Contract - Round Rock Baseball Inc. - 12/15/2022 AGREEMENT
REGARDING IMPROVEMENTS TO
THE DELL DIAMOND / UNITED HERITAGE CENTER
Dated as of , 2022
between
CITY OF ROUND ROCK, TEXAS
as the City
and
ROUND ROCK BASEBALL, INC.
as RRB
Agreement Regarding Improvements to the Dell Diamond.Word-United Heritage Center,Clean Final,11.15.22 4883-0247-
7882 v.4
TABLE OF CONTENTS
Table of Contents
ARTICLE1......................................................................................................................................................1
GENERALTERMS.......................................................................................................................................1
Section 1.1 Definitions and Usage ......................................................................................................1
ARTICLE2 ......................................................................................................................................................2
REPRESENTATIVES OF THE PARTIES.........................................................................................................2
Section 2.1 The City Representatives..................................................................................................2
Section2.2 RRB Representative..........................................................................................................2
ARTICLE3 ......................................................................................................................................................2
TERM.........................................................................................................................................................2
Section3.1 Term..................................................................................................................................2
ARTICLE4......................................................................................................................................................2
PROJECTDESIGN.......................................................................................................................................2
Section4.1 Design ...............................................................................................................................2
ARTICLE5 ......................................................................................................................................................2
CONDITIONS.............................................................................................................................................2
Section 5.1 Conditions to City's Obligations to Perform....................................................................2
Section 5.2 Termination for Failure of Conditions.............................................................................2
ARTICLE6......................................................................................................................................................3
PROJECTCOSTS.........................................................................................................................................3
Section6.1 Project Costs.....................................................................................................................3
Section 6.2 Project Design Costs.........................................................................................................3
Section 6.3 City's Contribution to Project Costs.................................................................................3
Section 6.4 RRB's Contribution to Project Costs ................................................................................3
ARTICLE7 ......................................................................................................................................................3
SCOPE OF DEVELOPMENT........................................................................................................................3
Section7.1................................................................................................................................................3
Section 7.2 Completion Dates.............................................................................................................4
Section 7.3 Record Drawings and Other Documents.........................................................................4
Section 7.4 Contract Requirements and Warranty Claims.................................................................4
Section 7.5 Access to the Project........................................................................................................4
Section 7.6 Construction Cooperation/Coordination ........................................................................5
Section7.7 Liquidated Damages.........................................................................................................6
ARTICLE8......................................................................................................................................................6
RRBOBLIGATIONS....................................................................................................................................6
Section 8.1 RRB Requested Additions or Modifications....................................................................6
Section8.2 Project Costs.....................................................................................................................6
ARTICLE9 ......................................................................................................................................................7
MAINTENANCEAND REPAIR....................................................................................................................7
ARTICLE10 ....................................................................................................................................................7
APPROVALS AND RELATED MATTERS......................................................................................................7
Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by the City....7
Section 10.2 Items and Matters Subject to RRB's Review and Comment.......................................7
ARTICLE11 ....................................................................................................................................................7
DEFAULTSAND REMEDIES.......................................................................................................................7
Section 11.1 Events of Default..........................................................................................................7
Section11.2 RRB's Remedies............................................................................................................8
Section 11.3 The City's Remedies .....................................................................................................8
Section 11.4 Cumulative Remedies...................................................................................................8
Section 11.5 No Indirect Damages....................................................................................................9
Section 11.6 Declaratory or Injunctive Relief...................................................................................9
ARTICLE12 ....................................................................................................................................................9
ASSIGNMENT............................................................................................................................................9
Section 12.1 Assignments of RRB's Interest.....................................................................................9
Section 12.2 Transfers by the City.....................................................................................................9
ARTICLE13 ....................................................................................................................................................9
DISPUTERESOLUTION..............................................................................................................................9
Section13.1 Dispute Resolution.......................................................................................................9
ARTICLE14 ..................................................................................................................................................10
GENERALPROVISIONS............................................................................................................................10
Section 14.1 Relationship of the Parties.........................................................................................10
Section 14.2 Certificates Regarding Project Documents................................................................10
Section 14.3 Approvals and Consents; Standards for Review.......................................................10
Section 14.4 Incorporation of Appendices and Exhibits ................................................................11
Section 14.5 Interest on Overdue Obligations ...............................................................................11
Section14.6 Definitions ..................................................................................................................11
Section14.7 Survival .......................................................................................................................11
Section14.8 Notices........................................................................................................................12
Section14.9 Severability.................................................................................................................12
Section 14.10 Entire Agreement;Amendment and Waiver.............................................................12
Section 14.11 Table of Contents; Headings......................................................................................12
Section 14.12 Parties in Interest; Limitation on Rights of Others....................................................12
Section 14.13 Method of Payment...................................................................................................13
Section14.14 Counterparts...............................................................................................................13
Section14.15 Governing Law............................................................................................................13
Section 14.16 Court Proceedings......................................................................................................13
Section14.17 Time............................................................................................................................13
Section 14.18 Interpretation and Reliance.......................................................................................13
Section14.19 Attorneys' Fees...........................................................................................................13
Section 14.20 Insurance Proceeds ....................................................................................................14
iii
APPENDICES AND EXHIBITS
APPENDICES:
APPENDIX A Rules as to Usage and Glossary of Defined Terms..................................15
APPENDIX B Address for Notices....................................................................................22
EXHIBITS:
EXHIBIT "A" Description of the Project..........................................................................23
iv
AGREEMENT REGARDING
IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
THIS AGREEMENT REGARDING IMPROVEMENTS TO THE DELL DIAMOND /
UNITED HERITAGE CENTER (this "Agreement") is made and entered into effective as of the
1!5 day of ,2022(the"Effective Date"),by and between the CITY OF ROUND
ROCK, TEXAS, a Texas home rule municipal corporation (the "C ") and ROUND ROCK
BASEBALL,INC., a Texas corporation ("RRB"). The City and RRB collectively are referred to
herein as the "Parties."
RECITALS
A. On January 20, 1999, the City and Ryan Sanders Ryan, Inc. ("RSR") entered into
that one certain Convention Center Complex Lease Agreement whereby the City agreed to lease
to RSR a convention center complex (as amended from time to time,the "Lease"). In accordance
with the terms of the Lease, Ryan Sanders Ryan, Inc. assigned its interest in the Lease to RRB by
instrument dated March 29, 1999. The Convention Center Complex has since been renamed the
Dell Diamond/United Heritage Center("DDUHC").
B. The Parties now desire to provide for certain improvements to the DDUHC as
described in Exhibit"A"attached to this Agreement(hereinafter referred to as the "Project").
C. The City and RRB are executing and entering into this Agreement to set forth
certain agreements of the City and RRB with respect to the Project, including the terms,conditions
and provisions pursuant to which City shall provide for the design,and construction of the Project.
AGREEMENTS
For and in consideration of the respective covenants and agreements of the Parties
herein set forth, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the Parties,the City and RRB do hereby agree as follows:
ARTICLE 1
GENERAL TERMS
Section 1.1 Definitions and Usage. Unless the context shall otherwise require,
capitalized terms used in this Agreement shall have the meanings assigned to them in the Glossary
of Defined Terms attached hereto as Appendix A, which also contains rules as to usage that shall
be applicable herein.
1
ARTICLE 2
REPRESENTATIVES OF THE PARTIES
Section 2.1 The City Representatives.City hereby designates Laurie Hadley and Chad
McDowell to be the City's representatives (the "City Representatives"). Any consent, approval,
decision or determination hereunder by either of the City Representatives shall be binding on City;
provided,however,the City Representatives shall not have any right to modify,amend or terminate
this Agreement.
Section 2.2 RRB Representative.RRB hereby designates Reid Ryan to serve as RRB's
representative (the "RRB Representative"). Any consent, approval, decision or determination
hereunder by the RRB Representative shall be binding on RRB; provided, however, the RRB
Representative shall not have any right to modify, amend or terminate this Agreement.
ARTICLE 3
TERM
Section 3.1 Term. The term of this Agreement shall commence on the Effective Date
and, except as otherwise expressly provided herein, shall expire on the earlier to occur of(a) the
Substantial Completion Date (as defined below) or (b) the day immediately preceding the fifth
anniversary of the Effective Date(such period hereinafter referred to as the "Project Term").
ARTICLE 4
PROJECT DESIGN
Section 4.1 Design. It is anticipated that the City will enter into an Architect's Contract
for the design of the Project Plans. The fees and reimbursable expenses due and payable under the
terms of the Architect's Contract shall be included in Project Costs.
ARTICLE 5
CONDITIONS
Section 5.1 Conditions to City's Obligations to Perform. It shall be a condition
precedent to the performance of the City's obligations under this Agreement that on or before
February 1,2023,an acceptable proposer as set forth in Section 7.1 below shall have been selected.
Section 5.2 Termination for Failure of Conditions. If for any reason the condition set
forth in Section 5.1 of this Agreement has not been fully and timely satisfied,this Agreement shall
terminate at the option of either Party by written notice to the other Party and upon such
termination at the option of either Party by written notice to the other Party and upon such
termination, notwithstanding anything herein contained to the contrary, the Parties shall have no
further rights, obligations or liabilities under this Agreement or otherwise relating to this
Agreement.
2
ARTICLE 6
PROJECT COSTS
Section 6.1 Proiect Costs. "Project Costs" includes all Project Design Costs and all
costs to construct and equip the Project. Project Design Costs are defined in Section 6.2 below and
in Appendix A.
Section 6.2 Proiect Design Costs. The City agrees to pay for the Project Design Costs
that are incurred by the Parties prior to Construction Contract Execution("Project Design Costs').
The Parties agree that the Project Design Costs include, but are not necessarily limited to,the cost
to design the Project.
Section 6.3 City's Contribution to Proiect Costs. The City's sole contribution to all
Project Costs is the sum of$6,000,000(referred to as the"City's Contribution."). RRB agrees and
understands that under no circumstances whatsoever shall the City be expected or required to
contribute any sum of money in excess of said $6,000,000 for Project Costs; it being the
understanding of the Parties that ALL liability for Project Costs in excess of the City's
Contribution, including but not limited to, cost overruns, Project Construction Change Orders,
unforeseen contingencies, additions, modifications, etc. shall be the sole responsibility of RRB.
Notwithstanding the foregoing, RRB will not be responsible for Project Costs resulting from the
default by the City under the Project Construction Contract or any of the other Project Construction
Documents (unless the same is caused by RRB, its agents, contractors, or employees or results
from a failure of the Architect to perform its obligations under the Architect's Contract in timely
and complete manner). Further, it is neither the intent nor desire of the City or RRB to incur costs
or fees under the Project Construction Contract in excess of the Project Contract Sum. The City
and RRB agree to cooperate with one another in taking actions reasonably necessary to minimize
the risks of change orders under the Project Construction Contract. In the event it appears likely
that the Project Contractor will be entitled to change orders under the Project Construction
Contract increasing the contract sum to be paid thereunder above the original contract sum set
forth in such contract,the City and RRB will prepare and submit to the Project Contractor proposed
change orders effecting value engineering as to eliminate,to the maximum extent practicable,such
increases.Notwithstanding anything to the contrary in this Agreement,the obligations set forth in
this Article 6 shall survive the expiration of the Project Term.
Section 6.4 RRB's Contribution to Proiect Costs. RRB agrees to pay for all Project
Costs that exceed the City's Contribution.
ARTICLE 7
SCOPE OF DEVELOPMENT
Section 7.1 Competitive Sealed Proposal. The City anticipates utilizing the
Competitive Sealed Proposal ("CSP") method of project delivery in accordance with Chapter
2269, Subchapter D of the Texas Government Code. The City shall enter into a Project
Construction Contract with the proposer that submits the proposal that offers the best value based
on the published selection criteria and ranking evaluation, for the Project Work for the Project.
The City agrees to allow the RRB representative to participate in developing the selection criteria
3
and in ranking evaluation of the proposals for CSP. All modifications to the Project prior to the
execution of the Project Construction Contract for the Project must be approved by the City and
RRB.
The Project Plans(including detailed plans and specifications)are the responsibility of City
and shall be developed and prepared by the Architect with input from RRB and submitted by City
to RRB for its review and comment. Any changes in the Project Plans shall be subject to the prior
approval of RRB and the City.
Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the City shall
cause Substantial Completion of all of the Project Work for Project to occur on or before April 1,
2025 (such date, as so extended,being the"Deadline for Substantial Completion'). City agrees to
cause the Project Construction Contract to include a schedule for project completion.
Section 7.3 Record Drawings and Other Documents. Upon Substantial Completion
of the Project Work for Project, the City shall furnish to RRB (i) one (1) copy of the marked
drawings that the Project Contractor is obligated to deliver to the City under the Project
Construction Contract,together with all applicable permits,authorizations,and licenses necessary
for RRB to use the same fully for purposes of the operation, maintenance, and occupancy of the
Project, (ii) two (2) copies of the operating and maintenance data binders required to be supplied
by the Project Contractor under the Project Construction Contract,and(iii)certified true copies of
all approvals,permits and certificates, including (if applicable), but not limited to, a certificate of
occupancy or its equivalent,which shall then be required by any Governmental Authority in order
for RRB to use and occupy the Leased Premises in accordance with the Lease.
Section 7.4 Contract Requirements and Warranty Claims.The City shall ensure that
the Project Construction Contract for the Project and all subcontracts for the supply of equipment
or systems to the Project Contractor for the Project shall provide for the assignment of all
warranties, maintenance agreements thereunder to RRB and give RRB the independent right to
enforce the same, and permit RRB to use (but not own) any plans and specifications to which the
City is then entitled pursuant to any such contracts. The City and RRB shall cooperate with each
other in prosecuting any and all warranty and similar claims under any and shall cooperate with
each other in prosecuting any and all warranty and similar claims under any and all contracts or
other agreements with third parties for the design or construction of the Project Work, including,
but not limited to any and all such claims under the Project Construction Contract (each a
"Warran, Claim').All recoveries from any Warranty Claim shall be applied first to the costs and
expenses incurred in effecting such recovery and then to the costs and expenses incurred in order
to repair, restore, or replace any part of the Project to which such Warranty Claim relates.
Section 7.5 Access to the Project. RRB and its agents, contractors sublessees,
licensees, and concessionaires shall have the right of access, for themselves and their authorized
representatives, to the Land and the Project and all portions thereof for the following purposes,
and at normal construction hours throughout the Project Term,provided RRB and all such agents,
contractors, sublessees, licensees, and concessionaires (i) notify the City Representatives in
advance of such proposed entry by any of RRB's subtenants, licensees or concessionaires, (ii) do
not hinder or interfere with the Project Work or the activities of the City's contractors, and (iii)
4
take such reasonable protective precautions or measures as the City or the Project Contractor may
reasonably request, given the stage of the Project Work at the time of such entry and(iv) comply
with the provisions of the Project Construction Contract relating to the City's rights to access:
(a) Conducting inspections for purposes of determining compliance with this
Agreement;
(b) Construction and installation of any Concession Improvements and any
other improvements permitted by the Lease so long as, in either case, RRB does not unreasonably
interfere with the construction of the Project Work by the Project Contractor;
(c) Construction and installation of any interior tenant finish work required
pursuant to Space Leases, and other normal and customary business, and equipping related
facilities for RRB;
(d) Installation of any additional fixtures or equipment; and
(e) Tours of the Land and the Project sponsored by RRB.
Section 7.6 Construction Cooperation/Coordination.The City agrees that at all times
during the Project Work for the Project,the City will do the following:
(a) Conduct the Project Work, and require all of its contractors, subcontractors
and agents to conduct the Project Work, in cooperation with RRB so that (i) RRB will be kept
reasonably apprised of all aspects of the Project Work, (ii) RRB can minimize the risk of any
change orders, and (iii) RRB can coordinate the installation of any improvements, fixtures or
equipment by RRB or any of its sublessees, licensees or concessionaires;
(b) Make a reasonable effort to deliver to RRB a copy of all notices and
correspondence, including, but not limited to, any notice of default, sent or received by the City
under any Project Construction Documents, relating to the Project Work or the Leased Premises,
unless directed otherwise by RRB or any such notice or correspondence received by the City shows
that a copy has been delivered to RRB;
(c) Instruct the Project Contractor and all other contractors and consultants
engaged by the City with respect to the Project Work to provide RRB with a duplicate copy of all
notices,correspondence,reports,drawings or specifications,and other documentation delivered or
received by either of them simultaneously with their delivery to the City,including,but not limited
to, advance notice of weekly progress meetings; and
(d) Allow RRB and its representatives to attend meetings relating to the Project
Work or the Leased Premises, including, but not limited to, weekly progress meetings and design
review meetings.
Each party hereto agrees that all Project Construction Contract(s) will contain a provision stating
that RRB is a third party beneficiary of the agreements with such parties. City agrees to cause the
5
Architect to deliver to RRB a copy of all notices,correspondence,reports,drawings,specifications
and other documentation received by RRB from the Architect.
Section 7.7 Liquidated Damages. The City agrees to include in the Project
Construction Contract a provision whereby the Project Contractor agrees to pay liquidated
damages(i) in the amount of$1,000.00 per day for each day beyond the date established therefor
that the Project Contractor fails to achieve Substantial Completion, and (ii) in the amount of
$20,000.00 for each scheduled home baseball game on or after April 1,2025,which RRB is unable
to utilize the Project due to the failure of the Project Contractor to have achieved Substantial
Completion in accordance with the Project Construction Contract.The City shall diligently in good
faith by appropriate proceedings attempt to collect all liquidated damages from the Project
Contractor to which the City may be entitled under the Project Construction Contract. The City
agrees that all liquidated damages to which the City may be entitled with respect to the events
described in clause(ii)of this Section 7.7 are for the sole and exclusive benefit of and shall be paid
to RRB promptly upon receipt of the same by the City (through offset under the Project
Construction Contract or otherwise), less the amount of attorneys' fees and other reasonable
collection costs actually paid by the City in connection therewith. The City agrees that RRB is a
third party beneficiary of the obligations of the Project Contractor to pay liquidated damages and
hereby conveys and assigns to RRB the non-exclusive right to enforce the obligations of the Project
Contractor to pay the same.
ARTICLE 8
RRB OBLIGATIONS
Section 8.1 RRB Requested Additions or Modifications. In the event that RRB
determines that it desires any additions or modifications to the Project (the "RRB Requested
Modifications"), it shall submit a written request along with plans and specifications for the RRB
Requested Modifications to the City for its approval, which approval shall not be unreasonably
withheld. In the event that the RRB Requested Modification results in an increase in the Project
Cost,such increase shall be the sole responsibility of RRB,and it will be the responsibility of RRB
to pay the cost of the RRB Requested Modifications and to make appropriate arrangements with
the Project Contractor to perform the same.
Section 8.2 Proiect Costs. RRB agrees to pay when due all Project Costs in excess of
the City's Contribution. RRB shall pay such costs within fifteen (15) days after the receipt of a
request from the City. The failure of RRB to pay such costs within thirty(30)days after receipt of
the request shall be a RRB Default.
Section 8.3 Future Improvements. RRB shall contribute an aggregate amount of not
less than$3,000,000.00 over the remaining Term of the Lease toward the following improvements
to the DDUHC,which shall be made from time to time at RRB's discretion: (a)replacement of the
existing video board, and (b) renovations to the luxury suites and the Intel Club. The obligations
set forth in this Section 8.3 shall survive the expiration of the Project Term.
6
ARTICLE 9
MAINTENANCE AND REPAIR
Section 9.1 City's Responsibility.Notwithstanding anything to the Contrary contained
in Section 6.3 above,the City shall make available an additional$150,000.00 annually to RRB for
maintaining and making improvements to the DDUHC, which may be required from time to time
at RRB's discretion and subject to the reasonable approval of the City.
ARTICLE 10
APPROVALS AND RELATED MATTERS
Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by
the City. All Project Submission Matters must be approved by the City.
Section 10.2 Items and Matters Subiect to RRB's Review and Comment. The City
must provide RRB a reasonable opportunity to review and provide comments to the Project
Submission Matters and any issuance of or changes to,or modifications of,the Project Submission
Matters.
ARTICLE 11
DEFAULTS AND REMEDIES
Section 11.1 Events of Default.
11.1.1 City Default. The occurrence of any of the following shall be an"Event of
Default"by the City or a"City Default":
(a) The failure of the City to pay any of its monetary obligations under this
Agreement when due and payable under this Agreement if such failure continues for thirty (30)
days after RRB gives notice to the City that such amount was not paid when due;
(b) Abandonment of the Project by the City or any termination, in whole or in
part,of any of the Project Construction Contract or any of the work thereunder by the City without
the consent of RRB unless pursuant to a right of termination based upon the existence of an event
of default under such Project Construction Contract;
(c) Any suspension of the Project Work by the City for longer than sixty (60)
consecutive days or one hundred twenty (120) days in any three hundred sixty-five (365) day
period for any reason other than Force Majeure; or
(d) The failure of the City to substantially perform or substantially observe any
of the obligations, covenants or agreements to be performed or observed by City under this
Agreement within thirty (30)days after notice from RRB of such failure; provided, however, that
if such performance or observance cannot reasonably be accomplished within such thirty (30)day
period,then no Event of Default by the City shall occur unless the City fails to diligently prosecute
such performance or observance to conclusion thereafter; provided further, however, that if such
7
performance or observance has not been accomplished within one hundred twenty(120)days after
notice from the RRB to the City of such failure(notwithstanding the City's diligent prosecution of
its curative efforts),then such failure shall constitute an Event of Default by the City hereunder.
11.1.2 RRB Default. The occurrence of the following shall be an "Event of
Default"by RRB or a"RRB Default":
(a) The failure of RRB to pay any of its monetary obligations to the City under
this Agreement when due and payable if such failure continues for thirty (30) days after the City
gives notice to RRB that such amount was not paid when due;
(b) The failure of RRB to substantially perform or substantially observe any of
the obligations, covenants or agreements to be performed or observed by RRB under this
Agreement within thirty (30) days after notice from the City of such failure; provided, however,
that if such performance or observance cannot reasonably be accomplished within such thirty(30)
day period, then no Event of Default by RRB shall occur unless RRB fails to commence such
performance or observance within such thirty(30)day period and fails to diligently prosecute such
performance or observance to conclusion thereafter; provided further, however, that if such
performance or observance has not been accomplished within one hundred twenty(120)days after
notice from the City to RRB of such failure (notwithstanding RRB's diligent prosecution of its
curative efforts),then such failure shall constitute an Event of Default by RRB hereunder; or
(c) The (i) filing by RRB of a voluntary petition in bankruptcy; or (ii)
adjudication of RRB as a bankrupt; or (iii) approval as properly filed by a court of competent
jurisdiction of any petition or other pleading in any action seeking reorganization, rearrangement,
adjustment, or composition of, or in respect of RRB under the United States Bankruptcy Code or
any other similar state or federal law dealing with creditors' rights generally; or(iv) appointment
of a receive,trustee or other similar official for RRB or its Property, unless within thirty (30)days
after such approval of filing or appointment RRB causes such proceeding or appointment to be
stayed or discharged.
Section 11.2 RRB's Remedies. Upon the occurrence of any City Default, RRB may, at
its sole discretion, have the option to pursue any and all remedies available to RRB at law or in
equity, but subject to any limitations thereon set forth in this Agreement, without any notice or
demand whatsoever,other than any notice expressly provided in this Agreement.
Section 11.3 The City's Remedies. Upon the occurrence of any RRB Default, the City
may, at its sole discretion, have the option to pursue any and all remedies available to the City at
law or in equity, but subject to any limitations thereon set forth in this Agreement, without any
notice or demand whatsoever, other than any notice expressly provided in this Agreement.
Section 11.4 Cumulative Remedies.Subject to the provisions of Section 11.5,each right
or remedy of RRB and the City provided for in this Agreement shall be cumulative of and shall be
in addition to every other right or remedy of RRB or the City provided for in this Agreement,and
the exercise or the beginning of the exercise by RRB or the City of any one or more of the rights
or remedies provided for in this Agreement shall not preclude the simultaneous or later exercise
8
by RRB or the City of any or all other rights or remedies provided for in this Agreement or any
other Project Document or hereafter existing at law or in equity, by statute or otherwise.
Section 11.5 No Indirect Damages.IN NO EVENT SHALL RRB OR THE CITY BE
LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE FOR
LOST PROFITS, INCLUDING LOST OR PROSPECTIVE PROFITS, OR FOR ANY
OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES,IN CONTRACT,TORT OR OTHERWISE,WHETHER OR NOT
CAUSED BY OR RESULTING FROM THE SOLE OR CONCURRENT NEGLIGENCE
OF RRB OR THE CITY OR ANY OF THEIR AFFILIATES OR RELATED PARTIES;
PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AFFECT ANY
LIABILITY THAT THE CITY MAY OTHERWISE HAVE UNDER THIS AGREEMENT
IN RESPECT TO LIQUIDATED DAMAGES. WITHOUT LIMITING THE
FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF
RRB OR THE CITY ARISING OUT OF THIRD PARTY CLAIMS AGAINST RRB OR
THE CITY FOR ANY OF THE FOREGOING.
Section 11.6 Declaratory or Injunctive Relief. In addition to the remedies set forth in
this Article 11 and subject to the provisions of Article 14, the Parties shall be entitled, in any
circumstances they may deem appropriate, to seek injunctive relief prohibiting (rather than
mandating) action by the other Party for any Event of Default of the other Party or declaratory
relief with respect to any matter under this Agreement. The terms and conditions set forth in this
Article 11 shall survive the expiration of the Project Term.
ARTICLE 12
ASSIGNMENT
Section 12.1 Assignments of RRB's Interest. RRB shall not sell, assign or transfer its
rights under this Agreement (each, a "Transfer") without the prior written consent of the City,
which consent shall not be unreasonably withheld, delayed or conditioned. The City's consent to
a Transfer shall not be required for a Transfer to a transferee that RRB is entitled to and
concurrently does Transfer under the Lease to the same transferee.
Section 12.2 Transfers by the City. The City shall not sell,assign or otherwise transfer
this Agreement or any of its rights, obligations or duties under this Agreement, without first
obtaining the prior written consent of RRB pursuant to this Article 12, which consent shall not be
unreasonably withheld, delayed or conditioned.
ARTICLE 13
DISPUTE RESOLUTION
Section 13.1 Dispute Resolution.In the event any dispute,controversy or claim between
or among the Parties arises under this Agreement or any right,duty or obligation arising therefrom
or the relationship of the Parties hereunder(a"Dispute or Controversy'),including,but not limited
to,a Dispute or Controversy relating to the effectiveness,validity,interpretations,implementation,
termination, cancellation or enforcement of this Agreement,the Parties shall first attempt in good
9
faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with
the terms of this Article 13. In the event a Dispute or Controversy arises, either Party shall have
the right to notify the other that it has elected to implement the procedures set forth in this Article
13. Within fifteen(15)days after delivery of any such notice by one Party to the other regarding a
Dispute or Controversy,the City Representatives and RRB Representative shall meet at a mutually
agreed time and place to attempt,with diligence and good faith,to resolve and settle such Dispute
or Controversy.
ARTICLE 14
GENERAL PROVISIONS
Section 14.1 Relationship of the Parties. The relationship of RRB and the City under
this Agreement is that of independent parties, each acting in its own best interests, and
notwithstanding anything in this Agreement to the contrary, no partnership,joint venture or other
or additional business relationship is established or intended hereby between RRB and the City.
Section 14.2 Certificates Regarding Project Documents. Each Party agrees, at any
time and from time to time upon not less than thirty(30)days' prior written notice from the other
Party,to execute,acknowledge and deliver to such other Party, or to any Person designated by the
other Party, a statement certifying that this Agreement is unmodified and in full force and effect
(or, if there have been modifications, that this Agreement is in full force and effect as modified
and stating the modifications), and stating whether or not, to the knowledge of the Party making
the statement, the other Party is in default hereunder or thereunder in keeping, observing or
performing any of the terms, covenants or conditions contained in this Agreement to be kept,
observed or performed by the other Party(or whether there is a potential RRB Default or a potential
City Default) and, if in default, specifying each such default of which the Party making the
statement is aware, it being intended that any such statement delivered pursuant to this Section
14.2 shall be relied upon by the other Party or any Person designated by such other Party.
Section 14.3 Approvals and Consents; Standards for Review.
14.3.1 Review and Approvals or Consent Rights. The provisions of this Section
14.3 shall be applicable with respect to all instances in which it is provided under this Agreement
that the City or RRB exercises Review and Approval or Consent Rights; provided, however,that
if the provisions of this Section 14.3 specifying time periods for exercise of Review and Approval
or Consent Rights shall conflict with other express provisions of this Agreement providing for
time periods for exercise of designated Review and Approval or Consent Rights, then the
provisions of such other provisions of this Agreement shall control. As used herein, the term
"Review and Approval or Consent Rights" shall include, without limiting the generality of that
term, all instances in which one Party (the "Submitting Party") is permitted or required to submit
to the other Party or to the representative of that other Party any document,notice or determination
of the Submitting Party and with respect to which the other Party or its representative (the
"Reviewing Party_") has a right or duty hereunder to review, comment, consent, approve,
disapprove, dispute or challenge the submission or determination of the Submitting Party. Unless
this Agreement specifically provides that the Review and Approval or Consent Rights may be
exercised in the sole and absolute discretion (or a similar standard) of the Reviewing Party, in
10
connection with exercising its Review and Approval or Consents Rights under any provision of
this Agreement and whether or not specifically provided in any such provision, the Reviewing
Party covenants and agrees to act in good faith, with due diligence, and in a commercially
reasonable manner with regard to each and all of such Review and Approval or Consent Rights
and to not unreasonably withhold,condition or delay its approval of or consent to any submission.
14.3.2 Standard for Review. The Submitting Party shall use reasonable efforts to
cause any matter submitted to the Reviewing Party by the Submitting Party and with respect to
which the Reviewing Party has Review and Approval or Consent Rights under this Agreement to
be submitted under cover of a request which (i) contains the heading or caption "TIME
SENSITIVE—REQUEST FOR REVIEW/APPROVAL OR CONSENT" (or similar phrase), and
(ii) states the date by which a response is required under the terms of this Agreement.
14.3.3 Deemed Approval or Consent. If no response from the Reviewing Party
is delivered to the Submitting Party within thirty (30) days after the submission, or such shorter
time as may be required hereby, the Reviewing Party shall be deemed to give its approval or
consent to the Submitting Party.
14.3.4 Key Elements of the Proiect.Notwithstanding the other provisions of this
Section 14.3, RRB and the City agree that RRB may, in its sole and absolute discretion, withhold
its approval or consent to any Project Submission Matters and any changes to,or modifications of,
any Project Submission Matters that result in or are likely to result in (i)any extensions of,or any
inability to achieve, the schedules and deadlines contained in this Agreement, including, but not
limited to,the Deadline for Substantial Completion, (ii) an increase in Operating Expenses, (iii)a
failure of the Project to conform to minor league baseball rules and regulations, (iv) any violation
of applicable Governmental Rule, or (v) subject to the provisions of Section 6.3 above, any
material change in the Project Plans.
Section 14.4 Incorporation of Appendices and Exhibits. All Appendices and Exhibits
attached to this Agreement are incorporated by this reference in their entirety and made a part
hereof for all purposes.
Section 14.5 Interest on Overdue Obligations. If any sum due hereunder is not paid on
the due date thereof,the Party hereto owing such obligation to the other Party shall pay to the other
Party interest thereon at the Default Rate, concurrently with the payment of the amount from the
date such amount was due until paid. Any payment of interest at the Default Rate pursuant to this
Agreement shall not excuse or cure any default hereunder.
Section 14.6 Definitions. Except as otherwise expressly provided in this Agreement,
capitalized terms used in this Agreement and all appendices, schedules and exhibits thereto shall
have the respective meanings given in Appendix A to this Agreement.
Section 14.7 Survival. Except as otherwise expressly provided in this Agreement or in
any other Project Document, the representations, warranties, covenants and agreements of the
Parties contained or provided for in such instruments and the Parties' obligations under any and
all thereof shall survive the execution and delivery of such instruments.
11
Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests
and other communications given to a Party under this Agreement shall be given in writing to such
Party at the address set forth in A1212endix B to this Agreement or at such other address as such
Party shall designate by written notice to each of the other Party to this Agreement and may be
delivered personally (including delivery by private courier services) or by telecopy (with a copy
of such notice sent by private courier service for overnight delivery or by registered or certified
mail) to the Party entitled thereto, and shall be deemed to be duly given or made when delivered
by hand unless such day is not a Business Day, in which case such delivery shall be deemed to be
made as of the next succeeding Business Day or in the case of telecopy(with a copy of such notice
sent by private courier service for overnight delivery or by registered or certified mail),when sent,
so long as it was received during normal business hours of the receiving Party on a Business Day
and otherwise such delivery shall be deemed to be made as of the next succeeding Business Day.
Section 14.9 Severability. If any term or provision of this Agreement,or the application
thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any
jurisdiction, as to such jurisdiction, the remainder of this Agreement, or the application of such
term or provision to the Persons or circumstances other than those as to which such term or
provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby and
each term and provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by applicable law and any such invalidity or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law,the Parties to this Agreement hereby waive any provision of law that
renders any provision thereof prohibited or unenforceable in any respect.
Section 14.10 Entire Agreement;Amendment and Waiver.This Agreement constitutes
the entire agreement of the Parties thereto with respect to the subject matter thereof and supersedes
all prior written and oral agreements and understandings with respect to such subject matter.
Neither this Agreement nor any of the terms thereof may be terminated, amended, supplemented,
waived or modified orally,but only by an instrument in writing signed by the Party against which
the enforcement of the termination, amendment, supplement, waiver or modification shall be
sought.
Section 14.11 Table of Contents; Headings. The table of contents and headings of the
various articles,sections and other subdivisions of this Agreement are for convenience of reference
only and shall not modify, define or limit any of the terms or provisions hereof.
Section 14.12 Parties in Interest; Limitation on Rights of Others. The terms of this
Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted
successors and assigns.Nothing in this Agreement,whether express or implied,shall be construed
to give any Person (other than the Parties and their permitted successors and assigns and as
expressly provided therein) any legal or equitable right, remedy or claim under or in respect of
such instrument or any covenants, conditions or provisions contained therein or any standing or
authority to enforce the terms and provisions of such instrument.
12
Section 14.13 Method of Payment.All amounts required to be paid by either Party to the
other Party or any Person,either under this Agreement or under any other Project Document, shall
be paid in such freely transferable coin or currency of the United States as at the time of payment
shall be legal tender for the payment of public and private debts, by wire transfer, or other
acceptable method of payment. If any payment under this Agreement is required to be made on a
day other than a Business Day,the date of payment shall be extended to the next Business Day.
Section 14.14 Counterparts. This Agreement may be executed by the Parties in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same Agreement. All signatures need not be
on the same counterpart.
Section 14.15 Governing Law. This Agreement and the actions of the parties hereunder
shall in all respects be governed by, and construed in accordance with, the laws of the State of
Texas(excluding principles of conflict of laws).
Section 14.16 Court Proceedings. Subject to the agreement of the Parties regarding
arbitration and other alternative procedures for dispute resolution, any suit, action or proceeding
against any Party to such instrument arising out of or relating to this Agreement, any transaction
contemplated thereby or any judgment entered by any court in respect of any thereof may be
brought in state court located in the City of Georgetown, Texas, and each Party hereby submits to
the nonexclusive jurisdiction of such courts for the purpose of any such suit,action nor proceeding.
Section 14.17 Time.Times set forth in such instrument for the performance of obligations
shall be strictly construed,time being of the essence of such instrument. However, in the event the
date specified or computed under such instrument for the performance, delivery, completion or
observance of a covenant, agreement, obligation or notice by either Party, hereto or for the
occurrence of any event provided for therein, shall be a Saturday, Sunday or Legal Holiday, then
the date for such performance,delivery,completion,observance or occurrence shall automatically
be extended to the next calendar day that is not a Saturday, Sunday or Legal Holiday.
Section 14.18 Interpretation and Reliance. No presumption will apply in favor of any
Party in the interpretation of this Agreement or in the resolution of any ambiguity of any provision
thereof.
Section 14.19 Attorneys' Fees. If a Party defaults in the performance of any covenants,
obligations or agreements of such party contained herein and the other Party places the
enforcement of such instrument, or an part thereof, or the exercise of any other remedy therein
provided for such default, in the hands of an attorney who files suit or institutes an action or
proceeding upon the same (either by direct action or counterclaim),the non-prevailing Party shall
pay to the prevailing Party its reasonable attorneys' fees and costs of court. In addition to the
foregoing award of attorneys' fees to the prevailing Party,the prevailing Party shall be entitled to
its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment.
This provision is separate and several and shall survive the merger of this Agreement into any
judgment on such instrument.
13
Section 14.20 Insurance Proceeds. Insurance proceeds paid or disbursed to the City,
whether from the issuers of any insurance policies or otherwise, shall be held by the City in trust
for the purpose of paying the cost of the Casualty Repair Work and shall be applied by the City to
such casualty repair work. The City shall be obligated to make payment, disbursement,
reimbursement or contribution toward the costs of the casualty repair work that exceed the amount
of the insurance proceeds.
Section 14.21 Option to Lease. RRB hereby notifies the City of its intent to exercise
RRB's option (as the lessee under the Lease)to extend the Term of the Lease pursuant to Section
3_4 thereof. In addition, subject to RRB's fulfillment of its obligation set forth in Section 8.3
above, RRB shall have the option to lease the DDUHC for a term of ten (10) years at an annual
rental rate of$1.00 per year(the"Lease Option"),commencing on the day immediately following
expiration of the Term of the Lease (including any extensions or renewals thereof under the
existing provisions of the Lease),provided that RRB delivers written notice to the City on or before
September 30, 2048, stating RRB's intent to exercise the Lease Option. Within thirty (30) days
following the City's receipt of such written notice from RRB, the Parties shall enter into a lease
agreement on the same form as that of the Lease, except as expressly modified by this paragraph
or otherwise agreed to by the Parties in writing.
WITNESS WHEREOF, this Agreement has been executed and effective on
Z
CITY OF ROUND ROCK,TEXAS ROU K B SEBALL,INC.
By: By:
Craig M gan,tor Rep Ryan, C O
14
APPENDIX A
TO
AGREEMENT
RULES AS TO USAGE AND GLOSSARY OF DEFINED TERMS
Rules as to Usage
1. The terms defined below have the meanings set forth below for all purposes, and
such meanings are equally applicable to both the singular and plural forms of the terms defined.
2. "Include,""includes"and"including" shall be deemed to be followed by "without
limitation"whether or not they are in fact followed by such words or words of like import.
3. "Writing," "written" and comparable terms refer to printing, typing, lithography
and other means of reproducing in a visible form.
4. Any agreement, instrument or Governmental Rule defined or referred to below or
in any agreement or instrument that is governed by this Appendix means such agreement or
instrument or Governmental Rule as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and (in the case of
Governmental Rules) by succession of comparable successor Governmental Rules and includes
(in the case of agreements or instruments) references to all attachments thereto and instruments
incorporated therein.
5. References to a Person are also to its permitted successors and assigns.
6. Any term defined below by reference to any agreement, instrument or
Governmental Rule has such meaning whether or not such agreement,instrument or Governmental
Rule is in effect.
7. "Hereof,""herein,""hereunder"and comparable terms refer to the entire agreement
or instrument in which such terms are used and not to any particular article, section or other
subdivision thereof or attachment thereto. References in an instrument to "Article," "Section,"
"Subsection"or another subdivision or to an attachment are unless the context otherwise requires,
to an article, section, subsection or subdivision of or an attachment to such agreement or
instrument.All references to schedules,exhibits or appendices in any agreement or instrument that
is governed by this Appendix are to schedules, exhibits or appendices attached to such instrument
or agreement.
8. Pronouns, whenever used in any agreement or instrument that is governed by this
Appendix and of whatever gender, shall include natural persons, corporations, limited liability
companies,partnerships, and associations of every kind and character.
15
9. References to any gender include, unless the context otherwise requires,references
to all genders.
10. The word"or"will have the inclusive meaning represented by the phrase"and/or."
11. The phrase"and/or"when used in a conjunctive phrase,shall mean any one or more
of the Persons specified in or the existence or occurrence of any one or more of the events,
conditions or circumstances set forth in that phrase;provided,however,that,when used to describe
the obligation of one or more Persons to do any act, it shall mean that the obligation is the
obligation of each of the Persons but it may be satisfied by performance by any one or more of
them.
12. "Shall" and"will"have equal force and effect.
13. Unless otherwise specified,all references to a specific time of day in any agreement
or instrument that is governed by this Appendix shall be based upon Central Standard Time or
Central Daylight Savings Time, as applicable on the date in question in Round Rock, Texas.
14. References to"$"or to"dollars"shall mean the lawful currency of the United States
of America.
Glossary of Defined Terms
"Agreement"means the Agreement Regarding Improvements to the Dell Diamond/United
Heritage Center dated as of the Effective Date between the City and RRB, as the same may be
amended, supplemented,modified,renewed or extended from time to time with the consent of the
City and RRB.
"Architect"means Michael Schuster Associates, Inc. (d/b/a MSA Sport).
"Architect's Contract" means the services contract(s) between RRB and/or City and the
Architect for, among other things, the design of the Project, the preparation of the Project Plans,
and construction administration services as the same may be amended, supplemented, modified,
renewed, extended or replaced from time to time with the consent of the City and RRB.
"Business Day" shall mean a day of the year that is not a Saturday, Sunday or Legal
Holiday.
"Citv" shall mean the City of Round Rock, Texas, a municipal corporation and home rule
city.
"City's Contribution" shall mean the sum of$6 million or less, as set forth in Article 6 of
the Agreement.
"City Representatives" shall have the meaning given to it in Section 2.1 of the Agreement.
16
"Component" means any item that is incorporated into the Project,or any portion thereof,
including, by way of illustration and not limitation, all ancillary systems included in the Project,
the structure and all structural members, concrete, controls, instrumentation, engines and motors,
dynamos, cabling, wheels, transformers, capacitors, load centers, fuses, circuit breakers, gears,
bearings,valves,pipes,joints,covers, seats,electronic and mechanical parts, subcomponents,and
other equipment.
"Deadline for Substantial Completion" shall have the meaning given to it in Section 7.2 of
the Agreement.
"Default Rate" means the lesser of(i) the Prime Rate, or(ii) the maximum rate of interest
permitted to be charged by applicable law.
"Dispute or Controversy"shall have the meaning given to it in Article 13 of the Agreement.
"Effective Date" shall mean the first date set forth on page 1 of the Agreement.
"Equipment Lease" means any lease whereby a Component of the Project is to be leased
(whether combined with a purchase option or not).
"Event of Default" shall have the meaning given to it in Section 11.1.1 and 11.1.2 of the
Agreement.
"Final Completion"means,when used with respect to the work to be performed under the
Project Construction Contract,"final completion"as defined in the Project Construction Contract,
and with respect to the balance of the Project Work or any Component of the balance of the Project
Work (such as the Development Work), the final completion of all aspects of such work and
improvements in accordance with all Governmental Rules and in accordance with the requirements
for the same contained in the Agreement and Project Construction Documents, including, but not
limited to, the completion of the punch-list type items referred to in the definition of the term
"Substantial Completion". Substantial Completion of such work and improvements is a
prerequisite to Final Completion of the same.
"Fiscal Year" means the twelve (12) month period from time to time established by the
City as its fiscal year, which is currently the twelve (12) month period from October 1 through
September 30 of each calendar year.
"Force Maieure"means Acts of God,strikes, lockouts or other industrial disturbances,acts
of the public enemy, orders of any kind of the government of the United States of America, or of
any state thereof, or any civil or military authority, insurrections, riots, epidemics, pandemics,
landslides, lightning,earthquakes,fires,hurricanes,tornadoes,storms,floods,washouts,droughts,
arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents,
wars, part or entire failure of utilities, shortages of labor, material, supplies or transportation, or
any other cause not reasonably within the control of the party claiming inability to perform due to
such cause. "Force majeure"shall not,however, include economic hardship.
17
"Governmental Authority" means any federal, state, local, court, tribunal, regulatory
commission or other body, whether legislative, judicial or executive (or a combination or
permutation thereof),and any arbitrator to whom a dispute has been presented under Governmental
Rule or by agreement of the parties with an interest in such dispute.
"Governmental Rule" means any statute, law, treaty, rule, code, ordinance, regulation,
permit, interpretation, certificate or order of any Governmental Authority, or any judgment,
decision, decree, injunction, writ, order or like action of any court, arbitrator or other
Governmental Authority.
"IT Upgrade" shall have the meaning given to it in Exhibit"A"attached to the Agreement.
"Land" shall mean the real property described on Exhibit"A"to the Lease.
"Lease"means the Lease dated as January 20, 1999,between the City,as lessor,and RSR,
as lessee, and covering the Land and Project, as the same may be amended, supplemented,
modified,renewed or extended from time to time. In accordance with the terms of the Lease,RSR
assigned its interest in the Lease to RRB by instrument dated March 29, 1999.
"Lease Commencement Date" means the "Commencement Date," as such term is defined
in the Lease.
"Lease Term" shall mean the"Term"as defined in the Lease.
"Leased Premises" shall have the meaning given to it in the Lease.
"Legal Holiday" means the day, other than a Saturday or Sunday, on which the City's
administrative offices are closed for business.
"Operating Expenses' shall mean the costs to operate, repair, and maintain the Project.
"Parties" shall have the meaning given to it in the first paragraph of the Agreement.
"Person" shall mean any individual, corporation, partnership,joint venture, association,
joint stock company,trust, limited liability company, unincorporated organization, Governmental
Authority or any other form of entity.
"Prime Rate" means the rate of interest from time to time published by the Wall Street
Journal as the "prime rate."
"Project"means the improvements to the DDUHC as described in Exhibit"A"attached to
the Agreement.
"Project Budget"shall mean the total project budget,as from time to time amended,for all
Project Costs, broken down in reasonable detail by "hard" and "soft" cost categories, including,
18
but not limited to, the amount payable under each of the Project Construction Documents,
allowances, contingencies, and pre-opening expenses.
"Project Completion Date"means the later of(i)the date of Final Completion of all of the
Project Work in accordance with all of the requirements of the Agreement and other transaction
documents, and (ii)payment in full of all Project Costs.
"Project Construction Contract(s)'means the construction contract(s)approved by the City
between the City and the Project Contractor for the construction of the Project, as the same may
be amended, supplemented, modified, renewed, extended or replaced from time to time with the
consent of the City and RRB.
"Project Contract Sum" shall mean and refer to the "Contract Sum," as said term is used
and defined in the Project Construction Contract.
"Project Contractor"means the general contractor approved by the City.
"Project Construction Documents" means any and all contracts, documents or other
instruments entered into by or on behalf of the City or RRB for the performance of the Project
Work, including, but not limited to, the construction contracts and the Architect's Contract, but
excluding the Project Documents.
"Project Costs" means Project Design Costs plus all of the following costs incurred or to
be incurred by the City in order for the City to fulfill its obligations under the Agreement, the
Project Construction Documents,and cause Final Completion of the Project Work: (a)acquisition
costs;(b)all amounts payable under any of the Project Construction Documents;(c)costs to obtain
necessary easements or rights of way;(d)the following City development costs and fees:structural
steel inspection fee, oversize fee, regional detention fee, and water meter fee; (e) legal costs; (f)
costs for project management services; (g) all other costs incurred by the City and paid to third
parties in accordance with the Agreement and Project Construction Documents to develop,
construct, or furnish the Project including management fees and fees and expenses of architects,
engineers, testing firms, accountants, attorneys, and other consultants necessary to complete the
design, development, construction, and furnishing of the Project; and (h) all insurance premiums
on all policies of insurance required to be carried by the City; provided, however,that other costs
incurred by the City in order to fulfill its aforesaid obligations, but not specifically enumerated
herein shall be Project Costs subject to the approval of RRB, which approval shall not be
unreasonably withheld, delayed or conditioned.
"Project Design Costs" means all costs to prepare the Project Plans and specifications for
submitting same for a competitive bid, including (but not limited to) costs to administer the
competitive bidding process up to and including the final award of Project Construction
Documents.
"Project Fund" means the amount of money equal to the Project Contract Sum to complete
the Project.
19
"Project Work" means the design, development, construction, furnishing, and placement
in service and Final Completion of the Project at, on and within the Land in accordance with the
Agreement, the Project Submission Matters, all applicable Governmental Rules and the Project
Plans.
"Project Plans" means individually and collectively, the concept drawings, schematic
drawings, design development drawings and detailed working drawings and specifications for the
Project prepared by the Architect in the form approved by RRB and the City.
"Project Savings" means the amount by which Project Costs are less than the amount of
the Project Fund and shall include, without limitation, the amount of all reductions in the Project
Contract Sum (after execution of the Project Construction Contract), and all other savings or
reductions in the amounts payable by the City under any Construction Document.
"Project Submission Matters" means each and all of the following, the issuance or
completion thereof, and any changes to, or modifications of, any of the following:
(a) The Project Budget and the Debt Plan;
(b) The Project Construction Schedule;
(c) The Project Plans;
(d) The Project Construction Contract;
(e) Any of the following under the Project Construction Documents:
(i) Changes in scope or systems;
(ii) Changes in quantity, kind, brand, manufacturer or quality of materials,
finishes or equipment;
(iii) Changes in schedule;
(iv) Selection of, and/or changes in, allowance items;
(v) Changes in overall appearance or amenities; and
(f) Equipment Leases;
(g) Service Contracts; and
(h) Any contract or agreement for inspection of the Project or other agreement the cost
of which would constitute a Project Cost.
"Project Term" shall have the meaning given to it in Section 3.1 of the Agreement.
20
"Review and Approval or Consent Rights" shall have the meaning given to it in Section
14.3.1 of the Agreement.
"Reviewing Party" shall have the meaning given to it in Section 14.3.1 of the Agreement.
"RRB"means Round Rock Baseball, Inc.,a Texas corporation.
"RRB Default" shall have the meaning given to it in Section 11.1.2 of the Agreement.
"RRB Representative"shall have the meaning given to it in Section 2.2 of the Agreement.
"Service Contract" means each and every contract or agreement with respect to the
provision of services to the Leased Premises which will, or is intended to, survive the Lease
Commencement Date including, without limitation, maintenance contracts, contracts for the
provision of utility services, landscaping contracts, and refuse disposal contracts.
"Submitting Party" shall have the meaning given to it in Section 14.3.1 of the Agreement.
"Substantial Completion" shall have the meaning given to it in the Project Construction
Contract.
"Substantial Completion Date" shall mean the date on which Substantial Completion of all
of the Project Work occurs.
"Transfer" shall have the meaning given to it in Section 12.1 of the Agreement.
"Visitor Clubhouse" shall have the meaning given to it in Exhibit"A"to the Agreement.
"Warran , Claim" shall have the meaning given to it in Section 7.4 of the Agreement.
21
APPENDIX B
TO
AGREEMENT
ADDRESSES FOR NOTICES
(1) All notices to the City shall be sent to:
City of Round Rock
221 E. Main Street
Round Rock,TX 78664
Attention: Laurie Hadley
Fax: 512-218-7097
With copies sent to:
Stephan L. Sheets
City Attorney
309 E. Main Street
Round Rock,TX 78664
Fax: 512-255-8986
(2) All notices to RRB shall be sent to:
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, TX 78683
Attention: Reid Ryan
Fax: 512-255-1558
With copy to:Nolan Ryan
And to:
Jackson Walker L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Attention: Brad Knippa
22
EXHIBIT "A"
Description of the Proiect
The City and RRB agree that the Project shall include the improvements described below.
1) VISITOR CLUBHOUSE. The "Visitor Clubhouse" shall mean a new facility containing
8,000 SF to be located behind the right-field fence of the existing DDUHC.The Visitor Clubhouse
will be connected to the playing field via a new stairway,and to an existing drive via new entrance
stairs, ramp, and site work. The Project includes both the design and construction of the Visitor
Clubhouse.
2) NETWORK AND TELECOMMUNICATIONS INFRASTRUCTURE.
IT Network: The Project will include replacing the information-technology (IT) network
infrastructure serving the DDUHC, including but not limited to all network hardware and related
systems, firewalls, core and edge switches,wireless access points and UPS power protection. An
assessment of the current IT network and telecommunications infrastructure of the DDUHC will
be a part of this Project.
Telecommunications: The replacement of and/or upgrade to the DDUHC telecommunications
infrastructure, including CAT6a, fiber, intermediate telecommunication rooms,telecom room
hardware,telecom ground system,telecom service duct-bank, conduit and backbone raceway,
will be included in the Project. Structured cabling system will be designed to support typical IP
and video enabled devices and connectivity including telephone,data, Wi-Fi, internet, POS,
ticketing, IPTV, video and security cameras.
23