R-03-06-12-10G1 - 6/12/2003RESOLUTION NO. 3- 06 -12 -1 OG 1
WHEREAS, on January 20, 1999, the City and Ryan Sanders Ryan,
Inc. ( "RSR ") entered into that one certain Convention Center
Complex Lease Agreement ( "Lease ") whereby the City agreed to lease
to RSR a convention center complex to be designed by RSR and
constructed by the City, and
WHEREAS,on March 29, 1999, RSR assigned its interest in and
to the Lease to Round Rock Baseball, Inc. ( "RRB "), and
WHEREAS, the convention center complex has since been renamed
the Dell Diamond /United Heritage Center, and
WHEREAS, the City and RRB now desire to provide for the
expansion of the Dell Diamond/United Heritage Center, and
WHEREAS, an Agreement Regarding Phase I Improvements to the
Dell Diamond /United Heritage Center ( "Agreement ") has been prepared
to set forth certain agreements of the City and RRB with respect to
Phase I Improvements to the Dell Diamond /United Heritage Center,
and, including the terms, conditions and provisions pursuant to
which RRB shall design, and the City shall develop and construct the
Project,
WHEREAS, the City Council wishes to approve said Agreement,
Now Therefore,
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City, subject to the City Manager's and City
Attorney's approval of the final language and terms, an Agreement
2 PFDesktop\:: ODMA/ WOFLfUX/ O : /WDOX /RESOLUTI /R30612G1.wpn /sa
Regarding Phase I Improvements to the Dell Diamond /United Heritage
Center, a copy of same being attached hereto and incorporated
herein for all purposes.
The City Council hereby finds and declares that written notice
of the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to
the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered
and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 12th day of June, 2003.
ATTEST:
CHRISTINE R. MARTINEZ, City Secret
2
, Mayo
City of Round Rock, Texas
00051756
AGREEMENT
REGARDING PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
Dated as of June 12, 2003
between
CITY OF ROUND ROCK, TEXAS
as the City
and
ROUND ROCK BASEBALL, INC.
as RRB
ARTICLE 1
ARTICLE 2
TABLE OF CONTENTS
Page
GENERAL TERMS 1
Section 1.1 Definitions and Usage 1
REPRESENTATIVES OF THE PARTIES 2
Section 2.1 The City Representatives. 2
Section 2.2 RRB Representatives. 2
ARTICLE 3
TERM 2
Section 3.1 Term 2
ARTICLE 4
PROJECT DESIGN 2
Section 4.1 Design. 2
ARTICLE 5
CONDITIONS 2
Section 5.1 Conditions to RRB's Obligations to Perform 2
Section 5.2 Conditions to City's Obligations to Perform 2
Section 5.3 Termination for Failure of RRB's Conditions 3
ARTICLE 6
PROJECT COSTS 3
Section 6.1 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 4
ARTICLE 7
ARTICLE 8
ARTICLE 9
ARTICLE 10
ARTICLE 11
SCOPE OF DEVELOPMENT
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
Section 7.7
4
Project Improvements 4
Completion Dates 4
Record Drawings and Other Documents 4
Contract Requirements and Warranty Claims 4
Access to the Project 5
Construction Cooperation /Coordination 5
Liquidated Damages 6
RRB OBLIGATIONS
Section 8.1 RRB Requested Additions or Modifications
Section 8.2 Project Costs
7
7
7
RRB's CONTRIBUTION 7
Section 9.1 RRB's Contribution 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 to be Reviewed and Confirmed and/or Approved by
RRB 7
DEFAULTS AND REMEDIES 8
Section 11.1 Events of Default 8
Section 11.2 RRB's Remedies 9
i i
Section 113
Section 11.4
Section 11.5
Section 11.6
ARTICLE 12
ARTICLE 13
ARTICLE 14
The City's Remedies 9
Cumulative Remedies 9
No Indirect Damages 9
Declaratory or Injunctive Relief 10
ASSIGNMENT 10
Section 12.1 Assignments of RRB's Interest 10
Section 12.2 Transfers by the City 10
DISPUTE RESOLUTION 10
Section 13.1 Dispute Resolution 10
GENERAL PROVISIONS 11
Section 14.1 Relationship of the Parties 11
Section 14.2 Certificates Regarding Project Documents 11
Section 143 Approvals and Consents; Standards for Review 11
Section 14.4 Incorporation of Appendices. Schedules and Exhibits 12
Section 14.5 Interest on Overdue Obligations 12
Section 14.6 Definitions 12
Section 14.7 Survival 12
Section 14.8 Notices 12
Section 14.9 Severability 13
Section 14.10 Entire Agreement; Amendment and Waiver 13
Section 14.11 Table of Contents: Headings 13
Section 14.12 Parties in Interest; Limitation on Rights of Others 13
Section 14.13 Method of Payment 13
Section 14.14 Counterparts 14
Section 14.15 Governing Law 14
Section 14.16 Court Proceedings 14
Section 14.17 Time 14
Section 14.18 Interpretation and Reliance 14
iii
Section 14.19 Attorneys' Fees 14
Section 14.20 Insurance Proceeds 14
APPENDICES:
APPENDIX A
APPENDIX B
EXHIBITS:
EXHIBIT "A"
EXHIBIT `B"
APPENDICES AND EXHIBITS
Rules of Usage and Glossary of Defined Terms
Addresses for Payments and Notices
Description of Phase I Improvements
Project Design Costs
iv
AGREEMENT REGARDING
PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
THIS AGREEMENT REGARDING PHASE I IMPROVEMENTS TO THE DELL DIAMOND /
UNITED HERITAGE CENTER (this " Agreement ") is made and entered into effective as of the 12 day
of June, 2003, (the "Effective Date ") by and between the CITY OF ROUND ROCK, TEXAS, a Texas
home rule municipal corporation (the "City") 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 ( "Lease ") whereby the City agreed to lease to RSR
a convention center complex . In accordance with the terms 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 the expansion of the DDUHC in one or more phases.
The Phase 1 Improvements are described in Exhibit "A" and are 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 RRB shall design, and RRB and the City shall develop and construct 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
Section 2.1 The City Representatives. City hereby designates James R. Nuse, P.E. and David
Kautz to be the City 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 Representatives. RRB hereby designates Reid Ryan and Reese Ryan to serve
as the RRB Representatives (the "RRB Representatives. ") Any consent, approval, decision or determination
hereunder by either of the RRB Representatives shall be binding on RRB; provided, however, the RRB
Representatives shall not have any right to modify, amend or terminate this Agreement.
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 Substantial Completion Date (the "Proiect
Teri. ")
Section 4.1 Design. RRB has entered into the Architect's Contract with the Architect for the
preliminary design of the Project Plans. It is anticipated that such contract will be supplemented and/or
replaced with an Architect's Contract between the City and Architect for the final 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 2
REPRESENTATIVES OF THE PARTIES
ARTICLE 3
TERM
ARTICLE 4
PROJECT DESIGN
givat
t .
ARTICLE 5
CONDITIONS
Section 5.1 Conditions to RRB's Obligations to Perform. It shall be a condition precedent to
the performance ofRRB's obligations under this Agreement that on or before August 31, 2003, (''vua ttui.tiv,r
utiuu al,all bav uwwi ca i„ ai.w,, with t A s, cci„,ut
Section 5.2 Conditions to City's Obligations to Perform. As provided for in Article 9 below,
prior to Construction Contract Execution and satisfaction of the other requirements set forth therein, RRB
is to contribute to the City the RRB Contribution which sum is to be used by the City in constructing the
2
Project Improvements. It shall be a condition to the City's obligations to construct the Project Improvements
Work, that RRB will make the RRB Contribution to the City prior to Construction Contract Execution.
Section 5.3 Termination for Failure of Conditions. (a) 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, 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.
(b) If for any reason the condition set forth in Section 5.2 of this Agreement has not been fully and
timely satisfied, this Agreement shall terminate at the sole option of the City by written notice to RRB and
upon such termination by City, 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.
ARTICLE 6
PROJECT COSTS
Section 6.1 Project Costs. "Project Costs" includes all of the costs to design, construct, and equip
the Project Improvements. Without limitation, Project Costs includes Project Design Costs as defined in
Section 6.2 below and in Appendix A.
Section 6.2 Project Design Costs. The City agrees to contribute up to $50,000.00 toward the
payment of 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 costs shown on Exhibit "B ", attached hereto and incorporated herein. In the event the Project
is terminated prior to Construction Contract Execution, all Project Design Costs in excess ofthe $50,000.00
City contribution shall be paid by RRB.
Section 6.3 City's Contribution to Project Costs. The City's sole contribution to all Project
Costs is the sum of $800,000.00, or fifty percent (50 %) of the Project Costs, whichever is less (herein
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
$800,000.00 for Project Costs; it being the understanding of the Parties that ALL liability for Project Costs
in excess ofthe 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 ofthe 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
3
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
Section 6.4 RRB's Contribution to Project Costs. RRB agrees to pay for all Project Costs that
exceed the City's Contribution.
ARTICLE 7
SCOPE OF DEVELOPMENT
Section 7.1 Project Improvements. The Parties anticipate utilizing the Construction Manager -at-
Risk method of project delivery in accordance with § 271.118 of the Texas Local Government Code. The
City shall enter into a Project Construction Contract with the offeror that submits the proposal that offers
the best value based on the published selection criteria and ranking evaluation, for the Project Improvements
Work for the Project Improvements The Project Construction Contract shall include a Guaranteed Maximum
Price ( "GMP "), as provided by § 271.118.
All modifications to th
roject prior to the execution of the Project Construction
Contract for the Project Improvements 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 in cooperation with RRB and submitted by City to RRB for its
approval. Any changes in the Project Plans shall be subject to the prior approval of RRB and the City. Any
termination and replacement of the Project Contractor following a default by the Project Contractor shall
be subject to the approval of RRB.
Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the City shall cause
Substantial Completion of all of the Project Improvements Work for Project Improvements to occur on or
before April 1, 2004 (such date, as so extended, being the "Deadline for Substantial Completion ").
1 .
Section 7.3 Record Drawings and Other Documents. Upon Substantial Completion of the
Project Improvements Work for Project Improvements , 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
Improvements, (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
4
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 Improvements and all subcontracts for the supply of equipment
or systems to the Project Contractor for the Project Improvements 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 all contracts or other agreements with third parties for the
design or construction of the Project Improvements Work, including, but not limited to any and all such
claims under the Project Construction Contract (each a "Warranty 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 Improvements
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 Improvements and all portions thereof for the following purposes, and at normal
construction hours during the construction period, 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 Improvements Work or the activities of the City's contractors, and (iii) take such reasonable
protective precautions or measures as the City or the Project Contractor may reasonably request, given the
stage of the Project Improvements 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 Improvements 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 Project Improvements sponsored by RRB.
5
Section 7.6 Construction Cooperation/Coordination. The City agrees that at all times during
the Project Improvements Work for the Project Improvements, the City will do the following:
(a) Conduct the Project Improvements Work, and require all of its contractors,
subcontractors and agents to conduct the Project Improvements Work, in cooperation with RRB so
that (I) RRB will be kept reasonably apprized of all aspects of the Project Improvements 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 Improvements Work or the Leased Premises, unless
directed otherwise by RRB or any such notice or coirespondence 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 Improvements 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
Improvements 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
and the City is a third party beneficiary of the agreements with such parties. RRB has entered into the
Architect's Contract (as described above) and agrees to notify the Architect that the City is a third party
beneficiary of the agreements of the Architect under the Architect's Contract. RRB agrees to cause the
Architect to deliver to the City 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 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, 2004, which RRB is unable to utilize the Project Improvements 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
6
clause (ii) of this Section7.7 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 attomeys' 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 ( "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 Project Costs. RRB agrees to pay when due all Project Costs in excess of the City
Contribution. RRB shall pay such costs within fifteen (15) days after the receipt ofa 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.
ARTICLE 9
RRB'S CONTRIBUTIOJ{
Section 9.1 RRB's Contribution. Concurrent with the execution hereof, RRB agrees to deposit
with the City its cash deposit of $50,000, to be applied to Project Design Costs. Prior to Construction
Contract Execution, RRB agrees to deposit with the City an additional cash contribution in the amount of
$750,000.00, or the total Project Design Costs plus the amount of the GMP less the City's Contribution,
whichever amount is more, herein referred to as the "RRB Contribution."
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 and any issuance of, changes to, or modifications of, the Project Submission
Matters must be approved by the City.
Section 10.2 Items and Matters to be Reviewed and Confirmed and/or Ap proved by RRB.
The City must obtain the prior approval of RRB, acting through the RRB Representative, of the Project
Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters.
7
Section 11.1 Events of Default.
ARTICLE 11
DEFAULTS AND REMEDIES
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 ofthe 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 Improvements 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 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
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 ":
8
(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 receiver, 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 113 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 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.
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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
AN' FECT 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 Iniunctive 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.
ARTICLE 12
ASSIGNMENT
Section 12.1 Assignments of RRB' slnt erest. RRBshallnotsell ,assignortransferitsrightsunder
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 thereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute or
Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation
or enforcement of this Agreement, the Parties shall first attempt in good faith to settle and resolve such
Dispute or Controversy by mutual agreement in accordance with the terms of this Article 13. In the event
10
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 anytime 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 are unmodified and in full force and effect (or, if there have been
modifications, that the Agreement are 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 143 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 aright 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 connection with exercising its Review and
11
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.
143.3 Deemed Approval or Consent. Ifno response from the Reviewing Party is delivered
to the Submitting Party within thirty (30) days after the submission, or such shorter time as maybe required
hereby.
143.4 Key Elements of the Project. 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 Improvements
to conform to minor league baseball rules and regulations, (vi) any violation of applicable Governmental
Rule or (viii) 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 herein 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 the Agreement, capitalized
terms used in the Agreement and all appendices, schedules and exhibits thereto shall have the respective
meanings given in Appendix A to the Agreement.
Section 14.7 Survival. Except as otherwise expressly provided in the Agreement or in any other
Project Document, the representations, warranties, covenants and agreements of the Parties contained or
12
provided for in such instruments and the Parties' obligations under any and all thereof shall survive the
execution and delivery of such instruments.
Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests and other
communications given to a Party under the Agreement shall be given in writing to such Party at the address
set forth in Appendix B to the Agreement or at such other address as such Party shall designate by written
notice to each of the other Party to the 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 the 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 the 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 teen and provision of the 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 the 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. The 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 the Agreement nor any
of the terms thereof maybe 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 Tale of Contentst Headings. The table of contents and headings of the various
articles, sections and other subdivisions of the 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 the Agreement
shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns.
Nothing in the 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.
13
Section 14.13 Method of Payment. All amounts required to be paid by any Party to the other Party
or any Person, either under the 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 ofpublic 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. The 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. The Agreement and the actions of the parties hereunder shall in all
respects be govemed 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 agreementofthe 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 the 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 or 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 the Agreement or in the resolution of any ambiguity of any provision thereof.
Section 14.19 Attorneys' Fees. If 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 any part thereof, or the exercise of any other remedy therein provided for such default, in the hands of an
attomey 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 attomeys' 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 attomeys' fees incurred in any post- judgment proceedings to collect or enforce
14
the judgment. This provision is separate and several and shall survive the merger of the Agreement into any
judgment on such instrument.
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 purposes 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.
IN WITNESS WHEREOF, this Agreement has been executed by the City on June 12, 2003.
CITY OF ROUND ROCK, TEXAS ROUND ROCK BASEBALL, INC.
By: B
Nyle Maxwell, Mayor Reid Ryan, President
15
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, instnuent 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.
16
8. Pronouns, whenever used in any agreement or instrument that is govemed by this Appendix
and ofwhatever gender, shall include natural persons, corporations, limited liability companies, partnerships,
and associations of every kind and character.
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
that 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 Houston, Texas.
14. References to "$" or to "dollars" shall mean the lawful currency of the United States of
America.
"Architect" means HKS, INC.
Glossary of Defined Terms
"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 Improvements, 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.
"City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city.
"City's Contribution" shall mean the sum of $800,000.00, or less as set forth in Article 6.
"Ci R resentatives" shall have the meaning given to it in Section 2.1 of the Agreement.
17
"Component" means any item that is incorporated into the Project Improvements, or any portion
thereof, including, by way of illustration and not limitation, all ancillary systems included in the Project
Improvements, 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 Section7.2 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 be June 12, 2003.
"Equipment Lease" means any lease whereby a Component of the Project hnprovements is to be
leased (whether combined with a purchase option or not).
"Event of Default" shall have the meaning given to it in Sections 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 Improvements Work or any Component of the balance of the Project
Improvements 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 Majeure" 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, 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
18
claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic
hardship.
"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.
"Guaranteed Maximum Price" or "GMP" means the guaranteed maximum price for the Project
Improvements established in the Project Construction Contract, as amended from time to time in accordance
with such Contract.
Lease.
"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 Improvements, as the same may be amended, supplemented, modified,
renewed or extended from time to time. In accordance with the terms 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 Term" shall mean the "Tenn" 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.
"Agreement" means the Agreement Regarding Phase I 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.
"Operating Expenses" shall mean the costs to operate, repair, and maintain the Project
Improvements.
"Parties" shall have the meaning given to it in the first paragraph of the Agreement.
19
"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 defined in this 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, 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
Improvements Work in accordance with all of the requirements of the Agreement and other transaction
documents, and (ii) payment in full of all Project Costs.
" Proiect Construction Contract(s) "means the construction contract(s) approved by RRB and the City
between the City or RRB and the Project Contractor for the construction of the Project Improvements, as
the same maybe 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 Improvements 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 Improvements 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, attomeys, and other consultants necessary
20
to complete the design, development, construction, and furnishing of the Project Improvements; 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 " shall have the meaning given to it in Section 6.2.
"Project Fund" means the amount of money equal to the Project Contract Sum to complete the
Project Improvements.
"Project Improvements" means the improvements listed in Exhibit "A" and as described more fully
in the Project Construction Contract.
"Project Improvements Work" means the design, development, construction, furnishing, and
placement in service and Final Completion of the Project Improvements at 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
Improvements 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 Improvements 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;
21
(0
(g)
(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
Equipment Leases;
Service Contracts; and
(h) Any contract or agreement for inspection of the Project Improvements 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.
"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's Contribution" means the sum of money set forth in Article 9.
"RRB Default" shall have the meaning given to it in Section 11.1.2 of the Agreement.
"RRB Representatives" 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.
22
"Substantial Completion Date" shall mean the date on which Substantial Completion of all of the
Project Improvements Work occurs.
"Transfer" shall have the meaning given to it in Section 12.1 of the Agreement.
"Warranty Claim" shall have the meaning given to it in Section 7.4 of the Agreement.
23
(1)
All notices to the City shall be sent to:
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
Attention: James R. Nuse, City Manager
Facsimile Number: 512- 218 -7097
with copies being sent to:
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Facsimile Number: 512- 255 -8986
(2) All notices to RRB shall be sent to:
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, Texas 78683
Attention: Reid Ryan
Fax: (512) 255 -1558
With copy to: Nolan Ryan
2900 South Gordon
Alvin, Texas 77512
Fax: (281) 585 -2238
APPENDIX B
TO
AGREEMENT
ADDRESSES FOR NOTICES
24
EXHIBIT "A"
TO
AGREEMENT
Description of Phase I Improvements
1) Home Run Porch.. An elevated grandstand area over the left field concourse. The Home
Run Porch includes approximately 850 additional chair back seats and additional covered concourse
area for larger conventions, exhibitions, and craft and trade shows.
2) Upper concourse. The upper concourse will connect the suite and party level with the Home
Run Porch. It allows for additional covered concourse on the lower level and it will allow for the
utilization of existing elevators.
3) East Entrance Gate. This gate will be located along the eastern edge of the Dell Diamond
and will provide fan access from the east parking lot, and will include a ticket booth and ADA
access.
4) Sky Boxes. Six additional Sky Boxes were included in the original design of the Convention
Center Complex, but were deleted as a cost saving measure in 1998. The addition of these previously
deleted Sky Boxes will add to the covered concourse on the lower level. This section will also cover
the last exposed concession stand.
25
EXHIBIT "B"
TO
AGREEMENT
Project Design Costs
(a) Engineering, surveying, testing
(b) Legal Services,
(c) Architectural Services, and
(d) Miscellaneous
TOTAL $100,000.00
26
•
DATE: June 6, 2003
SUBJECT: City Council Meeting — June 12, 2003
ITEM: 10.G.1. Consider a resolution authorizing the Mayor to execute an
Agreement Regarding Phase I Improvements to the Dell
Diamond /United Heritage Center with Round Rock Baseball, Inc.
Resource: Jim Nuse, City Manager
Steve Sheets, City Attorney
Funding:
Cost: Up to $800,000
Source of funds: Hotel Occupancy Tax fund
•
History: The City of Round Rock owns the Convention Center/ Stadium Complex. It is
leased to the Round Rock Express Baseball Club for 38 years. The City contributed
$7.2 million towards the initial project and RREBC contributed nearly $17.5 million.
Subsequent to the initial construction, RREBC has performed nearly $4 million in
improvements to the facility without participation from the City. RREBC wishes to
further improve the complex by constructing a Home Run Porch; Upper Concourse;
East Entrance Gate; and six additional Sky boxes. The estimated cost of these
improvements is $1.6 million. RREBC desires that the City participates in these
improvements by using up to $800,000 of the cash reserve from the Hotel
Occupancy Tax.
A Memorandum Of Understanding between the City of Round Rock and the Round
Rock Baseball Club regarding the proposed expansion of the Dell Diamond /United
Heritage Center Complex was approved by the Council on April 24, 2003.
Outside Resources: Round Rock Express Baseball Club
Impact: This proposal will utilize a portion of the current cash balance from the Hotel Occupancy
Tax fund.
Benefit: The improvements will improve our ability to attract and promote tourism.
Public Comment: None
Sponsor: Staff
00051864
AGREEMENT
REGARDING PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
Dated as of June 12, 2003
between
CITY OF ROUND ROCK, TEXAS
as the City
and
ROUND ROCK BASEBALL, INC.
as RRB
R- C3 -0'-/ -)O&/
ARTICLE 1
ARTICLE 2
TABLE OF CONTENTS
Page
GENERAL TERMS 1
Section 1.1 Definitions and Usage 1
REPRESENTATIVES OF THE PARTIES 2
Section 2.1 The City Representatives. 2
Section 2.2 RRB Representatives. 2
ARTICLE 3
TERM 2
Section 3.1 Term 2
ARTICLE 4
PROJECT DESIGN 2
Section 4.1 Design. 2
ARTICLE 5
CONDITIONS 2
Section 5.1 Conditions to RRB's Obligations to Perform 2
Section 5.2 Conditions to City's Obligations to Perform 2
Section 5.3 Termination for Failure of Conditions 3
ARTICLE 6
PROJECT COSTS 3
Section 6.1 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 4
ARTICLE 7
SCOPE OF DEVELOPMENT 4
Section 7.1 Project Improvements 4
ARTICLE 8
ARTICLE 9
ARTICLE 10
ARTICLE 11
Section 7.2 Completion Dates 4
Section 7.3 Record Drawings and Other Documents 4
Section 7.4 Contract Requirements and Warranty Claims 5
Section 7.5 Access to the Project 5
Section 7.6 Construction Cooperation/Coordination 6
Section 7.7 Liquidated Damages 6
RRB OBLIGATIONS 7
Section 8.1 RRB Requested Additions or Modifications 7
Section 8.2 Project Costs 7
RRB's CONTRIBUTION 7
Section 9.1 RRB's Contribution 7
APPROVALS AND RELATED MATTERS 8
Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by
the City 8
Section 10.2 Items and Matters to be Reviewed and Confirmed and/or Approved by
RRB 8
ARTICLE 12
DEFAULTS AND REMEDIES 8
Section 11.1 Events of Default 8
Section 11.2 RRB's Remedies 9
Section 11.3 The City's Remedies 9
Section 11.4 Cumulative Remedies 10
Section 11.5 No Indirect Damages 10
Section 11.6 Declaratory or Injunctive Relief 10
ASSIGNMENT 10
Section 12.1 Assignments of RRB's Interest 10
Section 12.2 Transfers by the City 10
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ARTICLE 13
DISPUTE RESOLUTION 11
Section 13.1 Dispute Resolution 11
ARTICLE 14
GENERAL PROVISIONS 11
Section 14.1 Relationship of the Parties 11
Section 14.2 Certificates Regarding Project Documents 11
Section 14.3 Approvals and Consents; Standards for Review 11
Section 14.4 Incorporation of Appendices. Schedules and Exhibits 12
Section 14.5 Interest on Overdue Obligations 13
Section 14.6 Definitions 13
Section 14.7 Survival 13
Section 14.8 Notices 13
Section 14.9 Severability 13
Section 14.10 Entire Agreement Amendment and Waiver 13
Section 14.11 Table of Contents- Headings 14
Section 14.12 Parties in Interest; Limitation on Rights of Others 14
Section 14.13 Method of Payment 14
Section 14.14 Counterparts 14
Section 14.15 Governing Law 14
Section 14.16 Court Proceedings 14
Section 14.17 Time 14
Section 14.18 Interpretation and Reliance 15
Section 14.19 Attorneys' Fees 15
Section 14.20 Insurance Proceeds 15
iii
APPENDICES AND EXHIBITS
APPENDICES:
APPENDIX A Rules of Usage and Glossary of Defined Terms 16
APPENDIX B Addresses for Notices 24
EXHIBITS:
EXHIBIT "A" Description of Phase I Improvements 25
EXHIBIT "B" Project Design Costs 26
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PAGE
AGREEMENT REGARDING
PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
THIS AGREEMENT REGARDING PHASE I IMPROVEMENTS TO THE DELL
DIAMOND / UNITED HERITAGE CENTER (this " Agreement ") is made and entered into
effective as of the 12 day of June, 2003, (the "Effective Date ") by and between the CITY OF
ROUND ROCK, TEXAS, a Texas home rule municipal corporation (the "City ") and ROUND
ROCK BASEBALL, INC., a Texas corporation ( "RRB "). The City and RRB collectively are
referred to herein as the "Parties."
RECITALS
A. On January20, 1999, the City and Ryan Sanders Ryan, Inc. ( "RSR ") entered into that
one certain Convention Center Complex Lease Agreement ( "Lease ") whereby the City agreed to
lease to RSR a convention center complex . In accordance with the terms 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 the expansion of the DDUHC in one or more
phases. The Phase 1 Improvements are described in Exhibit "A" and are 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 RRB shall design, and RRB and the City shall develop and construct
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 James R. Nuse, P.E. and
David Kautz to be the City Representatives (the "Cit epresentatives. ") 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 Representatives. RRB hereby designates Reid Ryan and Reese Ryan
to serve as the RRB Representatives (the "RRB Representatives. ") Any consent, approval, decision
or determination hereunder by either of the RRB Representatives shall be binding onRRB; rovided,
however, the RRB Representatives 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 Substantial Completion Date (the
"Project Term. ")
ARTICLE 4
PROJECT DESIGN
Section 4.1 Desi¢n. RRB has entered into the Architect's Contract with the Architect for
the preliminary design of the Project Plans. It is anticipated that such contract will be supplemented
and /or replaced with an Architect's Contract between the City and Architect for the final 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. RRB will continue to provide design
assistance and operational input to the Architect.
ARTICLE 5
CONDITIONS
Section 5.1 Conditions to RRB's Obligations to Perform. It shall be a condition
precedent to the performance of RRB's obligations under this Agreement that on or before August
31, 2003, an acceptable GMP (as defined in Section 7.1 below) shall have been agreed to by the
Parties.
Section 5.2 Conditions to City's Obligations to Perform. As provided for in Article 9
below, prior to Construction Contract Execution and satisfaction of the other requirements set forth
therein, RRB is to contribute to the City the RRB Contribution which sum is to be used by the City
in constructing the Project Improvements. It shall be a condition to the City's obligations to construct
2
the Project Improvements Work, that RRB will make the RRB Contribution to the City prior to
Construction Contract Execution.
Section 5.3 Termination for Failure of Conditions. (a) 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, 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.
(b) If for any reason the condition set forth in Section 5.2 of this Agreement has not been
fully and timely satisfied, this Agreement shall terminate at the sole option of the City by written
notice to RRB and upon such termination by City, 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.
ARTICLE 6
PROJECT COSTS
Section 6.1 Project Costs. "Project Costs" includes all of the costs to design, construct,
and equip the Project Improvements. Without limitation, Project Costs includes Project Design Costs
as defined in Section 6.2 below and in Appendix A.
Section 6.2 Project Design Costs. The City agrees to contribute up to $50,000.00 toward
the payment of 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 costs shown on Exhibit "B ", attached hereto and incorporated herein.
In the event the Project is terminated prior to Construction Contract Execution, all Project Design
Costs in excess of the $50,000.00 City contribution shall be paid by RRB.
Section 6.3 City's Contribution to Project Costs. The City's sole contribution to all
Project Costs is the sum of $800,000.00, or fifty percent (50 %) of the Project Costs, whichever is
less (herein 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 $800,000.00 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
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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.
Section 6.4 RRB's Contribution to Project Costs. RRB agrees to pay for all Project
Costs that exceed the City's Contribution.
ARTICLE 7
SCOPE OF DEVELOPMENT
Section 7.1 Project Improvements. The Parties anticipate utilizing the Construction
Manager -at -Risk method of project delivery in accordance with § 271.118 of the Texas Local
Government Code. The City shall enter into a Project Construction Contract with the offeror that
submits the proposal that offers the best value based on the published selection criteria and ranking
evaluation, for the Project Improvements Work for the Project Improvements The Project
Construction Contract shall include a Guaranteed Maximum Price ( "GMP ") as provided by §
271.118. City agrees to allow RRB representatives to participate in developing the selection criteria
and in the ranking evaluation of the proposals for Construction Manager -at -Risk. All modifications
to the Project prior to the execution of the Project Construction Contract for the Project
Improvements 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 in cooperation with RRB and submitted by City
to RRB for its approval. Any changes in the Project Plans shall be subject to the prior approval of
RRB and the City. Any termination and replacement of the Project Contractor following a default
by the Project Contractor shall be subject to the approval of RRB.
Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the City shall
cause Substantial Completion of all of the Project Improvements Work for Project Improvements
to occur on or before April 1, 2004 (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 Improvements Work for Project Improvements , 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 Improvements, (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)
4
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 Improvements and all subcontracts for the supply
of equipment or systems to the Project Contractor for the Project Improvements 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
all contracts or other agreements with third parties for the design or construction of the Project
Improvements Work, including, but not limited to any and all such claims under the Project
Construction Contract (each a "Warranty 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 Improvements 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 Improvements and all portions thereof for the following
purposes, and at normal construction hours during the construction period, 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 Improvements Work or the activities
of the City' s contractors, and (iii) take such reasonable protective precautions or measures as the City
or the Project Contractor may reasonably request, given the stage of the Project Improvements 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 Improvements 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;
5
(d) Installation of any additional fixtures or equipment; and
(e) Tours of the Land and Project Improvements sponsored by RRB.
Section 7.6 Construction Cooperation/Coordination. The City agrees that at all times
during the Project Improvements Work for the Project Improvements, the City will do the following:
(a) Conduct the Project Improvements Work, and require all of its contractors,
subcontractors and agents to conduct the Project Improvements Work, in cooperation with
RRB so that (i) RRB will be kept reasonably apprized of all aspects of the Project
Improvements 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 Improvements 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 Improvements 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
Improvements Work or the Leased Premises, including, but riot 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 and the City is a third party beneficiary of the agreements with such parties. RRB has entered
into the Architect's Contract (as described above) and agrees to notify the Architect that the City is
a third party beneficiary of the agreements of the Architect under the Architect's Contract. RRB
agrees to cause the Architect to deliver to the City 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 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, 2004, which RRB is unable to utilize the Project
6
Improvements 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 Section7.7 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 ( "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 Project Costs. RRB agrees to pay when due all Project Costs in excess of the
City 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.
ARTICLE 9
RRB'S CONTRIBUTION
Section 9.1 RRB's Contribution. Concurrent with the execution hereof, RRB agrees to
deposit with the City its cash deposit of $50,000, to be applied to Project Design Costs. Prior to
Construction Contract Execution, RRB agrees to deposit with the City an additional cash
contribution in the amount of $750,000.00, or the total Project Design Costs plus the amount of the
GMP less the City's Contribution, whichever amount is more, herein referred to as the "RRB
Contribution."
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Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by
the City. All Project Submission Matters and any issuance of, changes to, or modifications of, the
Project Submission Matters must be approved by the City.
Section 10.2 Items and Matters to be Reviewed and Confirmed and/or Approved by
RRB. The City must obtain the prior approval of RRB, acting through the RRB Representative, of
the Project Submission Matters and any issuance of or changes to, or modifications of, the Project
Submission Matters.
Section 11.1 Events of Default.
ARTICLE 10
APPROVALS AND RELATED MATTERS
ARTICLE 11
DEFAULTS AND REMEDIES
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 Improvements 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
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 RRB to the City of such failure
8
(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 receiver, 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.
9
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 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.
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.
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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 thereunder (a "Dispute or Controversy "), including, but not limited to,
a Dispute or Controversy relating to the effectiveness, validity, interpretation, implementation,
termination, cancellation or enforcement of this Agreement, the Parties shall first attempt in good
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 are unmodified and in full force and effect (or, if
there have been modifications, that the Agreement are 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 apotential 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,
11
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 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.
14.3.4 Key Elements of the Project. 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 Improvements to conform to minor league baseball rules and regulations, (vi)
any violation of applicable Governmental Rule or (viii) 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 herein by this reference in their entirety and made a part
hereof for all purposes.
12
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 the Agreement,
capitalized terms used in the Agreement and all appendices, schedules and exhibits thereto shall have
the respective meanings given in Appendix A to the Agreement.
Section 14.7 Survival. Except as otherwise expressly provided in the 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.
Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests and
other communications given to a Party under the Agreement shall be given in writing to such Party
at the address set forth in Appendix B to the Agreement or at such other address as such Party shall
designate by written notice to each of the other Party to the 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 the 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 the 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 the 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 the 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. The 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
13
the 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 the 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 the
Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted
successors and assigns. Nothing in the 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.
Section 14.13 Method of Payment. All amounts required to be paid by any Party to the
other Party or any Person, either under the 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. The 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. The 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 the Agreement, any transaction
contemplated thereby or any judgment entered by any court in respect of any thereofmaybe 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 or 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
14
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 the Agreement or in the resolution of any ambiguity of any provision
thereof.
Section 14.19 Attorneys' Fees. If 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 any part thereof, or the exercise of any other remedy therein provided for such
default, in the hands of an attomey 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 attomeys' 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 the Agreement into any judgment on such instrument.
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 purposes 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.
2003.
IN WITNESS WHEREOF, this Agreement has been executed and effective on June 12,
CITY OF ROUND ROCK, TE
Bv:
, Mayor
15
By:
Rei Ryan, P a :ent
CK BASEBALL, INC.
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.
16
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.
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 that 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 Houston, Texas.
14. References to "5" or to "dollars" shall mean the lawful currency of the United States
of America.
"Architect" means HKS, INC.
Glossary of Defined Terms
"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 Improvements, the preparation of the
Project Plans, and construction administration services, as the same maybe 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.
"City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home
rule city.
"City's Contribution" shall mean the sum of $800,000.00, or less as set forth in Article 6.
"City Representatives" shall have the meaning given to it in Section 2.1 of the Agreement.
17
"Component" means any item that is incorporated into the Project Improvements, or any
portion thereof, including, by way of illustration and not limitation, all ancillary systems included
in the Project Improvements, 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 Section7.2 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 be June 12, 2003.
"Equipment Lease" means any lease whereby a Component of the Project Improvements is
to be leased (whether combined with a purchase option or not).
"Event of Default" shall have the meaning given to it in Sections 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 Improvements Work or any Component of the balance
of the Project Improvements 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 Majeure" 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, 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
18
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.
"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.
"Guaranteed Maximum Price" or "GMP" means the guaranteed maximum price for the
Project Improvements established in the Project Construction Contract, as amended from time to
time in accordance with such Contract.
"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 Improvements, as the same may be amended,
supplemented, modified, renewed or extended from time to time. In accordance with the terms 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.
"Agreement" means the Agreement Regarding Phase I 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.
"Operating Expenses" shall mean the costs to operate, repair, and maintain the Project
Improvements.
19
"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 defined in this 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, 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 Improvements 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 RRB and
the City between the City or RRB and the Project Contractor for the construction of the Project
Improvements, 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
Improvements 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 Improvements 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
20
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, attomeys, and other consultants necessary to complete the
design, development, construction, and furnishing of the Project Improvements; 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 " shall have the meaning given to it in Section 6.2.
"Project Fund" means the amount of money equal to the Project Contract Sum to complete
the Project Improvements.
"Project Improvements" means the improvements listed in Exhibit "A" and as described
more fully in the Project Construction Contract.
"Project Improvements Work" means the design, development, construction, furnishing, and
placement in service and Final Completion of the Project Improvements at 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 Improvements 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 Improvements Construction Schedule;
(c) The Project Plans;
(d) The Project Construction Contract;
21
(e)
(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)
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;
Service Contracts; and
(h) Any contract or agreement for inspection of the Project Improvements 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.
"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's Contribution" means the sum of money set forth in Article 9.
"RRB Default" shall have the meaning given to it in Section 11.1.2 of the Agreement.
"RRB Representatives" 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.
22
"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 Improvements Work occurs.
"Transfer" shall have the meaning given to it in Section 12.1 of the Agreement.
"Warranty Claim" shall have the meaning given to it in Section 7.4 of the Agreement.
23
(1)
All notices to the City shall be sent to:
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
Attention: James R. Nuse, City Manager
Facsimile Number: 512- 218 -7097
with copies being sent to:
With copy to: Nolan Ryan
2900 South Gordon
Alvin, Texas 77512
Fax: (281) 585 -2238
APPENDIX B
TO
AGREEMENT
ADDRESSES FOR NOTICES
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Facsimile Number: 512- 255 -8986
(2) All notices to RRB shall be sent to:
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, Texas 78683
Attention: Reid Ryan
Fax: (512) 255 -1558
24
EXHIBIT "A"
TO
AGREEMENT
Description of Phase I Improvements
1) Home Run Porch.. An elevated grandstand area over the left field concourse. The
Home Run Porch includes approximately 850 additional chair back seats and additional
covered concourse area for larger conventions, exhibitions, and craft and trade shows.
2) Upper concourse. The upper concourse will connect the suite and party level with
the Home Run Porch. It allows for additional covered concourse on the lower level and it
will allow for the utilization of existing elevators.
3) East Entrance Gate. This gate will be located along the eastern edge of the Dell
Diamond and will provide fan access from the east parking lot, and will include a ticket
booth and ADA access.
4) Sky Boxes. Six additional Sky Boxes were included in the original design of the
Convention Center Complex, but were deleted as a cost saving measure in 1998. The
addition of these previously deleted Sky Boxes will add to the covered concourse on the
lower level. This section will also cover the last exposed concession stand.
25
EXHIBIT "B"
TO
AGREEMENT
Project Design Costs
(a) Engineering, surveying, testing
(b) Legal Services,
(c) Architectural Services, and
(d) Miscellaneous
TOTAL $100,000.00
26
Mayor
Nyle Maxwell
Mayor Pro-tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Jim Nuse
City Attorney
Stephan L. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
June 24, 2003
Mr. Reid Ryan, President
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, TX 78683
Dear Mr. Ryan:
The Round Rock City Council approved Resolution No. R- 03- 06 -12-
10G1 at their regularly scheduled meeting on June 12, 2003. This
resolution approves the Agreement regarding Phase I Improvements to
the Dell Diamond /United Heritage Center.
Enclosed is a copy of the resolution and original agreement for your
files. If you have any questions, please do not hesitate to contact Jim
Nuse at 218 -5402.
Christine R. Martinez
City Secretary
Enclosure
CITY OF ROUND ROCK Administrative Dept., 221 East Main Street • Round Rock, Texas 78664
Phone: 5¢.4i8.5400 • Fax: 5¢.218 - 7097 • www_ci.round- rock.tx.us
Mayor
Nyle Maxwell
Mayor Pro-tent
Tom Nielson
Council Members
Alan McGraw
Carrie Pin
Scot Knight
Isabel Callahan
Gary Coe
City Manager
Jim Nuse
City Attorney
Stephan t. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
June 24, 2003
Mr. Nolan Ryan
2900 South Gordon
Alvin, Texas 77512
Dear Mr. Ryan:
The Round Rock City Council approved Resolution No. R- 03- 06 -12-
10G1 at their regularly scheduled meeting on June 12, 2003. This
resolution approves the Agreement regarding Phase I Improvements to
the Dell Diamond /United Heritage Center.
Enclosed is a copy of the resolution and original agreement for your
files. If you have any questions, please do not hesitate to contact Jim
Nuse at 218 -5402.
Christine R. Martinez
City Secretary
Enclosure
CITY OF ROUND ROCK Administrative Dept., 221 East Main Street • Round Rock, Texas 78664
Phone: 512_218540o • Fax: 512.218.7047 • www.ci.round- rock.tx.us
Draft: 6/05/03
00051409
AGREEMENT
REGARDING PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
Dated as of June 12, 2003
between
CITY OF ROUND ROCK, TEXAS
as the City
and
ROUND ROCK BASEBALL, INC.
as RRB
ARTICLE 1
ARTICLE 2
TABLE OF CONTENTS
Page
GENERAL TERMS 1
Section 1.1 Definitions and Usage 1
REPRESENTATIVES OF THE PARTIES 2
Section 2.1 The City Representatives. 2
Section 2.2 RRB Representatives. 2
ARTICLE 3
TERM 2
Section 3.1 Term 2
ARTICLE 4
PROJECT DESIGN 2
Section 4.1 Design. 2
ARTICLE 5
CONDITIONS 2
Section 5.1 Conditions to RRB's Obligations to Perform 2
Section 5.2 Conditions to City's Obligations to Perform 2
Section 5.3 Termination for Failure of RRB's Conditions 3
ARTICLE 6
PROJECT COSTS 3
Section 6.1 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 4
i
ARTICLE 7
ARTICLE 8
ARTICLE 9
ARTICLE 10
ARTICLE 11
SCOPE OF DEVELOPMENT 4
Section 7.1 Project Improvements 4
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 5
Section 7.6 Construction Cooperation/Coordination 5
Section 7.7 Liquidated Damages 6
RRB OBLIGATIONS 7
Section 8.1 RRB Requested Additions or Modifications 7
Section 8.2 Project Costs 7
RRB's CONTRIBUTION 7
Section 9.1 RRB's Contribution 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 to be Reviewed and Confirmed and/or Approved by
RRB 7
DEFAULTS AND REMEDIES 8
Section 11.1 Events of Default 8
Section 11.2 RRB's Remedies 9
Section 11.3 The City's Remedies 9
Section 11.4 Cumulative Remedies 9
Section 11.5 No Indirect Damages 9
Section 11.6 Declaratory or Injunctive Relief 10
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ARTICLE 12
ASSIGNMENT 10
Section 12.1 Assignments of RRB's Interest 10
Section 12.2 Transfers by the City 10
ARTICLE 13
DISPUTE RESOLUTION 10
Section 13.1 Dispute Resolution 10
ARTICLE 14
GENERAL PROVISIONS 11
Section 14.1 Relationship of the Parties 11
Section 14.2 Certificates Re ardin ' Pro'ect Do ment 11
Section 14.3 Approvals and Consents: Standards for Review 11
Section 14.4 Incorporation of Appendices. Schedules and Exhibits 12
Section 14.5 Interest on Overdue Obligations 12
Section 14.6 Definitions 12
Section 14.7 Survival 12
Section 14.8 Notices 12
Section 14.9 Severability 13
Section 14.10 Entire Apxeement: Amendment and Waiver 13
Section 14.11 Table of Contents: Headings 13
Section 14.12 Parties in Interest: Limitation on Rights of Others 13
Section 14.13 Method of Payment 13
Section 14.14 Counterparts 14
Section 14.15 Governing Law 14
Section 14.16 Court Proceedings 14
Section 14.17 Time 14
Section 14.18 Interpretation and Reliance 14
Section 14.19 Attorneys' Fees 14
Section 14.20 Insurance Proceeds 14
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APPENDICES:
APPENDIX A
APPENDIX B
EXHIBITS:
EXHIBIT "A"
EXHIBIT "B"
APPENDICES AND EXHIBITS
Rules of Usage and Glossary of Defined Terms
Addresses for Payments and Notices
Description of Phase I Improvements
Project Design Costs
iv
AGREEMENT REGARDING
PHASE I IMPROVEMENTS TO
THE DELL DIAMOND/UNITED HERITAGE CENTER
THIS AGREEMENT REGARDING PHASE I IMPROVEMENTS TO THE DELL DIAMOND /
UNITED HERITAGE CENTER (this " Agreement ") is made and entered into effective as of the 12'" day
of June, 2003, (the "Effective Date ") by and between the CITY OF ROUND ROCK, TEXAS, a Texas
home rule municipal corporation (the "City") 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 ( "Lease ") whereby the City agreed to lease to RSR
a convention center complex . In accordance with the terms 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 the expansion of the DDUHC in one or more phases.
The Phase 1 Improvements are described in Exhibit "A" and are 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 RRB shall design, and RRB and the City shall develop and construct 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.
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ARTICLE 2
REPRESENTATIVES OF THE PARTIES
Section 2.1 The City Representatives. City hereby designates James R. Nuse, P.E. and David
Kautz to be the City 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 Representatives. RRB hereby designates Reid Ryan and Reese Ryan to serve
as the RRB Representatives (the "RRB Representatives. ") Any consent, approval, decision or determination
hereunder by either of the RRB Representatives shall be binding on RRB; provided, however, the RRB
Representatives 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 Substantial Completion Date (the "Project
Term. ")
ARTICLE 4
PROJECT DESIGN
Section 4.1 Desian. RRB has entered into the Architect's Contract with the Architect for the
preliminary design of the Project Plans. It is anticipated that such contract will be supplemented and /or
replaced with an Architect's Contract between the City and Architect for the final 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 RRB's Obligations to Perform. It shall be a condition precedent to
the performance of RRB's obligations under this Agreement that on or before August 31, 2003, Construction
Contract Execution shall have occurred in accordance with this Agreement.
Section 5.2 Conditions to City's Obligations to Perform. As provided for in Article 9 below,
prior to Construction Contract Execution and satisfaction of the other requirements set forth therein, RRB
is to contribute to the City the RRB Contribution which sum is to be used by the City in constructing the
Project Improvements. It shall be a condition to the City's obligations to construct the Project Improvements
Work, that RRB will make the RRB Contribution to the City prior to Construction Contract Execution.
2
Section 5.3 Termination for Failure of Conditions. (a) 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, 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.
(b) If for any reason the condition set forth in Section 5.2 of this Agreement has not been fully and
timely satisfied, this Agreement shall terminate at the sole option of the City by written notice to RRB and
upon such termination by City, 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.
ARTICLE 6
PROJECT COSTS
Section 6.1 Project Costs. "Project Costs" includes all of the costs to design, construct, and equip
the Project Improvements. Without limitation, Project Costs includes Project Design Costs as defined in
Section 6.2 below and in Appendix A.
Section 6.2 Project Design Costs. The City agrees to contribute up to $50,000.00 toward the
payment of 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 costs shown on Exhibit "B ", attached hereto and incorporated herein. In the event the Project
is terminated prior to Construction Contract Execution, all Project Design Costs in excess of the $50,000.00
City contribution shall be paid by RRB.
Section 6.3 City's Contribution to Project Costs. The City's sole contribution to all Project
Costs is the sum of $800,000.00, or fifty percent (50 %) of the Project Costs, whichever is less (herein
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
$800,000.00 for Project Costs; it being the understanding of the Parties that ALL liability for Project Costs
in excess ofthe 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
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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.
Section 6.4 RRB's Contribution to Project Costs. RRB agrees to pay for all Project Costs that
exceed the City's Contribution.
ARTICLE 7
SCOPE OF DEVELOPMENT
Section 7.1 Project Improvements. The Parties anticipate utilizing the Construction Manager -at-
Risk method of project delivery in accordance with § 271.118 of the Texas Local Government Code. The
City shall enter into a Project Construction Contract with the offeror that submits the proposal that offers
the best value based on the published selection criteria and ranking evaluation, for the Project Improvements
Work for the Project Improvements The Project Construction Contract shall include a Guaranteed Maximum
Price ( "GMP "), as provided by § 271.118. All modifications to the Project prior to the execution of the
Project Construction Contract for the Project Improvements 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 in cooperation with RRB and submitted by City to RRB for its
approval. Any changes in the Project Plans shall be subject to the prior approval of RRB and the City. Any
termination and replacement of the Project Contractor following a default by the Project Contractor shall
be subject to the approval of RRB.
Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the City shall cause
Substantial Completion of all of the Project Improvements Work for Project Improvements to occur on or
before April 1, 2004 (such date, as so extended, being the "Deadline for Substantial Completion ").
Section 7.3 Record Drawings and Other Documents. Upon Substantial Completion of the
Project Improvements Work for Project Improvements , the City shall famish 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
Improvements, (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 Improvements and all subcontracts for the supply of equipment
or systems to the Project Contractor for the Project Improvements shall provide for the assignment of all
warranties, maintenance agreements thereunder to RRB and give RRB the independent right to enforce the
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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 all contracts or other agreements with third parties for the
design or construction of the Project Improvements Work, including, but not limited to any and all such
claims under the Project Construction Contract (each a "Warranty 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 Improvements
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 Improvements and all portions thereof for the following purposes, and at normal
construction hours during the construction period, 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 Improvements Work or the activities of the City's contractors, and (iii) take such reasonable
protective precautions or measures as the City or the Project Contractor may reasonably request, given the
stage of the Project Improvements 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 Improvements 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 Project Improvements sponsored by RRB.
Section 7.6 Construction Cooperation/Coordination. The City agrees that at all times during
the Project Improvements Work for the Project Improvements, the City will do the following:
(a) Conduct the Project Improvements Work, and require all of its contractors,
subcontractors and agents to conduct the Project Improvements Work, in cooperation with RRB so
that (I) RRB will be kept reasonably apprized of all aspects of the Project Improvements Work, (ii)
RRB can minimize the risk of any change orders, and (iii) RRB can coordinate the installation of
5
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 Improvements 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 Improvements 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
Improvements 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
and the City is a third party beneficiary of the agreements with such parties. RRB has entered into the
Architect's Contract (as described above) and agrees to notify the Architect that the City is a third party
beneficiary of the agreements of the Architect under the Architect's Contract. RRB agrees to cause the
Architect to deliver to the City 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 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, 2004, which RRB is unable to utilize the Project Improvements 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 Section7.7 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.
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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 ( "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 Project Costs. RRB agrees to pay when due all Project Costs in excess of the City
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.
ARTICLE 9
RRB'S CONTRIBUTION
Section 9.1 RRB's Contribution. Concurrent with the execution hereof, RRB agrees to deposit
with the City its cash deposit of $50,000, to be applied to Project Design Costs. Prior to Construction
Contract Execution, RRB agrees to deposit with the City an additional cash contribution in the amount of
$750,000.00, or the total Project Design Costs plus the amount of the GMP less the City's Contribution,
whichever amount is more, herein referred to as the "RRB Contribution."
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 and any issuance of, changes to, or modifications of, the Project Submission
Matters must be approved by the City.
Section 10.2 Items and Matters to be Reviewed and Confirmed and/or Approved by RRB.
The City must obtain the prior approval of RRB, acting through the RRB Representative, of the Project
Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters.
7
Section 11.1 Events of Default.
ARTICLE 11
DEFAULTS AND REMEDIES
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 Improvements 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 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
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
8
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 receiver, 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 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
9
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.
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 thereunder (a "Dispute or Controversy") including, but not limited to, a Dispute or
Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation
or enforcement of this Agreement, the Parties shall first attempt in good 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.
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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 are unmodified and in full force and effect (or, if there have been
modifications, that the Agreement are 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 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.
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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.
14.3.4 Key Elements of the Project. 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 Improvements
to conform to minor league baseball rules and regulations, (vi) any violation of applicable Governmental
Rule or (viii) 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 herein 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 the Agreement, capitalized
terms used in the Agreement and all appendices, schedules and exhibits thereto shall have the respective
meanings given in Appendix A to the Agreement.
Section 14.7 Survival. Except as otherwise expressly provided in the 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.
Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests and other
communications given to a Party under the Agreement shall be given in writing to such Party at the address
set forth in Appendix B to the Agreement or at such other address as such Party shall designate by written
12
notice to each of the other Party to the 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 the 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 the 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 the 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 the 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. The 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 the 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. H eadi ngs. The table of contents and headings of the various
articles, sections and other subdivisions of the 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 the Agreement
shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns.
Nothing in the 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.
Section 14.13 Method of Payment. All amounts required to be paid by any Party to the other Party
or any Person, either under the 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
13
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. The 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. The 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 the 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 or 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 the Agreement or in the resolution of any ambiguity of any provision thereof.
Section 14.19 Attorneys' Fees. If 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 any 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 the Agreement into any
judgment on such instrument.
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 purposes of paying
14
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.
IN WITNESS WHEREOF, this Agreement has been executed by the City on June 12, 2003.
CITY OF ROUND ROCK, TEXAS ROUND ROCK BASEBALL, INC.
By: By:
Nyle Maxwell, Mayor Reid Ryan, President
15
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.
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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.
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
that 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 govemedbythis Appendix shall be based upon Central Standard Time or Central Daylight
Savings Time, as applicable on the date in question in Houston, Texas.
14. References to "$" or to "dollars" shall mean the lawful currency of the United States of
America.
"Architect" means HKS, INC.
Glossary of Defined Terms
"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 Improvements, 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.
"City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city.
"City's Contribution" shall mean the sum of $800,000.00, or less as set forth in Article 6.
"City Representatives" shall have the meaning given to it in Section 2.1 of the Agreement.
17
"Component" means any item that is incorporated into the Project Improvements, or any portion
thereof, including, by way of illustration and not limitation, all ancillary systems included in the Project
Improvements, 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 Section7.2 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 I3 of the Agreement.
"Effective Date" shall be June 12, 2003.
"Equipment Lease" means any lease whereby a Component of the Project Improvements is to be
leased (whether combined with a purchase option or not).
"Event of Default" shall have the meaning given to it in Sections 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 Improvements Work or any Component of the balance of the Project
Improvements 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 Majeure" 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, 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
18
claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic
hardship.
"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.
"Guaranteed Maximum Price" or "GMP" means the guaranteed maximum price for the Project
Improvements established in the Project Construction Contract, as amended from time to time in accordance
with such Contract.
"Lease" means the Lease dated as January 20, 1999, between the City, as lessor, and RSR, as lessee,
and covering the Land and Project Improvements, as the same may be amended, supplemented, modified,
renewed or extended from time to time. In accordance with the terms the Lease, RSR assigned its interest
in the Lease to RRB by instrument dated March 29, 1999.
Lease.
"Land" shall mean the real property described on Exhibit A to the Lease.
"Lease Commencement Date" means the "Commencement Date," as such term is defined in the
"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.
"Agreement" means the Agreement Regarding Phase I 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.
"Operating Expenses" shall mean the costs to operate, repair, and maintain the Project
Improvements.
"Parties" shall have the meaning given to it in the first paragraph of the Agreement.
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"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 defined in this 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, 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
Improvements 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(sV' means the construction contract(s) approved by RRB and the City
between the City or RRB and the Project Contractor for the construction of the Project Improvements, 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 Improvements 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 Improvements 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, attomeys, and other consultants necessary
20
to complete the design, development, construction, and furnishing of the Project Improvements; 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 " shall have the meaning given to it in Section 6.2.
"Project Fund" means the amount of money equal to the Project Contract Sum to complete the
Project Improvements.
"Project Improvements" means the improvements listed in Exhibit "A" and as described more fully
in the Project Construction Contract.
"Project Improvements Work" means the design, development, construction, furnishing, and
placement in service and Final Completion of the Project Improvements at 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
Improvements 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 Improvements 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;
21
(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
(t) Equipment Leases;
(g)
Service Contracts; and
(h) Any contract or agreement for inspection of the Project Improvements 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.
"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's Contribution" means the sum of money set forth in Article 9.
"RRB Default" shall have the meaning given to it in Section 11.1.2 of the Agreement.
"RRB Representatives" 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.
22
"Substantial Completion Date" shall mean the date on which Substantial Completion of all of the
Project Improvements Work occurs.
"Transfer" shall have the meaning given to it in Section 12.1 of the Agreement.
"Warranty Claim" shall have the meaning given to it in Section 7.4 of the Agreement.
23
with copies being sent to:
APPENDIX B
TO
AGREEMENT
ADDRESSES FOR NOTICES
(1) All notices to the City shall be sent to:
City of Round Rock
221 E. Main St.
Round Rock, Texas 78664
Attention: James R. Nuse, City Manager
Facsimile Number: 512- 218 -7097
Stephan L. Sheets
City Attorney
309 E. Main St.
Round Rock, Texas 78664
Facsimile Number: 512- 255 -8986
(2) All notices to RRB shall be sent to:
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, Texas 78683
Attention: Reid Ryan
Fax: (512) 255 -1558
With copy to: Nolan Ryan
2900 South Gordon
Alvin, Texas 77512
Fax: (281) 585 -2238
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EXHIBIT "A"
TO
AGREEMENT
Description of Phase I Improvements
1) Home Run Porch.. An elevated grandstand area over the left field concourse. The Home
Run Porch includes approximately 850 additional chair back seats and additional covered concourse
area for larger conventions, exhibitions, and craft and trade shows.
2) Upper concourse. The upper concourse will connect the suite and party level with the Home
Run Porch. It allows for additional covered concourse on the lower level and it will allow for the
utilization of existing elevators.
3) East Entrance Gate. This gate will be located along the eastern edge of the Dell Diamond
and will provide fan access from the east parking lot, and will include a ticket booth and ADA
access.
4) Sky Boxes. Six additional Sky Boxes were included in the original design of the Convention
Center Complex, but were deleted as a cost saving measure in 1998. The addition of these previously
deleted Sky Boxes will add to the covered concourse on the lower level. This section will also cover
the last exposed concession stand.
25
EXHIBIT "B"
TO
AGREEMENT
Project Design Costs
(a) Engineering, surveying, testing
(b) Legal Services,
(c) Architectural Services, and
(d) Miscellaneous
TOTAL $100,000.00
26