HomeMy WebLinkAboutResolution - 6126 - Agreement-South Plains Professional Hockey Club Ltd-Coliseum Advertising Display - 12/10/1998Resolution No. 6126
Item No. 31
December 10, 1998
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 Coliseum Advertising
Display Agreement by and between the City of Lubbock and South Plains Professional
Hockey Club, Ltd., a Texas limited partnership, attached hereto, which shall be spread
upon the minutes of the Council and as spread upon the minutes of this Council shall
constitute and be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this 10th day of Decqoer '1998.
.'
ATTEST:
_Kay a arnell, City Secretary
APPROVED AS TO CONTENT:
,J,26�
Tommy Go lez, Mfihagft Director of Civic Services
APPROVED AS TO FORM:
cr\ccdocs\ColiseumAdverDisplayAgree Western ProfHockeyLeague.res
December 1, 1998
Resolution No. 6126
Item No. 31
December 10, 1998
COLISEUM ADVERTISING DISPLAY AGREEMENT
THE STATE OF TEXAS
COUNTY OF LUBBOCK
This professional services Agreement, entered into this loth day of
December , 199_, by and between the City of Lubbock, a municipal corporation
of the State of Texas, hereinafter referred to as "City" acting by and through its Mayor
and other designated representatives, and the South Plains Professional Hockey Club,
Ltd., a Texas limited partnership, 320 South Polk Street, Suite 800, Amarillo, TX 79101,
hereinafter called "Company".
Whereas, the City of Lubbock, through it's Civic Centers Department, operates
and maintains the Lubbock Memorial Civic Center and Municipal Auditorium -Coliseum
complex; and
Whereas, the City, through the Civic Centers Department, has the right to sell
advertising space in the Municipal Coliseum; and
Whereas the City deems it advantageous to itself and to the operation of the
Municipal Coliseum to grant Company the right to operate the Facility Display
Advertising Program under an Agreement containing mutually satisfactory conditions
and covenants:
NOW, THEREFORE, for and in consideration of the mutual covenants, terms,
conditions, privileges, obligations and agreements expressed herein contained, the City
and the South Plains Professional Hockey Club, Ltd. ("Company") hereby mutually
undertake, promise and agree, each for itself, and its successors and assigns, as follows:
WITNESSETH:
1. Definitions.
1.01 "Advertising Copy" shall mean any words, slogans, themes, leitmotivs,
designs, logos or comparable creative effort with respect to the advertising of
Advertiser's products.
1.02 "Agreement" shall mean this entire written contract and any Exhibits
thereto made by and between the City of Lubbock ("City") and the South Plains
Professional Hockey Club, Ltd. ("Company").
1.03 "Assigned Areas" shall mean those areas within the Municipal Coliseum
that are mutually acceptable to both parties to place display advertising.
1.04 "Signage" shall mean the advertising space or panel on which will be
displayed Advertising Copy.
1.05 "Gross Revenues" shall be construed to include all monies paid to or
payable to Company for sales made and for services rendered for advertising displayed in
the assigned areas of the Municipal Coliseum, regardless of when or where orders
therefore are received, or delivered, whether on a cash or credit basis; provided therefore
that the term "Gross Revenue" shall exclude the following:
1. Any amount paid by the advertisers to Company for telephone service.
2. Quantity purchase discounts allowed.
3. Any and all taxes imposed upon Concessionaire by law during the term of
the contract.
1.06 "Percentage Payment" is the sum of money due the City as its share of the
Gross Revenue as hereinafter provided.
1.07 "Civic Center Manager" shall mean the Manager of the Municipal
Coliseum and shall include such person or persons as may from time to time be
authorized in writing by the City of Lubbock or by the Civic Center Manager to act for
him/her with respect to any or all matters pertaining to this Agreement.
1.08 "Temporary Signage" shall be defined as signage that is affixed
temporarily to railings, walls, or equipment for ice hockey (pre -game, game, and post-
game) events or other events sponsored or co-sponsored by Company and not included in
the list of areas considered to be permanent and/or year-round signage. Temporary
Signage is subject to removal during other events in the facility. Temporary signage is
also considered to be signage on hockey related equipment owned by Company, i.e.
dasher system, ice floor, Zamboni, etc.
1.09 "Permanent Signage" shall be defined as signage that is either 1) bolted or
permanently attached to walls, equipment, or other areas within the facility 2) hung in a
location which makes it difficult to remove on an on-going bases 3) attached to
permanently installed equipment, i.e. scoreboards 4) visible to all event during the year 5)
contractually visible during all events.
2. Term.
2.01 This Agreement shall become effective upon execution by both parties
hereto. The term of this Agreement shall begin on the date of execution of this agreement
and continue in effect until April 30, 2004.
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Exception: All advertising agreements between the City and the current
advertisers that are in place upon execution of this agreement shall remain in
effect until the end of the 1998/99 basketball season or until those agreements
come up for renewal, should that date exceed the end of the basketball season and
all revenues from those agreements shall remain with the City.
3. Privileges and Obligations of Company.
3.01 The City hereby grants to Company the non-exclusive right to operate,
maintain, and provide display advertising copy on signage in assigned areas during the
term of this Agreement; provided, however, it is expressly understood and agreed that the
City is not in any way restricted by this Agreement from granting temporary advertising
rights to others and may determine, in its sole discretion, the location, content, and form
of all such advertising of others.
3.02 The City authorizes the Company to solicit "naming rights" sponsorships
for the Coliseum for a period of 180 days from the execution date of this Agreement.
Should the Company be successful, the City of Lubbock would have full approval prior
to Company entering into an agreement with any sponsors and any revenues would be
shared as follows:
a. Up to 500,000, 80% to City, 20% to Company
b. From 501,000 to 1,000,000, 75% to City, 25% to Company
C. All over 1,000,001, 70% to City, 30% to Company
3.03 The City authorizes Company to pursue the acquisition of an outdoor
electronic message center through advertising sponsorships, subject to the approval by the
City Administration and in accordance with the City of Lubbock sign ordinance.
Approvals from Texas Tech University will also be required in accordance with the
operating agreement currently in place between the City of Lubbock and Texas Tech
University. The City of Lubbock and Company will share equally (50/50) in the
advertising sponsorships. If all approvals are obtained to proceed with this project, the
style and design must be attractive and in keeping with the aesthetics of the Texas Tech
University campus.
3.04 The Company shall develop and maintain a comprehensive advertising
program totally integrated and coordinated as to design, quality and content for the
Municipal Coliseum. Under this program, Company shall establish, operate, service and
maintain prime quality, expertly -designed commercial advertising displays for the
graphic display of materials, articles, and services of various manufacturers, industries,
companies, and persons continuously during the term of this Agreement, the display
location and content of which shall be approved by the Civic Centers Manager
3.05 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
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contribute to the establishment of the Coliseum facilities as prestigious locations for
commercial advertising media.
3.06 The specific locations for display advertising will be selected and
approved by the Civic Centers Manager. All locations selected are subject to relocation
at anytime at the Civic Center Manager's discretion. Should the Civic Center Manager
and the Company disagree on any advertising locations, the Civic Center Manager's
decision shall be final. However, it is the intention of the parties that the approval of
locations will not be unreasonably withheld. Company understands that event
requirements may dictate or restrict location of permanent display advertising
3.07 The Company shall be responsible for the commercial advertising program
within the Assigned Areas and shall apply to that program the fiscal and administrative
resources of its sales organization. Through its national and regional organization,
Company shall use its best efforts to:
a. Develop, on a continuing basis, integrated master plans for advertising at
the Municipal Coliseum.
b. Follow quality criteria which will recognize the need for integrity of
design and advertising content appropriate to the prestige and dignity of
the Municipal Coliseum.
C. Practice space utilization planning which will ensure maximum revenue
return to the Company and City consistent with the scope and integrity of
the advertising master plan.
d. Provide sales staff with the ability and experience of sufficient scope to
solicit and sell local, regional, and national advertising for display at the
Coliseum.
e. Supply necessary advertising and display units which are consistent with
the approved architectural design plan for advertising in the Coliseum.
Company will provide, at its sole cost and expense, any new equipment
required for the display advertising.
3.08 Company shall pay all expenses associated with planning, implementing
and operating the program provided for in this Agreement, EXCEPT as may be set forth
elsewhere herein.
3.09 No advertising or displays reasonably considered offensive by the Civic
Centers Manager may be presented to the public. The Company will promptly remove or
modify the presentation of any advertising or display items if so directed by the Civic
Centers Manager.
3.10 The Company will provide an experienced sales force adequate to
maintain maximum rental and occupancy of all available advertising display space
covered by this Agreement.
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3.11 No structural alterations or improvements shall be made to any part or
portion of the Coliseum without prior written approval of the Civic Center Manager.
Should the Company wish to make any improvements to the facilities, including but not
limited to structural, equipment, interior design and decor improvements, Company shall
furnish to the Civic Center Manager any plans and/or specifications outlining suggested
improvements. Work or construction shall not commence until written approval from the
Civic Center Manager is received and all plans are approved. Any construction
scheduled shall be coordinated with the Civic Center Manager so as to reduce or avoid
distractions during events.
4. Existing Advertising Contracts.
4.01 It is understood and agreed by both parties that the Company will honor all
existing advertising contracts by giving advertisers first right of refusal on
advertising space currently in place.
4.02 City will have the ability to negotiate and renew existing advertising
contracts on the scoreboard and retain revenues of same. Should the City
be unable to renew existing advertisers, then Company shall have the
ability to sell advertising on the scoreboard.
5. Obligations of City.
5.01 City will furnish and maintain, at City's expense, the following
equipment:
1 - Fairtron Scoreboard with 2 End Boards
2 — Tri -Action Scorer's Tables (Optional)
10 -Static Press Row Tables (Optional)
Any space on the above mentioned equipment that is not already under contract
with the City will be available to Company to sell advertising space.
Company agrees that the Signage as listed above on which the Advertising Copy
will be displayed hereunder is the sole property of the City and shall remain in the
possession of the City upon termination of this Agreement.
5.02 The City will be responsible for all required electricity to all approved sign
and display locations, provided that it is structurally feasible and not cost prohibitive to
provide such electricity to a specific location. The Civic Centers Manager will determine
what is cost prohibitive. The Company will be responsible for the internal connections of
signs and displays only.
5.03 All utility costs attributable to the operation of the Signage shall be the
responsibility of the City.
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5.04 Permanent Signage will be visible at all public events held in the
Coliseum, except during any National Collegiate Athletic Association ("NCAA") athletic
events. In the case of Scoreboard panels, panels will only be illuminated when
Scoreboard is in use during an event. In the case of any backlit signage inside the seating
areas, no illumination will occur during performances requiring the house lights to be
turned off.
5.05 The fact that the production and staging requirements for some events at
which Permanent Signage will be displayed will partially or totally obstruct Advertising
Copy from view of some seats and/or areas of the concourses will not be a breach of
City's obligations under this Agreement.
6. Company's Obligations.
6.01 Terms and Payment:
a. The City shall receive a 10% annual commission from the cash
revenues derived from the sales of all temporary signage sold by
Company. The calculation of the City's 10% commission shall be
after deductions for initial documented cost to produce the signage
and Company's 10% employee commission.
b. The City shall receive a 50% annual commission from the cash
revenues derived from the sales of all permanent or year-round
signage sold by the Company. The Company shall not sell space
for less than the present rate established by the City. The
calculation of the City's 50% commission shall be after exclusion
of Company's initial documented cost to produce and install the
signage and Company's 10% employee commission.
6.02 Company shall furnish to the Civic Centers Manager each quarter a
statement showing total Gross Revenues, as defined herein, for the proceeding quarter.
With each quarterly statement, the Company shall remit to the City the amount due City
as per the terms stated in 5.01.
6.03 The City shall pay for all available electrical service to the assigned areas.
Company shall pay for all telephone service to the assigned areas. It is the understanding
of the parties that no other utilities shall be necessary for the assigned areas.
6.04 The Company shall keep full and accurate books and records showing all
of its transactions, sales, and income from the advertising rights herein granted, and the
City shall have the right, through its representatives, and at all reasonable times, to
inspect all such records as may be necessary to verify the Gross Revenue, as reported,
including State of Texas sales tax return records. The Company agrees that all such
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records and instruments are and shall be made available at Company's office location for
at least a four (4) year period following the end of each annual period of this Agreement.
6.05 The Company shall furnish a written statement to the Civic Centers
Manager stating that the payment paid by the Company to the City during each of the
Company's fiscal years pursuant to this Agreement is appropriate. Such statement shall
also contain Gross Revenues as shown on the books and records of the Company that
were used to compute the payment made to the City during the period covered by the
statement. Within ninety (90) days of the last day of the Company's fiscal year, this
statement shall be completed and a copy shall be furnished to the Civic Centers Manager.
6.06 The City reserves the right to audit the Company's books and records of
Gross Revenue at any time for the purpose of verifying the Gross Revenue hereunder. If,
as a result of such an audit, it is established that the Company has understated the Gross
Revenue received by it from all operations related to the assigned areas by ten percent
(10%) or more (after deductions and exclusions provided for herein) during the previous
annual reporting period under this Agreement, the entire expense of said audit shall be
paid by the Company. Any additional payment due to City shall forthwith be paid by the
Company to the Civic Centers Manager with interest thereon at the maximum rate
allowable by law per annum from the date such additional payment fee became due.
6.07 Notwithstanding the fact that it is the practice of the industry for
subscribers to render payment in arrears, Company shall render payment to the City on
the basis of gross revenues due or to become due rather than on the basis of amounts
received by Company.
6.08 Except as expressly provided herein, neither party shall have the right to
use in any way the corporate or tradename, trademark(s), service mark (s), logo(s) or
other identification of the other party or its affiliates without the other party's prior
written consent.
7. Operational Standards.
7.01 Company agrees to implement a Marketing and Management Plan to
maximize advertising opportunities and sales.
7.02 The management, maintenance and operation of the assigned areas shall at
all times be under the supervision and direction of an active, qualified, competent
employee who shall at all times be employed by and subject to the direction and control
of the Company.
7.03 The operations of Company, its employees, invitees, suppliers, and
contractors shall be conducted in an orderly and proper manner so as not to annoy, disturb
or be offensive to others. All employees of the Company must conduct themselves at all
times in a courteous manner toward the public.
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8. Maintenance.
8.01 The City shall not be liable or responsible for repairs, improvements or
damages to any equipment, displays or other materials that the Company installs at the
Coliseum.
8.02 The Company shall insure that all equipment and/or displays installed or
display in the Coliseum are kept in good working condition and that repairs required to
any of the equipment shall be performed in a timely manner.
8.03 The Company agrees that if any portion of the building is damaged due to
and during the installation and/or removal of Company's equipment and/or displays, the
Company shall bear the cost of required repairs. Prior to making any repairs, the
Company shall discuss with the Civic Centers Manager whether the City wishes to make
the repairs with its own personnel and charge the Company for such service. All work
performed by the Company must be inspected and approved by the Civic Center Manager
or his/her representative.
8.04 All repairs done by the Company or on its behalf shall be of first class
quality in both materials and workmanship.
8.05 Employees of Company shall have access to the Coliseum to install,
maintain and show advertising space to potential advertisers. Such access shall be
coordinated with the Civic Center Manager or his/her designated representative. Such
access shall not reasonably be withheld, however, employees shall refrain from
performing said activities during events unless prior approval is obtained from the Civic
Center Manager or his/her designated representative.
9. Licenses, Permits, Regulations and Taxes.
9.01 Each party will obtain and maintain in effect at its sole expense all licenses
or permits that are required for that party's performance of this Agreement and will
comply with all applicable federal, state, and local laws.
9.02 Company shall pay any and all taxes, levies and assessments imposed by
any taxing authority on any portion of the advertising rights granted herein.
10. Insurance and Indemnification.
10.01 Company and its advertisers shall indemnify and hold harmless the City
and City's officers, agents, and employees from any and all expenses, costs, and liability
from claims, causes of action, or judgments for libel, slander, copyright infringement,
plagiarism, patent infringement, misrepresentation of rights or claims arising from the
character, content, subject matter or display of any Advertising Copy; and for injury or
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death of a person or damage to property that arises directly or indirectly from the
negligent or intentional acts or omissions of Advertisers and its officers, agents,
employees, or subcontractors in the performance of this Agreement.
10.02 Company agrees to maintain comprehensive public liability and property
damage insurance in an amount of not less than ONE MILLION DOLLARS ($1,000,000)
combined single limit during the term of this Agreement and any renewal thereof. Such
insurance policies must name the City of Lubbock, its officers and employees as
additional insureds to the full extent of Company's insurance coverage but in no event
less than the required minimum coverage limit amount.
10.03 Company agrees that all insurance policies shall contain a severability of
interest or cross liability provision endorsement which shall read in substance as follows:
In the event of one of the insured incurring liability to any other of the
insured, this policy shall cover the insured against whom claim is or may
be made in the same manner as if separate policies had been issued to each
insured. Nothing contained herein shall operate to increase the limits of
liability.
10.04 Company agrees that all insurance policies shall provide that they will not
be altered or canceled without thirty (30) days advance written notice to the Civic Centers
Manager. Such insurance must provide that it will be considered primary insurance as
respects any other valid and collectible insurance, or self-insured retention, or deductible
the City may possess. Any other insurance or self-insured retention of the City shall be
considered excess insurance only.
10.05 The City shall have the right to change the insurance coverage and the
insurance limits required of the Company, without any adjustment of the payment paid by
Company or any cost to the City, if such changes are reasonably recommended by the
City's insurers or imposed on the City by law or otherwise.
10.06 Company shall obtain all insurance required under this Agreement from an
insurance company or companies licensed to be business in the State of Texas. The
insurance company or companies must be acceptable to the Civic Centers Manager;
approval may be denied based on a company's Best resting or other indication of
financial inadequacy.
10.07 Company shall provide to the Civic Center Manager such evidence of
compliance with the City's insurance requirements as he/she may from time to time
request. At a minimum, the Company shall provide, at the commencement of this
Agreement a certificate of insurance. All such certificates shall be completed to show
compliance with Company's obligations hereunder, specifically as to the indemnification
and notice provisions. The Civic Center Manager may also require copies of the
declaration page, insurance policy, endorsements and exceptions thereto.
z
10.08 Failure by the Company to maintain required insurance coverage is
considered in violation of this Agreement and this Agreement may be terminated by the
Civic Centers Manager.
11. Termination and Default.
11.01 Without waiving any other right of action available to the City or Civic
Centers Manager in the event of default in payment of any and all payments or charges
hereunder, in the event that Company is delinquent for a period of fifteen (15) days or
more in paying to the City any sums due pursuant to this Agreement, the Company shall
pay the City interest thereon at the maximum rate allowable by law per annum from the
date such sums were due until paid. Such interest shall not accrue with respect to
disputed items being contested in good faith by Company.
11.02 The acceptance of payments or fees by the Civic Centers Manager for any
period or periods after a default of any of the terms, covenants, or conditions herein
contained and to be performed, kept or observed by Company shall not be deemed a
waiver of any rights on the part of the Civic Centers Manager to cancel this Agreement
for failure by Company to so perform, keep and observe any of the terms, covenants or
conditions hereof to performed, kept or observed. No waiver by the Civic Centers
Manager of any of the terms, covenants or conditions of this Agreement to be kept,
performed or observed by the Company shall be construed to be or act as a waiver by the
Civic Centers Manager of any subsequent default by the Company.
11.03 Company agrees to pay City for advertising spaced leased according to the
provisions and payment plan herein specified. All payments to be made to City in
accordance with the provisions stated in Section 6.01 of this Agreement. In the case of
default of such payment, the City may, at its option, terminate this contract without
prejudice to any right to compensation and damages for breach thereof and any unpaid
balance shall immediately be recoverable by City from Company as liquidated damages.
In the event of breach by Company, the City is authorized, but not obligated, to cease
providing advertising space to Company for the whole or any part of the term of this
Agreement and upon such terms and conditions as the City may determine.
12. Right of Relocation.
12.01 The Civic Center Manager reserves the right to relocate areas in which the
Company is granted the privilege to conduct its business and place advertising signage
and/or displays. Such relocation demands shall be provided to Company in writing from
the Civic Center Manager within sixty (60) days of such needed action. Subsequent cost
and financial impact of such relocation shall be borne by the Company.
13. Force Majeure.
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13.01 Delay, interruption or diminution of the performance of this Agreement
from any cause beyond the control of either parry hereto, including, without limitation,
power blackout, war, state of national emergency, act of God, strike, civil disorder, work
stoppage, tornado, picketing, damage or concerted action by any employees, shall not
constitute a ground for cancellation of this Agreement by the other party.
14. Dispute.
14.01 Should Company default hereunder, City may elect to cancel this
Agreement and seek all applicable damages in connection therewith or, at its discretion,
City may seek to specifically enforce the performance and obligations of Company for
the remainder of the term of this Agreement on either the Western Professional Hockey
League, Inc., or Mark Adams.
14.02 If any dispute arises under this Agreement necessitating a legal remedy or
if the City is required to specifically enforce this Agreement, then, in all such events, the
City shall be entitled to collect from Company its reasonable attorneys' fees and court
costs incurred in connection therewith.
15. Assignment.
15.01 Company may not assign any of its rights under this Agreement without
the written consent of the City, and no assignment of its rights hereunder shall discharge
Company from any of its obligations or liabilities under the terms of this Agreement.
16. Merger and Amendment.
16.01 The provisions of this Agreement constitute the entire Agreement between
the parties with regard to the subject matter hereof and no prior or contemporaneous
agreement, written or oral, shall affect the terms hereof. No amendment to this
Agreement shall be effective unless reduced to writing and signed by the authorized
representative of each party.
17. Notice.
17.01 Any notice given by either party shall be in writing and delivered either in
person or by certified mail, return receipt requested, addressed to the party and addresses
indicated below:
CITY:
Vicki Key
Civic Centers Manager
Lubbock Memorial Civic Center/Auditorium-Coliseum
1501 6th Street
11
Lubbock, TX 79401
• • UI' I_M,
Mark Adams
General Partner
South Plains Professional Hockey Club, Ltd.
320 South Polk Street, Suite 800
Amarillo, Texas 79101
18. Governing Law.
18.01 The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement, this 10th day
of December .19 98 .
SOUTH PLAINS PROFESSIONAL
WINDY
A ST:
Kaythie arnell, City Secretary
APPROVED AS TO CONTENT:
MARK ADAMS,
GENERAL PARTNER
Tommy GoAzalez, Mkiagin&irector of Civic Services
APPELOVED AS TO FORM:
DoAdd G. Vandiver, First Assistant City Attorney
ddcon/adcon.doc
November 20, 1998
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