HomeMy WebLinkAboutStadium License Lease and Service Agreement R)ECE IED
CL R6N
STADIUM LICENSE, LEASE AND
SERVICE AGREEMENT
By and Between
TAKE ME OUT TO THE BALL GAME,
LIMITED LIABILITY CONWAY
and
CITY OF LANSING
(2014)
STADIUM LICENSE, LEASE AND SERVICE AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I.
RECITALS...............................................................................................................................1
ARTICLE II.
DEFINITIONS.........................................................................................................................2
A.. "Banquet Center"................................................................................................................2
:Broadcast Rights ...............................................................................................................2
B. "City Events" ................................................................ ...2
...................................................
C. "City Luxury Suites" .........................................................................................................12
D. "Clubhouse" ....................................................................................................................3
E. "Clubhouse Paid Admission Tickets'' ...............................................................................3
F. "Clubhouse Paid Admission Ticket Revenue"or"CTR....................................................3
G. "Complimentary Admission(s).......................................................... ............... ....4
H. "Comprehensive Development Agreement"or"CDA.. ....................................................4
.................................................................................4
J. "Developer" ....................................................................................................................5
K. "Developer Units" ..............................................................................................................5
L. "Environmental Laws..........................................................................................................5
M. "Expandable Luxury Suites" ..............................................................................................5
N. "Food and Beverage Concessions".....................................................................................6
O. "Food and Beverage Concessions Equipment"..................................................................6
P. "Game Promotion"........................................................................................... ............6
Q. "Hazardous Materials"............................................................. .....
R. "Host Suites".........................................................................................
S. "Luxury Suites"...........................................................................................
T. "LEPFA.. ...................................................................................7
U. "Master Closing"..............................................................................I...............
V. "Master Schedule" ....................................................................................................
W. "Midwest League"......-....................I.........I'll............
X. "Minimum Guaranteed Payment"....................................................................I....I............8
Y. "MSU".................................................................................................................................8
Z. "Mutually Sponsored Event"..............................................................................................8
A.A. "Mutually Sponsored Event Net Profit"or"MSENP.. ......................................................8
AB. "Naming Rights Suite" .......................................................................................................8
AC. "National Association" ......................................................................................................9
AD. "Novelties and Souvenirs................................................................ .....9
AE. "Outfield Development Parcel"..........................................................................................9
AF. "Outfield Development Project".........................................................................................9
AG. "Paid Admission Tickets".......................................................................
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AH. "Permanently Affixed Stadium Signage.............................................................................9
Al. "Plans and Specifications"................................................................................................10
AJ. "Professional Baseball Agreement"..................................................................................10
AK. "Regular Season".................................................................................. "......................10
AL. "Renovation Funds"..........................................................................................................10
AM. "Scoreboard Advertising".................................................................................................10
AN. "Stadium"..........................................................................................................................10
AO. "Stadium Event" ............................................... ...I I
AR "Stadium Improvements" .................................................................................................I I
AQ. "Stadium Services"................................................................... ..1 I
AR. "Stadium Souvenir Stores"...............................................................................................12
AS. "Stadium Units"................................................ ...12
AT. "Suiteholder"...................................................................................... ..12
AU. "TMO Home Baseball Game"..........................................................................................13
AV. "TMO Luxury Suites".........................................
AW. "TMO Special Event..................................................................... ...13
................................
AX. "TMO Special Events Novelties and Souvenirs..............................................................13
AY. "Utilities" ..........................................................................................................................13
ARTICLE III.
TERM AND TERMINATION.............................................................................................13
A. Term of Agreement and Termination of Previous Stadium License, Lease
and Service Agreement dated July 10, 1995 ....................................................................13
B. Termination Of Agreement...............................................................................................14
1. Termination by the City........................................................................................14
ARTICLE IV,
CITY'S OBLIGATIONS............................................................................................................14
A. Stadium.................................................................... .....14
1. Capital Improvements to the Stadium..................................................................15
B. Parking .........................................................................................................16
1. TMO Home Baseball Game and TMO Special Event Parking...........................16
2. Premium Parking Lots..........................................................................................16
3. Weekday Game Parking.......................................................................................17
4. TMO Parking...........................................................................................I......I.....18
5. Stadium Souvenir Store Parking..........................................................................18
6. TMO Banquet Center and TMO Special Event Parking.....................................19
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Pate
7. TMO Home Baseball Game Bus Parking........................................................19
8. All Parking...................................................................... ...............19
.......................
C. Parking Maintenance........................................................................................................20
D. Stadium Maintenance........................................................................................................20
E. Security ..................................................................................................................21
1. Stadium Security..........................................................................................................21
2. City's Right to Eject.....................................................................................................21
F. Food and Beverage Concessions Equipment...................................................................21
G. Monthly Walk-throughs....................................................................................................22
ARTICLE V.
TMO'S OBLIGATIONS............................................................................................................22
A. TMO Home Baseball Games............................................................................................22
B. Stadium Services...............................................................................................................22
1. At TMO Home Baseball Games and TMO Special Events................................23
2. At City Events ......................................................................................................23
3. Field Preparation and Field and Surrounding Grounds Maintenance.................23
4. Stadium Operations Plan......................................................................................24
5. Scoreboard............................................................................................................24
ARTICLE VI.
CONCESSIONS..........................................................................................................................25
A. Concessions Manager.......................................................................................................25
B. Exclusivity........................................................................................ ....25
C. Menu Approval.................................................... ..........26
...................................................
D. Performance and Notice....................................................................................................26
E. Compliance.................................................... .....27
ARTICLE VII.
NAMINGRIGHTS.....................................................................................................................27
A. Stadium Naming Rights....................................................................................................27
BStadium Name...................................................................................................................28
C. Naming Rights Suite.........................................................................................................28
D. Field Naming Rights.........................................................................................................28
E. Field Name........................................................................................................................29
F. Naming Rights Suite ........................................................................................................29
ill
ARTICLE VIII.
Page
STADIUMUSE...........................................................................................................................29
A. TMO's Rights and Obligations.........................................................................................29
B. The City's Rights and Obligations....................................................................................29
1. Scope.....................................................................................................................30
2. Ticketing...............................................................................................................30
C. TMO Home Baseball Game Promotion Tickets..................
D. Suites ......................................................................... .....31
............. ........................
1. TMO Luxury Suites..............................................................................................31
2. Clubhouse.............................................................................................................32
3. Expandable Luxury Suites....................................................................................32
4. Host Suite..............................................................................................................33
E. Access for TMO Training......................................................................................... ...33
F. Administrative Offices......................................................................................................33
G. Stadium Souvenir Stores and Box Offices.......................................................................33
H. The City's Rights and Obligations....................................................................................34
1. City Events........................................................................................................................34
1. Scope.....................................................................................................................34
2. Ticketing...............................................................................................................35
J. Suites ...............................................................................................................................35
1. Clubhouse.............................................................................................................35
2. TMO Luxury Suites..............................................................................................35
3. Expandable Luxury Suites....................................................................................35
4. Host Suite..............................................................................................................36
K. Message Centers ......................................................................................... ...............36
L. Mutually Sponsored Events..............................................................................................36
1. Scope.....................................................................................................................36
2. Scheduling. ........................................... ....... ............37
3. City's Rights and Obligations...............................................................................37
4. TMO Rights and Obligations...............................................................................37
5. Best Practices........................................................................................................37
6. No Agency............................................................................................................37
7 Sponsorship of Mutually Sponsored Events........................................................37
M. Banquet Center..................................................................................................................38
1. Use During Stadium Events.................................................................................38
2. Use During All Non-Stadium Events...................................................................38
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ARTICLE IX.
Page
SCHEDULING............................................................................................................................39
A. Proposed TMO Schedule..................................................................................................39
B. Approved TMO Schedule.................................................................................................40
C. City Selection....................................................................................................................40
D. TMO Special Event Selection...........................................................................................40
E. Remaining Dates...............................................................................................................40
F. Mutually Sponsored Events..............................................................................................41
ARTICLE X.
MARKETING............................................................................................................................41
ARTICLE XI.
ADVERTISING...........................................................................................................................41
A. TMO's Advertising Rights and Responsibilities..............................................................41
1. Permanently Affixed Stadium Signage and Scoreboard Advertising..................41
2. Further Advertising at TMO Home Baseball Games and TMO Special Events.42
B. The City's Advertising Rights and Responsibilities.........................................................43
1. Permanently Affixed Stadium Signage................................................................43
2. Advertising at City Events...............
3. Advertising at TMO Events.................................................................................43
ARTICLE XII.
BROADCAST RIGHTS.............................................................................................................44
A. TMO's Broadcast Rights...................................................................................................44
B. City's Broadcast Rights.....................................................................................................44
ARTICLE XIII.
UTILIITES.............................................................................................................................44
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ARTICLE XIV.
Page
FINANCIAL TERMS.................................................................................................................44
A. TMO's Rights and Obligations .........................................................................................45
1. License Fee...........................................................................................................45
2. TMO Special Event Fees......................................................................................45
3. Luxury Suite Sales................................................................................................46
4. City Event Concession.........................................................................................47
5. Remainder.............................................................................................................47
6. Mutually Sponsored Events..................................................................................47
7. Minimum Guaranteed Payment...........................................................................48
8. Audit of Record....................................................................................................49
B. City's Rights and Obligations.................................................. ........ ....50
.......... ....................
1. Stadium Services at City Events ..........................................................................50
2. Remainder.............................................................................................................50
ARTICLE XV.
EQUIPMENT..............................................................................................................................50
A. TMO's Obligations............................................................................................................50
B. City's Obligations..............................................................................................................51
ARTICLE XVI.
COVENANTS ........................................................................................................................51
A. TMO's Covenants..............................................................................................................51
1. Taxes and Encumbrances.....................................................................................51
2. TMO Home Baseball Games..................................... ...52
.......................................
3. Membership in the Midwest League and National Association..........................52
4. Covenant Not to Transfer Franchise....................................................................52
5. Equal Employment Opportunity and Employment of Lansing Residents..........53
6. Stadium Name......................................................................................................53
7. Use of Matters Subject to Copyright....................................................................53
8. Operation of Stadium Souvenir Stores.................................................................53
9. Prohibition Against Dangerous Materials and Substances..................................53
B. City's Covenants................................................................................................................54
1. Stadium Compliance............................................................................................54
2. Environmental Indemnification............................................................................54
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ARTICLE XVII.
Page
INDEMNIFICATION AND INSURANCE.........................................................................55
A. Indemnification.................................................................................................................55
1. Indemnification of the City by TMO....................
2. Indemnification of TMO by the City ......................................................
B. Insurance Policies..............................................................................................................55
1. Insurance Required of TMO ................................................................................55
2. Insurance Required of the City.............................................................................56
ARTICLE XVIII.
DESTRUCTIONOF STADIUM..........................................................................................56
A. Partial Destruction.............................................................................................................56
B. Reduction in Payment.......................................................................................................57
C. Assistance of the City in Locating a Temporary or Permanent Alternate Facility..........57
D. Development of Outfiled Parcel and Stadium Improvements.........................................57
ARTICLE XIX.
CONDEMNATION....................................................................................................................58
ARTICLE XX.
FORCEMAJEURE....................................................................................................................58
ARTICLE XXI.
REQUISITE ALCOHOL PERMITS.......................................................................................59
ARTICLE XXII.
ASSIGNABILITY AND TRANSFERABILITY.....................................................................59
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ARTICLE XXIII.
Page
TERMINATION UPON DEFAULT........................................................................................60
ARTICLE XXIV.
DEVELOPMENT OF THE OUTFIELD DEVELOPMENT PARCEL
AND STADIUM RENOVATIONS......................................................................................60
A. Redevelopment of the Outfield Development Parcel .......................................................60
B. Implementation of Stadium Improvements........................................................................61
C. Stadium Improvements ......................................................................................................61
D. Substantial Completion of Stadium Improvements...........................................................61
E. Coordination of Efforts.......................................................................................................61
F. Default, Breach, or Termination of CDA....................................................
1. Default by Developer..............................................................................................61
2. Default by TMO......................................................................................................62
G. Termination of CDA prior to Master Closing........................... ........63
H. Delay of Outfield Project.................................................................................•---..............63
I. CDA Rights and Remedies..................................................................................................63
ARTICLE XXV
MISCELLANEOUS
MISCELLANEOUS ..............................................................................................................63
A. Anti-Discrimination..........................................................................................................63
B. Governing Law .................................................................................................................64
C. Entire Agreement..............................................................................................................64
D. Authority...........................................................................................................................64
E. Costs and Attorney Fees...................................................................................................64
F. Mutual Dependency and Severability...............................................................................64
G. Notices and Addresses......................................................................................................65
H. Amendment,Modification,or Alteration.........................................................................65
I. Rights and Remedies Cumulative.....................................................................................65
J. The Essence.......................................................................................................................66
K. Counterparts......................................................................................................................66
L. Headings Only for Reference ...........................................................................................66
M. Valid Illinois Limited Liability Company........................................................................66
N. Prohibition Against Food and Beverage Being Brought Into the Stadium......................66
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O. Status of Parties.................................................................................................................66
P. Waiver...............................................................................................................................66
Q. Improvements....................................................................................................................67
R. Waste or Nuisance............................................................................................................67
S. Binding Effect...................................................................................................................67
T. References to the City.......................................................................................................67
U. Exhibits..............................................................................................................................67
V. TMO's Property Loss and Damage...................................................................................67
W. Employee Status................................................................................................................67
X.. Judicial Relief In The Event Of Termination Actions......................................................67
Y. Property Remaining in the Stadium After Termination/Expiration of the Agreement 68
Z. Dispute Resolution Review Board....................................................................................68
1. Review Board.......................................................................................................68
2. Neutral Representative Compensation.................................................................69
3. Time and Location................................................................................................69
4. Issues Presented....................................................................................................69
5. Decision has no Binding Effect............................................................................69
AA. Release................................................................ .................
EXHIBITS:
EXHIBIT A: TMO MAINTENANCE LIST
EXHIBIT B: STADIUM OPERATION PLAN
EXHIBIT C: TMO PROVIDED EQUIPMENT
EXHIBIT D: CITY PROVIDED EQUIPMENT
EXHIBIT E: OUTFIELD DEVELOPMENT PARCEL
EXHIBIT F: PARKING LOTS
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STADIUM LICENSE,LEASE AND SERVICE AGREEMENT
This Stadium License, Lease and Service Agreement ("Agreement") is made and entered
into this day of , 2014, 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
TMO owns a class Single "A" baseball club (the "Club") in the Midwest League of
Professional Baseball Clubs, Inc. (the "Midwest League"); and
TMO desires to keep its location for the playing of Club baseball games in Lansing,
Michigan in connection with its franchise in the Midwest League; and
TMO and the City desire to terminate the current Stadium License, Lease, and Service
Agreement executed on October 24, 2005, and all amendments thereto, and enter into a new
Stadium License, Lease, and Service Agreement to cause TMO and the Club to play its home
baseball games in the City pursuant to the terms and conditions of this Agreement through the year
2034; and
The City intends to license the use of the Stadium to TMO for certain portions of the year
under the terms and conditions of this Agreement.
I
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 H.
DEFINITIONS
As used in this Agreement, the following terms shall mean:
A. "Banquet Center" shall mean dedicated indoor event space in the leftfield area of the
Stadium, as set forth more specifically in the CDA an ancillary documents, containing a
maximum seating capacity of one hundred and fifty(150)on the second floor.
B. "Broadcast Rights" shall mean the exclusive worldwide right, on a live or delayed basis,
to produce and distribute programming by means of the transmission or retransmission of
electronic signals by any manner or means now known or hereafter devised including,
without limitation, over-the-air VHF and UHF signals, cable (basic, premium and pay-
per-view), multi-channel distribution systems, wire, fiber, microwave, satellite, master
antenna and direct broadcast satellite, as well as recorded visual images with or without
sound, including, but not limited to,photographs, films, videotapes and cartridges.
C. "City Events" shall mean the following events, activities or programs held at the
Stadium:
i) Diamond Classic (all rounds)
ii) Triple Crown sports
iii) MSU varsity baseball games, except a single game scheduled between the
Club and MSU each year (commonly known as the "Crosstown
Showdown").
iv) Homerun for Hope.
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v) Michigan Mile.
vi) Kidney Walk.
vii) Any non-profit, charity, or City department or agency that desires to have an
event held on the field as scheduled in Article IX(field events only).
vii) Events scheduled through LEPFA and the Greater Lansing Convention and
Visitors Bureau which are designated as community events and scheduled
more than fifteen(15) months prior to the event date).
D. "Clubhouse" shall mean the single space containing seating capacity not to exceed sixty
persons outdoors and seventy three persons indoors (or as otherwise established by the
Lansing Fire Marshall), and containing a single full service bar.
E. "Clubhouse Paid Admission Tickets" shall mean the right granted in consideration for
monetary remuneration to any person to enter the Clubhouse on the day of a TMO Home
Baseball Game, whether or not that right is exercised. It does NOT include Paid
Admission Tickets. Clubhouse Paid Admission Tickets may be sold separately or in
conjunction with Paid Admission Tickets in packages or otherwise. Clubhouse Paid
Admission Tickets may be sold on the same ticket (the physical ticket) as a Paid
Admission Ticket, as reflected in the price of the ticket.
F. "Clubhouse Paid Admission Ticket Revenue" or "CTR" shall mean gross revenue
consisting exclusively of revenue generated from the sale of Clubhouse Paid Admission
Tickets. CTR shall NOT include the gross revenue attributable to the Paid Admission
Ticket. For purposes of determining CTR, the Parties will use the average price of Paid
Admission Tickets.
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G. "Complimentary Admission(s)" shall mean the right granted to any person to enter the
Stadium on the day of a TMO Home Baseball Game for which no monetary remuneration
is given. Complimentary Admission(s) shall include, but not be limited to, press passes,
staff passes, league passes, player passes and complimentary tickets, as well as the right
of access granted to TMO employees and personnel. Complimentary Admission(s) shall
not include the right to enter the Stadium on the day of a TMO Home Baseball Game
pursuant to a Paid Admission Ticket.
H. "Comprehensive Development Agreement" or "CDA" shall mean the agreement titled
"Comprehensive Development Agreement," entered into between the City, Developer, and
TMO, and fully executed on the same day as this Agreement.
I. "DGR" shall mean the designated gross revenue consisting exclusively of revenue
generated from the following sources, less i) any state sales tax paid by TMO on such
revenue; and ii)the actual cost to TMO of any Game Promotion:
1. Sale of Food and Beverage Concessions at TMO Home Baseball Games;
2. Sale of Paid Admission Tickets;
3. Rental of the Expandable Luxury Suites for use at TMO Home Baseball Games;
4. Sale of all Novelties and Souvenirs, both at the Stadium during TMO Home
Baseball Games and at the Stadium Souvenir Stores at any time during the term of
this Agreement, excluding internet sales; and
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5. Advertising revenue generated from all sources at the Stadium or on the Outfield
Development Parcel during the day of TMO Home Baseball Games.
6. All Banquet Center revenue including rental, leasing, licensing, advertising, tickets,
and food and beverages sold at any time of the year.
DGR shall NOT include MSENP, or CTR, which are defined separately in this
Agreement.
J. "Developer" shall mean that person or entity as defined in the CDA.
K. "Developer Units" shall mean those condominium units in the Outfield Development
Parcel which are owned by the Developer, as described more specifically in the
Condominium Documents as defined in the CDA and agreed to at Master Closing.
L. "Environmental Laws" shall mean all applicable environmental laws (whether statutory,
common law, or otherwise), rules, regulations, orders, permits, licenses, ordinances,
judgments and decrees of all governmental authorities (whether federal, state, local or
otherwise), including, without limitation, all laws regarding public health or welfare,
environmental protection, water and air pollution, composition of products, underground
storage tanks, Hazardous Materials, occupational health and safety, and/or nuisance,
trespass, and negligence.
M. "Expandable Luxury Suites" shall mean those five (5) Luxury Suites that are separated by
nonpermanent wall partitions so that each suite may be rented separately or in
combination with other such suites.
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N. "Food and Beverage Concessions" shall mean all food and beverage (both alcoholic and
non-alcoholic) products and services required or appropriate for, and sold or provided at,
any and all Stadium Events, whether through fixed or portable stands, machines or
vendors, including but not limited to, dining, Luxury Suite waitperson service, catering,
concessions vending, vending machines, roving vendors, snack bars and any other food
or beverages served at the Stadium.
O. "Food and Beverage Concessions Equipment" shall mean equipment required or appropriate
to store, prepare, display, service, distribute and sell food and beverage concessions at the
Stadium. The Parties understand and agree that the Food and Beverage Concessions
Equipment shall be consistent with the original equipment in the stadium and include
equipment similar to that found in minor league baseball facilities similar in quality to the
Stadium, including but not limited to, equipment related to preparing grilled food. "Fixed"
Food and Beverage Concessions Equipment shall be that equipment which is permanently
in the stands. "Portable" Food and Beverage Concessions Equipment shall be that
equipment which is located in the concourse. "Small" Food and Beverage Concessions
Equipment shall include items such as smallwear, kitchenware, silverware, cheese
dispensers, condiment dispensers,pots and pans, and any other like portable equipment used
to dispense food/beverages that are not part of the original agreement.
P. "Game Promotion" shall mean any attraction, performance, exhibition or event that is
conducted at or around the Stadium immediately before, during or immediately after a TMO
Home Baseball Game and that is designed to increase attendance at such games. The
Parties agree that Game Promotions shall include but not be limited to fireworks, musical
groups, baseball related contests, costumed characters, give-a-way items and other similar
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attractions. TMO further agrees to provide to the City, at TMO's earliest opportunity, notice
of its intent to employ such Game Promotion and any costs related thereto.
Q. "Hazardous Materials" shall mean any hazardous or toxic wastes, pollutants or
contaminants, substances or materials, including, but not limited to any radioactive
substances, hydrocarbons, industrial solvents, flammables or explosives, waste or used
oil, any "toxic, hazardous or contaminated substance" prohibited, limited or regulated
under the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. subsections 9601 et seq. ("CERCLA"), or the Resources
Conservation and Recovery Act, as amended, 42 U.S.C. subsections 6901, et seq., or in
the United States Department of Transportation Hazardous Materials Table, as amended,
49 C.F.R. 172,101, or under any applicable federal, state or local statutes, regulations and
ordinances, and any other substances or material which could presently or at any time in
the future cause a detriment to or impair the value or beneficial use of the Stadium or
constitute or cause a health, safety or environmental hazard on or off the Stadium or to
any person who may enter the Stadium or surrounding property or which may require
remediation at the behest of any governmental authority.
R. "Host Suites" shall mean one (1) TMO suite and one (1) City suite, more specifically
described in the Plans and Specifications.
S. "LEPFA" shall mean the Lansing Public Facilities and Entertainment Authority.
T. "Luxury Suites" shall mean those eighteen(18) suites each having a seating capacity of
ten(10)persons outdoors and each containing a wet bar. The Luxury Suites include all
suites except the Host Suites and Clubhouse.
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U. "Master Closing" shall mean that term as defined in the CDA.
V. "Master Schedule" shall mean the master development, construction and phasing for
Stadium Improvements and the Outfield Development Project schedule adopted pursuant
to the CDA.
W.. "Midwest League" shall mean the Midwest League of Professional Baseball Clubs,Inc.
X. "Minimum Guaranteed Payment" shall mean, and be equal to Three Hundred Fifty
Thousand and 001100 Dollars($350.000.00)annually.
Y. "MSU" shall mean Michigan State University.
Z. "Mutually Sponsored Event" shall mean an event co-sponsored by TMO and the City and
specifically excludes City Events, TMO Special Events, and TMO Home Baseball Games.
AA. "Mutually Sponsored Event Net Profit" or"MSENP" shall mean all gross revenue
generated at or because of a Mutually Sponsored Event, including but not limited to all
admission tickets for the Stadium or any part therein, Broadcast Rights,Novelties and
Souvenirs, advertising revenue, sponsorship revenue, and Food and Beverage
Concessions, less actual taxes paid, actual labor costs, actual food and beverage costs,
actual equipment rental fees, actual material costs, and actual entertainment fees, all of
which are attributable to the Mutually Sponsored Event.
AB. "Naming Rights Suite" shall mean the suite(s) occupied by the parties which have
purchased the Stadium Naming Rights or the Field Naming Rights.
8
AC. "National Association" shall mean the National Association of Professional Baseball
Leagues,Inc. of which the Midwest League is a member.
AD. "Novelties and Souvenirs" shall mean any product, item, device, souvenir, novelty, supply
or other personal property. Novelties and Souvenirs shall include but not be limited to,
baseball caps and hats, bats, baseball shirts, baseballs, baseball cards, baseball gloves,
baseball scorecards, programs, souvenir books and other related products which bear,
contain or display the logo, trademark, trade name or design of the Club, any Major League
Baseball club, any team of any league which is a member of the National Association or any
other professional baseball team. Novelties and Souvenirs shall specifically exclude TMO
Special Events Novelties and Souvenirs as defined below.
AE. "Outfield Development Parcel" shall mean that portion of the Stadium located between the
outfield wall and the northern fence of the Stadium, and more particularly described in
Exhibit F.
AF. "Outfield Development Project" shall mean that term as defined and described in the CDA,
and including both Stadium Units and Developer Units as defined therein.
AG. "Paid Admission Tickets" shall mean the right granted in consideration for monetary
remuneration to any person to enter the Stadium through the Stadium's turnstiles on the day
of a TMO Home Baseball Game,whether or not that right is exercised.
AH. "Permanently Affixed Stadium Signage" shall mean all advertising signage at the Stadium
whether flat, backlighted or otherwise, that is permanently affixed to any interior portion of
the Stadium including, but not limited to, the outfield fence(s), the concourse, the dugouts,
and on or attached to the structure which is constructed within the Outfield Development
9
Parcel, whether a Stadium Unit or Developer Unit. Permanently Affixed Stadium Signage
shall specifically exclude only Scoreboard Advertising.
Al. "Plans and Specifications" shall mean the final plans and specifications used for the
construction and build-out of the Stadium, specifically describing the design of the Stadium
and all included amenities, as modified or renovated from time to time.
AJ. "Professional Baseball Agreement" shall mean and refer to that certain Professional
Baseball Agreement, and all of its attachments, entered into by and between the National
League of Professional Baseball Clubs, Inc., the American League of Professional Baseball
Clubs, Inc. and the National Association, as such Professional Baseball Agreement may be
amended from time to time.
AK. "Regular Season" shall mean those professional baseball games that are played in any
calendar year by and between Midwest League franchise members or members of any
successor to the Midwest League pursuant to scheduling by and at the direction of the
Midwest League or any successor to the Midwest League excluding pre-season, spring-
training, exhibition, all-star,post-season or playoff games.
AL. "Renovation Funds" shall mean the funds as defined more particularly in the CDA.
AM. "Scoreboard Advertising" shall mean any and all advertising affixed to or displayed on the
Stadium scoreboard, including video and message center advertising.
AN. "Stadium" shall mean the minor league baseball stadium located in the City of Lansing at
the north side of Michigan Avenue between Cedar and Larch streets, and its playing field.
Stadium shall include only the structure and Stadium units within the perimeter of the walls
of the Stadium and field or berm fences and shall not include contiguous parking and/or real
10
property upon which the Stadium does not sit, or the Developer Units, as described in the as-
built Plans and Specifications.
AO. "Stadium Event" shall mean any TMO Home Baseball Game, TMO Special Event, City
Event, and/or Mutually Sponsored Event.
AP. "Stadium Improvements"shall mean that term as defined in the CDA.
AQ. "Stadium Services" shall mean and consist of the following:
1. Facility Services. The operation and staffing of the Stadium scoreboard, the public
address system, the box office, security within the Stadium necessary to assure the
reasonable safety of attendees, all ticket booths and ushering services, first-aid room,
and the opening and closing of the Stadium, and the operation of all Stadium
facilities at all Stadium Events.
2. Field Preparation. Field preparation in advance of baseball games which shall
include, but not be limited to, lining the field, preparation of the unsodded areas of
the field, installation of bases, restoration of the field surface as required, and such
other services needed to fully prepare the field for baseball games and Stadium
Events.
3. Field and Surrounding Grounds Maintenance. Shall include, but not be limited to,
maintenance of the playing field and interior landscaped areas of the Stadium, which
maintenance shall include periodic mowing, watering, fertilizing and other chemical
treatments required to maintain the field at professional stadium quality and the
exterior grounds in an attractive condition, specialized turf care as required, such as
aeration and other treatments which are required to maintain the quality of the field
I
as defined herein, recycling requirements, and the maintenance of all unsodded areas
of the field.
4. Janitorial Services. The cleaning and maintenance of the interior portions of the
Stadium during and after all Stadium Events, including the stocking of all restrooms
with paper products as required prior to such events, the pick up and disposal of all
trash collected from such areas immediately after such events, and any necessary
clean-up of trash and debris from public areas within and immediately surrounding
the Stadium prior to, and not to interfere with, subsequent events. All janitorial
services provided to the Stadium shall include all action necessary to maintain the
areas in a clean and attractive manner and in compliance with all legal requirements,
including those related to recycling.
5. Pre-Stadium Event Preparation. The preparation of the Stadium for any Stadium
Event as may be required, including, but not limited to, conversion of the playing
field for other athletic events, installation of any supplemental seating equipment,
installation of stage or platform equipment and/or temporary lighting that may be
required for the Stadium
AR. "Stadium Souvenir Stores" shall mean those stores located within the Stadium. One such
Stadium Souvenir Store shall have public access from outside the Stadium.
AS. "Stadium Units" shall mean those condominium units in the Outfield Development Parcel
which are owned by the City of Lansing, as described more specifically in the
Condominium Documents as defined in the CDA and agreed to at Master Closing.
AT. "Suiteholder" shall mean that third party patron that leases, licenses or rents the use of a
Luxury Suite.
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AU. "TMO Home Baseball Game" shall mean home games of the Club, as the phrase is used
throughout this Agreement, and shall mean all those baseball games at which the Club is a
participant, including pre-season, exhibition, regular season, post-season and play-off, and
postponed or rescheduled games and other games arranged, approved and regularly
scheduled by the Midwest League, its successors or assigns and scheduled to be played in
the territory for which the Club holds a franchise of the Midwest League, its successors or
assigns, except that any such game or games the playing of which in the Stadium is excused
under other provisions of this Agreement shall not be deemed a home game or games.
AV. "TMO Luxury Suites" shall mean those eleven (11) Luxury Suites that are not Host Suites,
the Naming Rights Suites(if any),Expandable Luxury Suites, or the Clubhouse.
AW. "TMO Special Event" shall mean any event that is scheduled by TMO pursuant to Article
IX(D) herein and conducted at the Stadium, that is not a City or a Mutually Sponsored .
This specifically excludes events scheduled in the Banquet Center.
AX. "TMO Special Event Novelties and Souvenirs" shall mean any product, item, device,
souvenir, novelty, supply or other property directly related to any TMO Special Event.
AY. "Utilities" shall mean all electric, gas,sewage, and water services utilized at the Stadium.
ARTICLE 111.
TERM AND TERMINATION
A. Term Of Agreement and Termination of Previous Stadium License, Lease, and Service
Agreement executed October 24, 2005. The current Stadium License, Lease, and Service
Agreement, as amended, shall continue until and terminate on January 1, 2015, at 12:00
13
AM. This new agreement will commence thereafter and run for a term of 20 years, expiring
at December 31, 2034, at 11:59 PM.
B. Termination Of Agreement.
1. Termination by the City. Except as additionally provided or qualified in
Article XXIII and Article XX, and notwithstanding Paragraph A above, the City
shall have the right to terminate this Agreement by providing written notice to TMO
at any time if:
a. TMO loses the franchise granted to it by the Midwest League and does not
within ninety(90)days acquire another minor league baseball franchise;
b. The Midwest League dissolves and TMO does not, within ninety (90) days,
acquire another minor league franchise acceptable to the City; or
C. TMO fails to conduct fifty-five (55) Regular Season TMO Home Baseball
Games during any calendar year.
ARTICLE IV.
CITY'S OBLIGATIONS
In consideration of the covenants,terms, and conditions set forth in this Agreement,the City
and TMO agree as follows:
A. Stadium.
1. Plans and Specifications and Improvements. TMO agrees that the City may directly
or indirectly make changes to the Stadium and Outfield Development Parcel as set
forth in the separate CDA and otherwise in this Agreement. After those alterations
and modifications, and others necessary to effectuate the intent of the CDA, are
14
made, absent an agreement by TMO, the City shall not alter or modify any of the
following revenue-generating items at the Stadium: major advertising locations (i.e.,
outfield fence, dugout and concourse), number of seats, number and location of
concession areas, number and location of novelty and souvenir sale locations
(including the walk-in store that will be accessible from outside the Stadium), box
office, administrative office space, storage space, Luxury Suites, picnic areas and
grilling capabilities.
2. Capital Improvements to the Stadium. The City agrees to future investments in
Stadium capital improvements as outlined herein. Said Capital Improvement Plan
("CIP") payments shall be made based on an annualized CIP mutually agreed to
and presented by October 1 of the year preceding the next City fiscal year in
which the improvements are to be made. The CIP obligation shall be for up to
the following minimum and maximum amounts in each City fiscal year:
2015-2017 $0.00 (none)
2018-2021 $50,000.00 per fiscal year minimum
$75,000.00 per fiscal year maximum
2022-2024 $75,000.00 per fiscal year minimum
$100,000.00 per fiscal year maximum
2025-end $100,000.00 per fiscal year minimum
$200,000.00 per fiscal year maximum
In the event the City and TMO are unable to reach a mutually agreed annual CIP,
then the Parties shall submit their dispute to the alternative dispute panel as set
forth in Article XXV, Section(Z).
In 2025 a new jointly funded and commissioned facilities study of the Stadium
will be done to determine if repairs and upgrades are necessary.
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3. Financing. It is understood that the City will arrange and obtain any financing as it
deems necessary for the Capital Improvement Program.
B. Parking. All parking referenced herein is as-shown on Exhibit"F."
1. TMO Home Baseball Game and TMO Special Event Parking. For the term of this
Agreement and at no cost or expense to TMO, the City shall maintain parking
surrounding the Stadium that meets or exceeds the standards of the Professional
Baseball Agreement. As to the price charged each automobile utilizing such parking
in conjunction with a TMO Home Baseball Game or TMO Special Event, due
consideration shall be given to parking charges at other Single"A"baseball stadiums
in the Midwest League. Therefore, the Parties agree that they will submit a joint
recommendation to the Lansing City Council consistent with the intent that the cost
of parking shall not exceed two thirds (2/3) of the lowest priced Paid Admission
Ticket, it being agreed in advance that such ticket price shall not be less than Eight
Dollars ($5.00). If the lowest priced Paid Admission Ticket does not increase
proportionately with any increases in other Paid Admission Tickets sold by TMO,
then this provision or restriction on the joint recommendation of the City and TMO
to the Lansing City Council with respect to the price of parking for TMO Home
Baseball Games and TMO Special Events shall not apply. The City shall retain
without offset all revenue generated from such parking fees.
2. Premium Parking Lots. To the extent that it does not conflict with the terms and
conditions of this Article, it is the intent of the Parties that the parking spaces located
in City Lot 21 shall be designated a premium lot, thereby permitting such lot to be
sold or rented for Five Dollars ($5.00) or such greater amount as may be agreed to
16
by the Parties. In such event City Lot 21 is permanently disposed of or is
unavailable for use due to a pre-scheduled Lansing Center event, the Parties shall
mutually agree to substitute parking for the premium lot. Such premium spaces may
be sold or rented to third party purchasers who shall be entitled, for an annual
payment, to park in such premium lots at each TMO Home Baseball Game for the
applicable baseball season. TMO shall have the right to sell up to sixty (60) spaces
of such premium parking, unless TMO and the City agree in writing to modify this
amount. All parking revenue collected by TMO shall be due and payable to the City
on the same accounting schedule as set forth for DGR in Article XN, Section A.1. If
additional City-owned or controlled parking becomes available within a reasonable
distance, the City reserves the right to add or substitute it for the required premium
lots.
The City retains the absolute right to market, develop, or sell property where spaces
are located, including but not limited to said premium parking lots. In the event
parking spots are disposed of, the City will explore,but cannot guarantee,providing
public parking spots in the public or private development. In the event premium
parking is disposed of, the Parties acknowledge the City may not be able to provide
60 premium parking spaces, in which case the City will attempt to provide the lost
spaces at nearby City facilities.
3. Weekday Game Parkin. Notwithstanding anything herein to the contrary, in the
event that a TMO Home Baseball Game commences during normal business hours
(9:00 a.m. to 5:00 p.m.) on a weekday (Monday through Friday), the City shall use
the pricing structure described above in Subparagraph 1 at a parking garage or lot
17
selected by the City for use by attendees of TMO Home Baseball Games. All other
lots/garages shall be subject to the normal parking charges during such period.
4. TMO Parkin. In addition to the parking provided above, to the extent legally
permissible,the City shall provide to TMO:
a. TMO Employee Parking. Twenty-five (25) free parking spaces to be used at
any time (year-round) during the term of the Agreement by TMO's staff
members. Twenty(20) of these twenty-five TMO staff member spaces shall
be located in City Lot 49A, and five (5) of the TMO staff member spaces
shall be located in the Southwest Plaza(Lot 52).
b. Seasonal Staff and Player Parking. Forty(40) free parking spaces, located in
City Lot 49A, that will be available for TMO use at any time from April 1
until Septemberl5 for full-time seasonal staff and players.
C. During all TMO Home Baseball Games and TMO Special Events, for the
use of its VIP's and Suiteholders of TMO Luxury Suites, fifty-five (55) free
parking spaces in close proximity to the Stadium. Twenty-five (25) of these
spaces shall be located in the Southwest Plaza (Lot 52), with the remaining
thirty(30) spaces located in either City Lot 21 or City Lot 49, as determined
by the City. In such event a parking location identified in this Section is
either permanently disposed of or is unavailable for use due to a pre-
scheduled Lansing Center event, the Parties shall mutually agree to a
substitute parking location.
5. Stadium Souvenir Store Parkin. Except during TMO Home Baseball Games, TMO
Special Events and City Events, the City will reserve, at all times, at least five (5)
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parking spaces in close proximity to the Stadium Souvenir Store. Such parking
spaces shall:
a. Be intended for the use of Stadium Souvenir Store patrons (TMO will prohibit its
staff from using these spaces);
b. Permit thirty(30)minutes of free parking; and
c. Be located in the parking area immediately south of the main entrance to the
Stadium.
6. TMO Banquet Center and TMO Special Event Parking—TMO has the right to
presell parking spaces in the Southwest Plaza(Lot 52) and Southeast Plaza(Lot
53) on weekday evenings (after 5pm) and weekends for exclusive customer use
during TMO Banquet Center or TMO Special Events. Any parking sold would be
at market rate (currently$6.00 per space), and must be sold by the whole Lot. A
TMO customer can purchase access to either all spots in Lot 52, all spots in Lot
53, or all spots in both Lots, but may not purchase portions of each Lot. City shall
retain without offset all revenues generated from such parking fees. Sold Lots
will be staffed by the City, and TMO must provide at least fourteen(14)days
advanced notice to the City prior to an event for which parking in Lots 52 or 53
has been sold. TMO recognizes that this parking is on a first-come, first-served
basis, and this is not a guarantee of parking availability
7. TMO Home Baseball Game Bus Parking. For the term of this Agreement and at no
cost to TMO, the City will cap all public parking meters on the north side of the 500
block of N. Michigan Ave during and at least two hours prior to each TMO Home
Baseball Games for the use of the visiting team bus and other game-related bus
19
parking. In the event additional bus parking is needed, the City will use reasonable
efforts to cap additional public meters on the south side of the 500 block of N.
Michigan Ave. Separately, during no more than five (5) TMO Home Baseball
Games per season that commence during normal business hours (4:00 a.m. to 5:00
p.m.) on a weekday (Monday through Friday), the City will provide TMO with free
parking for school buses and other similar buses transporting patrons to the game.
This bus parking will be provided in City Lot 37. In such event City Lot 37 is either
permanently disposed of or is unavailable for use due to a pre-scheduled Lansing
Center event,the Parties shall mutually agree to a substitute parking location.
8. All Parking obligations addressed in this Section B are exclusively for Stadium
operational purposes. None of the parking discussed is intended, nor shall it be
used for, the private components of the Outfield Development Project as set forth
in Article XXIV.
C. Parking Maintenance. The City shall assure access to, and perform all required maintenance
on, the parking described in Paragraph B including but not limited to reasonably required
snow removal and resurfacing.
D. Stadium Maintenance. The City shall perform all major maintenance, restoration,
replacement and repairs of the Stadium and all components thereof, of whatever
kind and nature, foreseen or unforeseen, as may be necessary to keep the Stadium in
good condition and repair, reasonable wear and tear excepted, including but not
limited to the major maintenance,restoration,repair and replacement of all structural
and concrete components, all heating, air conditioning, ventilating, plumbing, and
electrical systems,playing surface replacement, field drainage systems, field lighting
20
system (including field lighting installation and reinstallation), Stadium lighting,
grandstands, sound system, seating, bleachers, elevators, entry way area, glass,
walls, roof,parking area, sidewalks and exterior landscaping maintenance, excluding
there from the following, all of which shall be the responsibility of TMO: i)
damages or repairs necessitated by the negligence of TMO or the team; and ii) all
ordinary maintenance as set forth in Exhibit A. Except as to Stadium matters
described as Field Preparation and Field and Surrounding Grounds Maintenance,the
City shall conduct all necessary preventative and long-term repairs, replacements
and maintenance of such systems as may be required. The City shall be responsible
for the costs of annual maintenance contracts for: i) I VAC, and ii) elevators. TMO
shall be responsible for the cost of annual inspection/recharging (but not
replacement) of the fire extinguishers. The Parties shall split the cost equally of the
annual Food and Beverage Concessions Equipment maintenance contract. Disputes
regarding what is a City maintenance responsibility and what is a TMO maintenance
responsibility shall be submitted to dispute resolution as outlined in Article XXV
(Z).
E. Securi1y.
1. Stadium Security. In the area surrounding the Stadium, the City shall be
responsible for security pursuant to its police powers.
2. City's Right to Eject. Notwithstanding anything in this Agreement to the contrary,
the City shall retain the right to eject from the Stadium objectionable individuals.
F. Food and Beverage Concessions Equipment. The City shall provide the Fixed Food and
Beverage Concessions Equipment. The Fined Food and Beverage Concessions Equipment
21
shall remain the property of the City with TMO being granted the exclusive license to use
such fined equipment in connection with TMO's exclusive license to all Food and Beverage
Concessions at the Stadium.
TMO shall provide, replace as reasonably necessary, and maintain all
Portable and Small Food and Beverage Concessions Equipment. Replacement
of Food and Beverage Concessions Equipment may be part of the Capital
Improvement PIan(s) referenced in Article IV, Section A(2), in the event the Parties
are able to mutually agree as set forth therein.
G. Monthly Walk-throughs. The Parties shall conduct a monthly walk through of the Stadium
for the purpose of reviewing Stadium maintenance, cleanliness, safety, damages, and other
items of mutual concern. This walk-though shall be conducted at least once each calendar
month at a time and date mutually agreed by the Parties, and shall be conducted by the
Parties' respective designees walking together through the Stadium. The Parties may
choose to dispense with a monthly walk-through, provided they mutually agree in writing in
advance.
ARTICLE V.
TMO'S OBLIGATIONS
In consideration of the covenants, terms and conditions set forth in this Agreement, the City
and TMO agree as follows:
A. TMO Home Baseball Games. For the term of this Agreement, TMO shall cause the Club to
play all of its home baseball games at the Stadium and, consistent with Article XVI,
covenants to play a minimum of fifty-five (SS) regular season home games at the Stadium.
B. Stadium Services.
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1. At TMO Home Baseball Games and TMO Special Events. At TMO's sole cost and
expense, TMO will provide Stadium Services throughout the Stadium at TMO
Home Baseball Games and TMO Special Events TMO will retain, employ,
compensate, train and manage sufficient numbers of personnel to provide such
services in a high quality and professional manner.
2. At City Events. Pursuant to a timely request by the City, TMO may provide
Stadium Services at City Events or alternatively, the City may provide Stadium
Services at City Events. The Food and Beverage Concessions Equipment, the
Stadium scoreboard, the scoreboard integrated sound system, if any, and/or box
office ticketing equipment and computer system shall be available to the City for
City Events only if TMO provides operators for such equipment. TMO agrees not
to bind the City in any way to the exclusive use of a professional ticketing agency
should the City elect not to utilize this service of TMO for City Events. In order to
allow TMO the opportunity to arrange appropriate staffmg for City Events, City
agrees to use its best efforts to make each request for such Stadium Service not less
than ten (10) days prior to the City Event at which such Stadium Services are to be
provided by TMO. TMO will retain, employ, compensate, train and manage
sufficient numbers of personnel to provide such services in a high quality and
professional manner. The City shall pay to TMO pursuant to Article XIV below,
only the actual cost of such staffmg services actually used by the City.
3. Field Preparation and Field and Surrounding Grounds Maintenance.
Notwithstanding anything in this Agreement to the contrary, at all times during the
terra of this Agreement, TMO shall be solely responsible for the Stadium Services
23
described as Field Preparation and Field and Surrounding Grounds Maintenance for
all baseball games held at the Stadium. In satisfaction of this obligation, TMO will
utilize, to the greatest reasonable extent possible, the expertise of MSU. Consistent
therewith, TMO will endeavor to employ at least one (1) MSU trained individual
possessing such expertise.
4. Stadium Operations Plan. TMO shall comply with the Stadium Operations Plan
attached to this Agreement as Exhibit B.
5. Scoreboard.
a. Description. At no cost to the City, TMO will provide at the Stadium a
professional quality scoreboard that meets or exceeds the requirements of the
Professional Baseball Agreement in a location as indicated in the Plans and
Specifications. Said scoreboard and the advertising thereon shall be subject
to the right of reasonable approval of the City. Such scoreboard will have i)
enhanced message centers, ii) video capabilities, iii) panel displays capable
of affixing advertising signage and iv) sufficient surface area to prominently
display the identification of any entity owning the naming rights to the
Stadium.
b. Maintenance and Replacement: TMO shall be exclusively responsible for all
matters and costs related to the installation, maintenance, repairs and
replacement of the scoreboard. Pursuant to the specifications, terms, and
conditions of the CDA, TMO agrees to replace the scoreboard before the
first TMO Home Baseball Game held in 2015 at its sole expense.
C. Ownership. Subject to the covenants, terms and conditions of this
24
Agreement, TMO shall retain ownership of such scoreboard for the term of
this Agreement. The City will use its best efforts to assist TMO in the
attainment of all easements, permissions and permits necessary to
permanently locate such scoreboard in the Stadium. Upon termination of
this Agreement for any reason other than the City's breach, TMO will
transfer to the City ownership of such scoreboard without cost to the City,
free and clear of all liens and encumbrances.
ARTICLE VI.
CONCESSIONS
A. Concessions Manager. In consideration of the covenants, terms and conditions set forth in
this Agreement, TMO and the City agree that TMO shall act as the exclusive
Concessions Manager on behalf of the City, consistent with Paragraphs B through E
below, and shall itself or through its assignee develop, market and operate:
I. All Food and Beverage Concessions and Food and Beverage Concessions
Equipment at all Stadium Events;
2, All Novelties and Souvenir sales at the Stadium and the Stadium Souvenir Stores at
TMO Home Baseball Games and TMO Special Events; and
3. All TMO Special Event Novelties and Souvenirs at all TMO Special Events.
B. Exclusivity. Nothing contained in this Agreement shall be construed to limit the City from
selling or authorizing a third party to sell Novelties or Souvenirs at City Events,
provided that, but for MSU or non-profit entity related Novelty and Souvenirs sold
at City Events, the City will not at any time sell or authorize the sale of i) any
25
baseball-related souvenirs, devices, items or other baseball related personal property
at the Stadium (except items directly related to a City event which is being held at
the time of the sale); ii)Food and Beverage Concessions by Parties other than TMO;
or iii) Novelties and Souvenirs and/or TMO Special Event Novelties and Souvenirs
at TMO Home Baseball Games and/or TMO Special Events. Notwithstanding
anything herein to the contrary, the City shall solely retain without offset all revenue
from the sale of City Event related Novelties and Souvenirs at the Stadium during
City Events.
C. Menu Approval. On or before February 1 of each year of this Agreement,TMO will submit
to the City, for approval by the City, a proposed menu and prices of food and
beverages for the upcoming year. Such menu shall specifically describe each item
of food and beverage to be offered and the price at which each such item will be
sold, it being the understanding of the Parties that the price charged for each such
item will be consistent with the prices charged for similar items at other stadiums
and entertainment facilities in the region. The City will not unreasonably withhold
or delay its approval of such menu and in the event of disapproval, will suggest
acceptable modifications.
D. Performance and Notice. Consistent with the terms and conditions of Paragraph A above,
TMO agrees to provide Food and Beverage Concessions at all City Events. In order
to allow TMO to arrange adequate staffing, the City will use its best efforts to notify
TMO of such City Event not less than twenty (20) days prior to such City Event.
For the term of this Agreement, the City will not use or authorize any third party to
use the Food and Beverage Concessions Equipment at the Stadium.
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E. Compliance. In the exercise of the concession management rights granted to it in this
Article, TMO shall comply with all state and local laws, statutes, rules, regulations
and requirements (including licenses and permits)pertaining to the sale of food and
beverages (including alcoholic beverages).
ARTICLE VII.
NAMING RIGHTS
A. Stadium Naming Rights. The City and TMO currently have a stadium naming rights
agreement with Thomas Cooley Law School ("Cooley"). In the event the existing
Stadium naming rights agreement with Cooley expires or is terminated for any
reason, then TMO shall have the right to market and sell, lease, or license the
naming rights to the Stadium for a period of time no longer than the remainder of the
term of this Agreement. In that event, the City and TMO shall split the gross
revenue less costs to execute the package (not including marketing and sales costs)
from the sale of said rights equally. TMO shall not enter into any Stadium naming
rights agreement without the prior approval of the City,which shall have the right to
refuse approval for any reason. No revenue received by the City or benefit given to
such naming entity, shall be included in DGR.
The purchaser, lessee, or licensee of Stadium Naming Rights will receive
from the Parties the following identification:
I. In any written statement, including but not limited to tickets related to all Stadium
Events, the City and TMO will use the name and logo of the entity securing such
27
Stadium naming rights. The party securing the naming rights shall have the right, as
a third party beneficiary, to enforce the rights in the preceding sentence;
2. The identification of the entity securing such Stadium naming rights will appear in a
prominent position on the Stadium's scoreboard as described in Article V above;
and,
3. TMO agrees that it shall not print any advertisement on its tickets, nor allow any
advertisement on the Stadium Scoreboard, that conflicts with the major or material
products or services advertised or offered for sale by the owner, lessee or licensee of
such Stadium naming rights. Nor shall TMO engage a sponsor of a major give-
away for or naming rights to a TMO Home Baseball Game or TMO Special Event
which sells major or material products or services that conflict with the major or
material products or services advertised or offered for sale by the owner, lessee or
licensee of the Stadium naming rights.
B. Stadium Name. TMO agrees that whenever it uses the Stadium's name on any material, it
shall use the full name of the Stadium.
C. Naming Rights Suite. If the holder of the naming rights obtains exclusive use of a Naming
Rights Suite, it shall be licensed to the holder of the naming rights and the revenue shall be
divided in the same manner as the revenue from the sale of the naming rights as set forth
above. If the holder of the naming rights does not obtain a Naming Rights Suite, then it will
be treated as an annual TMO Luxury Suite.
D. Field Naming Rights. The City and TMO currently have a field naming rights
agreement with Jackson National Life Insurance Co. ("JNL"). In the event the
existing field naming rights agreement with JNL expires or is terminated for any
28
reason, then TMO shall have the right to market and sell, lease, or license the
naming rights to the field for a period of time no longer than the remainder of the
term of this Agreement. In that event, the City and TMO shall split the gross
revenue less costs to execute the package (not including marketing and sales costs)
from the sale of said rights equally. TMO shall not enter into any field naming
rights agreement without the prior approval of the City, which shall have the right to
refuse approval for any reason. No revenue received by the City or benefit given to
such naming entity, shall be included in DGR.
E. Field Name. TMO agrees that whenever it uses the field's name on any material, it shall use
the full name of the field.
F. Naming Rights Suite. If the holder of the field naming rights obtains exclusive use
of a Naming Rights Suite, it shall be licensed to the holder of the field naming rights
and the revenue shall be divided in the same manner as the revenue from the sale of
the Stadium naming rights as set forth above. If the holder of the naming rights does
not obtain a Naming Rights Suite, then it will be treated as an annual TMO Luxury
Suite.
ARTICLE VIII.
STADIUM USE
A. TMO's Rights and Obligations. The City and TMO agree that TMO shall have the
following rights and obligations related to the use of the Stadium:
B. TMO Home Baseball Games and TMO Special Events.
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1. Scope. TMO shall have exclusive use of the Stadium for the conduct of TMO
Home Baseball Games and TMO Special Events as the same have been specifically
scheduled pursuant to Article IX below. Such use shall include the period of time
from 7:00 a.m. on the date scheduled until 12:00 a.m. (midnight)on said date,unless
extended with permission of the City on any particular day. Except as limited in
Paragraph B of this Article, such use shall encompass the entire Stadium. Without
the prior approval of TMO and to the extent legally permissible, the City shall not
conduct or authorize or permit any other individual or entity to conduct professional
baseball at the Stadium.
2. Ticketing. TMO shall be exclusively responsible for all ticket printing, sales and
distribution related to TMO Home Baseball Games and TMO Special Events. In
satisfaction of this obligation, TMO shall have the right to designate the
identification of seating at the Stadium and to conduct such ticket sales at the
Stadium box office at all times it deems proper. TMO may issue up to 275
Complimentary Admissions each TMO Home Baseball Game to TMO and visiting
team personnel, guests and officials and representatives of the media. TMO and the
City recognize that TMO is required to honor, as a member of the Midwest League,
Complimentary Admission passes granted to members of the Midwest League and
National Association and that such Complimentary Admissions will be in addition to
the Complimentary Admissions discussed in the preceding sentence. All
Complimentary Admission press passes, staff passes, league passes and player
passes issued by TMO, shall be of a form previously approved by the City with such
approval not to be unreasonably withheld. In addition, not less than sixty(60) days
30
prior to the commencement of each Regular Season, TMO will present to the City
an exemplar of all other Complimentary Admission passes issued by the Midwest
League, the National Association or Major League Baseball that will be honored at
TMO Home Baseball Games. TMO shall not have the right to sell or allow the sale
of tickets at the Stadium box office for events other than TMO Home Baseball
Games and TMO Special Events without the express written approval of the City.
TMO shall have the right to charge any amount it deems appropriate for Paid
Admission Tickets to TMO Home Baseball Games and tickets to TMO Special
Events with due consideration to prices charged at other similar stadiums in the
region comprising the Midwest League.
C. TMO Home Baseball Game Promotion Tickets. In addition to Paid Admission Tickets
provided for Luxury Suite and Host Suite usage as described in this Article, at the beginning
of each Regular Season, TMO shall provide to the City, for the City's public relations
purposes, a block of thirty-four(34) Complimentary Admission passes at a mutually agreed
upon location within the Stadium for each TMO Home Baseball Game.
D. Suites.
I. TMO Luxury Suites. Subject to Article VII, for the term of this Agreement, TMO
shall have the right to effectuate the lease, license or rental for the use of the TMO
Luxury Suites upon terms, conditions and a form of agreement approved by the City
and TMO. The City shall be the contracting entity for such TMO Luxury Suites
with all indemnification, release and other benefits from such Suiteholder flowing
through to TMO as a third party beneficiary. The City hereby grants TMO the right
to enforce and prosecute all obligations, duties and rights under such agreements.
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Every agreement with a Suiteholder shall contain a provision allowing an option to
be held by the Suiteholder allowing such Suiteholder to sublease or sublicense to the
City and/or TMO, upon terms agreed to between such Suiteholder and the City
and/or TMO, the use of such Suiteholder's Luxury Suite at City Events and/or TMO
Special Events. The lessee, licensee or renter shall have the following benefits:
a. Choice of build-out options as designated by the City in good faith
consultation with TMO and at Suiteholders'cost and expense;
b. Ten(10)tickets to each TMO Home Baseball Game;
C. The right to purchase from the City, at a reasonable price,ten(10)tickets to
each City Event;
d. The right to purchase from TMO, at a reasonable price, ten (10) tickets to
each TMO Special Event; and
e. Full waitperson services at each Stadium Event at which TMO is operating
Food and Beverage Concessions.
All revenue generated from such lease, license or rental shall be subject to the
provisions of Article XIV.
2. Clubhouse. For the Term of the Agreement, TMO shall have the exclusive right
to license, lease, or rent the use of the Clubhouse. The City hereby grants TMO
the right to enforce and prosecute all obligations, duties and rights under such
agreements. Such license, lease, or rental shall be made on an event-by-event
basis and CTR shall be subject to Article XIV below.
3. Expandable Luxury Suites. Only TMO shall have the right to rent the use of the
Expandable Luxury Suites at each TMO Home Baseball Game and at TMO Special
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Events. Such rental shall be made on an event-by-event basis and revenue generated
from such rental shall be subject to Article XIV below.
4. Host Suite. For the term of this Agreement, TMO shall have the exclusive use of
one (1) Host Suite. Such use shall entitle TMO to the following benefits:
a. Thirty Two (32)tickets to each TMO Home Baseball Game;
b. Thirty Two (32)tickets to each TMO Special Event; and
C. Full waitperson services at each Stadium Event that TMO is operating Food
and Beverage Concessions.
E. Access for TMO Training. Upon advance notice to the City, TMO shall have the right of
access to and use of the Stadium playing field and locker rooms in order to conduct
baseball-related training, upon advance notice to the City provided that such access and use
shall in no way interfere with the schedule, preparation or conduct of a City Event. All
TMO baseball-related training shall be conducted at TMO's sole cost and expense.
F. Administrative Offices. In order to facilitate the satisfaction of its obligations undertaken
pursuant to this Agreement, TMO shall at all times during the term of this Agreement have
the right of access to and use of at least Two Thousand Seven Hundred(2,700) square feet
of administrative office space in the Stadium. Such office space shall be suitably finished
for use as an office, excluding furniture, interior decorating, office equipment and fixtures.
G. Stadium Souvenir Stores and Box Offices. During the term of this Agreement TMO shall
have the exclusive right to occupy and operate with the exception of City Events, at any
time TMO deems appropriate, the Stadium Souvenir Stores and Stadium box office
connected to the administrative offices that are used by TMO. Any revenue generated from
such operation shall be subject to the provisions of Article XIV.
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H. The City's Rights and Obligations. Notwithstanding Paragraph A of this Article, the City
does not relinquish and does herein and hereby retain all ownership rights and
control associated with the Stadium. Therefore, all duly authorized representatives
of the City shall have access to all areas of the Stadium at any time and on any
occasion, provided that any such representative, other than any City operating
personnel assigned to the Stadium must have either a Complimentary Admission or
Paid Admission Ticket in order to observe a TMO Home Baseball Game or TMO
Special Event. The City does hereby retain the right to enforce all necessary and
proper rules for the management,operation and control of the Stadium.
Consistent with its ownership of the Stadium and with TMO's rights as granted in
this Agreement, the City and TMO agree that the City shall have the following rights and
obligations related to the use of the Stadium:
I. City Events.
1. Scope. Subject to TMO's right to use exclusively the Stadium administrative
offices, Food and Beverage Concessions areas, box office, home team locker room
and the Stadium Souvenir Stores as such exclusive use is granted by this Agreement,
the City shall have exclusive use and control of the Stadium for any and all events
other than TMO Home Baseball Games and TMO Special Events. In exercising
such use and control, the City shall give due consideration to the potential
deterioration of the Stadium's playing surface.
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2. Ticketing. The City shall be exclusively responsible for all ticket printing, sale and
distribution related to City Events. The City shall have the right to charge any
amount it deems appropriate for tickets to City Events.
J. Suites.
1. Clubhouse. For the Term of the Agreement, TMO shall have the exclusive right to
license, lease, or rent the use of the Clubhouse. The City hereby grants TMO the
right to enforce and prosecute all obligations, duties and rights under such
agreements. Such license, lease, or rental shall be made on an event-by-event basis
and CTR shall be subject to Article XIV below.
2. TMO Luxury Suites. The City shall be the contracting party for the TMO Luxury
Suites with all indemnification, release and other benefits from such Suiteholders
flowing through to TMO as a third party beneficiary. The City hereby grants TMO
the right to enforce and prosecute all obligations, duties and rights under such
agreements. TMO however, shall have the right to effectuate the lease, license or
rental of the TMO Luxury Suites by producing to the City a prospective Suitcholder
ready, willing and able to enter into such agreement. For each TMO Luxury Suite
leased, hcensed or rented, the City shall provide to such lessee, licensee or renter the
opportunity to purchase, at a reasonable price, ten(10)tickets to each City Event.
3. Expandable Luxury Suites. The City shall have the exclusive right to rent the use of
the Expandable Luxury Suites at City Events and at other times when TMO is not
conducting a TMO Home Baseball Game or TMO Special Event. The City shall
have the right to retain without offset any revenue generated from such lease, license
or rental.
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4. Host Suite. The City shall have the exclusive use of one (1) Host Suite. Such use
shall entitle the City to the following benefits:
a. Thirty Two (32)tickets to each TMO Horne Baseball Game;
b. Thirty Two (32)tickets to each City Event;
C. Full waitperson services at each Stadium Event that TMO is operating Food
and Beverage Concessions;
d. The City shall receive a forty percent (400,,0) discount oft retail value on all
food and beverages purchased in the City Host Suite.
K. Message Centers. At all times during the term of this Agreement, the City shall have the
exclusive right and responsibility to control the use and operation of Message Centers
located on Michigan Avenue or at any other location adjacent to the Stadium.
Notwithstanding the foregoing, the City agrees to allow TMO, without charge, to advertise
TMO Home Baseball Games and TMO Special Events on such Message Centers in an
amount and frequency to be agreed to between the Parties. Any revenues generated from
the sale of advertising on the Message Centers shall be retained without offset by the City.
L. Mutually Sponsored Events
1. Scope. Notwithstanding the provisions in this Article V1II regarding TMO Home
Baseball Games, TMO Special Events, and City Events, the Parties shall each at
their respective sole and absolute discretion, have the right to jointly conduct
Mutually Sponsored Events. Any Mutually Sponsored Event shall be by written
agreement between the Parties only. The written agreement shall contain the
period of time the Stadium shall be available for the Mutually Sponsored Event
and, unless otherwise stated, shall encompass the entire Stadium.
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2. Scheduling. Any Mutually Sponsored Event must be scheduled in accordance
and conformity with Article IX.
3. The City's Rights and Obligations. Unless otherwise mutually agreed to in
writing by the Parties at their respective sole and absolute discretion, the City
shall be responsible for the following actual costs for a Mutually Sponsored
Event: production,talent buying, field protection and setup, seating setup, ticket
selling, required police and fire, fifty percent(50%)of mutually agreed upon
marketing expenses, and event coordination.
4. TMO Rights and Obligations, Unless otherwise mutually agreed to in writing by
the Parties at their respective sole and absolute discretion, TMO shall be
responsible for the following actual costs for a Mutually Sponsored Event: Food
and Beverage Concessions, setup and cleanup of the Stadium,Novelties and
Souvenirs,preparation and repair of turf, Stadium Services, and fifty percent
(50%) of mutually agreed upon marketing expenses.
5. Best Practices. Both Parties agree to use best practices in the conduct of a
Mutually Sponsored Event and to keep the other Party fully informed of their
progress and any unusual expenses related to the Mutually Sponsored Event.
6. No Agency. Neither Party shall have the authority to obligate the other. Nothing
herein shall be construed to create an agency, servant, or employee relationship
between TMO and any of its employees, officers, or agents, and the City and any
of its employees, officers, or agents.
7. Sponsorship of Mutually Sponsored Events. The Parties may desire to obtain
sponsors for Mutually Sponsored Events and recognize that revenue may be
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maximized by coordination of activities. Therefore, on an event-by-event basis,
the Parties will communicate with each other in advance and coordinate their
activities with regard to sponsors. Sponsorship agreements require the mutual
consent of both Parties.
M. Banquet Center.
1. Use During Stadium Events. The Banquet Center shall be operated as part of the
Stadium and used to provide services to Stadium patrons. All Stadium patrons in the
Banquet Center shall be ticketed in accordance with this Agreement. All covenants,
terms, and conditions, including financial obligations of this Agreement, shall apply
to TMO's use of the Banquet Center, and all revenue generated by or within the
Banquet Center shall be considered part of DGR.
2. Use During All Non-Stadium Events. TMO shall have the exclusive right to
license, lease, or rent the use of the Banquet Center. The City hereby grants TMO
the right to enforce and prosecute all obligations, duties and rights under such
agreements. Such license, lease, or rental shall be made on an event-by-event
basis. No event shall exceed the established seating capacity of the Banquet Center
on each floor. On the first floor, the maximum seating capacity shall be as
established by the Fire Marshall. On the second floor, the maximum seating
capacity shall be no more than one hundred fifty(150). All covenants and financial
obligations of this Agreement shall apply to TMO's use of the Banquet Center, and
all revenue generated by or within the Banquet Center shall be part of DGR. TMO
shall manage and operate the Banquet Center in accordance with best practices in
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the industry. TMO will not actively solicit events or business already procured at
other City owned event facilities.
ARTICLE IX.
SCHEDULING
The City and TMO agree that there is a need for the scheduling of events at the Stadium. As
such, the Parties have adopted, for implementation each year of this Agreement, the following
scheduling procedure:
A. Proposed TMO Schedule. On or before March 1 of each immediately preceding year, the
City shall deliver to TMO those dates upon which the City desires to conduct City
Events at the Stadium during such applicable year. In the event that TMO provides
the City with reasonable notice that the Midwest League intends to formulate its
schedule prior to January 15, the City must provide TMO with such desired dates as
soon as practicable after TMO's notice. Upon receipt thereof,TMO will request that
the Midwest League schedule TMO Home Baseball Games to accommodate such
City desired dates. TMO agrees to request that the Midwest League accommodate
these events in its scheduling. The Parties acknowledge that the Midwest League is
the final and sole authority as the TMO Home Baseball Game schedule, but TMO
shall use its best efforts to urge the Midwest League to accommodate TMO's
request. The Parties agree that the number of pre-season,post-season and exhibition
games conducted by TMO shall not exceed fifteen(15)during each calendar year.
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B. Approved TMO Schedule. On July 1 of the year preceding each license year or when
received from the Midwest League, whichever is later, TMO will submit to the City
its Midwest League approved schedule.
C. City Selection. Upon receipt from TMO of the Midwest League approved schedule, the
City shall have until October 1 to select the dates for the following calendar year on
which it desires to conduct City Events, The City shall be free to select dates for
City Events which have not been previously reserved pursuant to Paragraph B
above, provided that it intends to conduct a specific event on the date which it
selects. In making such selections, the City shall give due consideration to the
potential deterioration of the Stadium's playing surface caused by the conduct of
such City Events.
D. TMO Special Event Selection. After October 1 of each year, TMO shall have, the
opportunity to schedule TMO Special Events on any dates for the following year not
previously scheduled with TMO Home Baseball Games as identified in Section A
above, and the specified City Events as scheduled in Section C above. In making
such selections, TMO shall give due consideration to the potential deterioration of
the Stadium's playing surface caused by the conduct of such TMO Special Events.
TMO is responsible for the cost of repairing any damage to the playing surface
beyond normal wear and tear caused by TMO Special Events.
E. Remaining Dates. Thereafter, all remaining dates will be exclusively reserved for TMO.
The City shall receive payment for any events conducted pursuant to Article XIV, Financial
Terms. .
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F. MutuaIly Sponsored Events. Notwithstanding sections C, D, and E of this Article IX, the
Parties may agree at any time to schedule a Mutually Sponsored Event at the Stadium in
compliance with the requirements of Section L of Article VIII of this Agreement as
amended.
ARTICLE X.
MARKETING
Each Party shall be responsible for its own marketing. TMO shall be responsible for and
have the exclusive right of marketing TMO Home Baseball Games and TMO Special Events. The
City shall be exclusively responsible for marketing City Events and the Stadium.
ARTICLE XI.
ADVERTISING
A. TMO's Advertising Rights and Responsibilities.
1. Permanently Affixed Stadium Signage and Scoreboard Advertising. Subject to the
fees paid to the City pursuant to Article XI(B)(2), Article X1V and subparagraphs a
through c below, TMO shall have the exclusive right to sell all Permanently Affixed
Stadium Signage and Scoreboard Advertising.
a. The placement of all Permanently Affixed Stadium Signage shall be subject
to the prior approval of the City, with such approval not to be unreasonably
withheld. The installation of such Permanently Affixed Stadium Signage
shall be the sole and exclusive responsibility of TMO. The Parties have
further agreed that, as it applies to the provisions of Article XIV(A), all
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revenue generated from the sale of Permanently Affixed Stadium Signage
shall be attributable to TMO Home Baseball Games without proration or
offset.
b. To the extent that such advertising conflicts with the rules and regulations of
the National Collegiate Athletic Association, as such rules may from time to
time exist, thus preventing the conduct of a City Event, TMO, at its sole cost
and expense, shall temporarily cover such conflicting advertising thereby
obstructing it from view.
C. It is specifically agreed to by the Parties that there shall be no advertising in
the Luxury Suites, the Expandable Luxury Suites or the Host Suites, except
as may occur on closed circuit television. However, the City shall retain the
sole right to place Suiteholder identification signage inside and outside of
Luxury Suites.
d. Permanently Affixed Stadium signage located in in or on the Developer
Units are subject to TMO obtaining consent from the Developer,
constructing, and maintaining such signage at its sole expense. TMO shall
be responsible for complying with all applicable local, state and federal laws
and regulations with regard to obtaining all required permits and approvals
related to any and all such signage. Any such signage must face the interior
of the Stadium.
2. Further Advertising at TMO Home Baseball Games and TMO Special Events.
TMO shall have the exclusive right to sell advertising on the scoreboard message
center, radio, closed circuit, regular television and other media (with the prior
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approval of the City, with such approval not being unreasonably withheld)
associated with TMO Home Baseball Games or TMO Special Events. Any revenue
generated from the sale of such Advertising shall be subject to the obligations of
Article XIV of this Agreement.
B. The City's Advertising Rights and Responsibilities.
1. Permanently Affixed Stadium Si�unage. Except for the signage associated with
Stadium naming rights,the City will sell no Permanently Affixed Stadium Signage,
2. Advertising at City Events. Subject to the limitations contained in this Agreement,
the City shall have the right to sell and retain without offset all revenue generated
from the sale of advertising associated with City Events, including but not limited to,
advertising on the scoreboard message center and video display, print media and
broadcast media, provided that such advertising without the prior consent of TMO,
shall in no way materially with Permanently Affixed Stadium Signage or any right
related to TMO's exclusive license to provide Food and Beverage Concessions at all
Stadium Events pursuant to Article VI above, including but not limited to pouring
rights at the Stadium.
3. Advertising for TMO Events. TMO agrees that it will not sell advertising on Paid
Admission Tickets printed for TMO Home Baseball Games that will conflict with
products and services advertised by the entity or entities granted naming rights to the
Stadium.
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ARTICLE XII,
BROADCAST RIGHTS
A. TMO's Broadcast Rights. TMO shall have exclusive ownership and control over Broadcast
Rights associated with TMO Home Baseball Games and TMO Special Events. In
the exercise of such ownership and control, however, TMO shall take all steps
reasonably necessary to protect from diminution the sale of Paid Admission tickets
to TMO Home Baseball Games. All revenue generated by TMO relating to such
Broadcast Rights shall be retained exclusively by TMO, with such revenue neither
being included in.DGR nor subject to Article XN herein.
B. City's Broadcast Rights. The City shall have exclusive ownership and control over
Broadcast Rights associated with i) City Events; ii} the Stadium, including but not
limited to, Stadium construction and development; and iii) all other events and
matters associated with the Stadium that do not involve the conduct of TMO Home
Baseball Games or TMO Special Events. All revenue generated by the City relating
to such Broadcast Rights shall be retained exclusively by the City.
ARTICLE XIII.
UTILITIES
Payments for Utilities shall be shared equally between the City and TMO.
ARTICLE XIV.
FINANCIAL TERMS
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The obligations listed in this Article of this Agreement are in addition to the Parties' other
obligations described herein.
A. TMO's Rights and Obligations.
1. License Fee. In consideration for the License granted to it by the City pursuant to
this Agreement, TMO will annually pay to the City five percent (5%) of the DGR.
TMO shall annually pay the City an additional two and one half percent (2.5%) on
all DGR beyond four million one hundred thirty-four thousand one hundred two and
001100 dollars ($4,134,102.00), for a total of seven and one half percent (7.5%).
Such license fee shall be due and payable on the fifteenth (15th) day of each
calendar month and shall be based upon the DGR sum actually owed by TMO in the
same month of the preceding calendar year. TMO shall reconcile the payments on a
quarterly basis (April, July, October, and January) and shall make the necessary
adjustment on the next monthly payment. TMO shall provide to the City a complete
and accurate accounting of the DGR calculations of the preceding quarter (the
reconciliation). Such accounting shall include, but not be limited to, a ticket
manifest in a form agreed to by the Parties detailing the amount and nature of Paid
Admission Tickets issued by TMO for applicable TMO Home Baseball Games.
2. TMO Special Event Fees. In consideration for the right granted to it by the City to
conduct TMO Special Events, TMO will pay to the City the following percentages
of gross Food and Beverage Concessions, less sales tax paid by TMO on such
revenue:
No tickets sold 7.5%
Tickets$5.00 or less 7.5%
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Tickets $5.01 or greater 5%
In addition to the above, a ticket surcharge shall be included in all ticketed TMO
special events with a mutually agreeable price schedule. The ticket surcharge
revenues shall be allocated to the stadium fund to offset capital improvement
costs of the stadium.
Ticket surcharge schedule:
<$1-$5=no charge
$5.01-$15=$1 per ticket
$15.01 or greater=$2 per ticket
All TMO Special Event Fees and ticket surcharges due to the City shall be due
and payable on the same schedule, and with the same conditions, including
accounting, as set forth for DGR in Section A.1 of this Article.
3. Luxury Suite and Clubhouse Sales.
Annual TMO Luxury Suites. In consideration for the exclusive right to lease,
license or rent the TMO Luxury Suites, TMO shall pay to the City twenty percent
(20%) of all gross revenue generated from annual lease, license or rental of such
TMO Luxury Suites.
Clubhouse During TMO Home Baseball Games. In consideration for the
exclusive right to lease, license, or rent the Clubhouse for TMO Home Baseball
Games, TMO shall pay to the City an additional seven and one-half percent
(7.5%)of all CTR generated from the license, lease, or rental of the Clubhouse for
TMO Home Baseball Games.
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Clubhouse for all non-TMO Home Baseball Games. In additional consideration
for the exclusive right to lease, license, or rent the Clubhouse for non-TMO Home
Baseball Games, TMO shall pay to the City ten percent (10%) of all Food and
Beverage Concessions, less sales tax paid by TMO, generated at the Clubhouse
for non-TMO Home Baseball Games,
All Luxury Suite and Clubhouse revenue due to the City shall be due and payable
on the same schedule, and with the same conditions, including accounting, as set
forth for DGR in Section A.1 of this Article.
4. City Event Concession. As additional consideration for the rights granted to it by
the City pursuant to Article VI above pertaining to exclusive concessions sales at the
Stadium, TMO will pay to the City Twenty-Five Percent (25%) of all gross revenue,
less sales tax, generated from its sale of Food and Beverage Concessions at City
Events, except that TMO shall pay the City the rgreeater of the following for the
"Crosstown Showdown:"
a. Five percent (5%) of gross event food and beverage revenue less any sales tax
paid by TMO on such revenue; or
b. Three Thousand and 00/100 Dollars ($3,000.00).
5. Remainder. TMO shall retain exclusive ownership of all revenue not specifically
identified in this Agreement that is generated from any source, whether or not now
known, by the Team directly related to TMO Home Baseball Games or TMO
Special Events.
6. Mutually Sponsored Events. TMO and the City shall share equally(50%150%)
all MSENP. The Parties agree that, in order to monitor compliance with this
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section, for up to one (1) year after the end of a Mutually Sponsored Event, they
will preserve and make available to the other Party during regular business hours
and at such time as may be reasonably convenient to the Parties, all financial
records related to the Mutually Sponsored Event and calculation of MSENP.
a. Reconciliation and Payment. The Parties shall meet as soon as practicable
after the Mutually Sponsored Event with all necessary financial records to
determine the amount of the balance of payments for those rights and
obligations set forth in Article VIII (L)(3)&(4) (the reconciliation). If it is
determined at the reconciliation that the Mutually Sponsored Event made a
profit (MSNEP above zero (0) dollars), within sixty(60) days after the end
of a Mutually Sponsored Event, TMO shall pay to the City the City's
share of MSENP. If it is determined at the reconciliation that the Mutually
Sponsored Event resulted in a loss (MSNEP less than zero (0) dollars), the
Parties shall share in the loss equally and shall make necessary payments
to the other party within sixty(60) days after the end of a Mutually
Sponsored Event.
7. Minimum Guaranteed Payment. In no event shall the total of all fees required to be
paid by TMO to the City pursuant to this Agreement be less than the Minimum
Guaranteed Payment in any calendar year of this Agreement. In the event the total
paid to the City is less than the Minimum Guaranteed Payment, TMO shall remit to
the City within thirty (30) days sufficient additional funds to meet the Minimum
Guaranteed Payment.
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8. Audit of Records. In order to allow compliance with Paragraph A of this Article
XIV to be monitored, TMO agrees that during the terra of this Agreement, and for
up to one (1) year after the termination of this Agreement, it will preserve and make
available to the City Finance Director one (1) time each calendar year during
reasonable business hours and at such time as may be mutually convenient for TMO
and the City:
a. All of those financial documents and records related to the conduct of TMO
Home Baseball Games that are prepared by or at the direction of TMO for
the Midwest League, and National Association, and/or Major League
Baseball;
b. All financial documents and records related to the conduct of TMO Special
Events; and
C. All financial documents related to Food and Beverage Concessions.
During such annual audit, if the City Finance Director can demonstrate, pursuant to
Generally Accepted Accounting Principals, that TMO does not have sufficient liquid
assets to pay the Minimum Guaranteed Payments as they become due, TMO shall
secure and provide to the City a letter of credit or security and in the amount of the
next Minimum Guaranteed Payment. Such letter of credit or security bond shall be
drawn upon only if TMO is unable to pay the Minimum Guaranteed Payment when
due. TMO shall continue to keep the letter of credit or security bond in place until
TMO can demonstrate, pursuant to Generally Accepted Accounting Principals, that
it has maintained for two (2) consecutive years sufficient liquid assets to pay the
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Minimum Guaranteed Payments when due. The Parties agree that all
documentation, data and information provided to the City pursuant to this
Subparagraph is highly confidential and in no event, to the extent legally
permissible, shall such documentation data or information be disclosed to any third
party or become public record without the prior approval of TMO.
At the City's request and expense, no more than once annually, the City may obtain
an audit of DGR and all other revenue by a Certified Public Accountant agreed on
by the City and TMO.
B. City's Rights and Obligations.
1. Stadium Services at City Events. The City will pay to TMO the actual cost of the
Operators of Stadium Services provided by TMO at City Events. Such payment
shall be made within ten(10)days of the provision of such Stadium Services,
2. Remainder. The City shall retain ownership of all income and sources of income
that are related to City Events or Stadium usage, whether or not now known, and
that are not specifically granted to TMO herein, including but not limited to income
from automated teller machines and pay telephones at the Stadium.
ARTICLE XV.
EQUIPMENT
A. TMO's Obligations. At no cost to the City, TMO will provide all baseball related equipment
that is typically provided by a minor league baseball club, including but not limited
to batting cages, pitching machines and batting practice cages. In addition, TMO
shall provide certain items of equipment necessary to fulfill its Stadium Service
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obligations described herein. Such TMO-provided equipment is listed at Exhibit C.
All such equipment shall remain the property of TMO.
B. City's Obligations. The City, upon reasonable notice, will provide the use of certain heavy
equipment and operators thereof to assist TMO in certain activities related to the
Stadium.usage. In consideration for providing such equipment operator, TMO shall
pay to the City, within thirty (30) days after such use, the City's actual cost of
providing such operator. In addition TMO shall, in all respects, indemnify the City
from all liabilities arising from such use provided that such liabilities are not the
results of intentional or reckless acts or omissions on the part of the City or the
equipment operator. Listed at Exhibit D is the heavy equipment that has been
provided by the City. All such equipment shall remain the property of the City.
ARTICLE XVI.
COVENANTS
A. TMO's Covenants.
l. Taxes and Encumbrances. TMO shall pay promptly when due any and all personal
property taxes imposed on its personal property located in the Stadium and any and
all taxes which are the responsibility of TMO under the laws of the State of
Michigan and City of Lansing, including any payment in lieu of taxes which may be
assessed pursuant to Michigan Statutes. Except as to liens or other encumbrances
related to the financing, installation or ownership of the Stadium's scoreboard, TMO
shall not permit any mechanics liens or other encumbrances or liens to exist against
the Stadium and shall within thirty(30) days of any such lien or encumbrance being
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asserted against the Stadium as a result of action or inaction by TMO either cause
the same to be released of record or obtain title insurance coverage satisfactory to the
City over such lien and proceed diligently to contest the same in good faith.
2. TMO Home Baseball Games. TMO covenants and agrees that it will play all of its
home baseball games at the Stadium whether such games be designated preseason,
regular season,post-season, or exhibition games. In addition,TMO covenants to the
City that TMO will cause at least fifty-five (55) Regular Season TMO Home
Baseball Games to be played at the Stadium in each calendar year of this
Agreement.
3. Membership in the Midwest League and National Association. TMO shall, during
the term of this Agreement, abide by all rules and regulations of the Midwest League
and of the National Association. Until transfer of TMO's franchise and assets, TMO
agrees and covenants to the City that it will maintain membership in good standing
with the Midwest League and National Association and their successors and
assignees, and that it will not seek, authorize, or consent to the transfer of its
franchise to an area outside Lansing, Michigan, without the prior written consent of
the City or unless this Agreement is terminated pursuant to the terms herein.
4. Covenant Not to Transfer Franchise. TMO agrees and covenants to the City that it
will not participate in any transfer or assignment of its franchise, name, goodwill,
trademark and other contracts unless said transfer or assignment includes its interest
under this Agreement. In the event of any such transfer or assignment of its
franchise and other assets, including TMO's interest in this Agreement, which is
approved by the National Association and the Midwest League, their successors or
52
assigns, the City will release TMO from its obligations hereunder upon the
assumption of such obligations by the transferee or assignee.
5. Equal Employment Opportunity And Employment of Lansing Residents. TMO
agrees and covenants to the City that it is presently and will continue to be an equal
opportunity employer and at all times shall comply with the laws and regulations
that prohibit discrimination. Further, TMO agrees and covenants to the City that it
will use its best efforts to retain the services of residents of the City of Lansing in all
Stadium Services performed pursuant to this Agreement and will attempt to have at
least seventy-five percent(75%) of TMO's seasonal staff be residents of the City of
Lansing.
6. Stadium Name. TMO agrees and covenants to the City that in all communications
referring to the Stadium it shall use the full name of the Stadium.
7. Use of Matters Subject to Copyright. Should TMO, its agents, employees, invitees
or guests use or allow the use of any composition, work or material, TMO agrees to
indemnify and save the City harmless from loss, damage or expenses arising from
any claim of infringement of such copyright or the use of unlicensed composition,
work or material.
8. Operation of Stadium Souvenir Stores. TMO agrees and covenants that, without the
prior approval of the City and for the term of this Agreement, it will not operate any
other store in the City that sells Novelties and Souvenirs in competition with the
Stadium Souvenir Stores,
9. Prohibition Against Dangerous Materials and Substances. TMO agrees not to bring
into the Stadium any material, substance, equipment or object that is likely to
53
endanger the life or to cause bodily injury to any person within the Stadium, or
which is likely to constitute a hazard to property therein without the approval of the
City. The City shall have the right to refuse to allow any such materials, substances
or equipment to be brought into the Stadium and the further right to require its
immediate removal therefrom if found thereon.
C. City's Covenants,
1. Stadium Compliance. The City represents, covenants and warrants that throughout
the term of this Agreement the Stadium shall be constructed and maintained in
compliance with (i) all applicable building, health, safety, bidding, procurement,
traffic and zoning ordinances, applicable standards for streets and roadways (if any
are constructed by the City in connection with the Stadium), and covenants and
restrictions, if any, which apply to the Stadium property upon which the Stadium is
located, and(ii)all applicable Environmental Laws.
2. Environmental Indemnification. In the event of any claim, suit, litigation,
governmental, administrative or private proceedings or action against TMO with
respect to or concerning in any way any underground storage tanks, Hazardous
Materials, water or air pollution or contaminants generated at or placed on or near
the Stadium by the City or its employees, agents, representatives, vehicles or
equipment,or with respect to or concerning any violation of Environmental Laws by
the City or its employees, agents, representatives, vehicles or equipment, the City
shall indemnify and hold harmless TMO from all costs, damages, attorneys'fees,
expert fees, clean-up, response, removal and remedial costs, and all other costs, fees,
and expenses relating thereto.
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ARTICLE XVII.
INDEMNIFICATION AND INSURANCE
A. Indemnification.
1. Indemnification of the City by TMO. TMO agrees to indemnify and hold harmless
the City and its respective officers, directors, duly authorized agents and employees
from any and all claims brought for personal injury, death,property damage and any
other losses, damages, charges or expenses, including attorneys fees, which is in
connection with, or by reason of any act, omission or negligence of TMO or its duly
authorized agents, or any breach of this Agreement, in connection with TMO's
activities pursuant to this Agreement.
2. Indemnification of TMO by the City. The City agrees to indemnify and hold
harmless TMO and its members, officers, directors, duly authorized agents and
employees from any and all claims brought for personal injury, death, property
damage and any other losses, damages, charges or expenses, including attorneys
fees, which is in connection with, or by reason of any act, omission or negligence of
the City or its duly authorized agents, or any breach of this Agreement, in
connection with the City's activities pursuant to this Agreement.
B. Insurance Policies.
1. Insurance Required of TMO. TMO shall obtain and maintain throughout the term of
this Agreement, public liability coverage including personal injury liability and
contractual liability; if on a commercial general liability form, the limit per
occurrence shall be One Million Dollars ($1,000,000) and an aggregate of Three
Million Dollars ($3,000,000) combined single limit (CSL) per occurrence and
55
include bodily injury and property damage liability; automobile coverage with
liability limits of One Million Dollars ($1,000,000) combined single limits (CSL)
bodily injury and property damage per accident; and workers compensation
coverage to protect TMO's permanent and temporary employees.
TMO will name the City as additional insured on the public liability policy
and provide certificates of all insurance or original policies as they shall be on file
prior to the beginning of the term of this Agreement. Insurance coverage required
herein shall be famished by a company approved by the insurance commission of
the State of Michigan.
2. Insurance Required of the CitX. Throughout the term of this Agreement, the City
shall procure and pay for insurance, with a commercially acceptable insurance
carrier, for the full replacement value of the Stadium, at its cost and expense, against
damage destruction, from whatever cause. The City, its respective agents,
successors and assigns, shall also name TMO as an additionally insured on all
property and liability insurance.
ARTICLE XVIII.
DESTRUCTION OF STADIUM
A. Partial Destruction. If the Stadium is wholly or partially destroyed, the City shall, at its
expense,promptly commence and diligently complete the restoration of the Stadium
to the same condition as immediately prior to the destructive event, reasonable wear
and tear excepted. All repair activities shall be timed and organized in such a
56
manner to facilitate TMO's ability to play the TMO Home Baseball Season games at
the Stadium to the degree feasible.
B. Reduction in Payment. Should the Stadium be unavailable for any TMO Home Baseball
Games as a result of the destruction or other limitation in the use of the Stadium, the
payments due the City shall be reduced proportionate to that limitation of use. In the
event the City's insurance coverage provides TMO with reimbursement for lost
profits,payments due the City shall not abate,but will continue uninterrupted.
C. Assistance of the City in Locating a Temporary or Permanent Alternate Facility. If the
Stadium becomes unavailable on a temporary basis by reason of either the partial
destruction of the Stadium or the repair or restoration of the Stadium, or for any
other reason, the City shall utilize its best efforts to assist TMO in locating an
adequate temporary facility within the City of Lansing.
D. Development of the Outfield Development Parcel and Stadium Improvements.
Development of the Outfield Development Project and Stadium Improvements, as outlined
in the CDA, along with any interruptions in availability of any portion of the Stadium in
order to accommodate the development, shall not be a violation of this Agreement, and
TMO shall not be entitled to reduce any payments otherwise due to the City as a result of the
Outfield Development Project or Stadium Improvements, or the interruption of the use of all
or any part of the Stadium. This specifically includes any anticipated or unanticipated
interruptions in the availability of any portion of the Stadium to accommodate the Outfield
Development Project or Stadium Improvements.
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ARTICLE XIX.
CONDEMNATION
In the event that any portion of the Stadium is taken from the City pursuant to any right of
eminent domain exercised by any governmental entity or pursuant to any governmental order and
such taking renders the Stadium unfit for its intended purpose, TMO shall receive a portion of any
award granted with respect to such taking, to be determined by mutual agreement of the Parties.
TMO shall also have the independent right to make a claim against the condemner for and retain
any award based thereon for the reasonable value of lost profits, improvements made to the Stadium
by TMO and for the expenses, attorney fees and costs incidental to relocating from the Stadium
including,but not limited to,the lost value of this Agreement.
ARTICLE XX.
FORCE MAJEURE
TMO and the City agree that with respect to any services to be provided, payments to be
made, or action to be taken by either Party during the term of this Agreement, the Parry required to
furnish or perform the same shall in no event be liable for failure to do so when prevented by any
cause beyond the reasonable control of such Party such as strike, lock-out, suspension of play of
baseball,breakdown, accident, order or regulation of or by any governmental authority, the National
Association, Midwest League or any entity controlling either the National Association and/or
Midwest League, or failure of supply, or inability, by the exercise of reasonable diligence, to obtain
supplies, parts, or employees necessary to furnish such services, or because of war or other
emergency, or for any cause due to any act or neglect of the other Party hereto, or in servants,
agents, employees, any assignee, or successor in interest to such other Party. The time within which
58
such services,payments, or actions shall be performed or rendered shall be extended for a period of
time equivalent to the delay of such cause.
ARTICLE XXI.
REQUISITE ALCOHOL PERMITS
The City and TMO will use their best efforts and will take all steps necessary to obtain and
maintain all permits, licenses and permissions as may be required to permit alcohol to be sold by
TMO at the Stadium. Once such permits, licenses and permissions are obtained, TMO will fully
comply with all federal, state and local laws, ordinances and statutes relating to the dispensing of
alcoholic beverages.
ARTICLE XXII.
ASSIGNABILITY AND TRANSFERABILITY
The rights and obligations created by this Agreement are exclusive and shall not be
transferred or assigned except by written agreement by both TMO and the City. TMO covenants
and agrees that it will not assign, transfer, or sublet this Agreement without the prior written consent
of the City with such consent not being unreasonably withheld. Notwithstanding the above, the
City may assign this Agreement for administrative and operational purposes to an authority or
authorities to be created under Michigan law. The Parties agree that the assignee of the City, if such
an assignment should be made, shall be able to enforce the provisions of this Agreement pursuant to
such assignment without the further consent of the City.
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ARTICLE XXIII.
TERMINATION UPON DEFAULT
In addition to the termination provisions of Article 111, in the event that either Party hereto
shall otherwise materially breach, violate or fail to fully perform any provision contained in this
Agreement, the non-breaching Party may upon ninety (90) days written notice thereof, terminate
this Agreement; provided, however, that the defaulting Party shall have the right and opportunity to
cure the default within said ninety (90) day period or if such breach, violation or non-performance
cannot be cured within a ninety (90) day period, to continue diligently and in good faith to effect
such cure within such period, provided that, in no event shall such opportunity to cure exceed one
hundred eight (180) days after receipt of such notice. In the event that such breach, violation or
non-performance is not cured within said ninety (90) day period or any authorized extension
thereof, then, this Agreement shall terminate upon the expiration of such period and the non-
breaching Party shall thereupon have the right to exercise such additional rights or remedies as they
may have by law.
ARTICLE XXIV.
DEVELOPMENT OF THE OUTFIELD DEVELOPMENT PARCEL
AND STADIUM RENOVATIONS
A. Redevelopment of the Outfield Development Parcel. The Parties acknowledge and agree
that the Outfield Development Parcel is going to be developed into a mixed use
development pursuant to the CDA. TMO agrees all changes to the Stadium or
disruptions in use of the Stadium which are made in order to comply with the CDA shall
not be considered a breach of this Agreement by the City. In the event the development
of the Outfield Development Parcel is not completed, partially completed, reconfigured,
60
or abandoned, as required by the CDA and ancillary documents, for any reason, it shall
not be considered a breach of this Agreement by the City.
B. Implementation of Stadium Improvements. TMO acknowledges and agrees that the
Stadium Improvements will be done in accordance with the CDA. TMO agrees all
changes to the Stadium or disruptions in use of the Stadium which are made in order to
comply with the CDA shall not be considered a breach of this Agreement by the City.
C. Stadium Improvements. The Stadium Improvements shall include those items the Parties
mutually agree upon during the Due Diligence Period as described in Section (I)(1)(B)(i)
of the CDA. The Stadium Improvements shall include the construction of the Banquet
Center, field level components on the Development Parcel, and picnic support areas in
the right field area. The City will cause the Stadium Improvements to be completed in
accordance with the Master Schedule.
D. Substantial Completion of Stadium Improvements. To the extent practicable, all Stadium
Improvements (except the playing field) will be Substantially Complete, as that term is
defined in the CDA,prior to the first TMO Home Baseball Game in 2015.
E. Coordination of Efforts. The development of the Outfield Project with the Stadium
Improvements will require substantial coordination of efforts between the City and the
developer. TMO agrees that it will not object to or withhold any reasonable requests for
access to allow for completion of the Stadium Improvements or Outfield Project within
the Master Schedule timeframe.
F. Default, Breach, or Termination of the CDA. Notwithstanding Article XXIII, a default,
breach or termination of the CDA shall be handled as follows:
1. Default by Developer or City. If the default, breach, or termination is caused by the
61
Developer or City,then the City at its sole discretion, may terniinate this Agreement,
and revert back to the Stadium License, Lease, and Service Agreement executed on
October 24, 2005, and all amendments thereto, assuming its term has not yet
expired. In addition, the City may at its sole discretion elect not to expend any
remaining portion of the Renovation Funds. Should the City elect to continue with
this Agreement,then the Minimum Guaranteed Payment will be adjusted as follows:
a. In the event the City has spent 25% or less of the Renovation Funds, the
Minimum Guaranteed Payment shall be adjusted to One Hundred Thousand
and 00/100 Dollars($100,000.00).
b. In the event the City has spent more than 25% and less than 50% of the
Renovation Funds,then the Minimum Guaranteed Payment shall be adjusted
to Two Hundred Fifty and 00/100 Dollars($250,000.00).
C. In the Event the City has spent 50% or more of the Renovation Funds, then
the Minimum guaranteed Payment shall remain at Three Hundred Fifty
Thousand and 00/100 Dollars ($350,000.00).
2. Default by TMO. In the event of a default, breach, or termination by TMO, the City
will have all rights and remedies as set forth in Article XXIII as if TMO breached
this Agreement. In addition, if the default,breach,or termination is caused by TMO,
then the City at its sole discretion may:
a. terniinate this Agreement in which event the Stadium License, Lease, and
Service Agreement executed on October 24, 2005, and all amendments
thereto, assuming its term has not yet expired, shall be I full force and effect;
and/or
b. elect not to expend any remaining unspent portion of the Renovation Funds.
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If the default, breach or termination of the CDA by TMO occurs after December 31, 2020,
at 11:59 PM, the City shall have the right to evict TMO from the Stadium upon ninety(90)
days written notice thereof, unless a new lease is negotiated by the City and TMO. The City
may also assert all rights remedies against TMO under this Agreement.
G. Termination of DCA Prior to Master Closing. Notwithstanding the foregoing, in the event
the CDA is terminated by any party to the CDA prior to Master Closing, then the Parties
shall revert back to the Stadium License, Lease, and Service Agreement executed on
October 24, 2005, and all amendments thereto, for its remaining term, and this Agreement
shall be null and void.
H. Delay of Outfield Project. In the event the entire Outfield Project described in the CDA is
delayed for one (1) calendar year pursuant to the terms of the CDA, then the Minimum
Guaranteed Payment shall remain at One Hundred Thousand and 00/100 Dollars
($100,000.00) for that calendar year, and shall return to Three Hundred Fifty and 00/100
Dollars($350,000.00)the next calendar year.
I. CDA Rights and Remedies. Nothing herein impairs the City's rights and remedies under the
CDA.
ARTICLE XXV.
MISCELLANEOUS
A. Anti-Discrimination. TMO shall not discriminate in any manner on the basis of gender,
marital status,race, color, creed,handicap, height,weight or national original with respect to
any applicant or employee, and shall conform in all respects to the pertinent provisions of
federal, state or local laws, ordinances, rules and regulations of employment practices.
63
TMO further agrees that in serving the public, its employees shall not, on the grounds of
sex, marital status, race, creed, handicap, height, weight, color, age or national origin,
discriminate or permit discrimination or refuse to serve a person or group of persons in any
manner prohibited by federal, state or local laws,rules, ordinances and regulations.
B. Governing Law, This Agreement shall be construed under and in accordance with the laws
of the State of Michigan.
C. Entire Agreement. This 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.
D. Authori13,. TMO and the City, respectively, each represent that the individuals
acting as signatories to this Agreement have the authority to bind the TMO and the
City and that this Agreement, when properly executed by both Parties, will
constitute a valid and binding agreement, enforceable in accordance with this terms.
E. Costs and Attorney Fees. The Parties hereto agree to pay all expenses incurred by the other
in enforcing the provisions of this Agreement, including but not limited to attorney fees,
costs and expenses. The Party prevailing in any litigation arising out of any dispute
concerning this Agreement shall be entitled to recover all expenses incurred, including
without limitation,reasonable attorney fees.
F. Mutual Dependency and Severability. All rights and duties contained in this Agreement are
mutually dependent on and one cannot exist independent of another,provided that if any one
or more of the provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, and if such holding does not affect the
64
ability of TMO to perform and have access to the Stadium as provided for herein, such
invalidity, illegality or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision was not
contained herein.
G. Notices and Addresses. All notices required to be given under this Agreement shall be
given by certified or registered mail, addressed to the proper Party to the following
addresses, or at such other address as may be subsequently given pursuant to this Section
and shall be deemed given when deposited in the U.S. mails,postage prepaid:
IF TO TMO:
MR.TOM DICKSON
TAKE ME OUT TO THE BALLGAME
LIMITED LIABILITY COMPANY
1603 Orrington Ave., Suite 1625
Evanston, Illinois 60201
IF TO THE CITY:
THE CITY OF LANSING
CITY ATTORNEY
124 W. MICHIGAN AVENUE
5TH FLOOR
LANSING,MI 48933-1694
H. Amendment, Modification, or Alteration. No amendment, modification or alteration of the
terms of this Agreement shall be binding unless in writing, dated subsequent to the date
hereon and duly executed by the Parties herein.
1. Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are
cumulative and the use of any right or remedy by either Party shall not preclude or waive its
rights to use any or all other remedies. Said rights and remedies are given in addition to any
other rights the Parties may have by law, statute, ordinance or otherwise.
65
I The Essence. Time is of the essence for this Agreement.
K. Counterparts. This Agreement 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.
L. Headings Only for Reference. The titles of articles and sections of this Agreement are for
reference purposes only and shall be of no binding effect.
M. Valid Illinois Limited Liability Company. TMO represents that as of the date of the
execution of this Agreement it is organized and in good standing under the laws of the State
of Illinois, that it is duly authorized to enter into this Agreement 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 Agreement.
N. Prohibition Against Food and Beverage Being Brought Into the Stadium. The City shall
post signs in appropriate locations in the Stadium which shall prohibit patrons from bringing
any food,beverages,beverage containers or alcoholic beverages into the Stadium.
O. Status of Parties. Parties hereto shall be deemed and construed as independent contractors
with respect to one another for all purposes and nothing contained in this Agreement shall
be determined to be created a partnership or joint venture between TMO and the City with
respect to TMO's activities conducted at the Stadium pursuant to the terms of this
Agreement.
P. Waiver. The waiver by either the TMO or the City of any default or breach by the other
Party of any of the provisions of this Agreement shall not be deemed a continuing waiver or
66
waiver of any other breach by the other Party of the same or another provision of this
Agreement.
Q. Improvements. TMO shall make no improvements in the Stadium without the prior
approval of the City.
R. Waste or Nuisance. TMO shall not cominit or permit any waste on or about the Stadium
during the term of this Agreement nor shall it maintain, commit or permit the maintenance
or commission of any nuisance on or about the Stadium or use the Stadium for any unlawful
purposes.
S. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the
Parties hereto and their respective successors and assigns.
T. References to the City. All references to the City in this Agreement 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.
U. Exhibits. All exhibits attached to this Agreement are incorporated into and are a part of said
Agreement as if fully set out herein.
V. TMO's Property Loss and Damag. Nothing herein shall be construed to create a bailment
relationship between the City and TMO or the Club concerning any property brought on the
premises of the Stadium by TMO or the Club unless such property is delivered into the
possession of the City.
W. Employee Status. It is understood and agreed that no agent, servant or employee of TMO or
the Club or any of its subcontractors shall under any circumstances be deemed an agent,
servant or employee of the City, and that no agent, servant or employee of the City shall be
under any circumstances deemed an agent, servant or employee of TMO or the Club.
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X. Judicial Relief In The Event Of Termination Actions. Anything in this Agreement to the
contrary notwithstanding, neither Party shall have the right to terminate this Agreement
before the expiration of the period required for the giving of notice before termination, if the
defaulting party in good faith commences a judicial proceeding to contest the existence of
any such plain default and uses reasonable diligence in prosecuting such action and
complies with the final judgment of the court in such action; but nothing herein shall prevent
a court from granting such protective orders, injunctions and interlocutory judgments as
might otherwise be appropriate.
Y. Property Remaining in the Stadium After Termination or Expiration of the A egr ement. Any
and all property belonging to TMO, or anyone claiming through or under TMO, which may
be found on the premises after termination or expiration of the Agreement may be handled,
removed or stored by the City at the risk and expense of TMO and the City shall be
responsible for the preservation or the safe-keeping thereof. TMO shall pay to the City any
and all expenses incurred for such removal and all storage charges.
Z. Dispute Resolution Review Board. The Parties agree that in the event they are not
able to mutually agree on the annual CIP plan described in Article IV, Section
(A)(2)or Article IV, Section(C), then they will submit their dispute to mediation.
1. Review Board. The review board shall consist of three (3) parties: the Chief
Executive Officer LEPFA or his designee, a representative of TMO or its designee,
and a third representative (the "Neutral Representative") to be agreed upon by both
Parties. In the event the Parties are not able to mutually agree on the Neutral
Representative within 30 days of written notice of a dispute, the Parties shall each
select three (3) names from the Ingham County Neutral Case Evaluators list
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(Commercial Panel) and select one of those six (6) names randomly. LEPFA and
TMO may be assisted or represented by legal council at any stage of the proceeding.
2. Neutral Representative Compensation. The neutral representative shall be
paid out of available annual CIP funds, and her compensation shall be a
charge against those funds.
3. Time and Location. The dispute hearing will be heard at the Lansing Center at a time
and date established by the Neutral Representative, unless the Parties agree on a
different location. The Neutral Representative may adjourn the proceedings upon
good cause shown.
4. Issues Presented. The review board shall only hear those issues that are
presented in writing, in advance of the hearing, and shall only hear issues as
authorized in Article IV, Section(A)(2) and Article IV, Section(C).
5. Decision has No Binding Effect. If the representatives are not able to resolve their
dispute at the dispute hearing, the Neutral Representative shall make his
determination in writing. The Neutral Representative's decision shall have no
binding effect on the Parties.
AA. Survival. The indemnification, hold harmless, and release of liability from the 2005
Agreement remain in full force and effect and survive the termination of that
agreement.
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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
In account No. :
City Attorney City Finance Director
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EXHIBIT A
TMO MAINTENANCE LIST
i
Exhibit A
Maintenance Plan
Lugnuts Responsibilities
1) HVAC — Lugnuts will execute duties outlined in HVAC service contract
commissioned by city.
2) Concessions Equipment — Lugnuts will clean cooler vents, condenser coils ,
exhaust hoods, grills and equipment. Additional maintenance beyond Exhibit A may
be necessary per Concessions Equipment service contract.
3) Painting — Lugnuts are responsible for touch up painting throughout entire ballpark.
Touch up painting to include nicks, scratches, etc. that occur through normal use at
ballpark. Lugnuts will blend in touch up painting with existing paint. (From time to
time due to fading and use, various areas of the ballpark will need to be repainted by
city).
4) Carpeting — Lugnuts will spot remove stains and vacuum carpets after each event.
Lugnuts will extract all carpeting on a monthly basis in season or as needed.
5) Lighting — Lugnuts will replace light bulbs throughout park on a weekly basis or as
needed. City and Lugnuts will monitor lighting during monthly walk throughs.
6) Fire Extinguisher Inspection — Lugnuts will conduct and pay for annual
inspections.
Area Description
Restrooms Clean urinals, toilets and mirrors
Concourse Sweep and mop
Suite Level Restock paper towel, toilet tissue, and hand soap
Clubhouses
Offices
Inspect and repair restrooms for broken dispensers & lighting
damages
Scrub tile/flooring with machine the rout)
Suite Level Mop stairs
Clean windows in suites
Clean all glass in hallways
Clean exterior windows in front of building
Polish sinks in suites
Clean walls
Ceiling Tiles — Paint or replace, tiles provided by city
Seating Bowl Clean after game
Rinse seating bowl down
Clean out drains at bottom of sections (to prevent flooding in
seating areas
Power washed and detailed as needed.
ii
Seats— Replace and/or tighten bolts and screws as needed
Concourse/Hallways Clean and Wash
Power washed
Entrance gates are power washed and/or spotted with a deck brush
and soapy water
Entrance gates are mopped
Clean public areasand drinking fountains
Scoreboard Lugnuts 100% res onsible for scoreboard.
Field Lighting Purchase light bulbs
Grounds Cut the grass in front of stadium
Pick up litter
Pull weeds in cracks of concrete (spray to prevent grass again)
Maintain the sidewalks inside and out including snow removal (to
create safe walkway)
Pick up all trash along fence line
Edge and cut grass areas on the side
Water flower beds
Trim trees
Maintain flower beds (city to provide allproduct)
Playing Field Cut grass
Water infield
Fertilize 4-6 times (April — October
Nail drag infield for softer playing surface
Monitor irrigation (to ensure all areas are watered properly)
Edge field
Sprinkler heads are adjusted by Lugnuts
(heads are purchased through LEPFA, Lugnuts are responsible for
turning on and shutting down sprinkler system for field)
Shop Area Clean ramp — including snow removal as needed
Clean Shop — mop and sweep
Organize tools
Put away materials stored in shed
Keep inventory of clay and turface
Clubhouse Sweep and mop lobby
Clean showers
Power wash showers to remove mildew
iii
Elevators Maintain including mop, clean stainless steel
Change lights
Dugouts Sweep out and empty trash
Vacuum out sump pump pit -
Wash out inside dugout and dugout tops
Office Area Empty trash in all offices
Vacuum
Sweep and mop kitchen and rest room
Carpets professionally cleaned annually__
iv
Food Service Maintenance Schedule
Area Description
Kitchen Filter deep fryer oil
Clean pizza ovens
Wash floor with anti-slip cleaner
Replace deep fryer oil
Wash inside of exhaust hoods annual)
Pour one cup of descalerinto dishwasher and run
through wash cycle
Clean inside of convection oven and hot boxes
Take covers off of floor drains and remove drain
basket. Clean debris from basket and replace.
Wash inside door and ice deflector of any mold or
build u
Remove and clean air intake ceiling grills
Concession Stands Clean small concession equipment
Clean counter tops
Clean pop machines
Flush pop machines with bleach and hot water
Clean sink
Sweep and mop all floors
Filter deep fryer oil in stands
Clean inside of ice machines for mold
Clean floor with anti-slip cleaner
Clean fridge condensers of dust and grease
v
Change deep fryer oil
Clean and sanitize ice machine bins before ice
machine starts u
Clean beer lines internal)
Clean exhausts stem and hoods
Check beers stem coolant levels
Remove and clean air intake ceiling grills
Ports Clean all surface area including cabinets
Clean Pepsi machine windows and tracks
Sweep and mop floors
Break down all boxers and put in front of port with
closed garbage bag
Clean ports inside and out
Clean internal beer lines
Clean inside of popcorn machine with hot water
(wipe out kettle inside and out. Wipe lip off top
and bottom
Wipe up any leaking oil spills
Clean popcorn machine cabinet inside and
outside
Clean sno-kones machine with hot water—wipe
off top and make sure machine is completely dry
Philly Steak Port Clean grills
Cover grill with foil when cool
Empty grease trap
Clean sides, back, and underside of grill with hot
water
Clean ice cream stand freezer with water(leave
NO ice cream on any surface)
Clean scoops and replace
Clean floor s
Pour hot water down tap drain and clean window
vi
Clean nacho machine inside and out
Take apart inside of nacho machine and clean all
parts
Pour hot water and bleach down beer tap drains
and empty overflow
Rinse out drain bucket and empty, put back at port
Turn off CO2 tank
Open and clean cotton candy machines
Soak spinner head in hot water to remove sugar
articles
Picnic Venues Clean grills, counters, shelves, coolers
Wash and De-grease grease traps
Wash dishes
Power wash tables, serving areas and awnings
Mop floor
Clean sinks, shelves, floors and entire bar area
Clean all machines— Cheese, coffee, blender
Drain level in hot well and ice well should be
pulled. Put bucket under drain to capture water
Warehouse Clean and mop
Pantry Mop floor
Use soap & water/disinfectant to wipe down entire
pantry area, including tables, shelves and
equipment
Clean inside of ice maker
Disassemble and clean cheese machine, coffee
maker and hot chocolate machine
vii
Cooler Wipe down shelves using soap & water
Suites Clean refrigerators using soap & water
Wipe out sink & countertops
viii
EXHIBIT B
STADIUM OPERATION PLAN
ix
Exhibit B
Operations Plan
Customer Service Game Day Staffing Schedule
Area Description Time Line
First Aid (Sparrow) 1 Nurse and 1 Tech Each Game
2 Nurses and 1 Tech Each GSSD
Security - 1 Supervisor and 1 Guard 0-2000 fans
3 Supervisors and 6 Guards Thursdays
1 Supervisor and 2-3 Guards 2001-4000
2 Supervisors and 4-6 Guard 4000 +
3 Supervisors and 5 Guards GSSDs
Customer Service 2 Ticket Takers 0-2000 fans
(Job descriptions 1 Customer Service Attendant
attached) 1 Suite Attendant
1 Elevator Attendant
3 Concierges
1 Host or Hostess and 1 Gate Attendant (if Tailgate
Terrace)
1 Host or Hostess if Gasoline Alley)
4 Ticket Takers 2001-4000
1 Customer Service Attendant fans
1 Suite Attendant
1 Elevator Attendant
5 Concierges
1 Berm Attendant
1 Host or Hostess and 1 Gate Attendant (if Tailgate
Terrace)
1 Host or Hostess (if Gasoline Alley)
6 Ticket Takers 4000+ fans
1 Customer Service Attendant
1 Suite Attendant
1 Elevator Attendant
8 Concierges
1 Berm Attendant
1 Host or Hostess and 1 Gate Attendant (if Tailgate
Terrace)
1 Host or Hostess if Gasoline Alley)
Operations Plan
Area Description
x
Maintenance (in- Monitor all restrooms including toilet paper, paper
game) towel, trash, floors, hand soap by porters and maids
Monitor wet spills, dry spills and all trash containers
on concourse
Fireworks Safety Set up 12 pieces of bike barricade and 12 pieces of
plywood for fans safety or as directed by Fire
Marshal; Set up 25' of rope and stanchion away from
barricades so no one can cross line
Monitoring company is contracted to monitor all fire
systems. If a fire, they call Lugnuts/LEPFA direct
cell # in order on list
Alarm Update employee codes into system
Main office Alarm monitoring contractor monitors all office and
Cash room alarmed areas and contacts Lugnuts management to
Food Service
Office report alarm
Retail Alarm contractor changes system batteries
3`d Base Store
Ticket Office
TV Network
Suite Level Channels are set for menu created for each suite
Gates Gates open 1:15 prior to scheduled first pitch.
Gates are swung open in the 6th inning (except on
fireworks nights and Thirsty Thursdays, not swung at
aI10
Gates are locked approx 30 minutes after game ends
Smoking Fans wishing to smoke receive an exit stamp on their
hand, leave park to designated smoking area, and
re-enter per stadium/team policy. Anyone seen
smoking in park is asked to put out their cigarette
and informed of policy.
Communication All full time Lugnuts employees and food service
managers have hand held communication systems
devices. General Manager, Operations Manager
and Director of Food Service have multiple channel
radios or handheld communication devices with
ability to contact security.
Alcohol policy
(Attached)
Xi
xii
EXHIBIT C
TMO PROVIDED EQUIPMENT
Exhibit C
. i
EXH[BIT C
'L' O PROYIDED EOUIEMENT
Te= area laundry equipment
First Aid area furniture and equipment (including supplies and stretcher)
Security Roam furniture and equipment
American flag
Batting cage
Pitcher's screen
Infield screens
1�ine chailcer
Pitching rubbers
Bases
Home plates
Field tarps
Reel-type and rotary-type hand-powered nhowers
Power edger
Gas powered weed eater
Shop-Vac
Shovels, hose, rakes
Squat-gees, mops, mop buckets, brooms
Wheel barrels
Hand clippers
Toilet plungers and snakes
Pitching machines
Miscellaneous screens, bats, balls
This Exhibit C may be rnodified from time-to-time by TMO by providing a copy of the
revised Exhibit to the City,with such revised exhibit bei«g subject to the approval of the
City, with such api3yoval not heing unreasonably withheld.
s s
EXHIBIT D
CITY PROVIDED EQUIPMENT
Exhibit D
EXHIBIT D
�I'1'lr PR[lV}��D�FQ�J1PMEl�F?'
Sod cutter
• • Rototilter•
Cherry picker
Air compressor
Palate jack
Forklift
Aerator
Roller for field
Pin spiker
Top dresser
This Exhibit D may be modified rrnsn time-to-time by mutual agreement of the City and
TMO.
EXHIBIT `rE°'
TO
STADIUM LICENSE, LEASE, AND SERVICE AGREEMENT
(2014)
THE OUTFIELD DEVELOPMENT PARCEL
EXHIBIT B
Sketch of Survey-.-
4
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Legal description of the outfield development lot Sheet 1 of 1
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A part ofthe.Northeast Quarter of Section 16,Township 4 North, Range 2 West,City of I
Lansing, Ingham County,Michigan, and being-more particularly described as follows:
Commencing at the East Quarter corner of said Section 16, Township 4North, Range
2 West;thence North 89°25'42" West 552.32 feet along the cast-west quarter line of
said Section to the extended west boundary of Larch Street; thence North 00°38'30"
East 57.75 feet to the intersection of the north boundary of Michigan Ave and said
west boundary of Larch Street; thence along said west boundary the following three
courses: North 009890" East 419.04 feet; thence South 89°29'59" East 9.87 feet;
thence North 00°30'01" East 172.92 feet being the paint of beginning of this
description; thence North 89°29'59" West 8.63 feet to the outside edge of the outfield
wall; thence along said outside edge the following eight courses:North 44°30'00" West
20.14 feet; thence North 00°30'00" East 1.86 feet; thence North 44°30'00" West 83.97
feet;thence North 00°30'00" East 16.24 feet; thence North 44°30'00" West 80.53 feet;
thence South 8913229" West 59.79 feet;thence South 73150'23" West 185.06 feet;
thence South 34°09'17" West 119.87 feet;thence North 89°32'00"Nest 9.44 feet to
the east boundary of Cedar Street;thence along said east boundary the following three
courses: North 00°28'00" East 132.86 feet; thence South 89132'00" East 13.32 feet;
thence North 00°35'45" East 11.1.35 feet; thence South 89°21'54" East 429.29 feet to
the west boundary of Larch Street; thence along said west boundary the following three
courses. South 00°38'30" West 151.77 feet;thence South 89029'59" East 9.23 feet;
thence South 00°30'01" West 97.08 feet to the place.of beginning
and having an area of 1.43 acres, more or less.
i�
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Prepared for: Lansing Lugnuts Stadium Renovation
By: Mikel Currier,PS
Firm: !ones Petrie Rafinski
Date: April 22,2014
Job Number. 2012-5081
II:120 t 2 Projects120[2-50811SUXLegal Exhibit A of outfield developmet lot.doc
EXHIBIT F
TO
STADIUM LICENSE, LEASE AND SERVICE
AGREEMENT
(2014)
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' LOT 374444
11 HANDICAPPED PARKING SPACES
367 TOTAL SPACES
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