HomeMy WebLinkAboutR-2001-121 Kiwanis Park Expansion / Big League Dreams / Sports ComplexRESOLUTION NO. R-2001- 121
A RESOLUTION authorizing and directing the City Manager of the City of
Yakima to execute a lease agreement with Big League Dreams
Yakima, LLC for the Yakima Sports Complex.
WHEREAS, many leaders of the City of Yakima (the "City") and the
greater Yakima community believe that development of a publicly -owned Sports
Complex including without limitation baseball, softball, indoor hockey and
indoor soccer facilities such as those designed according to plans, and
specifications available from Big League Dreams USA, LLC, of Mira Loma,
California, ("Big League Dreams") would be a community asset. A Sports
Complex at Kiwanis Park would provide the City and the greater Yakima
community with a unique tool to re-establish Yakima's historic image as the
sports capital of the Pacific Northwest and a significant vehicle for enhancing
economic development and tourism; and
WHEREAS, Big League Dreams is experienced in designing, managing,
and operating sports complexes (including baseball, softball, volley ball, inline
hockey and soccer facilities) in Cathedral City and Jurupa, Riverside County,
California; and
WHEREAS, three major local service organizations, namely Kiwanis,
Rotary, and Lions, have already invested substantial time, energy, and money to
acquire necessary property adjacent to Kiwanis Park, and to introduce the
possibility of a Sports Complex such as those designed and operated by Big
League Dreams to leaders of the City of Yakima and the greater Yakima
community; and
WHEREAS, to encourage the possibility of development of a Big League
Dreams Sports Complex in Yakima, the Kiwanis, Rotary, and Lions service
(Ik)res/BLD 8-01.pm
organizations have already donated to the City of Yakima a substantial number
of the properties they acquired adjacent to Kiwanis Park; and
WHEREAS, subject to voter approval of a 1% utility tax rate increase at
the September 18, 2001 election, the City desires to construct a Sports Complex
and lease it to Big League Dreams; and
WHEREAS, the City Council deems it to be in the best interest of the City
of Yakima to enter into a Sports Complex Lease Agreement with Big League
Dreams Yakima, LLC; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed
to execute the attached and incorporated Sports Complex Lease with Big League
Dreams Yakima, LLC.
ADOPTED BY THE CITY COUNCIL this 21st day of August, 2001.
ATTEST:
City Clerk
(Ik)res/BLD 8-01.pm
ary Place, Mayor
MENKE JACKSON BEYER ELOFSON & EHLIS, LLP
Attorneys at Law
ANTHONY F MENKE
ROCKY L. JACKSON
G SCOTT BEYER
TO:
807 NORTH 39TH AVENUE• YAKIMA, WASHINGTON 98902
(509) 575-0313 • FAX. (509) 575-0351
City Council
City Manager
City of Yakima
FROM: G. Scott Beyer
DATE: August 16, 2001
RE: City of Yakima/Big League Dreams Lease Negotiations
DAVID A. ELOFSON
KIRK A. EHLIS
I have been assisting the City in negotiating a Lease with Big League Dreams. You will be
receiving a copy of what is hoped to be the final version of the Lease. This version has not
been reviewed in its final form by Big League Dreams and may therefore be subject to what
we hope will be minor modifications. In addition, there may be formatting and other non-
material changes in the document. Although I will reference the License Agreement
provisions regarding payment and refund of the License Fee, the License Agreement is not
in final form. The following are significant items that have been negotiated with BLD:
♦ Payment of License Fee: The City will not be obligated to pay the $300,000
License Fee until all of the conditions precedent to construction of the Sports
Complex have been satisfied. These conditions precedent are outlined in
Section 3.2 of the Lease.
♦ Refund of License Fee: The License Fee will be paid within 30 days after
all of the conditions precedent are satisfied, which is no later than July 1,
2002. BLD USA declined to agree to a provision for performance security
other than to agree to provide in the License Agreement that it will repay the
License Fee if the City terminates the Lease as a result of the Tenant's
default or surrendering or abandonment of the Lease. This obligation on the
part of BLD USA to repay the License Fee continues for three years after the
License Fee is paid by the City.
The remaining points reference the Sections of the Lease:
♦ 3.2 - Conditions Precedent: The Lease does not become finally effective
until the utility tax measure is approved, all land use approvals are obtained,
Plans and Specifications and a Budget are approved by the parties, and the
City is able to issue bonds based upon bid prices received and accepted by the
City for the entire project.
♦ 4.1(b) - Percentage Rent: The percentage rent is 10% of Gross Revenues
beginning in the fourth full lease year.
August 16, 2001
Page -2
• 4.2 - Gross Revenues: BLD has accepted the City's language for defining
Gross Revenues as being the same as gross income of a business under
Washington State law. A few items are not included in this definition which
include revenues from such sources as video games or special events where
the Tenant does not receive the revenue but is paid a rental fee. In these
cases, the rental income would be a part of Gross Revenues. BLD points out
that if it had to pay a percentage of the revenue from the actual video game
sales or from ticket sales from special events, it would likely not be
financially feasible to contract with video game providers or special event
promoters. BLD further points out that if these contracts were not
financially feasible, both BLD and the City would lose revenue from
restaurant sales.
• 7.2 - Business Name: BLD will likely operate under the name "Big League
Dreams Yakima Sports Park," and has this option.
• 8.3 — Landlord's Non -Competition: Nothing in the non -competition
provision prevents the City from renting, licensing, or allowing the use of its
parks or fields. In addition, it can fund youth tee -ball, coach -pitch, and
player -pitch baseball or softball and can organize such youth baseball or
softball if the Tenant does not do so. Youth means persons 12 or younger.
• 9 - Landlord's Development of the Sports Complex: Sections 9.1, 9.4.
and 9.5 address the City's ability to assure that the Plans and Specifications
and Budgets are followed and that the maximum cost to the City does not
exceed the maximum cost obligation.
• 14 - Insurance and Indemnity: Your insurance brokers have played a
significant role in crafting the language which deals with insurance. We
have also added additional indemnification provisions for protection of the
City.
• 26.2 - Diversity of the Workforce: We have included this provision which
is found in other agreements of the City which establishes as an aspirational
goal, diversity in employment at the Sports Complex comparable to the
ethnic composition of Yakima County.
• 29.4 - Competing Business: BLD has agreed to a non -competition clause
which bars it from establishing a similar park anywhere within the State of
Washington for a period of 25 years. This provision is far more expansive
than the leases negotiated in California.
Based upon the negotiations with BLD, this Lease on the whole is more favorable to the
interests of the City than any comparable lease signed by the California municipalities.
SPORTS COMPLEX LEASE
between the
CITY OF YAKIMA
and
BIG LEAGUE DREAMS YAKIMA, LLC
8/16/2001 12:17 PM
TABLE OF CONTENTS
SECTION 1 - DEFINITIONS
SECTION 2 - LEASE OF SPORTS COMPLEX
SECTION 3 - TERM
SECTION 4 - RENT
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5
6
7
12
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12
13
14
16
16
17
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19
22
24
25
29
30
30
30
30
31
31
32
32
32
33
34
35
37
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SECTION 5 - ADDITIONAL RENT
SECTION 6 - TAXES
SECTION 7 - USE
SECTION 8 - COMPLIANCE
SECTION 9 - LANDLORD'S DEVELOPMENT OF THE SPORTS COMPLEX
SECTION 10 - UTILITIES AND SERVICES
SECTION 11 - MAINTENANCE AND REPAIRS
SECTION 12 - ALTERATIONS
SECTION 13 - DESTRUCTION
SECTION 14 - INSURANCE AND INDEMNITY
SECTION 15 - CONDEMNATION
SECTION 16 - ASSIGNMENT, SUBLETTING AND ENCUMBERING
SECTION 17 - DEFAULT
SECTION 18 - LANDLORD'S ENTRY ON SPORTS COMPLEX
SECTION 19 - NOTICES
SECTION 20 - ATTORNEYS' FEES
SECTION 21 - LITIGATION CONCERNING VALIDITY OF THIS AGREEMENT
SECTION 22 - ESTOPPEL CERTIFICATES
SECTION 23 - SUBORDINATION
SECTION 24 - SALE OR TRANSFER BY LANDLORD
SECTION 25 - SURRENDER OF SPORTS COMPLEX
SECTION 26 - FORM OF NONDISCRIMINATION AND NONSEGREGATION
CLAUSES
SECTION 27 - HOLDING OVER
SECTION 28 - REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS
SECTION 29 - SPECIAL PROVISIONS
SECTION 30 - HAZARDOUS MATERIALS
SECTION 31 - MISCELLANEOUS
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4
EXHIBIT 7
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43
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THIS SPORTS COMPLEX LEASE (this "Agreement") is entered effective this
day of , 2001, by and between the CITY OF YAKIMA, a Washington municipal
corporation referred to in this Agreement as "Landlord", and BIG LEAGUE DREAMS
YAKIMA, LLC, a California limited liability company, referred to in this Agreement as
"Tenant".
SECTION 1 - DEFINITIONS
The following terms used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
1.1 Affiliate means Richard Odekirk, Jeffrey Odekirk, or any entity other than BLD
USA in which Messrs. Odekirk and Odekirk, individually or collectively, or Tenant, owns at
least a fifty percent (50%) capital or voting interest of the common stock, partnership units or
limited liability company interests, as applicable.
1.2 Agreement means this Sports Complex Lease.
1.3 Annual Gross Revenues Statement is defined in Section 4.2(d).
1.4 Award, Condemnation, Condemnor and Date of Taking are defined in Section
15.1.
1.5 BLD USA means Big League Dreams USA, LLC, a California limited liability
company.
1.6 BLD USA Allocations are defined in Section 4.2(b).
1.7 BLD USA Sponsorships are defined in Section 4.2(b).
1.8 Budget means an itemized budget setting forth the costs for the Project, including
but not limited to, financing costs, site work, infrastructure improvements, construction, parking,
buildings, maintenance, FF&E, planning costs, architect fees, engineer fees, permit fees, and
applicable taxes.
1.9 City means the City of Yakima, an incorporated municipality within the County
of Yakima, State of Washington.
1.10 City Days are defined in Section 29.1.
1.11 City Manager means the City Manager of the Landlord.
1.12 City Use Permit shall mean the use permit with respect to the Sports Complex to
be approved by the City.
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1.13 Controlling Percentage means the ownership of, or the right to vote, fifty-one
percent (51 %) or more of the total combined voting shares, units or membership interests of a
corporation, partnership or limited liability company, as applicable.
1.14 F'F&E shall mean all furniture, furnishings, trade fixtures, apparatus and
equipment required for the operation and management of the Sports Complex. A list of the
anticipated FF&E is attached as Exhibit 4 and incorporated herein by this reference.
1.15 Gross Revenues are defined in Section 4.2.
1.16 Hazardous Materials are defined in Section 30.2.
1.17 Indemnitees is defined in Section 14.6.
1.18 Land means the land depicted on Exhibit 1 and described legally on Exhibit 2 on
which the Project shall be constructed and which is leased to Tenant by this Agreement.
1.19 Landlord means the City of Yakima, a municipal corporation, and its permitted
successors and assigns.
1.20 Lease Year means the period from January 1 of each calendar year to December
31 of such calendar year (both dates inclusive) during the Term. If, however, the Term
Commencement Date does not fall on a January 1, the first Lease Year shall be that period from
the Term Commencement Date to the next following December 31, and if the Term does not end
on a December 31, then the last Lease Year shall be the period commencing with the last
preceding January 1 and ending at the end of the Term. The first Lease Year shall be considered
a partial Lease Year for all purposes of this Agreement unless the Term Commencement Date
falls on January 1 of the Lease Year during which the Term Commencement Date occurs.
1.21 Legal Challenge shall mean any action or other legal proceeding (including a
challenge on environmental grounds) brought by any third party seeking to block construction of
the Sports Complex or to contest the validity of this Agreement or of any Related Agreement.
1.22 Memorandum of Lease means that certain Memorandum of Lease executed
approximately concurrently herewith and to be recorded pursuant to Section 31.16.
1.23 Percentage Rent is defined in Section 4.1.
1.24 Plans and Specifications means all concept drawings, preliminary drawings,
landscaping and grading plans, site plans, engineering drawings, reports, final construction
drawings and any other plans or specifications consistent with the Project Description and
beneficial to or required for the construction of the Sports Complex.
1.25 Project means the development of the Sports Complex in accordance with the
Project Description, the Plans and Specifications and this Agreement.
1.26 Project Description means the summary description of the Sports Complex
described in the attached Exhibit 3.
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1.27 Punch List is defined in Section 9.3.
1.28 Quarterly Gross Revenues Statement is defined in Section 4.2(d).
1.29 Related Agreements means any and all agreements executed by and between the
City or any of its affiliates, on the one hand, and BLD USA or BLD Yakima and any of their
affiliates, on the other, relating to the Sports Complex.
1.30 Renewal Terris and Renewal Term are defined in Section 3.4.
1.31 Rental Account is defined in Section 4.4.
1.32 Sports Complex means the Project, FF&E, Land, and all easements or rights of
way necessary or desirable for access to the Land.
1.33 Statutes are defined in Section 8.1.
1.34 Taxes are defined in Section 6.2.
1.35 Tenant means Big League Dreams Yakima, LLC, a California limited liability
company, its permitted successors and assigns. The members of Tenant are BLD USA, Richard
Odekirk and Jeffrey Odekirk.
1.36 Term is defined in Section 3.1.
1.37 Term Commencement Date means the earliest date upon which (a) Tenant
accepts in writing the Sports Complex, or (b) the City issues a Certificate of Occupancy for the
Sports Complex, or (c) Tenant takes possession of the Sports Complex, and Tenant obtains all
permits and licenses required to sell beer, wine and liquor at the Sports Complex; provided,
however, that Tenant's obtaining such permits and licenses shall not be required for purposes of
determining the Term Commencement Date if Tenant has failed to apply for such permits and
licenses at least three (3) months prior to the expected date of substantial completion of the
Sports Complex or has failed to use due diligence to pursue issuance of such permits and
licenses. The Landlord shall advise the Tenant of the expected date of substantial completion at
least five (5) months prior to such date.
1.38 Utility Tax Measure means the measure City voters shall be asked to approve on
September 18, 2001 to increase utility taxes to pay for the cost of constructing the Sports
Complex.
SECTION 2 — LEASE OF SPORTS COMPLEX
This Agreement shall be effective to bind the Landlord to lease the Sports Complex to
Tenant and to bind Tenant to lease the Sports Complex from Landlord on the terms stated herein,
upon this Agreement being duly executed by both parties. The lease of the Sports Complex and
Tenant's right of possession shall not be effective until the Term Commencement Date and shall
not take effect at all if the condition precedents in Section 3.2 are not satisfied.
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SECTION 3 — TERM
3.1 Lease Term. The lease term of this Agreement (the "Term") shall commence on
the Term Commencement Date and shall end on the last day of the calendar month containing
the day which is twenty-five (25) years after the Term Commencement Date, unless sooner
terminated by Landlord or Tenant as otherwise provided for herein. Upon Landlord's request,
Tenant will co-sign Landlord's written confirmation of lease commencement and termination
dates.
3.2 Conditions Precedent. This lease shall in no event be effective until each
of the following conditions precedent are satisfied:
(a) Utility Tax Measure. Voter approval of the Utility Tax Measure, certified by the
Yakima County, Washington, Auditor; and
(b) Land Use Approvals. Landlord obtaining all land use and zoning permits and
approvals reasonably necessary for the development of the Project, with no right
of appeal; and
(c) Approval of Plans and Specifications and Budget. Approval by Landlord and
Tenant of the final Plans and Specifications and Budget for the Project and
FF&E; and
(d) Financing. Landlord issuing bonds at a rate per annum not to exceed 7.51 % for
the Project and FF&E, based upon bid prices received and accepted by Landlord
for the Project and FF&E.
In the event voter approval of the Utility Tax Measure is not certified within the time required
for certifying the election of September 18, 2001, this Agreement shall terminate effective as of
the date following certification of the election, and the parties shall have no further obligation or
liability one to the other thereafter, except as otherwise provided herein. In the event that the
conditions precedent contained in Sections 3.2(b), 3.2(c) and 3.2 (d) are not satisfied on or
before July 1, 2002, this Agreement shall terminate effective as of such date, and the parties shall
have no further obligation or liability one to the other thereafter, except as otherwise provided
herein. The Landlord shall use due diligence to satisfy the condition precedent contained in
Section 3.2(b). The Landlord and Tenant shall each cooperate and use due diligence to timely
review and approve the final Plans and Specifications and Budget for the Project and FF&E for
the purpose of the Landlord advertising for bids. The Landlord shall have the sole discretion
whether to reject all bids, readvertise for bids, or accept the bids received. The Landlord in its
sole discretion may also waive the limitation on the rate of interest based upon bond market
conditions and bid prices received. The dates for satisfaction of the conditions precedent may be
extended by written agreement duly executed by Landlord and Tenant.
3.3 Minimum Percentage Rent. Landlord, in its sole discretion, shall have the right to
terminate this Agreement and all further rights and obligations of the parties hereunder by giving
written notice of such termination (which shall specify a date not less than ninety (90) days
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thereafter on which such termination shall become effective) to Tenant at any time during the
first ninety (90) days of the eighth (8th), ninth (9th) or tenth (10) full Lease Years of this
Agreement if, but only if, during the seventh (7`h), eighth (8th) or ninth (9th) full Lease Year of
this Agreement, Tenant has paid to Landlord Percentage Rent as provided in Section 4 in an
amount of less than $75,000. With respect to any such full Lease Year (7th through the 9th)
Tenant may, at its option, pay Landlord additional Percentage Rent beyond what is required in
Section 4 to meet the Percentage Rent payment requirement set forth in Section 4 and thereby
avoid termination of this Agreement by Landlord.
3.4 Renewal Terms. If Tenant at the expiration of the Term of this Agreement is not
in default in performing any of Tenant's obligations under this Agreement, meaning there are no
defaults on the part of the Tenant with respect to which the notice and cure provisions of this
Agreement have elapsed without a cure having been accomplished, Tenant shall have and is
hereby granted the option to renew this Agreement for three (3) five (5) year Renewal Terms
(the "Renewal Terms" or "Renewal Term") upon the same provisions, covenants, and conditions
contained herein, each such five year Renewal Term to begin on the expiration of the Term of
this Agreement or the prior Renewal Term, as applicable. Each option for a Renewal Term shall
be exercised by Tenant's giving Landlord written notice thereof at least sixty (60) days but not
more than one hundred twenty (120) days prior to the expiration of the Term of this Agreement
or the prior Renewal Term, as applicable.
SECTION 4 — RENT
Tenant shall pay to Landlord Percentage Rent, without deduction, set-off, prior notice or
demand, as follows:
4.1 Percentage Rent.
(a) First Partial and First Three Full Lease Years. In the first partial Lease
Year (if applicable) and in each of the first three full Lease Years, Tenant shall pay no
Percentage Rent (defined below).
(b) Fourth and Subsequent Full Lease Year Payments. Commencing with the
first quarter of the fourth (4th) full Lease Year and continuing for each quarter of every
subsequent Lease Year, Tenant shall pay to Landlord, at the times and in the manner specified in
this Agreement, Percentage Rent for each Lease Year ("Percentage Rent"). Percentage Rent
shall be calculated by multiplying Tenant's Gross Revenues (as defined in Section 4.2) from the
Sports Complex for the applicable period by Ten percent (10 %). The Percentage Rent shall be
paid quarterly, in arrears, within twenty (22) days following the end of each calendar quarter
during the applicable Lease Year.
4.2 Gross Revenues.
(a) Definition. "Gross Revenues" mean "gross income of the business" as
that term is defined pursuant to Chapter 82.04 of the Revised Code of Washington and
Washington Administrative Code regulations promulgated pursuant to such statutes, in effect as
of the date of this Agreement, and as such statutes and regulations may be amended. In the
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event that such statutes or regulations are modified, amended or repealed, which results in items,
categories, kinds and types of revenue or income previously included or to be included in Gross
Revenues being exempted or excluded from Gross Revenue, Landlord and Tenant shall negotiate
in good faith modifications to the definition of Gross Revenue, so that the Landlord is in a
comparable financial position had such modifications, amendments or repeal of the statutes or
regulations not occurred. "Business" for purposes of determining "gross income of the business"
means all business activity of the Tenant, and of its permitted sub -tenants and of its assignees
and concessionaires, franchisees, and licensees, on or about, arising from or related to the Sports
Complex. Gross Revenues shall also include, but not be limited to, BLD Allocations as defined
in Section 4.2 (b). Except with respect to BLD allocations as defined in Section 4.2(b), Gross
Revenues shall not include any revenues arising from or related to the Sports Complex received
by any non -Affiliate person or entity which (a) are not paid or required to be paid to Tenant and
(b) derive from or arise out of tournaments; special events; corporate or group event catering or
services; camps/clinics; video or other arcade games; or pay phone commissions. Tenant shall
include within Gross Revenues, however, all rents or other payments received by it from such
non -Affiliate persons or entities engaged in such activities, whether or not such rents or other
payments fall within the statutory definition of "gross income of the business." Except to an
Affiliate, Tenant shall not contract the collection of revenues from league or player fees; from
field rentals; from gate admissions; or from batting cage use to any person or entity.
Accordingly, all revenues received from such revenue sources shall be Gross Revenues. Tenant
may, with the approval of Landlord, sublease the operation of the restaurant/concession stands.
In the event it does so, however, revenues derived therefrom by such sub -lessee shall be
considered Gross Revenues, but sublease payments to Tenant shall not.
(b) BLD USA Allocations. BLD USA owns and organizes tournaments
played and camps/clinics held at the various Big League Dreams Sports Parks; contracts with
hotels to receive commissions on room nights reserved by participants in tournaments held at the
various Big League Dreams Sport Parks; and sells sponsorships to entities interested in having a
commercial identification with the various Big League Dreams Sports Parks, and shall have the
right to do all of the foregoing with respect to the Sports Complex. Except as otherwise
provided in the remainder of this subpart (b) with respect to revenues paid by BLD USA to
Tenant (the "BLD USA Allocations"), revenues derived by BLD USA shall not be considered
Gross Revenues. All other forms of Gross Revenues (including, specifically, revenues from all
league and player registrations with respect to all sports played at the Sports Complex; batting
cages; food and beverage; group business; special events; gate admissions; merchandising;
arcade; and park tournaments) related to the Sports Complex are created solely by Tenant and all
shall be included in Gross Revenues. As to BLD USA tournaments and camps/clinics, BLD
USA shall pay to Tenant, and Tenant shall include in Gross Revenues, a field rental charge not
less than the maximum field rental charge made by Tenant to any third party tournament
organizer or camps/clinic operator during the applicable Lease Year. BLD USA shall pay to
Tenant, and Tenant shall include in Gross Revenues, fifty percent (50%) of all hotel
commissions received by BLD USA for room nights reserved by participants in tournaments
held at the Sports Complex. "BLD Sponsorships" shall mean any agreement entered by BLD
USA with any entity by which such entity is given the right to identify commercially with Big
League Dreams Sports Parks as a sponsor, preferred company or other designation of similar
import and where such commercial identification rights extend to more than one Big League
Dreams Sports Park. BLD USA shall pay to Tenant, and Tenant shall include in Gross
Revenues, fifty percent (50%) of the cash revenues received from such a BLD Sponsorship
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divided by the number of Big League Dreams Sports Parks to which the BLD Sponsorship
applies. As to any advertising or sponsorship sales made by BLD USA or Tenant which do not
constitute BLD Sponsorships, BLD USA shall pay to Tenant, and Tenant shall include in Gross
Revenue, eighty percent (80%) of the cash revenues received from such a non -BLD
Sponsorship. In the event, however, (A) any entity controlled by BLD USA enters a lease
agreement for the construction and operation of a new Big League Dreams Sports Park, and (B)
such lease shall contain BLD USA Gross Revenue allocation provisions which, taken as a whole,
are more favorable to the new lessor than the BLD USA Gross Revenue allocation provisions set
forth above, taken as a whole, are to Landlord, then this Agreement shall ipso facto be deemed
amended to make such more favorable provisions, taken as a whole, applicable to Landlord
under this Agreement from that time forward. BLD USA may form an entity of which it owns a
Controlling Interest to operate and manage some or all of the revenue described in the first
sentence of this Section 4.2(b). If it does so, revenues received by such an operating entity
(which shall not be an Affiliate for these purposes) from such revenue shall be treated in the
same manner as revenues received by BLD USA for purposes of determining Gross Revenues
and BLD USA Allocations under this Section 4.2.
(c) Sales Recording and Records Tenant shall record at the time of sale, in
the presence of the customer, receipts from sales or other transactions, whether cash or credit, in
a cash register or registers, or a point of sale terminal or terminals, having a tape that
accumulates and consecutively numbers all transactions. A receipt from any transaction
showing the correct amount of purchase shall be offered to the customer at the time of any
transaction, including any cash sale. Transactions not ordinarily recorded in a cash register or
point of sale terminal shall be noted on and kept in a ledger format. Tenant shall keep, and all
sub -tenants, concessionaires, franchisees, contractors and licensees of Tenant shall keep, and,
with five (5) days' advance written notice, make available, at the Sports Complex:
(i) full and accurate books of account and records relating to the
Gross Revenues, maintained in accordance with generally accepted
accounting principles consistently applied, including, without limitation, a
sales journal, general ledger and all bank account statements showing
deposits of Gross Revenues; and
(ii) all cash register or point of sale terminal receipts with regard to the
Gross Revenues, credits, refunds and other pertinent transactions made
from or on the Sports Complex (including the revenues of any sub -tenant,
franchisee, contractor, licensee or concessionaire).
Such books, receipts and records for each Lease Year shall be kept at the Sports Complex or at
the headquarters of BLD USA for a period of seven (7) years after the end of each Lease Year,
and shall be made available for inspection and audit by Landlord and Landlord's representatives
at the Sports Complex on five (5) days' advance written notice. In addition, within thirty (30)
days of the last day of each calendar quarter, Tenant shall furnish to Landlord copies of Tenant's
state and local sales and use tax and business and occupation tax returns, and shall maintain
copies of such records for each Lease Year for a period of seven (7) years after the end of each
Lease Year. Tenant shall require all Tenant's sub -tenants, franchisees, contractors, licensees and
concessionaires producing Gross Revenues to maintain the same records and copies of tax
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returns required of Tenant related to the Sports Complex for each Lease Year for a period of
seven (7) years after the end of each Lease Year.
(d) Quarterly and Annual Gross Revenues Statements.
(i) Quarterly Gross Revenue Statement. Each payment of Percentage
Rent shall be accompanied by a statement, to be certified as correct by an authorized officer of
Tenant, that sets forth Tenant's Gross Revenue for the quarter just concluded ("Quarterly Gross
Revenues Statement"). Quarters shall be calendar year quarters, ending on the last day of
March, June, September and December.
(ii) Annual Gross Revenue Statement. Within sixty (60) days
following the end of each Lease Year, including the last Lease Year of the Term, Tenant shall
furnish Landlord with a statement of Tenant's annual Gross Revenues on account of the previous
Lease Year, or any partial Lease Year, including any deductions ("Annual Gross Revenues
Statement"). Such Annual Gross Revenues Statement shall be certified as correct by an
authorized officer of Tenant.
(iii) Content. Each Quarterly Gross Revenues Statement and Annual
Gross Revenues Statement shall set forth the total Gross Revenues for the preceding quarter or
Lease Year, as applicable, and shall show the method of computing the Percentage Rent due for
such quarter or Lease Year, as applicable. Each Annual Report shall include a performance
report regarding the use of the Sports Complex, including but not limited to, numbers of
tournaments, athletic participants, admissions and such other information as will demonstrate the
level of activity at the Sports Complex.
(e) Audit Rights.
(i) Audit Procedures. The acceptance by Landlord of any monies
paid to Landlord by Tenant as Percentage Rent for the Sports Complex as shown by any Annual
or Quarterly Gross Revenues Statement furnished by Tenant shall not be an acceptance by
Landlord of the accuracy of the statement, or of the sufficiency of the amount of Percentage Rent
payments, but Landlord shall be entitled at any time and from time to time during the Term, until
the date that is seven (7) years after the end of the Lease Year for which any of the Percentage
Rent payments have been paid, to question the sufficiency of the amount paid and the accuracy
of any and all statements furnished by Tenant to justify the amount Tenant shall pay as
Percentage Rent, and to confirm and evaluate Tenant's statement of its Gross Revenues from the
Sports Complex. At any time during the Term and within seven (7) years after the end of the
Term, Landlord may cause an audit of Tenant's books and records relating to the calculation of
Percentage Rent by an independent accountant of Landlord's own selection for any Lease Year.
If any Annual Gross Revenues Statement for such Lease Year delivered by Tenant to Landlord is
found to be less than the amount of Tenant's actual Gross Revenues for the period covered by the
statement, Tenant shall immediately pay to Landlord any additional Percentage Rent shown to
be payable by Tenant. If the audit reveals that the correct amount of Gross Revenues is more
than five percent (5%) greater than the amount shown on the Annual Gross Revenues Statement
previously delivered by Tenant for the period covered by such statement, Tenant shall
immediately pay to Landlord the cost of the audit and any additional Percentage Rent shown to
be payable by Tenant, together with a late charge on the amount of the underpayment of
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Percentage Rent at the rate specified in Section 17.3, plus additional rent equal to five percent
(5%) of the Percentage Rent payable for such Lease Year; otherwise, the cost of this audit shall
be paid by Landlord. If, ten (10) days after written request therefor specifying Tenant's failure
to comply with the reporting obligations hereunder, Tenant fails to provide to Landlord any
Quarterly Gross Revenues Statement or Annual Gross Revenues Statement in the manner
specified in this Agreement, such failure shall constitute a default under this Agreement. In such
an event, Landlord shall have the right, in addition to any other rights or remedies it may have
under this Agreement, to conduct an audit to determine such revenues. Tenant shall immediately
reimburse Landlord for the cost of such audit on written demand by Landlord. If at any time
Tenant causes an audit of Tenant's business at the Sports Complex to be made by an independent
accountant, Tenant shall furnish Landlord with a copy of the report of this audit at no cost to
Landlord, within ten (10) days after Tenant's receipt of the audit report.
(ii) Examination of Books. Tenant shall, for a period of seven (7)
years following the delivery of each Annual Gross Revenues Statement, including the seven (7)
year period following the end of the Term, keep and maintain, safe and intact, all of the records,
books and accounts required under Section 4.2(c) and shall from time to time, upon request,
make such records available to Landlord, Landlord's auditor, representative or agent for
examination at any reasonable time during such period. Landlord shall also have the right to
make abstracts from the records; to make copies of any or all of the records; to examine any or
all contracts, leases, licenses and concession agreements; and to make copies of any or all
contracts, leases, licenses or concession agreements.
(iii) Assignees. Wherever Tenant's business or operations, or Tenant's
Gross Revenues, or Tenant's records, books, accounts and other data are referred to in this
Agreement, they shall be deemed to include, but only to the extent necessary to calculate or
verify Gross Revenues, those of any assignee, sub -tenant, concessionaire, licensee, vending
machine operator or other person, firm or corporation selling merchandise or services on or from
the Sports Complex, provided that this subpart shall not be deemed to imply consent to the
operations of any other person, firm, or corporation except in accordance with the provisions of
Section 16.
4.3 Percentage Rent Due in Event of Default. If this Agreement is terminated by
Landlord because of Tenant's default, and if Tenant becomes liable for rent by way of damages
or otherwise, or if at any time during the Term, Tenant, in violation of Section 7, ceases to
conduct in the Sports Complex the business described in Section 7, then from and after the time
of the breach causing this termination, or from and after the time of the cessation of business, the
Percentage Rent shall be deemed to be Ten percent (10 %) of that amount which is equal to the
average of the Gross Revenues per year during the twenty-four (24) months preceding the
termination or cessation of business, unless the termination or cessation occurs within three (3)
years of the beginning of the Term, in which event the Percentage Rent shall be $200,000 per
year.
4.4 Payment. All rent payable under this Agreement shall be made in legal currency
of the United States. Tenant shall pay all rental amounts due under this Agreement by electronic
funds -transfer to such account as shall be designated by Landlord from time to time. Such
transfers shall be authorized in writing by Tenant and provide for payment from the Rental
Account established by Tenant. "Rental Account" shall mean a bank deposit account which is
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fully insured with the Federal Deposit Insurance Corporation. An amount equal to the rent due
each calendar quarter shall be deposited by Tenant in such account within twenty (22) days
following the end of each calendar quarter and Landlord shall be authorized on and after such
date to sweep such account for purpose of payment of the rent due Landlord.
SECTION 5 — ADDITIONAL RENT
All Taxes and other costs and expenses payable under this Agreement by Tenant and all
damages, costs and expenses that Landlord incurs by reason of Tenant's default, shall be deemed
additional rent. In the event of Tenant's nonpayment of additional rent, Landlord shall have all
the same rights and remedies as Landlord has for the nonpayment of Percentage Rent. The term
"rental" and "rent" as used in this Agreement shall mean Percentage Rent and such additional
rent.
SECTION 6 - TAXES
6.1 Covenant to Pay Taxes. As additional rent, Tenant shall, throughout the Term,
commencing effective as of the Term Commencement Date, pay directly to the appropriate
taxing authorities all Taxes (as defined in Section 6.2). All Taxes shall be paid before
delinquency and before any fine, interest or penalty shall become due or be imposed by
operation of law for their nonpayment. Tenant shall furnish to Landlord prior to the date when
any Taxes would become delinquent receipts or other appropriate evidence establishing such
payment.
6.2 Definition of Taxes. The term "Taxes" shall include all real property taxes,
possessory interest taxes, personal property taxes, excise taxes, charges and assessments
(including but not limited to leasehold excise taxes and street improvement liens) which are
levied, assessed upon or imposed by any governmental authority or political subdivision thereof
(other than the City or any political subdivision thereof) during or with respect to any portion of
the Term hereof with respect to the Sports Complex and any improvements, fixtures, equipment
or other property of Tenant, real or personal, located on the Land or used in connection with the
operation of the Sports Complex, and any tax which shall be levied or assessed in addition to or
in lieu of such real or personal property taxes, and any license fees and taxes measured by or
imposed upon rents, or other taxes or charges upon Landlord's leasing of the Land or the receipt
of rent hereunder.
6.3 Proration of Tenant's Tax Liability. Tenant's liability to pay Taxes shall be
prorated on the basis of a 365 -day year to account for any fractional portion of a fiscal tax year
included in the Term at its commencement or expiration. Any Taxes payable after the Term
Commencement Date (but before the expiration of the Term) but applicable, in whole or in part,
to periods prior to the Term Commencement Date, shall be paid by Tenant. Landlord shall,
however, pay to Tenant its pro rata share of such Taxes liability for periods prior to the Term
Commencement Date at least ten (10) days prior to the date such Taxes are due and payable.
SECTION 7 — USE
7.1 Permitted Uses Tenant shall use and occupy the Sports Complex continuously
during the Term for the purposes, among others reasonably related thereto, of offering sport and
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recreational play and instructional opportunities, group and special event activities and food and
beverage, retail and other concessions at the Sports Complex as described in this Agreement and
for no other purpose without exception. Use of a part of the Sports Complex for a game room,
including video games, pool tables and similar entertainment equipment, shall be permitted;
provided, however, that any form of gaming, lawful or otherwise, will not be permitted on the
Sports Complex without the prior written consent of the Landlord. Subject to obtaining and
maintaining required or appropriate licenses, permits or other approvals from the applicable
governmental agencies having jurisdiction, Tenant may engage in the sale of beer, wine and
liquor. Tenant shall not permit any obscene or indecent art forms, materials, images or
exhibitions to be placed or maintained on the Sports Complex.
7.2 Business Name. During the Teim, and any Renewal Term, Tenant shall conduct
business in the Sports Complex under the name "Big League Dreams Yakima Sports Complex"
or "Big League Dreams Yakima Sports Park," as Tenant determines in its sole discretion, in the
manner provided herein.
7.3 Permits. Tenant shall at all times during the Term obtain, keep and maintain all
licenses and permits required by state and local governmental authorities necessary to operate
the Sports Complex, and comply with each and every term of each such permit.
7.4 Security. Tenant shall at all times provide such security for the operation of the
Sports Complex as shall reasonably be planned by Tenant to be prudent to protect the customers,
employees, guests, contractors and other invitees of the Sports Complex, and the owners and
occupants of neighboring properties, from the customers, employees, guests, contractors and
other invitees of the Sports Complex.
7.5 Operation. Tenant shall operate Tenant's business from the Sports Complex with
due diligence and efficiency. Tenant will operate the business at Tenant's own expense and at
hours consistent with other similar businesses operated by Tenant; provided, however, that this
provision shall not apply if the Sports Complex is closed due to inclement weather or Tenant's
business is temporarily shut down due to casualty, condemnation, fire or other causes beyond the
reasonable control of Tenant. Tenant shall at all times carry a commercially reasonable stock of
merchandise and of food and beverages offered for sale at competitive prices, and shall maintain
an adequate number of properly trained personnel for the efficient service of Tenant's customers,
Sports Complex participants and the operation of the Sports Complex. Although Landlord has
no ownership interest in Tenant's business, Landlord is concerned about maximizing Gross
Revenues (and, consequently, the Percentage Rent), and Tenant hereby acknowledges that fact.
SECTION 8 — COMPLIANCE
8.1 Tenant. Tenant shall, at Tenant's expense, comply promptly with all applicable
statutes, ordinances, rules, regulations, orders, covenants, conditions and restrictions and
requirements of any governmental authority in effect during the Term, regulating the use or
operation by Tenant of the Sports Complex (collectively, the "Statutes") whether those Statutes
are now in force or are subsequently enacted. Tenant shall keep and maintain in full force and
effect, and in good standing, all permits and licenses required from state and local governmental
authorities for operation of the Sports Complex. The suspension or termination of any permit or
license for a period in excess of thirty (30) days shall be a material breach hereof, but shall first
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be subject to the right to cure as provided in Section 17.1. If any bureau, department or official
of the state or county government or any other governmental authority (other than the City)
having jurisdiction requires that any non-structural changes, modifications, replacements,
alterations or additional equipment be made or supplied in or to any portion of the Sports
Complex by reason of Tenant's use or operation thereof, Tenant shall, at Tenant's cost and
expense, make and supply such non-structural changes, modifications, replacements, alterations
or additional equipment. Tenant shall not use nor permit the use of the Sports Complex in any
manner that will tend to create waste or a nuisance. The judgment of any court of competent
jurisdiction, or the admission by Tenant in a proceeding brought against Tenant by any
government entity, that Tenant has violated any Statute shall be conclusive as between Landlord
and Tenant and shall constitute grounds, subject to the right to cure as provided in Section 17.1,
for termination of this Agreement by Landlord.
8.2 Landlord. Landlord, and Landlord's contractors and agents, shall comply with all
applicable Statutes of any governmental authority then in effect while developing the Project,
including but not limited to public procurement laws as applicable. Landlord represents and
warrants that, as of the Term Commencement Date, the Sports Complex will be in compliance
with all applicable Statutes of any governmental authority then in effect related to the
construction of the Project. In the event, during the Term, Landlord enacts or issues any new
Statutes which would burden or restrict Tenant in the operation of the Sports Complex beyond
restrictions contained in this Agreement or the City Use Permit, Landlord and Tenant shall
negotiate in good faith modifications to the Percentage Rent formula or other provisions of this
Agreement, the effect of which modifications would place Tenant in a comparable financial
position had such Statutes not been enacted or issued.
8.3 Landlord's Non -Competition. During the Term, not including any Renewal
Term, Landlord, shall not organize, or contract with third parties to organize, softball or baseball
leagues or tournaments within the City; provided, that nothing in this Section shall prohibit the
Landlord from (a) renting, licensing or allowing the use of Landlord's parks or fields, or (b)
funding youth t -ball, coach pitch, and player pitch baseball or softball, or (c) organizing youth t -
ball, coach pitch and player pitch baseball or softball leagues in the event Tenant does not do so,
or (d) organizing winter baseball or softball leagues or tournaments during such periods that the
Sports Complex is not open for baseball and softball use. "Youth" for purposes of this Section
shall mean persons twelve (12) years of age and younger. In the event at any time during the
Term, Tenant does not intend to organize youth t -ball, coach pitch and player pitch baseball or
softball leagues, it shall notify Landlord in writing prior to November 1 of the preceding ball
season, so that the Landlord at its option may organize such leagues. Once such leagues are
organized by the Landlord after notice from Tenant or after Tenant fails to organize such youth
leagues, Landlord shall have the right to organize such youth leagues without being subject to
the provisions of this Section until such time that the Landlord fails to organize such youth
leagues.
SECTION 9 — LANDLORD'S DEVELOPMENT OF THE SPORTS COMPLEX
9.1 Approval of Plans and Specifications and Budget. Landlord and Tenant shall
mutually agree in writing upon the final Plans and Specifications and Budget for purposes of the
Landlord advertising for bids for the Project and FF&E. Once mutually approved in writing, the
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Landlord may make nonmaterial changes in the final Plans and Specifications or Budget,
provided that such modifications are approved by the Landlord's architect for the Project and are
consistent with the Project Description and the intended use of the Sports Complex, but may not
make material changes in the final Plans and Specifications or Budget without the written
consent of the Tenant, which shall not be unreasonably withheld.
9.2 Landlord's Construction Obligations. The Sports Complex shall be constructed
by Landlord, as set forth in the Project Description and the Plans and Specifications, with due
diligence. The quality of construction and the quality of materials used in the construction of the
Sports Complex shall be of a first class quality and in accordance with the Project Description
and the Plans and Specifications. Landlord shall prosecute Landlord's construction obligations
hereunder to completion without undue interruption or delay and in a good, workmanlike
manner. Landlord warrants that it will endeavor to cause the Sports Complex to be completed
and possession thereof delivered to Tenant on or before May 1, 2003. In the event the Sports
Complex is not completed and possession of the Sports Complex is not delivered to Tenant on or
before May 1, 2003, Tenant shall have no obligation to pay any rent or other payments or
perform any other obligations under this Agreement until the Term Commencement Date.
Landlord shall have no liability to Tenant for failure to complete the Sports Complex and deliver
possession of the Sports Complex on or before the date hereinbefore described, or on or before
any other date, provided Landlord is continuing to prosecute its construction obligations
diligently and in good faith. Tenant shall, however, have the option to terminate this Agreement,
without further obligation or liability hereunder, in the event Landlord is unable to complete the
Sports Complex and deliver possession of the Sports Complex to Tenant on or before November
1, 2004.
9.3 Guarantee of Materials. Landlord shall guarantee all work performed by or for
Landlord in the construction of the Sports Complex against defective workmanship and
materials for a period of two (2) years from the Term Commencement Date (or such longer
period as may be specified in the Plans and Specifications). Landlord, if permitted, shall assign
to Tenant (or enforce for Tenant's benefit) any and all guarantees and/or warranties of
workmanship and materials which it may receive or which are required in the Plans and
Specifications with respect to those portions of the Sports Complex required to be maintained
and repaired by Tenant hereunder. Within fifteen (15) days after receipt of Landlord's
certification of substantial completion of the Sports Complex, Tenant shall supply to Landlord a
written punch list (the "Punch List") setting forth any additional corrective work to the Sports
Complex which Tenant believes is required to be performed pursuant to the Plans and
Specifications. In the event that no Punch List is provided by Tenant within such fifteen (15) day
period, then Tenant shall be deemed to have accepted the Sports Complex in its entirety subject
to Landlord's guarantee obligations described above and any repair and maintenance obligations
of Landlord under Section 11.2 below. Landlord shall complete or correct the Punch List items
promptly and with due diligence.
9.4 FF&E. Tenant shall have the right to review and make additions and revisions to
the FF&E list set forth in Exhibit 4 with the approval of the Landlord, which approval shall not
be unreasonably withheld, subject to the maximum cost set forth in Section 9.5 not being
exceeded. Landlord shall acquire at its expense and own all FF&E, which shall be leased to
Tenant as part of this Agreement. Landlord shall advertise for bids for the FF&E at substantially
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the same time as the advertisement for bids for the Project. All or any portion of the FF&E may,
at Landlord's option, be bid as part of the Project or by separate bid.
9.5 Landlord's Maximum Cost Obligation. Notwithstanding any other provision of
this Agreement, Landlord's maximum cost obligation under this Agreement shall not exceed the
total amount of $10,317,771 for all expenses contemplated by this Agreement, including, but not
limited to, bond underwriting and counsel, site work, infrastructure improvements, construction,
parking, buildings, maintenance, FF&E, planning costs, architects, engineers, permits, and
applicable taxes. Notwithstanding the provisions of Section 9.1 regarding material changes in
the Plans and Specifications and Budget, if at any time after commencement of construction of
the Project, the Landlord reasonably determines that the maximum cost set forth in this Section
9.5 may be exceeded, the Landlord and Tenant shall negotiate in good faith modifications in the
approved final Plans and Specifications and Budget, consistent with the Project Description and
contemplated use of the Sports Complex, to maintain the maximum costs below the amount set
forth in this Section 9.5.
SECTION 10 — UTILITIES AND SERVICES
Tenant shall make all arrangements for and pay prior to delinquency all utilities and
services furnished to or used by it or its licensees or sub -tenants, including, without limitation,
gas, electricity, water, telephone service, communications, cable television, trash collection,
sewer and storm drainage. Landlord shall, as part of its construction obligations, contract for
and pay all necessary charges to connect the Sports Complex, and all necessary locations within
the Sports Complex, to, or to access, gas, electrical, water, telephone, communications, cable
television lines or sources and sewer and storm drainage.
SECTION 11— MAINTENANCE AND REPAIRS
11.1 Tenant's Obligations. Except as provided in Section 11.2 below, throughout the
Term, Tenant shall, at Tenant's sole cost and expense, maintain the entire Sports Complex in a
safe and first class condition and in good repair, including but not limited to replacement of
FF&E (damage by casualty described in Section 13.1 excepted) and in accordance with (a) all
applicable Statutes; (b) the insurance underwriting board or insurance services office having or
claiming jurisdiction over the Sports Complex; (c) all insurance companies insuring all or any
part of the Sports Complex; and (d) standards consistent with other Big League Dreams Sports
Parks.
11.2 Landlord's Obligations. For a period of two (2) years from the Term
Commencement Date, Landlord shall, at Landlord's sole cost and expense, make all repairs and
replacements in the Sports Complex required because of latent defects or latent faulty
installation or construction by Landlord or as the result of the act, default, omission or
negligence of Landlord, its employees, agents, licensees, contractors or subcontractors.
11.3 Maintenance and Replacement of FF&E. All FF&E shall be maintained and
replaced by Tenant pursuant to Section 11.1.
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SECTION 12 — ALTERATIONS
Tenant shall not make any alterations or additions to the Sports Complex after
completion of the Sports Complex without the prior written consent of the City Manager, which
consent may be withheld in the sole discretion of the Landlord. Subject to the prior written
consent of the City Manager, the alterations or additions shall not be commenced in any case
until twenty (20) days after the City Manager has received written notice from Tenant stating the
date the construction of the alterations or additions is to commence so that the City Manager, on
behalf of Landlord, can post and record an appropriate notice of nonresponsibility. Any
alterations or additions or changes to the Sports Complex made by Tenant shall be done at
Tenant's sole expense and in accordance with all applicable laws, rules and regulations,
including but not limited to public procurement laws (as applicable) and building codes. All
such work requiring a building permit shall be performed under the direction and supervision of
a competent contractor(s) licensed and in good standing under the laws of the State of
Washington. Tenant shall not permit any mechanic's or materialman's liens to remain against
the Sports Complex for work or materials furnished in connection with any such alterations,
additions or changes to the Sports Complex. If Tenant shall, in good faith, contest the validity of
any such lien, Tenant shall, at its sole expense, defend itself and Landlord against the same and
upon Landlord's request, furnish to Landlord a surety bond in an amount equal to one hundred
twenty percent (125%) of such contested lien indemnifying Landlord against the liability for
same and holding the Sports Complex free from any effect of such lien. All alterations and
additions to the Sports Complex shall become the property of Landlord and shall remain on and
be surrendered with the Sports Complex at the expiration or sooner termination of this
Agreement.
SECTION 13 - DESTRUCTION
13.1 Partial Destruction: Restoration by Tenant. If the Sports Complex is damaged or
destroyed during the Tenn other than by a flood, earthquake or other casualty not covered by the
all risk property insurance required to be maintained by Tenant, and the cost of repairing the
Sports Complex is less than thirty percent (30%) of the replacement cost of the Sports Complex
and the Term has at least ten (10) years remaining, then Tenant shall promptly restore the Sports
Complex to substantially the same condition it was in immediately before such damage or
destruction in accordance with the original Plans and Specifications (except for changes as may
be required by changed building and safety codes, which Tenant shall make at Tenant's sole cost
and expense). Such damage or destruction shall not terminate this Agreement. Tenant shall use
commercially reasonable efforts to complete such repairs and endeavor to do so within one -
hundred eighty (180) days from the date of the casualty.
13.2 Major Damage or Destruction: Tenant's Right to Terminate. If the Sports
Complex is damaged or destroyed by flood, earthquake or other casualty not covered by the all
risk property insurance required to be maintained by Tenant during the Term, and the cost of
repairing the Sports Complex is thirty percent (30%) or more of the replacement cost of the
Sports Complex or the Term has less than ten (10) years remaining, then Tenant shall have the
option of either repairing and reconstructing the Sports Complex or of terminating this
Agreement.
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13.3 Damage Covered by Insurance. Notwithstanding the foregoing, provided that
damage or destruction to the Sports Complex is due to a cause covered by the all risk property
insurance required by this Agreement or by insurance otherwise maintained by Tenant, then
Tenant shall restore the Sports Complex to substantially the same condition it was in
immediately before such damage or destruction, in accordance with the original Plans and
Specifications (except for any changes that may be required by changed building and safety
codes, which Tenant shall make at Tenant's sole cost and expense) to the extent of insurance
proceeds received; provided, however, that (1) if the cost of the restoration of the Sports
Complex shall exceed the insurance proceeds available to Tenant to perform such restoration by
an amount in excess of $100,000, or (2) there is damage to or destruction of the Sports Complex
and the governmental restrictions then in effect with respect to the Sports Complex prohibit
construction of economically viable replacement improvements with respect to a use which
Tenant has a right to make under this Agreement, or (3) such destruction occurs during the last
ten (10) years of the Term or during any extension term of this Agreement, then Tenant shall
have the right to terminate this Agreement.
13.4 Right of Termination. To exercise the right of termination described in Section
13.2 or 13.3, Tenant must comply with all of the following conditions:
(a) Give Landlord notice of termination within sixty (60) days after the damage or
destruction, specifying the date of termination which shall be not less than sixty
(60) days nor more than one hundred twenty (120) days after the date such notice
of termination is given;
(b) Prior to the termination date, cure any defaults on Tenant's part under this
Agreement;
(c) Continue to make all payments when due (including without limitation the
prorated portion of any additional rent, including any rent due under Section 4,
becoming due after Tenant has given the notice of termination but prior to the
date of termination), if any, as required by the provisions of this Agreement until
the date of termination;
(d) Prior to the termination date, pay in full any outstanding indebtedness incurred by
Tenant and secured by an encumbrance or encumbrances on the leasehold, or
alternatively, deliver to Landlord the written consent of the holders of all such
encumbrances to the early termination of this Agreement and extinguishment of
their liens;
(e) Prior to the termination date, cause to be discharged all liens and encumbrances
encumbering the Sports Complex or Tenant's leasehold interest resulting from
any act or omission of Tenant;
(f) On or before the termination date, deliver possession of the Sports Complex to
Landlord, quitclaim all right, title and interest in the Sports Complex to Landlord
and cease to do business on the Sports Complex, and vacate the Sports Complex;
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(g)
Prior to the termination date, effectively relinquish, assign and deliver to
Landlord all insurance proceeds resulting from the casualty.
In the event of any such termination, any additional rent paid in advance shall be prorated
through the date the Agreement is terminated.
13.5 Abatement or Reduction of Rent. In case of any damage or destruction where this
Agreement is not terminated, there shall be no abatement or reduction of Percentage Rent or
additional rent; however, during the period of reconstruction, Tenant may continue to conduct
business from the Sports Complex from temporary facilities or temporary structures subject to
compliance with local building and safety codes or other applicable municipal codes. Tenant
shall use commercially reasonable efforts to complete such reconstruction and re -open the Sports
Complex for business within a reasonable time.
13.6 Insurance Proceeds. If Tenant is obligated or elects to restore the Sports Complex
pursuant to this section, the proceeds of any insurance maintained under this Agreement shall be
disbursed pursuant to a customary construction disbursement system or service for payment of
costs and expenses of repair. If the insurance proceeds are insufficient to cover the cost of repair,
and Tenant is nonetheless obligated to repair under Sections 13.1 or 13.2, then Tenant shall
deposit the amount of the deficiency with Landlord, and such funds shall be disbursed first, and
the balance of the construction costs shall be disbursed from the insurance proceeds by Landlord.
SECTION 14 — INSURANCE AND INDEMNITY
14.1 Liability Insurance. Effective as of the Term Commencement Date, Tenant shall
procure at its sole cost and expense, and thereafter keep in effect at all times until the end of the
Term, commercial general liability insurance which shall include broad form contractual liability
insurance coverage insuring all of Tenant's indemnity obligations under this Agreement. Such
coverage shall have a minimum combined single limit of liability of at least $1,000,000 per
occurrence and an umbrella or excess liability policy of not less than $4,000,000 per occurrence.
If commercial general liability insurance or other form with a general aggregate limit is used, the
general aggregate limit shall be twice the required occurrence limit. Tenant's public liability
insurance shall include liquor liability insurance and shall not exclude liability for athletic
participants. All of Tenant's public liability insurance policies shall be written to apply to all
bodily injury, property damage, personal injury and other covered loss, however occasioned,
occurring during the policy term, and shall be endorsed to provide that such coverage shall be
primary and that any insurance maintained by Landlord shall be excess insurance only. Tenant
may satisfy the requirements of this Section 14.1 by having BLD USA obtain a master policy of
liability insurance applicable to multiple Big League Dreams Sports Parks which shall, by
endorsement, specifically name Tenant as an insured with respect to the Sports Complex and
comply with other requirements of this Section 14.1 applicable to such insurance for the Sports
Complex, including but not limited to the liability limits.
14.2 Workers' Compensation Insurance. Tenant and Tenant's sub -tenants and
concessionaires shall maintain workers' compensation insurance in accordance with Washington
law and an employer's liability insurance endorsement with customary limits.
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14.3 Property Insurance.
(a) All Risk Coverage. Tenant shall at Tenant's expense obtain and keep in
force during the Term of this Agreement (commencing as of the Term Commencement Date) a
policy of insurance covering loss or damage to the Sports Complex, all FF&E and other personal
property of Tenant and Landlord, in the amount of the full replacement value thereof, including
inflation guard endorsement, as the same may exist from time to time, against all perils included
within the classification of fire, extended coverage, vandalism, malicious mischief and special
extended perils ("all risk," as that term is known in the insurance industry), but excluding
damage due to flood or earthquake. If such insurance coverage has a deductible clause, the
deductible amount shall not exceed $20,000 per occurrence. Tenant shall be liable for such
deductible amount. Tenant shall obtain such endorsements as are reasonably recommended by
Landlord's risk manager, including, without limitation, an endorsement for changes in building
codes, provided such endorsements may be obtained on commercially reasonable terms.
Landlord shall be the loss payee on such policy. Landlord shall receive and retain all insurance
proceeds to the extent they are not used to rebuild the Sports Complex following an insured
casualty.
(b) Replacement Value. The "full replacement value" of the property to be
insured under this section shall be determined based upon the cost to the Landlord for such
property. Not more frequently than once every five (5) years, either party shall have the right to
notify the other that it elects to have the replacement value redetermined by an independent
appraiser as provided in this subpart (b). The redetermination shall be made promptly and each
party shall be promptly notified of the results by the appraiser. The insurance policy shall be
adjusted according to the redetermination.
14.4 Insurance Policies.
(a) Coverage Re -Evaluation. Not more frequently than once every five (5) years, if
in the reasonable opinion of Landlord the amount or type of any insurance at that time is not
adequate or not provided for herein, Tenant shall either acquire or increase the insurance
coverage as required by Landlord provided Tenant may obtain such increased coverage on
commercially reasonable terms.
(b) Policy and Company Requirements. Tenant shall deliver to Landlord
copies of policies of such insurance or certificates with attached original endorsements
evidencing the existence and amounts of such insurance with loss payable clauses as required by
this Section 14. Tenant shall, at least fifteen (15) days prior to the expiration of such policies,
furnish Landlord with renewals or binders thereof. Insurance is to be placed with insurers with a
current A.M. Best's rating of no less than A -:VII and licensed to do business in the State of
Washington. All policies of insurance must (other than the property insurance, which shall name
the Landlord as the loss payee) be endorsed to contain the following:
(i) The Landlord, its elected officials, council members, officers,
employees, agents and volunteers as additional insureds. The
coverage shall contain no special limitations on the scope of
protection afforded the Landlord.
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(ii) The insurance coverage shall be primary insurance as respects the
Landlord, its elected officials, council members, officers,
employees, agents and volunteers. Any insurance or self-insurance
maintained by the Landlord, its members, council members,
officers, employees and volunteers shall be excess of the insurance
and shall not contribute with it.
(iii) No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days prior
written notice to Landlord.
(iv) As respects workers' compensation insurance, the policy shall be
endorsed with a waiver of subrogation clause for Landlord, its
elected officials, council members, officers, employees, agents and
volunteers.
(c) Policy Compliance. Tenant shall not use the Sports Complex in any
manner, even if the use is for the purposes permitted herein, that will result in the cancellation
of any insurance required under this Agreement. Tenant shall not keep on the Sports Complex
or permit to be kept, used or sold thereon, anything prohibited by any fire or other insurance
policy covering the Sports Complex.
(d) Failure to Obtain Insurance. If, after written notice and a fifteen (15) day
opportunity to cure, Tenant shall fail to obtain any insurance required under this Agreement,
Landlord may, at its election, obtain such insurance and Tenant shall, as additional rent,
reimburse Landlord for the cost thereof plus a five percent (5%) handling charge, within five (5)
days following demand therefor. If Tenant fails or refuses to maintain insurance as required
hereunder, or fails to provide the proof of insurance, Landlord shall, subject to the notice and
cure provisions of Section 17.1, have the right to declare this Agreement in default, and
Landlord shall be entitled to exercise all legal remedies for breach of this Agreement.
(e) Relationship to Indemnities. All insurance required to be provided
hereunder is in addition to, and not in lieu of, the indemnity provisions of Section 14.6. The
procuring of such required policies of insurance shall not be construed to limit Tenant's liability
hereunder, nor to fulfill the indemnification provisions and requirements of this Agreement.
14.5 Waiver of Subrogation. Tenant and Landlord each hereby release and relieve
each other, and waive their right of recovery against the other, for loss or damage arising out of
or incident to the perils insured against under Section 14.3, which perils occur in', on or about the
Sports Complex, whether due to the negligence of Landlord or Tenant or their agents,
employees, contractors and/or invitees, but only to the extent of insurance coverage. Tenant
shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Agreement
14.6 Indemnity. Tenant shall, commencing with the Term Commencement Date,
indemnify, defend, protect and hold harmless Landlord and its respective elected officials,
council members, officers, employees, agents and contractors (collectively the "Indemnitees")
from and against any and all claims, losses, proceedings, damages, causes of action, liability,
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costs and expenses (including reasonable attorneys' fees), related to, arising from or in
connection with, or caused by, directly or indirectly (a) any act, omission or negligence of
Tenant or any sub -tenant of Tenant, or their respective contractors, licensees, invitees, agents or
employees, wheresoever the same may occur; (b) any use of the Sports Complex, or any
accident, injury, death or damage to any person or property occurring in, on or about the Sports
Complex, or any part thereof, or from the conduct of Tenant's business or from any activity,
work or thing done, permitted or suffered by Tenant or its sub -tenants, contractors, employees or
invitees in, on or about the Sports Complex, or elsewhere (other than when arising as a result of
the negligence or intentional misconduct of an Indemnitee); and (c) any breach or default in the
performance of any obligations on Tenant's part to be performed under the terms of this
Agreement, or arising from any negligence of Tenant, or any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought against an
Indemnitee by reason of any such claim, Tenant upon notice from Landlord shall defend the
same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant shall have no
duty to defend or indemnify Landlord or any other Indemnitee from any Legal Challenge.
Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to
property or injury to person in, on or about the Sports Complex arising from any cause other
than the negligence or intentional misconduct of an Indemnitee or Hazardous Materials existing
on the Land prior to the Term Commencement Date as provided in Section 30.4 and Tenant
hereby waives all claims in respect thereof against Landlord. Tenant specifically waives any
immunity that may be granted it under the Washington State Industrial Insurance Act, Title 51,
Revised Code of Washington. Further, the indemnification obligations of Tenant to Landlord
shall not be limited in any way by any limitation on the amount or type of damages,
compensation, or benefits payable to or for any third party under workers' compensation acts,
disability benefit acts, or other benefit acts; provided, that Tenant's waiver of immunity by the
such provisions shall extend only to claims against Tenant by Landlord and shall not include or
extend to any claims by Tenant's employees directly against Tenant. These provisions are in
addition to, and not in lieu of, the insurance required under this Section 14.
SECTION 15 — CONDEMNATION
15.1 Definitions.
(a) "Condemnation" means (i) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor and (ii) a voluntary sale or transfer
by Landlord to any Condemnor, either under threat of condemnation or while legal proceedings
for condemnation are pending.
(b) "Date of Taking" means the date the Condemnor has the right to
possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value awarded,
paid or received on a total or partial condemnation.
(d) "Condemnor" means any public or quasi -public authority (other than the
City, which shall not exercise rights of condemnation with respect to the Land during the Term),
or private corporation or individual, having the power of condemnation or eminent domain.
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15.2 Rights and Obligations Governed by Lease. If during the Term there is any
taking of all or any part of the Sports Complex or any interest in this Agreement by
Condemnation, the rights and obligations of the parties shall be determined pursuant to this
Section. Each party waives all statutory rights allowing either party to petition a court of
competent jurisdiction to terminate this Agreement in the event of a partial taking of the Sports
Complex.
15.3 Total Taking. If the Sports Complex is totally taken by Condemnation, this
Agreement shall terminate on the Date of Taking.
15.4 Partial Taking. If any portion less than all of the Sports Complex is taken by
Condemnation, this Agreement shall remain in effect, except that Tenant can elect to terminate
this Agreement if, in the reasonable judgment of Tenant, the portion of the Sports Complex not
so taken cannot be so repaired or reconstructed, taking into consideration the amount of the
award available for repair, so as to be suitable for Tenant's continued use of the Sports Complex
for the same use as the Sports Complex was being used immediately prior to the taking and the
remaining Sports Complex would not be usable by Tenant on an economically feasible basis. If
Tenant elects to terminate this Agreement, Tenant must exercise its right to terminate by giving
notice to Landlord within sixty (60) days after the Date of Taking. If Tenant elects to terminate
this Agreement, Tenant also shall notify Landlord of the effective date of the termination, which
effective date shall not be later than ninety (90) days after Tenant has notified Landlord of its
election to terminate. If Tenant does not terminate this Agreement within the sixty (60) day
period, this Agreement shall continue in full force and effect.
15.5 Restoration of Sports Complex. If there is a partial taking of the Sports Complex
and this Agreement remains in full force and effect pursuant to Section 15.4, Tenant shall
commence all necessary restoration as promptly as reasonably practicable under the
circumstances but in all events within thirty (30) days after receipt of the Award, and shall
thereafter diligently pursue such restoration work to completion.
15.6 Temporary Taking. On any taking of the temporary use of all or any part or parts
of the Sports Complex for a period, or of any estate less than a fee, ending on or before the
expiration date of the Term, the Term shall not be reduced, extended or affected in any way, and
Tenant shall be entitled to any Award for the use or estate taken. If a result of the temporary
taking is to necessitate expenditures for changes, repairs, alterations, modifications or
reconstruction of the Sports Complex, the Award shall be paid to Tenant, and Tenant shall
commence all necessary changes, repairs, alterations, modifications or reconstruction of the
Sports Complex as promptly as reasonably practicable under the circumstances but in all events
within thirty (30) days after receipt of the Award, and shall thereafter diligently pursue such
restoration work to completion. At the completion of the work and the discharge of the Sports
Complex from all liens and claims, Tenant shall be entitled to any surplus and shall be liable for
any deficit. If any such taking is for a period extending beyond the expiration date of the Term,
the taking shall be treated under the foregoing provisions for total and partial takings, depending
upon whether the temporary taking is of all or only a part of the Sports Complex.
15.7 Application of Award. No Award for any partial or entire taking shall be
apportioned. Awards for partial or temporary takings, where this Agreement is not terminated,
shall be applied by Tenant to restoration of the Sports Complex as provided above. Tenant
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hereby assigns to Landlord any Award for a total taking which may be made, together with any
and all rights of Tenant now or hereafter arising in or to the same or any part thereof; provided,
however, that nothing contained herein shall be deemed to give Landlord any interest in or
require Tenant to assign to Landlord any Award made to Tenant for the unamortized value of
any additions or improvements on the Sports Complex constructed by Tenant in accordance with
this Agreement (amortized on a straight line basis over the remainder of the Term of this
Agreement from the Date of Taking), the taking of personal property and fixtures belonging to
Tenant and removable by Tenant at the expiration of the Term hereof, as provided hereunder, or
for the interruption of, damage to, or loss of Tenant's business and goodwill, or for relocation
expenses recoverable against the Condemnor, or in the event of a partial taking, the cost of
restoring the Sports Complex to a usable condition.
SECTION 16 — ASSIGNMENT, SUBLETTING AND ENCUMBERING
16.1 Prohibition Against Assignment, Subletting and Encumbering. Tenant shall have
the right to assign this Agreement to an entity as to which a Controlling Percentage is owned by
BLD USA or by Tenant or which shall have purchased all or substantially all of the assets of
BLD USA or Tenant. Tenant shall not otherwise assign, transfer or encumber all or any portion
of its interest in this Agreement or in the Sports Complex, or sublease all or any part of the
Sports Complex, or allow any other person or entity (except Tenant's or BLD USA's authorized
representatives) to occupy or use all or any part of the Sports Complex, without Landlord's prior
written consent, which consent shall not be unreasonably withheld, delayed or conditioned. No
licensees, concessionaires or sub -tenants of all or part of the Sports Complex shall, without the
prior written approval of Landlord, be Affiliates of Tenant. In the event Landlord approves any
assignment, subletting or encumbering of the Sports Complex, Landlord shall cooperate with
Tenant in effectuating the reasonable requirements of prospective assignees, sub -tenants or
encumberees to complete any such transaction. Landlord shall not assign this Agreement to any
entity other than a political subdivision of the City or its Redevelopment Agency without the
Tenant's prior written consent, which consent shall not be unreasonably withheld, delayed or
conditioned.
(a) Approval Procedure for Assignments, Subleases and Encumbrances. Tenant shall
first notify Landlord at least sixty (60) days prior to the proposed effective date of any
assignment, sublease or encumbrance, in writing, of its desire to do so and shall submit in
writing to Landlord (1) the name of the proposed sub -tenant, assignee or encumberee, (2) the
terms and conditions of the proposed sublease, assignment or encumbrance (including a copy of
the written agreement for same), (3) financial statements for the two most recent completed
fiscal years of the proposed sub -tenant or assignee, and (4) a bank reference for the proposed
sub -tenant or assignee. Thereafter, Tenant shall furnish such supplemental information as
Landlord may reasonably request concerning the proposed sub -tenant, assignee or encumberee.
At any time within thirty (30) days after Landlord's receipt of the information specified above,
Landlord may by written notice to Tenant elect to (1) consent to the sublease, assignment or
encumbrance, or (2) disapprove of the sublease, assignment or encumbrance in Landlord's
reasonable discretion. Such grounds may include, without limitation, a possible material adverse
effect upon the reputation of the Sports Complex from the nature of the sub -tenant or assignee; a
reputation for financial reliability on the part of the proposed sub -tenant or assignee which is
unsatisfactory in the sole judgment of Landlord; insufficient experience of the sub -tenant or
assignee to operate the Sports Complex; likely adverse impact on Gross Revenues; or
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inexperience in the performance of Tenant's other obligations under this Agreement. If Landlord
consents to the sublease, assignment or encumbrance (or fails to respond to Tenant's request)
within the sixty (60) day period, Tenant may thereafter enter into such assignment, sublease or
encumbrance of the Sports Complex upon the terms and conditions and as of the effective date
set forth in the information furnished by Tenant to Landlord.
(b) Executed Document Copy. Notwithstanding Landlord having granted its consent
to any assignment, subleasing or encumbering, prior to the effective date of any assignment, the
commencement date of any sublease or the recordation date of any encumbrance, Tenant shall
furnish Landlord with a copy of the fully executed sublease, assignment or encumbrance
agreement.
(c) Minimum Term. No sublease of the Sports Complex or portion thereof, or
assignment of this Agreement, shall be for a period of less than one (1) year, nor shall any
sublease or encumbrance extend beyond the expiration date of the Term of this Agreement.
(d) Assumption. Each permitted assignee or transferee shall assume and be deemed
to have assumed, and each sub -tenant shall be bound by, this Agreement. In the case of an
assignment of this Agreement where Landlord's approval is required and Landlord so consents
in writing, Landlord shall not release Tenant from any further obligations arising under this
Agreement after the date of the assignment unless such assignment specifically provides for such
a release. No assignment shall be binding on Landlord unless such assignee or Tenant shall
deliver to Landlord a counterpart of such assignment which contains a covenant of assumption
by the assignee, but the failure or refusal of the assignee to execute such instrument of
assumption shall not release or discharge the assignee from its liability as set forth above.
16.2 Additional Provisions. No consent by Landlord to any assignment, sublease or
encumbrance shall constitute a waiver of the provisions of this section. Tenant shall not make
any modifications to an approved sublease without Landlord's prior written consent. For the
purposes hereof, an "encumbrance" shall mean a mortgage, deed of trust, land sale contract,
lease or other financing device. Any attempted assignment, sublease or encumbrance, if not
approved by Landlord in advance pursuant to this Section 16, shall be voidable by Landlord and,
at Landlord's election, shall, subject to the notice and cure provisions of Section 17, constitute a
default hereunder.
16.3 Liens. Tenant shall not cause or permit any liens of any nature to be placed
against the Sports Complex except liens placed thereon by Landlord or approved by Landlord as
provided in this Section, and Tenant shall save Landlord harmless from and on account of all
liens and all expenses and indebtedness connected therewith, including but not limited to
Landlord approved liens, except those relating to liens placed thereon by Landlord.
SECTION 17 — DEFAULT
17.1 Tenant's Default. The occurrence of any of the following shall constitute a
default by Tenant:
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(a) Failure to Pay Rent. Failure to pay rent (whether Percentage Rent, or any
other rent due to Landlord) or any other additional payment required to be
made by Tenant to Landlord hereunder as and when due, where such
failure continues for ten (10) days after delivery by Landlord to Tenant of
written notice of such failure.
(b) Failure to Pay Taxes. Failure to pay any Taxes on a timely basis, or the
failure to provide any insurance required hereunder, where such failure
continues for fifteen (15) days after delivery by Landlord of written notice
of such failure to Tenant.
(c) Surrender. Abandonment or surrender of the Sports Complex or the
leasehold estate by Tenant.
(d) Default Under Related Agreements. Tenant's default under any Related
Agreement, where such default is not cured by Tenant (or BLD USA, as
applicable) within the cure period applicable to such default under such
agreements or within ten (10) days after delivery by Landlord to Tenant of
written notice of such failure, whichever shall later occur.
(e) Default Under this Agreement. Failure to perform any other covenant or
provision of this Agreement, if the failure to perform is not cured within
thirty (30) days after delivery by Landlord to Tenant of written notice. If
the failure to perform cannot reasonably be cured within thirty (30) days,
Tenant shall not be in default of this Agreement if Tenant commences to
cure the failure to perform within the thirty (30) day period and thereafter
diligently and in good faith prosecutes the cure to completion.
(f)
(g)
Attachment. The subjection of any right or interest of Tenant to
attachment, execution or other levy, or to seizure under legal process, if
not released within sixty (60) days after written notice from Landlord to
Tenant.
Insolvency. An assignment by Tenant for the benefit of creditors or the
filing of a voluntary or involuntary petition by or against Tenant under any
law for the purpose of adjudicating Tenant a bankrupt; or for extending
time for payment, adjustment or satisfaction of Tenant's liabilities; or for
reorganization, dissolution or arrangement on account of or to prevent
bankruptcy or insolvency; unless the assignment or proceeding, and all
consequent orders, adjudications, custodies and supervision are dismissed,
vacated or otherwise permanently stayed or terminated within sixty (60)
days after the assignment, filing or other initial event.
(h) Receivership. The appointment of a receiver, unless such receivership is
terminated within sixty (60) days after the appointment of the receiver, to
take possession of Tenant's interest in the Sports Complex or of Tenant's
interest in the leasehold estate or of Tenant's operations on the Sports
Complex for any reason, including but not limited to, an assignment for
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the benefit of creditors or voluntary or involuntary bankruptcy, but not
including receivership (i) pursuant to a permitted first leasehold
encumbrance, or (ii) instituted by Landlord, the event of default being not
the appointment of a receiver at Landlord's instance but the event
justifying the receivership.
17.2 Landlord's Remedies.
(a) Cumulative Nature of Remedies. If any default by Tenant shall continue
uncured, following notice of default as required by this Agreement, for the period applicable to
the default under the applicable provision of this Agreement, Landlord shall have the remedies
described in this Section 17.2 in addition to all other rights and remedies provided by law or
equity, to which Landlord may resort cumulatively or in the alternative.
(b) Termination. Landlord may at Landlord's election terminate this
Agreement by giving Tenant written notice of termination. In the event Landlord terminates this
Agreement, Landlord may recover possession of the Sports Complex (which Tenant shall
surrender and vacate upon demand) and remove all persons and property therefrom. Landlord
shall in addition be entitled to recover as damages all of the following:
(i) The worth at the time of the award of any unpaid rent or other
charges which have been earned at the time of termination;
(ii) The worth at the time of the award of the amount by which the
unpaid rent and other charges which would have been earned after
termination until the time of the award exceeds the amount of the
loss of such rental or other charges that Tenant proves could have
been reasonably avoided;
(iii) The worth at the time of the award of the amount by which the
unpaid rent and other charges for the balance of the Term after the
time of the award exceeds the amount of the loss of such rental and
other charges that Tenant proves could have been reasonably
avoided; and
(iv) Any other amount necessary to compensate Landlord for the
detriment proximately caused by Tenant's failure to perform its
obligations under this Agreement.
(c) Worth Defined. As used in subparts (i) and (ii) above, the "worth at the
time of the award" shall be computed by allowing interest at the rate of seven percent (7%) per
annum. As used in subpart (iii) above, the "worth at the time of the award" shall be computed by
discounting such amount by the discount rate of the Federal Reserve Bank of San Francisco at
the time of the award.
(d) Continuation of the Agreement. Even in the event Tenant has breached
this Agreement and abandoned the Sports Complex, at Landlord's option this Agreement shall
continue in effect for so long as Landlord does not terminate Tenant's right to possession.
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Landlord may enforce all of its rights and remedies hereunder, including the right to recover rent
as it comes due under this Agreement. In such event, Landlord will permit Tenant to sublet the
Sports Complex or to assign its interest in this Agreement, or both, with the consent of Landlord,
which consent will not unreasonably be withheld provided the proposed assignee or sub -tenant is
reasonably satisfactory to Landlord as to credit and reputation and will occupy the Sports
Complex for the same purposes specified herein, and provided that Tenant shall cure all defaults
to Landlord as a condition precedent to the effectiveness of Landlord's consent. For purposes of
this subsection, the following shall not constitute a termination of Tenant's right to possession:
(i) acts of maintenance or preservation or efforts to relet the Sports Complex; or (ii) the
appointment of a receiver under the initiative of Landlord to protect Landlord's interest under
this Agreement.
(e) Use of Tenant's Personal Property. Landlord may at Landlord's election
use Tenant's personal property and trade fixtures located on, about or appurtenant to the Sports
Complex or any of such property and fixtures without compensation and without liability for use
or damage, or store them for the account and at the cost of Tenant. The election of one remedy
for any one item shall not foreclose an election of any other remedy for another item or for the
same item at a later time.
(f) Assignment of Subrents. Tenant assigns to Landlord all subrents and other
sums falling due from sub -tenants, licensees and concessionaires during any period in which
Landlord has the right under this Agreement, whether exercised or not, to reenter the Sports
Complex due to Tenant's default. Tenant shall not have any right to such sums during that
period. This assignment is subject and subordinate to any and all assignments of the same
subrents and other sums to the lender under a permitted first leasehold encumbrance. Landlord
may at Landlord's election reenter the Sports Complex with or without process of law, without
terminating this Agreement, and either or both collect these sums or bring action for the recovery
of the sums directly from such obligors. Landlord shall receive and collect all subrents and
proceeds from reletting, applying them: first, to the payment of reasonable expenses (including
attorneys' fees or brokers' commissions or both) paid or incurred by or on behalf of Landlord in
recovering possession, placing the Sports Complex in good condition and preparing or altering
the Sports Complex for reletting; second, to the reasonable expense of securing new sub -tenants;
third, to the fulfillment of Tenant's covenants to the end of the Term; and fourth, to Landlord's
uses and purposes. Tenant shall nevertheless pay to Landlord on the due dates specified in this
Agreement the equivalent of all sums required of Tenant under this Agreement, plus Landlord's
expenses, less the proceeds of the sums assigned and actually collected under this provision.
17.3 Late Charge. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other charges due under this Agreement will cause Landlord to incur costs
not contemplated by this Agreement, the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to processing and accounting charges, and late
charges which may be imposed on Landlord by the terms of any indebtedness of Landlord
related to the Sports Complex. Accordingly, if any delinquent installment of rent or any other
charge due from Tenant is not received by Landlord or Landlord's designee within ten (10) days
after written demand for payment shall have been delivered by Landlord to Tenant, then, at
Landlord's election and upon Landlord's demand, Tenant shall pay to Landlord a late charge
equal to ten percent (10%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of the
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late payment by Tenant. No late charge may be imposed more than once for the same late rental
payment. Acceptance of such late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount. If Tenant fails to pay any two installments
of Percentage Rent in the time (including applicable notice and cure periods) required by this
Agreement, then Landlord also shall have the right, for a period of three (3) Lease Years, to
require that all future Percentage Rent be payable monthly rather than quarterly. Landlord shall
give Tenant written notice of such election at least five (5) days before the next monthly
payment shall be due.
17.4 Landlord's Default. The occurrence of the following shall constitute a default by
Landlord: Landlord's failure to perform any covenant or provision of this Agreement or of any
Related Agreement, if the failure to perform is not cured within thirty (30) days after delivery by
Tenant to Landlord of written notice specifying the specific nature of the alleged default. If the
failure to perform cannot reasonably be cured within thirty (30) days, Landlord shall not be in
default under this Agreement or under any Related Agreement if Landlord commences to cure
the failure to perform within the thirty (30) day period and thereafter diligently and in good faith
prosecutes the cure to completion.
17.5 Tenant's Remedies. If any default by Landlord shall continue uncured, following
notice of default as required by this Agreement, for the period specified in Section 17.4 above,
Tenant may terminate this Agreement and/or pursue any and all other rights and remedies
available at law or in equity under the laws of the State of Washington.
SECTION 18 — LANDLORD'S ENTRY ON SPORTS COMPLEX
Landlord and its authorized representatives shall have the right to enter the Sports
Complex at all reasonable times for any of the following purposes:
(a) Verify Condition To determine whether the Sports Complex is in the
condition required by this Agreement and whether Tenant is complying
with its obligations under this Agreement;
(b) Post Notices To serve, post or keep posted any notices required or
allowed under the provisions of this Agreement;
(c) Show Property To show the Sports Complex for any reasonable purpose
at any time during the Term; and
(d) Business Purposes To carry out any building or property management
business purpose in or about the Sports Complex.
Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance or other damage arising out of Landlord's entry on the Sports Complex as
provided in this Section, except damage resulting from the acts or omissions of Landlord or its
authorized representatives. Tenant shall not be entitled to an abatement or reduction of rent if
Landlord exercises any rights reserved in this Section. Landlord shall conduct its activities on
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the Sports Complex as allowed in this Section in a manner that reasonably attempts to minimize
any inconvenience, annoyance or disturbance to Tenant's business operations.
SECTION 19 — NOTICES
Any notice, demand, request, consent, approval or communication that either party
desires or is required to give to the other party shall be in writing and shall be given to the
addresses set forth below, and shall be deemed delivered three (3) days after deposit into the
United States mail, postage prepaid, by registered or certified mail, return receipt requested.
Unless notice of a different address has been given in accordance with this Section, all such
notices shall be addressed as follows:
If to Landlord, to: City of Yakima
129 N. 2nd Street
Yakima, Washington 98901
Attention: Richard A. Zais, Jr., City Manager
If to Tenant, to:
Big League Dreams Yakima, LLC
10550 Galena Street
Mira Loma, California 91752
Attention: Scott Parks LeTellier, Chief Executive Officer
SECTION 20 — ATTORNEYS' FEES
If either party commences an action against the other arising out of or in connection with
this Agreement, the prevailing party shall be entitled to have and recover from the losing party
its reasonable attorneys' fees and costs of suit.
SECTION 21— LITIGATION CONCERNING VALIDITY OF THIS AGREEMENT
In the event any Legal Challenge is undertaken, Landlord shall have the right, exercisable
not later than ninety (90) days from the date of this Agreement, provided the Legal Challenge
shall not sooner have been dismissed, settled or otherwise resolved, to terminate this Agreement
by thirty (30) days written notice to Tenant without any further liability to Tenant whatsoever.
Landlord shall have no liability to Tenant if this Agreement is terminated by reason of such
Legal Challenge.
SECTION 22 — ESTOPPEL CERTIFICATES
At any time and from time to time, within thirty (30) days after notice of request by
either party, the other party shall execute, acknowledge and deliver to the requesting party, or to
such other recipient as the notice shall direct, a statement certifying that this Agreement is
unmodified and in full force and effect; or, if there have been modifications, that it is in full
force and effect as modified in the manner specified in the statement and acknowledging that
there are no uncured defaults or failures to perform any covenant or provision of this Agreement
30
8/16/2001 12:17 PM
on the part of the requesting party or specifying any such defaults or failures which are claimed
to exist. The statement shall also state the dates to which the rent and any other charges have
been paid in advance. The statement shall be such that it can be relied on by any auditor,
creditor, commercial banker or investment banker of either party and by any prospective lender
with respect to the Sports Complex or all or any part or parts of Tenant's or Landlord's interests
under this Agreement. Either party's failure to execute, acknowledge and deliver, on request, the
certified statement described above within the specified time shall constitute a breach of this
Agreement. If Tenant fails to deliver the certificate within ten (10) days, Tenant constitutes and
appoints Landlord as its special attorney-in-fact to execute and deliver the certificate to a third
party, which appointment is irrevocable and is hereby coupled with an interest.
SECTION 23 — SUBORDINATION
This Agreement is subject and subordinate to all prior leases and underlying liens,
mortgages and deeds of trust which now encumber the Land, and to all renewals, modifications,
consolidations, replacements and extensions thereof. If the holder or holders of any such
mortgage or deed of trust shall advise Landlord that they desire or require this Agreement to be
prior and superior thereto, upon written request of Landlord to Tenant, Tenant agrees promptly
to execute, acknowledge and deliver any and all documents or instruments which are reasonably
necessary or desirable for purposes thereof. Landlord shall have the right to cause this
Agreement to be and become and remain subject and subordinate to future and further ground or
underlying financing leases, mortgages or deeds of trust which may hereafter be executed
covering the Sports Complex, or any renewals, modifications, consolidations, replacements or
extensions thereof, for the full amount of all advances made or to be made thereunder and
without regard to the time or character of such advances, together with interest thereon and
subject to all the terms and provisions thereof. Tenant shall, within thirty (30) days after
Landlord's written requests therefor, execute, acknowledge and deliver any and all documents or
instruments requested by Landlord, or that are necessary or proper to assure the subordination of
this Agreement to any such mortgages, deeds of trust or leasehold estates; provided, however,
that the foregoing provisions with respect to such election of subordination by Landlord shall not
be effective unless the owner or holder of any such mortgage, deed of trust or leasehold estate
shall execute with Tenant a nondisturbance agreement under which such owner, holder or
Landlord shall agree, in the event of termination of such leasehold estate or upon the foreclosure
of any such mortgage or deed of trust, that Tenant's quiet enjoyment of the Sports Complex will
not be disturbed so long as Tenant pays rent and observes and perform all of the provisions of
this Agreement to be observed and performed by Tenant. Notwithstanding anything to the
contrary set forth in this Section, Tenant hereby attorns and agrees to attorn to (at the option of)
any person, firm or corporation purchasing or otherwise acquiring the Sports Complex at any
sale or other proceeding or pursuant to the exercise of any other rights, powers or remedies under
such mortgages, or deeds of trust, or ground or underlying leases, as if such person, firm or
corporation had been named as Landlord herein.
SECTION 24 — SALE OR TRANSFER BY LANDLORD
In the event of any transfer or transfers of Landlord's interest in the Sports Complex,
other than a transfer for security purposes only, the City, as transferor, shall automatically be
relieved of any and all obligations and liabilities on the part of the Landlord accruing from and
after the effective date of such transfer provided that any funds in the hands of the City to which
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Tenant is entitled at the time of such transfer shall be turned over to the transferee and the City
shall have satisfied all obligations and liabilities to Tenant arising under this Agreement or under
any Related Agreement as of the effective date of the transfer. The covenants and obligations of
Landlord contained in this Agreement shall be binding upon Landlord, its successors and
permitted assigns only during their respective periods of ownership.
SECTION 25 — SURRENDER OF SPORTS COMPLEX
At the expiration or earlier termination of the Term, Tenant shall surrender to Landlord
the possession of the Sports Complex. Surrender or removal of improvements, fixtures and trade
fixtures shall be as directed in the provisions of this Agreement on ownership of improvements,
fixtures and trade fixtures at expiration or termination of this Agreement. Except as provided in
Section 13 to the contrary, Tenant shall leave the surrendered property and any other property in
good and broom clean condition. All personal property that Tenant is not required to surrender
but that Tenant does abandon shall, at Landlord's election, become Landlord's property at
expiration or the sooner termination of this Agreement.
SECTION 26 — NONDISCRIMINATION, NONSEGREGATION AND DIVERSITY
CLAUSES
26.1 Nondiscrimination and Nonsegregation. Tenant covenants by and for itself, its
successors and assigns and all persons claiming under or through it that it shall not discriminate
against or segregate any person, or group of persons, on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the subleasing, use, occupancy or enjoyment of
the Sports Complex nor shall the Tenant itself, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of licensees, concessionaires, sub -tenants or
vendees in the Sports Complex. Nothing herein shall be construed to limit or restrict Tenant
from organizing men's, women's, girls, boys, church, company or other group leagues,
tournaments or other programs.
26.2 Diversity of the Workforce. Tenant affirms, as an aspirational goal, diversity in
employment at the Sports Complex comparable to the ethnic composition of Yakima County and
will use due diligence to realize this aspirational goal. The Landlord will help Tenant
affirmatively market opportunities at the Sports Complex. The parties understand and agree that
this aspirational goal and efforts related to it is not a contractual requirement and is not subject to
any contractual penalties.
SECTION 27 — HOLDING OVER
If Tenant remains in possession of the Sports Complex or any part thereof after the
expiration or termination of the Term of this Agreement, such occupancy shall be a tenancy from
month to month upon all the provisions of this Agreement pertaining to the obligations of
Tenant, except that the Percentage Rent shall be increased to Twelve percent (12%) of the Gross
Revenues and the Percentage Rent shall be payable in arrears on a monthly basis.
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SECTION 28 — REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS
Tenant makes the following representations, warranties and acknowledgments as of the
date of this Agreement, which representations, warranties and acknowledgments shall survive
and continue thereafter:
(a) Status. Tenant is a limited liability company, duly formed and validly
existing and has all power and authority to perform the obligations
contemplated hereby. On or before execution of this Agreement, Tenant
shall supply to Landlord, certificates of formation for Tenant and BLD
USA. Throughout the Term of this Agreement, Tenant shall be and
remain a single -purpose, bankruptcy remote entity.
(b) Authority. Tenant has complied with all laws and regulations concerning
its organization, existence and transaction of business. Tenant has the
right and power to lease and operate the Sports Complex as contemplated
in this Agreement. To the best of Tenant's knowledge, Tenant has, or at
all appropriate times shall have properly obtained, all permits, licenses
and approvals necessary to occupy and operate the Sports Complex and in
so doing has, or shall have (as appropriate), substantially complied with
all applicable Statutes.
(c) No Litigation. There is no litigation, action, suit or other proceeding
pending or threatened against Tenant which may in any manner
whatsoever substantially adversely affect the validity, priority or
enforceability of this Agreement or the construction, use, occupancy or
operation of the Sports Complex.
(d) Enforceability. Tenant has full right, power and authority to execute and
deliver this Agreement and the Memorandum of Lease executed pursuant
hereto, and to perform the undertakings of Tenant contained in this
Agreement. This Agreement constitutes valid and binding obligations of
Tenant which are legally enforceable in accordance with their terms,
subject to the laws of bankruptcy, creditor's rights exceptions and equity.
(e) No Breach. To the best of Tenant's knowledge, none of the undertakings
of Tenant contained in this Agreement violates any applicable Statute or
any order or ruling of any court, or conflicts with, or constitutes a breach
or default under, any agreement by which Tenant is bound or regulated.
(f) Accuracy. To the best of Tenant's knowledge, all documents, reports,
instruments, papers, data, information and forms of evidence delivered to
Landlord by Tenant with respect to this Agreement are accurate and
correct, are complete insofar as completeness may be necessary to give
Landlord true and accurate knowledge of the subject matter thereof, and
do not contain any material misrepresentation or omission.
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(g)
Taxes. To the best of Tenant's knowledge, Tenant has filed all federal,
state, county and municipal tax returns required to have been filed by
Tenant, and has paid all taxes which have become due pursuant to such
returns or to any notice of assessment received by Tenant. Tenant has no
knowledge of any basis for additional assessment with respect to such
taxes.
SECTION 29 — SPECIAL PROVISIONS
29.1 City Use of Sports Complex. Tenant agrees to make the Sports Complex
available to the Landlord four weekdays each year for City employee or non-profit community
activity use. Such days shall be reasonably selected by Tenant and Landlord, which selection
shall be based, among other factors, on space availability, and shall not be on holidays. The
Landlord shall give Tenant at least three (3) months prior written notice of the date or dates it
proposes for use of the Sports Complex. On such dates (hereinafter "City Days"), the Sports
Complex shall be made available to Landlord free of charge, provided, however, all hourly (but
not salaried) labor employed to service City Days activities shall be charged to the Landlord
based on Tenant's actual cost. Food and beverages shall be sold to guests and invitees of
Landlord at regular retail prices.
29.2 Pre -Opening Expenses. Tenant acknowledges that Tenant will be responsible for
the initial capitalization of Tenant's business operations on the Sports Complex and will be
responsible for start-up expenses in connection with Tenant's business operations including,
without limitation, hiring and training of employees, acquisition of inventory and pre -opening
marketing expenses.
29.3 Signage. Tenant shall not accept or display tobacco product or adult
entertainment advertising in the Sports Complex. During the Term, Tenant shall permit
Landlord to display one non-commercial, public interest sign per stadium replica field without
payment of any advertising fees. Landlord shall, at its option, fabricate and provide the signs to
Tenant according to specifications Tenant shall develop for advertising signs generally or
reimburse Tenant for Tenant's actual costs in fabricating the signs for Landlord.
29.4 Competing Business. Commencing with the date of this Agreement and
continuing during the Term of this Agreement or, in the event this Agreement is terminated as a
result of a default by Tenant or as a result of Tenant's surrender or abandonment of this Lease,
for a period of twenty-five (25) years from the date of this Agreement, whichever is longer,
neither Tenant nor an Affiliate of Tenant, shall own, lease, or manage, nor license the use of the
name "Big League Dreams" in connection with a competing sports park facility similar in nature
and function to the Sports Complex or any other sports park or sports facility located within the
state of Washington.
29.5 Regulation of Smoking. Pursuant to Chapter 70.160 of the Revised Code of
Washington, the Washington Administrative Code, and City of Yakima Administrative Code §
700, employees and members of the public are not permitted to smoke in any City owned
facility. Tenant shall establish and enforce a policy of prohibiting smoking in the Sports
Complex; provided, however, that designated smoking areas may be established outside of the
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entrances to the Sports Complex or any structures of the Sports Complex, so long as the
designated smoking areas are no closer than 30 feet from any entrance doors or gates. For
purposes of this Section, "smoking" is defined as the carrying or smoking of any kind of lighted
pipe, cigar, cigarette, or any other lighted smoking equipment.
29.6 Judicial Determination. If after good faith negotiations, the parties cannot agree
upon modifications as provided in Sections 4.2 (a), 8.2 or 9.5, either party may petition the
Superior Court of the State of Washington in and for Yakima County to have the issue
determined by a judge of said court after a hearing at which each party may present evidence.
Not withstanding the provisions of Section 20 which shall apply to all other action, in any
judicial proceedings to determine such modifications, the Landlord and Tenant shall each bear
its respective costs and expenses, including attorneys fees.
SECTION 30 — HAZARDOUS MATERIALS
30.1 Hazardous Materials. Tenant shall not store, generate, treat or dispose of any
hazardous substances or hazardous waste, on the Sports Complex; provided, however, that
Tenant is permitted to bring onto the Sports Complex Hazardous Materials (defined below)
contained in emergency back-up batteries, under the condition that Tenant will treat all such
Hazardous Materials brought onto the Sports Complex by it in accordance with all applicable
federal, state, and local laws and regulations.
30.2 Definition of "Hazardous Material". When used in this Agreement, the term
"Hazardous Material" shall be defined to mean any substance or material defined or designated
as hazardous or toxic waste, hazardous or toxic material, a hazardous, flammable explosive,
corrosive, toxic, or radioactive substance, or other similar term, by any federal, state, or local
environmental statute, regulation, or ordinance presently in effect or that may be promulgated in
the future, as such statutes, regulations, and ordinances may be amended from time to time,
including, but not limited to, the statutes listed below:
(a) Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et
seq.
(b) Federal Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. § 9601 et seq.
(c) Federal Clean Air Act, 42 U.S.C. § 7401-7626.
(d) Federal Water Pollution Control Act, Federal Clean Water Act of 1977, 33 U.S.C.
§ 1257 et seq.
(e) Federal Insecticide, Fungicide, and Rodenticide Act, Fed. Pesticide Act of 1978, 7
U.S.C. § 13 et seq.
(f) Federal Toxic Substance Control Act, 15 U.S.C. § 2601 et seq.
(g) Federal Safe Drinking Water Act, 42 U.S.C. § 3000(0 et seq.
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(h) Washington Clean Air Act, RCW Chapter 70.94.
(i) Washington Solid Waste Management -Recovery and Recycling Act, RCW
Chapter 70.95.
(j) Washington Model Toxics Control Act, RCW Chapter 70.105D.
(k) Washington Hazardous Waste Fees Act, RCW Chapter 70.105.A.
(1) Washington Nuclear Energy and Radiation Act, RCW Chapter 70.98.
(m) Washington Radioactive Waste Storage and Transportation Act of 1980, RCW
Chapter 70.99.
30.3 Tenant Indemnity. Tenant shall indemnify, protect, hold harmless and defend the
Landlord, its elected officials, council members, officers, employees, agents and volunteers from
and against any and all liability (including reasonable attorneys' fees), directly or indirectly
arising from (a) the use, generation, storage or disposal of Hazardous Materials by Tenant, and
(b) the cost of any required or necessary repair, cleanup or detoxification and the preparation of
any closure or other required plans, to the full extent that such liability is attributable, directly or
indirectly, to the presence or use, generation, storage, release, threatened release or disposal of
Hazardous Materials on or with respect to the Sports Complex after the Term Commencement
Date or by Tenant, its officers, employees, agents and/or invitees on or with respect to the Sports
Complex after the Term Commencement Date.
30.4 Landlord Indemnity. Landlord shall indemnify, protect, hold harmless and
defend the Tenant, BLD USA and their officers, directors, members and employees from and
against any and all liability (including reasonable attorneys' fees), directly or indirectly arising
from the use, generation, storage or disposal of Hazardous Materials to the full extent that such
liability is attributable, directly or indirectly, to the presence or use, generation, storage, release,
threatened release or disposal of Hazardous Materials on or with respect to the Sports Complex
prior to the Term Commencement Date or from the actions of the Landlord or the Landlord's
elected officials, officers, employees, agents or volunteers that result in Hazardous Materials
being brought to the Sports Complex after the Term Commencement Date.
30.5 Tenant Release. Other than indemnity claims under Section 30.4 above, Tenant
releases the Landlord from any and all claims Tenant may have against the Landlord of whatever
kind or nature resulting from or in any way connected with the environmental condition of the
Sports Complex, including any and all claims Tenant may have against the Landlord under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), or any other federal, state, or local law, whether statutory or common law,
ordinance, or regulation pertaining to the release of Hazardous Materials into the environment
from or at the Sports Complex.
30.6 Survival of Obligations. Tenant's and Landlord's obligations under this Section
shall survive termination or expiration of this Agreement.
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SECTION 31 - MISCELLANEOUS
31.1 Governing Law: Venue. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Washington. Venue of any action arising from or
related to this Agreement shall lie in Yakima County, Washington.
31.2 Time is of the Essence. Time is of the essence herein.
31.3 Additional Rent. Any monetary obligations of Tenant to Landlord under the
terms of this Agreement shall be deemed to be rent.
31.4 Quiet Enjoyment. Upon Tenant's paying the Percentage Rent and other sums
provided hereunder, and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall enjoy the quiet
possession of the Sports Complex for the entire Term hereof, subject to all of the provisions of
this Agreement.
31.5 Waivers. The waiver by Landlord or Tenant of any breach by the other party of
any term, covenant or condition herein contained shall not be deemed to be a waiver of such
term, covenant or condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of all or part of the rent due hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Agreement, other than the failure to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance
of such rent. Acceptance by Landlord of a part payment of the rent or any other sum due shall
not be construed as a waiver by Landlord of any rights to collect the balance of the rent due
unless Landlord has executed a specific written waiver of the specific amount due on an
instrument separate from the check by which the payment is tendered.
31.6 Brokers. Each party warrants to and for the benefit of the other that it has had no
dealings with any real estate broker or other agent (attorneys excepted) in connection with the
negotiation or making of this Agreement. Landlord shall indemnify Tenant for breaches by
Landlord of this warranty, and Tenant shall indemnify Landlord for any breaches by Tenant of
this warranty.
31.7 Headings. The captions of the various sections of this Agreement are for
convenience and ease of reference only and do not define, limit, augment or describe the scope,
contents or intent of this Agreement or of any part or parts of this Agreement.
31.8 Consents of Landlord. Neither Landlord's execution of this Agreement nor any
consent or approval given by Landlord hereunder in its capacity as Landlord shall waive,
abridge, impair or otherwise affect Landlord's powers and duties as a governmental body. Any
requirements under this Agreement that Tenant obtain consents or approvals of Landlord are in
addition to and not in lieu of any requirements of law that Tenant obtain approvals, licenses or
permits.
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31.9 Merger. The voluntary or other surrender of this Agreement by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work a merger, but instead,
at the option of Landlord, shall either terminate all or any existing subtenancies, or at the option
of Landlord, operate as an assignment to Landlord of any or all of such subtenancies.
31.10 Gender: Number. The neuter gender includes the feminine and masculine, the
masculine includes the feminine and neuter, and the feminine includes the masculine and neuter,
and each includes corporations, partnerships and other legal entities whenever the context so
requires. The singular number includes the plural whenever the context so requires.
31.11 No Joint Venture. Nothing contained herein shall be construed to render the
Landlord in any way or for any purpose a partner, joint venturer or associated in any relationship
with Tenant other than that of Landlord and Tenant, nor shall this Agreement be construed to
authorize either party to act as agent for the other, or to make Landlord in any way responsible
for the liabilities, debts or losses of Tenant.
31.12 Exhibits. All exhibits to which reference is made in this Agreement are hereby
incorporated by reference in full. Any reference to "this Agreement" includes matters
incorporated by reference.
31.13 Entire Agreement: Modification. This Agreement contains the entire agreement
between the parties with respect to the lease of the Sports Complex. No verbal agreement or
implied covenant shall be held to vary the provisions hereof, any statements, law or custom to
the contrary notwithstanding. No promise, representation, warranty or covenant not included in
this Agreement has been or is relied on by either party. Each party has relied on its own
inspection of the Sports Complex and examination of this Agreement, the counsel of its own
advisors and the warranties, representations and covenants in this Agreement itself. The failure
or refusal of either party to inspect the Sports Complex, to read this Agreement or other
documents or to obtain legal or other advice relevant to this transaction constitutes a waiver of
any objection, contention or claim that might have been based on such reading, inspection or
advice. No provision of this Agreement may be amended or varied except by an agreement in
writing signed by the Parties and the lender under a permitted first leasehold encumbrance or
their respective permitted successors.
31.14 Joint and Several Obligations. If more than one person or entity is Tenant herein,
the obligations imposed on such parties shall be joint and several.
31.15 Severability. The invalidity or illegality of any provision shall not affect the
remainder of this Agreement and all remaining provisions shall, notwithstanding any such
invalidity or illegality, continue in full force and effect.
31.16 Recordation of Memorandum of Lease. This Agreement shall not be recorded
without Landlord's consent. A Memorandum of this Agreement (the "Memorandum of Lease")
shall be recorded in the Official Records of Yakima County, Washington, within thirty (30) days
after the execution of this Agreement.
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31.17 Execution in Counterparts. This Agreement, or the Memorandum of Lease, or
both, may be executed in two or more counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
31.18 Date of Agreement. The date of this Agreement shall be the date it is signed by
the Landlord.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as
of the date on which this Agreement is executed by the Landlord.
Landlord:
CITY OF YAKIMA
Dated: By:
Richard A. Zais, Jr.
City Manager
ATTEST:
City Clerk
Tenant:
BIG LEAGUE DREAMS YAKIMA, LLC
By:
Scott Parks LeTellier
Chief Executive Officer
8/16/2001 12:17 PM
39
STATE OF CALIFORNIA )
) ss
COUNTY OF )
I certify that I know or have satisfactory evidence that Scott Parks LeTellier is the
person who appeared before me and said person acknowledged that he signed this instrument
and on oath stated he was authorized to execute the instrument and acknowledged it as the Chief
Executive Officer of Big League Dreams Yakima, LLC, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
DATED:
STATE OF WASHINGTON )
)
COUNTY OF YAKIMA )
ss
F -print name
NOTARY PUBLIC in and for the State of
My appointment expires:
I certify that I know or have satisfactory evidence that Richard A. Zais, Jr. and Karen
Roberts are the persons who appeared before me, and said persons acknowledged that they
signed this instrument, and on oath stated that they were authorized to execute the instrument
and acknowledged it as the City Manager and Clerk, respectively, of the City of Yakima, to be
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED:
Sprint name
NOTARY PUBLIC in and for the State of Washington
My appointment expires:
40
8/16/2001 12:17 PM
EXHIBIT 1
PLOT PLAN OF LAND
8/16/2001 3:02 PM
41
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Created: August 16, 2001
EXHIBIT 2
LEGAL DESCRIPTION OF LAND
8/16/2001 3:02 PM
42
191320-23030, 23036, 23037, 24014
The East 300 feet of the South 396 feet of theSouthwest quarter of the Northwest quarter
of Section 20, Township 13 North, Range 19, E.W.M., EXCEPT the South 30 feet for
street.
Also
The West 475 feet of the Southeast quarter of the Southwest quarter of the Northwest
quarter of Section 20, Township 13 North, Range 19, E.W.M., EXCEPT the South 30
feet for street.
AND
The South 396 feet of the Southwest quarter of the Southwest quarter of the Northwest
quarter of Section 20, Township 13 North, Range 19, E.W.M., EXCEPTING the West 30
feet for street and EXCEPTING that portion lying within East Maple Street on the South.
AND
The East 185 feet of the Southeast quarter of the Southwest quarter of the Northwest
quarter of Section 20, Township 13 North, Range 19, E.W.M., together with
appurtenances there belonging, less roads.
AND
The East quarter of the South quarter of the North 132 feet of the North half of the
Southwest quarter of the Southwest quarter of the Northwest quarter of Section 20,
Township 13 North, Range 19, E.W.M., and the East half of the North half of the South
132 feet of the North half of the Southwest quarter of the Southwest quarter of the
Northwest quarter of Section 20, Township 13 North, Range 19, E.W.M.
AND
The East half of the North 66 feet of the North half of the Southwest quarter of the
Southwest quarter of the Northwest quarter of Section 20, Township 13 North, Range 19,
E.W.M.
AND
The West half of the East half of the South half of the North 132 feet of the North half of
the Southwest quarter of the Southwest quarter of the Northwest quarter of Section 20,
Township 13 North, Range 19, E.W.M.
AND
The East half of the South 66 feet of the North 198 feet of the Southwest quarter of the
Southwest quarter of the Northwest quarter of Section 20, Township 13 North, Range 19,
E.W.M.
AND
The East half of the North half of the South 132 feet of the North half of the Southwest
quarter of the Southwest quarter of the Northwest quarter of Section 20, Township 13
North, Range 19, E.W.M.
AND
Lot 1, Block 1, Goldenview Addition to North Yakima, now Yakima, according to the
plat thereof recorded in Volume "D" of plats, page 29, records of Yakima County,
Washington, EXCEPT right of way of Old Union Ditch and EXCEPT the West 20 feet
for County Road.
AND
The West half of the Northwest quarter of the Southwest Quarter of the Southeast
quarter of the Northwest quarter of Section 20, Township 13 North, Range 19, E.W.M.,
EXCEPT the North 157.5 feet thereof,
EXCEPT the West 20 feet for County Road, and
EXCEPT portion conveyed to the State of Washington for Primary State Highway No. 3,
by instrument recorded in Volume 599 of Deeds, Auditor's File No. 1791537.
AND
The Southwest quarter of the Southwest quarter of the Southeast quarter of the Northwest
quarter of Section 20, Township 13 North, Range 19, E.W.M.
LESS the South and West 20 feet for roads; and
EXCEPT portion acquired by the State of Washington for Primary State Highway No. 3,
by Yakima County Superior Court Case No. 45396;
SUBJECT TO relinquishment of right of access to State Highway and of light, view and
air, under terms of Yakima County Superior Court Case No. 45396
191320-31014
The North 250 feet of the following described property:
Beginning at the Northwest corner of the Northeast 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M.; thence East 159.2 feet; thence South 545.3
feet; thence West 159.2 feet; thence North 547.3 feet to the point of beginning.
191320-32400
The North 1/2 of Lot 1, of Chalmers Garden Tracts, according to the official plat thereof
recorded in Volume "H" of Plats, Page 25, records of Yakima County, Washington,
EXCEPT that portion conveyed to State of Washington for highway purposes by deed
recorded under Auditor's File No. 1787461.
191320-32001
That portion of the Northeast quarter of the Northwest quarter of the Southwest quarter of
Section 20, Township 13, North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street, 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 430 feet to the true point
of beginning; thence East 100 feet; thence North 99 feet, more or less, to the South line of
Maple Street; thence West along said South line 100 feet; thence South 99 feet, more or
less, to the true point of beginning.
191320-32011
The North half of the following described tract of land:
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19,
E.W.M.; thence North 89° 49' West 130 feet to the true point of beginning; thence North
89° 49' West 100 feet, thence North 550.3 feet; thence South 89° 03' East 100 feet;
thence South 550.3 feet to the true point of beginning. EXCEPT the North 20 feet of said
North half conveyed to Yakima County for road purposes.
191320-31402
The North 260.1 feet of Lot 2, Chalmers Garden Tracts, according to the official plat
thereof, recorded in Volume "H" of Plat, Page 25, records of Yakima County,
Washington, EXCEPT that portion conveyed to the State of Washington by deed
recorded under Auditor's File Number 1787473.
191320-31443
Lot 1 of Short Plat 88-36, as recorded under Auditor's File Number 2825190, records of
Yakima County, Washington.
191320-32010
The South half of the following tract of land:
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4, Section 20, Township 13 North, Range 19,
E.W.M.; thence North 89° 49' West 130 feet to the true point of beginning; thence North
89° 49' West 100 feet; thence North 550.3 feet; thence South 89° 03' East 100 feet;
thence South 550.3 feet to the true point of beginning.
EXCEPT the South 141 feet of the East 36 feet of said South 1/2.
Situate in Yakima County, Washington.
191320-32009
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19,
E.W.M; hence North 89° 40' West 130 feet to the true point of beginning; hence North
89° 49' West 36 feet; hence North 141 feet; hence South 89° 03' East 36 feet; hence
South 141 feet to the true point of beginning. Situate in Yakima County, Washington.
191320-32030
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 625 feet, to the true point
of beginning; thence East 100 feet; thence North 65 feet; thence West 100 feet; thence
South 65 feet, to the true point of beginning.
AND
The South 40 feet of the following described property:
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4, Section 20,
Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street, 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 390 feet, to the true point
of beginning; thence East 100 feet; thence North 150 feet, more or less, to the South line
of Maple Street; thence West along said South line, 100 feet; thence South 159 feet, more
or less, to the true point of beginning. Situate in Yakima County, Washington.
191320-32035
That portion of the Northeast 114 of the Northwest 114 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 195 feet to the true point
of beginning; thence East 100 feet; thence North 65 feet; thence West 100 feet; thence
South 65 feet to the true point of beginning;
AND
The South 65 feet of the North 287.8 feet of the West 100 feet of the East 130 feet of the
Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19, EW.M.
Situate in Yakima County, Washington.
191320-23032
The South 65 feet of the North 417.8 feet of the West 100 feet of the East 130 feet of the
Northwest 1/4 of the Southwest 114 of Section 20, Township 13 North, Range 19,
E.W.M. Situate in Yakima County, Washington.
191320-32033
That portion of the Northeast 114 of the Northwest 1M of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street, 112.7 feet North of the Southeast
corner of said subdivision; thence West along the North line of Beech Street 130 feet;
thence North 65 feet to the true point of beginning; thence North 65 feet; thence East 100
feet; thence South 65 feet; thence West 100 feet to the point of beginning. Situate in
Yakima County, Washington.
191320-32008
That portion of the Northeast 114 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
The South 65 feet of the following:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
comer of said subdivision; thence West 30 feet, to the true point of beginning; thence
West along the North line of said Beech Street 100 feet thence North 549 feet, more or
less, to the South line of Maple Street; thence East along the South line of Maple Street
100 feet; thence South 547.7 feet, more or less, to the true point of beginning; also known
as the South 65 feet of Lot 6 of the unrecorded Plat of Sumach Tracts No. 2. Situate in
Yakima County, Washington.
191320-31012
That portion of the Northeast 1/4 of the Southwest 1/4 of Section 20, Township 13 North,
Range 19, E.W.M., described as follows:
Beginning at the Northwest corner of said subdivision; thence East 159.2 feet; thence
South 545.3 feet; thence West 159.2 feet; thence North 547.3 feet to the point of
beginning, EXCEPT the North 250 feet thereof. Situate in Yakima County, Washington.
191320-31444
Lot 2 of Short Plat filed in Book 88 of Short Plats, Page 38, under Auditor's File No.
2825190, records of Yakima County, Washington.
191320-31403, 31407
Lot 2, EXCEPT the North 260.1 feet and all of Lot 5, CHALMER'S GARDEN
TRACTS, recorded in Volume "H" of. Plats, Page 25, records of Yakima County,
Washington! EXCEPT that portion conveyed to the State of Washington, by deed
recorded in Volume 598 of Deeds, under Auditor's File No. 1787479, records of Yakima
County, Washington.
191320-31405
That part of Lot 4, CHALMERS GARDEN TRACTS, recorded in Volume "H" of Plats,
Page 25, records of Yakima County, Washington, lying Southwesterly of a line drawn
parallel with and 110 feet Southwesterly, when measured at right angles and or radially,
from the L Line Survey of SR 82, East Yakima Avenue to Union Gap.
191320-32505, 32506, 32507, 32508, 32509, 32532, 32533, 32534, 32235, 32536, 32537
Lots 1, 2, 3, 4 and 5;
An undivided 3/5 interest in Lots 6, 7, 8 and 9;
Lots 10, 11 and 12, all in MAPT F. STREET ADDITION, recorded in Volume "0.' of
Plats, Page 10, records of Yakima County, Washington.
191320-32013
The West half of the following described property:
Beginning at an iron pin 112.7 feet North of the Southeast comer of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 114 of Section 20, Township 13 North, Range 19
E.W.M.; thence North 89° 49' West 230 feet to the true point of beginning d the lands to
be described; thence North 89° 49' West 100 feet; thence North 551.7 feet; thence South
89°49' East 100 feet; thence South 550.3 feet to the point of beginning; EXCEPTING the
South 335 feet thereof EXCEPTING right-of-way for county road along the North fine of
said premises. Situate in Yakima County, Washington.
191320-32014
Beginning at an iron pin 112.7 feet North of the Southeast comer of the Northeast 114 of
the Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19,
E.W.M.; thence running North 89° 49' West 330 feet; thence North 250 feet to the true
point of beginning; thence North 85 feet; thence South 89° 03' East 100 feet; thence
South 85 feet; thence North 89° 49' West 100 feet to the true point of beginning. Situate
in Yakima County, Washington.
191320-32016
A Tract of land tying in Section 20, Township 13 North, Page 19, E.W.M., and more
particularly described as follows:
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4 of Section 20; thence North 89° 49 West 280 feet
to the true point of beginning of the Tract herein described; thence North 89° 49' West 50
feet thence North 250 feet; thence South 89° 03' East 50 feet; thence South 250 feet to
the true point of beginning. Situate in Yakima County, Washington.
191320-32010
The South half of the following tract of land:
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4, Section 20, Township 13 North, Range 19,
E.W.M.; thence North 89° 49' West 130 feet to the true point of beginning; thence North
89° 49' West 100 feet; thence North 550.3 feet; thence South 89° 03' East 100 feet;
thence South 550.3 feet to the true point of beginning.
EXCEPT the South 141 feet of the East 36 feet of said South 1/2
Situate in Yakima County, Washington.
191320-32009
Beginning at an iron pin 112.7 feet North of the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19,
E.W.M; hence North 89° 40' West 130 feet to the true point of beginning; thence North
89° 49' West 36 feet; thence North 141 feet; hence South 89° 03' East 36 feet; thence
South 141 feet to the true point of beginning.
Situate in Yakima County, Washington.
191320-32030
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 625 feet, to the true point
of beginning; thence East 100 feet; thence North 65 feet; thence West 100 feet; thence
South 65 feet, to the true point of beginning.
AND
The South 40 feet of the following described property:
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4, Section 20,
Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street, 112.7 feet North of the Southeast
corner of said subdivision; thence West 130 feet; thence North 390 feet, to the true point
of beginning; thence East 100 feet; thence North 150 feet, more or less, to the South line
of Maple Street; thence West along said South line, 100 feet; thence South 159 feet, more
or less, to the true point of beginning.
Situate in Yakima County, Washington.
191320-32035
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
comer of said subdivision; thence West 130 feet; thence North 195 feet to the true point
of beginning; thence East 100 feet; thence North 65 feet; thence West 100 feet; thence
South 65 feet to the true point of beginning;
AND
The South 65 feet of the North 287.8 feet of the West 100 feet of the East 130 feet of the
Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19, EW.M.
Situate in Yakima County, Washington.
191320-23032
The South 65 feet of the North 417.8 feet of the West 100 feet of the East 130 feet of the
Northwest 1/4 of the Southwest 1/4 of Section 20, Township 13 North, Range 19,
E.W.M. Situate in Yakima County, Washington.
191320-32033
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North Range 19, E.W.M., described as follows:
Beginning at a point on the North line of Beech Street, 112.7 feet North of the Southeast
corner of said subdivision; thence West along the North line of Beech Street 130 feet;
thence North 65 feet to the true point of beginning; thence North 65 feet; thence East 100
feet; thence South 65 feet; thence West 100 feet to the point of beginning. Situate in
Yakima County, Washington.
191320-32008
That portion of the Northeast 1/4 of the Northwest 1/4 of the Southwest 1/4 of Section
20, Township 13 North, Range 19, E.W.M., described as follows:
The South 65 feet of the following:
Beginning at a point on the North line of Beech Street 112.7 feet North of the Southeast
comer of said subdivision; thence West 30 feet, to the true point of beginning; thence
West along the North line of said Beech Street 100 feet thence North 549 feet, more or
less, to the South line of Maple Street; thence East along the South line of Maple Street
100 feet; thence South 547.7 feet, more or less, to the true point of beginning; also known
as the South 65 feet of Lot 6 of the unrecorded Plat of Sumach Tracts No. 2. Situate in
Yakima County, Washington.
191320-31012
That portion of the Northeast 1/4 of the Southwest 1/4 of Section 20, Township 13 North,
Range 19, E.W.M., described as follows:
Beginning at the Northwest comer of said subdivision; thence East 159.2 feet; thence
South 545.3 feet; thence West 159.2 feet; thence North 547.3 feet to the point of
beginning, EXCEPT the North 250 feet thereof. Situate in Yakima County, Washington.
191320-31444
Lot 2 of Short Plat filed in Book 88 of Short Plats, Page 38, under Auditor's File No.
2825190, records of Yakima County, Washington.
191320-31403, 31407
Lot 2, EXCEPT the North 260.1 feet and all of Lot 5, CHALMER'S GARDEN
TRACTS, recorded in Volume "H" of. Plats, Page 25, records of Yakima County,
Washington! EXCEPT that portion conveyed to the State of Washington, by deed
recorded in Volume 598 of Deeds, under Auditor's File No. 1787479, records of Yakima
County, Washington.
191320-31405
That part of Lot 4, CHALMERS GARDEN TRACTS, recorded in Volume "H" of Plats,
Page 25, records of Yakima County, Washington, lying Southwesterly of a line drawn
parallel with and 110 feet Southwesterly, when measured at right angles and or radially,
from the L Line Survey of SR 82, East Yakima Avenue to Union Gap.
EXHIBIT 3
PROJECT DESCRIPTION
8/16/2001 3:02 PM
43
EXHIBIT 3
PROJECT DESCRIPTION
The Big League Dreams Yakima Sports Park is designed to be a world-class facility
featuring unique Big League Dreams state -of -the art and proprietary themes and design
features, and is intended to be a destination park, attracting tournament teams (youth
and adult) from all over the country. First and foremost, however, it is planned to
provide local families with a spectacular family entertainment value. The City of
Yakima will be adding significant tourism while enhancing its reputation as a stable,
family -friendly city.
The Yakima Big League Dreams facility would contain the following elements, all
constructed to a first class standard with high quality building materials:
1. Three youth baseball/adult softball professional baseball stadium replicas.
2. Two additional youth baseball/adult softball minor league (i.e. non -replica)
fields, one of which may be designed to accommodate adult regulation baseball as well.
3. A nine -station batting cage combined with an instructional academy area.
4. One multi -sport pavilion designed to accommodate inline hockey, basketball,
indoor soccer, indoor volleyball and corporate and special events.
5. A playground and a picnic area.
6. The Stadium Club -- a food and beverage (both alcoholic and non-alcoholic)
family -type sports restaurant, designed and operated to attract and accommodate
league, tournament and corporate users.
7. An additional concession/patio facility for the minor league fields.
8. Parking for 325 to 350 automobiles.
Finance/Sports Complex
BLD Exhibit 3.doc
EXHIBIT 4
FURNISHINGS, FIXTURES AND EQUIPMENT
44
8/16/2001 3:02 PM
Big League Dreams Yakima Sports Park Lease
# Ea.
FURNISHINGS. FIXTURES AND EQUIPMENT
Some of the Kitchen/Concession FF&E will be provided as per the Plans
and Specifications and shall include smallwares, storage shelving, safes and
point-of-sale systems.
Description
A. Restaurant - Building A
# Ea.
Description
5
Booths
Booth Stools
Swivel Bar Stools
Arm Chairs
ATM Machine
60" Television Sets
Wall Clock
Baby Changing Counter
Window Louvers/Shades
15
30" x 49" Tables
12
12
30" x 30" Tables
26
27
Table Base
110
1
Credit Card Machine
1
3
Menu Board/Signs
3
6
36" Television Sets
1
1
Music and P.A. Systems
1
Decorative Flags
Art/Graphics
# Ea.
Description
B. Office
# Ea.
Description
2
15
2
Copy Machines
Computers
Fax Machines
Desks, Chairs as needed
Filing Cabinets as needed
Storage Cabinets
1
Credit Card Machine
2
Printers
1
Safe
1
Conference Table, chairs
1
P.A./Music System
Waste Baskets
Big League Dreams Yakima Sports Park Lease
# Ea. Description
C. Corporate/Special Event
# Ea. Description
500
3
1
3
Chairs
Portable Bars
20' x 20' Party Tent
Portable Food Warmers
# Ea. Description
50
Tables
30
Baseball Gloves
2
3
10' x 10' Party Tents
Portable Barbecues
D. Batting Cage
# Ea. Description
1
1
15
# Ea.
1
1
# Ea.
Complete Master Pitch
Equipment Package
Change Machine
Helmets
Description
Point -of -Sale System
Counter/Fixtures
Storage Racks
1
Repair Kit/Parts
15
Bats
120 Dozen Balls
E. Retail
# Ea. Description
Description
1
Computer/Printer
Display Shelves
F. Maintenance
# Ea.
Description
1
Gang Mower
1
Triplex Mower
1
Toro #3100 Vehicle
1
Verti-Drain
1
John Deere Groomer
1
Front -Load Tractor
1
Sweeper
1
Sodcutter
1
Aerator
1
Topdresser
1
Fertilizer Spreader
4
Golf Carts/Utility Beds
1
Floor Scrubber
1
Toro 22" Mower
2
McClane Edgers
2
Backpack Blowers
1
1
Rotary Spreader
1
Drop Spreader
2
Wheelbarrows
2
Pressure Washer
1
Chemical Sprayer
1
Roto Tiller
3
Weedeaters
4
Landscape Rakes
4
Leaf Rakes
4
Square -Nosed Shovels
4
Pointed Shovels
2
Large Shovels
2
6" Trenching Shovels
4
24" Push Brooms
4
50' Hoses
2
Regular Brooms
2
Weed Hoes
1
Pole Pruner
1
Tree Pruner
2
Tree Hand Saws
1
Power Chain Saw
Big League Dreams Yakima Sports Park Lease
1
Pitch Fork
1
Hand Pump
6
Wrenches, assorted
Easy -outs, assorted
2
Pipe Saws
1
PSI Gauge
5
Quick Coupler Keys
4
2.5 Gallon Gas Cans
2
Nail Drags
2
Infield Drags
2
Chalkers
2
Batters Box Frames
2
100' Tapes
2
400' String Reels
1
" Electric Hammer
1
1/4 " Portable Drill
1
Tool Box
1
4 " Grinder
1
7" Power Saw
1
Impact Wrench Set
1
Electric Multi -Tester
Pliers/Tools, assorted
4
Extension Cords
1
Electric Pump
2
Vacuum Cleaners
Trash Receptacles, asst.
6
Hand -Held Radios
Storage Shelves, asst.
1
Spray Rig
1
Welding Equipment
# Ea.
Description
G. Sports
# Ea.
Description
# Ea.
1
8
1
Description
Playground Equipment, as per
plans
Picnic Tables
Parking Netting, as per plans
Fan Shade Nets, as per plans
Security System
Ash Trays/Urns
Telephone and Voicemail Systems
H. Miscellaneous
# Ea.
Description
Safety Netting, as per plans
1
1
Drinking Fountains, as per plans
Entry Turnstile
Bike Rack
2
Mist System, as per plans
Instruction School Equipment
Soccer Goals, as per plans
Basketballs
Volleyball Nets/Poles
2500' Sport fence
Pitching Rubbers
single Bases
Base Mounts
Portable P.A. System
Electric Basketball Scoreboards
Bulletin Boards
Backstop Netting, as per plans
Video Camera
2
Hockey Goals
6
4
4
Basketball Backboards/Goals
7
Home Plates
7
7
Portable Mounds
23
9
Double Bases
90
14
Bat Racks
1
6
Electric Baseball Scoreboards
2
10
Scoreboard Controllers
4
Player Benches, as per plans
6
Portable Bleachers, as per plans
VCR Player
1
1
# Ea.
1
8
1
Description
Playground Equipment, as per
plans
Picnic Tables
Parking Netting, as per plans
Fan Shade Nets, as per plans
Security System
Ash Trays/Urns
Telephone and Voicemail Systems
H. Miscellaneous
# Ea.
Description
Safety Netting, as per plans
1
1
Drinking Fountains, as per plans
Entry Turnstile
Bike Rack
2
Mist System, as per plans
Instruction School Equipment
EXHIBIT 7
DEPICTION OF TERRITORIAL RESTRICTIONS
45
8/16/2001 3:02 PM
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 1
For Meeting Of: August 21, 2001
ITEM TITLE: Resolution authorizing the City Manager to execute a Sports Complex Lease
between the City of Yakima and Big League Dreams Yakima, LLC
SUBMITTED BY: City Management
City Council Sports Complex Lease Negotiating Committee
CONTACT PERSONS/TELEPHONE:
Dick Zais, City Manager, 575-6040 Mary Place, Mayor, 575-6040
Rita Anson, Director Finance, 575-6070 Bernie Sims, Council Member, 575-6040
Ray Paolella, City Attorney, 575-6030 John Puccinelli, Council Member, 575-6040
SUMMARY EXPLANATION:
To negotiate a lease with Big League Dreams ("BLD"), Mayor Place and Council Members
Sims and Puccinelli convened a negotiating committee that includes Scott Wagner, Mel Wagner,
Greg Luring, Keith Riffe, from local service clubs, and Mike Nixon and Tom Hurson from the
Parks Commission. The committee has received extensive technical support from City Staff
including Dick Zais, Glenn Rice, Ray Paolella, Rita Anson, Tim Jensen, Chris Waarvick, Denise
Nichols, and Larry Peterson. Attorney Scott Beyer, of Menke Jackson Beyer Elofson & Ehlis, LLP,
has served in a primary role drafting and negotiating on behalf of the City.
The proposed Sports Complex Lease has resulted from a process described below. Based
upon our negotiations with BLD, staff believes the proposed lease, as a whole, is more favorable
to and better protects the City of Yakima than comparable sports parks leases between BLD and
California municipalities. Five examples of terms we believe demonstrate the advantages of the
proposed lease are:
1. Lease payments are 10% of gross revenue
2. Non -competition within the entire state of Washington
Continued ...
Resolution X Ordinance Other (Specify)
Contract X Mail to (name and address): Mr. Scott Parks LeTellier, CEO, BLD USA,
10550 Galena Street, Mira Loma, Calif. 91752-3261 Phone: (310) 378-1984
Funding Source (a) Lease Agreement - N/ A
APPROVED FOR SUBMITTAL: City Manager
STAFF RECOMMENDATION: This is a policy issue. Staff respectfully requests Council
consideration and direction regarding the proposed Sports Complex Lease.
LEASE NEGOTIATING COMMITTEE RECOMMENDATION: Approval of the proposed Sports
Complex Lease is recommended to the City Council by a strong consensus of the Lease
Negotiating Committee.
COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2001-121
Agenda Statement: Sports Complex Lease
August 21, 2001
Page -2
3. License Fee deferral and reimbursement in event of default
4. Broader Indemnification
5. Increased Insurance
Approximately seven more parcels will be added to the Sports Complex Lease by
addendum after the City completes all necessary property acquisitions.
On May 1, 2001, Council adopted a resolution to place a measure on the September ballot
that, if approved by the voters, would authorize the City Council to increase electric, gas and
phone utility tax rates from 6% to 7%. Revenues from this voter -approved tax rate increase would
be utilized to pay the debt service on construction bonds that would be issued to build a Sports
Complex. If the voters approve the tax rate increase, and the Sports Complex is built as planned,
the City proposes to lease the facility to Big League Dreams to operate and maintain the Sports
Complex, under the attached Sports Complex Lease Agreement.
BLD will grant the City of Yakima a non-exclusive right to use the Big League Dreams
"Name and Marks" and "Total Image" (collectively referred to as the "BLD Intellectual Property")
on terms and conditions set of a separate License Agreement. BLD has invested significant
financial and management resources to develop, protect and create value in its stadium replica
concept and other BLD Intellectual Property. The License Agreement will be separately
submitted to the City Council for review and approval at a future date, and will be conditioned
upon voter approval of the utility tax increase on September 18, 2001.
If the following conditions are not all satisfied on or before July 1, 2002, the expected
License Agreement shall terminate as of such date. Under the terms of the proposed Lease and
the expected license agreement, the City of Yakima will pay BLD USA $300,000 within thirty (30)
days after all of the following conditions having been satisfied:
a. Voter approval of the Utility Tax Measure, certified by the Yakima County Auditor;
and
b. City obtaining all land use and zoning permits and approval reasonably necessary
for the development of the Project, with no right of appeal; and
c. Approval by the City and BLD Yakima of Plans and Specifications and Budget for
the Project, including Furniture, Fixtures and Equipment ("FF&E"); and
d. The City issuing bonds at a rate per annum not to exceed 7.51 % for the Project,
including furniture, fixtures and equipment ("FF&E").
Note: The timing of the payment of the license fee has been changed in this agreement from
what was presented to Council at the April 2001 Study Session. At that time, the City anticipated
that the license fee would be paid in the fourth year of operations of the Sports Park by way of
BLD retaining $300,000 of the lease payment that BLD would otherwise have paid to the City.
Under the expected terms of the License Agreement, the City will pay the license fee to BLD after
the above conditions precedent have been satisfied; consequently, lease revenue will become
payable from BLD to the City at the negotiated lease rate of 10% of gross revenues beginning in
the fourth year of operations (rather than in year five as previously presented at the Council Study
Session).