HomeMy WebLinkAbout4379 Resolution - NW Baseball Ventures I LLC Gesa Stadium LeaseRESOLUTION NO.4379
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO EXECUTE A 10-YEAR LEASE
BETWEEN NORTHWEST BASEBALL VENTURES I, LLC AND THE CITY
OF PASCO FOR GESA STADIUM.
WHEREAS, the City of Pasco (City) entered into a Lease with Northwest Baseball
Ventures I, LLC, at GESA Stadium, the "Premises," dated January 1, 2008, and terminating the
term of the Lease to December 31, 2017; and
WHEREAS, a first amendment was executed to the Premises Lease on June 2, 2008,
amending certain terms of the Lease Agreement; and
WHEREAS, a second amendment to the Premises Lease was executed on January 22,
2015, amending the annual rent fees; and
WHEREAS, a third amendment to the Premises Lease was executed on December 22,
2016, extending the Lease term for another five years to expire on December 31, 2022; and
WHEREAS, a fourth amendment was approved by Resolution No. 4184 to extend the
Lease through December 31, 2023; and
WHEREAS, the City and the Northwest Baseball Ventures I, LLC staff have completed
negotiations on a new 10-year Lease, with one 10-year Lease extension option.
WHEREAS, the City Council of the City of Pasco, Washington, has after due
consideration, determined that it is in the best interest of the City of Pasco to enter into a lease with
Northwest Baseball Ventures I, LLC for GESA Stadium.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
Section 1. That the City Council of the City of Pasco approves the terms and conditions of
the new GESA Stadium Lease between Northwest Baseball Ventures I, LLC and the City of Pasco;
a copy of which is attached hereto and incorporated herein by reference as Exhibit A.
Section 2. The City Manager of the City of Pasco, Washington, is hereby authorized,
empowered, and directed to sign and execute said Lease on behalf of the City of Pasco; and to
make minor substantive changes necessary to execute the Lease.
Be It Further Resolved, that this Resolution shall take effect immediately.
Resolution — 2024 GESA Stadium Lease - 1
PASSED by the City Council of the City of Pasco, Washington, and approved as provided
by law, on this Wh day of October, 2023.
Blanche Barajas
Mayor
ATTEST:
APPROVED AS TO FORM:
J�&,c 6ay-kf-- 'I-- —
Debra Barham, CMC 4Kerr son Law, PLLC
City Clerk City orneys
Resolution — 2024 GESA Stadium Lease - 2
EXHIBITA
BASEBALL STADIUM LEASE
THIS BASEBALL STADIUM LEASE ("Lease") is made and entered into this of
, 2023, by and between the CITY OF PASCO, a Washington municipal corporation
("City"), and NORTHWEST BASEBALL VENTURES I LLC, a Washington limited liability
company (the "Tenant").
RECITALS:
City owns certain real property in Franklin County, Washington, legally described in Exhibit A
attached hereto (the "Property"), upon which City has constructed a baseball stadium and related
improvements (the "Baseball Stadium"). Tenant desires to lease from City, and City agrees to
lease to Tenant, the Property and Baseball Stadium (collectively the "Premises") on the terms and
conditions set forth herein. This Lease is intended to supersede and replace in its entirety that
certain Baseball Stadium Lease entered into by City and Tenant dated January 14, 2008 (the "2008
Lease") and subsequent amendments thereto. By executing this Lease, City and Tenant agree that
the 2008 Lease shall be terminated effective
NOW, THEREFORE, City and Tenant hereby agree:
I. BALLPARK LEASE AND CONSTRUCTION GUIDELINES
City leases to Tenant and Tenant leases from City, in accordance with the terms hereof, the
Premises (including the Baseball Stadium located thereon).
A. Tenant acknowledges that the City is a public entity and is subject to the Public
Records Act, RCW 42.56, and further, that the terms of this agreement are
subordinate to those provisions and confidential information given to the City is
potentially subject to disclosure upon request. The City will make its best efforts
to avoid unnecessary disclosure but will fully comply with the provisions of RCW
42.56 or other laws as applicable, and further, will attempt to provide enough
advance notice to MLB PDL and Tenant of a request for public records related to
this Lease so as to allow an opportunity for MLB PDL and the Tenant to seek a
protective order. The City will not be liable for any damages to MLB PDL and
the Tenant as a result of the City's reasonable efforts to comply with RCW 42.56
or other applicable laws.
B. Any contrary provisions contained herein notwithstanding:
a. This Lease and any rights granted to City or Tenant
hereunder shall in all respects be subordinate to the PDL
Rules and Regulations, as long as Tenant is party to the Tri
City Dust Devils PDL License Agreement that is in effect.
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The issuance, entering into, amendment or implementation
of any of the PDL Rules and Regulations shall be at no cost
or liability to any MLB PDL Entity or to any individual or
entity related thereto, or to City. The territory within which
City is granted rights under this Lease is limited to, and
nothing herein shall be construed as conferring on City rights
in areas outside of, the PDL Club Marketing Territory (as
defined in the Tri City Dust Devils PDL License
Agreement). No rights, exclusivities or obligations
involving the Internet or any interactive or on-line media (as
defined in the applicable PDL Rules and Regulations) are
conferred by this Lease, except as are specifically approved
in writing by MLB PDL.
b. City agrees that if the date upon which any termination or
suspension of this Lease falls during the regular season or
postseason, the effective date of such termination or
suspension shall be the first day of the month following the
final home game of such season, and, in no event, shall City
terminate or suspend Tenant's rights under this Lease during
any regular season or postseason.
C. If, at any time prior to the expiration of the term of this
Lease, this Lease is terminated by City for any reason (and
any legal action challenging the right of City to terminate
this Lease and seeking specific performance has either been
(i) finally adjudicated by a court of competent jurisdiction as
evidenced by a final non- appealable order or (ii) settled,
withdrawn or otherwise concluded, in either case solely with
respect to the request for specific performance) and the Tri
City Dust Devils PDL License Agreement has been
terminated, City agrees to offer to assign this Lease to any
replacement PDL Club identified by MLB PDL to the extent
that such PDL Club is reasonably acceptable to City. To the
extent that this Lease is not so assigned, City agrees to meet
promptly with MLB PDL to work together to ascertain
whether a replacement PDL Club can be identified, and if
such a PDL Club is so identified, City shall offer to lease the
Premises to such PDL Club.
d. As long as Tenant is party to the Tri City Dust Devils PDL
License Agreement that is in effect, MLB PDL is an
intended third party beneficiary of the provisions of this
Section I and each other provision in this Lease that prohibits
action without first obtaining PDL Approval and, in addition
to its right to waive or enforce the provisions of this Section
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I, MLB PDL shall be entitled and have the right to waive or
enforce such other provisions that prohibit action without
first obtaining PDL Approval directly against any party
hereto (or their successors and permitted assigns) to the
extent that any such other provision is for the explicit benefit
of MLB PDL or any other MLB PDL Entity.
e. Neither MLB PDL nor any other MLB PDL Entity shall
have any liability whatsoever to any Person for actions
taken pursuant to this Section I (other than for fraudulent
acts or willful misconduct with respect to this Section I by
MLB PDL), and City hereby releases MLB PDL and each
other MLB PDL Entity from any and all claims arising out
of or in connection with any such actions. Nothing
contained in this Lease shall create any duty on behalf of
MLB PDL or any other MLB PDL Entity to any other
Person.
II. DEFINED TERMS.
"Club" means the professional baseball club currently known as the Tri City Dust Devils.
"Commissioner" means the Commissioner of Baseball as elected under the Major League
Constitution or, in the absence of a Commissioner, any Person or body succeeding to the powers
and duties of the Commissioner pursuant to the Major League Constitution.
"Major League Baseball" or "MLB" means, depending on the context, any or all of (a) the Office
of the Commissioner of Baseball, each other MLB PDL Entity and/or all boards and committees
thereof and/or (b) the Major League Clubs acting collectively.
"Major League Baseball Club" or "Major League Club" means any professional baseball club that
is entitled to the benefits, and bound by the terms, of the Major League Constitution.
"Major League Constitution" means the Major League Constitution adopted by the Major League
Clubs as the same may be amended, supplemented or otherwise modified from time to time in the
manner provided therein and all replacement or successor agreements that may in the future be
entered into by the Major League Clubs.
"MLB PDL" means, depending on the context, any or all of (i) MLB Professional Development
Leagues, LLC, a Delaware limited liability company, and/or (ii) the boards, committees and
subcommittees related thereto.
"MLB PDL Entity" means each of MLB PDL, the Office of the Commissioner of Baseball, MLB
Advanced Media, L.P. and/or any of their respective present or future affiliates, assigns or
successors.
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"PDL Approval" means, any approval, consent or no -objection letter required to be obtained from
MLB PDL or any other MLB PDL Entity pursuant to the PDL Rules and Regulations.
"PDL Club" means a professional baseball club participating in the Professional Development
League System pursuant to a player development license agreement between the owner of such
club and MLB PDL pursuant to which such owner has been granted the right to participate in the
Professional Development League System.
"PDL Facility Standards" means the facility standards required by MLB PDL with respect to the
condition, design, maintenance, operation and upkeep of the Baseball Stadium's physical facilities
(including the playing field) as set forth in the PDL Rules and Regulations and as may be amended or
modified from time to time.
"PDL Governance Agreement" means that certain Professional Development Leagues
Governance Agreement, effective as of February 12, 2021 by and between MLB PDL and each
Club, as may be amended, modified, supplemented or restated from time to time.
"PDL Governing Documents" means the following documents as in effect from time to time and
any amendments, supplements or other modifications thereto and all replacement or successor
documents thereto that may in the future be entered into: (i) the Major League Constitution, (ii)
the Major League Rules (and all attachments thereto), (iii) the PDL Operating Guidelines, (iv) the
PDL Governance Agreement and (v) the PDL License Agreements.
"PDL License Agreement" means each player development license agreement entered into
between a PDL Club and MLB PDL pursuant to which such PDL Club has been granted the right
to participate in the Professional Development League System, including, without limitation, the
Tri City Dust Devils PDL License Agreement.
"PDL Rules and Regulations" means (i) the PDL Governing Documents, (ii) any present or future
agreements or arrangements entered into by, or on behalf of, MLB PDL or any other MLB PDL
Entity or the Major League Clubs acting collectively that are specifically related to or generally
applicable to the Professional Development League System or the PDL Clubs, including, without
limitation, agreements or arrangements entered into pursuant to the PDL Governing Documents,
and (iii) the present and future mandates, rules, regulations, policies, practices, bulletins, by-laws,
directives or guidelines issued or adopted by, or on behalf of, the Commissioner, MLB PDL or
any other MLB PDL Entity as in effect from time to time that are specifically related to or generally
applicable to the Professional Development League System or one or more of the PDL Clubs.
"Professional Development League System" means a system of professional baseball leagues
comprised of professional baseball clubs that compete at different levels and serve to assist with
the development of players for Major League Baseball Clubs.
"Tri City Dust Devils PDL License Agreement" means that certain player development license
agreement entered into between Tri-City Dust Devils and MLB PDL pursuant to which the Club
has been granted the right to participate in the Professional Development League System.
III. USES
In
A Uses.
1. Use. Subject to Section III.A.3, Tenant shall have the exclusive and
unrestricted right to use and operate the Premises for any baseball or non -
baseball events that Tenant sponsors or that Tenant allows third parties to
sponsor. Tenant shall operate the Premises in a sound and professional
manner. The Premises shall be a public facility, and the seating, parking,
concession stands, restroom facilities, and other specified areas thereof shall
be open to the public, subject to reasonable admission fees and other
reasonable restrictions. Notwithstanding the foregoing, Tenant may not use
the Premises, or permit any other person or entity to use the Premises, for
any improper, immoral or unlawful purpose, for a use or purpose
inconsistent with applicable zoning or the primary use of the Premises for
professional baseball purposes, or for any use that would constitute a public
or private nuisance or would make void or voidable any insurance then in
force with respect to the Premises. Tenant also may not use the Premises,
or permit any other person to use the Premises, for flea markets, bazaars, or
similar events for the sale of used or second-hand items.
2. Baseball Equipment. This Lease includes the right of Tenant to use at the
Premises the baseball equipment identified in Exhibit B attached hereto (the
"Equipment"). City makes no warranty or representation concerning the
condition of such Equipment. Tenant agrees to maintain such Equipment in
good working condition (reasonable wear and tear excepted) and to replace
items of Equipment as reasonably necessary. Upon the expiration of the
Term (as defined below) of this Lease all items of Equipment, including
replacements thereof, shall belong to City, provided that with respect to
replacements that are less than two (2) years old as of the date of expiration
of the Lease, such replacements shall become the property of the City only
if the City reimburses Tenant for the unamortized cost incurred by Tenant
to purchase such replacements, based upon an amortization period of the
lesser of sixty (60) months or the useful life of such replacements.
3. Other Uses. Subject to the scheduling provisions set forth in this Lease and
the PDL Rules and Regulations, City shall have the right to use the Premises
for up to five (5) community events sponsored by City (each a "Community
Event") per calendar year during the Term, including a 4th of July fireworks
display. Each day of a multi -day Community Event shall count as one
Community Event. Tenant shall, subject to the PDL Rules and Regulations,
allow community baseball events and baseball events sponsored by local
colleges and universities to take place in the Baseball Stadium at the lowest
reasonable rental rate possible, and subject to the availability of the
Baseball Stadium. Such baseball events shall not be deemed Community
Events. Non -baseball events sponsored by Tenant or by third parties and
Community Events shall, collectively, be "Other Events." Tenant shall
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operate the Baseball Stadium during Community Events and City shall
reimburse Tenant for Tenant's reasonable actual out-of-pocket cost of
operating the Baseball Stadium during such events, including utility costs.
B. Exclusive Rights. Tenant shall have the exclusive right during the Term to do the
following:
To use the Premises (including the locker rooms) for professional baseball
purposes and to conduct Other Events permitted by this Lease;
2. To allow third party sponsors to use the Premises to conduct Other Events
permitted by this Lease;
To use the baseball team office located within the Premises.
4. To use the storage facilities dedicated to the baseball team and its equipment;
5. To solicit advertisement to be located on the interior walls of the Baseball
Stadium, including without limitation, those to be located on the scoreboard,
and to solicit advertisements to be located on that portion of the exterior walls
of the Baseball Stadium, other than above the concourse area, without City's
prior consent. Advertisements that occur inside or on the exterior walls of
the Stadium may not include or connote adult content, firearms or tobacco.
City may place signage within the Baseball Stadium announcing upcoming
City functions and events with Tenant's prior consent, which consent shall
not be unreasonably withheld.
6. To direct all aspects of the operation, management and control of the
Premises, except as expressly set forth in this Lease;
7. To sell food, drink and souvenir concessions (collectively "Concessions")
to patrons of the Premises during baseball games or Other Events, subject
to the provisions contained in Section IX below, and to retain all revenues
therefrom; and
To use the press box area during baseball games, and during all Other
Events sponsored by Tenant or third parties taking place within the Baseball
Stadium. Public address equipment provided by Tenant shall be available
for the use by City for Community Events, provided such public address
equipment is operated by an employee or designee of Tenant or an
employee or designee of City trained to use such equipment and approved
by Tenant (such approval not to be unreasonably withheld). If the public
address equipment is operated by an employee or designee of Tenant for a
Community Event, City shall reimburse Tenant for the reasonable actual
costs to make such employee or designee available to operate such
equipment.
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C. Scheduling. On or before September 1st of each calendar year, beginning
September 1, 2023 City shall deliver to Tenant a schedule of the soccer tournaments
to be held during the next calendar year in the playing fields adjacent to the Baseball
Stadium. To the extent that the Northwest League schedule for the next calendar
year has not already been set, Tenant shall request that MLB PDL not schedule
Tenant home games on a date that a soccer tournament will be held in the playing
fields adjacent to the Baseball Stadium. If a Minor League Baseball game is
scheduled on the date of a soccer tournament, Tenant will request that such baseball
game be a night game. City shall submit a request to Tenant to use the Baseball
Stadium for a Community Event at least thirty (30) days before the proposed date
of the Community Event, Tenant shall make reasonable efforts to accommodate
City's scheduling requests for Community Events. Tenant shall also make
reasonable efforts to accommodate other soccer tournaments in the playing fields
adjacent to the Baseball Stadium (in addition to those designated under the first
sentence of this Section) if requested by City.
In addition to the foregoing, Tenant shall request that MLB PDL not schedule a
Minor League Baseball game at the Baseball Stadium on the 41h of July. To the
extent that no Minor League Baseball game is scheduled at the Baseball Stadium
on the 4th of July, the Baseball Stadium shall be reserved for the City's 4th of July
fireworks display and no Other Event shall be scheduled by Tenant on such date.
To the extent that a Minor League Baseball game is scheduled at the Baseball
Stadium on the 4th of July, Tenant shall request that such baseball game be a day
game.
IV. TERM.
A. Term. The term of this Lease shall commence on (the "Effective
Date"), and shall expire on December 31, 2033, unless extended pursuant to
Section IV.B below (the "Initial Term").
B. Extension Option. Tenant shall have one (1) option to extend the Initial Term for
ten (10) years, subject to the terms provided herein (the "Extension Term"). The
Extension Term together with the Initial Term are referred collectively as the
"Term".
If, at the time of exercise, Tenant has performed all Tenant's covenants and
is not in default under any of the terms of the Lease beyond any applicable
cure period, then Tenant, on giving written notice to City not earlier than
twenty-four (24) months, and not later than eighteen (18) months prior to
the last day of the Initial Term of the Lease, shall have the right to extend
the Initial Term of the Lease for an additional term of ten (10) years upon
the same terms and conditions as contained in the Lease, except for the Rent.
The Extension Term shall commence on the day immediately succeeding
the last day of the Initial Term of the Lease and shall end at midnight on the
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day immediately preceding the tenth anniversary of the first day of the
extended term unless sooner terminated in accordance with the provisions
of the Lease. The Rent during the Extension Term shall be mutually agreed
upon between City and Tenant no later than twelve (12) months prior to the
last day of the Initial Term of the Lease. If City and Tenant have not
mutually agreed on the Rent at least twelve (12) months prior to the last day
of the Initial Term, then the exercise of the extension option shall be deemed
to be ineffective, and this Lease shall automatically terminate on the last
day of the Initial Term.
RENT, ADDITIONAL PAYMENTS.
A. Rent. Tenant agrees to pay annual rent in the following amounts ("Rent"):
Period Annual Rent Annual Rent
From the Effective Date to 12/31/23
$35,734.35
1/1/24 to 12/31/24
$36,091.69
l/l/25 to 12/31/25
$36,452.61
l/1/26 to 12/31/26
$36,817.14
l/l/27 to 12/31/27
$37,185.31
1/1/28 to 12/31/28
$37,557.16
1/l/29 to 12/31/29
$37,932.73
1/1/30 to 12/31/30
$38,312.06
1/1/31 to 12/31/31
$38,695.18
1/l/32 to 12/31/32
$39,082.13
1/l/33 to 12/31/33
$39,472.95
Rent shall be paid to City at 525 North 3rd Avenue, Pasco, Washington 99301,
Attention: City Treasurer ("City's Address"). Tenant shall pay Rent in a lump sum
annually on or before June 15 of each calendar year during the Term. Tenant shall
pay a late service charge on all past due rent at the rate of five percent (5%) per
month, but in no event higher than the legal limit. The Rent specified in this Section
V.A includes the leasehold excise tax which is payable in accordance with Chapter
82.29A RCW (the Leasehold Tax"). Tenant shall pay the Rent to City, and City
will forward to the State of Washington as required by law that portion of the Rent
which is allocable to the Leasehold Tax.
If City raises the admission tax on tickets to view events in the Baseball Stadium
above two and one-half percent (2.5%), the Rent set forth above shall be reduced
on a dollar -for -dollar basis for each year the dollar amount of admission taxes
collected by Tenant for such year in excess of 2.5% of the price of each ticket sold.
In the event Tenant has already paid Rent, City shall refund to Tenant a portion of
the Rent overpaid as a result of the application of this provision.
B. Additional Rent.
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1. Tenant shall pay City as additional rent ("Additional Rent") for each Lease
Year (beginning with the Lease Year commencing January 1, 2024) five
percent (5%) of all base ticket revenues associated with the use and
operation of the Premises by Tenant, in excess of $900,000. 'Base ticket
revenues" shall mean the base ticket revenues for all paid tickets to attend
and/or view events sponsored by Tenant. Base ticket revenues shall be the
actual revenues generated by all ticket sales, exclusive of (i) revenues to pay
admission taxes; (ii) trade and complementary tickets; and (iii) the Annual
Fee, as defined in the Tri City Dust Devils PDL License Agreement. The
sum of (i), (ii), and (iii) under this Section IV(B)(1) shall not exceed 10%
of base ticket revenues hereunder. If Tenant packages tickets with other
goods and/or services (e.g., hot dogs, soft drinks, etc.), base ticket revenues
shall be calculated only on that portion of revenues reasonably allocated to
the tickets to view the event, which will in no case be less than fifty percent
(50%) of the face value of the ticket. If Tenant sells tickets at a discount
from their face value, base ticket revenues shall be calculated from the
discounted price of such tickets. Ticket revenues based on season or
advanced ticket sales shall be deemed "collected" by Tenant for purposes
of determining Additional Rent on the respective dates that events covered
by such tickets actually occur. No Additional Rent shall be payable for
Community Events or "free" events if Tenant is merely reimbursed its
reasonable costs to make the Premises available for such event. For
purposes of calculating Additional Rent, a Lease Year shall be the 12-month
period from January 1 to the next December 31.
2. With respect to Other Events at the Premises sponsored by a third party,
Tenant shall pay City as Additional Rent ten percent (10%) of the net
sublease/license fees paid to Tenant by the third party to use the Baseball
Stadium for such Other Event. Net sublease/license fees shall be the
sublease/license fees paid to the Tenant with respect to such Other Event,
less the reasonable and actual costs and expenses incurred by Tenant with
respect to such Other Event.
3. On or before November 1, of each year, Tenant shall remit to City a
summary events reconciliation statement for the year to date and including
the entire baseball season. The reconciliation statement shall set forth ticket
sales for all events sponsored by Tenant and net sublease/license fees paid
to Tenant by third parties during such year to date. If as a result of such
statement Additional Rent is due, such Additional Rent shall be paid
simultaneously with the delivery of such statement. If Tenant or a third -
party sponsors Other Events in such year after the effective date of the
reconciliation statement, then within ten (10) days after such Other Event,
Tenant shall remit to City a reconciliation statement for such Other Event
and pay any Additional Rent (if any) due as a result of such Other Event.
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4. Tenant shall maintain documentation and records verifying the ticket sales
for each event held within the Baseball Stadium sponsored by Tenant and
net sublease/license fees for each event held within the Baseball Stadium
sponsored by a third parry for a period of two (2) years after the date of such
event. Upon written request by City, Tenant shall make such documentation
reasonably available for an audit by City, or its duly authorized
representatives, to verify the accuracy of the Additional Payments remitted
by Tenant.
5. If the Additional Rent is included in contract rent for purposes of calculating
the Leasehold Tax, City shall pay such Leasehold Tax, including all
applicable penalties and interest thereon, from the Additional Rent remitted
by Tenant and the Additional Rent shall be deemed to have been reduced
by the amount of such Leasehold Tax.
6. Tenant shall include in all written agreements with third parties that sponsor
Other Events, the right of City to audit such third parties' records regarding
payment of sublease/license fees.
VI. UTILITIES.
A. Utilities.
1. Utility Charges. Tenant shall pay or cause to be paid when due, and shall
indemnify, protect and hold harmless City and the Premises from all charges
for public or private utility services to the Premises during the Term,
including without limiting the generality of the foregoing, all charges for
heat, light, electricity, potable water, gas, telephone service, garbage
collection and sewer and drainage service. Notwithstanding the foregoing,
the City shall provide un-metered irrigation water to Tenant at no cost to
Tenant.
2. Interruptions of Utility Services. City shall not be liable to Tenant in
damages or otherwise (i) if any utility shall become unavailable from any
entity (including City) supplying or distributing such utility, or (ii) for any
interruption in any utility service (including, without limitation, any
heating, air-conditioning or sprinkler) caused by the making of any
necessary repairs or improvements or by any cause, and the same shall not
constitute a termination of this Lease or an eviction of Tenant. If any utility
service, used at the Premises and for which City is responsible, shall be
interrupted, City shall restore such utility service as soon as practical.
VII. CONDITION OF PREMISES; IMPROVEMENTS.
A. Current Condition. Tenant agrees to accept the Premises and Baseball Stadium in
its current "as is, where is" condition. Tenant acknowledges the opportunity prior
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to its execution of this Lease to conduct a thorough inspection of the Premises.
B. Air Conditioning. The air conditioning, previously installed by Tenant in the
"home team" clubhouse/locker room, is part of the Premises, and during the Term
shall be maintained by Tenant at Tenant's cost. Upon expiration or earlier
termination of this Lease, the air conditioning equipment shall become the property
of City, without additional cost or expense to City.
C. City and Tenant agree to work together with the understanding that the Baseball
Stadium become compliant with all the PDL Facility Standards by March 2024.
D. Tenant will invest at least $330,000 for the construction of a new climate -
controlled weight room at the Baseball Stadium. The building will become the
property of City. The City will issue Tenant a $16,500 credit against the base rent
for each year of the Initial Term of Lease in Tenant's efforts with respect to bringing
the Baseball Stadium into compliance with the PDL Facility Standards.
E. If there are any additional improvements (not otherwise contemplated in Subsection
VII.D above) required to bring the Baseball Stadium into compliance with the PDL
Facility Standards, the City will issue Tenant a yearly rent credit equal to fifty (50)
percent of the invoice cost of the improvement(s) and: 1) to be amortized over the
remaining term of this Lease (excluding the partial year of the improvement); and
2) not to exceed $10,000 per year in total rent credits under this Subsection VII.E.
The improvement(s) will become property of City. By way of example, if an
improvement is required under this Subsection VII.E at an invoice cost of $96,000,
and there are 6 years remaining on this Lease (excluding the partial year of the
improvement), the City will issue Tenant a rent credit equal to $8,000 per year for
the remainder of this Lease calculated as follows: [$96,000 X 50% _ $48,000;
$48,000/6 years = $8,000 rent credit per year]. If there are subsequent additional
improvements needed under this Subsection VILE costing $48,000 (with 4 years
remaining on this Lease), the City will issue Tenant a total rent credit of $10,000
per year for the remaining 4 years of this Lease because the annual rent credit under
this Subsection VII.E is capped at $10,000 per year.
VIII. REPAIRS AND MAINTENANCE.
A. City Obligation. City shall, at its own cost and expense, maintain and repair all
structural portions of the Premises in a good and safe condition during the Term,
reasonable wear and tear excepted, promptly after City is made aware of the need
for such structural maintenance and/or repair. Structural portions of the Premises
shall include, without limitation, all sidewalks and the roof, structural walls,
structural members (including structural elements of the light poles, scoreboard
and outfield fence), floor slabs and foundation of the Baseball Stadium and
plumbing and electrical repairs that require alteration of floor slabs, foundations,
roof or exterior walls. If governmental laws, rules, regulation or ordinances
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("Applicable Laws") change such that the Premises no longer complies with
Applicable Laws and can no longer be used for its intended purposes without repair
or improvements, the City shall have the first option to alter or repair the Premises
to bring it into compliance with Applicable Laws. If City does not bring the
Premises into compliance with Applicable Laws within a reasonable period of time,
Tenant shall have the right, but not the obligation, to make the alterations or repairs
necessary to bring the Premises into compliance with Applicable Laws. If neither
City nor Tenant elect to bring the Premises into compliance with Applicable Laws,
Tenant may terminate this Lease in its sole discretion. The foregoing shall only
apply to changes required to be made to the Premises in order to comply with
Applicable Laws so that the Premises can continue to be used for its intended
purposes and does not apply under circumstances where the Premises becomes a
nonconforming structure, but for which changes are not required for the continued
use of the Premises.
B. Tenant Obligations.
1. Tenant shall be responsible, at its own cost and expense, for the routine
maintenance and upkeep and routine nonstructural repairs of the Premises
during the Term, including interior walls, ceilings, doors, windows, light
fixtures, switches, wiring and plumbing not the responsibility of City under
Section VIII.A above, and heating and air conditioning systems and
equipment. Tenant shall also be responsible for the cost of cleaning the
Premises and the cost of cleaning supplies and other routine supplies
required to operate the Premises, all in accordance with customary
standards for similar facilities and prudent maintenance practices.
2. Notwithstanding the foregoing, City shall be responsible for all routine
maintenance and repair of the Premises required by or arising from use of
the Premises for Community Events. City shall fulfill its maintenance
and repair obligations under this Section VIII.B immediately after use of
the Premises for Community Events.
3. Tenant shall also be responsible for garbage disposal and other cleaning of
the Premises and Parking Areas (as defined below) following each game or
Other Event sponsored by Tenant or a third party, and for payment of all
expenses of staff and services for each game or Other Event sponsored by
Tenant or a third party, including without limitation parking attendants,
security officers, ticket salespeople and attendants, ushers, and, if
applicable, medical personnel and vehicles. Tenant shall also be responsible
for maintaining the baseball team office and locker rooms while Tenant is
entitled to the exclusive use thereof. Tenant will permit no waste, damage
or injury to the Premises. At the expiration or sooner termination of this
Lease, Tenant will quit and surrender the Premises in a neat and clean
condition (reasonable wear and tear excepted) and will deliver up all keys
belonging to the Premises to City, or City's agent. Should Tenant fail to
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tender possession of the Premises to City as provided herein, City shall have
the right to perform the work necessary to put the Premises in a neat and
clean condition (reasonable wear and tear excepted), at Tenant's expense,
and Tenant agrees to reimburse City for the costs to do so.
4. Tenant shall not damage or deface the Premises, nor shall Tenant allow its
guests and invitees to damage or deface the Premises. Tenant and Tenant's
guests and invitees shall not do anything which may injure the buildings or
other improvements or be a nuisance or menace. All deliveries of supplies
and material to the Premises shall be made at such hours and in accordance
with such rules as City may reasonably prescribe. Tenant will not permit an
accumulation of boxes, waste, or other refuse matter. Trash and garbage
shall be stored, until disposed, within areas designated by City for such
purposes.
5. In addition, Tenant agrees as follows:
(i) Care of Plumbing Facilities. Plumbing facilities shall not be used for
any other purpose than that for which they were constructed.
(ii) Cleaning of Kitchens. Tenant shall have the Concessions ventilation
equipment cleaned at least every six (6) months, and Tenant upon request
shall provide City with evidence that the work has been done for the most
recent period.
(iii) Odors. Tenant shall not permit the emission of offensive odors from
the Premises or allow permeation through interior or exterior walls.
(iv) Tenant To Pay For Violation. The expense of any breakage,
stoppage or damage resulting from a violation of this Section VIII.B shall
be borne by Tenant.
(v) City May Demand Repairs. If City reasonably deems necessary any
repairs required to be made by Tenant, it may demand that Tenant make the
same forthwith, and if Tenant refuses or neglects to commence such repairs
and complete the same with reasonable dispatch, City may make or cause
such repairs to be made and Tenant agrees, forthwith, on demand, to pay to
City the cost thereof with interest at the maximum rate permitted by law at
the time City incurs said cost of repairs.
C. Plumbing System Winterization. Notwithstanding the other provisions of this
Lease, the City shall be responsible for the work associated with draining and
winterizing the plumbing system of the Premises each year (either using a third
party plumber or using City staff based upon protocols established by plumbing
professionals). City will make all reasonable efforts to provide irrigation water as
soon as possible at the beginning of each year.
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D. Baseball Field/Grass Maintenance.
Tenant shall be responsible at its sole cost and expense for the year-round
maintenance, upkeep, repair and care of the baseball field and the other
grass areas of the Baseball Stadium, including the preparation and
maintenance of the playing field before, during and after each game or Other
Event sponsored by Tenant. Such upkeep and maintenance shall include
fertilizing, mowing, aeration, irrigation and all other matters associated with
the maintenance of the playing field and other grass areas. All such upkeep
and maintenance shall be in accordance with the standards and
specifications attached hereto as Exhibit E, or otherwise directed by City.
Tenant shall also be responsible at its sole cost and expense for all fertilizer
and other supplies required for the upkeep and maintenance of the playing
field and other grass areas of the Baseball Stadium.
2. If Tenant fails to maintain the playing field and the other grass areas of
the Baseball Stadium as herein required, City shall have the right to do
so, at Tenant's expense, and Tenant agrees to reimburse City for the
costs to do so.
Tenant shall also have the exclusive right to use a portion of the
maintenance facility just beyond the left field outfield fence of the
Baseball Stadium for the storage of maintenance equipment and other
uses associated with the maintenance of the baseball field and other grass
areas of the Baseball Stadium.
IX. CONCESSIONS.
A. Concessions. Except as otherwise set forth herein, Tenant shall have the
exclusive right, during baseball games and Other Events held in the Baseball
Stadium, subject to the provisions set forth below, to sell Concessions in the
Premises and in the Parking Areas (as defined below) and to retain all revenues
therefrom. Such right may be exercised by Tenant directly or through a
sublicensee.
Concession Equipment. Tenant shall supply at its own expense and in
its sole discretion all equipment, fixtures and supplies, and all staff and
other persons required or necessary to provide Concessions to patrons
of the Premises.
2. Tenant to Use Adequate Electrical Equipment. If Tenant supplies any
concessions electrical equipment that overloads the electrical lines in the
Premises, Tenant shall at its own expense (but only with the prior
consent of City) make whatever changes are necessary to meet the
electrical requirements consistent with the requirements of the insurance
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underwriters and governmental authorities having jurisdiction.
3. Liquor License. City shall not object to or interfere with the efforts of
Tenant or its sublicensee to secure a permit to sell alcoholic beverages
as one of the Concessions sold inside the Baseball Stadium.
B. Concession Services. Tenant or its sublicensee shall operate and supply
Concessions and concession services during baseball games and Other Events
sponsored by Tenant or third parties on such terms and conditions as Tenant
deems appropriate. Tenant shall also provide concession services for Other
Events not sponsored by Tenant (including Community Events) at levels and
with staffing as reasonably necessary to provide appropriate concession service
given the nature of the event and the expected attendance.
If Concessions are not provided by Tenant at appropriate levels for Community
Events or Other Events not sponsored by Tenant, then City may permit another
entity to sell Concessions from portable concession stands brought into the
Premises for such purposes. Any costs incurred or revenues received by City
under this Section IX(B) shall belong to City.
X. PARKING.
A. Generally. Adjacent to the Premises is an area for vehicle parking containing
approximately 1000 parking spaces and depicted on the map attached hereto
as Exhibit F (the "Parking Area") City hereby grants Tenant a non-exclusive
license to use the Parking Area on the terms set forth below.
Throughout the Term of this Lease, (i) Tenant shall have the exclusive
right to control, use and operate the Parking Area for baseball games and
Other Events sponsored by Tenant or third parties at the Premises and
(ii) City shall have the exclusive right to control, use and operate the
Parking Area for Community Events and for soccer tournaments played
at the adjacent playfields. Tenant shall be entitled to retain all parking
revenue generated during periods when Tenant controls and operates the
Parking Area, and City shall be entitled to retain all parking revenues
generated during periods when City controls and operates the Parking
Area. Tenant shall provide parking attendants to operate the Parking
Area for baseball games and Other Events sponsored by Tenant and City
shall provide parking attendants to operate the Parking Area for
Community Events and for events at the adjacent playfields. Tenant
shall be responsible at its sole cost to clean the Parking Area after
baseball games and Other Events sponsored by Tenant. City shall be
responsible, at its sole cost, to clean the Parking Area after Community
Events and soccer tournament held at the adjacent playfields.
2. If a night baseball game is scheduled on the same date as a soccer
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tournament: (i) Tenant and City shall work together to accommodate
each other's needs for use of the Parking Area, including an agreement
on when control of the Parking Area will change from City to Tenant;
and (ii) Tenant shall honor the parking privileges of soccer tournament
spectators that have paid City to use the Parking Area. During such
times, Tenant and City shall cooperate in good faith to manage the
Parking Area so that Tenant receives all parking revenue associated with
the baseball game and City receives all parking revenues associated with
the soccer tournament being conducted at the adjacent playfields, and
with Tenant providing the parking attendants to operate the Parking
Area immediately prior to and during title baseball game.
XI. ESTOPPEL. Within fifteen (15) days of presentation, Tenant shall execute,
acknowledge, and deliver to City, at no expense to City, any estoppel certificate
requested by City, certifying in writing, if such shall be true, that Tenant shall be in
occupancy, that this Lease is in full force and effect, specifying the dates to which the
rent and other charges shall have been paid, and stating that there have been no defaults
by City and such other representations as may be requested by a lender, mortgagee or
beneficiary.
XII. TENANT ALTERATIONS. Except as provided above in Section VII.C, Tenant shall
not make any material alterations, additions, or improvements in the Premises
(including any alterations that affect structural portions of the Premises, or any
electrical, plumbing or similar system) without first obtaining City's written consent
(which may be withheld in its reasonable discretion). All such alterations, additions
and improvements shall be at the cost and expense of Tenant, and shall become the
property of City and shall remain in and be surrendered with the Premises as a part
hereof at the termination of this Lease, without disturbance, molestation, or injury
except for any improvements that City may elect to require Tenant to remove.
Notwithstanding the foregoing, Tenant may remove concessions equipment and
similar fixtures from the Premises if Tenant originally paid the cost to acquire and
install such equipment and/or fixtures and if Tenant fully repairs all damage caused by
the removal of such equipment and/or fixtures. If Tenant shall perform work with the
consent of City, as aforesaid, Tenant agrees to comply with all laws, ordinances,
rules and regulations of the appropriate city or county, and any other authorized public
authority. Tenant further agrees to hold City harmless from damage, loss or cost arising
out of the said work.
XIII. INSURANCE.
A. Tenant Insurance.
1. Tenant, at its sole expense, shall place and maintain in effect throughout the
term of this Lease the following insurance (collectively, the "Insurance"):
(i) Commercial general liability insurance with limits of not less than
$2,000,000 each occurrence and $5,000,000 in the aggregate, written on
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Insurance Services Office (ISO) occurrence form CG 00 01, insuring
against all liability arising out of and in connection with Tenant's use and
occupancy of the Premises and with Tenant's exercise of its rights granted
under this Lease, including premises and contractual liability and naming
City and its employees, officers and agents as additional insureds using ISO
Additional Insured -Managers or Lessors of Premises Form CG 20 11 or a
substitute endorsement providing equivalent coverage, and (ii) in the event
Tenant or its sublicensee offers alcoholic beverages in or around the
Premises, "Dram Shop" and/or "Innkeeper's Liability" insurance against
claims or liabilities arising directly or indirectly to persons or property on
account of the sale or dispensing of beer, wine or other alcoholic beverages,
with a combined single limit coverage of $2,000,000 bodily injury and
property damage liability, or in greater amounts if required by law, in form
and substance reasonably acceptable to City, and naming City and its
employees, officers and agents as additional insureds, and (iii) worker's
compensation and employer's liability insurance covering employees at the
Premises employed by Tenant (to the extent required, and in the amounts
required by applicable laws).
2. Certificates of such coverage and endorsements, in form satisfactory to
City, shall be furnished to City and each shall provide that said coverage
will not be changed or cancelled without forty-five (45) days written notice
to City. The limits of coverage described above shall be increased from
time to time as reasonably requested by City and to the extent consistent
with prudent risk management practices and insurance standards for similar
facilities. Tenant's insurance coverage shall be primary as respects City.
Any insurance, self-insurance or insurance pool coverage maintained by
City shall be excess of Tenant's insurance and shall not contribute with it.
All insurance shall be placed with insurers with a current A. M. Best rating
of not less than A:VII.
3. In the event the Insurance required under this section is not maintained, or
if an Event of Default occurs, City shall have the right (but not the
obligation) to place and maintain the Insurance required to be placed and
maintained by Tenant hereunder. Tenant agrees, on demand, to pay to City
the amounts expended therefor with interest at the maximum rate permitted
by law from the time City incurs said costs of Insurance.
4. In the event Tenant fails to place and maintain the Insurance required
hereunder, City shall have the right (but not the obligation) to require the
immediate cessation of the sale of alcoholic beverages at the Premises.
B. City Insurance. City shall purchase and maintain during the term of this Lease
all-risk property insurance covering the Premises and the Baseball Stadium, for
their full replacement cost without coinsurance provisions.
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C. Waiver of Subrogation._ Tenant and City hereby release and discharge each
other from all claims, losses and liabilities arising from or caused by any hazard
covered by property insurance on or in connection with the Premises and
Baseball Stadium. This release shall apply only to the extent that such claim,
loss or liability is covered by insurance.
XIV. DAMAGE OR DESTRUCTION. If the Premises or Baseball Stadium are damaged
by fire or other casualty under circumstances where the cost to repair does not exceed
$500,000 and the loss is covered by insurance maintained by City, the damage shall
be repaired by City, and until such repairs are completed, rent shall be abated in
proportion to the portion of the Premises which is unusable by Tenant in the conduct
of its business (but there shall be no abatement of rent by reason of any portion of the
Premises being unusable for a period equal to three (3) days or less).
If the costs to repair such damage exceeds $500,000, or the loss is not covered by
insurance maintained by City, City at its option may elect to repair the Premises, in
which event rent shall be abated as provided above. City shall make such election
whether or not to rebuild within thirty (30) days of such damage.
If City does not elect to make such repairs, or if it reasonably appears that such repairs
cannot be made within one hundred eighty (180) days of the date of such damage, then
either party may, by written notice to the other within forty-five (45) days of the date
of damage, terminate this Lease.
If the Baseball Stadium or a material portion thereof becomes unavailable on a temporary
basis by reason of either partial destruction or repair or restoration, or for any other reason,
then the Tenant may make arrangements for any previously scheduled home baseball game
or Other Event to be held at another venue during such time that the Baseball Stadium is
under repair. The City shall utilize commercially reasonable efforts to assist the Club in
locating a temporary facility in which the Club may play home baseball games, and
otherwise conduct previously scheduled Other Events.
XV. NAMING RIGHTS. During the Term of this Lease, Tenant shall have the right to offer
to sell and to sell the right to name the Baseball Stadium to third parties and to retain
all revenues therefrom, subject to the provisions below. City shall have the right to
approve the name and the form of any naming rights agreement, which approval shall
not be unreasonably withheld or delayed. In the absence of a naming rights agreement,
the Baseball Stadium shall continue to be named "Pasco Stadium." Tenant may not
name the Baseball Stadium after Tenant. The name of the Baseball Stadium may not
connote or be affiliated with adult content, firearms or tobacco. Upon expiration of or
earlier termination of this Lease, any naming rights agreement shall also terminate and
no longer be in force or effect.
For every professional baseball season (March through September) (the "Season") that
a naming rights agreement exists, Tenant shall spend a minimum average of $5,000
on capital improvements to the Baseball Stadium. Capital improvements under this
Section XV are exclusive of all other improvements in this Lease Agreement.
Tenant may spend such sums on capital improvements at one time and from time to
time while a naming rights agreement exists, provided that Tenant spends at least
$25,000 on capital improvements during the first five years of any naming rights
agreement. By way of example, Tenant may spend $5,000 each Season, may spend
$10,000 every two Seasons, may spend $4,000 the first Season, nothing the second
Season and $11,000 the third Season, or may spend $25,000 in a single year (and
applied over a five Season period), provided that Tenant spends an average of $5,000
for each Season and at least $25,000 during the first five Season period. If at the end
of the term of a naming rights agreement, Tenant has not spent the required amounts
on capital improvements, Tenant shall pay to City a naming rights termination fee
equal to 150% of such shortfall.
On or before February 1 of each year, Tenant shall provide City with an accounting of
the costs expended in the prior calendar year by Tenant on capital improvements to the
Baseball Stadium. At the request of City, Tenant shall provide to City with copies of
invoices and other information to substantiate the amounts so spent.
Tenant must obtain prior City approval to any capital improvements undertaken by
Tenant under this Section XV such approval not to be unreasonably withheld and shall
be granted if such capital improvement is necessary for the Baseball Stadium to remain
compliant with the PDL Facility Standards. Capital improvements funded by Tenant
under this Section XV shall not include any capital improvements installed by Tenant
under any other provision of this Lease.
XVI. DEFAULTS; REMEDIES
A. Defaults: Remedies.
1. Events of Default. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by
Tenant (an "Event of Default"):
(i) The failure by Tenant to make any payment of Rent by the tenth
(1 Oth) day after such amount is due;
(ii) The failure by Tenant to make any other payment required to be
made by Tenant hereunder (other than a payment specified in subsection
(i) above), including, without limitation, Additional Rent, utility
payments, insurance premiums or other charges, within five (5) days
after receiving written notice from City of such failure to pay;
(iii) The failure by Tenant to observe or perform or the violation of
any of the other covenants, conditions or provisions of this Lease to be
observed or performed by Tenant, where such failure shall continue for
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a period of twenty (20) days after Tenant's receipt of written notice of
default or violation from City; provided, however, that if the nature of
Tenant's obligation is such that more than twenty (20) days are required
for performance, then Tenant shall not be in default if Tenant
commences performance within such 20-day period and thereafter
diligently prosecutes the same to completion and in any event completes
such performance within ninety (90) days of Tenant's receipt of such
written notice; or
(iv) The failure by Tenant to use the Premises for professional
baseball purposes as a PDL Club.
2. Subject to Section I.B, upon an Event of Default, then, without prejudice
to any other remedies which City might have, City may, at its election,
declare this Lease forfeited and the Lease term ended, and re-enter the
Premises, with or without process of law, and remove all persons or
chattels therefrom.
B. Removal of Property.
In the event of any re-entry or taking possession of the Premises for default,
City shall have the right, but not the obligation, to remove from the Premises
all personal property of Tenant located therein, and may store the same in
any place selected by City, including but not limited to a public warehouse,
at the expense and risk of the owners thereof, with the right to sell such
stored property, without notice to Tenant, after it has been stored for a
period of thirty (30) days or more. The proceeds of such sale to be applied
first to the cost of such sale, second to the payment of the charges for the
storage, if any, and third to the payment of any other sums of money which
may then be due from Tenant to City under any of the terms hereof, the
balance if any without interest to be paid to Tenant.
2. Tenant hereby waives all claims for damages that may be caused by City's
re-entering and taking possession of the Premises or removing and storing
the property of Tenant as provided in this Lease, and will hold City harmless
from loss, costs or damages occasioned City thereby. No such reentry shall
be considered or construed to be a forcible entry.
C. City May Relet. In such case of re-entry, City may, subject to Section I.B, relet the
Premises upon such terms as it sees fit, for a term which may expire either before
or after the expiration date of this Lease, and to such persons or entities as it desires,
including without limitation another professional baseball league.
D. Tenant Still Liable for Rent. City shall not be liable for damages by reason of such
re-entry. Notwithstanding any such re-entry by City, the liability of Tenant for the
Rent provided for herein shall not be extinguished for the balance of the Lease
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Term. Tenant agrees to pay to City any deficiency arising from a re-entry and re -
letting of the Premises at a lesser rent, and Tenant shall pay such deficiencies each
month as the amount thereof is ascertained by City.
E. Tenant to Pay Cost of Reletting. Upon reletting Tenant shall be immediately liable
to pay to City the cost and expense of reletting and of such repairs as may be
incurred by City in readying the Premises for reletting.
F. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive, but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
G. Default by City. City shall not be in default unless City fails to perform obligations
required of City within twenty (20) days after written notice by Tenant to City,
provided, however, that if the nature of City's obligation is such that more than
twenty (20) days are required for performance then City shall not be in default if
City commences performance within such 20-day period and thereafter diligently
prosecutes the same to completion. If City fails to cure any such default within the
allotted time, Tenant may cure such default itself and offset the cost thereof against
Rent payable hereunder.
XVIL HAZARDOUS SUBSTANCES.
A. Hazardous Substances.
Tenant shall not dispose of or otherwise allow the release of any
hazardous waste or materials in, on or under the Premises, or any
adjacent property, or in any improvements placed on the Premises, in
violation of applicable law. Tenant represents and warrants to City that
Tenant's intended use of the Premises does not involve the use,
production, disposal or bringing on to the Premises of any hazardous
waste or materials in violation of applicable law. As used herein, the
term "hazardous waste or materials" includes any substance, waste or
material defined or designated as hazardous, toxic or dangerous (or any
similar term) by any federal, state or local statute, regulation, rule or
ordinance now or hereafter in effect. Tenant shall promptly comply with
all statutes, regulations and ordinances, and with all orders, decrees or
judgments of governmental authorities or courts having jurisdiction,
relating to the use, collection, treatment, disposal, storage, control,
removal or cleanup of hazardous waste or materials, in, on or under the
Premises or any adjacent property, or incorporated in any
improvements, at Tenant's expense.
2. After notice to Tenant and a reasonable opportunity for Tenant to effect
such compliance, City may, but is not obligated to, enter upon the
Premises and take such actions and incur such costs and expenses to
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effect such compliance as it deems advisable to protect its interest in the
Premises; provided, however that City shall not be obligated to give
Tenant notice and the opportunity to effect such compliance if (i) such
delay might result in material adverse harm to City or the Premises, (ii)
Tenant has already had actual knowledge of the situation and a
reasonable opportunity to effect such compliance, or (iii) an emergency
exists. Whether or not Tenant has actual knowledge of the release of
hazardous waste or materials on the Premises or any adjacent property
as the result of Tenant's use of the Premises, Tenant shall reimburse City
for the full amount of all costs and expenses incurred by City in
connection with such compliance activities, and such obligation shall
continue even after the termination of this Lease. Tenant shall notify
City immediately of any release of any hazardous waste or materials on
the Premises.
3. Notwithstanding the foregoing, Tenant shall not be responsible for any
cleanup, liabilities, claims, damages, costs and expenses of any kind or
nature that arise or result from any contamination of the Premises or
surrounding property by hazardous waste or materials, except for such
contamination that is caused by Tenant or its employees or agents. If
Tenant cannot operate the Baseball Stadium because of contamination
of the Premises or surrounding property by hazardous waste or materials
not caused by Tenant or its employees or agents, Tenant shall have the
right to terminate this Lease without further liability hereunder.
XVIII. OTHER PROVISIONS.
A. Surrender of Premises. At the expiration of the term of this Lease, or at the
earlier termination of this lease, Tenant shall surrender the Premises in good
condition, reasonable wear and tear excepted.
B. Intentionally Deleted.
C. Liens and Solvency. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished or obligations incurred by
Tenant and hold City harmless therefrom including all costs and attorney's fees.
In the event Tenant becomes insolvent, voluntarily or involuntarily bankrupt,
or if a receiver, assignee or other liquidating officer is appointed for the
business of Tenant, then City may, subject to Section I.B, cancel this Lease at
City's option and Tenant shall nevertheless be liable for any further losses or
damages sustained by City so caused by Tenant.
D. Assi n� Tenant shall have the right to assign this Lease or let or sublet the
whole or part of the Premises with the written consent of City, which consent
may not be unreasonably withheld. Notwithstanding the foregoing, City shall
consent to any assignment or sublease of this Lease by Tenant: (a) to any entity
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controlled by Tenant that owns the Team; and (b) to any purchaser of the Team
that (i) has been approved by MLB PDL, and (ii) has retained a management
team with prior experience managing a professional sports team to operate such
team. Any purported assignment or sublet shall be of no effect if not consented
to by City. Any assignment or sublet of this Lease shall not extinguish or
diminish the liability of Tenant hereunder.
E. Non -Waiver. The failure of either party to insist upon strict performance of
any of the covenants and agreements of this Lease, or to exercise any option
herein conferred in any one or more instances, shall not be construed to be a
waiver or relinquishment of any such, or any other covenants or agreements,
but the same shall be and remain in full force and effect.
F. Costs and Attorney's Fees. All costs and expenses, including attorneys' fees at
trial and on appeal in a reasonable amount, incurred by City or by Tenant in
enforcing the obligations of Tenant or City under this Lease, shall be paid by
the defaulting party to the prevailing party upon demand. The venue of any
legal action brought under the terms of this Lease shall be in the county in which
the Premises are situated.
G. Transfer by City. If City shall assign its interest under this Lease or transfer its
interest in the Premises, such transferee shall be required to assume all
obligations of City under this Lease, City shall be relieved of any obligation
accruing hereunder after such assignment or transfer, and such transferee shall
thereafter be deemed to be City hereunder.
H. Heirs and Successor. Subject to the provisions hereof pertaining to assignment
and subletting, the covenants and agreements of this Lease shall be binding
upon the heirs, legal representatives, successors and assigns of any or all of the
parties hereto.
I. Holdover. If Tenant shall, with the written consent of City, holdover after the
expiration of this Lease, such tenancy shall be on a month -to -month tenancy,
which tenancy may be terminated by either party upon twenty (20) days' notice
to the other party. During such tenancy Tenant agrees to pay to City the same
rental as provided herein, unless a different rent is agreed upon, and to be bound
by all of the applicable terms and conditions of this Lease.
J. Mutual Release and Waiver. To the extent a loss is covered by insurance in
force, City and Tenant hereby mutually release each other from liability and
waive all right of recovery against each other for any loss from perils insured
against under their respective fire or other insurance policies, including any
causes of loss forms attached thereto; provided, that this agreement shall be
inapplicable if it would have the effect of invalidating any insurance coverage
of City or Tenant
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K. Notices. All notices under this Lease shall be in writing and shall be deemed to
have been duly given if personally delivered, sent by confirmed electronic,
overnight courier services or registered or certified mail, postage prepaid, and
shall be deemed given upon delivery if personally delivered, upon the earlier of
actual receipt or one day after it is sent, if sent by overnight courier or confirmed
electronic, or three days after it is sent by registered or certified mail. All
notices or other communications shall be made as follows:
If to City: City of Pasco
Attn: City Manager
525 North 3rd Avenue
Pasco, WA 99301
Facsimile No.: (509) 545-3403
(include e-mail address and do you want a
copy to be sent to Legal ?)
And
Kerr Ferguson, PLLC
Attn: Eric Ferguson
7025 Grandridge Blvd. Ste. A
Kennewick, WA 99336-7724
(e-mail: eferguson@kerrlawgroup.net)
If to Tenant: Northwest Baseball Ventures I, LLC
Attn: President
6200 Burden Blvd.
Pasco, WA 99301
Facsimile No.: (509) 547-9570
(include e-mail address?)
L. Compliance with Laws. All operations or activlties upon, or any use or
occupancy of the Baseball Stadium and Premises, or any portion thereof, by
Tenant or any person claiming through Tenant shall be in all material respects
in compliance with all state, federal and local laws, ordinances, rules,
regulations, permits, standards, and requirements.
M. Indemnification.
1. Tenant agrees to and shall indemnify, defend and hold City, City's
successors and assigns, and the, officers, employees, agents and
contractors of City, harmless from and against any and all claims
(including without limitation third parry claims for death, personal
injury or real or personal property damage), actions, administrative
proceedings (including both formal and informal proceedings),
judgments, damages, punitive damages, penalties, fines, costs, liabilities
(including sums paid in settlements of claims), interest or losses,
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including reasonable attorneys' and paralegals' fees and expenses
(including any such fees and expenses incurred in enforcing this
Agreement or collecting any sums due hereunder), consultant fees, and
expert fees, together with all other costs and expenses of any kind or
nature that arise directly or indirectly from or in connection with (i)
Tenant's use, occupation and/or control of the Premises during events
other than Community Events, and including without limitation any
injury or claim of injury to person or property, of any nature and
howsoever caused, (ii) from any breach of the terms of this Lease, or
(iii) any violation of any governmental or insurance requirements by
Tenant, its sublessees, assignees, invitees, agents, employees,
contractors, or licensees, provided that such indemnity shall not extend
to matters that may arise out of the gross negligence or willful acts of
City or City's agents, employees or contractors.
2. City agrees to and shall indemnify, defend and hold Tenant, each MLB
PDL Entity, and their respective successors and assigns, and the
directors, officers, shareholders, employees, agents and contractors
of Tenant and each MLB PDL Entity, harmless from and against any and
all claims (including without limitation third party claims for death,
personal injury or real or personal property damage), actions, administrative
proceedings (including both formal and informal proceedings), judgments,
damages, punitive damages, penalties, fines, costs, liabilities (including
sums paid in settlements of claims), interest or losses, including reasonable
attorneys' and paralegals' fees and expenses (including any such fees and
expenses incurred in enforcing this Agreement or collecting any sums due
hereunder), consultant fees, and expert fees, together with all other costs
and expenses of any kind or nature that arise directly or indirectly from or
in connection with (i) City's use, occupation and/or control of the Premises
during a Community Event, and including without limitation any injury or
claim of injury to person or property, of any nature and howsoever caused,
(ii) from City's breach of the terms of this Lease, or (iii) any acts arising
from the gross negligence or willful misconduct of City, provided that such
indemnity shall not extend to matters that may arise out of the gross
negligence or willful acts of Tenant or Tenant's agents, employees or
contractors.
N. Time is of the Essence of this Lease. Time is of the essence in the performance of
all obligations of Tenant and City under this Lease.
O. City Approvals. City shall, from time to time, designate one or more people who
are authorized on behalf of City to give consents or approvals required of City
hereunder. Such designation shall remain effective until such time as City notifies
Tenant in writing of a new designee or designees. At the outset, City's designee
shall be Adam Lincoln, City Manager.
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P. Force Majeure. Notwithstanding anything in this Lease to the contrary, each party's
obligations to perform under this Lease shall be excused to the extent that such
performance is prevented, delayed or rendered impracticable by events beyond that
parry's reasonable control, provided such party shall have exercised all reasonable
efforts to avoid such events. Such events shall include, without limitation,
inclement weather, acts of God, strikes, civil commotion, riot, war and any other
cause whether similar or dissimilar to those enumerated that is reasonably beyond
the control of the party obligated to perform. Force Majeure shall not include
financial inability to perform (regardless of the cause) and shall not apply to
defaults arising out of the loss by Tenant of its franchise to operate a professional
baseball team with the Northwest League.
Q. Amendments. Notwithstanding anything herein to the contrary, this Lease may not
be amended, supplemented or otherwise modified without the prior receipt of all
necessary PDL Approvals.
R. Counterparts. This Lease may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one
and the same instrument. This Lease or any counterpart may be executed and
delivered by electronic transmission with an executed hard copy to follow.
IN WITNESS WHEREOF, City and Tenant have executed this Lease the day and
year first above written.
CITY OF PASCO NORTHWEST BASEBALL VENTURES I, LLC, a
Washington Limited Liability Company
I:
Adam Lincoln, City Manager
EXHIBITS AND SCHEDULE:
I0
Exhibit A
Legal Description of Property
Exhibit B
List of Included Equipment
Exhibit C
Concourse Exterior Wall Advertising Area
Exhibit D
Intentionally Blank
Exhibit E
Field Maintenance Standards
Exhibit F
Parking Area
Schedule 1 Intentionally Blank
Schedule 2 MLB Tax Schedule
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Exhibit A
Legal Description Pasco Baseball Stadium (without Parking Lot)
The South 700 feet of the North 1850 feet of the West 550 feet of the East 1043± feet of the
northwest comer of Section 15, Township 9 North, Range 29 East W.M. Franklin County,
Washington.
EXHIBIT A
Exhibit B
Baseball Equipment
Batting Cage: Full cover batting cage with minimum dimensions of 18' wide, 14' deep and
9' high. It is recommended that the cage be portable and made of aluminum
frame to provide maximum maintainability.
Field Screens: Pitching Screen: Thigh x 8' wide with 4' x 4' notch in upper corner.
Double Play Screen: 7' high x 14' wide with hinged wings.
First Base Screen: 7' high x 8' wide.
Shag Protector Screen: 7' high x 8' wide.
EXHIBIT B
E hi i
Concourse Advertising Area
West Side
East Side
EXHIBIT C
Exhibit D
Intentionally Blank
EXHIBIT n
Tri-Cities Baseball Stadium Maintenance Standards
PROGRAM FREQUENCY DETAIL
Fertilizing April — October Application of complete NPK fertilizer with trace
minerals at 7lbs per 1,000 sq. ft. monthly in April, June,
July and August. Equivalent to ESN 18-3-15. In October
equivalent to 20-2-15 at 7 lbs per 1,000 sq. ft. Apply quick
release fertilizer at rate of 7 lbs. per 1,000 sq. ft. in front
of pitchers mound or any other worn areas.
Aerification May — October Monthly in May, June, July and October.
Flag all irrigation heads prior to aerification. Do not
aerify clay areas.
Mowing March — October March — April mow at 2" height. Two weeks prior to team
practice mow at 1-1/2" and maintain until October. Mow
playing field minimum of every other day and all other
areas twice per week.
Edging May — September Edge all base paths and infield perimeter twice per month.
Irrigation March — October Irrigate as needed but no less than 4 times per week for 1
hr. Immediately repair system as needed.
Chemical March — November Identify turf problems and correct immediately. Apply
Applications fungicide 1 S' week of November. Apply penetrating agent
or other chemicals as needed.
Game Day May — September 1. Drag and water infield as needed.
Field Preparation 2. Wash loose dirt back into grass at dirt infield grass
transition areas.
3. Cover area in front of pitchers mound during practice
and pre -game warm up.
4. Drag and clean all red rock warning track areas.
5. Line infield as per baseball standards.
6. Paint outfield out -of -play lines weekly or as needed.
Miscellaneous Year Round 1. Apply a minimum of 2 tons soil conditioner to the top
1" of all infield clay areas.
2. Repair safety net and wall pads as necessary.
3. Overseed all areas at the rate of 25 lbs. per acre. Seed
mixture to be approved by City based on turf analysis.
4. Spray fence lines with herbicide twice a year or as
needed.
EXHIBIT E
Exhibit F
Parking Area
IIIIMIN &`Q.
- o, - -
A. -
we
EXHIBIT F
SCHEDULEI
Intentionally Blank
SCHEDULE 1
SCHEDULE 2