1
Exhibit 10.6
AMENDED AND RESTATED
USE AGREEMENT
BY AND BETWEEN
THE CITY OF WINTER HAVEN, FLORIDA
CLEVELAND INDIANS BASEBALL COMPANY
LIMITED PARTNERSHIP
OCTOBER 15, 1993
2
TABLE OF CONTENTS
PAGE
DEFINITIONS..................................................................................................... 1
1.1. Definitions................................................................................... 1
1.2. Terms......................................................................................... 6
USE OF BASEBALL FACILITY........................................................................................ 6
2.1. Indians' Use.................................................................................. 6
2.2. Minor League Franchise........................................................................ 8
2.3. Management and Operation of Baseball Facility................................................. 9
2.4. Other Uses of Baseball Facility............................................................... 11
TERM............................................................................................................ 11
3.1. Initial Term.................................................................................. 11
3.2. Renewal Options............................................................................... 12
FINANCING....................................................................................................... 12
IMPROVEMENTS AND ALTERATIONS.................................................................................... 12
5.1. City's Improvements to Baseball Facility...................................................... 12
5.2. Alterations and Additions by the Indians...................................................... 13
BASEBALL FACILITY REVENUES...................................................................................... 13
6.1. City Revenues................................................................................. 13
6.2. Office Rent................................................................................... 13
6.3. Indians' Revenues............................................................................. 14
6.4. Payments...................................................................................... 14
INSURANCE AND SUBROGATION....................................................................................... 15
7.1. City's Insurance.............................................................................. 15
7.2. Indians' Insurance............................................................................ 16
7.3. Insurance Requirements........................................................................ 17
7.4. Certificates.................................................................................. 17
7.5. Waiver of Subrogation......................................................................... 17
OPERATIONS, MAINTENANCE AND REPAIR.............................................................................. 18
8.1. Maintenance and Operating Expenses............................................................ 18
8.2. Capital Repairs............................................................................... 18
8.3. Maintenance and Repair Procedures............................................................. 18
8.4. Emergency Repairs............................................................................. 19
8.5. Indians' Self Help............................................................................ 19
TAXES........................................................................................................... 19
9.1. Real Estate and Personal Property Taxes....................................................... 19
9.2. Sales and Use Taxes........................................................................... 19
9.3. Sales Tax; Gross Concession Revenues and Gross Parking Revenues............................... 20
SECURITY AND CROWD CONTROL...................................................................................... 20
RIGHT OF ENTRY AND INSPECTION................................................................................... 21
EVENTS OF DEFAULT AND REMEDIES.................................................................................. 21
12.1. Events of Default by the Indians.............................................................. 21
12.2. Events of Default by the City................................................................. 22
12.3. Remedies...................................................................................... 23
3
12.4. General Provisions............................................................................ 23
12.5. Nondefaulting Party's Right to Cure Defaults.................................................. 24
TERMINATION..................................................................................................... 24
INDEMNIFICATION................................................................................................. 25
14.1. Indemnification by the Indians................................................................ 25
14.2. Indemnification by the City................................................................... 25
14.3. Procedure Regarding Indemnification........................................................... 25
14.4. Limitation.................................................................................... 26
ASSIGNMENT...................................................................................................... 27
15.1. Assignment By The Indians..................................................................... 27
15.2. Assignment By The City........................................................................ 27
EMINENT DOMAIN.................................................................................................. 27
16.1. Termination for Condemnation.................................................................. 27
16.2. Allocation of Award........................................................................... 28
16.3. Performance of Work........................................................................... 28
16.4. Temporary Taking.............................................................................. 28
UNTENANTABILITY AND OBLIGATION TO RESTORE UPON DAMAGE........................................................... 29
17.1. Property Damage............................................................................... 29
17.2. City to Restore............................................................................... 30
17.3. Untenantability............................................................................... 30
BASEBALL FACILITY NAME.......................................................................................... 30
NO MORTGAGE OF BASEBALL FACILITY................................................................................ 31
MISCELLANEOUS................................................................................................... 31
20.1. Force Majeure................................................................................. 31
20.2. Amendment; Waiver............................................................................. 31
20.3. Consent....................................................................................... 32
20.4. Severability.................................................................................. 32
20.5. Covenant of Quiet Environment................................................................. 32
20.6. Prorations.................................................................................... 32
20.7. Captions...................................................................................... 32
20.8. Binding Effect................................................................................ 32
20.9. Agreement Contains All Terms.................................................................. 33
20.10. Notices....................................................................................... 33
20.11. Applicable Law; Venue......................................................................... 33
20.12. Cross References.............................................................................. 33
20.13. Representatives............................................................................... 33
20.14. Effective Date................................................................................ 34
20.15. Radon Gas..................................................................................... 34
20.16. Accord and Satisfaction....................................................................... 34
20.17. Further Assurances............................................................................ 34
20.18. Retained Revenues............................................................................. 34
20.19. No Third Party Beneficiary.................................................................... 34
20.20. Counterparts.................................................................................. 35
20.21. No General Obligation......................................................................... 35
20.22. Recordable Memorandum of Use Agreement........................................................ 35
REPRESENTATIONS AND WARRANTIES.................................................................................. 35
21.1. Indians' Representations and Warranties....................................................... 35
21.2. City's Representations and Warranties......................................................... 36
-ii-
4
MAJOR LEAGUE APPROVAL........................................................................................... 37
TICKET AND PROMOTIONS AGREEMENT................................................................................. 37
23.1. Community Participation....................................................................... 37
23.2. Indians' Promotions........................................................................... 37
-iii-
5
AMENDED AND RESTATED
USE AGREEMENT
THIS AMENDED AND RESTATED USE AGREEMENT (the "Agreement") is made this
15 day of October, 1993 by and between THE CITY OF WINTER HAVEN, FLORIDA, a
Florida municipal corporation (the "City"), and CLEVELAND INDIANS BASEBALL
COMPANY LIMITED PARTNERSHIP, an Ohio limited partnership (the "Indians").
WHEREAS, the City owns the "Chain O'Lakes Park" baseball park with
3,100 reserved seats, 900 box seats and 2,300 bleacher seats and related
amenities, including a major league clubhouse, a minor league clubhouse,
administrative offices, 5 1/2 practice fields (exclusive of the regular playing
field) and training facilities and presently approximately 3,000 surface parking
spaces located adjacent to the Ballpark; and
WHEREAS, pursuant to that certain Use Agreement by and between the City
and the Indians entered into on October 12, 1992 (the "Original Agreement"), the
Indians conducted its 1993 major league and minor league baseball spring
training operations at the Baseball Facility; and
WHEREAS, the Indians and the City have agreed to enter into a long term
agreement by amending and restating in its entirety the original Agreement
pursuant to this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Action" means any demand, assertion, claim, action, or proceeding,
judicial or otherwise.
(b) "Advertising Revenue" means all revenue from the sale of
advertising at the Ballpark during the Term of this Agreement.
(c) "Ballpark" means the "Chain O'Lakes Park" baseball stadium
consisting of 3,100 reserved seats, 900 box seats and 2,300 bleacher seats and
appurtenant facilities including, but not limited to, concession stands, press
box, and restroom facilities.
6
(d) "Baseball Camps" means any baseball related event conducted by the
Indians or its nominee at the Baseball Facility, other than during the Spring
Training Season or Xxxxxxxxxxxxx Xxxxxx Activities period, such as a fantasy
camp.
(e) "Baseball Facility" means, collectively, the Ballpark, the Parking
Spaces and related facilities located on the Land including a major league
clubhouse, a minor league clubhouse, administrative offices, 5 1/2 practice
fields (exclusive of the stadium playing field) and training facilities such as
batting tunnels and pitching areas, and all additions and improvements to be
made thereto in accordance with the Construction Contract.
(f) "Capital Repairs" means any repair or maintenance work (other than
routine and ordinary cleaning and maintenance) that is reasonably required to be
performed in and about the Baseball Facility to maintain the Baseball Facility
in good working order and repair and keep the Baseball Facility in a condition
comparable to other spring training facilities used by other major league
baseball teams in the State of Florida, including, but not limited to (i)
replacing any Obsolete Component; (ii) changes or improvements required by the
American League, the Commissioner of Baseball or Baseball Rules and Regulations;
(iii) changes or improvements required or recommended by a mutually agreed upon
insurance carrier to obtain insurance coverage at commercially reasonable rates;
and (iv) changes or improvements required by any laws, ordinances, orders,
rules, regulations or requirements of any governmental entity having
jurisdiction and authority over the Baseball Facility.
(g) "City" means the City of Winter Haven, Florida, a Florida municipal
corporation, and any successors or assigns.
(h) "City's Events" means any event to occur at the Baseball Facility
conducted by the City or some person other than the Indians consistent with the
use of the Baseball Facility by the Indians as provided in Article II.
(i) "City Revenues" mean the revenues referred to in Sections 6.1 and
6.2 hereof.
(j) "City Ticket Revenue" shall mean a percentage of the Net Ticket
Revenue for the spring Training Season based on the average paid attendance for
Spring Training Ballgames during each Spring Training Season in accordance with
the following chart:
-2-
7
CITY'S TICKET
AVERAGE, PAID ATTENDANCE REVENUE PERCENTAGE OF
PER SPRING TRAINING BALLGAME TOTAL NET TICKET REVENUE
FOR SPRING TRAINING SEASON FOR SPRING TRAINING SEASON
-------------------------- --------------------------
4,000 or less 3 1/2% of total Net Ticket Revenue
4,001 to 4,333 5% of total Net Ticket Revenue
4,334 to 4,667 7 1/2% of total Net Ticket Revenue
4,668 to 5,000 10% of total Net Ticket Revenue
5,001 or above 12 1/2% of total Net Ticket Revenue
(k) "Condemnation" means the taking by exercise of the power of eminent
domain or by purchase under the threat of exercise of the power of eminent
domain.
(l) "Construction Contract" means the contract setting forth the City's
obligations to make certain improvements to and install certain equipment in the
Baseball Facility in the form attached hereto as Exhibit "A" and made a part
hereof, to be executed and delivered on the date of this Agreement.
(m) "Emergency Repair" means work to the Baseball Facility which is
necessary to protect public health or safety.
(n) "Extended Spring Training" means all baseball-related operations of
the Indians at the Baseball Facility between the end of the Spring Training
Season and the later of: (i) seventy-five (75) days after the end of the Spring
Training Season, (ii) June 15th of each year, or (iii) such other dates as may
be mutually agreed upon.
(o) "Force Majeure" means the events or conditions preventing
performance of a parties obligation under this Agreement as more particularly
described in Section 20.1 hereof.
(p) "Gross Concession Revenue" means all of the gross revenue derived
from the sale at the Baseball Facility during Indians' Events of food, beverages
and merchandise, including, but not limited to, candy, tobacco, novelties and
logo items and similar products.
(q) "Gross Parking Revenue" means all revenues derived, whether by
cash, credit or other consideration, from the sale of parking during any Spring
Training Ballgame.
(r) "Indemnified Party" means any party entitled to indemnification
under this Agreement as provided in Article 14 hereof.
(s) "Indemnifying Party" means the party required by the terms of this
Agreement to provide indemnification as provided in Article 14 hereof.
-3-
8
(t) "Indians' Events" means Spring Training operations, Extended Spring
Training, Xxxxxxxxxxxxx Xxxxxx Activities and Baseball Camps conducted at the
Baseball Facility, together with the necessary and reasonable period of time to
prepare the Baseball Facility for the Indians' Event or dismantle or remove any
temporary items after an Indians' Event.
(u) "Indians' Revenues" mean the revenues and license fees referred to
in Section 6.3 hereof.
(v) "Indians' Ticket Revenue" means all Net Ticket Revenue less the
City's Ticket Revenue.
(w) "Initial Term" means the term of this Agreement commencing on the
execution date of this Agreement and ending on October 31, 2003, as more
particularly described in section 3.1 hereof.
(x) "Xxxxxxxxxxxxx Xxxxxx Activities" means all baseball practice
sessions and games at the Baseball Facility during the period generally
commencing on or about September 1 and ending by October 31 of each year, to
provide additional instruction to players outside of the Spring Training Season.
(y) "Interest Rate" means the interest rate of two percent (2%) above
the rate of interest per annum then charged by Society National Bank, Cleveland,
Ohio, to large corporate borrowers of the highest credit standing for short-term
unsecured obligations, but in no event exceeding the maximum legal rate to be
charged to the paying party.
(z) "Land" means the property on which the Baseball Facility is located
in the City, together with rights of ingress and egress appurtenant thereto.
(aa) "Minor League Ballgames" means all baseball games played by Minor
League Franchises at the Baseball Facility.
(ab) "Minor League Franchises" means Florida State League or other
minor league baseball franchises or operations controlled by or affiliated with
the Indians or its designee or affiliates.
(ac) "Net Fixed Advertising Revenue" means the gross revenues collected
for the sale of advertising signs and panels affixed to the Baseball Facility
less all expenses and commissions incurred in the production and sale of such
advertising.
(ad) "Net Ticket Revenue" means all revenues derived, whether by cash,
credit Dr other consideration, from the sale of admission
-4-
9
tickets to Spring Training Ballgames net of admissions, entertainment, sales
or similar taxes.
(ae) "Obsolete Component" means items incorporated into the Baseball
Facility, including, but not limited to, electronic parts, scoreboards and
ballpark equipment, that are no longer utilized in comparable major league
spring training facilities in the State of Florida as evidenced by the use of a
more modern component in at least fifty percent (50%) of major league spring
training facilities.
(af) "Parking Spaces" means the approximately 3,000 surface parking
spaces presently located on the property owned by the City adjacent to the
Ballpark.
(ag) "Property Damage" means any damage or destruction by fire or other
casualty to any material part of the Baseball Facility. "Material part" shall
have the meaning ascribed to it in Section 16.1 hereof.
(ah) "Real and Personal Property Taxes" means all real estate taxes,
personal property taxes (other than for tangible personal property owned by the
Indians), sales and use taxes, assessments and other governmental levies and
charges, general and special, ordinary and extraordinary, of any kind or nature,
levied or assessed: by federal, state, county or municipal government, upon or
with respect to the Baseball Facility (including any charges levied against the
Indians, intangible interest in the Baseball Facility), or any taxes in lieu
thereof, and, in the event of any change in the method of taxation of real
estate or personal property, including any other or additional tax or assessment
is imposed upon the Baseball Facility as or in substitution for, or in lieu of,
any tax or assessment which would otherwise be such real or personal property
taxes.
(ai) "Renewal Term" or, collectively, the "Renewal Terms" means the
four (4), five (5) year periods following the Initial Term for which the Indians
shall have the right to extend this Agreement as provided in Section 3.2.
(aj) "Spring Training" or "Spring Training operations" means all
baseball-related spring training operations of the Indians during any Spring
Training Season.
(ak) "Spring Training Ballgames" means all regularly scheduled,
official Spring Training baseball games played by the Indians at the Baseball
Facility during any Spring Training Season for which admission tickets are sold.
(al) "Spring Training season" means a period of time commencing on the
first day of February in any calendar year and ending on April 15 of such year,
or such later date as provided in
-5-
10
Subsection 2.1(f) below, and are sometimes herein referred to by the calendar
year in which they occur (e.g., "1994 Spring Training Season").
(am) "Term" means the Initial Term and, if the Indians exercise any or
all of its option(s), then the Renewal Terms to the extent exercised by the
Indians.
1.2. TERMS. Unless the context clearly requires otherwise, the singular
includes the plural, and vice versa, and the masculine, feminine and neuter
adjectives and pronouns include one another.
ARTICLE II
USE OF BASEBALL FACILITY
2.1. INDIANS' USE.
(a) In consideration for the Indians' use of the Baseball Facility
pursuant to this Agreement, the City shall receive the City Revenues during the
Term, and the Indians and its guests, invitees, and subtenants, if any, will be
entitled to the exclusive possession and use of the Baseball Facility during
Indians' Events. The parties recognize and acknowledge that the City Revenues
are the full consideration by the Indians for use of the Baseball Facility as
provided herein and that there shall not be any separate or additional charge to
the Indians for the use of the Baseball Facility for any Indians' Event as
contemplated by this Agreement.
(b)(1) The Indians will use reasonable efforts to play (subject to
events or conditions beyond the reasonable control of the Indians, including,
but not limited to, adverse weather conditions, scheduling changes by the
visiting team and Force majeure), a minimum of fourteen (14) major league Spring
Training Ballgames at the Baseball Facility commencing with the 1994 Spring
Training Season.
(2) The Indians shall use its reasonable efforts to furnish to the City
its Spring Training Ballgames schedule and Spring Training Operations schedule
no later than December 1 of the year prior to the next Spring Training Season.
(3) The Indians shall be entitled to a minimum of 100 parking spaces
for each Indians' Event or such other number of parking spaces as shall be
mutually agreed upon, and the City acknowledges and agrees that the fee or
charge for use of such parking spaces is included within the City Revenues.
-6-
11
(c) The Indians shall control the method, manner and price for the sale
of all Indians' Events admission tickets and all complimentary ticket policies,
provided that the parties agree that twenty (20) complimentary tickets and
passes (ten box seats and ten reserved seats) to Spring Training Ballgames will
be provided by the Indians to the City for use by the City and such tickets or
passes will not be resold.
(d) The Indians will use the Baseball Facility for the Indians Baseball
Fantasy Camp from January 23 through January 30, 1994 (and in future years shall
be entitled, but not obligated, to conduct its Fantasy Camp for not more than
two (2) weeks in either January or February of each year). The fee for use of
the Baseball Facility for its Fantasy Camp is included within the City Revenues.
(e)(1) The City does hereby grant a license to the Indians to sell all
advertising in and on the Ballpark, including, but not limited to, advertising
panels and scoreboard advertising (subject to the existing uses and rights
described below). The fee for the license to install such advertising is
included within the City Revenues. The City represents that there is no City
ordinance, regulation or policy which would prohibit or adversely affect the
Indians ability to sell or maintain advertising signs in or on the Ballpark.
(2) The Indians may, at its own expense, erect additional advertising
signs inland on the Ballpark. The cost of art work and graphics for such
advertising (other than the existing uses described below) shall be paid or
caused to be paid by the Indians. The City shall provide (i) a sufficient and
appropriate support system on the outfield fence of the Ballpark to affix
advertising banners, and (ii) make the additional improvements provided for in
the Construction Contract including the installation of the new scoreboard,
message board, advertising panels and outfield signs.
(3) The City agrees that the Indians may enter into advertising
contracts for terms extending beyond the Term; provided, any such contract is
either freely assignable to the City or terminable upon thirty (30) days notice
to the contracting advertiser.
(4) The Indians acknowledge that the City entered into an
arrangement with the Xxxxxx Brewing Company ("Xxxxxx") pursuant to which Xxxxxx
provided the scoreboard for the Ballpark in exchange for ten (10) years of free
advertising on that scoreboard. The City represents that there are three (3)
years remaining on Xxxxxx'x right to use the scoreboard for advertising. The
Indians recognize the remaining term of the arrangement with Xxxxxx and agree
that Xxxxxx can continue to use the scoreboard at the Ballpark for advertising
for such remaining term and that such advertising is not included within the
license granted to the Indians by this subsection (e) until after the expiration
of the
-7-
12
City's existing contract with Xxxxxx. The City presently uses one advertising
panel at the Ballpark to promote the City for civic and not-for-profit purposes
and the Indians agree to allow such use by the City to continue.
(5) The City shall allow the Indians to use the City's marquee sign
located at the entrance to the Land to promote the Spring Training Baseball
Games. The parties agree that the cost or charge for use of the marquee is
included in the City Revenues.
(f) The Indians may continue any given spring Training Season beyond
April 15 of each year by delivering thirty (30) days' prior written notice to
the City that the Spring Training Season period shall be continued to such later
date as specified in the notice, but in any event no later than May 15th, or
such other mutually agreed upon later date and after which expiration date the
City shall be free to use the Baseball Facility for other municipal and public
purposes subject to Section 2.4.
(g) The Indians shall have the unrestricted right to enter into lawful
contracts related to any or all of the foregoing upon terms and conditions
deemed acceptable by the Indians in its sole discretion, provided that no such
contract shall impair any right of the City hereunder or impose any contractual
liability on the City.
(h) The Indians may use the Baseball Facility for Extended Spring
Training during the Term, provided that, in the event the Indians elect not to
have Extended spring Training at the Baseball Facility, the Indians shall so
notify the City no later than April 1 of each year during the Term. The fee for
use of the Baseball Facility during Extended Spring Training is included in the
City Revenues.
(i) The Indians may use the Baseball Facility for Xxxxxxxxxxxxx Xxxxxx
Activities during the Term provided the Indians notify the City of their
intention to do so by delivering a notice to that effect to the City no later
than thirty (30) days prior to the commencement of Xxxxxxxxxxxxx Xxxxxx
Activities. The fee for use of the Baseball Facility during Xxxxxxxxxxxxx Xxxxxx
Activities is included in the City Revenues.
2.2. MINOR LEAGUE FRANCHISE.
(a) The Indians or another person pursuant to a player development or
affiliation agreement with the Indians shall have an exclusive right to operate
one or more Minor League Franchises at the Baseball Facility during the Term. If
the Indians decide to operate or have another person operate such a franchise at
the Baseball Facility during the Term, then the Indians shall give notice to
that effect to the City in accordance with Section 20.11
-8-
13
at least ninety (90) days prior to the proposed commencement date of such minor
league franchise operations at the Baseball Facility.
(b) In the event the Indians elect to operate a Minor League Franchise
at the Baseball Facility, then either the Indians or the other person operating
such Minor League Franchise shall enter into an agreement for such operations
with the City, provided, however, that such an agreement shall not have a term
extending beyond the Term. That agreement shall provide among other things for
the use of the Baseball Facility for the practices and all home dates of Minor
League Franchises and the sharing of revenues attributable to Minor League
Ballgames.
(c) Notwithstanding anything in this Section 2.2, any and all City
Events scheduled prior to the Indians giving notice of its decision to operate
or cause another person to operate a Minor League Franchise at the Baseball
Facility shall be permitted to take place, and the use of the Baseball Facility
by any Minor League Franchise shall be subject to such events. However, the City
will use its best efforts to coordinate with the Indians the scheduling of any
and all City Events.
2.3. MANAGEMENT AND OPERATION OF BASEBALL FACILITY.
(a) The City shall be responsible for the management and operation of
the Baseball Facility, including, but not limited to, the following rights,
responsibilities, obligations and costs:
(i) Providing all concession, security, parking attendants, crowd
control, traffic control, ticket takers, ushers, maintenance,
cleaning (other than the administrative offices and the
clubhouses at the Baseball Facility during the Indians use for
Indians' Events), emergency medical, landscaping, other
personnel and supervisors thereof required for the operation
of the Baseball Facility for the uses contemplated by this
Agreement;
(ii) Maintaining comprehensive liability insurance and property
insurance, inform, substance and amount consistent with the
terms set forth in Article VII hereof;
(iii) Ordinary and customary cleaning and maintenance of the
Baseball Facility and the Capital Repairs as provided for in
Article VIII;
(iv) Providing the personnel to clean the Baseball Facility after
each Indians' Event, which personnel shall be in addition to
the ground crew for the Baseball Facility and shall represent
an increase of three (3) additional staff members over the
staff levels for the 1993 Spring Training Season;
-9-
14
(v) Arrangement of all gas, electricity, telephone and other
utilities necessary for the operation of the Baseball Facility
as contemplated by this Agreement and payment of all such
utility charges and expenses (except long distance telephone
calls and fax charges);
(vi) Operating all concession facilities at the Baseball Facility;
and
(vii) Operating all public and reserved parking at the Baseball
Facility.
(b) The City will operate and maintain the Baseball Facility in a
professional, businesslike and efficient manner and in a manner consistent with
the operations of other comparable major league spring training facilities in
the State of Florida.
(c)(1) Three dollars ($3.00) per car will be charged or collected for
parking by the public at any Indians' Events during the 1994 Season, and,
thereafter, the charge for parking at Indians' Events may be adjusted as may be
mutually agreed upon, in writing, by the Indians and the City.
(2)(i) Subject to paragraph (ii), the City will operate the parking and
concessions at the Baseball Facility and not contract the operation and
management of such concessions to any third-party. The City agrees to consult
with the Indians prior to the Spring Training Season as to the pricing and
quality of all concession product to be offered for sale to the public at the
Baseball Facility during Indians' Events, and agrees to not offer any such
product which does not meet the price and quality standards agreed upon by the
City and the Indians.
(ii) If during the Term the City decides to contract with any
third-party (which could be the Indians, or an affiliate thereof) to operate and
manage the parking and concessions at the Baseball Facility, then prior to doing
so the City will give notice to that effect to the Indians and will consult with
the Indians regarding qualifications of concessionaires operating or managing
parking and concessions at the Baseball Facility during Indians' Events. Any
concessionaire for the Baseball Facility shall meet the qualifications agreed to
by the City and the Indians and shall offer for sale concession products of a
quality or price agreed to by the City and the Indians. The selection by the
City of any such concessionaire will be done in accordance with applicable
procurement laws, regulations and policies and the standards and qualifications
of such concessionaire will not be less than the standards and qualifications of
similarly situated concessionaires for other major league baseball spring
training facilities in the State of Florida. The terms and conditions of any
third-party
-10-
15
concession contract must be mutually acceptable to the City and the
Indians.
(d) During Indians' Events, the Indians will be responsible for (i) the
costs of day-of-game ticket sellers and program sellers; (ii) the cost of
printing programs; (iii) the production costs of advertising signage; (iv) the
costs of janitorial services (but not maintenance or repair costs) for the
administrative offices and clubhouses during the Indians use for Indians'
Events; and (v) the cost of any food or beverage provided to the media, in the
sole and absolute discretion of the Indians; provided, however, that the City
shall make all concession food and beverage available to the Indians and the
news media at the City's cost and the Indians and the media may bring food and
beverage of their own selection into the Baseball Facility for the personal use
and consumption of the Indians or the media.
2.4. OTHER USES OF BASEBALL FACILITY.
(a) During the Term, subject to the Indians (i) right to exclusive use
and possession of the Baseball Facility as provided in Section 2.1 and (ii)
exclusive option pursuant to Section 2.2, the City may conduct the City's Events
at the Baseball Facility at times that do not conflict or otherwise interfere
with the Indians' Events. With respect to any City Event proposed to be
conducted during Indians' Events, the City will notify and consult with the
Indians of such City Event a reasonable time before the scheduling of such event
is confirmed for the purpose of insuring that the requirements of the preceding
sentence are met.
(b) During the Term, the City will not permit any activities to be
conducted at the Baseball Facility that, in the reasonable judgment of the
Indians: (i) would conflict or otherwise interfere in any way with the Indians
use and preparation for Indians' Events at the Baseball Facility as contemplated
herein, or (ii) would render the playing fields unsuitable for any Indians'
Events.
(c) The City will not agree to any use of the Baseball Facility during
the Term by any professional baseball league, team or organization other than
the Indians without the prior written consent of the Indians.
ARTICLE III
TERM
3.1. INITIAL TERM. The Initial Term of this Agreement shall commence on
the execution date of this Agreement and shall end on October 31, 2003.
-11-
16
3.2. RENEWAL OPTIONS. The Indians shall have the option to extend the
Term for up to four (4) successive five (5) year periods (the "Renewal Terms")
each commencing on November 1, with the first Renewal Term beginning on November
1, 2003, on the same terms and conditions as provided for in the Initial Term.
The Indians may elect, in the Indians' sole discretion, on or before October 1
of the last year of the then current Term, with the first option exercise
deadline being October 1, 2003, to extend for one or more of the four (4), five
(5) year Renewal Terms then remaining under option.
ARTICLE IV
FINANCING
The City does hereby represent to the Indians that the City has
available to it sufficient funds to pay the costs of improving and equipping the
Baseball Facility in accordance with the terms and conditions of the
Construction Contract. All obligations with respect to any financing
arrangements will be without recourse to the Indians and its partners (general
or limited), or their personal or legal representatives, successors or assigns.
ARTICLE V
IMPROVEMENTS AND ALTERATIONS
5.1. CITY'S IMPROVEMENTS TO BASEBALL FACILITY. As a material inducement
to the Indians execution of this Agreement, the City shall make certain
improvements to, install certain furniture, fixtures and equipment in, and
provide other personal property and equipment to be used at and for the benefit
of, the Baseball Facility, all as more fully set forth in the Construction
Contract of even date herewith. The Indians obligations hereunder are expressly
conditioned on the performance by the City of the City's obligations pursuant to
the Construction Contract. In addition to, and without limiting the Indians'
rights and remedies set forth in Article XII hereof, in the event that the City
shall fail to acquire, construct and install the Additional Items by the
required Completion Date, or such later date as may be agreed to in writing by
the Indians as to any portion of the Additional Items, the Indians may elect, in
its sole discretion, to reinstate the Initial Term, Renewal Options and the Long
Term Proposal provisions provided in Sections 3.1, 3.2 and 3.3 of the Original
Agreement, in lieu of Sections 3.1 and 3.2 hereof, as if such provisions were
restated herein in full; provided, however, that the dates set forth in the
Original Agreement shall all be extended by one (1) year.
-12-
17
5.2. ALTERATIONS AND ADDITIONS BY THE INDIANS. Without limiting any of
the City's obligations hereunder, the Indians, at its sole cost and expense,
may, but shall in no way be obligated to make alterations or additions to the
Baseball Facility which do not: (i) affect the structural integrity of the
Baseball Facility; or (ii) violate any laws, ordinances, or regulations. The
Indians shall give notice to the City of its intent to make such alterations and
additions and, prior to the Indians undertaking such alterations and additions,
the City shall have consented to such alterations and additions, which consent
shall not unreasonably be withheld. The Indians hereby agree to perform or cause
to be performed such work in a good and workmanlike manner, and to pay for same,
or, in the event of a dispute, the Indians agree to indemnify and, defend the
City from and against mechanics, liens and any other costs and attorneys' fees
incurred by the City and related thereto, or other costs and expenses arising
out of such performance. The Indians shall not have the power to subject the
interest of the City in the Baseball Facility or any portion of the Baseball
Facility to any mechanics liens or liens of any kind and all persons who may
hereafter, during the Term, furnish work, labor, services, or materials to the
Baseball Facility, or any portion thereof upon the request or order of the
Indians, or any person claiming under, by, or through the Indians, must look
wholly to the interest of the Indians and not to that of the City.
ARTICLE VI
BASEBALL FACILITY REVENUES
6.1. CITY REVENUES. In consideration of the use of the Baseball
Facility by, and the granting of certain licenses to, the Indians pursuant to
this Agreement, during the Term the City shall receive: (a) Eighty-Five Percent
(85%) of the Gross Parking Revenue, (b) Eighty Percent (80%) of the Gross
Concession Revenue, (c) the City's Ticket Revenue, and (d) Ten Percent (10%) of
the Net Fixed Advertising Revenue.
6.2. OFFICE RENT. The Indians shall pay to the City the sum of Two
Hundred and Fifty Dollars ($250) each month as office rent during the Term.
-13-
18
6.3. INDIANS' REVENUES. During the Term, the Indians shall receive: (a)
Twenty Percent (20%) of the Gross Concession Revenues, (b) Fifteen Percent (15%)
of the Gross Parking Revenues, (c) the Indians' Ticket Revenue, (d) Ninety
Percent (90%) of the Net Fixed Advertising Revenue, and (e) One Hundred Percent
(100%) of all revenue derived from: (1) the sale of all programs for Indians'
Events, (2) the sale of all program advertising; (3) the sale of all advertising
in and on the Ballpark at any time during the Term (exclusive of the Net Fixed
Advertising Revenue), and (4) the sale of any radio and television broadcast
rights for Indians' Events.
6.4. PAYMENTS.
(a) Gross Concession Revenues and Gross Parking Revenues shall be
collected by the City. Gross Ticket Revenue and Net Fixed Advertising Revenue
shall be collected by the Indians. Payment of the revenues described in this
Article shall be paid on or before the fifteenth (15th) day of each month for
the immediately preceding calendar month during the Spring Training Season. The
City shall provide the Indians with a weekly report of Gross Concession Revenues
and Gross Parking Revenues by each Wednesday for the prior week just ended. The
Indians shall provide to the City a monthly report of Gross Ticket Revenue and
Net Fixed Advertising Revenue with each monthly payment. Payments by either
party pursuant to this Section 6.4 shall be accompanied by a statement,
certified as correct as to all computations relating thereto. Either party may
elect, initially at its expense, to either use its own employee(s) or designate
an independent certified public accountant to review or audit the statement and
computations certified by the other party for any Spring Training Season and
raise any objections thereto. If such review or audit determines the amount
reported was understated by more than five percent (5%), then the cost of such
review or audit shall be paid by the party delivering such report, provided that
in the case of such review or audit being done by an employee of a party the
other party shall reimburse such party only for out-of-pocket expenses incurred
and paid by such party and shall not pay any overhead, salaries or indirect
costs. If the review or audit should show an underpayment by the party
delivering such report, such party shall pay any deficiency, with interest
thereon at the Interest Rate, from the date such deficiency was due and payable
to the other party to the date of payment of the deficiency amount, to the other
party-within five (5) days of such determination.
-14-
19
ARTICLE VII
INSURANCE AND SUBROGATION
7.1. CITY'S INSURANCE.
(a) The City shall, commencing on the date hereof and continuing
through the end of the Term, maintain, at the City's expense, property insurance
against damage or destruction to the Baseball Facility for the full value
thereof, including all materials, equipment, machinery and supplies for use in
construction or installation of the Baseball Facility and commercial general
liability insurance in addition to the following coverages, which shall have the
following minimum specifications:
(1) All property coverage shall be provided on an "all risk" peril
basis, including, but not limited to, coverage against sewer
backup coverage and shall be in the amount of one hundred
percent (100%) of full replacement cost, with deductible
limits of not more than $1,000. The City shall furnish an
"agreed amount" endorsement and full replacement cost
endorsement;
(2) Boiler and machinery insurance, including business
interruption, on a repair and replacement cost basis, with
direct damage limit of not less than $1,000,000 per
occurrence, a direct damage deductible of not more than $1,000
and a deductible (or waiting period) of no more than 24 hours
with respect to business interruption;
(3) Cause any architectural or engineering firm retained by the
City for any improvements to the Baseball Facility to obtain
professional liability insurance providing coverage for errors
and omissions relating to the Additional Items or any
improvements to the Baseball Facility;
(4) Statutory workers' compensation coverage and employer's
liability coverage in the amount of $1,000,000 each
accident/$1,000,000 policy limit/$1,000,000 each employee, or
such lesser amount as may satisfy carriers of the city's
umbrella liability coverage;
(5) Automobile liability coverage for bodily injury and property
damage with a combined single limit per accident of $500,000;
(6) "Occurrence type" commercial general liability insurance
against bodily injury and property damage arising from
occurrences in and about the Baseball Facility and covering
the City's contractual liability, including athletic
participant liability, for indemnification under
-15-
20
this Agreement. Such insurance shall include product liability
and completed operations coverage and be written on a form
with coverages no less broad than those found on ISO CG 0001
11/88. Such coverage shall be in the amount of $500,000 per
occurrence combined single limit for bodily injury and
property damage;
(7) Umbrella liability coverage (in form no less broad than
underlying coverage) to apply excess of automobile, general
and employer liability, in an amount necessary to increase
overall coverage to $5,000,000 per occurrence at all times
during the year and, commencing in 1995 and each year
thereafter, from February 1 through April 30, an amount
necessary to increase overall coverage to an amount of overall
coverage as shall be mutually agreed upon by the parties; and
(b) All policies referred to in subsections (5), (6) and (7) shall name
as additional insureds the Indians and its general partner and such other
affiliated persons or entities as shall be requested by the Indians.
(c) In the event the insurance policies are written as part of the
City's blanket limits, such policies shall provide that the total limits shall
apply on an aggregate limit by location basis.
7.2. INDIANS' INSURANCE.
(a) The Indians shall obtain and maintain throughout the Term
comprehensive general liability and casualty insurance of a type, coverage and
in policy amounts comparable to that carried by other major league baseball
teams having spring training operations in the State of Florida to include
coverage of the operations, bodily injury, automobile and vehicle, property
damage, and contractual liability coverage for the indemnity provided in Section
14.1 with a combined single limit ("CSL") of at least $1,000,000 for bodily
injury, including death, and property damage. The Indians shall deliver
certificates of insurance to the City evidencing such insurance is in full force
and effect, and evidencing the City is named as an additional insured with
respect to the negligence of the Indians, and provide updated and corrected
certificates from time to time.
(b) The Indians shall be solely responsible for securing, at its own
expense, whatever insurance coverage it may desire on its personal property
located at the Baseball Facility.
(c) The Indians shall provide workers' compensation coverage for its
employees as may be required by law.
-16-
21
7.3. INSURANCE REQUIREMENTS.
(a) All policies of insurance required hereunder shall be written by
carriers which possess an A- policyholder's rating or better and a minimum Class
VII financial size category as listed at the time of issuance by A.M. BEST
INSURANCE REPORTS (the aforesaid rating classifications to be adjusted if and to
the extent that Best adjusts its rating categories).
(b) All policies shall provide that they may not be cancelled, renewed
or reduced unless at least thirty (30) days, notice thereof has been provided to
the other party. In the event that tort liability reform is adopted which makes
the limits of liability hereinabove provided in excess of commercially
reasonable and prudent limits of liability, such limits will be equitably
reduced.
(c) The City shall maintain cash or cash equivalents equal to or
greater than all self-insured retention amounts set forth in this Article VII
throughout the term of this Agreement, for the exclusive purpose of funding any
liability or obligation that is self-insured hereunder.
(d) Nothing in this Agreement shall be construed that either party has
recommended any or all of the policy provisions, including policy limits, of any
of the terms of the other parties insurance policies.
7.4. CERTIFICATES. Upon the execution of this Agreement, each party
will furnish to the other party certificates evidencing the coverage required by
this Agreement and provide updated or corrected copies of such certificates from
time to time during the Term.
7.5. WAIVER OF SUBROGATION. The City agrees that all insurance against
loss or damage to property and business interruption or revenue loss shall be
endorsed to provide that any release from liability of, or waiver of claim for,
recovery from the Indians entered into in writing by the City prior to any loss
or damage shall not affect the validity of said policy or the right of the
insured to recover thereunder and providing, further,that, the insurer waives
all rights of subrogation which such insurer might have against the Indians. To
that end, all insurance policies providing insurance coverage against loss or
damage to property and business interruption of revenue loss shall either be
endorsed, or shall contain in the body of said policy, the following language,
to wit: "This insurance shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any party of loss
occurring to the property described herein", or such other language
substantially equivalent thereto. Without limiting any release or waiver of
liability or recovery contained in any other Section of this Agreement, but
rather in confirmation and furtherance thereof, each
-17-
22
of the parties hereto waives all claims for recovery from the other party for
any loss or damage to any of its property or damages as a result of fire,
business interruption, revenue loss or other perils, events or happenings
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such insurance policies.
ARTICLE VIII
OPERATIONS, MAINTENANCE AND REPAIR
8.1. MAINTENANCE AND OPERATING EXPENSES. Except as expressly provided
in Subsection 2.3(d) above, the City will be responsible for all maintenance and
operating expenses of the Baseball Facility, including, but not limited to,
cleaning, routine maintenance and repair of the Baseball Facility, utility costs
and hiring and paying all personnel necessary for the staging of baseball games
including, without limitation, a ground crew and a maintenance crew. The City
will operate and maintain the Baseball Facility as a first-class, major league
spring training facility in a professional, businesslike and efficient manner.
Without limiting the general obligations of the City as provided in this
Agreement, and in addition thereto, the City shall at all times comply with the
maintenance program attached hereto as Exhibit "B" and made a part hereof, as
such maintenance program may be modified from time to time with the mutual
consent of the City and the Indians. The City will not be responsible for any
maintenance, repairs or restoration related to damage occurring to property
during an Indians' Event, as a result of willful or negligent acts or omissions
of the Indians, its officers, agents or employees.
8.2. CAPITAL REPAIRS. The City will keep the Baseball Facility in good
working order and repair and will complete all necessary Capital Repairs and
improvements to the Baseball Facility as are necessary to keep the Baseball
Facility a baseball facility comparable to the spring training facilities used
by other major league baseball teams in the State of Florida.
8.3. MAINTENANCE AND REPAIR PROCEDURES.
(a) The City agrees to repair and maintain the Baseball Facility to a
condition comparable to other major league spring training facilities in the
State of Florida. No later than October 1 of the year prior to the next Spring
Training Season the parties shall confer and mutually agree upon any maintenance
or repairs to the Baseball Facility necessary for it to be in condition for the
upcoming Spring Training Season.
(b) It is expressly recognized that contained within the City's
obligations hereunder, and as a condition to the Indians' obligation
to perform hereunder, it is the City's obligation
-18-
23
(including the payment of the cost thereof) to maintain and, if necessary,
restore the Baseball Facility to a condition customary for comparable major
league spring training facilities in the State of Florida prior to the beginning
of each Spring Training Season.
(c) Upon reasonable request from the Indians for the performance of
maintenance or a Capital Repair, the City shall use its reasonable best efforts
to perform such work within a reasonable amount of time. The city and the
Indians will meet again on or before January 10 of each year, to review the
preparation of the Baseball Facility and the completion of the items agreed to
be completed as provided herein.
8.4. EMERGENCY REPAIRS. If there is a need for any Emergency Repairs
and the City is unable to undertake such repairs immediately, the Indians may in
its reasonable discretion perform such Emergency Repairs using reputable
contractors or Indians' personnel. In such an event, notification of such
Emergency Repairs being undertaken by the Indians shall be given to the City as
soon as practicable. The City will reimburse the Indians for the expenses,
including personnel expenses, of such work within ten (10) days after
presentation of an invoice therefor by the Indians.
8.5. INDIANS' SELF HELP. In the event the City fails to perform the
city's obligations under this Article VIII after written notice from the
Indians, the Indians may perform such maintenance or Capital Repair using
reputable contractors or Indians' personnel. The City will reimburse the Indians
for the expenses, including personnel expenses, of such work within ten (10)
days after presentation of an invoice therefor by the Indians, or, at the
election of the Indians, the Indians may deduct any amounts due and owing the
Indians hereunder against any amounts due and payable to the City under this
Agreement.
ARTICLE IX
TAXES
9.1. REAL ESTATE AND PERSONAL PROPERTY TAXES. The parties recognize and
acknowledge that as of the Effective Date the Indians will not be responsible
for payment of any Real and Personal Property Taxes assessed with respect to the
Baseball Facility, but in the event the Indians are later determined to be
responsible for payment of such taxes, to the extent permitted by law, the City
will indemnify and hold the Indians harmless from any such taxes.
9.2. SALES AND USE TAXES.
(a) The City represents to the Indians that as of the date of this
Agreement it does not have any intent to impose, levy, assess or collect any
tax, assessment, or surcharge on the use of
-19-
24
the Baseball Facility by the Indians pursuant to this Agreement, and to the
extent permitted by law, the City agrees that it will not levy or assess any
tax, assessment, or surcharges, including but not limited to, tourist, amusement
or entertainment taxes or assessments or similar impositions assessed on the
sale of tickets at the Baseball Facility, and, to the extent permitted by law,
the City shall indemnify and hold the Indians' harmless from any of such taxes,
assessments, or surcharges imposed by any other governmental entity.
(b) The parties recognize and acknowledge that as of the date of the
Agreement the State of Florida imposes a sales tax on the sale of tickets to
events such as the Indians' Events and, under Florida law, it is the obligation
of the seller of the ticket (which in the case of the Indians' Events will be
the Indians) to pay collect and remit such tax to the State of Florida. The City
is not obligated to collect and remit any such tax on the sale of tickets to the
Indians' Events, nor is it obligated or required by this Agreement to pay or
reimburse the Indians for such sales tax.
9.3. SALES TAX; GROSS CONCESSION REVENUES AND GROSS PARKING REVENUES.
In the event, for whatever reason, any sales tax is imposed or assessed on the
City's Gross Concession Revenues or Gross Parking Revenues, then payment of such
tax will be the sole responsibility of the City, provided that, if the Indians
are required to pay such taxes, to the extent permitted by law, the City will
reimburse the Indians for such amounts paid; and, provided further, that the
City shall not enact any law or take any legal action that would prohibit any
reimbursement pursuant to this Section 9.3.
ARTICLE X
SECURITY AND CROWD CONTROL
The City shall provide, at the City's expense, such security and crowd
control personnel during Indians' Events that is necessary to preserve the
health, welfare and safety of Indians players and personnel, patrons and
invitees using the Baseball Facility and the citizens of the City, as shall be
reasonably requested by the Indians and mutually agreed upon by the parties.
Such personnel shall include, without limitation, sufficient traffic control
personnel and police or security guards stationed throughout the Baseball
Facility and the surrounding area before, during and after all Indians' Events.
The Indians recognize and acknowledge the City has provided security, traffic
control and crowd control in the past for major league baseball spring training
games at the Baseball Facility and does agree to and approve the crowd control,
traffic control and security plan used by the City for the 1993 spring training
season as a reasonable and appropriate means for satisfying the City's
obligation under this Section 10.1. The City agrees to not make any material
change in the crowd control, traffic control and security plan used by the City
for
-20-
25
Indians' Events at the Baseball Facility without prior
consultation with and approval by the Indians.
ARTICLE XI
RIGHT OF ENTRY AND INSPECTION
Upon reasonable written notice to the City, the Indians and the
Indians, agents, representatives, invitees and contractors shall have the right,
during normal business hours of the City or of the City's general contractor,
prime contractor or construction manager, as the case may be, and at such other
times as the Indians may reasonably request, to review all design plans, inspect
the progress of the completion and installation of the improvements and items
provided for in the Construction Contract and provide tours of the Baseball
Facility. The provisions of this Article XI shall in no way limit or otherwise
relieve the City from the City's obligation to complete the City's work in
conformance with the Construction Contract.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
12.1. EVENTS OF DEFAULT BY THE INDIANS. The following shall constitute
events of default by the Indians:
(a) If the Indians shall at any time fail to pay, when due, any sums
payable by the Indians hereunder and such failure to pay continues for a period
of fifteen (15) days after written notice of such failure is given to the
Indians by the City; or
(b) If any involuntary petition in bankruptcy or for reorganization or
liquidation shall be filed against the Indians under any federal or state
bankruptcy or insolvency act, and shall not have been dismissed within ninety
(90) days from the filing of same; or
(c) If the Indians shall make an assignment for the benefit of
creditors or file a petition in bankruptcy or for reorganization or liquidation
under a federal or state bankruptcy or insolvency act; or
(d) If a receiver shall be appointed for the Indians, or for the
property of the Indians, by any court and such receiver shall not have been
dismissed within thirty (30) days from the date of such appointment; or
(e) If the Indians cease operations as a major league baseball team;
or
-21-
26
(f) If the Indians shall fail to perform or observe or if the Indians
otherwise breaches any of the other agreements, terms, covenants or conditions
hereof and failure to perform or observe or such breach shall continue for a
period of thirty (30) days after notice thereof by the City to the Indians or,
if the failure or breach is of such nature that it cannot be cured within the
thirty (30) day period, then only if the Indians fails to commence the cure
promptly and within the thirty (30) day period or thereafter fails to diligently
continue in good faith until such failure or breach is fully cured.
12.2. EVENTS OF DEFAULT BY THE CITY. The following shall constitute
events of default by the City:
(a) If the City shall at any time fail to pay, when due, to the
Indians, the Indians' allocation of Gross Concession Revenue, Gross Parking
Revenue or any other sums payable by the City hereunder and such failure to pay
continues for a period of fifteen (15) days after notice of such failure is
given to the City; or
(b) If the City shall fail to cause (i) the improvements, fixtures,
furnishings, equipment and other personal property to be completed or installed
as required pursuant to the Construction Contract, or (ii) the Baseball Facility
to be maintained in accordance with the terms and provisions of this Agreement;
or
(c) If any petition in bankruptcy or for reorganization or liquidation
shall be filed by the City under any federal or state bankruptcy or insolvency
act, and shall not, have been dismissed within ninety (90) days from the filing
of same; or
(d) If the city shall make an assignment for the benefit of creditors
or file a petition in bankruptcy or for reorganization or liquidation under a
federal or state bankruptcy or insolvency act; or
(e) If a receiver shall be appointed for the City, or for the property
of the City, by any court and such received shall not have been dismissed within
thirty (30) days from the date of such appointment, or the City is found to be
subject to the provisions of the Local Government Financial Emergencies Act; or
(f) the City is dissolved or otherwise ceases operating as a municipal
government; or
(g) If the City shall fail to perform or observe, or if the City
otherwise breaches, any of the other agreements, terms, covenants or conditions
hereof and such failure to perform or observe or such breach shall continue for
a period of thirty (30) days after notice thereof by the Indians to the City or,
if the failure or breach is of such nature that it cannot be cured within
-22-
27
the thirty (30) day period, then only if the City fails to commence the cure
promptly and within the thirty (30) day period or thereafter fails to diligently
continue in good faith until such failure or breach is fully cured.
12.3. REMEDIES. Upon the occurrence of an event of default described in
either Section 12.1 or 12.2, in addition to any other rights or remedies the
nondefaulting party may have at law or in equity, the nondefaulting party shall,
so long as such Event of Default shall be continuing, have the following rights:
(a) To injunctive relief to enjoin any act or omission which
constitutes an event of default by the defaulting party or to compel performance
of the covenants, agreements, terms and conditions of this Agreement;
(b) To be reimbursed for any damages suffered by the nondefaulting
party, including, without limitation, actual damages and consequential damages;
or
(c) To offset any amounts owing from the nondefaulting party to the
defaulting party pursuant to this Agreement, against any amounts owing from the
defaulting party to the nondefaulting party pursuant to this Agreement and not
paid due to the event of default.
12.4. GENERAL PROVISIONS.
(a) No right or remedy herein conferred upon, or reserved to, the City
or the Indians is intended to be exclusive of any other right or remedy, but
each shall be cumulative and in addition to every other right or remedy given
herein or now or hereafter existing at law, or in equity or by statute.
(b) No waiver by either party of any breach of obligations, agreements
or covenants herein shall be a waiver of any subsequent breach of any
obligation, agreement or covenant, nor shall any forbearance by either party to
seek a remedy for any breach by the other party be a waiver by such party of any
rights or remedies with respect to such or any subsequent breach, nor shall any
express waiver by either party be deemed to apply to any other existing or
subsequent right to remedy any default by the other party, nor shall any waiver
by either party of any default or breach by the other party in the performance
of any of the covenants or obligations of such other party under this Agreement
be deemed to have been made by the party against which the waiver is sought to
be charged unless contained in a writing executed by such party.
(c) If either party shall fail to pay any payment required hereunder,
as the case may be, when due, then, without limiting any other rights of such
party, the breaching party shall be liable for
-23-
28
interest thereon at the Interest Rate from the date that such allocation or
other payment was due until the date paid in full, whether or not notice of
default or failure to make timely payment had been given.
12.5. NONDEFAULTING PARTY'S RIGHT TO CURE DEFAULTS. After the time when
the nondefaulting party has given notice and the applicable grace period
provided has expired, if any sums payable by the defaulting party shall remain
due and payable, or after the time for performance by the defaulting party of
any other term, covenant, provision or condition of this Agreement, or before
the expiration of that time in the event of a bona fide emergency (in which case
the nondefaulting party shall only be required to give such notice as is
reasonable and practical under the circumstances), the nondefaulting party may,
at the nondefaulting party's election (but without obligation), make any payment
required of the defaulting party under this Agreement, or perform or comply with
any covenant or condition imposed on the defaulting party under this Agreement,
and the amount so paid plus the cost of such performance or compliance, plus
interest on such sums at the Interest Rate, shall be collectible by the
nondefaulting party. In order to collect such reimbursement, the nondefaulting
party shall have all the remedies available under this Agreement for default and
the payment of the monies due hereunder, including reasonable attorney's fees.
No such payment, performance or observance by the nondefaulting party shall
constitute a waiver of default or of any remedy for default or render the
nondefaulting party liable for any loss or damage resulting from any such act.
ARTICLE XIII
TERMINATION
Not later than the date of expiration of this Agreement (or, in the
case of any termination of this Agreement other than by lapse of time, within
thirty (30) days after the date of such termination), the Indians shall
surrender the use of the Baseball Facility and the Indians may, in the Indians'
sole discretion, but shall have no responsibility, liability or obligation, to
remove all of its trade fixtures and other personal property and equipment
located in or at the Baseball Facility, including any team equipment; provided,
however, that the Indians shall, at the Indians' sole expense, repair all damage
caused by the removal of such items, except any normal wear and tear, taking by
eminent domain and damage by fire or other casualty regardless of cause.
-24-
29
ARTICLE XIV
INDEMNIFICATION
14.1. INDEMNIFICATION BY THE INDIANS. Subject to the limitations
hereinafter set forth, the Indians hereby agree to indemnify and hold harmless
the City, its officers, members, employees and agents from and against all loss,
cost and expense in connection with proceedings, judicial or otherwise, and
claims, demands and judgments, together with costs and expenses including
attorneys' fees relating thereto, arising out of damage or injury to person or
property occurring in or about the Baseball Facility resulting directly from any
negligent or wilful actions of the Indians or any employee or agent of the
Indians.
14.2. INDEMNIFICATION BY THE CITY.
(a) The City hereby agrees to the extent permitted by law
(particularly, Section 768.28, Florida Statues (1991), or successor provisions
thereto) to indemnify, defend and hold the Indians, its partners, officers,
employees and agents, harmless from and against all loss, cost and expense in
connection with proceedings, judicial or otherwise, and claims, demands, and
judgments, together with costs and expenses including attorneys', fees relating
thereto, arising out of the City's negligent or wrongful acts or omissions
occurring in or around the Baseball Facility and not subject to indemnification
by the Indians pursuant to Section 14.1.
(b) However, with respect to any person who is not a party or who is
not affiliated with a party, this Section 14.2 shall not be deemed a waiver of
any defense or limitations available to the City under the sovereign immunity
law, Section 768.28, Florida Statutes, or successor provisions thereto.
14.3. PROCEDURE REGARDING INDEMNIFICATION.
(a) If an Indemnified Party shall discover or have actual notice of
facts giving rise or which may give rise to a claim for indemnification under
this Article XIV, or shall receive notice of any Action, with respect to any
matter for which indemnification may be claimed, the Indemnified Party shall,
within twenty (20) days following service of process (or within such shorter
time as may be necessary to give the Indemnifying Party a reasonable opportunity
to respond to such service of process) or within twenty (20) days after any
other such notice, notify the Indemnifying Party in writing thereof together
with a statement of such information respecting such matter as the Indemnified
Party then has; it being understood and agreed that any failure or delay of the
Indemnified Party to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from liability hereunder except and solely to the extent that
such failure or delay shall have materially adversely affected the Indemnifying
Party's ability to
-25-
30
defend against, settle, or satisfy any such Action. Following such notice, the
Indemnifying Party shall have the right, at its sole cost and expense, to
contest or defend such Action through attorneys, accountants, and others of its
own choosing (the choice of such attorneys, accountants, and others being
subject to the approval of the Indemnified Party, such approval not to be
unreasonably withheld) and in the event it elects to do so, it shall promptly
notify the Indemnified Party of such intent to contest or defend such Action. If
within twenty (20) days following such notice from the Indemnified Party (or
within such shorter time as may be necessary to give the Indemnified Party a
reasonable opportunity to respond to service of process or other judicial or
administrative action), the Indemnified Party has not received notice from the
Indemnifying Party such Action will be contested or defended by the Indemnifying
Party, the Indemnified Party shall have the right to (i) authorize attorneys
satisfactory to it to represent it in connection therewith or (ii) at any time
settle, compromise, or pay such action, in either of which events the
Indemnified Party shall be entitled to indemnification therefor subject to this
Section 14.3. Following any notice of an indemnification claim not based on an
Action, the Indemnifying Party shall promptly reimburse the Indemnified Party
for all amounts owed to it by reason of such indemnification obligation.
(b) In the event and so long as the Indemnifying Party is actively
contesting or defending against an Action as hereinabove provided, the
Indemnified Party shall cooperate with the Indemnifying Party and its counsel in
such contest or defense, shall join in making any appropriate counterclaim or
cross-claim in connection with the Action, and shall provide such access to the
books and records of the Indemnified Party as shall be necessary in connection
with such defense or contest, all at the sole cost and expense of the
Indemnifying Party. Notwithstanding that an Indemnifying Party is actively
conducting such defense or contest, any Action may be settled, compromised or
paid by the Indemnified Party without the consent of the Indemnifying Party;
provided, however, that if such action is taken without the Indemnifying Party's
consent, its indemnification obligations in respect of such claim shall thereby
be nullified. Any such Action may be settled, compromised, or paid by the
Indemnifying Party without the Indemnified Party's consent, so long as such
settlement or compromise does not cause the Indemnified Party to incur any
present or future cost, expense, obligation or liability of any kind or nature.
(c) In the event any Action involves matters partly within or partly
outside the scope of the indemnification by the Indemnifying Party hereunder,
then the attorneys' fees, costs, and expenses of contesting or defending such
Action shall be fairly allocated between the Indemnified Party and the
Indemnifying Party.
14.4. LIMITATION. Indemnification under this Article XIV
-26-
31
does not include indemnification against loss or liability due to natural
causes.
ARTICLE XV
ASSIGNMENT
15.1. ASSIGNMENT BY THE INDIANS. The Indians may assign the Indians'
interest in this Agreement, without the consent of the City, to any person,
firm, corporation or entity which acquires, in accordance with all applicable
major league rules and regulations, a major league baseball franchise which may
include, but shall not be limited to, the franchise now held by the Indians;
provided such assignee assumes the Indians' obligations hereunder and agrees to
be bound hereby. The Indians shall promptly provide the City with notice of any
assignment of its interest in this Agreement and a copy of any major league
approvals of such assignment. Upon the assignment of the Agreement by the
Indians in compliance with this Section 15.1, the liability of the Indians shall
cease with respect to liabilities accruing from and after such transfer,
provided the assignee has assumed such liability.
15.2. ASSIGNMENT BY THE CITY. The City shall not transfer the City's
right, title or interest in all or any part of the Baseball Facility or assign
the City's interest in this Agreement except, (i) to a successor governing
entity that assumes the City's obligations hereunder and agrees to be bound
hereby, or (ii) with the prior written consent of the Indians, which consent may
be withheld in the reasonable discretion of the Indians.
ARTICLE XVI
EMINENT DOMAIN
16.1. TERMINATION FOR CONDEMNATION.
(a) In the event of any Condemnation of a material part of the Baseball
Facility (or any improvements hereafter constructed thereon), this Agreement
shall terminate (except as hereinafter provided below) on the date on which
possession is required to be delivered to the condemning authority.
(b) As used herein, a "material part" shall include any of the
following, unless the Indians elects in its sole discretion to treat any of the
foregoing as not a "material part" of the Baseball Facility:
(1) Any part of the Baseball Facility which, in the Indians'
reasonable determination, would cause the Indians to become
unable to make use of the Baseball Facility for
-27-
32
its intended operations or to experience a material loss of
revenue (specifically including, without limitation, any loss
of seating in excess of a number of seats having a face ticket
price equal to 10% or more of the aggregate face ticket price
of all seats in the Baseball Facility, loss of any material
portion of the concourse areas, or the loss of a practice
field);
(2) Any part of the area between the Baseball Facility and a
public street or highway, Condemnation of which would cause
the Indians to become unable to provide reasonable access to
the Baseball Facility; or
(3) Any portion of the Baseball Facility the loss of which results
in fewer than 2,500 parking spaces being available on the
Site;
(b) If this Agreement terminates pursuant to the provisions of this
Section 16.1, all rights, obligations and liabilities of the parties hereto
shall end as of the effective date of such termination), without prejudice to
any rights which have accrued prior to such termination.
16.2. ALLOCATION OF AWARD. The amount of any award for or on account of
any Condemnation shall be shared equitably between the City and the Indians to
the extent of their respective affected interests, and the condemning authority
or the court in which the award is made shall be requested to make a separate
award for the then current value of the Indians' rights under this Agreement.
The Indians shall have the right to be represented by counsel of its choosing in
any Condemnation proceedings.
16.3. PERFORMANCE OF WORK. If there shall be a Condemnation and this
Agreement shall not terminate as a result thereof in accordance with the
provisions of Section 16.1, the City shall be required to perform any and all
work necessary to restore the Baseball Facility to a complete architectural unit
suitable for the Indians' use in as expeditious a manner as possible.
16.4. TEMPORARY TAKING. In the event of any temporary taking of the
Baseball Facility or any portion thereof for public use which prevents the use
of the Baseball Facility for the purposes contemplated by this Agreement, this
Agreement shall not terminate by reason thereof, except as hereafter provided,
and the rights and obligations of the parties shall continue in full force and
effect as provided herein except that any award for such temporary taking shall
be allocated on the basis of the parties respective interests affected by such
temporary taking.
(b) Upon the termination of such temporary taking and upon
receipt of the Condemnation award, the City shall restore the
-28-
33
Baseball Facility to the extent applicable to its state as existed immediately
prior to such temporary taking.
(c)(1) During any period of a temporary taking preventing the use of
the Baseball Facility for the purposes contemplated by this Agreement, the
Indians shall be entitled to make arrangements for an alternative site for its
spring training operations.
(2) In the event the Indians make arrangements for an alternative site
for its spring training operations as contemplated by this subsection, then upon
receipt of the proceeds from an award for compensation for such temporary
taking, the City agrees to reimburse the Indians for payments and expenses
incurred by the Indians for use of an alternative spring training facility,
within thirty (30) days after receipt by the City of a certificate from the
Chief Financial Officer of the Indians setting forth the amount paid for such
alternate facility by the Indians, together with reasonable documentation
supporting the same, including invoices and supporting data, provided that the
total amount paid by the City to the Indians shall not exceed the amount of any
award for compensation received by the City for such temporary taking. The
Indians may make a separate claim against the condemning body for an award of
any damages sustained by it as a result of such temporary taking, provided that
in the event the Indians make such a claim, the City shall not be obligated to
pay any portion of its award for compensation to the Indians.
(3) The Indians shall have the right to terminate this Agreement as of
the end of any Spring Training Season and treat a temporary taking as a taking
under Section 16.1 if the remaining period of such temporary taking will be for
a period of more than one (1) year following the date of the termination, as
evidenced by the issuance by a duly authorized official of the condemning
authority of any written statement to the effect that such Condemnation will be
for such period of time.
ARTICLE XVII
UNTENANTABILITY AND OBLIGATION TO RESTORE UPON DAMAGE
17.1. PROPERTY DAMAGE.
(a) In the event of any Property Damage (whether or not insured), the
Indians may elect in its sole discretion, by notice to the City delivered within
one hundred twenty (120) days of the occurrence of the Property Damage, to
either:
(i) terminate this Agreement as of the date of the Property
Damage, or
-29-
34
(ii) request city, at the City's expense, to repair the Property
Damage so as to restore the Baseball Facility to its condition
immediately prior to the Property Damage.
(b) If this Agreement terminates pursuant to the provisions of this
Section 17. 1, all rights, obligations and liabilities of the parties hereto
shall end as of the effective date of such termination, without prejudice to any
rights which have accrued prior to such termination.
17.2. CITY TO RESTORE.
(a) In the event the Indians elect pursuant to section 17.1 to have the
City repair any Property Damage, and the proceeds from insurance on the Baseball
Facility as described in Section 7.1 are or will be available, the City shall
promptly initiate the repair and restoration work to repair such Property Damage
and shall continue diligently without interruption to completion.
(b) During any period beginning with the occurrence of any Property
Damage and ending upon completion of the repair and restoration, the obligations
of the City and of the Indians under this Agreement shall xxxxx and be suspended
to any extent caused by such damage or the repair work, as determined by the
Indians, in light of the part, if any, of the Baseball Facility being used by
the Indians.
17.3. UNTENANTABILITY. Notwithstanding any other provision of this
Article XVII, if the Baseball Facility is untenantable in whole or in any
material part as a result of the City's inability to complete any Capital
Repair, or a power failure on or offsite, or the event or events which gave rise
thereto, then for the period of such untenantability, or during such longer
period as may be reasonably necessary to enable the Indians to arrange for an
alternate site, the Indians shall be entitled to make arrangements for an
alternate site for its Spring Training Ballgames. During the period in which the
Indians is playing its games at an alternate site, the Indians will not be
responsible for any obligations accruing under this Agreement.
ARTICLE XVIII
BASEBALL FACILITY NAME
During the Term, the Baseball Facility will be known and referred to as
the Chain O'Lakes Park, the Spring Training Home of the Cleveland Indians.
-30-
35
ARTICLE XIX
NO MORTGAGE OF BASEBALL FACILITY
The City represents to the Indians that it has not mortgaged the
Baseball Facility, or any part thereof, and covenants with the Indians to not
mortgage the Baseball Facility during the Term.
ARTICLE XX
MISCELLANEOUS
20.1. FORCE MAJEURE. Except as otherwise herein expressly provided, if
either party shall be delayed or hindered in, or prevented from, the performance
of any covenant or obligation hereunder as a result of acts of God, fire or
other casualty, earthquake, flood, epidemic, landslide, enemy act, war, riot,
intervention by civil or military authorities of government, insurrection or
other civil commotion, general unavailability of certain materials, strikes,
boycotts,lockouts, labor disputes or work stoppage beyond the control of either
party hereto, then the performance of such covenant or obligation, shall be
excused for the period of such delay, hindrance or prevention and the period of
the performance of such covenant or obligation shall be extended by the number
of days equivalent to the number of days of such delay, hindrance or prevention.
Without limiting the foregoing, in the event of a labor dispute or work stoppage
involving professional baseball, the Indians shall have no obligation to conduct
games, share revenue, pay expenses or do any other act related to the subject
matter of this Agreement or have any liability to the City as a result thereof.
20.2. AMENDMENT; WAIVER.
(a) No alteration, amendment or modification hereof shall be valid
unless executed by an instrument in writing by the parties hereto with the same
formality as this Agreement.
(b) The failure of the Indians or the City to insist in any one or more
instances upon the strict performance of any of the covenants, agreements,
terms, provisions or conditions of this Agreement or to exercise any election
herein contained shall not be construed as a waiver or relinquishment for the
future of such covenant, agreement, term, provision, condition, election or
option, but the same shall continue and remain in full force and effect. No
waiver by the Indians or the City of any covenant, agreement, term, provision or
condition of this agreement shall be deemed to have been made unless expressed
in writing and signed by an appropriate official on behalf of the City or the
Indians. Neither the payment by either party of sums due and payable hereunder,
with knowledge of the breach of any covenant, agreement,
-31-
36
term, provisions or condition herein contained, shall be deemed a waiver of such
breach.
20.3. CONSENT. No consent or approval by the Indians or the City
permitted or required under the terms of this Agreement shall be valid or be of
any validity whatsoever unless the same shall be in writing, signed by the party
by or on whose behalf such consent is executed.
20.4. SEVERABILITY. If any article, section, subsection, term or
provision of this Agreement or the application thereof to any party or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
the article, section, subsection, term or provision of this Agreement or the
application of same to parties or circumstances other than those to which it is
held invalid or unenforceable shall not be affected thereby and each remaining
article, section, subsection, term or provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
20.5. COVENANT OF QUIET ENVIRONMENT. The City covenants that if, and so
long as, the Indians keeps and performs each and every covenant, agreement,
term, provision and condition of this Agreement on the part and on behalf of the
Indians to be kept and performed, the Indians shall quietly enjoy its rights
under this Agreement without hindrance or molestation by the City or by any
other person lawfully claiming the same by, through or under the City, subject
to the covenants, agreement, terms, provisions and conditions of this Agreement.
20.6. PRORATIONS. Any apportionment or prorations to be made under this
Agreement shall be computed on the basis of a year containing three hundred
sixty-five (365) days, consisting of twelve (12) months of the actual number of
days in each.
20.7. CAPTIONS. The captions of articles and sections are for
convenient reference only and shall not be deemed to limit construe, affect,
modify or alter the meaning of such Articles or sections.
20.8. BINDING EFFECT. The covenants, terms, conditions, provisions and
undertakings in this Agreement, or in any renewals thereof, shall extend to and
be binding upon the heirs, personal representatives, executors, administrators,
successors and assigns of the respective parties hereto as if they were in every
case named and expressed in whatever reference is made to either of the parties
hereto it shall be held to include and apply also to the heirs, personal
representatives, executors, administrators, successors and assigns of such party
as if in each case so expressed.
-32-
37
20.9. AGREEMENT CONTAINS ALL TERMS. This Agreement contains the entire
agreement and understanding between the parties. There are no oral
understandings, terms or conditions neither party has relied on any
representation, expressed or implied, not contained in this Agreement or the
simultaneous or prior writing heretofore. All prior understandings, terms and
conditions, including the Memorandum of Agreement, are deemed to merge in this
Agreement, and this Agreement cannot be changed or supplemented orally, but only
by an agreement in writing and signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
20.10. NOTICES. All notices, demands, consents, approvals, statements,
requests and invoices to be given under this Agreement shall be in writing,
signed by the party or officer, agent or attorney of the party giving the
notice, and shall be deemed to have been effective upon delivery if served
personally, or upon the third day from and including the day of posting if
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, addressed as follows:
For the City: The City of Winter Haven, Florida
000 Xxxxx Xxxxxx, X.X.
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: City Manager
With a Copy to Attention: Mayor
For the Indians: Cleveland Indians Baseball Company
Limited Partnership
Cleveland Municipal Stadium
Xxxxxxxxx, Xxxx 00000
Attention: President
With a copy to: Xxxxx & Xxxxxxxxx
0000 Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
20.11. APPLICABLE LAW; VENUE. This Agreement shall be governed by the
laws of the State of Florida. Venue for any judicial proceedings pertaining to
this Agreement shall be in Polk County, Florida.
20.12. CROSS REFERENCES. Any reference in this Agreement to a section,
subsection, article or exhibit is a reference to a section, subsection, article
or exhibit, as appropriate, of this Agreement, unless otherwise expressly
indicated.
20.13. REPRESENTATIVES. The Indians' representative for implementation
of the terms of this Agreement shall be Xxxxxxx X. Xxxxxx, or such individual or
individuals designated, in writing, by Xxxxxxx X. Xxxxxx to act for the Indians
on certain specified
-33-
38
matters. The City's representative for implementation of the terms of this
Agreement shall be the City Manager. Either party may substitute representatives
by notice to the other party delivered in accordance with Section 20.10.
20.14. EFFECTIVE DATE. This Agreement shall be a legally binding
agreement, in full force and effect, as of the date set forth in the first
paragraph of this Agreement.
20.15. RADON GAS. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
20.16. ACCORD AND SATISFACTION. Payment by any party, or receipt or
acceptance by a receiving party, of any payment due hereunder in an amount less
than the amount required to be paid hereunder shall not be deemed an accord and
satisfaction, or a waiver by the receiving party of its right to receive and
recover the full amount of such payment due hereunder, notwithstanding any
statement to the contrary on any check or payment or on any letter accompanying
such check or payment. The receiving party may accept such check or payment
without prejudice to the receiving party's right to recover the balance of such
payment due hereunder or to pursue any other legal or equitable remedy provided
in this Agreement.
20.17. FURTHER ASSURANCES. The City and the Indians shall execute,
acknowledge and deliver, after the date hereof, without additional
consideration, such further assurances, instruments and documents, and shall
take such further actions as the City or the Indians shall reasonably request of
the other in order to fulfill the intent of this Agreement and the transaction
contemplated thereby.
20.18. RETAINED REVENUES. Unless otherwise expressly provided for in
this Agreement, the Indians shall be entitled to receive and retain all revenues
generated by the operations of the Indians or derived from the ownership of the
franchise rights to the Indians, including, but not limited to, radio,
television, broadcast or other media fees.
20.19. NO THIRD PARTY BENEFICIARY. The provisions of this Agreement are
for the exclusive benefit of the parties hereto and not for the benefit of any
third person, nor shall this Agreement be deemed to have conferred any rights,
express or implied, upon any third person.
-34-
39
20.20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
20.21. NO GENERAL OBLIGATION. In no event shall any obligation of the
City under this Agreement be or constitute a general obligation or indebtedness
of the City, a pledge of the ad valorem taxing power of the City or a general
obligation or indebtedness of the City within the meaning of the Constitution of
the State of Florida or any other applicable laws, but shall be payable solely
from legally available revenues and funds. The Indians do not have the right
under this Agreement to compel the exercise of the ad valorem taxing power of
the City or any other governmental entity or taxation in any form on any real or
personal property to pay the City's obligations or undertaking hereunder.
20.22. RECORDABLE MEMORANDUM OF USE AGREEMENT. If requested by either
party, the City and the Indians agree to execute, in recordable form, the
"Memorandum of Amended and Restated Use Agreement," in substantially the form
attached hereto as Exhibit "C," and agree, authorize and hereby direct such
Memorandum to be recorded in the public records of Polk County, Florida, as soon
as possible after execution thereof. The parties further agree that in the event
the Memorandum has been recorded, upon the termination or expiration of this
Agreement they will execute and have recorded a memorandum or other instrument
evidencing that this Agreement has expired or terminated.
ARTICLE XXI
REPRESENTATIONS AND WARRANTIES
21.1. INDIANS' REPRESENTATIONS AND WARRANTIES. The Indians represents
and warrants as follows, as of the date hereof and at all times hereafter during
the Term that:
(1) The Indians is a duly organized and validly existing limited
partnership under the laws of the State of Ohio;
(2) The Indians has full power and authority to execute, deliver
and perform its obligations under this Agreement;
(3) All requisite partnership action has been taken by or on
behalf of the Indians to authorize the execution and delivery
by the Indians of this Agreement and the performance of its
obligations hereunder, and this Agreement constitutes a
legally valid and binding obligation of the Indians
enforceable in accordance with its terms; and
-35-
40
(4) The execution and delivery by the Indians of this Agreement
and the performance by the Indians of its obligations
hereunder does not conflict with or violate any provision of
the Indians' Limited Partnership Agreement or Certificate of
Limited Partnership or any applicable law to which the Indians
is subject, nor does it conflict with, violate or constitute a
default under any contract or other obligation, subject to the
required approval set forth in Article XXII hereof, binding
upon the Indians.
21.2. CITY'S REPRESENTATIONS AND WARRANTIES. The City represents and
warrants as follows, as of the date hereof and at all times hereafter during the
Term that:
(1) The City is a validly existing municipal corporation of the
State of Florida;
(2) The City has full power and authority to execute, deliver and
perform its obligations under this Agreement;
(3) The governing body of the City has approved this Agreement in
all respects and that all corporate and municipal action has
been taken by or on behalf of the City to authorize the
execution and delivery by the City of this Agreement and the
performance of its obligations hereunder, and this Agreement
constitutes a legally valid and binding obligation of the City
enforceable in accordance with its terms;
(4) The execution and delivery by the City of this Agreement and
the performance by the City of its obligations hereunder does
not conflict with or violate any provision of the City's
charter (or similar governing document) or any applicable law
to which the City is subject, nor does it conflict with,
violate or constitute a default under any contract or other
obligation binding upon the City;
(5) The City owns fee simple title to the Baseball Facility free
and clear of liens and encumbrances thereon; and
(6) There are no City or local laws, regulations or ordinances
that require the Indians to obtain any licenses or permits to
conduct its business in accordance with the terms of this
Agreement.
-36-
41
ARTICLE XXII
MAJOR LEAGUE APPROVAL
All of the terms and conditions of this Agreement must be approved by
the Commissioner of Major League Baseball and the President of the American
League. The City and the Indians acknowledge that this Agreement and other
related documents may be amended to add such notice and approval provisions as
may be required by the Commissioner of Major League Baseball and the President
of the American League. The City acknowledges that approval may be given or
withheld or actions taken as described in this Article XXII in the discretion of
such persons. After execution hereof by the City, the Indians shall promptly
request approval of this Agreement.
ARTICLE XXIII
TICKET AND PROMOTIONS AGREEMENT
23.1. COMMUNITY PARTICIPATION. The City and the Indians acknowledge
that to make this project a more viable, economic enterprise the full support of
the community is needed. Therefore, the City shall request the Winter Haven
Chamber of Commerce or such other sources acceptable to the Indians to use their
good faith efforts to: (a) sell at least 15,000 admission tickets to Spring
Training Ballgames at regular admission prices during each Spring Training
Season, (b) obtain sponsors who will expend at least $25,000 each Spring
Training Season to promote Spring Training Ballgames through radio, television,
newspapers, merchant posters and banners, and similar media in the Winter Haven
area, and (c) sponsor a season ticket drive for each Spring Training Season
during a four (4) week period determined by Indians each Term Year. All
promotional materials shall be submitted to the Indians for the Indians approval
prior to their distribution or use. It is understood and agreed by the City and
the Indians that if, after reasonable good faith efforts by the City, the goals
of this Section 23.1 are not met; such event shall not constitute a breach or
default of this Agreement by the City nor shall it excuse or release the Indians
from any of its obligations under this Agreement.
23.2. INDIANS' PROMOTIONS. The,Indians will provide during the Term,
one (1) scoreboard message at each regular season home game for the purpose of
promoting travel to Winter Haven, the Indians' Spring Training Headquarters. The
City shall provide, at the City's cost and expense, appropriate scoreboard
message copy, which message copy shall be subject to the approval of the
Indians.
-37-
42
IN WITNESS THEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CITY OF WINTER HAVEN, FLORIDA
ATTESTED BY:
/s/ Xxxxxx X. Xxxxxx By /s/ Xxxxx Xxxxxxxx
----------------------------------- -----------------------------------
City Clerk (Deputy) Mayor
APPROVED AS TO FORM:
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
City Attorney
CLEVELAND INDIANS BASEBALL COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: CLEVELAND BASEBALL CORPORATION,
an Ohio corporation and its general partner
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Its: E.V.P.
-------------------------------------
/s/ ??? McAfee
-----------------------------------
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
(Witnesses as to Indians)
-38-
43
FIRST AMENDMENT TO AMENDED
AND RESTATED USE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED USE AGREEMENT
(this "Amendment") is made as of this 11th day of February 1994, by and between
the CITY OF WINTER HAVEN, Florida, a Florida municipal corporation (the "City"),
and CLEVELAND INDIANS BASEBALL COMPANY LIMITED PARTNERSHIP, an Ohio limited
partnership (the "Indians") .
WHEREAS, the Indians and the City have entered into that
certain Amended and Restated Use Agreement dated October 15, 1993 (the
"Agreement"); and
WHEREAS, the Indians and the City have agreed to make certain
amendments and modifications to the Agreement to reflect the Indians, exclusive
right to control concession sales at the Baseball Facility (all capitalized
terms not otherwise defined herein shall have the same meaning ascribed to them
in the Agreement), and the build-out and equipping of certain concession areas
and concession equipment as more fully set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and promises contained herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1. ADDITIONAL DEFINITIONS. The following additional defined terms are
hereby added to Article I of the Agreement:
(A) "Concession Equipment" means the kitchen and retail food and
beverage preparation and service equipment, smallwares and devices, cash
registers, telephone and other concession equipment as more fully described on
Exhibit A, attached hereto and made a part hereof.
(B) "Concession Facilities"' means all concession stands and booths,
beer gardens, concession storage and dressing rooms, loading docks and
facilities, gift shops and concession offices which are presently located in the
Baseball Facility or may hereafter be constructed, relocated or expanded within
the Baseball Facility.
(C) "Concession Revenue" means Gross Concession Revenues less all sales
taxes paid thereon.
(D) "Concessionaire" means such professional concession operator
selected by the Indians and approved by the City, which approval shall not be
unreasonably withheld, as the
44
same may be replaced from time to time by the Indians. The initial
Concessionaire shall be Sportservice Corporation, a New York corporation.
(E) "Gross Concession Revenues" means all gross receipts collected from
the sale of Refreshments and Merchandise and any sublicensing revenues
pertaining to Refreshments and Merchandise received from third-party vendors.
(F) "Merchandise" means all novelties, souvenirs (excluding Indians
periodicals, programs and publications), binoculars, seat cushions (which may be
sold or rented), clothing, garments, and any other appropriate merchandise as
shall be approved from time to time by the Indians for sale at the Baseball
Facility.
(G) "Refreshments" means all refreshments, confectioneries, beverages
(including alcoholic beverages to extent permitted by applicable law, now or
hereafter in effect), snacks, tobacco products and all other food products as
may be approved from time to time by the Indians for sale at the Baseball
Facility.
(H) "Utility Services" means all utilities necessary for the operations
of Concession Facilities or Concession Equipment, including, but not limited to
HVAC, water, electricity, sewage, general lighting, gas for cooking and local
telephone services.
1.1. DELETION OF DEFINITION. The definition of Gross Concession Revenue
previously set forth in Section 1.1(p) of the Agreement is hereby deleted in its
entirety.
ARTICLE II
CONCESSION OPERATIONS
2.1. INDIANS' CONTROL OF CONCESSION OPERATIONS. The Indians shall be
responsible for the management and operation of all concession operations at the
Baseball Facility during Indians' Events. The Indians may subcontract all or any
portion of the Indians' concession rights and obligations to the Concessionaire.
Any concessionaire for the Ballpark Facility shall meet the qualifications
agreed to by the City and the Indians and shall offer for sale concession
products of a nature, quality, and price determined by the Indians and approved
by the City. The City shall retain complete and exclusive control over the
choice of concessionaire, concession equipment, and concession facilities for
any and all non-Indians events and the Indians shall not share in any concession
revenue from such non-Indians events.
-2-
45
2.2. CITY'S RESPONSIBILITIES. The City shall continue to be responsible
for any and all costs of constructing the Concession Facilities and providing
the Concession Equipment, including, the construction, renovation and provision
of the Concession Facilities and Concession Equipment as described on Exhibit B,
attached hereto and made a part hereof. The City shall be responsible for the
repair and replacement of all Concession Facilities and Concession Equipment in
need of repair and replacement due to normal wear and tear or damage; provided
such damage is not caused by the improper use of such Concession Facilities or
Concession Equipment by the Indians or the concessionaire. The City shall ensure
that there are proper and adequate Utility Services, Concession Facilities and
connections of Utility Services to Concession Facilities and Concession
Equipment. The City shall pay all costs and expenses of Utility Services,
excluding long distance telephone charges incurred by the Indians or the
Concessionaire.
2.3. ADDITIONAL AMENDMENTS TO USE PROVISIONS OF AGREEMENT. The word
"Concession" in Section 2.3(a)(i) of the Agreement is hereby deleted. Section
2.3(a)(vi) of the Agreement is hereby deleted in its entirety and Section
2.3(a)(vii) is hereby renumbered to be Section 2.3(a)(vi). Section 2.3(c)(2) is
hereby deleted in its entirety and inserted in lieu thereof is the following new
Section 2.3(c)(2):
"The City will operate the parking at the Baseball Facility.
If during the Term, the City decides to contract with any
third-party (which could be the Indians, or an affiliate
thereof) to operate and manage the parking at the Baseball
Facility, then prior to doing so the City will give notice to
that effect to the Indians and will consult with the Indians
regarding qualifications of any proposed parking managers."
Section 2.3(d) is hereby amended by inserting a period after the word
"Events" in the sixth line thereof and deleting all of the remaining language
thereafter.
ARTICLE III
CONCESSION REVENUES
3.1. CITY CONCESSION REVENUES. The words "(b) Eighty Percent
(80%) of the Gross Concession Revenue," in Section 6.1 of the Agreement are
hereby deleted and inserted in lieu thereof is the following:
"(b)(i) 21% of the annual Concession Revenue from the sale of
all Refreshments up to $275,000, plus 21.75% of all annual
-3-
46
Concession Revenues for the sale of all Refreshments in excess
of $275,000 up to $325,000 plus 22.50% of all annual
Concession Revenue from the sale of all Refreshments in excess
of $325,000, and (ii) 20% of Concession Revenues from the sale
of all Merchandise, except tobacco products."
3.2. INDIANS' CONCESSION REVENUES. The words "(a) Twenty Percent (20%)
of the Gross Concession Revenues," set forth in Section 6.3 of the Agreement are
hereby deleted in their entirety and the following is hereby inserted in lieu
thereof:
"(a) all Gross Concession Revenues not otherwise due and
payable to the City as set forth in Section 6.1 above".
3.2. PAYMENTS. Section 6.4 of the Agreement is hereby amended to
provide that all Gross Concession Revenue shall be collected by the Indians or
the Concessionaire. The Indians or the Concessionaire shall provide the City
with a weekly report of Gross Concession Revenues and make the payments to the
City in accordance with the provisions contained in Section 6.4 of the
Agreement.
3.3. SALES TAXES ON GROSS CONCESSION REVENUES. Section 9.3 of the
Agreement is hereby amended to delete the words "City's Gross Concession
Revenues" therefrom.
ARTICLE IV
CONCESSIONAIRE RIGHTS
The City hereby agrees that the Indians may grant all of the concession
rights and obligations as provided in the Agreement as amended by this Amendment
to the Concessionaire pursuant to an agreement by and between the Indians and
the Concessionaire.
ARTICLE V
EXCLUSIVE RIGHTS
The concession rights set forth in the Agreement as amended by this
Amendment are exclusive to the Indians and the Concessionaire. The City shall
prohibit vendors, peddlers or persons other than the Indians and/or the
Concessionaire to vend, otherwise sell, or distribute any Refreshments or
Merchandise in, on, or about the Baseball Facility, during any Indians' Event.
The City further agrees that in keeping with the exclusivity of the Indians' and
Concessionaire's rights hereunder, neither the City nor its agents or employees
will sell any products covered
-4-
47
by the Agreement as amended by this Amendment or any products which will
conflict or compete with the products to be sold hereunder.
ARTICLE VI
NO OTHER AMENDMENTS
Except as set forth in this Amendment, there are no other
amendments, modifications or changes to the Agreement and the Agreement shall
remain in full force and effect.
IN WITNESS THEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CITY OF WINTER HAVEN FLORIDA
ATTESTED BY:
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------- -------------------------
City Clerk Mayor
APPROVED AS TO FORM:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
City Attorney CLEVELAND INDIANS BASEBALL COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: CLEVELAND BASEBALL CORPORATION,
an Ohio corporation and its general
partner
/s/ illegible
------------------------ By: /s/ Xxxxxx Xxxxxx
--------------------------
Vice President
/s/ Xxxxxxxxx X. Xxxxx Its:--------------------------
--------------------------
(Witnesses as to Indians)
-5-
48
SECOND AMENDMENT TO AMENDED AND
RESTATED USE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED USE AGREEMENT (this "Second
Amendment") is made as of this 11th day of February, 1994, by and between the
CITY OF WINTER HAVEN, Florida, a Florida municipal corporation (the "City"), and
CLEVELAND INDIANS BASEBALL COMPANY LIMITED PARTNERSHIP, an Ohio limited
partnership (the "Indians").
WHEREAS, the Indians and the City entered into that certain Amended and
Restated Use Agreement dated October 15, 1993 (the "Agreement"); and
WHEREAS, the Indians and the City have, concurrent with the entering of
this Second Amendment, entered into a First Amendment to Amended and Restated
Use Agreement (the "First Amendment"); and
WHEREAS, it is the intent of Indians and the City that this Second
Amendment be effective only through December 31, 1994. However, to the extent of
matters covered herein, this Second Amendment shall supersede the Agreement and
the First Amendment notwithstanding any provisions, agreements, or obligations
in either of the previous documents which are in conflict herewith.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises contained herein, the parties hereto agree as follows:
ARTICLE I
CITY'S MERCHANDISE CONCESSION RIGHTS
The City shall have the exclusive right to vend, otherwise sell, or
distribute merchandise (as defined in the First Amendment) in, on, or about the
Baseball Facility, during any Indians' Event, or during any other event, until
December 31, 1994 at which time this right shall expire.
49
ARTICLE II
EXCLUSIVE RIGHTS
The City's merchandise concession rights set forth in this Second Amendment
are exclusive to the City. The Indians shall prohibit vendors, peddlers or
persons other than the City to vend, otherwise sell, or distribute any
merchandise in, on, or about the Baseball Facility, during any Indians' Event.
The Indians further agree that in keeping with the exclusivity of the City's
merchandise concession rights hereunder, neither the Indians or its agents,
employees or assigns will sell any products covered by this Second Amendment or
any products which will conflict or compete with the products to be sold
hereunder.
ARTICLE III
MERCHANDISE CONCESSION REVENUES
All revenues from the sale of merchandise hereunder shall be collected by
the City. The City shall pay to the Indians twenty percent (20%) of said
merchandise concession revenues. The City shall make payments to the Indians in
accordance with the provisions contained in Section 6.4 of the Agreement. No
third party shall be entitled to share in said revenues.
ARTICLE IV
NO OTHER AMENDMENTS
Except as set forth in the First Amendment and this Second Amendment, there
are no other amendments, modifications or changes to the Agreement. It is the
intent of the parties that where not inconsistent herewith, the Agreement and
the First Amendment shall remain in full force and effect, and subsequent to
December 31, 1994 the parties shall operate exclusively in accordance with the
Agreement and the First Amendment as they presently exist.
IN WITNESS THEREOF, the parties hereto have executed this Second Amendment
as of the date first above written.
00
XXXX XX XXXXXX XXXXX, XXXXXXX
ATTESTED BY:
/s/ Xxxxx Xxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------- ---------------------------
City Clerk Mayor
APPROVED AS TO FORM:
CLEVELAND INDIANS BASEBALL COMPANY
LIMITED PARTNERSHIP, an Ohio
limited partnership
By: CLEVELAND BASEBALL CORPORATION,
an Ohio corporation and its
general partner
/s/ illegible By: /s/ Xxxxxx X. Xxxxxx
----------------------- -----------------------
/s/ Xxxxxxxxx X. ? Its: Exec V.P.
------------------------- ----------------------
(Witnesses as to Indians)
STATE OF FLORIDA )
)
COUNTY OF POLK )
I HEREBY CERTIFY, that on this l1th day of February, 1994, before me
personally appeared Xxxxx Xxxxxxxx as Mayor and Xxxxx Xxx Xxxxxxx as City Clerk
respectively, of the CITY OF WINTER HAVEN, FLORIDA, a municipal corporation
under the laws of the State of Florida, who are personally known to me to be the
persons described in and who executed the foregoing Second Amendment and
severally acknowledged the execution thereof to be their free act and deed as
such officers, for the uses and purposes therein mentioned; and that they
affixed thereto the official seal of said corporation, and the said instrument
is the act and deed of said corporation and who do not take an oath.
