Here
is what Play Ball
This
is specifically why I am saying they are not abiding by the terms of their
agreement.
This
is the proof.
RED=Conditions of the Agreement
which I believe Play Ball
GREEN=My comments on the
failure of one or both parties to meet these terms
CIVIC STADIUM USE AGREEMENT
This Agreement is by and between the City of
Ryman,
Street,
WHEREAS, Play Ball has successfully negotiated the transfer of a minor league
professional baseball franchise to
WHEREAS, Play Ball has agreed to raise the funds necessary to design and construct a
civic stadium which includes a minor league professional baseball park and related
improvements comprised of elements including, but not limited to, clubhouse, seating,
scoreboards, locker rooms, concession areas, restrooms, adjoining parking areas, public
address system and common areas in and around the
“Facility”) in accordance with the standards of the Major League Baseball Professional
Baseball Agreement; and,
WHEREAS, the City is the intended recipient of a tract of land from Champion
International comprising the lots of Blocks 1,2,3,7, and 8 of the Sunnyside Addition to
the City of
Stadium (see Exhibit 1); and,
WHEREAS, the City has agreed to pursue acquisition of those lots in Blocks 9 and 18 of
the Sunnyside Addition to the City of
the Montana Rail Link right-of-way (see Exhibit 1); and,
WHEREAS, Play Ball has agreed to manage and maintain at its expense, the Facility, on
behalf of the community; and,
WHEREAS, the City and Play Ball wish to enter into a long-term agreement for the
operation, management and maintenance of the Facility; and,
WHEREAS, the City of
environment to a vibrant downtown,
NOW, THEREFORE, the parties hereby enter into this Civic Stadium Use Agreement
which shall be regarded as the principal agreement governing the relationship between
the parties as it pertains to the use and operation of the Facility.
1. Location. The Facility shall be located at the Champion Site, the specific site legally
described as:
Lots and portions of Lots of Blocks and portions of
Blocks 1, 2, 3, 7, 8, 9 and
18 of the Sunnyside Addition to the City of
Bitterroot Branch Line of
adjacent properties acquired for the purpose of stadium
parking.
2. Ownership of the Facility. Concurrent with the execution of this Agreement, Play
Ball agrees to construct the Civic Stadium in accordance with the provisions of this
Agreement and, upon completion of the construction, shall convey to the City, and
the City shall accept, all right, title and interest in and to the Facility located at the
Champion Site. Play Ball agrees that the title to the Facility shall be free of all liens
at the time of transfer.
3. Lease of the Facility. Upon adoption of the Resolution of the City of Missoula City
Council authorizing a Civic Stadium Use Agreement, the City and Play Ball shall
enter into this Civic Stadium Use Agreement for a term of ten(10)years, which shall
be renewable for two successive five[5]year terms upon the giving of ninety[90]
days’ notice by Play Ball of intention to renew. The option to renew may not be
abridged so long as Play Ball is complying with the terms and conditions of its lease.
Further, Play Ball shall enter into a binding lease agreement with a minor league
baseball team by
Clerk.
4. Operation of the Facility. Play Ball shall have control over the management and
operation of the Facility as provided by this Agreement, including the use of the
Facility for minor league professional baseball. Play Ball shall, in consultation with
the public, establish a Manual of Policies regarding the use and operation of the
Facility for review and approval by the City. The Manual of Policies shall be
submitted to the City Council along with the Civic Stadium Use Agreement.
Thereafter, the Manual of Policies shall be annually reviewed and revised as needed
by the City Council no later than March 1 following a public hearing. Notification of
the leadership teams of the affected Neighborhood Councils shall occur no later than
the preceding January 15. If the City Council fails to
review and revise the Manual of
Policies by that date, Play Ball shall be allowed to operate the Facility under the
terms of the then existing Manual of Policies. The Manual of Policies shall conform
to the provisions of this agreement.
5. Payment in
lieu of Taxes. On or before
6. Maintenance
Fund. There shall be a Maintenance Fund into which Play Ball will contribute
at least $20,000 in 2001, $35,000 in 2002 and 2003 and $40,000 thereafter for
the term of this contract. Play Ball will also contribute to the Maintenance
Fund any other operations revenues in excess of expenses and allowing for a
reserve account of up to 50% of that year's projected expenses. The purpose of
the fund is to provide for long-term maintenance and repair of the facility.
Expenditures from the fund must be for maintenance of the facility or its
grounds and must be approved by the City.
According to
City Council member Bob Jaffee, they have not paid a dime.
As of
September, 2007, this totals $390,000
7. Application of laws. Play Ball shall comply with all applicable laws, rules,
regulations and ordinances of every governmental body or agency whose authority
extends to the property or to any business conducted upon the property, including, but
not limited to, rules, regulations and policies relating to use by the public and Play
Ball. Further, Play Ball adopts the statement of non-discrimination used by the City
and attached hereto as Exhibit “A”.
8. Alcohol. Play Ball and the City agree that the use of alcohol in the Facility shall be
in accordance with state and federal laws and the policies of Major League Baseball
Professional Baseball Agreement. Play Ball is given specific permission to permit
the sale and consumption of beer and table wine during minor league professional
baseball games subject to the following limitations:
a) no beer or wine is to be sold after the seventh inning
b) no more than two servings of beer or wine may be sold to one person at
one time
c) beer and wine may be served or sold to special groups (as designated by
Play Ball) for a period beginning one hour before the start of a minor
league professional baseball game.
Any specific requirements regarding the use of alcohol at the Facility, including the
requirement that only Department of Revenue licensed caterers be allowed to serve
alcohol, shall be included in the Manual of Policies
governing the Facility.
9. Auxiliary Use of the Facility. The City acknowledges that Play Ball secured a
portion of its financing for the Facility through private debt which Play Ball intends
to repay at least in part from revenue derived from subletting the Facility for purposes
other than minor league professional baseball. It is understood and agreed that the
Facility shall be used and occupied by Play Ball and persons and entities who rent the
Facility from Play Ball for cultural, social and political events consistent with the use
of a
No liens may be filed against publicly owned City property. Play Ball covenants that
no liens will attach to the Facility as a result of Play Ball’s operation of the Facility,
and Play Ball will hold harmless, defend and indemnify the
City of
any asserted claims or liens.
The parties hereto recognize that permitted and prohibited use of the Facility will be
determined over time based on experience. Any use, which is prohibited or restricted
either by its nature, potential damage to the Facility or undue disruption to the
neighborhood, shall be listed in the Manual of
Policies provided for in Section 4.
Operation of the Facility, above.
10. Management Fee. The City shall not be required to pay Play Ball any fee for
management of the Facility. Consideration to Play Ball will be the ability to manage
events in the Facility and charge rental on the Facility as set out below.
11. Facility Rental. Play Ball shall be entitled to rent the Facility or portions thereof to
persons and entities for cultural, social and political events consistent with the use of
a City park. Play Ball shall be responsible for all costs and expenses associated with
such rentals. Play Ball shall be entitled to set rental rates for use of the Facility or
specific portions of the Facility and retain all rents paid for such use for operation,
management and maintenance of the Facility.
12. Nondiscrimination. Play Ball recognizes that it is unlawful to discriminate in
violation of State or Federal laws and Play Ball agrees that Play Ball shall not
discriminate in either employment matters or in the provision of any public services
or public accommodations because of, or on the basis of race, creed, religion, color,
national origin, sex, marital status, age, physical or mental disability, political ideas,
unless with respect to employment positions the genuine reasonable demands of the
employment position require a bona fide occupational qualification pertaining to an
age, physical or mental disability, marital status or sex distinction.
13. Facility Operation, Maintenance and Repair. Play Ball agrees to maintain the
Facility in good, clean and safe condition at its sole expense, including payment of all
personnel salaries and benefits of those employed by Play Ball for maintenance
purposes, utilities (including gas, water, electricity, telephone and sewer),
maintenance, insurance, professional fees and costs, advertising, garbage collection
service, all normal, routine and necessary costs of operation, and any applicable taxes
and assessments. Maintenance shall include repairs to the roof, structure and building
systems of the Facility as well as the ball field, clubhouse, locker rooms, concession
stands, restrooms, offices, lights, public address system, fences, screens, irrigation
systems, bleachers, box seats, Facility parking areas, and common areas. Nothing in
this provision shall require or preclude Play Ball from contracting with the City or its
departments for maintenance services at the Facility.
14. Noise Ordinance. Play Ball acknowledges the City has adopted a Noise Ordinance
that prohibits excessive noise within the City. Play Ball agrees to specifically include
compliance with the City’s Noise Ordinance in its agreements to rent the Facility.
The City recognizes that minor league professional baseball games may, on occasion,
exceed permitted levels of noise. The City Council specifically grants a Permit For
Relief from Noise Levels for these occasions as stipulated in Section 9.30.070 (B)
Noise Ordinance. This provision notwithstanding, Play Ball will endeavor to
minimize sound, amplified or otherwise, during minor league professional baseball
games which continue after
Ordinance is observed. No event may use sound amplification equipment other than
the Facility sound system without the expressed written permission of the Civic
Stadium Extraordinary Events committee as provided in Section 13. Events, below.
Play Ball shall maintain control of the Facility sound system at all times and shall
reduce or eliminate the sound in the event of a verified violation of the Municipal
Noise Ordinance.
15. Lights. Use of lights other than those installed as a permanent part of the Facility
will be subject to the approval of the Extraordinary Events committee. Lighting of the
Facility Parking area shall be in conformance with City ordinances governing such
issues. Half of the illumination in the Facility Parking Area shall be turned off no
later than forty- five (45) minutes after the conclusion of any event, Extraordinary or
otherwise. And all of the lights in the Facility Parking Area shall be turned off no
later than sixty (60) minutes after the conclusion of any event, Extraordinary or
otherwise. Lights in the Facility Park Area shall never be
used before
16. Events. The parties hereto acknowledge that the Facility is a community facility and
will be used by the community for a variety of purposes in addition to the intended
use of minor league professional baseball. Further, the parties agree the Facility will
be suitable for some events and not others. Unsuitable Events are those which
endanger the public, exceed the Facility’s ability to support public use during the
event or unduly jeopardize the Facility, or cause undue hardship on the surrounding
neighborhood as determined by the Civic Stadium Extraordinary Events Committee.
Unsuitable Events will not be permitted in the Facility.
Extraordinary Events are events which, by their nature, require observance of
specific provisions to protect the interests of the community as well as those of the
affected neighborhood. The parties acknowledge that it is impossible to catalog each
and every potential Extraordinary Event and therefore the parties agree that events
with the following characteristics, alone or combined in any fashion, will be
Extraordinary Events:
a) Events with potential expected or planned attendance at any one time of
more than 500 persons.
b) Events which require more parking than that provided on the 2.5 acre site
directly south of the Facility.
c) Events which run for more than six (six) consecutive hours, or the same
event occurs for more than two (2) consecutive days.
d) Events that require sound amplification in addition to the sound system
incorporated into the Facility.
e) Events that require the City Council to grant a specific variance from the
City of
f) Events such as rodeos, circuses, livestock sho ws, etc., that involve large
animals such as horses, cattle, sheep or similar or larger animals.
Each
extraordinary event shall be reviewed by a Civic Stadium Extraordinary Events committee
comprised of the following members:
a) one
representative of Play Ball Missoula;
b) the Mayor, or
his or her designee;
c) the City
Council Conservation Committee chair or the Chair’s designee;
d) one
representative from the Community Forum;
e) one
representative each from the Riverfront Neighborhood Council, the
Westside
Neighborhood Council and the Heart of
Council (to be
selected by each affected Neighborhood Council);
f) one member of
the Park Board;
g) and the
manager of the Facility.
This committee
will determine the measures necessary to mitigate the undesirable impacts of
Extraordinary Events which may include the posting of a bond, or to determine
whether such events should occur at all.
On September 7,
2007, an Extraordinary Event took place at the stadium without any notification
to the Extraordinary Events committee.
The Police put
their barricade in place, but I had to assert my presence at the barricade when
the event was over to prevent ballpark patrons from moving it aside. This event qualified as an Extraordinary
Event under qualification #1, the potential expected or planned attendance at
any one time of more than 500 persons.
This event was advertised on local tv channels, and only a moron would
argue that the potential attendance could not exceed 500. Also, this would have qualified under
provision b; I took photos of their
parking lot and the overflow parking on
17. Parking/Traffic Control. In order to mitigate and control the impacts of parking and
traffic generated by the Facility on the neighborhood and other public facilities, the
parties agree to the following multi-part strategy:
a) Hickory Street
will be closed north of the intersection of
during all minor
league professional baseball games and Extraordinary
Events.
Up until
September 17, 2007 (when they began constructing a permanent barricade), this
was ineffectively attempted with a flimsy
barricade which
was easily moved by ballpark patrons, and was not attended to by staff (see
below). You may view pictures ballpark
patrons evading this barricade here,
here, here,
and here’s a fellow who tried to drive
around
it, on the sidewalk. On a small
percentage of
event nights during the summer of 2007, because I had repeatedly complained to
the Mayor, the City Council, and Matt Ellis, they were successful in keeping
the street closed. Most nights required
my personal intervention to maintain the street closure. And I am NOT an employee of Play Ball or the
City Of
b) Play Ball shall ensure that incentives are offered to encourage alternative
transportation to baseball games and all extraordinary events. Alternative
transportation goals for each such event should include: three (3) busloads
of 60 people each, 100 bicycles, and 10%pedestrians.
c) With the
approval of the City, Play Ball and its lessees will be responsible
for street
closures and parking/traffic control during Extraordinary Events.
Each event,
including minor league professional baseball games, shall
provide the
necessary parking and traffic control in the form of barricades,
signs, and
trained traffic controllers.
See above. They were ineffective
in maintaining the street closure, and their “trained traffic controllers” only
successfully performed their function during a small percentage of the ballgame
evenings during the summer of 2007. During
the summer of 2006 their performance was even worse. It’s only by my persistance that they’ve felt
the need to obey this term at all.
d) Persons or groups renting the Facility shall agree to specific requirements
for parking and traffic control in writing as a condition for using the
Facility.
e) Prior to the beginning of the minor league baseball season, Play Ball shall
obtain written use agreements with owners of public and private lots in the
area in order to provide 438 available parking spaces during minor league
professional baseball games and Extraordinary Events. Play Ball shall
notify the City whenever any of these use agreements change. The City
authorizes the use of city parking spaces to the south and west of the City
Parks and Recreation Facility at
on
and 200 blocks of
extraordinary events for use during minor league baseball games and
extraordinary events. The City spaces at
only on weekends and holidays or from
f) Play Ball
shall create, distribute and publicize through local newspapers, a
map depicting all
offsite parking spaces as required by this agreement,
none of which may
be at locations directly in front of residential property.
They have not
done this.
g) In order to preserve parking for users of
place signage at the entrance to
to McCormick Park users only.
h) At such time
as parking facilities are created at the former Hart Refinery
site, the City
will provide motor vehicle connections to the City street
network in such a
manner as to disperse in multiple directions the motor
vehicle traffic
coming to and from the lot.
The City has
not done this.
i) By the completion of the first full season of operation of the Facility, Play
Ball shall have conducted a parking and traffic study, as prescribed by the
City Engineer, to determine parking and traffic patterns for different size
events, to measure adverse impacts to the neighborhood caused by the
Facility, and to indicate any remediation measures. Any remediation
measures will be developed and financed by the City and Play Ball
j) Play Ball shall construct outdoor bicycle facilities for 100 bikes within 50
feet of an entrance to the stadium and shall provide space for construction
of an additional 300 bicycle parking facilities. Play Ball shall provide
covered and secure bicycle parking for a minimum of twenty percent of
full time staff members at the stadium.
k) The Hickory Trail system will be used as an emergency exit route to the
west, for automobiles, should access to the east via
blocked. Any damage to the trail system resulting from traffic from the
stadium shall be the responsibility of Play Ball.
l) Play Ball and the City will develop event-handling plans for each type of
event.
18. Traffic Calming. The City will test ways to calm traffic generated by the Facility at
the intersections of
operation, traffic calming is shown to be effective, the neighborhood may apply to the
City for permanent traffic calming and the City and Play Ball will be responsible for
the cost of any permanent traffic calming measures to mitigate Civic Stadium events.
in the parking lot at the Civic Stadium. Further, the parties recognize the need for
parking for other than parking during baseball games and auxiliary events. Therefore,
the City and Play Ball reserve the right to use the parking lot of the Civic Stadium for
other purposes except during periods when events are held. Such use and terms
therefore shall be memorialized and approved by Play Ball and the City.
20. Signs/Advertising. The parties acknowledge that advertising signs are a part of the
anticipated revenue of Play Ball and minor league professional baseball. Nothing in
this Agreement shall preclude placement of advertising within the confines of the
Facility. The parties agree the permanent scoreboard, the exterior surface of which
facing within the Facility, may be visible from some points outside the Facility at all
times.
21. Facility Name. The City recognizes that Play Ball desires to offer naming rights for
the Facility and its component parts as a capital fundraising mechanism and agrees
that the City shall take ownership of the Facility with a name assigned to it by Play
Ball. Play Ball agrees that the name shall not include words that are discriminatory,
derogatory or offensive.
available at no charge for City-sponsored events a total of six times during the course
of the calendar year; on three occasions during the course of the professional minor
league baseball season when such use will not interfere with minor league baseball
uses and on three occasions during the balance of the year. If any occasion
constitutes an Extraordinary Event, the City will contribute to the costs associated
with customary Extraordinary Event expenses such as parking and traffic control, etc.
The City shall not be exempt from any provisions governing other Extraordinary
Events.
23. Right to Enter. City officials may enter the Facility at any reasonable time to
conduct inspections of the condition of the Facility and to ascertain that cleaning and
maintenance are being performed in a satisfactory manner.
24. Personal Property and Liability Risk. The City shall not be liable to Play Ball or
those claiming through or under Play Ball, for injury, death or property damage
occurring in, on or about the Civic Stadium or its Parking Facility, and Play Ball shall
indemnify the City, hold it harmless, and defend the City from any claim or damage
arising from any injury, death, property damage, or administrative operational or
management claim occurring in, on or about the Civic Stadium or Parking Facility to
any person. Without limiting Play Ball’s liability hereunder, Play Ball agrees, at its
own cost and expense, to have in continuous effect as soon as construction
commences, public liability insurance protecting the City and Play Ball in the amount
of Seven Hundred Fifty Thousand Dollars ($750,000) per claim and One Million Five
hundred thousand Dollars ($1,500,000) in the aggregate for personal injuries
sustained by any one or more persons. All policies of insurance shall name both the
City and Play Ball as insured thereunder, and shall protect the interests of the City. A
copy of the insurance policy shall be provided to the City Clerk.
To assure the carrying out of the public purposes of the facility and the mutual
coordination of efforts of the parties, the Mayor of the
City of
designee, shall serve on the Board of Directors of Play Ball during the term of this
Agreement.
25. Business Records. Play Ball agrees that it shall keep and provide to the City a full
and complete accounting of all income and expenses of the operation of the Facility
and that its accounting records shall be open to the City upon request. Play Ball shall
provide the Mayor’s Office with a copy of an annual audit of Play Ball Missoula’s
financial accounts.
26. Notice. Notice to the City shall be sent to:
The Office of the Mayor
Notice to Play Ball Missoula shall be sent to:
Play Ball
If there is a change in address the party changing its address shall timely notify the
other party of any address change.
27. Default. If Play Ball violates or fails to abide by the provisions of the Agreement;
and fails to take immediate corrective action within thirty (30) days written notice
from the City of a violation or default; Play Ball will be deemed to have forfeited its
privileges and management rights with respect to operation of the Facility. If the
parties disagree over interpretation of the Use Agreement, the parties agree to submit
the dispute to arbitration. In the event this Use Agreement is terminated due to a
default and Play Ball is removed as manager of the Facility, the City becomes the
facility manager and assumes responsibilities and liability pursuant thereto.
28. Remedies. Upon default the City may take possession of the Facility. If any default
occurs, Play Ball shall be responsible for any and all bills, expenses and costs
incurred with respect to the construction, establishment and operation of the Facility
up to the date of the City’s taking possession. Play Ball shall also be solely
responsible for complying with state and federal environmental protection laws
pertaining to environmental, hazardous or deleterious substance, hazardous materials,
or hazardous wastes and environmental clean-up during the construction,
management or operation of the Civic Stadium facility during Play Ball’s use of the
lands in question.
29. Surrender of Premises. At the conclusion of any lease period for which there is no
renewal, Play Ball agrees to leave the premises of the Facility in as good or better
condition, and will surrender all keys, maintenance manuals, as-built drawings
whether modified or not, to the City. Further, Play Ball will remove all items of
personal property whether owned by Play Ball, its tenants or lessees unless
specifically authorized by the City in writing to do
otherwise.
30. Quiet Possession. Play Ball shall be entitled to the quiet possession and use of the
Facility as herein described so lo ng as the terms of this agreement and any other
agreements between the parties are complied with.
31. Termination and Modification by Mutual Consent. The parties may consider
termination and any modification of, or amendments to, this Agreement at any time,
but any such termination, modification or amendment may only be in writing signed
by the parties and approved by the City Council.
32. Complete Agreement. This Agreement, including any exhibits and attachments
hereto, embodies the entire agreement and understanding of the parties with respect to
its subject matter. There are no restrictions, promises, representations, warranties,
covenants, or undertakings other than those expressly set forth or referred to in this
Agreement. Both parties shall be prohibited from offering into evidence in any
arbitration or civil action any terms, conditions, understandings, warranties,
statements or representations, whether oral or written, that are not contained in this
Agreement. No party will be bound by any terms, conditions, understandings,
warranties, statements or representations, whether oral or written, that are not
contained in this Agreement.
33. Severability. If any provision of this Agreement is declared void or held invalid,
such provision will be deemed severed from this Agreement and, the remaining
provisions of this Agreement will otherwise remain in full force and effect.
34. Relationship of Parties. The parties hereto are not and shall not be regarded as
partners or joint venturers and neither party shall, as a result of this Agreement, be
held to answer for any loss, charge or expense in connection with or arising from
operation of the Facility except as specifically provided in this Agreement or any
other agreement entered into by the parties hereto.
35. Play Ball shall provide the City annually with a full accounting of its income and
expenses with respect to the operation of the facility. The reporting period will be the
calendar year and submission of this accounting shall be no later than January 31st of
the year following the close of any reporting year.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this
day of , 2000.
Michael Flaherty, Chairman Mayor Mike Kadas
Play Ball
Brad Luck, Secretary Martha L. Rehbein, City Clerk
Approved as to form:
Jim Nugent, City Attorney
Page 20 of 22
Civic Stadium Use Agreement
State of
) ss.
On this day of , 2000, personally appeared before me,
Michael Flaherty, of Play Ball Missoula known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that s/he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal,
the day and year first above written.
Notary Public for the State of
Residing at
My Commission expires
State of
) ss.
On this day of , 2000, personally appeared before me, Brad
Luck, of Play Ball Missoula known to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that s/he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal,
the day and year first above written.
Notary Public for the State of
Residing at
My Commission expires
Exhibit A
Playball Missoula agrees that any and all hiring by them related to this Agreement shall
be on the basis of merit and qualifications and there shall be no discrimination on the
basis of race, color, creed, religion, political ideas, gender, age, marital status, physical or
mental handicap, national origin or ancestry, by persons performing this contract.
Qualifications mean such abilities as are genuinely related to competent performance of
the particular occupational task.
