be such as to deliberately incite or entice patrons to leave their seats, or tend to create hazardous, uncontrollable crowd situations. Conduct of players should not be such as to cause deliberate damage to the facility or injury to others. 17. EQUIPMENT ENTRANCE. All articles, equipment, fixtures, materials, etc., of LESSEE shall be brought into or out of the building and surrounding premises only at such entrances as may be designated by the Civic Centers Director. 18. TICKETING. a. LESSEE agrees to utilize Select -a -Seat in connection with the sale of tickets to all events sponsored, co -sponsored or produced by the LESSEE. Terms of such use will be outlined in a separate box office agreement with Civic Lubbock, Inc., which will be executed prior to the beginning of each season. b. Ticket prices will beset by the LESSEE at the beginning of each hockey season and may be changed annually prior to the start of each hockey season. Ticket prices may also be changed during a season for special promotional events and/or to accommodate special group events. Written notification of ticket prices shall be given to Coliseum management prior to tickets going on sale. 19. SEATING. Seating capacity for ice hockey in the Coliseum is established at 7,185 seats. No additional seating may be added without prior approval of the Civic Centers Director and the Fire Marshall. LESSEE shall not sell or distribute or permit to be sold or distributed tickets or passes in excess of seating capacity of the Coliseum 20. SMOKING NOTICE. In accordance with Laws governing smoking in public places, LESSEE shall take reasonable and prudent care that its patrons, players, and other employees are informed of the NO SMOKING rule. Smoking in any interior portion of the Hockey Lease agreement 5 Coliseum including, but not limited to seating areas, public restrooms, concourse, and dressing rooms will not be permitted. LESSEE's Public Address Announcer will make periodic and appropriate Public Address Announcements and LESSEE's security personnel and ushers shall be responsible for monitoring these areas. 21. TELEVISION/RADIO. All broadcast rights for the LESSEE's ice hockey games are granted to LESSEE. Any costs associated with the production of such broadcasts shall be paid by the LESSEE. 22. STANDARD GAME DAY SET-UP. The CITY will provide at no cost to the LESSEE the standard ice hockey set-up in the Coliseum as determined by the Civic Centers Director. Standard ice hockey set-up is defined as the dasher system, glass and iceboxes. 23. INTERRUPTION OR TERMINATION OF GAME. CITY shall retain the right to cause the interruption of any game in the interest of public safety, and to likewise cause the termination of such performance when in the sole judgment of CITY, exercised in good faith, such act is necessary in the interest of public safety. 24. SCOREBOARD. LESSEE shall provide person(s) required to operate the scoreboard and game timekeeping equipment at their sole cost. 25. NOVELTIES. Commissions and income from novelty and souvenir items sold or offered for sale by LESSEE on Coliseum property may be retained by the LESSEE. LESSEE will be responsible for payment of all federal, state, and local sales taxes. LESSEE shall be responsible for all labor costs involved with sale of novelty and souvenir items. The Coliseum will provide novelty area(s) for team sales at no cost to LESSEE and at locations determined by the Coliseum management. 26. DRESSING ROOMS. LESSEE shall have access to the dressing rooms when using the Coliseum for its games, practices and other scheduled skating activities. LESSEE understands CITY cannot provide exclusive use of any dressing room throughout each SEASON for the home team to keep its equipment and gear. There shall be no charge for use of the dressing room space. For liability and security reasons and with the exception of scheduled practices or games, admittance to the Coliseum will not be permitted without advance prior notification to and subsequent approval by the Civic Centers Director. 27. PHYSICAL ALTERATION/SIGNAGE. a. LESSEE will not cause or permit any nails or other fasteners to be driven into or affixed to any portion of the building, nor any signs to be affixed either to the exterior thereof, nor cause or permit any changes, alterations, repairs, painting or staining of any part of the building or the furnishings or equipment thereof, nor permit to be done anything which will damage or change the finish or appearance of the building or the furnishings thereof LESSEE shall pay the cost of repairing any and all injury and damage which may be done to the building or any of the fixtures, furniture or furnishings thereof by any act of LESSEE or any of LESSEE's Hockey Lease Agreement 6 employees or agents or anyone visiting the building upon the invitation of LESSEE including, but not limited to, the patrons of the ice hockey games for which LESSEE is hereby renting the Coliseum. It is expressly agreed that the Civic Centers Director and the City's Risk Management Coordinator shall determine whether any such damage has been done, the amount thereof and the reasonable cost of repairing the same, and whether it is one for which, under the terms of this Agreement, LESSEE is to be held responsible. The decision of the Civic Centers Director and City's Risk Management Coordinator shall be final. C. Except as provided in Section 31 below, LESSEE will not post or exhibit, nor allow to be posted or exhibited signs, advertisements, show bills, lithographs, posters or cards of any description, inside or in front, or on any part of the building. Any exceptions to the foregoing requirement shall be in writing from the Civic Centers Director, and LESSEE shall take down and remove forthwith all signs, advertisements, show bills, lithographs, posters or cards of any description not in compliance herewith. 28. ADVERTISING. a. Temporary Advertising: LESSEE shall have the non-exclusive ability to sell advertising, programs, dasher board signage, signage on the side of the ice resurfacing machine, banners and other signage temporary in nature in the Coliseum. Temporary is defined as signage that is temporarily affixed to railings, walls, or equipment for ice hockey events (which includes dasher system, ice floor and ice resurfacing machine) All signage must be temporary in nature and will be allowed only during pre -game, game and post -game activities and shall be removed or covered in a neat and professional manner acceptable to the Civic Centers Director immediately thereafter unless there is no other scheduled activity or event between games. LESSEE shall be solely responsible for all cost of creating, erecting, installing, maintaining, changing, covering and removing all such signage and advertising. LESSEE shall not allow any signage or advertising to be present at any other time or during other programs/events scheduled at the Coliseum unless specifically approved by the Civic Centers Director. The CITY waives any rights to commissions as a result of any temporary advertising or program sales associated with LESSEE'S hockey game activities. Should the LESSEE wish to use advertising painted directly on the ice surface, it will be LESSEE's full and complete obligation to provide all labor and materials to paint such signage when LESSEE makes and/or installs ice. b. Permanent Advertising: LESSEE shall have the ability to sell permanent advertising or signage. Permanent advertising is defined as signage that is either 1) bolted or permanently attached or painted to walls, equipment, or other approved areas within the facility 2) hung in a location which makes it difficult to remove on an on -going basis 3) attached or painted onto permanently installed equipment 4) visible to all events during the year 5) contractually visible during all events. The CITY waives any rights to commissions as a result of any permanent advertising sales associated with LESSEE's hockey game activities. It will be LESSEE'S full and complete obligation to provide all labor and materials for such signage for its installation. Hockey Lease Agreement-. 7 C. Location of Advertising: The specific locations for display advertising and signage must be approved in advance by the Civic Center Management. All locations selected are subject to relocation at anytime at the Civic Centers Director's discretion. It is the intention of the parties that the approval of locations will not be unreasonably withheld. LESSEE understands that event requirements may dictate or restrict location of permanent display advertising or signage. d. All installations shall be in good taste, professionally developed, and presented so as to be inoffensive to the general public and of such high caliber as to contribute to the establishment of the Coliseum facilities as prestigious locations for commercial advertising media. In this regard, City reserves the right to limit the total number of permanent signs in the Coliseum facilities. LESSEE will promptly remove or modify the presentation of any advertising or signage if so directed by the Civic Center Management if deemed to be in violation of this clause. e. In the case of any backlit signage inside the seating areas, LESSEE understands that there may be some events scheduled in the facility where no illumination can or will occur during performances requiring that house lights be turned off. The fact that the production and staging requirements for some events will partially or totally obstruct advertising copy from view of some seats and/or areas of the concourse will not be a breach of the City's obligations under this Agreement. 29. CONCESSION SALES. CITY reserves unto itself or its assigned agents the sole right to sell or dispense soft drinks, candies, food, alcoholic beverages and related merchandise commonly sold or dispensed in the Coliseum. Any commissions received from its concessionaire by the City up to 5% of adjusted gross sales from the concession sales at Cotton Kings hockey games shall be paid to the LESSEE on a quarterly basis. LESSEE reserves the right to request that CITY audit Civic Lubbock, Inc. books and records with respect to Cotton Kings hockey concession sales, not to exceed once per season. 30. UTILITIES AND SERVICES. a. CITY shall furnish, at CITY's expense, heat, water, lights and air conditioning necessary for LESSEE's use during the term of this Agreement and all necessary custodial service deemed necessary by the Civic Centers Director, and cause the Coliseum to be kept clean and generally cared for during the term of this Agreement, except that CITY shall not be responsible for or liable to LESSEE for any loss resulting from any lack of heat, water, lights or air conditioning due to an act of God or the failure of equipment to operate or function properly through no fault or act of CITY. All utilities will be furnished from present openings in the Coliseum and no petroleum products, oil flashlights or any other artificial lighting or light plants or electrical equipment shall be permitted. b. CITY agrees to provide janitorial and maintenance services for the facility and agrees to keep and maintain all areas in a reasonably good and tenantable condition and Hockey Lease Agreement appearance, and further agrees to keep said Premises in a reasonably neat, clean and respectable condition by prompt removal of all trash, litter, debris and junk. That standard for janitorial and maintenance services shall be on the same basis as performed by the City prior to this Agreement. C. CITY, however, shall not be responsible for maintenance and upkeep of the ice floor. This shall be the responsibility of the LESSEE. d. CITY shall pay for all electrical charges for the separately metered chiller that is required to retain the ice surface. e. LESSEE shall provide for its own telephone, cable or any similar service including any connection fees that LESSEE may require for the presentation of hockey or any other ice -related events that LESSEE presents. 31. PARKING LOTS. a. CITY reserves the right to maintain and operate the Coliseum parking lots located within the area under the supervision and control of the Civic Centers Director. LESSEE acknowledges that the parking lots are shared with the Municipal Auditorium and Jones SBC Stadium (operated and owned by Texas Tech University) and events held in each of the facilities have access to the lots. There is an existing agreement with the University which governs the use of the lot and which remains in force as of the date of this Agreement. b. LESSEES may reserve a VIP parking area on the Coliseum lot for its hockey games, not to exceed 100 parking spaces, and charge and collect a parking fee for that area. All such parking fees collected may be retained by Lessee. LESSEE will be responsible for all costs and expenses associated with securing the VIP parking area as well as conformity with all codes, ordinances and regulations. LESSEE will be responsible to remitting any sales tax due on revenues collected. C. The CITY and LESSEE agree that LESSEE is authorized to assess a fee and retain said fees for patron parking on the Coliseum parking lot for hockey games and other events sponsored and/or produced by LESSEE. Parking fees shall be collected by LESSEE. LESSEE shall remit all sales tax associated with the parking revenue to the State Comptroller in accordance with the laws of the State of Texas. LESSEE shall have the obligation to hire and pay all parking lot attendants and have sufficient supervisory personnel to insure safe and efficient operation of the parking areas. 32. PERSONNEL. a. LESSEE shall arrange for and provide the following personnel for each game and for other skating activities as applicable at LESSEE's cost: Hockey Lease Agreement 9 1) Ticket takers, door guards, and ushers in numbers approved by the Civic Centers Director or designated representative to assure safety and control of patrons attending the games. 2) Uniformed Security Personnel in numbers sufficient to control the seating area, concourse areas, and control access/egress points. The actual number of Security Personnel may increase or decrease depending on anticipated crowd size or a developing pattern of crowd management problems at the discretion of the Civic Centers Director or designated representative. All personnel shall be on duty until the Coliseum is cleared of the general public. 3) Game personnel, including, but not limited to: Public Address Announcer, message center operator, scoreboard operator, scorekeeper, timekeeper, referees, goal attendants, Zamboni and ice edger/ice paint operators, etc. 4) Sound or stage technicians as required to operate any Coliseum sound or lighting systems. 5) For special programs of the LESSEE, the LESSEE may be required to provide additional security, ushers, door guards and other personnel necessary in numbers approved by the Civic Centers Director or designated representative to assure safety and control of the public attending the functions. 6) LESSEE shall hire and pay for any medical equipment, services and attendants they may deem necessary, including, but not limited to, physicians, physician assistants, trainers, paramedics, emergency medical technicians and ambulance attendants during the hockey games and other ice related event scheduled by LESSEE. 7) CITY reserves the right at all times to control the ushers, doormen, ticket takers, grounds, security personnel and all other employees of LESSEE. CITY shall have the right to remove from the Coliseum any and all such employees of LESSEE and the right, with its officers and agents, including its police officers, to eject any objectionable person or persons from the building and surrounding premises. In the event of the exercise of this authority, LESSEE hereby waives any and all claims for damages or contribution against the CITY and its officers and employees on account thereof. 8) LESSEE shall hire and pay for personnel for the ice crew, including ice - resurfacing operators, to properly maintain the ice during the term of this agreement. LESSEE shall hire and pay for all personnel required to construct ice prior to the season and removal upon closing of the season. LESSEE's personnel shall work closely with LESSOR's personnel in monitoring the ice plant during the season. 9) LESSEE shall hire and pay for personnel to oversee all other skating activities planned and/or scheduled by LESSSEE in the Coliseum, including, but not limited to, public skating, youth and adult amateur leagues, figure skating, etc. Hockey Lease Agreement 10 LESSEE"s personnel shall insure that participants remain in the proper areas adjacent to the ice floor and that the facility is properly secured upon leaving, i.e. lights turned off, doors locked and secured. 33. INDEMNITY AND INSURANCE. a. LESSEE as a material part of the consideration to be rendered to CITY under this Agreement, hereby covenants and agrees to hold CITY harmless and relieve and discharge CITY, its officers and employees, from any and all liability for loss, injury, or damages to any person or persons for personal injuries or death of any person or persons, or loss or damage to property occasioned by or sustained by reason of the occupancy and use of the Coliseum and the facilities thereof without regard to the cause of such loss or whether the loss was caused in whole or in part by the negligence of the CITY, its officers and employees. b. LESSEE hereby covenants and agrees to pay for any and all damage to the Coliseum and damage to or loss of any of the property or equipment of the Coliseum or to any other CITY property, resulting, either directly or indirectly from such occupancy or use of the Coliseum, by or through the negligence or other acts of LESSEE, its agents, employees or any person or persons participating in or attending the game in connection with or during said use and occupancy. C. CITY shall not be liable to LESSEE for any damage by or from any act or negligence of any other occupant of the Coliseum. LESSEE agrees to pay for all damages to the building, as well as all damage to other occupants of the Coliseum, caused by LESSEE's misuse or neglect of the Coliseum, its apparatus, or appurtenances. d. LESSEE shall secure at its own expense and provide CITY with evidence that it met the insurance requirements as outlined in General Operating Policies and Procedures, which are attached and are a part of this agreement. CITY shall be named as a named insured in said policy of insurance. e. LESSEE shall procure Worker's Compensation Insurance protecting the agents and employees of LESSEE. Worker's Compensation coverage shall include a waiver of subrogation in favor of CITY. 34. DAMAGE OR DESTRUCTION. a. In case the Coliseum covered by this Agreement, or the building of which such Coliseum are a part be totally destroyed or damaged by fire or any other cause, of if any other casualty or unforeseen occurrence or other causes herein specified shall render fulfillment of the contract by CITY impossible, then the term of this Agreement shall end and LESSEE shall be liable for partial rent only up to the time of such termination and LESSEE hereby waives and releases the CITY from any claim for damages or compensation on account of such termination. Hockey Lease Agreement 11 b. In the event that the Coliseum should be partially damaged by fire, or other cause, but only to such an extent that it can be rebuilt or repaired within ninety (90) days after the date of such destruction, the Agreement shall be void or voidable, but not terminated except as otherwise provided herein. If the CITY intends to rebuild or repair the Coliseum, it shall within thirty (30) days after the date of such damage give written notice to LESSEE of the intention to rebuild or repair and shall proceed with reasonable diligence to restore the Coliseum to substantially the same condition in which it was immediately prior to the destruction. However, CITY shall not be required to rebuild, repair or replace any improvements or alterations made by tenant within the Coliseum. During the period of rebuilding or repairing, there shall be no diminution of rent. If, after rebuilding or repairing has commenced, such rebuilding or repairing cannot be completed within ninety (90) days after the date of such partial destruction, the CITY may either terminate the Agreement or continue with the Agreement with a proportional rent rebate to LESSEE. If CITY undertakes to rebuild or repair, LESSEE shall, at its own expense, restore all work required to be done by such LESSEE under this Agreement. 35. EXPIRATION OF LEASE AGREEMENT. a. At the expiration of this Agreement and in accordance with all applicable provisions of this Agreement, LESSEE shall quit the Coliseum and return to the CITY all equipment and facilities procured in as good condition and repair as when acquired, except for normal wear and tear. If LESSEE has constructed any alterations or additions to the Coliseum, to the extent required by the CITY, all alterations and additions made by LESSEE shall be removed, at the sole cost of the LESSEE, and the Coliseum restored to their condition when the Lease began. LESSEE's obligations under this paragraph shall survive the expiration or other termination of the Lease. b. CITY reserves the right after. the expiration of the time for which the said Coliseum is leased by this Agreement to remove from the Coliseum all effects remaining therein and to store the same wherever it sees fit in its name, or at its option, in the name of LESSEE but at the cost, expense and risk of LESSEE, and CITY shall not be liable in any way to LESSEE on account of so removing and storing any such effects. For such additional period beyond the term of this Agreement as any effects of LESSEE may so remain in the Coliseum, CITY shall be entitled to charge LESSEE a reasonable fee for storage. 36. LICENSES AND LAWS. (a) LESSEE shall comply with all laws of the United States, and the State of Texas, all ordinances of the City of Lubbock, and all rules and requirements of the Police and Fire Departments, or other municipal authorities of the CITY, and will obtain and pay for all necessary permits and licenses, and will not do, nor suffer to be done, anything on said Coliseum during the term of this Agreement in violation of any such laws, ordinances, rules or requirements; and if the attention of LESSEE is called to any such violation on the part of said LESSEE, or of any person employed by or admitted to the said Coliseum by said LESSEE, such LESSEE will immediately desist from and correct such violations. Hockey Lease Hgreemenz 12 (b) LESSEE shall comply with the Federal Copyright Act of 1976 and assure that all copyrighted music played or caused to be played during the time period and in the area covered by this Agreement is played with the permission of the copyright owner. LESSEE agrees to pay all the obligations under the copyright license, and will hold harmless and indemnify the CITY and its employees from any such claims or obligations. (c) Any violation of such laws and ordinances by LESSEE shall, at the discretion of the Civic Centers Director, subject LESSEE to immediate expulsion from the Coliseum and the forfeiture of all rents, percentages, or other fees heretofore paid, and without releasing in any manner any obligations for the payment of the rent, percentages, or other fees required to be paid for the full term thereof. 37. POSTPONED DELIVERY. If the CITY cannot give possession of the Coliseum on the above described times and/or dates for any reason, such event shall not be considered an event of default hereunder, and the CITY shall not be subject to any liability, nor shall the validity of this lease be affected, nor the lease tenn extended in such event. In the event the CITY does not tender possession to LESSEE at the agreed times and dates, Lessee may terminate the Lease at any time prior to CITY's tender of possession by written notice to the CITY. 38. CONDITION OF PREMISES. LESSEE has determined that the Coliseum, as presently constituted, is sufficient for the use contemplated by LESSEE. Lessee's taking possession of the Coliseum is conclusive evidence that the Coliseum, including, without limitation, the equipment, fixtures, furnishings, and the building comprising the Coliseum are clean, sanitary, and in good order and condition at the time of possession by the LESSEE. LESSEE shall, through the lease term, maintain the Coliseum and furnishings in good, clean, and sanitary order and condition. 39. CANCELLATION. LESSEE shall give written notice of intent to cancel this Agreement by April 1 of each year that this Agreement is in force. In the event LESSEE cancels, the parties hereby agree that all monies paid by the LESSEE any time prior to the date of cancellation are presumed to be liquidated damages sustained by the CITY due to the impracticability and extreme difficulty in fixing actual damages and such monies shall become the property of the CITY and shall not be refunded. Any installed permanent equipment, modifications and or improvements to the Coliseum shall become the property of the CITY. 40. DEFAULTS AND TERMINATION. a. In the event LESSEE shall fail to keep and perform or shall materially violate the terms, covenants and conditions of this Agreement and LESSEE shall not have cured or corrected such violation or is not diligently taking action to cure or correct such violation within ten (10) days after written notice thereof shall have been received by LESSEE, LESSEE shall be considered to be in default hereunder. Notwithstanding the above, LESSEE shall be in default of this Agreement if LESSEE fails to timely pay the required rentals provided for herein without the necessity of the CITY giving LESSEE written notice of default as herein above provided. Hockey Lease Agreement 113 b. Upon the occurrence of any one or more event(s) of default LESSEE's right to possession of the Coliseum shall terminate, and LESSEE shall surrender possession thereof to CITY immediately. In such event, LESSEE hereby grants to CITY full and free license to enter into and upon said Coliseum, or any part thereof, to take possession thereof with process of law, and to expel and remove LESSEE therefrom, or any person who may be occupying the said PREMISES, or any part thereof, and CITY may repossess itself of the said Coliseum as of its former estate. In addition to terminating this Agreement, CITY may sue for and recover all damages. CITY may, if it so elects, pursue any other remedy or remedies provided by law for the breach of this Agreement or any of its terms, covenants, conditions or stipulations. No right of entry or remedy herein conferred upon or reserved by CITY is intended to be exclusive of any other right or remedy. C. CITY's acceptance of rent following an event of default hereunder shall not be construed as CITY's waiver of such event of default. No waiver by CITY of any violation or breach of any of the terms or provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or default. The loss or damage that CITY may suffer by reason of LESSEE's default shall include the reasonable expense of repossession and any reasonable repairs or remodeling undertaken by CITY following repossession. d. LESSEE covenants that if LESSEE shall make an assignment for the benefit of creditors, or if a petition shall be filed to have it adjudicated a bankrupt, whether voluntary or involuntary, or if an execution issue against LESSEE and it shall fail to procure a stay thereof within thirty (30) days after the entry of same or otherwise fail to satisfy a judgment against it, then and in such event this Agreement, at the option of the CITY shall cease and terminate. In the event of such termination, the entire unpaid portion of the total rental as set forth in this Agreement shall thereupon immediately become due and payable. 41. STORAGE. CITY assumes no responsibility whatsoever for any property placed in or on said Coliseum, and said CITY is hereby expressly released and discharged from any and all liabilities for any loss, injury or damages to person or property that may be sustained by reason of the occupancy of said Coliseum under this Agreement. 42. THIRD PARTY AGREEMENTS. CITY shall not be responsible in any way for any third -party agreements entered into by LESSEE for supplies, services or any other items, whether in writing or verbal. LESSEE shall be solely responsible for all such agreements and any payments due thereon. 43. INDEPENDENT CONTRACTOR. LESSEE, in the performance of its functions, duties and obligations herein, shall at all times be and act as an independent contractor. Nothing in this Agreement shall be construed as creating a partnership or joint venture between the parties hereto, or as constituting LESSEE as an agent or employee of CITY in any manner whatsoever, nor shall any part of this Agreement be construed as giving LESSEE any authority whatsoever to bind CITY in any manner whatsoever. LESSEE hereby agrees and covenants that CITY shall not be liable for any salaries or sums of money due employees of LESSEE nor for any expense Hockey Lease Agreement 14 incurred by LESSEE, nor for any debt contracted by LESSEE. 44. NON-DISCRIMINATION. LESSEE agrees that in conducting its operation hereunder it will not discriminate against any employee, applicant for employment, customer or patron due to age, sex, race, color, handicap, religion or national origin. 45. AMERICANS WITH DISABILITIES ACT. LESSEE agrees that it will comply with all applicable requirements of the Americans with Disabilities Act of 1990, 42 U.S.C. S 12101, et. seq. 46. FIRE HAZARDS. LESSEE shall not bring or permit anyone to bring into said building or surrounding premises or keep therein anything that generates any hazardous materials or wastes, or causes a fire hazard. 47. HAZARDOUS MATERIALS. If lessee uses, stores, or generates any hazardous materials or wastes, LESSEE will obey all Federal, State, and Local laws governing such materials. In the event that hazardous materials are discharged on CITY property, LESSEE will be responsible for all costs and activities related to proper clean-up, and will provide the Civic Centers Director with proper documentation evidencing that a complete clean-up has occurred. LESSEE shall be responsible for all liabilities related to the use, storage, disposal, and clean-up of all hazardous materials on the PREMISES. 48. ATTORNEY'S FEES. If either party should commence legal proceedings to enforce the terms and conditions of this Agreement, the prevailing party will be entitled to reimbursement of all sui:h legal fees and cost incurred, including the legal fees and costs incurred in any appellate proceeding. 49. EXTENT OF AGREEMENT. This Agreement represents the entire and integrated Agreement between the parties hereto and supersedes all prior negotiations, representations or agreements either written or oral, and this Agreement may be amended only by written instrument signed by both parties. 50. PROHIBITION AGAINST NUISANCE OR UNLAWFUL USE. LESSEE shall not create or allow any nuisance to exist on the PREMISES, or use or allow the Coliseum to be used for any unlawful purpose. 51. CONSENTS. CITY and LESSEE agree that whenever in this Agreement their consent is required to be obtained such consent will not be unreasonably withheld or delayed. 52. LEGAL CONSTRUCTION. If any clause or provision of this Agreement is illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, or any extension thereof, then it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in 1 ieu of each clause or provision of this Agreement that is illegal, invalid or enforceable, there be added as a part of this Agreement a clause or provision as similar Hockey Lease Agreement 15 in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid or enforceable. 53. PARTIES BOUND. Each and every provision of this Agreement shall bind and shall inure to the benefit of the parties to the Agreement and their legal representatives. 54. NOTICES. Any notice required hereunder shall be in writing and shall be deemed received by the party to be notified whenever a letter containing such notice is deposited with the United States Postal Service, certified mail, return receipt requested, with proper postage affixed thereto and addressed to the party to be notified in the following manner: CITY: Civic Centers Director 1501 Mac Davis Lane Lubbock, Texas 79401 LESSEE: General Manager South Plains Professional Hockey Club Lubbock, Texas Or at such other address as CITY or LESSEE may designate in writing. 55. CAPTIONS. The captions contained in this Agreement are for convenience of reference only, and shall in no way limit or enlarge the terms and conditions of this Agreement. 56. SPECIAL PROVISION. LESSEE agrees to pay to CITY $46,900.00, the amount of all delinquent rent for the 2005-2006 season, prior to October 1, 2006. 57. EXHIBITS AND ATTACHMENTS. All exhibits referred to in this Agreement are incorporated into this Agreement and made a part hereof for all intents and purposes. 58. CHOICE OF LAW. The laws of the State of Texas shall govern the formation, operation, construction and enforcement of this Agreement. 59. AUTHORITY TO BIND. CITY represents and warrants that this LEASE AGREEMENT has been approved by the City Council of Lubbock, Texas, and constitutes a legal, valid and binding obligation of the City. It is understood and acknowledged by CITY and LESSEE that any extensions of this LEASE AGREEMENT as provided for above, are subject to the approval of the Lubbock City Council. LESSEE represents and warrants to the City that the individual executing this LEASE AGREEMENT has the full lawful right, power and authority to execute this document on behalf of LESSEE and that this LEASE AGREEMENT constitutes a legal valid and binding obligation of LESSEE. Hockey Lease Agreement- i6 IN WITNESS WHEREOF, we have hereunto set our hands as date first above written City of Lubbock: South P s P fes 'onal Hockey Club t : David A. Miller.. Mayor By: Name: F rck, ' UX ATTEST: Rr ecca Garza, City Secretary APP VED AS TO C TENT: Freddy Ch ez, Civic Ser4es Director APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney Office Practice Section Lc: cityatt/LindaiHockeyLeaseRenewa(Revised July 31, 2006 Hockey Lease Agreement 17 Authorization To Whom It May Concern, Rick Dykes has the authorization to bind the Lubbock Cotton Kings in an agreement presented to the Lubbock City Council on Monday July 31, 2006. Matt Adams -South Plains Professional Hockey Club, Ltd. (State of Texas, County of Lubbock) This in trument was a nowledged before me on this 28th day of July 2006, By_ ` �( Ctf1�1 , on behalf of South Plains Professional Hockey Club, LTD. Notary Publi r011�Y ' KELLY MILES * * Notary Public, State of Texas sr, My Commission Expires 10-11-06 Commission Expires