HomeMy WebLinkAboutMandalay Sports Entertainment LLC - Guaranty and Agreement A�N^�'
GUARANTY AND AGREEMENT
OF
MANDALAY SPORTS ENTERTAINMENT LLC
THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a
public body corporate and politic(the "Agency")and STORM LLC, a California limited
liability company(the "Storm")have entered or will enter into that certain Stadium Field and
Maintenance Agreement (the "Agreement"),which Agreement provides in part that
MANDALAY SPORTS ENTERTAINMENT LLC,a California limited liability company (the
"Guarantor")shall make and deliver a guaranty as provided in said Agreement. Except as
expressly defined herein,all terms shall have the same meanings as used in the Agreement.
RECITALS
A. The Storm is a wholly owned subsidiary of Guarantor.
B. The Guarantor's execution of this Guaranty is a condition precedent but for which
the Agency would not execute the Agreement.
NOW THEREFORE, in consideration of the execution of the Agreement, and of other
valuable consideration,receipt of which is hereby acknowledged:
1. Guarantor guarantees to Agency the full,timely and faithful performance by the
Storm of all of its obligations,duties,promises, covenants and agreements as set forth in the
Agreement.
2. This Guaranty is unconditional and may be enforced directly against the
undersigned. No extensions,modifications or changes to the Agreement shall release the
undersigned or affect this Guaranty in any way. Notwithstanding the foregoing,this Guaranty
may be released in the sole and absolute discretion of the Agency as set forth in Section 10.1 of
the Agreement.
3. With the exception of: 1)being provided with notices under the Agreement; and
2) Civil Code Sections 2810 and 2839,the undersigned hereby waives all of the suretyship
provisions of the California Civil Code Sections 2788 through 2855.
4. Guarantor hereby waives and agrees not to assert or take advantage of(a)any
right to require Agency to proceed against the Storm(or any guarantor other than the
undersigned)or to pursue any other remedy in the Agency's power before proceeding against the
Guarantor, and (b)any duty on the part of Agency to disclose to Guarantor any facts Agency or
City now or hereafter know about the Site,the Agreement, or the Storm, regardless of whether
Agency has reason to believe that any such facts materially increase the risks beyond that which
Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or
has a reasonable opportunity to communicate such facts to Guarantor,it being understood and
agreed that Guarantor is fully responsible for being and keeping informed of all
Guaranty(Maintenance Agreement)40I5.009 04/13/01
Contract/Agreement # 1371
circumstances regarding the Site,the Agreement,the obligations of the Storm,the financial condition of
the Storm, and of all circumstances bearing on the risk of any obligation by Storm hereby guaranteed.
5. The obligations of Guarantor hereunder are independent of the obligations ofthe Storm and,
in the event of default hereunder, a separate action or actions may be brought and prosecuted against
Guarantor(or any other guarantor)whether or not the Storm(or any other guarantor)is joined therein or
a separate action or actions are brought against Storm.
6. In the event of any litigation between Agency and Guarantor arising out of this Guaranty,
the prevailing party shall be entitled to recover its reasonable costs and attorney's fees.
7. No provisions of this Guaranty can be waived nor can Guarantor be released from the
obligations hereunder except by a writing duly executed by the Agency. This Guarantymay not be revoked
by Guarantor or,if Guarantor dissolves,becomes insolvent,bankrupt,or otherwise ceases to do business,
the trustee or administrator of Guarantor, and any attempted revocation by Guarantor or such trustee or
administrator, shall be null and void and shall not in any manner release or discharge Guarantor or such
trustee or administrator from liability under this Guaranty.
8. The Agency may assign this Guaranty. When so assigned, Guarantor shall be bound as
above to the assignees without in any manner affecting Guarantor's liability hereunder.
The Agency shall give Guarantor thirty(30)days notice prior to any assignment of this Guaranty.
4. This Guaranty shall remain in effect notwithstanding any bankruptcy, reorganization or
insolvency of the Storm or any successor or assignee thereof or anydisaffirmance by a trustee of the Storm.
10. This Guaranty shall inure to the benefit of and bind the successors and assigns of Agency
and Guarantor.
11. Guarantor agrees that jurisdiction and venue with respect to any matter pertaining to the
Guaranty or acts or omissions hereunder shall lie exclusively with the Superior Court of the County of
Riverside, State of California,in an appropriate municipal court of that county, or in the Federal District
Court in the Central District of California. Guarantor irrevocably waives anyand all defenses based upon
venue or forum non conveniens.
12. The laws of the State of California shall govern the interpretation and enforcement of this
Guaranty.
13. Guarantor represents and warrants that it has all necessary right, power and authority to
enter into this Guaranty and to fully perform its obligations hereunder and that the party executing this
Guaranty on behalf of Guarantor is fully authorized to do so and has all necessary authority to bind the
Guarantor hereto.
14. If any provision of this Guaranty shall be determined to be illegal or unenforceable by any
court of competent jurisdiction, then such determination shall not affect any other provision of this
Guaranty(Maintenance Agreement)4015.009 2 04/13/01
Guaranty or the Agreement and all such other provisions shall remain in full force and effect; and if any
provision of this Guaranty is capable of two constructions,only one of which would render the provision
valid,then the provision shall have the meaning which renders it valid.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty this 4ay of
2001.
MANDALAY SPORTS ENTERTAINMENT
LLC, a Cali rnia limited liability company
By:
Paul Schaeffer,V' e Chairman
Guaranty(Maintenance Agreement)4015.009 3 04/13/01
GUARANTY AND AGREEMENT
OF
MANDALAY SPORTS ENTERTAINMENT LLC
THE REDEVELOPMENT AGENCY OF THE CITY OFLAKE ELSINORE,a public
body corporate and politic(the"Agency")and STORM LLC,a California limited liability company
(the"Storm")have altered or will enter into that certain License Agreement (the"License"),which
License provides in part that MANDALAY SPORTS ENTERTAINMENT LLC, a California
limited liability company(the "Guarantor") shall make and deliver a guaranty as provided in said
License. Except as expressly defined herein,all terms shall have the same meanings as used in the
License.
RECITALS
A. The Storm is a wholly owned subsidiary of Guarantor.
B. The Guarantor's execution of this Guaranty is a condition precedent but for which
the Agency would not execute the License.
NOW THEREFORE,in consideration of the execution of the License,and of other valuable
consideration, receipt of which is hereby acknowledged:
I. Guarantor guarantees to Agency the full, timely and faithful performance by the
Storm of all of its obligations,duties,promises,covenants and agreements as set forth in the License,
including without limitation payment of the Annual License Fee and each License Fee Installment
Payment and all other amounts payable pursuant to the License,and all other consideration,claims,
or losses payable by the Storm pursuant to the License.
2. This Guaranty is unconditional and may be enforced directlyagainst the undersigned.
No extensions,modifications or changes to the License shall release the undersigned or affect this
Guarantyin any way. Notwithstanding the foregoing,this Guaranty maybe released in the sole and
absolute discretion of the Agency as set forth in Section 14.1 of the License.
3. With the exception of: 1)being provided with notices under the License;and 2)Civil
Code Sections 2810 and 2839,the undersigned hereby waives all ofthe suretyship provisions of the
California Civil Code Section 2788 through 2855.
4. Guarantor hereby waives and agrees not to assert or take advantage of(a) any right
to require Agency to proceed against the Storm(or any guarantor other than the undersigned) or to
pursue any other remedy in the Agency's powerbefore proceeding against the Guarantor,and(b)any
duty on the part of Agency to disclose to Guarantor any facts Agency or City now or hereafter know
about the Site, the License, or the Storm, regardless of whether Agency has reason to believe that
any such facts materially increase the risks beyond that which Guarantor intends to assume or has
reason to believe that such facts are unknown to Guarantor or has a reasonable opportunity to
Guaranty(License Agreement)4015.009 04/13/01
communicate such facts to Guarantor, it being understood and agreed that Guarantor is fully
responsible for being and keeping informed of all circumstances regarding the Site,the License,the
obligations of the Storm,the financial condition of the Storm, and of all circumstances bearing on
the risk of any obligation by Storm hereby guaranteed.
5. The obligations of Guarantor hereunder are independent of the obligations of the
Storm and, in the event of default hereunder, a separate action or actions may be brought and
prosecuted against Guarantor (or any other guarantor) whether or not the Storm (or any other
guarantor) is joined therein or a separate action or actions are brought against Storm.
6. In the event of any litigation between Agency and Guarantor arising out of this
Guaranty,the prevailing party shall be entitled to recover its reasonable costs and attorney's fees.
7. No provisions of this Guaranty can be waived nor can Guarantor be released from the
obligations hereunder except by a writing duly executed by the Agency. This Guaranty maynot be
revoked by Guarantor or, ifGuarantor dissolves,becomes insolvent,bankrupt,or otherwise ceases
to do business,the trustee or administrator of Guarantor,and any attempted revocation by Guarantor
or such trustee or administrator, shall be null and void and shall not in any manner release or
discharge Guarantor or such trustee or administrator from liability under this Guaranty.
S. The Agency may assign this Guaranty. When so assigned,Guarantor shall be bound
as above to the assignees without in any manner affecting Guarantor's liability hereunder.
The Agency shall give Guarantor thirty(30)days notice prior to any assignment of this Guaranty.
9. This Guaranty shall remain in effect notwithstanding any bankruptcy,reorganization
or insolvency of the Storm or any successor or assignee thereof or any disaffirmance by atrustee of
the Storm.
10. This Guaranty shall inure to the benefit of and bind the successors and assigns of
Agency and Guarantor.
11. Guarantor agrees that jurisdiction and venue with respect to any matter pertaining to
the Guaranty or acts or omissions hereunder shall lie exclusively with the Superior Court of the
County of Riverside, State of California,in an appropriate municipal court of that county,or in the
Federal District Court in the Central District of California. Guarantor irrevocably waives any and
all defenses based upon venue or forum non conveniens.
12. The laws of the State of California shall govern the interpretation and enforcement
of this Guaranty.
13. Guarantor represents and warrants that it has all necessary right,power and authority
to enter into this Guaranty and to fully perform its obligations hereunder and that the party executing
this Guaranty on behalf of Guarantor is fully authorized to do so and has all necessary authority to
bind the Guarantor hereto.
Guaranty(License Agreement)4015.009 2 04/13/01
14. If any provision of this Guaranty shall be determined to be illegal or unenforceable
by any court of competent jurisdiction,then such determination shall not affect any other provision
of this Guaranty or the License and all such other provisions shall remain in full force and effect;and
if any provision of this Guaranty is capable oftwo constructions, only one of which would render
the provision valid,then the provision shall have the meaning which renders it valid.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty this 10/.day of
2001.
M A N D A L A Y SPORTS
ENTERTAINMENT LLC, a California
Iimited liability company
By:
Paul Schaeffer, Wee Chairman
Guaranty(License Agreement)4015.009 3 04/13/01
LICENSE AGREEMENT
by and between
REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE
"Agency"
and
STORM LLC
"Storm"
TABLE OF CONTENTS
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Term of License . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1. Initial Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2. Option to Extend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. The Storm's Right to Use the Stadium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1. Professional Baseball . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2. Name of the Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3. Other Storm Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4. Use of Offices and Other Areas of the Stadium . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5. Concourse Signage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.6. Agency Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7. Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. License Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1. Initial Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2. Extension Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3. Deferral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4. Annual License Fee Due Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5. Maintenance and Operations of Stadium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.6. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1. Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2. Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3. Concessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4. Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5. Stadium Naming Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6. Licensed Merchandise Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6. Imposition of Admissions Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1. Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2. Admissions Tax Credit Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.3. Documentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4. No Excess Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7. Other Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. Tickets to Storm Games . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9. Agency Suite and Parking at Storm Games and Other Storm Events . . . . . . . . . . . . . . . 20
10. Lehr Seats and Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11. Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
12. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13.1. Classes of Insurance to be Provided by the Storm . . . . . . . . . . . . . . . . . . . . . . . . 22
13.2. Endorsements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
13.3. Deductibles and Self-Insured Retentions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
13.4. Certificates of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-i-
14.1. Assignment by the Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14.2 Assignment by the Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15. Controlling Law Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16. Litigation Expenses and Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
18. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
19. Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
20. Indemnification and Hold Harmless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21. Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21.1. Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21.2. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
21.3. Baseball Season . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
22. Events of Default, Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
22.1. Events of Default by the Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
22.2. No Waiver-Annual License Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
22.3. No Other Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
22.4. Agency Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
23. Events of Default by the Agency and the Storm's Remedies . . . . . . . . . . . . . . . . . . . . . 29
23.1. Events of Default by the Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.2. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23.3. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23.4. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23.5. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
24. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
25. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . , . . . . . 30
26. Entire Agreement, Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
27. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
28. Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
29. Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
30. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
32. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
EXHIBITS:
Exhibit A Site Legal Description
Exhibit B Site Map
Exhibit C Advertising Elements
Exhibit D Guaranty
Exhibit E Stadium Field and Maintenance Agreement
-ii-
LICENSE AGREEMENT
This LICENSE AGREEMENT(this"License")is made and hereby entered into as of the
15th day of March,2001 by and between the REDEVELOPMENT AGENCY OF THE CITY OF
LAKE ELSINORE, a public body corporate and politic (the "Agency") and STORM LLC, a
California limited liability company (the"Storm").
RECITALS
The following Recitals are a substantive part of this License:
A. The Agency is the owner of that certain real property located within the Rancho
Laguna Redevelopment Project Area III of the City of Lake Elsinore,County of Riverside, State of
California all as more fully described in the Site Legal Description attached hereto as Exhibit"A"
and incorporated herein by reference (the"Land"). A number of improvements are located on the
Land, including a professional baseball field, stadium and ancillary parking and related facilities
commonly known as the"Lake Elsinore Diamond"(collectively,the"Stadium")and depicted on the
Site Map attached hereto as Exhibit"B"and incorporated herein by reference. The Stadium and the
Land shall be referred to collectively herein as the "Site".
B. The Agency previously entered into that certain Final and Fully Executed Stadium
Property and Facility Lease, dated April 2, 1998 (the "Stadium Lease") with Lakeside Sports &
Entertainment LLC ("Lakeside").
C. Pursuant to that certain letter by and between Lakeside and Mandalay Sports
Entertainment LLC ("Mandalay")dated March 17, 1999,the parties thereto set forth the terms and
conditions regarding the use of the Stadium by the Storm.
D. On or about August 22,2000, general counsel for the Agency received a letter from
counsel for Lakeside indicating that Lakeside was financially unable to continue to meet its
obligations under the Stadium Lease and would abandon its operation and maintenance of the
Stadium in September or October, 2000.
E On or about October 31, 2000, Lakeside terminated its employees responsible for
maintenance of the Stadium. By letter dated October 11, 2000, counsel for Lakeside stated that
Lakeside would no longer fulfill any of its contractual obligations as of November 15, 2000.
F. The Agency and the Storm have incurred damages as a result of Lakeside's
repudiation of the Stadium Lease and abandonment of the Stadium.
G. The Agency and the Storm desire to enter into this License in order to clarify the
relationship between the parties and ensure the Storm's continued use of the Stadium.
H. Subject to the terms and conditions of this License, the Storm desires to use the
Stadium for baseball games and for other purposes as more fully described herein,and the Agency
FINALLicenseAgreementStadium.15_40 U-009 1 04/12/01
desires to allow the use of the Stadium for such purposes in accordance with the terms and
conditions set forth in this License.
NOW THEREFORE, in consideration of the terms contained herein, and for other good
and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties
do hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in this Section i unless the context would clearly indicate otherwise.
"Admissions Tax"means so-called"ticket taxes"or any entertainment, event, admissions,
use or licensing tax,fee,assessment or charge imposed by the City which is applicable to the Storm
Games and which is required to be paid by the Storm to the City or to be collected by the Storm and
paid to the City.
"Admissions Tax Credits"is defined in Section 6.2 of this License.
"Admissions Tax Credits Demand"is defined in Section 6.2 of this License.
"Advertising Elements"means the elements set forth on the list attached hereto as Exhibit
"C"and incorporated herein by reference.
"Agency"means the Redevelopment Agency of the City of Lake Elsinore, a public body
corporate and politic.
"Agency Suite"means the luxury suite located at the Stadium identified as Suite 1.
"Annual License Fee"means the amount to be paid by the Storm to the Agency annually
for the Storm's use of the Stadium for the Storm Games and Other Storm Events in accordance with
the terms of this License.
"City"means the City of Lake Elsinore, a municipal corporation.
"Commencement Date"shall mean March 15, 2001.
"Concession Agreement"means the Concession License Agreement by and among
Lakeside, Mandalay, and Golden State Sportservice, Inc., a California corporation dated March
15, 1999.
"Conference Room"means the conference room at the Stadium depicted on the Site Map
and labeled "Conference Room."
"CPI"means the Consumer Price index for Los Angeles -Riverside - Orange County—
All Urban Consumers, 198 2-19 84 equal to 100.
"Date of this License"means March 15, 2001.
FINALLicenseAgrecmentStadium.154015-009 2 04/12/01
r
"Deferral"is defined in Section 4.3 of this License.
"Electricity Base"is defined in Section 11 of this License.
"Electronic Message Board"means the programable electronic panel for the display of
advertising and player information which is located in left field.
"Executive Director"means the Executive Director of the Agency or his/her designee.
"Expiration Date"shall have the meaning set forth in Section 2.1 of this License subject
to the extension of the Expiration Date in accordance with Section 2.2 of this License.
"Extension Term"shall have the meaning set forth in Section 2.2 of this License.
"Event of Default by the Agency"is defined in Section 23.1 of this License.
"Event of Default by the Storm"is defined in Section 22.1 of this License.
"Field"means the playing field at the Stadium which is depicted on the Site Map and
designated as the"Field."
"Governmental Regulations"means any local, state, and federal laws, ordinances, rules,
requirements,resolutions,policy statements and regulations.
"Gross Ticket Revenues"means all amounts actually received by the Storm through
sales of tickets for admission to the Storm Games.
"Gross Ticket Revenues Base"means the amount of Gross Ticket Revenues up to the
amount of Two Million Dollars ($2,000,000.00).
"Guaranty"means the Guaranty to be provided by Mandalay in accordance with the
terms of this License which is attached hereto as Exhibit"D"and incorporated herein by
reference.
"Hazardous Materials"means any hazardous or toxic substance,material or waste
which is or becomes designated, classified or regulated by any local governmental authority, any
agency of the State of California or any agency of the United States Government. The term
"Hazardous Materials" includes (without limitation) any material or substance which(i) contains
petroleum or any petroleum by-products, (ii) contains asbestos, (iii) contains urea formaldehyde
foam insulation, (iv) constitutes a chlorinated solvent, (v) constitutes a polychlorinated biphenyl,
(vi) constitutes a flammable explosive, (vii) consists of aluminum and aluminum compounds,
(viii)is designated, classified or regulated as a"hazardous"or"toxic"substance, material or
waste pursuant the Federal Water Pollution Control Act(33 U.S.C. §§ et seq.1317), the Federal
Resource Conservation and Recovery Act(42 U.S.C.§§.6901 et seq), the Comprehensive
Environmental Response, Compensation and Liability Act, (42 U.S.C. §§ 9601 et seq.), under
Sections 25115, 25117, 25122.7, and 2514, of the California Health and Safety Code,
FINALLicenseAgreementStadium.154015-009 3 04/12/01
Division 20, Chapter 6.5 (Hazardous Waste Control Law), under Section 25316 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), and under Article 11 of Title 22 of the California Code of
Regulations, Division 4, Chapter 20. Each reference to a statute or law in this definition shall be
deemed to include any amendments thereto which are enacted from time to time.
"Initial Naming Rights Period"is defined in Section 5.5(c) of this License.
"Initial Term"shall have the meaning set forth in Section 2.1 of this License.
"Interest"means two percent(2%)plus the Prime Rate.
"Lakeside"means Lakeside Sports & Entertainment LLC, a California limited liability
company (also known as"Diamond Sports & Entertainment LLC").
"Land"is defined in Recital A hereto.
"League"means the California League of Professional Baseball, Inc., a California
nonprofit corporation.
"Lehr Family Seats"shall mean and refer to the eight(8)box seats located at the
Stadium identified as Super Box 5.
"Letter Agreement"means that certain letter by and between Lakeside and Mandalay
dated March 17, 1999 setting forth the terms and conditions of the use of the Stadium by the
Storm.
"License"means this License Agreement by and between the Agency and the Storm.
"License Fee Installment Payment"is defined in Section 4.4 of this License.
"Maintenance Agreement"shall mean the Stadium Field and Maintenance Agreement
which the parties intend to enter into effective March 15, 2001 in substantially the form attached
hereto as Exhibit"E." A copy of the executed Maintenance Agreement shall be kept on file with
the Agency Secretary and shall be available for public review during normal business hours of
the Agency.
"Mandalay"means Mandalay Sports Entertainment LLC, a California limited liability
company.
"NA"means the National Association of Professional Baseball Leagues, Inc.
"Naming Rights"means the naming rights to the Stadium.
FINALLicenseAgreementStadium.15_4015-009 4 04/12/01
"Naming Rights Agreement"is defined in Section 5.5(b) of this Agreement.
"Naming Rights Revenues"is defined in Section 5.5(c) of this Agreement.
"Other Storm Events"is defined in Section 3.3(a) of this Agreement.
"Option to Extend"shall have the meaning set forth in Section 2.2 of this License.
"Practices"is defined in Section 3.1(b) of this License.
"Prime Rate"means the rate of interest per annum announced from time to time by Bank
of America N.T. & S.A., Los Angeles, or its successor organization, as its prime commercial
lending or reference rate.
"Repayment Amount"is defined in Section 4.3 of this Agreement.
"Retail Store"means the retail store at the Stadium depicted on the Site Map and labeled
"Retail Store."
"Scoreboard"means the baseball scoreboard located in right field.
"Site"means the Land and the Stadium.
"Site Legal Description"means the legal description of the Site attached hereto as
Exhibit"A" and incorporated herein by reference.
"Site Map"means the Site Map attached hereto as Exhibit"B" and incorporated herein
by reference.
"Stadium"is defined in Recital A hereto.
"Stadium Lease"means the Final and Fully Executed Stadium Property and Facility
Lease, dated April 2, 1998 by and between the Agency and Lakeside.
"State"means the State of California.
"Storm"means Storm LLC, a California limited liability company the owner and
operator of a professional Class A baseball team and a member of the League.
"Storm Games"is defined in Section 3.1(c) of this License.
"Storm Office"means that office space at the Stadium depicted on the Site Map and
labeled"Storm Office."
"Storm Storage Areas"means the storage space at the Stadium depicted on the Site Map
and labeled "Storm Storage Area." In the event that mobile storage containers are located on the
FINALLicenseAgreementStadium.154015-009 5 04/12/01
Site in accordance with the provisions of Section 3.4 (f) hereof, the term"Storm Storage Areas"
as utilized herein shall include such mobile storage containers.
"Term"means the term of this License which commences on the Commencement Date
and continues until the Expiration Date. Upon the Storm's proper exercise of the Option to
Extend, the word"Term" as utilized herein shall also include and mean the Extension Term.
"Ticket Sales Office"means the ticket sales office depicted on the Site Map and labeled
"Ticket Sales Office."
"Utilities"is defined in Section 11 of this License.
2. Term of License.
2.1. Initial Term. The initial term of this License (hereinafter referred to as
the "Initial Term") shall commence upon the Commencement Date and, unless sooner terminated
or extended under the terms and conditions of this License, shall continue thereafter for seven (7)
years until 11:59 p.m., Pacific Time, on December 31, 2007 (the"Expiration Date").
2.2. Option to Extend. The Storm is hereby granted the option to extend the
Term of this License(the"Option to Extend") for one(1) additional period of five (5)years (the
"Extension Term"),which Option to Extend may be exercised in the sole and absolute discretion
of the Storm as set forth in this Section 2.2. Upon the Storm's exercise of the Option to Extend
for the Extension Term, all of the terms and conditions of this License shall apply to such
Extension Term, and a new Expiration Date shall automatically be established to be 11:59 p.m.
Pacific Time on December 31, 2012. The Storm shall pay the Annual License Fee during the
Extension Term in accordance with the provisions of Section 4 of this License. The Storm may
exercise its Option to Extend by delivering written notice thereof to the Executive Director on or
before the close of business on June 30, 2007.
3. The Storm's Right to Use the Stadium.
3.1. Professional Baseball.
(a) Covenant to Play Baseball. During the Term of this License,the
Storm shall play its home baseball games at the Stadium; provided,
however, that the number of such games during anyone year shall
not exceed:
1. Ten (10)pre-season and exhibition games as scheduled by
the League or the Storm;
2. Seventy one (71)regular season baseball games as
scheduled by the League; provided however, that the
Agency will allow for a reasonable increase in this number
FINAILLicenseAgreementStadium.15_4015-009 6 04/12/01
------------
in the event that the League increases the number of regular
season baseball games to be played by the Storm; and
3. All home playoff games of the Storm as scheduled by the
League.
(b) Practices. In addition to the foregoing and in connection with the
Storm Games,the Storm shall have the right to use the Stadium for
a reasonable number of baseball practices and workouts for
members of the Storm,the San Diego Padres and other
professional baseball teams with the prior written approval of the
Executive Director which approval will not be unreasonably
withheld (the"Practices"). No admissions or other charges may be
imposed by the Storm in connection with the Practices and all costs
and expenses in connection with the Practices, including without
limitation, any costs for security, staffing and Utilities shall be
borne solely by the Storm. The Agency will not schedule any other
events on the Field during Practices without the prior written
approval of the Storm which approval will not be unreasonably
withheld.
(c) Scheduling of the Storm Games. Upon receipt from the League,
but in no event later than the 15t' of November of each year during
the Term the Storm will provide the Executive Director with the
written,proposed schedule for all professional baseball games
involving the Storm for the coming baseball season including all
pre-season games, a reasonable number of dates to be held for
playoff games, as required by the League, and Practices (the
"Storm Games"). The Storm shall have the right to use the
Stadium on the days set forth in the schedule for the Storm Games.
The Agency will not schedule any other events at the Stadium on
the day of a Storm Game if such event would interfere with the
Storm's use of the Stadium. In addition, the Agency agrees that it
will not schedule, conduct or allow any events involving games or
exhibitions of professional baseball without the prior written
approval of the Storm which approval will not be unreasonably
withheld.
3.2. Name of the Team. The name of the baseball team which plays at the
Stadium pursuant to this License shall include the name "Lake Elsinore."
3.3. Other Storm Events.
(a) In addition to the use of the Stadium for the Storm Games,the
Storm shall have the right to use the Stadium for up to ten(10) non-baseball related exhibitions
or events during each calendar year during the Term(the "Other Storm Events"). The Agency
FINALLicenseAgreenientStadium.15_4015-009 7 04/12/01
will also consider proposals from the Storm for use of the Stadium for promotion and
presentation of any other events by the Storm which are not part of the Other Storm Events,
including co-promotion of such events, use of the Stadium for such other events or other
proposals; provided that such proposed uses and events do not unreasonably interfere with other
events scheduled by the Agency.
(b) The Storm will not be required to pay any additional Annual
License Fee to the Agency for use of the Stadium for the Other Storm Events. In addition,the
Agency will not be required to reimburse the Storm any portion of the Annual License Fee in the
event that the Storm uses the Stadium for less than ten(10) Other Storm Events per year. The
Storm agrees to reimburse the Agency for any and all direct costs and expenses incurred by the
Agency in connection with the Other Storm Events, including without limitation costs for
Utilities, security, cleanup and maintenance, within ten(10) business days of the Storm's receipt
from the Agency of reasonable written documentation evidencing such costs and expenses.
(c) The Storm shall repair or restore the Stadium to the condition
existing prior to the Other Storm Event.
(d) Scheduling of Other Storm Events will be subject to the written
approval of the Executive Director, which approval will not be unreasonably withheld.
3.4. Use of Offices and Other Areas of the Stadium. In addition to the use
of the Stadium during Storm Games and Other Storm Events, the Storm shall have the right to
use the following areas of the Stadium during the Term at the times set forth below:
(a) Storm Office. The Storm shall be entitled to the exclusive use of
the Storm Office at all times during the Term.
(b) Conference Room. The Storm may use the Conference Room on
a non-exclusive, as needed basis; provided that this use does not interfere with the use of the
Conference Room by the Agency and upon the prior written approval of the Executive Director
which approval will not be unreasonably withheld. The Storm and the Agency acknowledge and
agree that the Conference Room shall not be used for storage of any materials whatsoever.
(c) Ticket Sales Office. The Storm shall have the exclusive use of the
Ticket Sales Office on the days of the Storm Games and Other Storm Events. In addition,the
Agency shall allow the Storm reasonable access to the Ticket Sales Office at other times as
necessary in connection with the Storm's use of the Stadium in accordance with the terms and
provisions of this License. The Storm and the Agency may agree to mutually conduct ticket sales
should technology be compatible.
(d) Advertising Elements. The Storm shall have the right to utilize
the Advertising Elements in connection with the Storm Games and Other Storm Events and the
Agency agrees that the advertising placed on the Advertising Elements by the Storm will not be
removed following each Storm Game or Other Storm Event but will be left in place during the
Term. Except on days of a Storm Game or Other Storm Event,the Agency shall have the right to
FINALLicenseAgreementStadium.154015-009 8 04/12/01
------------
remove and/or to cover the Storm's advertising on the Advertising Elements,provided that such
advertising is not damaged and that the Agency shall return the Advertising Elements to their
previous condition prior to a Storm Game or Other Storm Event. The Executive Director will
have the right to approve any and all signage or other physical advertising elements in any Storm
advertising on the Advertising Elements, which approval will not be unreasonably withheld. All
Storm advertising on the Advertising Elements in existence as of the Date of this License is
hereby deemed to be approved by the Executive Director.
(e) Electronic Message Board and Scoreboard. The Storm shall
have the exclusive right to use the Electronic Message Board and the Scoreboard during Storm
Games and Other Storm Events. The Storm shall be responsible for maintaining and repairing
the Electronic Message Board at its sole cost and expense.
(f) Storm Storage Areas. The Storm will have the exclusive use of
the Storm Storage Areas during the Term. The Storm agrees that it shall not store any materials
in any areas of the Stadium other than the Storm Storage Areas and that the Storm Storage Areas
will not be used for the storage of Hazardous Materials. In addition, the Agency will allow the
Storm to bring mobile storage containers onto the Site subject to the Executive Director's written
approval which approval will not be unreasonably withheld. The cost of any such mobile storage
containers will be borne solely by the Storm. The location and color of any such mobile storage
containers will be in the sole and absolute discretion of the Executive Director.
(g) Retail Store. Except as provided in Section 5.6 of this Agreement,
the Storm shall have the exclusive right to use the Retail Store at all times during the Term.
3.5. Concourse Signage. The Storm acknowledges and agrees that the
Agency reserves the right to alter, replace, repair, remove and otherwise change any and all
signage on the concourse, including, without limitation, signs in connection with bathrooms,
directions, seating, identification and advertising. Any such changes to the concourse signage
shall be at the sole cost and expense of the Agency and shall be done at such times as not to
interfere with the Storm's use of the Stadium for Storm Games and/or Other Storm Events. In
the event that the Agency alters any advertising on any Advertising Elements on the concourse,
the Agency (at its sole cost and expense) shall return the Advertising Element to the condition
which existed prior to such alteration prior to any Storm Games and/or Other Storm Events.
3.6. Agency Right of Entry. The Storm acknowledges and agrees that the
Agency may enter the Site, the Stadium and any part thereof at any time and for any purpose;
provided,however, that the Agency shall only enter during Storm Games or Other Storm Events
in order to utilize the Agency Suite or upon notice to the Storm of such entry or in the event of an
emergency.
3.7. Hazardous Materials.
(a) Any use, generation, disposal, release or discharge by the Storm of
Hazardous Materials in connection with any use of the Site by the Storm, including, without
limitation, any agent, employee, or contractor of the Storm, shall be carried out at all times and in
FINALLicenseAgrecmentStadium.15_4015-009 9 04/12/O1
-----------------
all respects in compliance with all applicable Governmental Regulations regulating Hazardous
Materials.
(b) The Storm shall, at its own expense,procure,maintain in effect
and comply with all conditions of any and all applicable permits, licenses and Governmental
Regulations affecting the use, occupancy,maintenance or other activity involving the Site by the
Storm, under the authority of this License including (without limitation) discharge of
(appropriately treated)materials or wastes into or through any sanitary sewer serving the Site.
Except as otherwise properly discharged in strict accordance with all applicable Governmental
Regulations,the Storm shall cause any and all Hazardous Materials to be removed from the Site
in accordance with applicable permit(s) and removed and transported solely by duly licensed
haulers to duly licensed facilities for final disposal of such materials and wastes. The Storm shall
in all respects handle, treat, deal with and manage any and all Hazardous Materials used on the
Site by the Storm in, on, under or about the Site in connection with its operations in total
conformity with all applicable Governmental Regulations and prudent industry practices
regarding management of such Hazardous Materials. Upon the expiration or earlier termination
of the Term,the Storm shall cause all Hazardous Materials introduced by the Storm or its agents,
employees, or contractors to be removed from the Site in accordance with all applicable
Governmental Regulations. The Storm shall not take or permit any remedial action in response
to the presence of any Hazardous Materials in or about the Site, nor enter into any settlement
agreement, consent decree or other compromise with respect to any claims relating to any
Hazardous Materials in any way connected with the Site, without first notifying the Agency of
the Storm's intention to do so and affording the Agency ample opportunity to appear, intervene
or otherwise appropriately assert and protect the Agency's interest with respect thereto.
(c) The Storm shall immediately notify the Agency in writing of-
(i) any enforcement, cleanup, removal or other governmental or regulatory action that the Storm
becomes aware is instituted, completed or threatened pursuant to any Governmental Regulations
with respect to the Site; (ii) any claim of which the Storm is aware that is made or threatened by
any person against the Storm or the Site relating to damage, contribution, cost recovery
compensation, loss or injury resulting from or claimed to result from any Hazardous Materials;
and (iii) any reports made by the Storm or of which the Storm is aware to any environmental
agency arising out of or in connection with any Hazardous Materials in or removed from the Site,
including any complaints, notices, warnings or asserted violations in connection therewith. The
Storm shall also supply to the Agency as promptly as possible, and in any event within five (5)
business days after the Storm first receives or sends the same, copies of all claims, reports,
complaints, notices,warnings or asserted violations, relating in any way to Hazardous Materials
in or about the Site. The Storm shall promptly deliver to the Agency copies of any hazardous
waste manifests required by applicable Governmental Regulations for the legal and proper
disposal of Hazardous Materials removed from the Site.
(d) The Storm shall indemnify, defend (by counsel reasonably
acceptable to the Agency),protect, and hold the Agency, its officers, employees and agents
harmless from and against any and all claims, actions, administrative proceedings, liabilities,
penalties, forfeitures,judgments, suits, demands, losses or expenses (including remediation costs,
attorneys' fees and litigation expenses), or death of or injury to any person or damage to any
FINALLicenseAgreementStadium.l5_4015-009 10 04/12/01
property whatsoever, arising from or caused in whole or in part, directly or indirectly, by (i)the
Storm's or its employees', agents', contractors' or any party claiming through the Storm,
improper or unlawful use, analysis, storage,transportation, generation of Hazardous Materials to,
in, about or from the Site; or(ii)the Storm's failure to comply with any Hazardous Materials
laws in connection with the Storm's use, operation,maintenance or management of the Site. The
Storm's obligations hereunder shall include (without limitation) and whether foreseeable or
unforeseeable, all costs of any required or necessary repair,cleanup or detoxification or
decontamination of the Site, or the preparation and implementation of any closure, remedial
action or other required plans in connection therewith, and shall survive the expiration or earlier
termination of the Term. For purposes of the release and indemnity provisions hereof, any acts
or omissions of the Storm, or by employees, agents, assignees, contractors or subcontractors of
the Storm or others acting for or on behalf of the Storm(whether or not they are negligent,
intentional,willful or unlawful) shall be attributable to the Storm.
This Section 3.7 shall survive cancellation, termination or expiration of this
License.
4. License Fees.
4.1. Initial Term. During the Initial Term,the Storm shall pay to the Agency
an Annual License Fee in the following amounts:
(a) Year 1 (January 1,2001 -December 31,2001): Three Hundred
Seventy Five Thousand Dollars ($375,000.00) less the Deferral for
a total payment of Three Hundred Fifty Thousand Dollars
($350,000.00) (the"Year 1 Annual License Fee");
(b) Year 2 (January 1,2002 -December 31,2002): Three Hundred
Seventy Five Thousand Dollars ($375,000.00)plus payment of the
Repayment Amount for a total of Three Hundred Eighty Seven
Thousand Five Hundred Dollars ($387,500.00) (the"Year 2
Annual License Fee");
(c) Year 3 (January 1,2003 - December 31,2003): Three Hundred
Seventy Five Thousand Dollars ($375,000.00)plus payment of the
Repayment Amount for a total of Three Hundred Eighty Seven
Thousand Five Hundred Dollars ($387,500.00) (the"Year 3
Annual License Fee");
(d) Year 4 (January 1,2004 - December 31,2004): Three Hundred
Seventy Five Thousand Dollars ($375,000.00) adjusted for any
percentage increase in CPI for Years 1, 2 and 3,but in no event to
exceed Four Hundred Twelve Thousand Five Hundred Dollars
($412,500.00) or be less than Three Hundred Seventy Five
Thousand Dollars ($375,000.00) (the"Year 4 Annual License
Fee");
FINALLicenseAgreementStadium.154015-009 11 04/12/01
Example: Thus, and by way of example only, in the event that the
CPT for the month of December 2003 was 180 and the CPT For
January 2001 was 170 the Year 4 Annual License Fee would be
calculated as follows:
1. December 2003 CPI less January 2001 CPI =Index
Point Change:
180 - 170 = 10.
2. Index Point Change divided by January 2001 CPI =
Percentage Change
10/170 = 0.058.
3. Percentage Change multiplied by $375,000.00 =
Year 4 Additional Amount
0.058 x $375,000.00=$21,750.00
4. $375,000.00+Year 4 Additional Amount= Year 4
Annual License Fee
$375,000.00 + $21,750.00 = $396,750.00
Under this example the calculated amount of$396,750.00
is less than$412,500.00 and would be the Year 4 Annual
License Fee.
(e) Year 5 (January 1,2005 -December 31,2005): The Year 4
Annual License Fee adjusted for any percentage increase in the CPI
for Year 4,but in no event to exceed a four percent(4%) increase
and in no event to be less than the Year 4 Annual License Fee (the
"Year 5 Annual License Fee");
Example: Thus, and by way of example only, in the event that the
CPI for the month of December 2004 was 185,the CPI For January
2004 was 180 and the Year 4 Annual License Fee was $396,750.00
the Year 5 Annual License Fee would be calculated as follows:
1. December 2004 CPI less January 2004 CPT =Index
Point Change:
185 - 180 = 5.
FINALLicenseAgreementStadium.154015-009 12 04/12/01
2. Index Point Change divided by January 2004 CPI=
Percentage Change
5/180 =0.028.
3. Percentage Change multiplied by the Year 4 Annual
License Fee=Year 5 Additional Amount
0.028 x $396,750.00 = $11,109.00
4. Year 4 Annual License Fee+ Year 5 Additional
Amount=Year 5 Annual License Fee
$396,750.00+$11,109.00 = $407,859.00
Under this example the calculated amount of$407,859.00
is less than a 4% increase over the Year 4 Annual License
Fee and would be the Year 5 Annual License Fee.
(f) Year 6 (January 1,2006 -December 31,2006): The Year 5
Annual License Fee adjusted for any percentage increase in the CPI
for Year 5, but in no event to exceed a four percent(4%) increase
and in no event to be less than the Year 5 Annual License Fee (the
"Year 6 Annual License Fee"); and
(g) Year 7 (January 1,2007-December 31,2007): The Year 6
Annual License Fee adjusted for any percentage increase in the CPI
for Year 6, but in no event to exceed a four percent(4%) increase
and in no event to be less than the Year 6 Annual License Fee (the
"Year 7 Annual License Fee").
4.2. Extension Term. During the Extension Term, if any,the Storm shall pay
to the Agency an Annual License Fee as follows:
(a) Year 8 (January 1,2008 -December 31,2008): The Year 7
Annual License Fee adjusted for any percentage increase in the CPI
for Year 7, but in no event to exceed a four percent(4%) increase
and in no event to be less than the Year 7 Annual License Fee (the
"Year 8 Annual License Fee");
(b) Year 9 (January 1,2009 -December 31,2009): The Year 8
Annual License Fee;
(c) Year 10 (January 1,2010 -December 31,2010): The Year 8
Annual License Fee;
FINALLimnseAgreementStadium.15_4015-009 13 04/12/01
(d) Year 11 (January 1,2011 - December 31,2011): The Year 8
Annual License Fee; and
(e) Year 12 (January 1,2012 -December 31,2012): The Year 8
Annual License Fee.
4.3. Deferral. Payment of Twenty Five Thousand Dollars ($25,000.00) of the
Year 1 Annual License Fee shall be deferred to Year 2 and Year 3 (the"Deferral"). The Deferral
shall be paid in two equal installments of Twelve Thousand Five Hundred Dollars ($12,500.00)
each(the "Repayment Amount"). The Storm shall pay the Agency the Repayment Amount on
March 1, 2002 and March 1, 2003.
4.4. Annual License Fee Due Dates.
(a) With the exception of the payment of the Repayment Amount
which shall be paid as set forth in Section 4.3 above, the Storm will pay the Agency the Annual
License Fee in installments each year during the Term as follows:
1. Ten percent(10%) of the applicable Annual License Fee
will be paid by the Storm to the Agency on or before March 1 st each year during the Term; and
2. Fifteen percent(15%) of the applicable Annual License Fee
will be paid by the Storm to the Agency on or before April 15th, May 15th, June 15th, July 15th,
August 15th, and September 15th of each year during the Term.
(b) Each payment described in this Section 4.4 shall be referred to
herein as a"License Fee Installment Payment."
4.5. Maintenance and Operations of Stadium.
(a) Offset of Annual License Fees. The Agency and the Storm are
negotiating and intend to enter into the Maintenance Agreement concurrently with the execution
of this License,however,the parties acknowledge and agree that this License is not conditioned
upon the execution of the Maintenance Agreement and that the parties intend to enter into this
License regardless of whether or not they enter into the Maintenance Agreement. In the event
that the parties do enter into the Maintenance Agreement, the Agency agrees that the amount of
each License Fee Installment Payment may be offset by such amounts as are due and owing to
the Storm by the Agency under the terms and conditions of the Maintenance Agreement. In the
event that the parties do not enter into the Maintenance Agreement or upon the expiration or
earlier termination of the Maintenance Agreement, the Storm shall pay the full amount of each
License Fee Installment Payment to the Agency without offset.
(b) Maintenance and Repair. The parties obligations regarding
maintenance and repair of the Stadium shall be as set forth in the Maintenance Agreement.
Except for the maintenance and repair of the Electronic Message Board which shall be the
obligation of the Storm as set forth in Section 3.4(e) of this License, in the event that the parties
FINALLicenseAgreementStadium.15_4015-009 14 04/12/01
do not enter into the Maintenance Agreement or upon its termination, the Agency shall be
responsible for maintaining and repairing the Stadium by providing (or causing to be provided)7
all of the services, equipment, maintenance and repairs (including capital repairs)that the Agency
was either obligated to provide under the Maintenance Agreement or which the Storm was
providing thereunder and for which it was receiving the Annual Maintenance Fee (as that term is
defined in the Maintenance Agreement").
4.6. Interest. In the event that the Storm fails to make any payment when due
under the terms of this License, including without limitation, the payment of each License Fee
Installment Payment and any payments under Section 3.3(b) of this License,the Storm agrees to
pay Interest to the Agency from the date which is five (5) days after the date any such payment is
due until paid.
5. Revenues.
5.1. Admissions. The Storm will receive and retain all revenues generated
from the sale of admissions to all Storm Games and the Other Storm Events.
5.2. Parking. The Storm will receive and retain all revenues generated from
parking at the Stadium for all Storm Games and the Other Storm Events. The Storm shall be
responsible for providing the proper personnel to operate and secure the parking facilities and all
other such cost related to parking during the Storm Games and Other Storm Events. In addition,
the Storm acknowledges and agrees that the indemnification and hold harmless provisions of this
License set forth in Section 20 hereof specifically apply to the operation of parking by the Storm.
5.3. Concessions. Concession revenues shall be distributed according to the
Concession Agreement to the extent that the Concession Agreement remains in effect. Upon the
expiration or earlier termination of the Concession Agreement the parties agrees to cooperate to
negotiate a mutually acceptable concession services agreement.
5.4. Advertising. The Storm shall be entitled to 100% of any revenues
generated from the Storm's use of the Advertising Elements and the Electronic Message Board.
5.5. Stadium Naming Rights.
(a) Marketing of Naming Rights. Except as set forth herein,the
Storm has the exclusive right to market the sale, lease, license or other transfer of the Naming
Rights and the Agency agrees to cooperate with the Storm in such endeavors provided, however,
that any and all costs in connection therewith shall be borne solely by the Storm and the Agency
shall not incur any costs. Nothing herein shall prevent the Agency from entertaining proposals or
engaging in negotiations regarding the transfer of the Naming Rights from/with entities other
than the Storm.
(b) Naming Rights Agreement. The Storm acknowledges and agrees
that it does not have the right to select the name of the Stadium or transfer the Naming Rights
without the Agency Board's prior written approval which approval shall not be unreasonably
FINALLicenseAgreementStadium.15_4015-009 15 04/12/01
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withheld and that such transfer shall be accomplished by way of a written agreement executed by
the Agency Chairperson following all requisite approvals (the "Naming Rights Agreement"). The
Storm further acknowledges and agrees that the approval of any Naming Rights Agreement will
be presented to the Agency Board at a noticed public meeting. The Agency agrees that it shall
not enter into any Naming Rights Agreement during the Term without the prior written approval
of the Storm which approval shall not be unreasonably withheld. Notwithstanding the foregoing,
the Storm acknowledges and agrees that it shall only have the right to disapprove any Naming
Rights Agreement proposed by the Agency based upon: (1) financial considerations of such
agreement; (2) a conflict with the Storm's existing sponsorships; or(3) a conflict with any
applicable standards established by the League and/or the NA. Both parties acknowledge and
agree that in no event shall any Naming Rights Agreement include any right to name the playing
field, currently named "Pete Lehr Field."
(c) Commission from Sale or License of Naming Rights. In the
event that the Agency enters into a Naming Rights Agreement during the Term of this License,
the Storm shall be entitled to the following revenues from the transfer of the Naming Rights,
irrespective of whether the purchaser was found by the Agency or the Storm (the "Naming Rights
Revenues"):
1. First Two Years of Naming Rights. Commencing on the
commencement date of a Naming Rights Agreement and
ending on the date which is the second anniversary thereof
(the "Initial Naming Rights Period"),the Storm shall be
entitled to receive one hundred percent (100%) of Naming
Rights Revenues;
2. Third Year of Naming Rights Through End of Term.
Following the Initial Naming Rights Period,the Storm shall
be entitled to receive seventy five percent(75%) of Naming
Rights Revenues and the Agency shall be entitled to receive
the other twenty five percent(25%) of Naming Rights
Revenues; and
3. Expiration/Termination of Term. Notwithstanding
anything herein to the contrary, following the expiration or
earlier termination of the Term of this License, the Agency
shall be entitled to receive one hundred percent(100%) of
Naming Rights Revenues and the Storm shall not be
entitled to receive any Naming Rights Revenues.
4. Multiple Naming Rights Agreements. The parties
acknowledge and agree that separate Naming Rights
Agreements may be entered into in connection with
different parts of the Stadium(for example, a Naming
Rights Agreement may be entered into for the name of the
Stadium as a whole and a separate Naming Rights
FINALLiccnseAgreementStadium.15_4015-009 16 04/12/01
Agreement may be entered into regarding right field). In
the case of different Naming Rights Agreements for
different portions of the Stadium,the allocation of Naming
Rights Revenues set forth in this Section 5.5(c) shall apply
to each Naming Rights Agreement as of the
commencement of each such Naming Rights Agreement.
However, in the event that multiple Naming Rights
Agreements are entered into regarding the same portion of
the Stadium,the allocation of Naming Rights Revenues set
forth in this Section 5.5(c) shall commence on the date of
the initial Naming Rights Agreement(for example in the
event that a Naming Rights Agreement is entered into on
January 1, 2002 for the name of the Stadium and the
agreement has a three year term-the Storm would be
entitled to one hundred percent(100%) of the Naming
Rights Revenues for the first two (2)years of the Naming
Rights Agreement and the Naming Rights Revenues for the
third year would be split seventy five (75%)to the Storm
and twenty five percent(25%)to the Agency. If another
Naming Rights Agreement was entered into on January 1,
2006 for the name of the Stadium all Naming Rights
Revenues under such agreement during the Term of this
License would be split seventy five percent(75%)to the
Storm and twenty five percent(25%)to the Agency and
following the end of the Term of this License the Agency
would be entitled to one hundred percent(100%) of the
Naming Rights Revenues.)
(d) Allocation of Lump Sum or Uneven Payments. To the extent
the Naming Rights Agreement calls for the"front loading" of Naming Rights Revenues, the
Agency and the Storm agree that for purposes of calculating the Naming Rights Revenues for
distribution to the Agency and the Storm pursuant to this License, such Naming Rights Revenues
shall be allocated fairly between the Agency and the Storm as agreed to in writing by the parties
with the intention to evenly apply the payment over the term of the Naming Rights Agreement.
(e) Term of Naming Rights Agreement. The term of the Naming
Rights Agreement shall expire no later than the end of the Term unless the Agency expressly
agrees to a longer term.
(f) Name of Stadium. Unless otherwise agreed to by the Agency
Board in writing, any transfer of the Naming Rights shall require that:
1. "Lake Elsinore"remain as a component of any name
selected for the Stadium;
FINALLicenseAgreementStadium.154015-009 17 04/12/01
--------------
2. The name of the City shall appear not more than four(4)
words or seven(7) syllables from the front of the selected
name, for example the name "Widgets Corporation Field at
Lake Elsinore"would not meet this criteria as the name of
the City is more than both four(4)words and (7) syllables
from the front of the name but the name"Widgets Field at
Lake Elsinore"would meet this criteria;
3. The selected name shall be appropriate as reasonably
determined by the Agency in light of the use of the
Stadium.
5.6. Licensed Merchandise Sales. Subject to the terms and conditions of the
Concession Agreement, and/or any such other concession agreement entered into by the parties
hereto,the Storm has the right to sell its own licensed merchandise during Storm Games and
Other Storm Events. The Agency shall be entitled to utilize the Retail Store and/or set up a
booth during Storm Games and Other Storm Events to sell Lake Elsinore related merchandise
provided that: (i)the Storm shall not incur any costs in connection therewith; (ii)the Sale of Lake
Elsinore related merchandise does not interfere with the sale of Storm and/or baseball
merchandise; and (iii)the Agency shall obtain the written approval of the concessionaire if
necessary.
6. Imposition of Admissions Taxes.
6.1. Credit. If the Storm is required to pay Admission Taxes at any time
during the Term of this License,then the Storm shall be entitled to a credit against the Annual
License Fee in the following amounts:
(a) During the Initial Term of this License,the Storm shall be entitled
to a credit in an amount equal to any and all Admissions Taxes remitted by the Storm to the City;
and
(b) During the Extension Term, if any, the Storm shall be entitled to a
credit in an amount equal to:
1. Any and all Admissions Taxes remitted by the Storm to the
City calculated on Gross Ticket Revenues up to the Gross
Ticket Revenue Base; and
2. An amount, if any, of Admissions Taxes remitted by the
Storm to the City in excess of ten percent(10%) of Gross
Ticket Revenues which exceed the Gross Ticket Revenues
Base.
Thus, and by way of example only, assuming that during Year 9: i) an
Admissions Tax of 15% of Gross Ticket Revenues is in place; ii)the
FINALLicenseAgreementStadium.15_4015-009 18 04/12/01
Storm has Gross Ticket Revenues of Three Million Dollars
($3,000,000.00); and iii)the Storm actually remitted to the City Four
Hundred Fifty Thousand Dollars ($450,000.00) in Admissions Taxes,the
Storm would be entitled to a total credit during Year 9 of Three Hundred
Fifty Thousand Dollars ($350,000.00). The amount of the credit is
determined as follows:
1. All Admissions Taxes calculated on Gross Ticket Revenues
up to the Gross Ticket Revenues Base:
15%of$2,000,000.00 = $300,000; and
2. Admissions Taxes remitted by the Storm to the City in
excess of ten percent(10%) of Gross Ticket Revenues
which exceed the Gross Ticket Revenues Base.
Gross Ticket Revenues ($3,000,000.00) - Gross Ticket
Revenues Base ($2,000,000.00)= $1,000,000.00
10% of$1,000,000.00= $100,000.00
Storm remitted Admissions Tax equal to 15%of
$1,000,000.00=$150,000.00
$150,000.00 - $100,000.00= $50,000.00.
6.2. Admissions Tax Credit Demand. The credits set forth in Sections 6.1(a)
and 6.1(b) above are hereinafter collectively referred to as "Admissions Tax Credits." From time
to time, but no more than four (4)times in any year during the Term,the Storm may request an
offset against any then due and owing License Fee Installment Payments in the amount of the
Admissions Tax Credits ("Admissions Tax Credit Demand"). Notwithstanding the foregoing, in
the event the Agency has a good faith dispute with the amount of Admission Tax Credit
demanded based upon the documentation submitted or lack thereof,the Agency and the Storm
shall exercise their best efforts to resolve the dispute and the Storm shall be entitled to a credit in
the amount of the agreed upon Admissions Tax Credit within not less than sixty (60) days from
the date of receipt of the written Admissions Tax Credit Demand. The Agency acknowledges
and agrees that the Admissions Tax will be collected by the taxing authorities and not the Agency
and, accordingly, that the Agency will be required to make the Admissions Tax Credit(s)
regardless of whether the Agency actually receives the Admissions Taxes.
6.3. Documentation. The Storm's Admissions Tax Credit Demand shall be in
writing and shall include financial records certified by the Storm, setting forth the amount of
Admissions Taxes collected and remitted to the City in connection with the Storm's operation of
the Site and shall specify the amount of Admissions Tax Credits demanded by the Storm and the
applicable time period. Upon the Agency's demand,the Storm shall provide the Agency with
such other documents reasonably requested by the Executive Director. In addition, the Agency
FINALLicenseAgreementStadium.15_4015-009 19 04/12/01
shall have the right, upon reasonable notice, to inspect the Storm's books and records relating to
such statements and records.
6.4. No Excess Amount. Notwithstanding anything herein to the contrary, in
no event shall the amount to be credited by the Agency to the Storm under this Section 6 exceed
the amount of Admissions Taxes actually remitted by the Storm to the City.
7. Other Taxes. With respect to any taxes that may be charged or imposed
(including, but not limited to, ad valorem taxes, sales taxes, income taxes, etc.),the Agency will
indemnify the Storm to the extent any such taxes result from the Agency's operations and the
Storm will indemnify the Agency to the extent any such taxes result from its operations. In
addition, to the extent possible, the Agency and the Storm will each obtain indemnity from its
contractors such as the concessionaire,restaurant operator, and contractors. The Storm
acknowledges that this License may create a possessory interest subject to property taxation and
if such an interest is created the Storm may be subject to the payment of property taxes levied on
the interest.
8. Tickets to Storm Games. The Agency or its designees will be entitled to request
and receive up to three hundred (300)tickets per season to the Storm Games, subject to
reasonable availability, with a maximum of thirty (30)tickets to any one Storm Game, at no cost
to the Agency or its designees.
9. Agency Suite and Parking at Storm Games and Other Storm Events. The
Agency or its designees shall have the right to use the Agency Suite during all of the Storm
Games and Other Storm Events at no charge to the Agency or its designees. In addition,the
Storm shall reserve to the Agency or its designees up to ten(10) reserved parking spaces for each
Storm Game and each Other Storm Event, at no cost to the Agency or its designees.
10. Lehr Seats and Parking. The Storm shall continue the historical practice of the
Agency and Lakeside of providing the Lehr family with the Lehr Family Seats and three (3)
reserved parking spaces for each Storm Game.
11. Utilities. The Agency shall provide, or cause to be provided, all utilities,
including water, sewer, telephone, gas,refuse and electricity (the "Utilities") necessary for all
Storm Games at the Stadium, including such cost attributed to the use of the Storm Office,
except for telephone charges incurred by the Storm which shall be paid for by the Storm.
Notwithstanding the foregoing, the Agency shall only be required to pay for electricity, including
without limitation electrical charges for the Electronic Message Board, in connection with Storm
Games in the amount as follows:
(a) Year 1 (January 1,2001 -December 31,2001): One Hundred Ten
Thousand Dollars ($110,000.00) (the"Electricity Base");
(b) Year 2 (January 1,2002 -December 31,2002): The Electricity Base;
(c) Year 3 (January 1, 2003 -December 31,2003): The Electricity Base;
FINALLicenseAgreementStadium.154015-009 20 04/12/01
(d) Year 4 (January 1,2004 -December 31,2004): The Electricity Base
adjusted for any Percentage Increase in CPI for Years I, 2 and 3, but in no
event to exceed One Hundred Twenty One Thousand Dollars
($121,000.00) or be less than the Electricity Base (the "Year 4 Electricity
Base");
Example: For an example of the calculation of the percentage
increase in CPI for Years 1, 2, and 3 refer to Section 4.1(d) of this
License.
(e) Year 5 (January 1, 2005 - December 31,2005): The Year 4 Electricity
Base adjusted for any percentage increase in the CPI for Year 4, but in no
event to exceed a four percent(4%) increase and in no event to be less
than the Year 4 Electricity Base (the "Year 5 Electricity Base");
Example: For an example of the percentage increase in CPI for
Year 4 please refer to Section 4.1(e) of this License.
(f) Year 6 (January 1,2006 -December 31,2006): The Year 5 Electricity
Base adjusted for any percentage increase in the CPI for Year 5, but in no
event to exceed a four percent(4%) increase and in no event to be less
than the Year 5 Electricity Base (the "Year 6 Electricity Base");
(g) Year 7 (January 1,2007-December 31,2007): The Year 6 Electricity
Base adjusted for any percentage increase in the CPI for Year 6,but in no
event to exceed a four percent(41/o) increase and in no event to be less
than the Year 6 Electricity Base (the"Year 7 Electricity Base");
(h) Year 8 (January 1,2008- December 31,2008): The Year 7 Electricity
Base adjusted for any percentage increase in the CPI for Year 7, but in no
event to exceed a four percent(4%) increase and in no event to be less
than the Year 7 Electricity Base (the "Year 8 Electricity Base");
(i) Year 9 (January 1,2009 -December 31,2009): The Year 8 Electricity
Base;
(j) Year10 (January 1,2010 -December 31, 2010): The Year 8 Electricity
Base;
(k) Year 11 (January 1,2011 -December 31,2011): The Year 8 Electricity
Base; and
(1) Year 12 (January 1,2012 -December 31,2012): The Year 8 Electricity
Base.
FINALLicenseAgreementStadium.15_4015-009 21 04/12/01
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12. Alterations. The Storm will not make any improvements or alterations, whether
structural or non-structural,to the Stadium without first obtaining the prior written approval of
the Executive Director which approval will not be unreasonably withheld. Any agreed upon
improvements or alterations, including any signage,will be made or installed only through the
Agency. Any alterations made by the Storm in existence as of the Date of this License are hereby
deemed to be approved by the Executive Director. The Storm acknowledges and agrees that as
of the Date of this License the Agency shall not be required to make any changes or alterations to
the Stadium in order to comply with any standards established by the League or the NA for
facilities utilized for playing professional baseball. In the event that the standards established by
the League and/or the NA require future changes or alterations to the Stadium,the Agency and
the Storm agree to meet in good faith to discuss such changes or alterations including any
allocation of costs between the parties.
13. Insurance.
13.1. Classes of Insurance to be Provided by the Storm. Commencing on the
Commencement Date and at all times thereafter through and during the Term,the Storm at its
own cost and expense, shall procure and maintain, for the duration of this License,the following
insurance:
(a) Workers' Compensation Coverage. The Storm shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for its employees in
accordance with the laws of the State. In addition, the Storm shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in
accordance with the laws of the State for all of the subcontractor's employees. Any notice of
cancellation or non-renewal of all Workers' Compensation policies must be received by the
Agency at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of
subornation against the Agency,the City,their officers, agents, employees and volunteers for
losses arising from activities performed by the Storm.
(b) General Liability Coverage. The Storm shall maintain
commercial general liability insurance in an amount not less than Two Million Dollars
($2,000,000)per occurrence for bodily injury, personal injury and property damage with an
aggregate minimum limitation liability in an amount not less than Five Million Dollars
($5,000,000).
(c) Automobile Liability Coverage. The Storm shall maintain
automobile liability insurance covering bodily injury and property damage for all activities of the
Storm arising out of or in connection with the work to be performed under this License,
including coverage for owned, hired and non-owned vehicles, in an amount of not less than One
Million Dollars ($1,000,000) combined single limit for each occurrence with an aggregate
minimum limitation liability in an amount not less than Five Million Dollars ($5,000,000).
13.2. Endorsements. Each general liability and automobile liability insurance
policy shall be with insurers possessing a Best's rating of no less than ANII and shall be
endorsed with the following specific language:
FINALLicenseAgreementStadium.154015-009 22 04/12/01
(a) The Agency, the City,their elected or appointed officers, officials,
employees, agents and volunteers are to be covered as additional insureds with respect to liability
arising out of work performed by or on behalf of the Storm, including materials,parts or
equipment furnished in connection with such work or operations.
(b) This policy shall be considered primary insurance as respects the
Agency, its elected or appointed officers, officials, employees, agents and volunteers. Any
insurance maintained by the Agency, including any self-insured retention the Agency may have,
shall be considered excess insurance only and shall not contribute with it.
(c) This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with respect to the limits of liability of
the insuring company.
(d) The insurer waives all rights of subornation against the Agency and
the City,their elected or appointed officers, officials, employees or agents.
(e) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to the Agency, its elected or appointed officers, officials,
employees, agents, or volunteers.
(f) The insurance provided by this Policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice
has been received by the Agency.
13.3. Deductibles and Sclf-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the Agency. At the Agency's option, the
Storm shall demonstrate financial capability for payment of such deductibles or self-insured
retentions.
13.4. Certificates of Insurance. The Storm shall provide certificates of
insurance with original endorsements to the Agency as evidence of the insurance coverage
required herein. Certificates of such insurance shall be filed with the Agency on or before the
Commencement Date. Current certification of insurance shall be kept on file with the Agency at
all times during the Term.
14. Assignment.
14.1. Assignment by the Storm. The Storm may assign this License,provided,
however, that any assignment of this License by the Storm will be subject to the Executive
Director's reasonable written approval based upon the demonstrated ability of any such assignee
to meet all of the obligations of the Storm under this License. Any approved assignee will be
subject to all of the terms and conditions of this License and the continuing Guaranty will remain
in full force and effect. Notwithstanding the foregoing,the Agency will release the Guaranty
upon the demonstrated ability of the proposed assignee to provide the Agency with equal
assurances of protection that the proposed assignee can meet all of the obligations of the Storm
FINALLicenseAgreementStadium.154015-009 23 04/12/01
under this Agreement including without limitation the covenant to play baseball and to pay the
Annual License Fee; such release, if any will be made in the sole and absolute discretion of the
Agency.
14.2 Assignment by the Agency.
(a) Notice of Assignment. The Agency is currently entertaining offers
for the sale of the Stadium. Any sale or other transfer of the Agency's interest in the Stadium
may be made in the sole and absolute discretion of the Agency and shall be subject to the terms
and conditions of this License and the Maintenance Agreement. The Agency shall give the
Storm not less than thirty (30) days written notice prior to any proposed transfer of the Stadium
and assignment of this License. Concurrently with the notice of the assignment,the Agency shall
provide the Storm with all documentation received by the Agency regarding the ability of any
proposed transferee to meet the Agency's obligations under this License and the Maintenance
Agreement. In the event that such information is not a matter of public record,the Storm agrees
to execute a mutually acceptable confidentiality or non-disclosure agreement. The Storm shall
submit written comments regarding the proposed transferee to the Executive Director within
thirty (30) days of receipt of the documentation from the Agency.
(b) Agency Obligations Upon Transfer. The Agency agrees to
transfer the Stadium only to a bona fide transferee for value and to include in any agreement for
the transfer of the Stadium obligations for the maintenance, repair and operation of the Stadium
(the "Stadium Obligations") including a provision for specific performance of the Stadium
Obligations by the transferee in the event of a default and giving the Agency the ability to cure
any such default following applicable notice and cure periods. The Stadium Obligations and the
Agency's cure rights shall remain in effect for the Term of this License and shall name the Storm
as an intended third party beneficiary.
(c) Release of the Agency.
(i) If at the time of the transfer of the Agency's interest in the
Stadium,the Storm is reasonably satisfied that the proposed transferee has the ability to meet the
Agency's obligations under this License and the Maintenance Agreement, the Storm shall so
indicate in writing to the Executive Director and the Agency shall have no further obligations
under this License and/or the Maintenance Agreement.
(ii) If at the time of the transfer of the Agency's interest in the
Stadium,the Storm is not reasonably satisfied that the proposed transferee has the ability to meet
the Agency's obligations under this License and the Maintenance Agreement,the parties hereto
agree as follows: 1)the Storm shall provide the Agency with a copy of any notice of default
given by the Storm to the transferee and any notices of default received by the Storm from the
transferee under this License and/or the Maintenance Agreement; and 2) in the event of an
uncured default of the transferee during the Initial Term, and provided that the Storm is not in
default of its obligations under this License and/or the Maintenance Agreement, the Agency shall
upon written request by the Storm exercise its rights to cure.Notwithstanding the foregoing, in
FINALLicenseAgreement5tadium.15 4015-009 24 04/12/01
no event shall the Agency be obligated to expend more than a total amount of Three Hundred
Thousand Dollars ($300,000.00)to cure any defaults of the transferee (the "Cure Limit"). In
addition to the foregoing, in the event that at the time of the transfer of the Agency's interest in
the Stadium,the Storm is not reasonably satisfied that the proposed transferee has the ability to
meet the Agency's obligations under this License and the Maintenance Agreement,the Storm
shall have the right to terminate this License and the Maintenance Agreement: 1) at any time
during the two year period following the transfer of the Agency's interest in the Stadium such
termination being effective at the end of the second full baseball season following the transfer of
the Agency's interest in the Stadium, and 2) in the event that the Agency cures a default by
transferee of the Stadium Obligations such termination being effective at the end of the second
full baseball season following the cure by the Agency. The Storm shall provide the Agency and
the transferee with written notice of termination. In the event that the Storm is not reasonably
satisfied with the transferee of the Agency's interest in the Stadium,the Agency shall have no
further obligations under this License and/or the Maintenance Agreement upon the earlier to
occur of: 1)the expenditure by the Agency of the Cure Limit; or 2)the expiration or earlier
termination of the Initial Term.
(d) Transfer to the City. The provisions of this Section 14.2 shall not
apply to a transfer to the City which the Agency may do freely and in its sole and absolute
discretion provided that the Agency shall give the Storm written notice of such transfer and that
such transfer shall be subject to the terms and conditions of this License and the Maintenance
Agreement.
15. Controlling Law Venue. This License and all matters relating to it shall be
governed by the laws of the State and any action brought relating to this License shall be held
exclusively in a state court in the County of Riverside.
16. Litigation Expenses and Attorneys' Fees. If either parry to this License
commences any legal action against the other parry arising out of this License,the prevailing
party shall be entitled to recover its reasonable litigation expenses, including court costs, expert
witness fees, discovery expenses, and attorneys' fees.
17. Mediation. The parties agree to make a good faith attempt to resolve any
disputes arising out of this License through mediation prior to commencing litigation. The parties
shall mutually agree upon the mediator and share the costs of mediation equally. If the parties are
unable to agree upon a mediator,the dispute shall be submitted to JAMS/ENDISPUTE
("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five
qualified mediators. Each party shall have the option to strike two of the five mediators selected
by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains
unresolved after mediation, either parry may commence litigation.
18. Execution. This License may be executed in several counterparts, each of which
shall constitute one and the same instrument and shall become binding upon the parties when at
least one copy hereof shall have been signed by both parties hereto. In approving this License, it
shall not be necessary to produce or account for more than one such counterpart.
FMALLicenseAgreementStadium.15_4015-009 25 04/12/O1
19. Status. At all times during the Term,the Storm, its agents, contractors and
employees, shall be and remain independent contractors, and shall not be considered to be agents,
employees,partners or joint venturers of the Agency or its affiliates or designees.
20. Indemnification and Hold Harmless. The Agency and the Storm shall each
indemnify, defend and hold harmless,the other party, and their respective agents, officers,
members, managers, employees, contractors and affiliated and related entities from any and all
losses or damage and from any and all liability, suits, actions or claims brought or made by any
person or persons arising or resulting from any and all activities and operations of a particular
parry,that party's agents, employees, contractors, members, managers, affiliates, successors and
assigns, in and about the Stadium or arising out of the use of the Stadium, or any part thereof by
the applicable parry, that party's agents, employees, contractors, members, managers, affiliates,
successors and assigns and for any injury or damage to the person of property in about or at the
Stadium while the applicable party or its agents, employees, contractors,members, managers,
affiliates, successors or assigns are occupying the Stadium, or any part thereof, for any reason or
in any fashion to the maximum extent permitted by law.
21. Destruction.
21.1. Restoration. If, during the Term, the Stadium is totally or partially
destroyed from any cause covered by insurance of the City,the Agency or the Storm,which
renders the facility totally or partially inaccessible or unusable and, if under the existing laws, the
restoration can reasonably be completed using such insurance proceeds by the earlier of(i) within
one hundred eighty (180) days after the destruction, or(ii)thirty (30)days prior to the opening
day of the upcoming baseball season,the Agency shall cause the Stadium to be restored to
substantially the same condition as it was in immediately before destruction, and such destruction
shall not terminate the License
21.2. Termination. If the restoration cannot be made in the time stated above
in subsection 21.1,then within fifteen(15) business days after the parties determine that the
restoration cannot be made in said time,the Storm may terminate this License immediately by
giving notice to the Agency. If the Storm fails to terminate this License,the Agency, at its
election, may either terminate this License, or restore the facility within a reasonable time, and
this License shall continue in full force and effect.
21.3. Baseball Season. When such destruction occurs during the baseball
season, the Storm may conduct the remainder of its home games during that season within some
other facility without impairment of any of its rights hereunder and the Annual License Fee for
that season due hereunder shall be equitable adjusted
22. Events of Default,Remedies.
22.1. Events of Default by the Storm. The following events are hereinafter
referred to as "Events of Default by the Storm":
FINALLicenseAgreementStadium.15_4015-009 26 04/12/01
(a) The Storm's failure to keep,perform and observe each and every
promise, covenant, condition and agreement set forth in this License on its part to be kept,
performed or observed within thirty (30) days after written notice of default thereunder from the
Agency, except where fulfillment of the Storm's obligation requires activity over a period of time
and the Storm shall have commenced to perform whatever may be required to cure the particular
default within ten(10)days after such notice and continues such performance diligently and
without interruption except for causes beyond its control.
(b) The Storm's failure to duly and punctually make any payments to
the Agency as required hereunder, including, without limitation,payment of any Annual License
Fee and/or Installment Payment when due to the Agency within thirty (30) days after written
notice from the Agency for nonpayment thereof.
(c) The happening of any act which results in the suspension or :
revocation of the rights,powers, licenses, permits and authorizations, including, without
limitation, the Storm's franchise from professional baseball necessary for the conduct of the
Storm operations authorized herein,which causes an interruption in the playing of games for a
period of thirty (30) days or more.
(d) The interest or estate of the Storm under this License by operation
of law, being assigned or transferred to,passed to or revolved upon, any other person, firm or
corporation, except as specifically permitted in this License.
(c) The Storm, without the prior written approval of the Agency,
becoming a participant corporation in a merger(whether or not surviving), a constituent
corporation in a consolidation, or a corporation in dissolution, except as specifically permitted
hereunder.
(f) The levy of any attachment or execution, or the appointment of any
receiver, or the execution of any other process of any court of competent jurisdiction which does
or as a consequence of such process will prevent the Storm's use and occupancy hereunder or
otherwise interfere with its operations hereunder, and which attachment, execution,receivership,
or other process of such court is not vacated, dismissed, or set aside within a period of sixty (60)
days.
(g) The Storm becoming insolvent, or taking the benefit of any present
or future insolvency statute, or making a general assignment for the benefit of creditors, or filing
a voluntary petition in bankruptcy, or a petition or answer seeking an arrangement for its
reorganization, or the readjustment of its indebtedness under the federal bankruptcy laws or
under any other law of statute of the United States, or of any state law, or consent to the
appointment of a receiver,trustee or liquidator, and such act prevents the Storm from conducting
games at the Stadium for a period of thirty (30) days or more.
(h) By order or decree of a court,the Storm being adjudged bankrupt,
or an order made approving a petition filed by any of the creditors seeking its reorganization or
the readjustment of its indebtedness under the federal bankruptcy laws, or under any law or
FINALLicenseAgreementStadium.15 4015-009 27 04/12/01
statute of the United States, or any state thereof and such act prevents the Storm from conducting
games at the Stadium for a period of thirty (30) days or more.
(i) A petition under any part of the federal bankruptcy laws, or an
action under any present or future solvency law or statute shall be filed against the Storm which
is not dismissed within ninety (90) days after the filing thereof and which prevents the Storm
from conducting games at the Stadium for a period of thirty (30) days or more.
(j} By or pursuant to, or under authority of any legislative act,
resolution or rule or any order or decree of any court, governmental board, agency, or officer
having jurisdiction, a receiver, trustee, or liquidator taking possession or control of all or
substantially all of the property of the Storm, and such possession or control shall continue in
effect for a period of ninety (90) days and prevents the Storm from conducting games at the
Stadium for a period of thirty (30) days or more.
(k) Any lien(including,without limitation, mechanic's and
materialmen's liens) is filed against the Stadium because of any act or omission of the Storm and
is not removed or bonded against within ninety (90) days. Nothing in this section shall require
the Storm to monitor, observe or pay any tax, lien, claim, charge or demand so long as the
validity or enforceability thereof shall be contested in good faith to the extent appropriate.
22.2. No Waiver-Annual License Fee. No acceptance by the Agency of the
Annual License Fee or other payments, for any period or periods after a default of any of the
terms, covenants and conditions to be performed, kept or observed by the Storm (other than the
non-payment of the Annual License Fee) shall be deemed a waiver of any right on the part of the
Agency to terminate this License on account of such default.
22.3. No Other Waiver. No waiver by The Agency of any default on the part
of the Storm in the performance of any of the terms, covenant, or conditions hereof to be
performed, kept or observed by the Storm shall be or be construed to be a waiver by the Agency
of any other or subsequent default in performance of any of said terms, covenants and conditions.
22.4. Agency Remedies. If any of the Events of Default by the Storm
enumerated in this section occur subsequent to the Storm's entering into use and occupancy of
the Stadium or any part thereof, and after due notice as provided herein, the Storm has failed to
cure or correct such default,then, in addition to any and all rights and remedies of the Agency
hereunder and/or by law provided,the Agency shall have the right:
(a) To declare the Term hereof ended as to the Stadium licensed
hereunder and to re-enter such Stadium and take possession thereof and remove all persons
connected with the Storm therefrom and the Storm shall have no further claim thereon or
hereunder.
(b) To request in writing a written report from the Storm concerning
all of its debts and obligations, financial status and prospective income. If such report is not
delivered to the Agency within one month thereafter,prepared by the Storm's accountants, it
FINALLicenseAgreementStadium.15_4015-009 28 04/12/01
shall be the right of the Agency's representatives and accountants to inspect all books of accounts
and records of the Storm for the purpose of obtaining such information. From the date of such
request,the Storm shall not make any further arrangements for the presentation of any such event
in the Stadium unless authorized in writing by the Agency to do so. The Storm shall be
permitted to continue to present any event that is under contract at such time to take place in the
Stadium. The Storm shall also be permitted to finish out all or part of the remainder of its
season. Upon receiving the financial information above specified and examining the same, it
shall be the right, but not the obligation, of the Agency to declare the Term hereof ended, to
specify the termination date, and on said termination date to re-enter the Stadium and remove all
persons connected with the Storm therefrom and the Storm shall have no further claim thereon or
hereunder.
(c) The remedies given to the Agency in this Section 22.4 shall be in
addition and supplement to all other rights or remedies which the Agency may have under the
laws then in force.
(d) The Storm hereby waives any and all rights of redemption granted
by or under any present or future law, or statute, arising in the event it is evicted or dispossessed
for any cause or in the event the Agency obtains or retains possession of the Stadium or any part
thereof in any lawful manner.
(e) If the Event of Default of the Storm enumerated in Section 22.1
can be cured, corrected or mitigated by the Agency, the Agency may take such action as it deems
necessary and appropriate to cure, correct or mitigate such default, but withoui�any obligation to
do so.
23. Events of Default by the Agency and the Storm's Remedies.
23.1. Events of Default by the Agency. The Agency's failure to keep,perform
and observe each and every promise, covenant, condition and agreement set forth in this License
on its part to be kept,performed or observed within thirty (30) days after written notice of default
thereunder from the Storm, except where fulfillment of the Agency's obligation requires activity
over a period of time and the Agency shall have commenced to perform whatever may be
required to cure the particular default within ten(10) days after such notice and continues such
performance diligently and without interruption except for causes beyond its control shall be
hereinafter referred to as an"Event of Default by the Agency."
23.2. No Waiver. No waiver by the Storm of any default on the part of the
Agency in the performance of any of the terms, covenants, or conditions hereof to be performed,
kept or observed by the Agency shall be or be construed to be a waiver by the Storm of any other
or subsequent default in performance of any of said terms, covenants and conditions.
23.3. Termination. If the Event of Default by Agency enumerated in Section
23.1 of this License occur subsequent to the Storm's entering into the use and occupancy of the
Stadium or the Storm Office, or any part thereof, and after notice as provided herein,the Agency
has failed to cure or correct,then in addition to any and all rights and remedies of the Storm
FINALLicenseAgreementStadium.15_4015-009 29 04/12/01
hereunder and/or by law provided, it shall be the right of the Storm to declare the Term hereof
terminated by written notice to the Agency and to surrender the Stadium and the Agency shall
have no further claim upon the Storm thereon or hereunder; provided,however, the Storm shall
remove all of its equipment, supplies, furnishings, inventories,removable fixtures and other
personal property at the Agency's expense and without damage to the Stadium.
23.4. Mitigation. If the Event of Default of the Agency enumerated in Section
23.1 can be cured, corrected or mitigated by the Storm,the Storm may take such action as it
deems necessary and appropriate to cure, correct or mitigate such default,but without any
obligation to do so.
23.5. Remedies. The remedies given to the Storm in this Section 23 shall be in
addition to and supplemental to all other rights or remedies which the Storm may have under the
laws then in force.
24. Further Assurances. The Agency and the Storm will each take any and all other
actions, and execute and deliver any and all other documents, as may be required or reasonably
requested in order to effectuate the terms and provisions set forth in this License.
25. Guaranty. The Storm is a wholly owned subsidiary of Mandalay and under the
Guaranty Mandalay agrees to guaranty each and every obligation of the Storm incurred pursuant
to or in furtherance of this License. The execution and delivery of the Guaranty by Mandalay is a
condition precedent to the Agency entering into this License. But for the provision of the
Guaranty,the Agency would not be entering into this License with the Storm and the Agency is
materially relying on such Guaranty.
26. Entire Agreement,Modification. This License consisting of 33 pages and
Exhibits "A"through"E" each of which is incorporated herein by reference contains the entire
agreement between the parties regarding the subject matter hereof. No verbal agreement or
implied covenant shall be held to vary the provisions hereof, any statements, law or custom to
the contrary notwithstanding. No promise, representation,warranty, or covenant not included in
this License has been or is relied on by either party. Each party has relied on its own inspection
of the Site, examination of this License, the counsel of its own advisors, and the warranties,
representations, and covenants in this License itself. The failure or refusal of either party to
inspect the Site, to read this License or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim that might
have been based on such reading, inspection, or advice. No provision of this License may be
amended or varied except by an agreement in writing signed by the parties hereto or their
respective successors.
27. Authority. The Agency and the Storm each represent and warrant to the other
party that they have all necessary right,power and authority to enter into this License, and to
fully perform each and all of their respective obligations hereunder.
FINALLicenseAgreementStadium.15_4015-009 30 04/12/01
28. Other Claims. The agreement herein is not intended to deprive either parry of
any claims it may have against Lakeside or any related entity nor shall it obligate either party to
assume any of Lakeside's liabilities under the Letter Agreement or the Stadium Lease.
29. Non-Discrimination. The Storm herein covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of, any person
or group of persons on account of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Stadium, nor shall the Storm itself or any person claiming under or through it
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, subtenants, or vendees of the
Stadium. The foregoing covenants shall run with the land and shall survive the termination of
this Agreement, and any contracts, subleases, agreements, licenses or other instruments entered
into pursuant to this Agreement. The Storm shall refrain from restricting the rental, lease or
license of the Stadium on the basis of race, color, creed, religion, sex,marital status, handicap,
national origin or ancestry of any person. All such leases, subleases, licenses or contracts shall
contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In leases, subleases and licenses: "The tenant herein covenants by and for
himself or herself,his or her heirs, executors, administrators and assigns, and all persons
claiming under or through him or her, and this instrument is made and accepted upon and subject
to the following conditions: "There shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex,marital status,
handicap, ancestry or national origin in the leasing, subleasing,transferring,use, occupancy,
tenure or enjoyment of the premises herein leased nor shall the tenant himself or herself, or any
person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, subtenants or vendees in the premises herein leased."
(b) In contracts: "There shall be no discrimination against or segregation of,
any person, or group of persons on account of race, color, creed,religion, sex,marital status,
handicap, ancestry or national origin, in the lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number,use or occupancy of tenant,
subtenants, or vendees of the premises."
30. Notice. All notices, requests, demands or documents which are required or
permitted to be given or served hereunder shall be in writing and delivered personally or
delivered by United States mail, postage prepaid, certified return receipt requested, or a national
or regional overnight courier(e.g., FedEx, Overnight Express, etc.) addressed as follows:
To the Agency at: The Redevelopment Agency of the City of Lake Elsinore
130 S. Main Street
Lake Elsinore, California 92530
Attn: Executive Director
F[NALLicenseAgreementStadium,l5 4015-009 31 04/12/01
Tel: (909) 674-3124
Fax: (909) 674-2392
with a copy to: Barbara Zeid Leibold, Esq.
Van Blarcom, Leibold, McClendon&Mann, PC
307 E. Chapman
Orange, California 92866
Tel: (714) 639-6700
Fax: (714) 639-7212
To the Storm: Storm
500 Diamond Drive
Lake Elsinore, California 92531
Tel: (909) 245-4487
Fax: (909)245-0308
Attn: General Manager
with a copy to: Loyd E. Wright, Esq.
Law Offices of Loyd E. Wright III
3991 MacArthur Boulevard, Suite 175
Newport Beach, California 92660
Tel: (949) 833-8844
Fax: (949) 833-8898
with a copy to: Paul Schaeffer c/o Mandalay Pictures
Mandalay Sports Entertainment LLC
5555 Melrose Avenue, Lewis Building
Hollywood, California 90038
Tel: (323)956-8759
Fax: (323)862-2233
Notice shall be deemed to have been delivered only upon actual delivery to the intended
addressee in the case of either personal service or courier. The addresses for purposes of this
Section 31 may be changed by giving written notice of such change in the manner provided
herein for giving notices. Unless and until such written notice is delivered,the latest information
stated by written notice, or provided herein if no written notice of change has been delivered,
shall be deemed to continue in effect for all purposes hereunder.
31. Severability. The invalidity or illegality of any provision shall not affect the
remainder of this License and all remaining provisions shall, notwithstanding any such invalidity
or illegality, continue in full force and effect.
32. Administration. Unless clearly indicated otherwise, any action, decision,
direction, notice or approval to be given by the Agency hereunder may be given by the Executive
Director,provided,however that the Executive Director, in his/her absolute discretion may
determine that such matter must be submitted to the Agency Board. Unless clearly indicated
FINALLicenseAgreementStadium.15_4015-009 32 04/12/01
otherwise, any action, decision, direction, notice or approval to be given by the Storm hereunder
may be given by the Storm's General Manager,provided, however that the General Manager in
his/her absolute discretion may determine that such matter must be submitted to the Storm's
Board of Directors.
IN WITNESS WHEREOF, the parties have executed this License on the respective
dates set forth below.
STORM, LLC,a California limited liability
corporatio
DATED: , 2001 By:
Paul Schaeffer, e Chairman
REDEVELOPMENT AGENCY OF THE
CITY OF LAKE ELSINORE, a public
body, corporate and politic
� �
DATED: April 19, , 2001 By:
enie Kelley, Ch rman
A T T;
F
Deputy A e-.cy Clerk
APPROVED AS TO FORM:
VAN BLARCOM, LEIBOLD,
MCCLENDON&MANN, P.
ency GenQ Counsel
FINALLicenseAgreementStadium.15 4015-009 33 04/12/01
EXHIBIT A
SITE LEGAL DESCRIPTION
PARCEL A:
PARCEL 3,AS SHOWN BY PARCEL MAP 27852, ON FILE IN BOOK 182 PAGES 19
THROUGH 24, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
PARCEL B:
PARCEL 2,AS SHOWN BY PARCEL MAP 27852, ON FILE IN BOOK 182 PAGES 19
THROUGH 24, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
FINALLicenseAgreementstadium.154015-009 Exhibit "A" Page 1 of 1 04/12/01
EXHIBIT B
SITE MAP
FLNALLicenseAgreementStadiuni.15_4015-009 Exhibit "B" Page 1 of 1 04/12/01
EXHIBIT C
ADVERTISING ELEMENTS
Starting Lineup Board Outfield Tri-Visions
Smoking Section Field Level Tri-visions
Backlit Concourse Signs Foul Poles
"Alumni"Board(concourse) Turnstile Ad Sleeves
"Standing"Board Freestanding Boards -Upcoming Events
"Attendance" Board Concession Signage
Autograph Booth Picnic Area Signage
Information Booth Message Center Back-light
Haircut Station Billboard extensions
Outfield Billboards On-deck Circles
Message Center Tri-Visions Cuphoiders in Stadium Bowl (Std Seating)
Exterior to Main Entrance Below and Above Press Box& Luxury Suite
Outfield Fence (if available) Top of Dugouts
Sound System and Scaffolding Bathroom Signage
Freestanding Sign Beyond Fence Inside of Dugouts
Entry Gates and Field Gates Coaches Boxes
Left-Field Bullpen Retaining Wall Signage Behind Home Plate
First Aid Room (related sponsor only -for Changing Tables
example hospital)
FINALLicenseAgreementStadium.154015-009 Exhibit «C" Page 1 of 1 04/12/01
i
EXHIBIT D
GUARANTY AND AGREEMENT
OF
MANDALAY SPORTS ENTERTAINMENT LLC
THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a
public body corporate and politic (the "Agency") and STORM LLC, a California limited
liability company (the "Storm") have entered or will enter into that certain License Agreement
(the "License"), which License provides in part that MANDALAY SPORTS
ENTERTAINMENT LLC, a California limited liability company (the "Guarantor") shall make
and deliver a guaranty as provided in said License. Except as expressly defined herein, all terms
shall have the same meanings as used in the License.
RECITALS
A. The Storm is a wholly owned subsidiary of Guarantor.
B. The Guarantor's execution of this Guaranty is a condition precedent but for which
the Agency would not execute the License.
NOW THEREFORE, in consideration of the execution of the License, and of other
valuable consideration, receipt of which is hereby acknowledged:
1. Guarantor guarantees to Agency the full,timely and faithful performance by the
Storm of all of its obligations, duties,promises, covenants and agreements as set forth in the
License, including without limitation payment of the Annual License Fee and each License Fee
Installment Payment and all other amounts payable pursuant to the License, and all other
consideration, claims, or losses payable by the Storm pursuant to the License.
2. This Guaranty is unconditional and may be enforced directly against the
undersigned. No extensions, modifications or changes to the License shall release the
undersigned or affect this Guaranty in any way. Notwithstanding the foregoing,this Guaranty
may be released in the sole and absolute discretion of the Agency as set forth in Section 14.1 of
the License.
3. With the exception of. 1)being provided with notices under the License; and 2)
Civil Code Sections 2810 and 2839,the undersigned hereby waives all of the suretyship
provisions of the California Civil Code Section 2788 through 2855.
4. Guarantor hereby waives and agrees not to assert or take advantage of(a) any
right to require Agency to proceed against the Storm(or any guarantor other than the
undersigned) or to pursue any other remedy in the Agency's power before proceeding against the
Guarantor, and (b) any duty on the part of Agency to disclose to Guarantor any facts Agency or
FINALLicenseAgreementStadium.l5_4015-009 Exhibit "D" Page I of 3 04/12/01
City now or hereafter know about the Site,the License, or the Storm, regardless of whether
Agency has reason to believe that any such facts materially increase the risks beyond that which
Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or
has a reasonable opportunity to communicate such facts to Guarantor, it being understood and
agreed that Guarantor is fully responsible for being and keeping informed of all circumstances
regarding the Site,the License, the obligations of the Storm,the financial condition of the Storm,
and of all circumstances bearing on the risk of any obligation by Storm hereby guaranteed.
5. The obligations of Guarantor hereunder are independent of the obligations of the
Storm and, in the event of default hereunder, a separate action or actions may be brought and
prosecuted against Guarantor(or any other guarantor)whether or not the Storm (or any other
guarantor)is joined therein or a separate action or actions are brought against Storm.
6. In the event of any litigation between Agency and Guarantor arising out of this
Guaranty, the prevailing party shall be entitled to recover its reasonable costs and attorney's fees.
7. No provisions of this Guaranty can be waived nor can Guarantor be released from
the obligations hereunder except by a writing duly executed by the Agency. This Guaranty may
not be revoked by Guarantor or, if Guarantor dissolves,becomes insolvent, bankrupt, or
otherwise ceases to do business, the trustee or administrator of Guarantor, and any attempted
revocation by Guarantor or such trustee or administrator, shall be null and void and shall not in
any manner release or discharge Guarantor or such trustee or administrator from liability under
this Guaranty.
8. The Agency may assign this Guaranty. When so assigned, Guarantor shall be
bound as above to the assignees without in any manner affecting Guarantor's liability hereunder.
The Agency shall give Guarantor thirty (30) days notice prior to any assignment of this Guaranty.
9. This Guaranty shall remain in effect notwithstanding any bankruptcy,
reorganization or insolvency of the Storm or any successor or assignee thereof or any
disaffirmance by a trustee of the Storm.
10. This Guaranty shall inure to the benefit of and bind the successors and assigns of
Agency and Guarantor.
11. Guarantor agrees that jurisdiction and venue with respect to any matter pertaining
to the Guaranty or acts or omissions hereunder shall lie exclusively with the Superior Court of
the County of Riverside, State of California, in an appropriate municipal court of that county, or
in the Federal District Court in the Central District of California. Guarantor irrevocably waives
any and all defenses based upon venue or forum non conveniens.
12. The laws of the State of California shall govern the interpretation and enforcement
of this Guaranty.
13. Guarantor represents and warrants that it has all necessary right,power and
authority to enter into this Guaranty and to fully perform its obligations hereunder and that the
FINALLicenseAgreementStadium.l5_4015-009 Exhibit "D" Page 2 of 3 04/12/01
party executing this Guaranty on behalf of Guarantor is fully authorized to do so and has all
necessary authority to bind the Guarantor hereto.
14. If any provision of this Guaranty shall be determined to be illegal or
unenforceable by any court of competent jurisdiction,then such determination shall not affect
any other provision of this Guaranty or the License and all such other provisions shall remain in
full force and effect; and if any provision of this Guaranty is capable of two constructions, only
one of which would render the provision valid,then the provision shall have the meaning which
renders it valid.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty this day of
2001.
MANDALAY SPORTS
ENTERTAINMENT LLC, a California
limited liability company
By:
Paul Schaeffer, Vice Chairman
FINALLicenseAgreementStadium.15_4015-009 Exhibit "D" Page 3 of 3 04/12/01
i
EXHIBIT E
STADIUM FIELD AND MAINTENANCE AGREEMENT
FINALLicenseAgreementStadium.15_4015-009 Exhibit "D" Page 4 of 3 04/12/01
STADIUM FIELD AND MAINTENANCE AGREEMENT
by and between
REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE
"Agency"
and
STORM LLC
"Storm"
--------------------
TABLE OF CONTENTS
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Maintenance and Upkeep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Storm Games and Other Storm Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Routine Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Compliance with League Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 Maintenance Supervisor and Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Review Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Use by the Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Maintenance of Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Repair and Replacement of Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Term of Agreement; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Rights of Termination Prior to Termination or Expiration of the License Agreement
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Annual Maintenance Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 Annual Maintenance Fee Due Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.3 Offset of Annual License Fees For Maintenance and Operations of Stadium . . . . 9
7. Capital Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1 Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.2 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.3 Safety Precautions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.4 Storm Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.1 Assignment by the Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10.2 Assignment by the Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. Controlling Law Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13. Litigation Expenses and Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I l
14. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15. Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16. Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. indemnification and Hold Harmless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18. Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18.1 Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18.3 Baseball Season . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19. Events of Default by the Storm and the Agency's Remedies . . . . . . . . . . . . . . . . . . . . . 12
19.1 Event of Default by the Storm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19.2. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FINALMaintenanceAgreementStadium.9_4015.009 -1- 04/12/01
19.3. Agency Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19.4. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20. Events of Default by the Agency and the Storm's Remedies . . . . . . . . . . . . . . . . . . . . . 13
20.1. Event of Default by the Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20.2. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20.3. Storm Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
20.4. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20.5. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23. Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
24. Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
26. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
27. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
FINALMaintenanceAgreementStadium.9_4015.009 -il- 04/12/01
EXHIBITS:
Exhibit A Site Legal Description
Exhibit B Site Map
Exhibit C Scope of Services - Routine Maintenance
Exhibit D Scope of Services - Storm Games and Other Storm Events
Exhibit E Guaranty
FINALMaintenanceAgreementStadium.9_4015.009 -111- 04/12/01
STADIUM FIELD AND MAINTENANCE AGREEMENT
This STADIUM FIELD AND MAINTENANCE AGREEMENT (this "Agreement") is
made and hereby entered into as of the 151h day of March,2001 (the"Commencement Date")by and
between the REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE,a public
body corporate and politic(the"Agency")and STORM LLC,a California limited liability company
(the"Storm")with regard to the following:
RECITALS
The following Recitals are a substantive part of this Agreement:
A. The Agency is the owner of that certain real property located within the Rancho
Laguna Redevelopment Project Area III of the City of Lake Elsinore,County of Riverside, State of
California all as more fully described in the Site Legal Description attached hereto as Exhibit"A"
and incorporated herein by reference(the"Land"). A number of improvements are located on the
Land, including a professional baseball field, stadium and ancillary parking and related facilities
commonly known as the"Lake Elsinore Diamond"(collectively the"Stadium")and depicted on the
Site Map attached hereto as Exhibit"B"and incorporated herein by reference. The Stadium and the
Land shall be referred to collectively herein as the "Site".
B. The Agency previously entered into that certain Final and Fully Executed Stadium
Property and Facility Lease, dated April 2, 1998 (the "Stadium Lease") with Lakeside Sports &
Entertainment LLC ("Lakeside").
C. Pursuant to that certain letter by and between Lakeside and Mandalay Sports
Entertainment LLC ("Mandalay")dated March 17, 1999,the parties thereto set forth the terms and
conditions regarding the use of the Stadium by the Storm.
D. On or about August 22,2000, general counsel for the Agency received a letter from
counsel for Lakeside indicating that Lakeside was financially unable to continue to meet its
obligations under the Stadium Lease and would abandon its operation and maintenance of the
Stadium in September or October, 2000.
E. On or about October 31, 2000, Lakeside terminated its employees responsible for
maintenance of the Stadium. By letter dated October 11, 2000, counsel for Lakeside stated that
Lakeside would no longer fulfill any of its contractual obligations as of November 15, 2000.
F. The Agency and the Storm have incurred damages as a result of Lakeside's
repudiation of the Stadium Lease and abandonment of the Stadium.
G. The Agency and the Storm have previously or concurrently herewith entered into the
License Agreement(which is defined in Section I hereof)pursuant to which the Storm has the right
to use the Stadium for baseball games, and for other purposes as more filly described therein.
FINALMaintenanceAgreementStadium.9_4015.009 1 04/12/01
H. As set forth in the License Agreement, the Agency and the Storm contemplated
entering into this Agreement by which the Storm shall perform certain field and facility maintenance
services at the Stadium in accordance with the terms and conditions set forth herein.
I. The parties hereto desire to enter into this Agreement in order to set out and clarify
the obligations of the Storm and the Agency regarding the maintenance and repair of the Stadium.
NOW THEREFORE,in consideration of the terms contained herein, and for other good
and valuable consideration,the receipt and sufficiency ofwhich are hereby acknowledged,the parties
do hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth in this
Section 1 unless the context would clearly indicate otherwise. All capitalized terms used herein and
not otherwise defined shall have the meaning set forth in the License Agreement.
"Agreement"means this Stadium Field and Maintenance Agreement by and between
the Agency and the Storm.
"Agency"means the Redevelopment Agency of the City of Lake Elsinore, a public
body corporate and politic, having its principal office at 130 South Main Street, Lake Elsinore,
California 92530.
"Annual Maintenance Fee"means the amount to be credited by the Agency to the
Storm annually in accordance with the terms and conditions of this Agreement.
"Capital Repairs"means all activities, and the provision of all labor and materials
which are reasonably required to improve, repair, refurbish, modify, restore and/or replace, when
reasonably necessary,the Stadium, or portions or components thereof, and the costs and expenses
of which equal or exceed Five Hundred Dollars($500.00). Notwithstanding the foregoing,the term
Capital Repairs as used herein does not include those items set forth in the Scope of Services -
Routine Maintenance and/or the Scope of Services - Storm Games and Other Storm Events.
"City"means the City of Lake Elsinore.
"Commencement Date"shall mean March 15, 2001.
"CPI"means the Consumer Price Index for Los Angeles-Riverside-Orange County
—All Urban Consumers, 1982-1984 equal to 100.
"Electronic Message Board"means the programable electronic panel for the display
of advertising and player information which is located in left field.
"Equipment"means the equipment owned by the Agency and located at the Stadium
which is utilized to maintain the Field, including the field mower, Cushmans, a tractor, edgers and
weed eaters.
FINALMaintenanceAgreementStadium9_4015.009 2 04/12/01
"Event of Default by theAgency"is defined in Section 20.1 of this Agreement.
"Events of Default by the Storm "is defined in Section 19.1 of this Agreement.
"Executive Director" means the Executive Director of the Agency or his/her
designee.
"Field"means the playing field at the Stadium.
"General Manager"means the General Manager of the Storm.
"General Manager Trial Period"means the ninety (90) day period following the
Agency's receipt of notice from the Storm pursuant to Section 2.4 of this Agreement that there has
been a change in the identity of the General Manager.
"Guaranty"means the Guaranty to be provided by Mandalay in accordance with the
terms of this Agreement which is attached hereto as Exhibit "E" and incorporated herein by
reference.
"Lakeside" means Lakeside Sports & Entertainment LLC, a California limited
liability company (also known as"Diamond Sports & Entertainment LLC").
"League"means the California League of Professional Baseball, Inc., a California
nonprofit corporation.
"LetterAgreement"means that certain letter by and between Lakeside and Mandalay
dated March 17, 1999 setting forth the terms and conditions of the use of the Stadium by the Storm.
"LicenseAgreement"means that certain License Agreement entered into as of March
15,2001 by and between the Agency and the Storm.
"Maintenance Fee Installment Credit"is defined in Section 6.2 of this Agreement.
"Maintenance Term"is defined in Section 5.1 of this Agreement.
"Mandalay" means Mandalay Sports Entertainment LLC, a California limited
liability company.
"NA"means the National Association of Professional Baseball Leagues, Inc.
"Scope of Services-Routine Maintenance"-means the scope of services attached
hereto as Exhibit"C" and incorporated herein by reference.
"Scope of Services-Storm Ganges and Other Storm Events"means the scope of
services attached hereto as Exhibit"D" and incorporated herein by reference.
FINALMaintenanceAgreementStadium.9_4015.009 3 04/12/01
"Stadium Lease"means the Final and Fully Executed Stadium Property and Facility
Lease, dated April 2, 1998 by and between the Agency and Lakeside.
"Standards"means the standards established by the League and/or the NA for the
maintenance of facilities utilized for playing professional baseball.
"Storm"means Storm LLC a California limited liability company, the owner and
operator of a professional baseball team and member of the League.
"Tri-Visions"means the Tri-vision advertising panels located at field level and in the
outfield.
2. Maintenance and Upkeep.
2.1 Storm Games and Other Storm Events. During the Maintenance Term,the
Storm hereby covenants and agrees to provide the personnel and to perform at its sole cost and
expense all items of maintenance in connection with all Storm Games and Other Storm Events in
accordance with and as set forth in the Scope of Services- Storm Games and Other Storm Events.
2.2 Routine Maintenance. In addition to performing the maintenance for the
Storm Games and Other Storm Events as set forth in Section 2.1 of this Agreement, the Storm
hereby covenants and agrees to provide the personnel and perform the routine maintenance of the
Stadium in accordance with and as set forth in the Scope of Services -Routine Maintenance.
2.3 Compliance with League Standards. It is the intent of the parties that the
services to be performed by the Storm pursuant to Sections 2.1 and 2.2 of this Agreement shall be
consistent with the Standards set forth by the League and the NA and should result in the Stadium
being maintained in"first class"condition. The Agency and the Storm acknowledge and agree that
those items set forth in the Scope of Services- Storm Games and Other Storm Events and Scope of
Services - Routine Maintenance are a list of the minimum items which the Storm has agreed to
perform in order to satisfy its maintenance obligations hereunder and that there may be additional
items of maintenance which are not identified.
2.4 Maintenance Supervisor and Personnel. In entering into this Agreement,
the Agency is relying upon the identity of the General Manager of the Storm as of the
Commencement Date and his personal supervision ofthe Storm's obligations hereunder. The Storm
shall notify the Executive Director in writing of any change in the identity of the General Manager
at any time during the Maintenance Term. Provided,however,that nothing in this Section 2.4 shall
relieve the Storm from performing its obligations hereunder despite the change in the identity of the
General Manager.
2.5 Review Meetings. As often as necessary,but in no event less than two times
per month during the Maintenance Term, the General Manager, or his/her designee, and the
Executive Director,or his/her designee,shall meet at a mutually agreed upon time and place in order
to discuss the condition of the Stadium and the performance of the Storm hereunder and any other
applicable issues.
FiNALMaintenanceAgreementStadium.9 4015.009 4 04/12/01
3. Supplies. The Agency shall provide the Storm with the supplies which the Agency
determines in its sole and absolute discretion are necessary for the Storm to perform its obligations
hereunder. In the event that the Storm believes that additional or different supplies are required it
shall so notify the Executive Director in writing. If the Executive Director agrees that such
additional or different supplies are necessary,the Agency will provide the Storm with the requested
supplies at the Agency's cost and expense. In the event that the Executive Director does not believe
such additional or different supplies are necessary the Storm may acquire and utilize such supplies
at its sole cost and expense and only with the Executive Director's prior written approval. In the
event that the Agency is providing the Storm with a particular supply item and the Storm requests
that the Agency provide a more expensive brand or type of that supply item which the Agency agrees
to provide,the Storm shall reimburse the Agency for the additional costs incurred by the Agency in
supplying the more expensive brand or type. Notwithstanding the foregoing, the Storm shall be
responsible for providing all chalk and Field paint at its sole cost and expense.
4. Equipment.
4.1 Use by the Storm. The Storm shall be entitled to use the Agency's
Equipment in connection with the performance of its obligations hereunder;provided,however,that
the Storm shall only be entitled to utilize the Cushman purchased by the Agency in March,2001 in
order to "drag"the Field on the days of Storm Games and Other Storm Events. All other items of
equipment which are necessary for the Storm to meet its obligations hereunder shall be supplied by
the Storm at its sole cost and expense.
4.2 Maintenance of Equipment. The Agency shall be responsible for providing
the routine maintenance in connection with the Equipment.
4.3 Repair and Replacement of Equipment. The Storm shall notify the
Executive Director in writing of any items of Equipment in need of repair or replacement. The
Agency shall be responsible for repairing and/or replacing Equipment which the Agency determines
in its sole and absolute discretion is in need of repair or replacement;provided, however, that the
Storm shall repair and/or replace any Equipment which is damaged by the intentional or negligent
act(s) of the Storm, its employees, agents and/or contractors. In addition in the event that any
Equipment in need of repair or replacement is covered by any insurance held by the Storm,the Storm
shall submit any necessary claims and shall immediately upon receipt provide the Agency with any
such insurance proceeds or cause the Equipment to be repaired or replaced at the sole cost and
expense of the Storm.
5. Term of Agreement; Termination.
5.1 Term. The term of this Agreement (hereinafter the "Maintenance Term")
shall commence on the Commencement Date and shall,unless earlier terminated in accordance with
Sections 5.2, 18.2, 19 or 20 hereof, automatically terminate and be of no further force and effect
upon the termination or earlier expiration of the License Agreement.
5.2 Rights of Termination Prior to Termination or Expiration of the License
Agreement.
FINALMaintenanceAgreementStadium.9 4015.009 5 04/12/01
(a) End of Season. Either party may terminate this Agreement,with or
without cause,by giving written notice thereof to the other party within forty-five (45)days of the
Iast regular season Storm Game.
(b) General Manager Trial Period. Either party may terminate this
Agreement with or without cause during the General Manager Trial Period upon written notice
thereof to the other party.
(c) Party's Property and Offset. Upon termination of this Agreement
under this Section 5.2,all materials and equipment purchased by either party hereunder in connection
with this Agreement shall remain that parry's property. In addition, the Storm shall be entitled to
an offset for all of the Storm's services rendered hereunder through the effective date of any such
termination.
(d) Effect of Termination. Upon termination ofthis Agreement pursuant
to this Section 5.2, the provisions of Section 4.5(b) of the License shall apply to the continued
maintenance,repair and operation of the Stadium.
6. Compensation
6.1 Annual Maintenance Fee. During the Maintenance Term,the Storm shall
compensated for the performances of the services set forth herein through the credit of the Annual
Maintenance Fee which shall be in the amounts as follows:
(a) Year 1(Commencement Date-December 31,2001): One Hundred
Fifty One Thousand Two Hundred Thirty Eight Dollars
($151,238.000) (the"Year 1 Annual Maintenance Fee");
(b) Year 2 (January 1, 2002 - December 31, 2002): One Hundred
Seventy Five Thousand Dollars ($175,000.00) (the "Year Two
Annual Maintenance Fee");
(c) Year 3 (January 1, 2003 - December 31, 2003): One Hundred
Seventy Five Thousand Dollars ($175,000.00) (the "Year 3 Annual
Maintenance Fee");
(d) Year 4 (January 1, 2004 - December 31, 2004): One Hundred
Seventy Five Thousand Dollars ($175,000.00) adjusted for any
Percentage Increase in CPI for Years 1, 2 and 3, but in no event to
exceed One Hundred Ninety Two Thousand Five Hundred Dollars
($192,500.00) or be less than One Hundred Seventy Five Thousand
Dollars($175,000.00) (the"Year 4 Annual Maintenance Fee");
Example: Thus, and by way of example only, in the event that the
CPI for the month of December 2003 was 180 and the CPI For
FINALMaintenanceAgreementStadium.9_4015.009 6 04/12/01
January 2001 was 170 the Year 4 Annual Maintenance Fee would be
calculated as follows:
1. December 2003 CPI less January 2001 CPI = Index Point
Change:
180 - 170 = 10.
2. Index Point Change divided by January 2001 CPI =
Percentage Change
10/170=0.058.
3. Percentage Change multiplied by $175,000.00 = Year 4
Additional Amount
0.058 x $175,000.00= $10,150.00
4. $175,000.00 + Year 4 Additional Amount= Year 4 Annual
Maintenance Fee
$175,000.00+$10,150.00=$185,150.00
Under this example the calculated amount of$185,150.00 is less than
$192,500.00 and would be the Year 4 Annual Maintenance Fee.
(e) Year 5 (January 1, 2005 - December 31, 2005): The Year 4 Annual
Maintenance Fee adjusted for any percentage increase in the CPI for Year 4,
but in no event to exceed a four percent(4%)increase and in no event to be
less than the Year 4 Annual Maintenance Fee (the "Year 5 Annual
Maintenance Fee");
Example: Thus, and by way of example only, in the event that the
CPI for the month of December 2004 was 185, the CPI For January
2004 was 180 and the Year 4 Annual Maintenance Fee was
$185,150.00 the Year 5 Annual Maintenance Fee would be calculated
as follows:
1. December 2004 CPI less January 2004 CPI = Index Point
Change:
185 - 180 = 5.
2. Index Point Change divided by January 2004 CPI
Percentage Change
FINALMaintenanceAgreementStadium.9_4015.009 7 04/12/01
5/180= 0.028.
3. Percentage Change multiplied by the Year 4 Annual
Maintenance Fee=Year 5 Additional Amount
0.028 x$185,150.00 =$5,184.20
4. Year 4 Annual Maintenance Fee+Year 5 Additional Amount
=Year 5 Annual Maintenance Fee
$185,150.00 + $5,184.20=$190,334.20
Under this example the calculated amount of$190,334.20 is
less than a 4%increase over the Year 4 Annual Maintenance
Fee and would be the Year 5 Annual Maintenance Fee.
(f) Year 6(January 1,2006-December 31,2006):The Year 5 Annual
Maintenance Fee adjusted for any percentage increase in the CPI for
Year 5,but in no event to exceed a four percent(4%)increase and in
no event to be less than the Year 5 Annual Maintenance Fee (the
"Year 6 Annual Maintenance Fee"); and
(g) Year 7(January 1,2007-December 31,2007):The Year 6 Annual
Maintenance Fee adjusted for any percentage increase in the CPI for
Year 6,but in no event to exceed a four percent(4%)increase and in
no event to be less than the Year 6 Annual Maintenance Fee (the
"Year 7 Annual Maintenance Fee").
(h) Year 8(January 1,2008-December 31,2008):The Year 7 Annual
Maintenance Fee adjusted for any percentage increase in the CPI for
Year 7,but in no event to exceed a four percent(4%)increase and in
no event to be less than the Year 7 Annual Maintenance Fee (the
"Year 8 Annual Maintenance Fee");
(i) Year 9(January 1,2009-December 31,2009):The Year 8 Annual
Maintenance Fee;
(j) Year10(January 1,2010-December 31,2010):The Year 8 Annual
Maintenance Fee;
(k) Year 11 (January 1, 2011 - December 31, 2011): The Year 8
Annual Maintenance Fee; and
(1) Year 12 (January 1, 2012 - December 31, 2012): The Year 8
Annual Maintenance Fee.
FINALMaintenanceAgreementStadium.9_4015.009 8 04/12/01
6.2 Annual Maintenance Fee Due Dates.
(a) The Storm shall be entitled to the credit of the Annual Maintenance
Fee in installments each year during the Maintenance Term as follows:
I. Ten percent(10%)of the applicable Annual Maintenance Fee
will be credited to the Storm on or before March I st each year during the Maintenance Term; and
2. Fifteen percent(15%)of the applicable Annual Maintenance
Fee will be credited to the Storm on or before April 15th, May 15th, June 15th, July 15th, August
15th, and September 15th of each year during the Maintenance Term.
(b) Each credit described in this Section 6.2 shall be referred to herein as
a"Maintenance Fee Installment Credit."
6.3 Offset of Annual License Fees For Maintenance and Operations of
Stadium. Pursuant to Section 4.5 of the License Agreement,the Storm shall be entitled to offset its
obligation to pay each License Fee Installment Payment due under the terms of the License
Agreement by an amount equal to any Maintenance Fee Installment Credit to which the Storm is
entitled hereunder. The Storm acknowledges and agrees that it shall be "paid" the Annual
Maintenance Fee through the credit of the Annual License Fee and that in no event will the Agency
be required to provide the Storm with any other form of payment.
7. Capital Repairs.
7.1 Responsibility. Except as set forth in Section 7.4 below, the Agency shall
be responsible for the cost of all Capital Repairs.
7.2 Notice. In the course of its performance of the maintenance and upkeep of
the Stadium,the Storm may Iearn of items or facilities in need of Capital Repairs. The Storm agrees
to notify the Agency of such items which are in need of capital repairs within five working days of
any such discovery. The Agency, at its sole option,may cause the Capital Repair to be remedied,
within a reasonable time, or may request that such Capital Repair be remedied by the Storm upon
mutually agreeable terms and conditions.
7.3 Safety Precautions. In the event that during the course of performing the
services required pursuant to this Agreement the Storm discovers a condition which may require
Capital Repair but which may result in injury to person or property prior to such repair, the Storm
shall immediately notify the Agency of such condition and shall take such steps as are reasonably
necessary to secure the area and prevent the occurrence of any injury or damage. The Agency shall
reimburse the Storm for reasonable costs incurred by the Storm under this Section 7.3 within ten(10)
business days of the receipt by the Agency of documentation reasonably satisfactory to the Executive
Director evidencing the costs incurred by the Storm.
7.4 Storm Responsibilities.
FiNALMaintenanceAgreementStadium.9_4015.009 9 04/12/01
(a) Electronic Message Board. The Storm shall be responsible for and
shall undertake any and all maintenance and Capital Repairs in connection with the Electronic
Message Board at its sole cost and expense.
(b) Tri-Visions. The Storm shall be responsible for and shall undertake
any and all maintenance and Capital Repairs in connection with the Tri-Visions.
(c) Insurance. In the event that any item in need of Capital Repair is
covered by any insurance maintained by the Storm,the Storm agrees that it shall submit whatever
claims are necessary and shall immediately upon receipt provide the Agency with any insurance
proceeds collected by the Storm in connection with such Capital Repair or cause the same to be
repaired or replaced at the sole cost and expense of the Storm.
8. Alterations. The Storm will not make any improvements or alterations, whether
structural or nonstructural,to the Stadium without first obtaining the prior written approval of the
Executive Director, which approval shall not be unreasonably withheld. Any agreed upon
improvements or alterations,will be made or installed only with the written permission and through
the Agency. Any alterations made by the Storm prior to the Commencement Date are deemed
approved by the Executive Director.
9. Insurance. The Storm shall maintain insurance as set forth in Section 13 of the
License Agreement at all times during the term of this Agreement.
10. Assignment.
10.1 Assignment by the Storm. Neither this Agreement nor any part hereof may
be assigned by the Storm without the prior written consent of the Executive Director which consent
may not be unreasonably withheld. Any approved assignee will be subject to all of the terms and
conditions of this Agreement and the continuing Guaranty will remain in full force and effect.
Notwithstanding the foregoing,the Agency will release the Guaranty upon the demonstrated ability
of the proposed assignee to provide the Agency with equal assurances of protection of the proposed
assignee's ability to perform the obligations of the Storm hereunder; such release, if any will be
made in the sole and absolute discretion of the Agency.
10.2 Assignment by the Agency. The Agency may assign this Agreement
concurrently with an assignment of the License;provided,however,that in the event that the Agency
assigns the License and this Agreement to an entity who is not reasonably approved by the Storm
as set forth in Section 14.2 (c) of the License, the termination provisions of Section 5.2 of this
Agreement shall no longer remain in effect.
11. Guaranty. The Storm is a wholly owned subsidiary of Mandalay and under the
Guaranty Mandalay agrees to guaranty each and every obligation of the Storm incurred pursuant to
or in furtherance of this Agreement. The execution and delivery of the Guaranty by Mandalay is a
condition precedent to the Agency entering into this Agreement. But for the provision of the
Guaranty,the Agency would not be entering into this Agreement with the Storm and the Agency is
materially relying on such Guaranty.
FINALMaintenanceAgreementStadium.9_4015.009 10 04/12/01
12. Controlling Law Venue. This Agreement and all matters relating to it shall be
governed by the laws of the State of California and any action brought relating to this Agreement
shall be held exclusively in a state court in the County of Riverside.
13. Litigation Expenses and Attorneys' Fees. If either party to this Agreement
commences any legal action against the other party arising out of this Agreement, the prevailing
parry shall be entitled to recover its reasonable litigation expenses, including court costs, expert
witness fees, discovery expenses, and attorneys' fees.
14. Mediation. The parties agree to make a good faith attempt to resolve any disputes
arising out of this Agreement through mediation prior to commencing litigation. The parties shall
mutually agree upon the mediator and share the costs of mediation equally.If the parties are unable
to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its
successor in interest. JAMS shall provide the parties with the names of five qualified mediators.
Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter
the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation,
either party may commence litigation.
15. Execution. This Agreement may be executed in several counterparts,each of which
shall constitute one and the same instrument and shall become binding upon the parties when at least
one copy hereof shall have been signed by both parties hereto.In approving this Agreement,it shall
not be necessary to produce or account for more than one such counterpart.
16. Status. At all times during the term of this Agreement, the Storm, its agents,
contractors and employees, shall be and remain independent contractors,and shall not be considered
to be agents, employees,partners or joint venturers of the Agency or its affiliates or designees.
17. Indemnification and Hold Harmless. The Agency and the Storm shall each
indemnify,defend and hold harmless,the other party,and their respective agents,officers,members,
managers, employees, contractors and affiliated and related entities from any and all losses or
damage and from any and all liability, suits, actions or claims brought or made by any person or
persons arising or resulting from any and all activities and operations of a particular party,that party's
agents,employees,contractors,members,managers,affiliates,successors and assigns arising out of
the performance of this Agreement to the maximum extent permitted by law.
18. Destruction.
18.1 Restoration. If,during the Term,the Stadium is totally or partially destroyed
from any cause covered by insurance of the City,the Agency or the Storm,which renders the facility
totally or partially inaccessible or unusable and, if under the existing laws, the restoration can
reasonably be completed using such insurance proceeds by the earlier of(i) within one hundred
eighty (180) days after the destruction, or (ii) thirty (30) days prior to the opening day of the
upcoming baseball season, the Agency shall cause the Stadium to be restored to substantially the
same condition as it was in immediately before destruction,and such destruction shall not terminate
this Agreement.
FINALMaintenanceAgreementStadium.9_4015.009 l 04/12/01
18.2 Termination. If the restoration cannot be made in the time stated above in
subsection 18.1,then within fifteen(15)business days after the parties determine that the restoration
cannot be made in said time,the Storm may terminate this Agreement immediately by giving notice
to the Agency. If the Storm fails to terminate this Agreement,the Agency,at its election,may either
terminate this Agreement, or restore the facility within a reasonable time,and this Agreement shall
continue in full force and effect.
18.3 Baseball Season. When such destruction occurs during the baseball season,
the Storm may conduct the remainder of its home games during that season within some other
facility without impairment of any of its rights hereunder and the Annual Maintenance Fee for that
season due hereunder shall be equitably adjusted.
19. Events of Default by the Storm and the Agency's Remedies.
19.1 Event of Default by the Storm. The following events are hereinafter referred
to as"Events of Default by the Storm:"
(a) The Storm's failure to keep, perform and observe each and every
promise, covenant, condition and agreement set forth in this Agreement on its part to be kept,
performed or observed within thirty (30) days after written notice of default thereunder from the
Agency, except where fulfillment of the Storm's obligation requires activity over a period of time
and the Storm shall have commenced to perform whatever may be required to cure the particular
default within ten(10)days after such notice and continues such performance diligently and without
interruption except for causes beyond its control; and
(b) Any Event of Default by the Storm as set forth in Section 22 of the
License Agreement.
19.2. No Waiver. No waiver by the Agency of any default on the part of the Storm
in the performance of any of the terms, covenant, or conditions hereof to be performed, kept or
observed by the Storm shall be or be construed to be a waiver by the Agency of any other or
subsequent default in performance of any of said terms, covenants and conditions.
19.3. Agency Remedies. If any of the Events of Default by the Storm enumerated
in this Section occur and after due notice as provided herein,the Storm has failed to cure or correct
such default,then,in addition to any and all rights and remedies of the Agency hereunder and/or by
law provided,the Agency shall have the right:
(a) To declare the Term hereof ended and to terminate this Agreement.
(b) To request in writing a written report from the Storm concerning all
of its debts and obligations,financial status and prospective income. If such report is not delivered
to the Agency within one month thereafter,prepared by the Storm's accountants,it shall be the right
of the Agency's representatives and accountants to inspect all books of accounts and records of the
Storm for the purpose of obtaining such information. From the date of such request,the Storm shall
not make any further arrangements for the presentation of any such event in the Stadium unless
FINALMaintenanceAgreementStadium.9_4015.009 12 04/E 2/01
authorized in writing by the Agency to do so. The Storm shall be permitted to continue to present
any event that is under contract at such time to take place in the Stadium. The Storm shall also be
permitted to finish out all or part of the remainder of its season. Upon receiving the financial
information above specified and examining the same,it shall be the right,but not the obligation, of
the Agency to declare the Term hereof ended,to specify the termination date,and on said termination
date to re-enter the Stadium and remove all persons connected with the Storm therefrom and the
Storm shall have no further claim thereon or hereunder.
(c) The remedies given to the Agency in this section shall be in addition
and supplement to all other rights or remedies which the Agency may have under the laws then in
force.
(d) The Storm hereby waives any and all rights of redemption granted by
or under any present or future law,or statute,arising in the event it is evicted or dispossessed for any
cause or in the event the Agency obtains or retains possession of the Stadium or any part thereof in
any lawful manner.
19.4. Mitigation. If the Event of Default of the Storm enumerated in Section 19.1
can be cured, corrected or mitigated by the Agency, the Agency may take such action as it deems
necessary and appropriate to cure,correct or mitigate such default,but without any obligation to do
SO.
20. Events of Default by the Agency and the Storm's Remedies.
20.1. Event of Default by the Agency. The Agency's failure to keep,perform and
observe each and every promise, covenant, condition and agreement set forth in this Agreement,
including without limitation the credit of the Annual Maintenance Fee, on its part to be kept,
performed or observed within thirty (30) days after written notice of default thereunder from the
Storm, except where fulfillment of the Agency's obligation requires activity over a period of time
and the Agency shall have commenced to perform whatever may be required to cure the particular
default within ten(10)days after such notice and continues such performance diligently and without
interruption except for causes beyond its control is hereinafter referred to as an"Event of Default
by the Agency:"
20.2. No Waiver. No waiver by the Storm of any default on the part of the Agency
in the performance of any of the terms, covenants, or conditions hereof to be performed, kept or
observed by the Agency shall be or be construed to be a waiver by the Storm of any other or
subsequent default in performance of any of said terms, covenants and conditions.
20.3. Storm Remedies. If the Event of Default by Agency enumerated in Section
20.1 of this Agreement occurs and after notice as provided herein,the Agency has failed to cure or
correct, then in addition to any and all rights and remedies of the Storm hereunder and/or by law
provided, it shall be the right of the Storm to declare the Term ended and to terminate this
Agreement by written notice to the Agency.
FINALMaintenanceAgreementStadium.9_4015.009 13 04/12/01
........
20.4. Mitigation. If the Event of Default of the Agency enumerated in Section 20.1
can be cured, corrected or mitigated by the Storm, the Storm may take such action as it deems
necessary and appropriate to cure,correct or mitigate such default,but without any obligation to do
so.
20.5. Other Remedies. The remedies given to the Storm in this section shall be
in addition to and supplemental to all other rights or remedies which the Storm may have under the
laws then in force.
21. Further Assurances. The Agency and the Storm will each take any and all other
actions, and execute and deliver any and all other documents, as may be required or reasonably
requested in order to effectuate the terms and provisions set forth in this Agreement.
22. Authority. The Agency and the Storm each represent and warrant to the other party
that they have all necessary right, power and authority to enter into this Agreement, and to fully
perform each and all of their respective obligations hereunder.
23. Other Claims. The agreement herein is not intended to deprive either party of any
claims it may have against Lakeside or any related entity nor shall it obligate either party to assume
any of Lakeside`s liabilities under the Letter Agreement or the Stadium Lease.
24. Non-Discrimination. The Storm herein covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status, handicap, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Stadium,nor shall the Storm itself or any person claiming under or through it establish or permit any
such practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, subtenants, or vendees of the Stadium. The foregoing
covenants shall run with the land and shall survive the termination of this Agreement, and any
contracts, subleases, agreements, licenses or other instruments entered into pursuant to this
Agreement. The Storm shall refrain from restricting the rental, lease or license of the Stadium on
the basis of race, color, creed,religion, sex,marital status,handicap,national origin or ancestry of
any person. All such leases, subleases, licenses or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(a) In leases, subleases and licenses: "The tenant herein covenants by and for
himself or herself,his or her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this instrument is made and accepted upon and subject to the
following conditions: "There shall be no discrimination against or segregation of, any person or
group of persons on account of race,color,creed,religion,sex,marital status,handicap,ancestry or
national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the tenant himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection,location,number,use or occupancy of tenants,subtenants
or vendees in the premises herein leased."
FINALMaintenanceAgreementStadium.9_4015.009 14 04/12/01
(b) In contracts: "There shall be no discrimination against or segregation of,any
person, or group of persons on account of race,color,creed,religion, sex,marital status,handicap,
ancestry or national origin, in the lease, sublease, transfer, use, occupancy,tenure or enjoyment of
the premises,nor shall the transferee himself or herself or any person claiming under or through him
or her, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location,number, use or occupancy of tenant, subtenants, or vendees of
the premises."
25. Notice. All notices,requests,demands or documents which are required or permitted
to be given or served hereunder shall be in writing and delivered personally or delivered by United
States mail, postage prepaid, certified return receipt requested, or a national or regional overnight
courier(e.g.,FedEx, Overnight Express, etc.) addressed as follows:
To the Agency at: The Redevelopment Agency of the City of Lake Elsinore
130 S. Main Street
Lake Elsinore, California 92530
Attn: Executive Director
Tel: (909) 674-3124
Fax: (909)674-2392
with a copy to: Barbara Zeid Leibold, Esq.
Van Blarcom,Leibold, McClendon&Mann, PC
307 E. Chapman
Orange, California 92866
Tel: (714) 639-6700
Fax: (714) 639-7212
To the Storm: Storm
500 Diamond Drive
Lake Elsinore, California 92531
Tel: (909)245-4487
Fax: (909) 245-0308
Attn. General Manager
with a copy to: Loyd E. Wright 1I1, Esq.
Law Offices of Loyd E. Wright III
3991 MacArthur Boulevard, Suite 175
Newport Beach, California 92660
Tel: (949) 833-8844
Fax: (949) 833-8898
with a copy to: Paul Schaeffer c/o Mandalay Pictures
Mandalay Sports Entertainment LLC
5555 Melrose Avenue, Lewis Building
Hollywood, California 90038
Tel: (323)956-8759
FINALMaintenanceAgreementStadium.9_4015.009 15 04/12/01
Fax: (323)862-2233
Notice shall be deemed to have been delivered only upon actual delivery to the intended addressee
in the case of either personal service or courier. The addresses for purposes of this Section 23 may
be changed by giving written notice of such change in the manner provided herein for giving notices.
Unless and until such written notice is delivered,the latest information stated by written notice, or
provided herein if no written notice of change has been delivered, shall be deemed to continue in
effect for all purposes hereunder.
26. Severability. The invalidity or illegality of any provision shall not affect the
remainder of this Agreement and all remaining provisions shall,notwithstanding any such invalidity
or illegality, continue in full force and effect.
27. Administration. Unless clearly indicated otherwise,any action,decision,direction,
notice or approval to be given by the Agency hereunder may be given by the Executive Director,
provided, however that the Executive Director, in his/her absolute discretion may determine that
such matter must be submitted to the Agency Board. Unless clearly indicated otherwise,any action,
decision, direction, notice or approval to be given by the Storm hereunder may be given by the
Storm's General Manager,provided,however that the General Manager in his/her absolute discretion
may determine that such matter must be submitted to the Storm's Board of Directors.
IN WITNESS WHEREOF, the parties have executed this Agreement on the respective
dates set forth below.
STORM LLC, a California limited liability
corporation
DATED: 72001 By:
Paul Schaeffer,Vice Chairman
FINALMaintenanceAgreementStadium.9_4015.009 16 04/12/01
REDEVELOPMENT AGENCY OF THE
CITY OF LAKE ELSINORE, a public
body, corporate and politic
DATED: 52001 By:
Genie Kelley, Chairperson
ATTEST:
Agency Clerk
APPROVED AS TO FORM:
VAN BLARCOM,LEIBOLD,
MCCLENDON & MANN, P.C.
Agency General Counsel
FINALMaintenanceAgreementStadium.9_4015.009 17 04/12/01
EXHIBIT"A"
SITE LEGAL DESCRIPTION
PARCEL A:
PARCEL 3, AS SHOWN BY PARCEL MAP 27852, ON FILE IN BOOK 182 PAGES 19
THROUGH 24, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
PARCEL B:
PARCEL 2, AS SHOWN BY PARCEL MAP 27852, ON FILE IN BOOK 182 PAGES 19
THROUGH 24, INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA.
r
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "A" 04/12/01
EXHIBIT "B"
SITE MAP
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "B" 04/12/01
i
---------------
EXIMIT "C"
SCOPE OF SERVICES -ROUTINE MAINTENANCE
The following items of Routine Maintenance shall be performed by the Storm on an ongoing
periodic basis as often as necessary in order to ensure that the Stadium is maintained in a first-class
condition as required by the License:
(a) groundskeeping and maintenance of the surface of the playing field, including
mowing, seeding, fertilizing, marking lines,installing and removing bases and the
pitcher's mound,resodding and adding brick dust and infield amendments including
Turfus.
(b) grounds keeping and maintenance of all other grasses, shrubs, flowers and trees,
inside the Stadium bowl and potted plant materials on mezzanine;
(c) painting the Storm Office and re-application of protective materials to the Stadium
seats;
(d) cleaning all portions of the Stadium immediately after each event held at the
Stadium;
(e) maintenance of the scoreboards Tri-Visions, the Electronic Message Board and/or
advertising panels, including but not limited to the replacement of isolated bulbs in
connection therewith;
(f) maintenance of the public address system, amplifiers and control panels;
(g) readying the playing field each year during the Term for the upcoming baseball
season;
(h) readying the playing field for events other than baseball games and converting the
field back to its normal condition after it has been used for such events;
(i) clean out all drains;
(j} maintain,repair and replace(if necessary)the sound system with the exception of the
speakers which shall be the responsibility of the Agency;
(k) wipe Stadium seats;
(I) tighten hardware;
(m) perform all items of baseball field routine maintenance in accordance with the
schedule entitled "Lake Elsinore Diamond Stadium Baseball Field Routine
Maintenance" which is attached hereto as Attachment No. 1.
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "C" 04/12/01
Attachment No. 1
to Exhibit "C"
LAKE ELSINORE DIAMOND STADIUM
BASEBALL FIELD ROUTINE MAINTENANCE
DAILY WEEKLY MONTHLY QUARTERLY ANNUALLY
FIRST DAY OF EACH HOME STAND
Paint foul fines
Repaint Storm Logo
Add infield dirt mix
"GAME DAY"
Cut grass X
Clean dug-outs X
Repair bullpen mounds X
Drag&water warning track X
Repair pitcher's mound and home plate X
Clean dirt off grass edges with shovel x 3
Rake infield dirt X
Nail drag X
Roll soft areas X
Screen drag X
Water dirt at night X
Screen drag before batting practice
X
Water dirt areas X 4
Clean two sets of bases X
Set Geo-tex around batting cage and pitcher's
mound X
Hand water all dry areas in the grass X
Chalk Base lines and batter's box X
Drag and rake infield after 5th inning X
Raise flags X
"NON-GAME DAY"
Fertilize Grass 2X/week
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "C" 04/12/01
DAILY WEEKLY MONTHLY QUARTERLY ANNUALLY
Aerate X
Verticut As
needed
Top Dress infield turf X
Edge turf 2X/week
"ALL STAR BREAK"
*Perform As Soon As Possible
Re-sod all bad areas
Fertilize
Aerate
Top dress
Add brick dust clay for pitcher's mound
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "C" 04/t2/01
EXHIBIT "D"
SCOPE OF SERVICES
STORM GAMES AND OTHER STORM EVENTS
The Storm will provide the following services:
A. STADIUM BOWL/FUN ZONE AREA.
FOLLOWING EACH EVENT:
Seating and Concourse Area:
(a) Collect and remove all major debris
(b) Hose down floors and seats
(c) Wipe down all stadium seats
(d) Squeegee floor of stadium bowl
(e) Sweep concourse
(f) Spot mop concourse floor
(g) Wipe down counter tops at concession stands
(h) Wipe down turnstiles and entry gates
(i) Wipe down all hand rails
(j) Clean restrooms
Restroom Services:
(a) Empty and wipe out all waste paper receptacles
(b) Empty sanitary napkin containers and replace insert
(c) Polish all metal and mirrors
(d) Clean and disinfect wash basins,toilet bowls and urinals
(e) Disinfect underside and tops of toilet seats
(f) Spot clean tile walls and toilet partitions
(g) Spot clean walls around wash basins
(h) Clean floors with a germicidal solution
(i) Refill soap,towel, tissue and seat cover dispensers
SEMI-WEEKLY SERVICE:
(a) Pour clean water down floor drains to prevent sewer gases from escaping
WEEKLY SERVICES:
A. Wash down ceramic tile walls and toilet compartment partitions
B. Perform high dusting
MONTHLY SERVICES:
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "D" 04/12/01
(i) Brush down door and ceiling vents
(ii) Machine scrub and reapply finish to all hard surface floors
(iii) Clean light fixtures on concourse and in restrooms
2. LUXURY BOXES AND PRESS BOX.
FOLLOWING EACH EVENT:
1. Collect and remove trash
2. Vacuum carpets
3. Wipe down counter tops and chairs
4. Clean inside windows
5. Police and clean stairwell and elevators(including polishing of elevator doors)
6. Clean restroom- see restroom specifications (paragraph A)
3. LOWER LEVEL. (Includes CIubhouse areas, umpire room, tunnels, stairways, dugouts,
training room, coaches room, stadium office, etc.)
FOLLOWING EACH EVENT:
1, Collect and remove trash
2. Vacuum carpeted areas
3. Sweep and wet mop hard surface floors
4. Clean restroom and shower rooms (see restroom detail specification).
D. PARKING LOT A,B.AND C.
FOLLOWING EACH EVENT:
I. Ponce parking lots—remove all major debris
E. RETAIL STORE.
FOLLOWING EACH EVENT:
I, Collect and remove all trash
2. Vacuum floors
3. Spot clean glass display cases
4. Dust as necessary
F. DIAMOND CLUB. (Seating Area and Restrooms Only).
1. Collect and remove trash
2. Vacuum carpeted areas
3. Sweep and wet mop hard surfaces floors
4. Knock down cobwebs
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "D" 04/12/01
5. Wipe down entry doors, doorjambs:
6. Wipe down tables and chairs
7. Dust pictures and fixtures
Restrooms:
1. Empty and wipe out all waste paper receptacles
2. Empty sanitary napkin containers and replace insert
3. Polish all metal and mirrors
4. Clean and disinfect wash basins, toilet bowls and urinals
5. Disinfect underside and tops of toilet seats
6. Spot clean tile walls and toilet partitions
7. Spot clean walls around wash basins
S. Clean floors with a germicidal solution
9. Refill soap, towel,tissue and seat cover dispensers
G. MISCELLANEOUS TASKS-ALL AREAS. (AS REQUIRED)
1. Knock down cobwebs
2. Clean air registers
3. Wipe down entry doors, door jambs
4. Wipe down display signage
WEEKLY:
1. Machine scrub and re-coat hard surface floors (Does not include concrete
floors).
H. DURING STORM GAMES AND OTHER STORM EVENTS.
The "game shift crew"will provide the following services between the hours of 3:00 p.m.through
11:00 p.m.during Storm Games and Other Storm Events. The game shift crew will include female employee
to clean women's restroom and male employee to clean men's restrooms. This is necessary so that restroom
inspections and cleaning can take place without closing the restrooms during game time. (NOTE:hours may
vary depending on game and schedule).
i. Remove trash as required
2. Sweep debris from concourse and stadium bowl
3. Police restrooms
4. Re-stock restrooms
5. Perform minor maintenance to toilets,urinals, and sinks
6. Remove spills
7. Wipe down hand rails
8. Police stairwells and elevators
9. Police luxury boxes and press box
10. Spot clean glass
11. Perform preliminary cleaning of restrooms upon departure of crowd
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "D" 04/12/01
I. ADMINISTRATIVE OFFICES 5 DAY SERVICE -
MONDAY THROUGH FRIDAY
DAILY SERVICES:
1. Sweep hard surface floors with chemically treated dust mop
2. Vacuum all carpeted areas
3. Spot clean composition floors and carpets
4. Dust desks, chairs and all other office furniture
5. Clean glass desk tops
6. Dust desk accessories
7. Properly position furniture in offices
S. Empty all waste baskets and carry trash to pick up area
9. Spot clean door, door frames and counters
10. Spot clean partition and door glass
11. Spot clean around wall switches
12. Clean and polish drinking fountains
13. Check doors and windows upon completion of work assignments
WEEKLY SERVICES:
s
1. Dust horizontal surfaces
2. Fully vacuum all carpets
3. Maintain janitor's closet
MONTHLY SERVICES:
1. Perform high dusting i.e., door sashes and tops of partitions
2. Dust picture frames and clean glass
3. Brush down wall and ceiling vents
4. Thoroughly vacuum upholstered furniture as needed
5. Dust Venetian blinds
6. Machine scrub and reapply finish to all hard surface floors
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "D" 04/12/01
EXHIBIT "E"
GUARANTY AND AGREEMENT
OF
MANDALAY SPORTS ENTERTAINMENT LLC
THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE, a pubIic body
corporate and politic(the"Agency")and STORM LLC,a California limited liability company(the"Storm")
have entered or will enter into that certain Stadium Field and Maintenance Agreement (the "Agreement"),
which Agreement provides in part that MANDALAY SPORTS ENTERTAINMENT LLC, a California
limited liability company(the"Guarantor")shall make and deliver a guaranty as provided in said Agreement.
Except as expressly defined herein, all terms shall have the same meanings as used in the Agreement.
RECITALS
A. The Storm is a wholly owned subsidiary of Guarantor.
B. The Guarantor's execution of this Guaranty is a condition precedent but for which the Agency
would not execute the Agreement.
NOW THEREFORE, in consideration of the execution of the Agreement, and of other valuable
consideration,receipt of which is hereby acknowledged:
1. Guarantor guarantees to Agency the full,timely and faithful performance by the Storm of all
of its obligations, duties,promises, covenants and agreements as set forth in the Agreement.
2. This Guaranty is unconditional and may be enforced directly against the undersigned. No
extensions,modifications or changes to the Agreement shall release the undersigned or affect this Guaranty
in any way, and the undersigned waives notification thereof Notwithstanding the foregoing,this Guaranty
may be released in the sole and absolute discretion of the Agency as set forth in Section 10.1 of the
Agreement.
3. With the exception of- 1)being provided with notices under the Agreement;and 2) Civil Code
Sections 2810 and 2839,the undersigned hereby waives all of the suretyship provisions of the California Civil
Code Sections 2788 through 2855.
4. Guarantor hereby waives and agrees not to assert or take advantage of(a)any right to require
Agency to proceed against the Storm (or any guarantor other than the undersigned) or to pursue any other
remedy in the Agency's power before proceeding against the Guarantor, and (b) any duty on the part of
Agency to disclose to Guarantor any facts Agency or City now or hereafter know about the Site, the
Agreement,or the Storm,regardless of whether Agency has reason to believe that any such facts materially
increase the risks beyond that which Guarantor intends to assume or has reason to believe that such facts are
unknown to Guarantor or has a reasonable opportunity to communicate such facts to Guarantor, it being
understood and agreed that Guarantor is fully responsible forbeing and keeping informed of all circumstances
regarding the Site,the Agreement,the obligations of the Storm,the financial condition of the Storm, and of
all circumstances bearing on the risk of any obligation by Storm hereby guaranteed.
FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "E" 04/12/01
5. The obligations of Guarantor hereunder are independent of the obligations of the Storm and,
in the event of default hereunder, a separate action or actions may be brought and prosecuted against
Guarantor(or any other guarantor) whether or not the Storm(or any other guarantor) is joined therein or a
separate action or actions are brought against Storm.
b. In the event of any litigation between Agency and Guarantor arising out of this Guaranty,the
prevailing party shall be entitled to recover its reasonable costs and attorney's fees.
7. No provisions of this Guaranty can be waived nor can Guarantor be released from the
obligations hereunder except by a writing duly executed by the Agency. This Guaranty may not be revoked
by Guarantor or,if Guarantor dissolves,becomes insolvent,bankrupt,or otherwise ceases to do business,the
trustee or administrator of Guarantor, and any attempted revocation by Guarantor or such trustee or
administrator, shall be null and void and shall not in any manner release or discharge Guarantor or such
trustee or administrator from liability under this Guaranty.
8. The Agency may assign this Guaranty. When so assigned,Guarantor shall be bound as above
to the assignees without in any manner affecting Guarantor's liability hereunder.
The Agency shall give Guarantor thirty (30)days notice prior to any assignment of this Guaranty.
9. This Guaranty shall remain in effect notwithstanding any bankruptcy, reorganization or
insolvency of the Storm or any successor or assignee thereof or any disaffirmance by a trustee of the Storm.
10. This Guaranty shall inure to the benefit of and bind the successors and assigns of Agency and
Guarantor.
11. Guarantor agrees that jurisdiction and venue with respect to any matter pertaining to the
Guaranty or acts or omissions hereunder shall lie exclusively with the Superior Court of the County of
Riverside, State of California, in an appropriate municipal court of that county, or in the Federal District
Court in the Central District of California. Guarantor irrevocably waives any and all defenses based upon
venue or forum non conveniens.
12. The laws of the State of California shall govern the interpretation and enforcement of this
Guaranty.
13. Guarantor represents and warrants that it has all necessary right,power and authority to enter
into this Guaranty and to fully perform its obligations hereunder and that the party executing this Guaranty
on behalf of Guarantor is fully authorized to do so and has all necessary authority to bind the Guarantor
hereto.
14. If any provision of this Guaranty shall be determined to be illegal or unenforceable by any
court of competent jurisdiction,then such determination shall not affect any other provision of this Guaranty
or the Agreement and all such other provisions shall remain in full force and effect; and if any provision of
this Guaranty is capable of two constructions, only one of which would render the provision valid,then the
provision shall have the meaning which renders it valid.
1=INALMaintenanceAgreementStadium.9_4015.009 Exhibit "E" 04/12/01
IN WITNESS WHEREOF, Guarantor has executed this Guaranty this day of
2001.
MANDALAY SPORTS ENTERTAINMENT LLC,
a California limited liability company
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By:
Paul Schaeffer, Vice Chairman
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FINALMaintenanceAgreementStadium.9_4015.009 Exhibit "E" 04/12/01