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HomeMy WebLinkAboutCooley Stadium License Lease and Service Agreement First Amendment RECEIVED 2014 OCT 24 PM 5= 35 LANSING CITY CLERK FIRST AMENDMENT TO STADIUM LICENSE, LEASE AND SERVICE AGREEMENT DATED JULY 15, 2014 By and Between TAKE ME OUT TO THE BALLGAME LIMITED LIABILITY COMPANY and CITY OF LANSING (2014 AMENDMENT) This First Amendment to the Stadium License, Lease and Service Agreement Dated July 15, 2014 ("Amendment') is made and entered into this day of by and between Take Me Out to the Ballgame Limited Liability Company, a limited liability company organized and existing under the laws of the State of Illinois ("TMO"), and the City of Lansing, a municipal corporation organized and existing under the laws of the State of Michigan (the "City") (TMO and the City shall be referred to herein collectively as the 'Parties," or singularly as "Party") ARTICLE I RECITALS A. The City, TMO,Outfield Development LLC, and the Lansing Brownfield Authority entered into a Comprehensive Development Agreement dated June14, 2014, (the "CDA"), for the purpose of providing for Stadium Improvements;and B. The City and TMO entered into the Stadium License, Lease and Service Agreement dated July 15,2014 (the"Agreement');and C. TMO and the City desire to amend the Stadium License, Lease, and Service Agreement dated July 15, 2014,to comport with the amended CDA, for the following purposes: 1. The City will enter into an installment purchase agreement pursuant to Act 99 of 1933 (the "Act'), in an amount not to exceed Three Million and 00/100 Dollars ($3,000,000.00) to provide additional financing for Stadium Improvements (the "Additional Financing"). 2. TMO will make an additional cash payment to the City of one-half(1/2)the annual additional principle and interest on the Additional Financing, not to exceed One Hundred Twenty Five Thousand and 00/100 Dollars($125,000.00) in any calendar year(the"Additional Cash Payment). The Parties do not intend to make any modifications to the Agreement except those specifically set forth herein. NOW THEREFORE, for and in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt of which is mutually acknowledged,TMO and the City agree as follows: ARTICLE II DEFINITIONS All terms contained herein shall have the same meaning as established in the Agreement. ARTILE III ADDITIONAL CASH PAYMENT A. The City shall enter into an installment purchase agreement pursuant to the Act, no later than May 1, 2015, on terms determined at the City's sole and absolute discretion, to provide the Additional Financing to be used to make Stadium Improvements as more specifically set forth in the CDA as amended. At its sole and absolute discretion, the City may use an alternative financing vehicle to provide the Additional Financing if it is financially beneficial. The Additional Financing is in addition to the Renovation Funds of Ten Million five Hundred Thousand and 00/100 Dollars ($10,500,000.00)set forth in the CDA. B. TMO shall make an Additional Cash Payment to the City each year the City makes, or is required to make, any payment of principle or interest on the Additional Financing or successor financing in the event the Additional Financing is refinanced. The City shall provide TMO the schedule of payments for the entire term of the Additional Financing. TMO shall remit to the City the Additional Cash Payment thirty (30) days before each due date. This obligation to make the Additional Cash Payment to the City shall terminate at the time all interest and principle of the Additional Financing or successor financing are fully paid off. C. The Additional Cash Payment is in addition to all other sums due and owing to the City pursuant to the Agreement. D. The Additional Cash Payment shall not to be considered in determining whether TMO has met, in whole or in part, the Minimum Guaranteed Payment requirement of Article XIV, Section A.7. The Additional Cash Payment shall not be considered, in whole or part, to be payment of the Minimum Guaranteed Payment. The Additional Cash Payment is not DGR,and is the sole property of the City. E. In the event the City does not obtain the Additional Financing for any reason, TMO shall have no obligation to make the Additional Cash Payment,and this Amendment shall be considered null and void. F. Failure by TMO to timely make any required Additional Cash Payment may be considered a material breach pursuant to Article XXIII of the Agreement. G. The total of the Additional Cash Payment paid by TMO to the City over the lifetime of the Additional Financing shall not be more than One Million Eight Hundred Seventy Five Thousand and 00/100 Dollars ($1,875,000.00). ARTICLE IV SUBSTANTIAL COMPLETION OF STADIUM IMPROVEMENTS Notwithstanding Article XXIV, Section D of the Agreement, all Stadium Improvements (except the playing field) will be Substantially Complete, as that term is defined in the CDA, in accordance with the milestones contained within the Master Schedule agreed to by all parties as required in the CDA, as amended. ARTICLE V MISCELLANEOUS A. Entire Agreement. This Amendment,together with the Agreement, constitutes the final, complete and exclusive written expression of the intent of the Parties with respect to the subject matter hereof which will supersede all previous verbal and written communications, representations, agreements, promises or statements. B. Governing Law. This Amendment shall be construed under and in accordance with the laws of the State of Michigan. C. Authority. TMO and the City, respectively, each represent that the individuals acting as signatories to this Amendment have the authority to bind the TMO and the City and that this Amendment, when properly executed by both Parties,will constitute a valid and binding agreement, enforceable in accordance with this terms. D. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. E. Headings Only for Reference. The titles of articles and sections of this Amendment are for reference purposes only and shall be of no binding effect. F. Valid Illinois Limited Liability Company. TMO represents that as of the date of the execution of this Amendment it is organized and in good standing under the laws of the State of Illinois, that it is duly authorized to enter into this Amendment and has taken all requisite corporate action to obtain such authorization and that no consent of or notice to any other individual, private or public entity or governmental authority is required in connection with the execution,delivery and performance of the Amendment. G. BindingEffect.ffect. This Amendment shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. H. References to the City. All references to the City in this Amendment shall be deemed to also be references to such officers or employees or other designees of the City as may be appropriate to implement the terms of this Agreement. I. To the extent this Amendment conflicts with the Agreement,the Parties agree that this Amendment amends, supersedes, and controls the rights, duties, and obligations under the Agreement. All of the other,non-conflicting terms and conditions of the Agreement shall remain in full force and effect for the term of the Agreement except as expressly amended herein, and remain unchanged, operative, and enforceable. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. TAKE ME OUT TO THE BALLGAME CITY OF LANSING LIMITED LIABILITY COMPANY By: By: Tom Dickson, Managing Member Virg Bernero,Mayor Approved as to form only: I hereby certify that funds are available City Attorney City Finance Director