HomeMy WebLinkAboutResolution - 4747 - Agreement-Texas Professional Baseball Inc-Fielding A Professional Baseball Team - 02/17/1995Resolution No. 4747
February 17, 1995
Item #4
RESOLUTION
WHEREAS, Section 380.001 of the Local Government Code and Article 835s of
Vernon's Annotated Civil Statutes permits municipalities to establish and provide for the
administration of one or more programs to promote local economic development and to
stimulate business and commercial activity within the municipality; and
WHEREAS, the City Council of the City of Lubbock deems it to be in the best
interest of the citizens of the City of Lubbock to establish a commercial program to bring
professional baseball to Lubbock; and
WHEREAS, the City Council desires to contract with Texas Professional Baseball,
Inc., to provide a Texas -Louisiana League professional baseball team to play in Lubbock;
and
WHEREAS, the City Council by means of a separate interlocal agreement with Texas
Tech University will provide a stadium for professional baseball use by Texas Professional
Baseball, Inc.; NOW THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT the City Council for the City of Lubbock hereby establishes a
commercial economic development program under Section 380.001 of the Local Government
Code and Article 835s, Vernon's Annotated Civil Statutes, to bring professional baseball to
Lubbock.
SECTION 2. 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 an Agreement, attached
herewith, by and between the City of Lubbock and Texas Professional Baseball, Inc., with
regard to fielding a professional baseball team in Lubbock, and any associated documents,
which Agreement 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
ATTEST:
Betty M. Ahnson, ity Secretary
APPRO A TO CONTENT:
Rod E is, birector of Business Development
APPROVED AS TO FORM:
nald G. Vandiver,
First Assistant City Attorney
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February 15, 1995
2
Resolution No. 4747
February 17, 1995
Item #4
AGREEMENT
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This Agreement is hereby made and entered into on this the 17th day of
February , 1995, by and between the CITY OF LUBBOCK, a
Municipal Corporation of the State of Texas, hereinafter called "City", and TEXAS
PROFESSIONAL BASEBALL, INC., a Texas corporation, hereinafter called "T.P.B."
WITNESSETH:
WHEREAS, City desires to locate a professional baseball team in Lubbock,
Texas; and
WHEREAS, T.P.B. has indicated that it desires to place a professional baseball
team in Lubbock, Texas, but acquiring the use of a suitable stadium for team activities is
a necessary consideration in placing a professional team in Lubbock; and
WHEREAS, Texas Tech University, hereinafter called "University", has an
existing baseball stadium on campus which, with modifications, will meet the standards
necessary for professional baseball; and
WHEREAS, the City Council of the City finds that the location of a professional
baseball team is a commercial activity; and
WHEREAS, the University is desirous of leasing its baseball stadium to T.P.B. if
improvements to the stadium are made to such facility; and
WHEREAS, University has authority under section 109.54 of the Education Code
of the State of Texas to lease such stadium to T.P.B.; and
WHEREAS, City is authorized by Section 380.001, Local Government Code of
the State of Texas, to enter into this agreement with T.P.B. to bring professional baseball
to Lubbock as a commercial activity; and
WHEREAS, the existence of professional baseball in the City of Lubbock will
enhance the economy of Lubbock and be an attraction for future economic growth; and
WHEREAS, the City is authorized to establish and provide for the administration
of one or more programs to promote state or local economic development and to
stimulate business and commercial activity in the municipality under Section 380.001;
and
WHEREAS, the governing body may contract with a state agency for the
administration of a program; and
WHEREAS, T.P.B. desires to field a professional baseball team in Lubbock at a
suitable stadium; and
WHEREAS, the University desires to improve its baseball facilities; and
WHEREAS, the City desires to provide partial funding for such improvements as
will be needed to provide for professional baseball for Lubbock as a commercial activity;
and
WHEREAS, the City and the University agree that the City will provide
$350,000.00 to the University to improve its baseball facility pursuant to an interlocal
agreement between the City and the University to be executed on even date with this
agreement; and
WHEREAS, the University will contract with T.P.B. to play professional baseball
at the University's baseball facility by means of a lease agreement between the University
and T.P.B. to be executed on even date with this agreement; and
WHEREAS, T.P.B. shall pay a surcharge of $.50 per ticket sold the City as
consideration for the arrangement of the City of a place to play professional baseball
during the initial lease term and any extensions thereof up to a maximum of fifteen years
as is provided for in the Lease Agreement by and between the University and T.P.B.; and
Agreement -- Texas Professional Baseball, Inc.
Page 2
WHEREAS, each of the three agreements by and between the City, the University
and T.P.B., which shall be a lease agreement between the University and T.P.B., an
interlocal agreement between the University and the City, and this agreement between
T.P.B. and the City, shall be executed on even date and shall each be consideration for
execution of each of the other named agreements;
NOW THEREFORE, the parties hereto do mutually agree as follows:
I.
T.P.B. does hereby agree to lease from the University the baseball stadium and
facilities located upon the campus of University in Lubbock, Lubbock County, Texas,
known as Dan Law Field, which shall hereinafter be referred to as "stadium."
II.
The term of this agreement shall be as is provided for in the lease agreement of
even date herewith executed by and between T.P.B. and the University and such term
shall commence upon execution of said lease agreement from the University to T.P.B.
The City does hereby agree to contract with the University to fund certain
improvements to the University's stadium as are set forth in the interlocal agreement
between the University and the City. It is agreed and understood by all parties hereto that
City funding of such improvements shall not exceed the sum of Three Hundred Fifty
Thousand Dollars ($350,000.00). The improvements shall include increased seating,
restrooms and concession facilities for a total of 5,000 spectators.
IV.
T.P.B. shall provide a surcharge of $.50 per ticket sold shall be paid directly to the
City by T.P.B. each year, said payments to be made October 1 each and every year of the
Agreement -- Texas Professional Baseball, Inc.
Page 3
initial lease term and any subsequent renewals. However, such payments shall not be
required to be made for more than fifteen years. Such payments shall be computed upon
the number of tickets sold by T.P.B. times the number of games. The number of tickets
that may be provided at no cost for promotional activities by T.P.B. shall not exceed 1%
of the total number of tickets sold by T.P.B. during the season.
IV
In the event that T.P.B. does not perform its obligations under this agreement,
then the City shall not be estopped to solicit and contract with another professional
baseball team to make use of said facilities in place of T.P.B.
VI.
This agreement shall be construed in accordance with the laws of the State of
Texas. Venue shall be in Lubbock County.
VII.
T.P.B. hereby agrees to hold the City harmless from any and all lawsuits or claims
of any nature whatsoever that shall arise from the activities of T.P.B. pursuant to this
agreement. In addition, T.P.B. shall provide adequate public liability insurance in an
amount of not less than one million dollars ($1,000,000.00) naming the City as an
additional insured.
VIII.
All notices required by this agreement shall be sent to the parties at the following
addresses:
CITY OF LUBBOCK
P.O. Box 2000
Lubbock, TX 79457
Agreement -- Texas Professional Baseball, Inc.
Page 4
TEXAS PROFESSIONAL BASEBALL, INC.
TEXAS -LOUISIANA LEAGUE
Galleria Tower II, Suite 1650
13455 Noel Road
Dallas, TX 75240
This agreement contains and incorporates the entire agreement of the parties. It
or modified only by an agreement in writing signed by both parties.
David R. Langston
Title: Mayor
Texas Professional Baseball, Inc.:
By:
Title:
CC: Texas Tech University
Office of General Counsel
P.O. Box 42021
Lubbock, TX 79409-2021
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February 14, 1995
Agreement -- Texas Professional Baseball, Inc.
Page 5
Texas -Louisiana League
May 22, 1995
Ms. Betty M. Johnson, City Secretary
City of Lubbock
1625 13th, Room 206
Lubbock, Texas 79457
Dear Betty:
Enclosed herewith please find one (1) fully executed copy of the
Agreement between Texas Professional Baseball, Inc. and the City of Lubbock.
Please let me know if there is anything further required from this office.
Yours very truly,
( "aA� ,
Douglas B. Theodore
President
RECEIVED
MAY 24 1995
CITY SECRETARY
LUBBOCK, TEXAS
Galleria Tower II • 13455 Noel Road • Suite 1650 • Dallas, Texas 75240
214 991-3332 • Fax 214 991-8887
'Pti TECy:
*\
Texas Tech University
`�V ME��
2` z
F!'
Texas Tech University Health Sciences Center
Office of Vice President and General Counsel
'=
Box 4641/Lubbock, Texas 79409-2021/(806) 742-2155
PLEASE NOTE CHANGE: Box 42021, Lubbock, Texas 79409-2021
Fax No. 806/742-2330
April 28, 1995
Mr. John Ross
City Attorney
P.O. Box 2000
Lubbock, Texas 79457-0001
RE: TPB-TTU Agreement
Dear John:
MHl
I`
C,
j� {`RNEY'S OFFICE
Enclosed please find an executed copy of the Agreement between the
University and Texas Professional Baseball, Inc. Please let me know how
the City wants to proceed regarding the payment of funds to the University.
Your rul , j
Xek��
Pat Campbell
PC/da/2265
Enclosure
"An Equal Opportunity/Affirmative Action Institution"
City of Lubbock
P.O. Box 2000
1 625 13th, Room 206
Lubbock, Texas 79457
806-767-2026
FAX: 806-762-1 946
May 12, 1995
Texas Professional Baseball, Inc.
Mr. Doug Theodore
13455 Noel Road, Suite 1650
Dallas, Texas 75240
Dear Mr. Theodore:
Office of
Citv Secretary
Attached are two copies of the agreement between the City of Lubbock and Texas
Professional Baseball, Inc., along with a copy of the resolution authorizing the Mayor to
execute the agreement.
Please sign both copies of the agreement, return one copy to me at the mailing address
indicated above, and retain one copy for your files.
Please call me at (806) 767-2026 if you have any questions.
Sincerely,
v yr
Betty M. Johnson
City Secretary
lbw
Attachment
Resolution No. 4747
February 17, 1995
Item #4
RESOLUTION
WHEREAS, Section 380.001 of the Local Government Code and Article 835s of
Vernon's Annotated Civil Statutes permits municipalities to establish and provide for the
administration of one or more programs to promote local economic development and to
stimulate business and commercial activity within the municipality; and
WHEREAS, the City Council of the City of Lubbock deems it to be in the best
interest of the citizens of the City of Lubbock to establish a commercial program to bring
professional baseball to Lubbock; and
WHEREAS, the City Council desires to contract with Texas Professional Baseball,
Inc., to provide a Texas -Louisiana League professional baseball team to play in Lubbock;
and
WHEREAS, the City Council by means of a separate interlocal agreement with Texas
Tech University will provide a stadium for professional baseball use by Texas Professional
Baseball, Inc.; NOW THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT the City Council for the City of Lubbock hereby establishes a
commercial economic development program under Section 380.001 of the Local Government
Code and Article 835s, Vernon's Annotated Civil Statutes, to bring professional baseball to
Lubbock.
SECTION 2. 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 an Agreement, attached
herewith, by and between the City of Lubbock and Texas Professional Baseball, Inc., with
regard to fielding a professional baseball team in Lubbock, and any associated documents,
which Agreement 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
ATTEST:
Betty M. Ahrison, itity Secretary
APPRO A TO CONTENT:
Rod E is, Director of Business Development
APPROVED AS TO FORM:
nald G. Vandiver,
First Assistant City Attorney
DGV:da
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February 15, 1995
2
Resolution No. 4747
February 17, 1995
Item #4
AGREEMENT
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This Agreement is hereby made and entered into on this the 17th day of
February , 1995, by and between the CITY OF LUBBOCK, a
Municipal Corporation of the State of Texas, hereinafter called "City", and TEXAS
PROFESSIONAL BASEBALL, INC., a Texas corporation, hereinafter called "T.P.B."
WITNESSETH:
WHEREAS, City desires to locate a professional baseball team in Lubbock,
Texas; and
WHEREAS, T.P.B. has indicated that it desires to place a professional baseball
team in Lubbock, Texas, but acquiring the use of a suitable stadium for team activities is
a necessary consideration in placing a professional team in Lubbock; and
WHEREAS, Texas Tech University, hereinafter called "University", has an
existing baseball stadium on campus which, with modifications, will meet the standards
necessary for professional baseball; and
WHEREAS, the City Council of the City finds that the location of a professional
baseball team is a commercial activity; and
WHEREAS, the University is desirous of leasing its baseball stadium to T.P.B. if
improvements to the stadium are made to such facility; and
WHEREAS, University has authority under section 109.54 of the Education Code
of the State of Texas to lease such stadium to T.P.B.; and
WHEREAS, City is authorized by Section 380.001, Local Government Code of
the State of Texas, to enter into this agreement with T.P.B. to bring professional baseball
to Lubbock as a commercial activity; and
WHEREAS, the existence of professional baseball in the City of Lubbock will
enhance the economy of Lubbock and be an attraction for future economic growth; and
WHEREAS, the City is authorized to establish and provide for the administration
of one or more programs to promote state or local economic development and to
stimulate business and commercial activity in the municipality under Section 380.001;
and
WHEREAS, the governing body may contract with a state agency for the
administration of a program; and
WHEREAS, T.P.B. desires to field a professional baseball team in Lubbock at a
suitable stadium; and
WHEREAS, the University desires to improve its baseball facilities; and
WHEREAS, the City desires to provide partial funding for such improvements as
will be needed to provide for professional baseball for Lubbock as a commercial activity;
and
WHEREAS, the City and the University agree that the City will provide
$350,000.00 to the University to improve its baseball facility pursuant to an interlocal
agreement between the City and the University to be executed on even date with this
agreement; and
WHEREAS, the University will contract with T.P.B. to play professional baseball
at the University's baseball facility by means of a lease agreement between the University
and T.P.B. to be executed on even date with this agreement; and
WHEREAS, T.P.B. shall pay a surcharge of $.50 per ticket sold the City as
consideration for the arrangement of the City of a place to play professional baseball
during the initial lease term and any extensions thereof up to a maximum of fifteen years
as is provided for in the Lease Agreement by and between the University and T.P.B.; and
Agreement -- Texas Professional Baseball, Inc.
Page 2
WHEREAS, each of the three agreements by and between the City, the University
and T.P.B., which shall be a lease agreement between the University and T.P.B., an
interlocal agreement between the University and the City, and this agreement between
T.P.B. and the City, shall be executed on even date and shall each be consideration for
execution of each of the other named agreements;
NOW THEREFORE, the parties hereto do mutually agree as follows:
I.
T.P.B. does hereby agree to lease from the University the baseball stadium and
facilities located upon the campus of University in Lubbock, Lubbock County, Texas,
known as Dan Law Field, which shall hereinafter be referred to as "stadium."
II.
The term of this agreement shall be as is provided for in the lease agreement of
even date herewith executed by and between T.P.B. and the University and such term
shall commence upon execution of said lease agreement from the University to T.P.B.
The City does hereby agree to contract with the University to fund certain
improvements to the University's stadium as are set forth in the interlocal agreement
between the University and the City. It is agreed and understood by all parties hereto that
City funding of such improvements shall not exceed the sum of Three Hundred Fifty
Thousand Dollars ($350,000.00). The improvements shall include increased seating,
restrooms and concession facilities for a total of 5,000 spectators.
IV.
T.P.B. shall provide a surcharge of $.50 per ticket sold shall be paid directly to the
City by T.P.B. each year, said payments to be made October 1 each and every year of the
Agreement -- Texas Professional Baseball, Inc.
Page 3
initial lease term and any subsequent renewals. However, such payments shall not be
required to be made for more than fifteen years. Such payments shall be computed upon
the number of tickets sold by T.P.B. times the number of games. The number of tickets
that may be provided at no cost for promotional activities by T.P.B. shall not exceed 1%
of the total number of tickets sold by T.P.B. during the season.
V.
In the event that T.P.B. does not perform its obligations under this agreement,
then the City shall not be estopped to solicit and contract with another professional
baseball team to make use of said facilities in place of T.P.B.
VI.
This agreement shall be construed in accordance with the laws of the State of
Texas. Venue shall be in Lubbock County.
T.P.B. hereby agrees to hold the City harmless from any and all lawsuits or claims
of any nature whatsoever that shall arise from the activities of T.P.B. pursuant to this
agreement. In addition, T.P.B. shall provide adequate public liability insurance in an
amount of not less than one million dollars ($1,000,0000.00) naming the City as an
additional insured.
VIII.
All notices required by this agreement shall be sent to the parties at the following
addresses:
CITY OF LUBBOCK
P.O. Box 2000
Lubbock, TX 79457
Agreement -- Texas Professional Baseball, Inc.
Page 4
TEXAS PROFESSIONAL BASEBALL, INC.
TEXAS -LOUISIANA LEAGUE
Galleria Tower II, Suite 1650
13455 Noel Road
Dallas, TX 75240
This agreement contains and incorporates the entire agreement of the parties. It
amended or modified only by an agreement in writing signed by both parties.
By: David R. Langston V
Title: Mayor
Texas Professional Baseball, Inc.:
Title:
CC: Texas Tech University
Office of General Counsel
P.O. Box 42021
Lubbock, TX 79409-2021
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February 14, 1995
Agreement -- Texas Professional Baseball, Inc.
Page 5
STATE OF TEXAS
COUNTY OF LUBBOCK
LEASE AGREEMENT
A
This Lease Agreement (Agreement) is entered into this ;Z -of April, 1995 between
Texas Tech University, an institution of higher education in the State of Texas (University) and Texas
Professional Baseball, Inc., a Texas corporation with its principle place of business located at Dallas,
Texas (TPB).
Whereas, the City of Lubbock (City) desires to locate a professional baseball team in
Lubbock, Texas and TPB desires to place a professional baseball team in Lubbock, Texas; and
Whereas, University has an existing baseball stadium on its campus which, with modifications,
will meet the standards necessary for professional baseball; and
Whereas, the City, by its action dated February 17, 1995, has agreed to provide $350,000 to
the University for the purpose of modifying the University's baseball stadium, known as Dan Law
Field (Stadium) to facilitate the playing of professional baseball games; and
Whereas, the University is willing to improve and lease its baseball stadium to TPB in order
to accommodate the City and TPB in locating a professional baseball team in Lubbock;
Now therefore, the parties mutually agree that University shall, subject to the terms and
conditions set forth herein, lease the Stadium exclusively to TPB for the purpose of operating a
professional baseball franchise upon the terms and conditions contained herein.
314.VM
I. LEASE
University, conditioned upon receipt of $350,000 from the City, as set out in the Interlocal
Agreement between City and University executed on the day of April, 1995, does hereby
agree to lease to TPB the Stadium and other facilities as outlined herein. Receipt of such payment
from the City of Lubbock is a condition to this Agreement. University and TPB agree that this
Agreement shall lose all force and effect if such payment is not received by University within ten (10)
days of the execution of this Agreement.
11=0:3 V
The term of this agreement shall be for five (5) years, commencing upon execution of this
lease agreement. TPB shall have the option, by giving written notice to the University on or before
February 15, 2000, to extend this agreement for an additional five (5) year period under terms and
conditions to be negotiated between TPB and University. TPB shall have the further option, by
giving written notice to the University on or before February 15, 2005 to extend this agreement for
an additional five (5) year period under terms and conditions to be negotiated between TPB and
University.
III. CONSIDERATION
TPB shall pay to University for the use and occupancy of Stadium, premises and services
enumerated herein the sum of $39,000 per year. Payment is to be made in equal monthly installments
of $13,000, each due and payable on first day of June, July and August of each year of this
Agreement, except that the installment due June 1, 1995 shall be paid upon the execution of this
314.VM 2
Agreement and upon confirmation that funding of improvements to the Stadium by the City has been
secured, as set out in the Interlocal Agreement between the City of Lubbock and -Texas Tech
University executed on the of April, 1995.
IV. TWES OF OCCUPANCY
It is specifically understood and agreed that TPB shall have exclusive right of access and use
to the Stadium as outlined below, unless such periods conflict with University's baseball team or for
University regular or post -season tournament play at the Stadium, home games or practices.
University shall have primary use and occupancy of the Stadium at all times not specifically
designated herein to TPB.
It is specifically understood and agreed that TPB shall have the right of occupancy of Stadium
to play professional baseball games from the next day following University's varsity baseball team's
final regular season or post -season playoff game, whichever is later, to September 15, both dates
inclusive, during each year of the term of this agreement, said occupancy to include the entire stadium
structure, restrooms, press box, storage spaces, dressing areas, concession facilities and equipment,
ticket selling and ticket taking facilities, grounds, playing field, bases, outfield fences, and parking
areas as described herein, except that the office of the University's baseball coach and all skybox
suites shall be excluded unless leased from University by TPB by separate agreement.
TPB shall have the right to access stadium for the purpose of conducting baseball practices
and other TPB events as specifically agreed to between University and TPB.
This Agreement contemplates that 50-55 home games will be played at the Stadium each year.
sia.VM 3
V. REGULAR AND POST -SEASON GAMES AND TOURNAMENTS
Should a circumstance develop such that rules of the Southwest Athletic Conference, Big 12
Athletic Conference, or the National Collegiate Athletic Association require the playing of regular
season or post -season home games by University's varsity baseball team on or after the first day of
TPB's period of occupancy of Stadium hereunder of any year of this Agreement, if University notifies
TPB within 48 hours as such a circumstance had developed, TPB agrees that University's varsity
baseball team shall play such baseball games in Stadium as are required by said rules according to a
schedule submitted by University, and all parties agree that no other provision of this Agreement
including but not limited to provisions related to TPB's exclusive right to the sale of advertising,
concessions, or souvenirs at Stadium during its period of occupancy shall be affected or changed in
any way by permitting University's varsity baseball team to play such games at Stadium except that
University shall be entitled to all ticket revenue of such games, shall have the bxclusive right to sell
concessions and souvenirs and to charge for paridng at Stadium and shall, with respect to such games,
be responsible for providing the normal and usual services it provides for varsity baseball games.
University agrees that if its applies for designation of Stadium as a site of a regularly
scheduled Southwest Athletic Conference, Big 12 Athletic Conference, or National Collegiate
Athletic Association post -season baseball tournament, it will notify TPB within 48 hours of deciding
to make such application; and if University receives designation of Stadium as the site of such event,
it will notify TPB within 48 hours of receiving said designation. TPB agrees that in such event
University shall have the use of Stadium to conduct such games as may be necessary for any such
tournament according to a schedule submitted by University; and all parties agree that no other
provision of this Agreement, including but not limited to provisions related to TPB's exclusive right
314.VM 4
to the sale of advertising, concessions, or souvenirs at Stadium during its period of occupancy shall
be affected or changed in any way by permitting University to host such tournament at Stadium,
except that University shall be entitled to all ticket revenue from such games, shall have the exclusive
right to sell concessions and souvenirs and to charge for parking at stadium and shall, with respect
to such games, be responsible for providing the normal and customary services University provides
at its varsity baseball games.
VI. SUMN ER CAMPS
It is further understood that University's baseball coaching staff conducts a summer baseball
camp in Stadium for which they shall have access to Stadium during the daytime on certain days
according to a schedule to be agreed upon by the parties. TPB specifically agrees that the conduct
of a baseball camp or the providing of baseball instructions seminars or lessons at Stadium is the
exclusive right of the University and TPB agrees that it will not conduct any such baseball camp or
baseball instructional seminars or lessons at Stadium without the explicit approval the University's
Athletic Director.
VII. IMPROVEMENTS
This Agreement shall be legally binding upon University only if City pays $350,000 to
University for improvements to Stadium. This Agreement shall be legally binding upon TPB only if
contracts are awarded to construct the improvements to Stadium as set forth herein by University
or other third party or institution, or any combination thereof on or before the dates specified in this
section. If they are not, or if it is manifestly clear that the contracts cannot be awarded by the dates
314.VM
set forth herein, TPB shall have the option to continue this Agreement in force without said
improvements, or to cancel the Agreement by giving written notice to University of such time prior
to May 1, 1995, that it becomes clear that the contracts for the construction of said improvements
cannot be awarded.
University agrees, upon the making of this Agreement, to undertake steps for construction
for the improvements listed herein according to University policies and procedures and State law.
It is specifically agreed that University and TPB shall make diligent efforts to arrive at a mutually
agreeable schedule for.the completion of the improvements listed below. University agrees to use
its best efforts to diligently pursue completion or substantial completion of said construction
schedules. However, due to the uncertainties of bidding and construction schedules, weather
conditions and other contingencies associated with construction projects which are beyond
University's control, University does not warrant that said improvements will be completed or
substantially completed by the mutually agreed upon construction schedule. -,
The improvements to be made are as follows:
a) An increase in seating capacity of Stadium to a minimum total of 5,000 seats, layout
and type of seating to be determined by University (the contract for construction of
the additional seats is to be awarded by July 15, 1995). It is understood that
University shall make diligent efforts to provide temporary seating for TPB games
until the above -referenced improvements are completed.
b) Contracts for construction of the following improvements shall be awarded on or
before August 15, 1995, subject to University's Intercollegiate Athletics Department
acquiring adequate funding:
314.VM 6
1) Construction of additional men and women restroom facilities; which together
with existing restroom facilities provide restroom facilities to serve public
events attended by 5,000 persons; and
2) Construction of additional concession facilities, including concession
equipment, which together with the existing concession facilities provide
concession facilities to serve public events attended by 5,000 persons.
TPB may install, at its own expense, any additional temporary concession facilities which it
may deem necessary for its operation. Such installation shall require the prior written approval of
University.
TPB may construct additional permanent concession facilities beyond those required above.
Such construction shall require the written prior approval of University. The expense of such
additional facilities may, if University elects to do so, be divided equally betwecn TPB and University,
unless University determines that such additional facilities are not necessary to its operation, in which
case the full expense shall be borne exclusively by TPB. All such additional permanent concession
facilities constructed shall become the property of University; any temporary concession facilities shall
remain the property of TPB. Any such temporary concession facilities shall be removed by TPB at
TPB's expense within fifteen (15) days of the last TPB game of each year of this Agreement.
VIII. EXCLUSIVE RIGHTS OF TPB
TPB shall have the exclusive right to sell, dispense, vend, market or otherwise distribute to
the public all food and drink concession items for all TPB events taking place at Stadium during the
314NM 7
period of its occupancy hereunder and shall have the right to prohibit the bringing of any food or
beverage into Stadium or on to grounds of Stadium by any person other than TPB or its contractors.
Neither TPB, nor any subcontractor or agent of TPB, shall dispense, vend, or otherwise distribute
tobacco products, beer, wine, liquor, or any other alcoholic beverage within leased premises.
However, it is expressly understood that all concession rights granted herein to TPB shall be subject
to any and all existing and future contractual commitments of University to third parties, it being
agreed that University will not enter into future contracts which alter TPB, Inc.'s rights to sell
concessions during TPB events under this agreement.
TPB shall have the exclusive right to sell, dispense, vend, market or otherwise distribute any
souvenirs, programs, clothing, printed matter, photographs or other items for all TPB events taking
place at Stadium during the period of its occupancy hereunder, subject to any existing or firture
contractual commitments of University, it being agreed that University will not enter into future
contracts which alter TPB, Inc.'s rights to sell such items during TPB events:under this agreement.
It is expressly agreed that TPB may not sell, dispense, vend, market or otherwise distribute any item
which infringes upon any trademark or servicemark owned or held by Texas Tech University or its
affiliated support organizations.
TPB shall have the exclusive right to sell advertising signs to be affixed to Stadium premises
throughout its period of occupancy of each year of this Agreement. All signs shall face the interior
of Stadium. TPB shall have the exclusive right to sell advertising signs to be affixed to the outfield
fence throughout its period of occupancy of each year of this Agreement; and shall have the option
to constrict, at TPB's sole expense, a second level of fence equal in appearance to the existing fence
for the sale of advertising signs to be affixed thereto. No advertising shall be affixed to the premises
314MM 8
which is fraudulent, illegal or which a person of ordinary sensibilities would find distasteful. No
advertising shall be affixed to the premises which advertises tobacco, beer, wine, liquor or any
alcoholic beverage except that advertising of non-alcoholic beer will be permitted. All signs shall
require approval of University as to their content and location in Stadium prior to placement. TPB
shall be responsible for any repairs to Stadium resulting from any modifications made by TPB to
accommodate such signs. TPB shall remove all such signs from premises within fifteen (15) days of
the date of the final game played in Stadium by TPB during each year of this Agreement, and shall
make all repairs necessary to place the premises into its pre-existing condition within the same fifteen
(15) day period.
IX. UNIVERSITY RESPONSIBILITIES TO TPB
University shall provide as part of the terms of this Agreement and for the consideration
recited above the following:
ME
a) Maintenance repair of Stadium structure, Stadium facilities and grounds, including
maintenance and care of the playing field in its present condition, and, to the extent
possible, emergency response by University to electrical and plumbing system failures
which affect the ability of TPB to begin or complete a game;
b) All domestic water and sewer service and all electric and gas utilities costs;
•
c) All normal and customary custodial services and cleaning of Stadium and all Stadium
facilities, including dressing rooms, offices, restrooms, concession areas, and grounds
after each baseball game or public event held in conjunction with a TPB baseball
game;
314NM 9
d) Access to and use of University's athletic training facilities which are routinely located
at Stadium for use by its baseball team, including batting tunnels and weight
equipment. Such use agreed to and to be coordinated between University's Athletic
Director and TPB;
e) Permission to position one or more signs on the day before TPB game days and the
day of TPB games at prominent traffic exposed locations on University premises to
indicate that a TPB event or professional baseball game will take place in Stadium.
TPB shall obtain prior approval from University for such signs as to content and
location;
f) Parking places, beginning from those parking areas nearest stadium through each
adjacent parking area as described in Exhibit A attached hereto which are located on
University property which is expressly agreed that TPB's use of University's parking
facilities shall not interfere with or encroach upon parking privileges of University
students, faculty or staff. It is acknowledged that parking areas adjacent to Jones
Stadium on its west side are located on City of Lubbock property and TPB shall deal
directly with City to secure authority to utilize such parking for its events at Stadium.
It is expressly agreed between University and TPB that University shall only make
available to TPB the University parking spaces specifically identified in Exhibit A
attached herein. TPB shall have the sole duty and expense of obtaining any additional
parking spaces it deems necessary for its operations. The specific hours of TPB's
314NM 10
occupancy of University's parking facilities shall commence two hours prior to the
scheduled game and terminate at the conclusion of the game.
• MM
g) Space on grounds of Stadium for a permanent or temporary building to house the
offices for TPB and access for the said building to the utilities, water, and sewer lines
facilities serving stadium and buildings on the premises of Stadium. Construction or
installation of such building and all utility connections shall be subject to prior
University approval and at the sole expense of TPB. The location and design of any
building shall be subject to the prior approval of University.
X. TPB OBLIGATIONS TO UNIVERSITY
In addition to those terms set out elsewhere in this Agreement, TPB shall provide as part of
the terms of this agreement the following:
m
a) Qualified security personnel during TPB games or events at Stadium in sufficient
number to comply with local ordinances or regulations pertaining to public events and
to protect the premises from damage, to protect persons in attendance and to satisfy
the carrier of liability insurance insuring TPB and University.
b) All custodial services and cleaning of Stadium and Stadium facilities, including
dressing rooms, offices, restrooms, concession areas, and grounds after each baseball
practice or other TPB event not specifically associated with or arising from a TPB
baseball game including, but not limited to fireworks displays, media events,
receptions, fan appreciation days, or other non -game events.
314NM I 1
c) Qualified traffic control personnel as necessary beginning two hours prior to TPB
games and for one hour after said games at Stadium in sufficient number to direct
traffic through University grounds to appropriate City parking spaces and to safely
direct traffic through and out of University after TPB games.
d) Any and all telecommunications lines and equipment necessary to conduct
professional baseball games including, but not limited to telephonic lines, fax lines, on -
field and dugout communications lines to the press box and computer modem lines.
e) Personnel to operate the Stadium scoreboard during TPB games, such personnel to
be approved by University.
m
1) All personnel necessary for game day operations for a professional baseball game
franchise including, but not limited to, media support, statisticians, scorekeepers and
announcers.
XI. INSURANCE
TPB agrees to procure public liability insurance having limits not less than $1,000,000 per
person nor less than $1,000,000 for any accident and $100,000 property damage coverage. A
certificate of insurance showing such insurance is enforced and naming University as an additional
insured, shall be delivered to University prior to May 1 of each year of occupancy hereunder. TPB
shall submit any such insurance policy to University's Office of Contracting and Risk Management
314 -VM 12
for approval both as to the policy and carrier. All deductibles shall be paid by TPB. The said policy
shall contain a provision requiring the insurance company to furnish University with written
notification of any cancellation or non -renewal within thirty (30) days prior to the cancellation date
or inception date, whichever the case may be. It is further provided that the minimum insurance
coverage provided herein in no way limits the obligation of TPB to indemnify and save harmless
University as set forth herein.
TPB shall provide for its employees a Workers' Compensation Policy with statutory limits
and an employer's liability policy that provides $100,000 per accident for bodily injury by accident,
a $500,000 policy limit for bodily injury by disease, and $100,000 for each employee for bodily injury
by disease. Certificates of said policy shall be furnished to University and shall be submitted to
University's Office of Contracting and Risk Management for approval as to both policy and carrier.
TPB shall keep its fixtures, merchandise and equipment insured against loss or damage by fire, with
extended coverage endorsements. TPB shall provide a copy of any such:insurance policy to
University. TPB assumes all risk and damage to its own property arising from any cause whatsoever,
including without limitation, loss by theft or otherwise.
XII. INDEMNITY
TPB shall conform to all laws and University rules and regulations affecting the lease
premises, and shall keep and save University, its successors and assigns, harmless from any penalty,
damage or charge imposed or incurred for any violations for said ordinances or laws, whether
occasion by the neglect or otherwise of TPB, or its agent, tenant, guest, invitees or contractor then
upon or using the leased premises. As used herein, "laws" includes all University policies and
procedures, municipal ordinances, laws of the State of Texas, any subdivision of the State of Texas,
31a.VM 13
or of the United States government.
TPB shall protect, defend, indemnify, and save harmless University; its officers, regents and
employees from and against any and all claims, demands, losses, suits, liabilities, or expenses,
including court costs and attorneys fees, if any, or property damage, or for injury to or death of
persons occurring on the premises described herein or on University premises in connection with the
use or occupancy of the premises by TPB, or occasion by any activities engaged in by TPB on these
premises or activity conducted by TPB in connection with these premises, howsoever caused,
whether by the negligence of TPB or its subcontractors, its agents or employees, invitees, licensees
or trespassers, whether by defects or unfitness of the premises or any equipment, building or structure
thereon, wheresoever occurring, even though the said negligence, defects, or unfitness may have been
caused, occasioned or contributed to, actually or allegedly, by the sole, concurrent, or comparative
negligence of University or its officers, regents or employees. TPB agrees that such indemnity will
be supported by, but not limited to liability insurance, under which the insurer has no right of
subrogation against the University as indemnity -lessor. TPB shall be responsible for and shall
indemnify University for any damage to fixtures, merchandise, equipment, fences, buildings, stands,
seats or other realty or personalty on the leased premises which shall be damaged or destroyed during
a TPB game or event by TPB's negligence or any act or circumstances within TPB's control
including, but not limited to actions by TPB's agents, employees, tenants, guests, invitees or
contractors.
XIII. DAMAGE TO STADIUM
University, as an agency of the State of Texas is self-insured.
In the event the premises should be damaged by fire, windstorm, or other casualty, University
314_VM 14
shall, to the extent possible, and depending upon available funds, at its own expense, excepting as
relating to modification to Stadium made by TPB, forthwith proceed to repair such damage and to
restore the leased premises, provided that University shall not be responsible for any delay which may
result from any cause beyond its reasonable control, and an appropriate diminution of cessation of
rent shall be made until such restoration shall have been completed. University shall, at its sole
discretion, prosecute such work with all reasonable speed. Should it be impossible to restore the
premises to substantially the same condition as before the fire or other casualty within a reasonable
period of time for TPB's use, other mutually acceptable arrangements for the use of another stadium
may be made, or TPB may cancel the Agreement upon thirty (30) days written notice to University.
Notwithstanding the foregoing provisions hereof in the event that the premises shall be so
severely damaged by fire or other casualty that the operation of TDB's business is rendered wholly
impractical, TPB shall have the right to cancel this Agreement forthwith by giving written notice to
University. If TPB does not notify University within sixty (60) days after the,date of such damages
that it elects to cancel this Agreement, TPB shall be deemed to have elected not to cancel this
Agreement.
In the event the leased premises is totally damaged or totally destroyed by fire, windstorm,
or other casualty, this lease shall, at the option of University or TPB terminate upon University or
TPB giving written notice to the other of its intention to exercise such option to terminate and the
rent shall be due and payable only to the date of such destruction. The terms "totally damaged" and
"totally destroyed" as used in this paragraph shall have reference to damage or destruction of such
a character as cannot reasonably be expected to be repaired or restored within thirty (30) days from
the time that such repair or restoration work would be commenced and which results in a loss of more
than 50% of the value of the premises.
314NM 15
XIV. NON-DISCRRvffMATION
TPB, as part of the consideration hereof; does hereby covenant and agree as follows:
a) That no person on the grounds of race, creed, color, sex, national origin or disability
shall be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities;
b) That in the construction of any improvements on, over or under the Stadium and in
the furnishing of services therein and in employment practices conducted thereon, no
person on the ground of race, creed, color, sex, national origin or disability shall be
excluded from participation in, denied the benefits of or otherwise subjected to
discrimination; and
c) That TPB shall use the premises in compliance with all applicable requirements of
University policies and procedures, Federal, State or local law related to non-
discrimination on the basis of race, creed, color, sex, national origin or disability.
XV. EFFECT OF BREACH
If either party shall breach arty of its obligations hereunder and fail to correct the breach within
thirty (30) days after written notice thereof, the other party may cancel this Agreement. In the event
of any legal action between University and TPB to enforce any of the provisions and/or legal rights
hereunder, the unsuccessful party in such actions shall pay to the other party all costs and expenses,
as allowed by law.
si+.vM 16
XVI. FORCE MAJEURE
This Agreement is subject to force majeure. If either party is prohibited to performing its
obligations under this Agreement or fielding a professional baseball team due to force majeure, it shall
be relieved of its obligations to perform under this Agreement to the extent it is so prohibited.
Examples of force majeure shall include but not be limited to destruction of the Stadium by natural
disaster, loss of the players for a team or teams operated by TPB due to accident which includes the
players of the team or teams employed by or working under player development contracts with TPB.
XVII. SALE OF LEASED PREMISES
In the event of a sale and conveyance by University of its title or interest in and to the leased
premises, including the reversionary interest, if any, this Agreement shall not terminate but shall
continue in full force and effect and such sale and conveyance shall be made expressly subject to this
agreement and subject to the express agreement of any such purchaser or -grantee of the leased
premises to assume and bear all of the obligations imposed hereunder upon University; and, in such
event, University shall be completely relieved and discharged from its performance of any and all
covenants and agreements herein agreed to be performed.
XVIII. CONDEMNATION
If the whole or any part of leased premises shall be taken by any public authority under the
power of eminent domain, then the term of this Lease shall cease on the part so taken from the date
the possession of that part shall be required for any public purpose, and the rent shall be paid only up
to that date. If a portion of the leased premises is taken so that the remaining portion will not
reasonably be adequate for the operation of TPB's business after University completes such repairs
314.VM 17
or alteration, TPB shall have the right to elect either to terminate this Agreement within sixty (60)
days after the award of eminent domain becomes final upon written notice to University or to remain
in possession of the remainder of the leased premises not so taken, in which latter events there shall
be a proportionate adjustment of rent based upon the portion of the leased premises so taken. In the
event TPB elects to remain in possession, all of the terms of this lease shall continue in effect and
University may at its option, and its own cost and expense make all necessary repairs or alterations
to the premises. TPB shall participate proportionately in any final award in eminemt domain
proceeding to the extent any improvements, real or personal, owned by TPB or part of the leased
premises so taken for which an award is made.
XIX. TERMINATION OF CONTRACT BY UNIVERSITY
Univers ity may terminate this Agreement upon the occurrence of any one more of the
following events:
IM
a) The making by TPB of an assignment for the benefit of its creditors;
b) The levying on or against the property of TPB of a writ of execution or attachment
which is not released or discharged within thirty (30) days thereafter;
c) In the event proceedings are instituted in a court of competent jurisdiction for the
reorganization, liquidation, or involuntary dissolution of TPB or for its adjudication
as a bankrupt or insolvent, or for the appointment of a receiver of the property of
TPB, and proceedings are not dismissed, any receiver, trustee, or liquidator is
appointed therein is not discharged within thirty (30) days after the institution of said
314NM 18
proceedings;
d) The doing or permitting to be done by TPB of any act which creates a mechanic's lien
or claim therefore against the land or building of which the lease premises are a part
which is not released or otherwise provided for by indemnification satisfactory to
University within thirty (30) days thereafter;
e) The failure of TPB to pay any installment of rent, or other charge or money obligation
herein required to be paid by TPB, within ten (10) days such performance is required
by the terms herein;
f) The violation by TPB of any term or condition of this agreement.
In the event of any breach hereunder by TPB, University may immediately or at any time
thereafter without notice, cure such breach at the expense of TPB. If University at any time, by
reason of such breach, is compelled or elects to pay, any sum of money, or to do any act which will
require the payment of any sum of money, or is compelled to incur any expense, including attorneys
fees, in instituting or prosecuting any action or proceeding to enforce University's rights hereunder,
the sum or sums so paid by University, with interest thereon at the rate of 18% per annum from the
date of payment thereof; shall be deemed to be additional rent hereunder and shall be due from TPB
to University on the first day of the month following the payment of such respective sums or expense.
All rights and remedies of University herein enumerated shall be cumulative and none shall
exclude any other right or remedy allowed by law, and said rights and remedies may be exercised and
enforced concurrently and whenever and as often as occasion therefore arises. Should University be
in default under the terms of this Agreement, University shall have reasonable and adequate time in
314 -VM 19
which to cure the same after written notice to University by TPB. No waiver by University, its
successors or assigns, of any breach of any of the obligations of TPB hereunder, or of any other
person holding hereunder, shall be construed to be a waiver of any succeeding breach of the same
obligation.
XX. PAYMENT OF TAXES
In the event any lawful taxing jurisdiction should assess ad valorem taxes or unrelated business
income taxes against University as a result of the lease of the Stadium or any other University
property to TPB, TPB agrees that it shall bear and timely discharge all such taxes assessed against
University if, as and when they become due and payable; providing, however, that in such event, TPB
shall have the option, after paying said taxes, to terminate this Agreement upon giving written notice
to University within sixty (60) days of the final payment of all taxes assessed against University.
All personal property taxes lawfully assessed or levied against the machinery, equipment,
furniture, fixtures, signs and inventory of TPB shall be paid by TPB. University agrees to send to
TPB the original personal property tax statements, if any, issued by the taxing jurisdictions, or copies
thereof; within thirty (30) days prior to the date the taxes would become delinquent. In the event any
personal property taxes should become delinquent during the term of this agreement, TPB shall pay
said delinquent taxes plus any penalty and interest charges assessed for such delinquency unless such
delinquency is caused by University's failure to perform its obligations hereunder. In no event shall
TPB be responsible for any taxes or delinquencies assessed or charged against University's personal
property.
314.VM 20
XXI. ASSIGNMENT OF AGREEMENT
This Agreement, or any interest therein, is not assignable without the prior written consent
of University. Any successor or assignee shall be bound by all of the obligations an*d provisions as
stated in this Agreement.
XXH. VENUE
This Agreement shall be governed exclusively by the laws of the State of Texas, and venue
for any litigation related to this Agreement shall be in Lubbock County, Texas.
XXIII. ENTIRETIES CLAUSE
This Agreement contains and incorporates the entire agreement of the parties. It may be
amended or modified only by an agreement in writing signed by both parties.
i
TEXAS PROFESSIONAL BASEBALL, INC.
TEXAS TECH UNIVERSITY
—J,
Title: Vice President and General Counsel
Date: April 27, 1995
314NM 21
ident
C-1
PARKING LOT
Office of
Citi- Secretary
City of Lubbock
P.O. Box 2000
1 625 13th, Room 206
Lubbock. Texas 79457
606-767-2026
FAX: 606-762-1 946
May 30, 1995
Mr. Douglas B. Theodore
President
Texas - Louisiana Professional Baseball League
Galleria Tower II
13455 Noel Road, Suite 1650
Dallas, Texas 75240
Dear Mr. Theodore:
Thank you for your prompt response to my request for execution of the agreement
between the City of Lubbock and Texas Professional Baseball, Inc.
Upon receipt of the executed document, I noticed that there was a typographical error on
page 4 of the agreement and had our Legal Department run replacement pages. Attached
is the replacement page for your copy.
Please let me know if you have any questions.
Sincerely, i
Betty M. Jo son
City Secretary
lbw
Attachment
initial lease term and any subsequent renewals. However. such payments shall not be
required to be made for more than fifteen years. Such payments shall be computed upon
the number of tickets sold by T.P.B. times the number of games. The number of tickets
that may be provided at no cost for promotional activities by T.P.B. shall not exceed 1%
of the total number of tickets sold by T.P.B. during the season.
a
In the event that T.P.B. does not perform its obligations under this agreement,
then the City shall not be estopped to solicit and contract with another professional
baseball team to make use of said facilities in place of T.P.B.
VI.
This agreement shall be construed in accordance with the laws of the State of
Texas. Venue shall be in Lubbock County.
T.P.B. hereby agrees to hold the City harmless from any and all lawsuits or claims
of any nature whatsoever that shall arise from the activities of T.P.B. pursuant to this
agreement. In addition, T.P.B. shall provide adequate public liability insurance in an
amount of not less than one million dollars ($1.000,000.00) naming the City as an
additional insured.
VIII.
All notices required by this agreement shall be sent to the parties at the following
addresses:
CITY OF LUBBOCK
P.O. Box 2000
Lubbock, TX 79457
Agreement -- Texas Professional Baseball, Inc.
Page 4