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HomeMy WebLinkAboutResolution - 2004-R0466 - Lease Agreement With South Plains Hockey Club, Ltd - 09_28_2004Resolution No. 2004-RO466 September 28, 2004 Item No. 13 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Conditional Assignment of Lease Agreement with the South Plains Hockey Club, Ltd., to the Western Professional Hockey League, Inc., DBA Central Hockey League, a Texas Corporation, and any associated documents, a copy of which Conditional Assignment of Lease Agreement is attached hereto and which shall be spread upon the minutes of this Council and as spread upon the minutes of this Council shall constitute and be a part hereof as if fully copied herein in detail. Passed by the City Council this 2&:h day of September '2004. ATTEST: Re ecca Garza, City Secret APPROVED AS TO CONTENT: Vicki Key, Civic Sery c Director PROVED AS TO FORM: Donald G. Vandiver, Attorney of Counsel Wres/HockeyLeaseAssignRes August 20, 2004 Resolution No. 2004-R0466 September 28, 2004 Item No. 13 CONDITIONAL ASSIGNMENT OF LEASE AGREEMENT THIS AGREEMENT is made effective this 28th day of September, 2004. AMONG: CITY OF LUBBOCK 1325 13TH Street Lubbock, TX 79401 (the "Arena Owner") AND: SOUTH PLAINS PROFESSIONAL HOCKEY CLUB, LTD. 1309 University Lubbock, TX 79401 (the "Team Owner") AND: WESTERN PROFESSIONAL HOCKEY LEAGUE, INC. DBAXENTRAL HOCKEY LEAGUE A Texas Corporation, having its principal office at 4909 East McDowell Road, Suite 104 Phoenix, AZ 85008 (the "WPHLI") WHEREAS: A. By Lease Agreement dated as of June 29, 2004 (the "Arena Lease"), the Team Owner did lease from the Arena Owner the premises therein described as the Lubbock Municipal Coliseum (the "Leased Premises"), which has an address of 2720 Drive of Champions, Lubbock, Texas 79415. B. By a license agreement made effective January 9, 1999 (the WPHL License Agreement), WPHLI granted a license to operate a Western Professional Hockey League ("WPHL") ice hockey team (the "Licensed Team") at the Leased Premises to the Team Owner. The WPHL License Agreement contains a condition that the Arena Owner, the Team Owner and the WPHLI will execute this agreement, with the Team Owner executing the Arena Lease. NOW THEREFORE, THIS AGREEMENT WITNESSES THAT for valuable consideration (the receipt and sufficiency of which are acknowledged by each of the parties), the parties agree as follows: 1. The Arena Owner acknowledges that execution of the WPHL License Agreement by the WPHLI constitutes a substantial indirect benefit to the Arena Owner in that revenue generated from the operation of the Licensed Team at the Leased Premises will assist the Team Owner to pay amounts payable to the Arena Owner under the Arena Lease. 2. The Arena Owner and the Team Owner certify to the WPHLI that, as of the date hereof: a. The Lease Agreement dated June 29, 2004, copies of which are herewith provided to WPHLI by the Arena Owner, constitutes the full agreement between the Arena Owner and the Team Owner with respect to use and occupation of the Leased Premises by the Team Owner. b. The Arena Lease is in full force and effect, and c. There is no existing default of the Arena Lease by the Arena Owner or the Team Owner. 3. The Team Owner covenants with WPHLI that the Team Owner will at all times observe and perform all provisions of the Arena Lease and that the Team Owner will not at any time agree to sublease, surrender, amend or add to the Arena Lease without obtaining the WPHLI's prior written consent thereto, which the WPHLI may withhold arbitrarily in the case of a proposed sublease or surrender, but will not withhold arbitrarily or unreasonably in the case of a proposed amendment or addition to the Arena Lease. 4. The Arena Owner agrees with the WPHLI that: a. The Arena Owner will notify WPHLI of any amendment or addition to the Arena Lease; b. The Arena Owner will not accept a surrender of the Arena Lease, or seek to terminate the Arena Lease without giving at least twenty-one (21) days written notice thereof to the WPHLI, during which the WPHLI may cure any default of the Team Owner, provided that WPHLI has agreed in writing prior to such time to comply with the Indemnity and Insurance provisions of paragraph 36 of the Arena Lease; c. If the Arena Owner at any time gives written notice of default of the Arena Lease (a "Default Notice") to the Team Owner, then the Arena Owner will concurrently give a copy of the Default Notice to the WPHLI; and d. In the event of default of the Arena Lease by the Team Owner (a "Default"), the Arena Owner will not accelerate future payments (if acceleration of future payments is provided for in the Arena Lease) until it has given the WPHLI at least 21 days prior written notice and the opportunity, during such period, to cure the Default and, at its option, to become the Team Owner under the Arena Lease, provided WPHLI has agreed in writing prior to such time to comply with the Indemnity and Insurance provisions of paragraph 36 of the Arena Lease. If after 0 such notice, WPHLI shall promptly and diligently commence curing the Default but cannot cure same within the twenty-one (21) days specified through no fault of its own, then and in that event WPHLI shall have such additional time to cure said Default as can be agreed on by WPHLI and Arena Owner, not to exceed a maximum of sixty (60) days from the date of the original notice provided for herein. S. If the WPHLI, or a receiver, or receiver -manager appointed pursuant to the WPHLI License Agreement takes possession of the Leased Premises pursuant to a Default of the WPHL License Agreement by the Team Owner, then the Arena Owner will not unreasonably withhold its consent to an assignment of the Arena Lease to a purchaser whom the WPHLI approves to become its new licensee in place of the Team Owner; and upon such new licensee agreeing in writing to be bound by the Arena Lease, the WPHLI and its receiver or receiver -manager (if applicable) will be released from further liability thereunder. 6. During any curative period as specified in paragraphs 4(b) and (d), the Arena Owner will not distrain against or remove from the Leased Premises any chattels, equipment, furnishings or other property of the Team Owner without the prior written consent of the WPHLI. 7. Immediately upon receiving a Default Notice, the Team Owner will forward a copy of it to the WPHLI with a brief written explanation of what the Team Owner intends to do or not do regarding the Default or Defaults alleged thereby. Team Owner will also provide a copy of the brief written explanation concurrently to Arena Owner. 8. The Team Owner consents to all provisions of this agreement, which creates rights and obligations between the Arena Owner and the WPHLI. 9. Any notice required or permitted to be given hereunder shall be in writing addressed to the party to whom it is to be given (the "intended recipient") and shall be delivered to the address of the intended. recipient shown on page 1 of this agreement or to such other address in one of the continental states of the United States of America as the intended recipient may have specified by notice to the other parties given in the same manner. Any notice shall be mailed by express service mail or certified mail, return receipt requested with proper postage offered thereto and shall be deemed to be received by the intended recipient on the business day next following the day of delivery. 10. The Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, permitted successors and permitted assigns. 11. This Agreement may be executed in two or three counterparts, each of which will constitute an original and all of which will constitute one and the same Agreement. Any party may execute this Agreement by utilizing facsimile transmission facilities and such 3 execution shall constitute execution hereof by that party. 12. This Agreement shall be deemed to have been made in the State of Texas and the laws of the State of Texas shall govern the information, operation, construction and enforcement of this Agreement. The Courts of the State of Texas shall have jurisdiction to hear all matters relating to this Agreement. IN WITNESS WHEREOF the parties have executed this Agreement as of the effective date first above written. City of Lubbock: c cDougal, Mayor ATTEST: Reb6cca Garza, City Secretary JROVEDAS TO CONTENT: Vicki Key, Civ S t ices Director APPROVED AS TO FORM: onald G. Vandiver, Attorney of Counsel aMWesek—e—,Ge—n-e—ral rofessional Hockey Club, Ltd. Manager Western Professional Hockey League, Inc.; d.b.a the Central Hockey League Rick Kozuback, President and CEO rd