Case: 24CH2:16-cv-00925-CB

Document #: 2

Filed: 12/05/2016

Page 1 of 89

IN THE CHANCERY COURT OF HARRISON COUNTY, MISSISSIPPI

SECOND JUDICIAL DISTRICT

CITY OF BILOXI, MISSISSIPPI

V.

[f ~EC ~ 20~ IOJ

JOHN McADAMS, CHANCERY CLN0.

PLAINTIFF

llP - 0'LfJ

_ _ __ _ __ _ _ D.C.

BILOXIBASEBALL,LLC
and OVERTIME SPORTS MANAGEMENT BILOXI, LLC

l~

DEFENDANTS

COMPLAINT

This is a suit for accounting, for interpretation of contractual provisions, and for other
relief. The Plaintiff, City of Biloxi, Mississippi (the "City"), would show as follows:

I. PARTIES
1.

Plaintiff, the City of Biloxi, Mississippi, is a political subdivision of the State of

Mississippi.
2.

Defendant Biloxi Baseball, LLC ("Biloxi Baseball") is a Virginia limited

liability company registered to do business in Mississippi with its principal place of business at
18228 U .S. Highway 41 North, Lutz, Florida and may be served with process by serving its
registered agent, Robert F . Wood, at its registered office, 410 Legacy Park, Suite B,
Ridgeland, Mississippi 39157.

Case: 24CH2:16-cv-00925-CB

3.

Document #: 2

Filed: 12/05/2016

(" Overtime") is a

Defendant Overtime Sports Management Biloxi,

at 105 Caillavet

Mississippi limited liability company with its principal place of

Biloxi, Mississippi

Page 2 of 89

be served with process by serving its registered agent,

Quentin Whitwell, 1200 Jefferson Avenue, Suite 200, Oxford, Mississippi 38655.

II. JURISDICTION
4.

the State

5.

Jurisdiction is proper in this Court pursuant to Section 159 of the Constitution of

Mississippi.

Venue is proper in this Court pursuant to Miss. Code Ann. 11-5-1.

IV.
On or about February 11, 2014,

City, as Sublessor, entered into a Stadium

Sublease and Use Agreement with Biloxi Baseball, as Sublessee (the "Sublease"), for the
of

stadium in the City of Biloxi, Mississippi known as MGM Park (the "Stadium"). A true

and correct copy of the Sublease is attached hereto as Exhibit "1."

7.

On or about April 2, 2015, the

entered into a

Amendment to Stadium

Sub-Lease and Use Agreement with Biloxi Baseball, Overtime and Beau

Resorts, Inc.

(the "First Amendment") (a) providing for Biloxi Baseball or Overtime to provide certain
upgrades

additions to the Stadium, and (b) adjusting the "Additional Rent" to be paid

under the

A true and correct copy of the First Amendment executed by the parties,

in the form authorized by the City Council pursuant to Resolution No. 1452015, is attached hereto as Exhibit

"
2

on March 31,

Case: 24CH2:16-cv-00925-CB

On June

8.

Document #: 2

Filed: 12/05/2016

Page 3 of 89

into a Second

2015, the City and Biloxi Baseball

Use Agreement (the "Second Amendment") limiting

Amendment to Stadium Sub-Lease

against the City for failure to have the Stadium available

the

"Beneficial

in the Second Amendment

Occupancy" by April 18, 2015. "Beneficial Occupancy" is

as "the date upon which the Stadium is made available ... for the team's preparation for the
correct copy

first home game" (emphasis added). A true

the Second Amendment is

attached hereto as Exhibit "3."

9.

On or about June 4, 2015, the City, Biloxi Baseball and Overtime entered into a

Definitive Purchase and

Advertisement Revenue Agreement for

Agreement"). Pursuant to the Video Board

"'++,..... t"

(the "Video

Other Revenue Producing

Boards/Scoreboards and

Biloxi

is obligated to use best

to sell advertising for Minor League Baseball games, to

with the

and to be

for all costs ... "''"'v'"',....''',.... with

defined therein). A true and correct

MOM Park Video

the revenue therefrom

Primary Video Board (as

of the Video Board Agreement is attached

Exhibit "4." By its terms, the terms of

as

Video Board Agreement prevail over conflicting

provisions of the Sublease.

10.

The Sublease, as amended by

First Amendment, the Second Amendment

the Video Board Agreement (as so amended, "the

JlJUC,,,,U<Ul

will pay annual Base

every October 1

of $150,000 per

until termination

1'-'..' ..."'....

Sublease") provides that

beginning October 1, 2015 and on

the Amended

Amended "'..."'..v"',,,.... is February 11,2014 through February 11,2035.

The initial term of

"'"I-'HU ....." ....

terms used

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Page 4 of 89

in this Complaint but not defined herein have the meanings ascribed to such terms in the
Amended

"-'W'J'~'~U

11.

The Amended Sublease also provides that Biloxi Baseball will pay Additional

Rent monthly in arrears in

form of a surcharge

ticket sold for Club Home

,-,<4111,",,,

and

(defined as events held in the Stadium that are not Club

Biloxi Baseball

or City-sponsored events) as set forth on Exhibit R to the First Amendment. Under the First
Amendment, the City

to forgo Additional Rent with respect to the first 231,250 tickets

sold for Minor League Baseball games (but not Biloxi Baseball Events)
2015 and 201

each of the years

subject to the provision by Biloxi Baseball or Overtime of certain upgrades and

additions to the Stadium. Biloxi Baseball agreed in the Amended Sublease to provide to the
City a certified accounting of tickets sold for purposes of determining the Additional Rent due.
12.

Pursuant to the Amended Sublease,

City

to pay liquidated damages to

Biloxi Baseball not to exceed $100,000 if the Stadium was not available for Beneficial
Occupancy on or before April 18,

subject to the fulfillment of certain obligations on the

part of Biloxi Baseball and Overtime. The Second Amendment provides

damages will

Biloxi Baseball's "sole and exclusive remedies" with respect to a failure to

have the Stadium available for Beneficial Occupancy by April 1

13.

For purposes of the liquidated

2015.

set-off, the

Beneficial Occupancy between April 18, 2015 and June

Biloxi Baseball personnel occupied or used, and
prior to June

liquidated

201
4

u ...'U.. . . . JlU

was available for

2015. On information and belief,

Beneficial Occupancy of,

Stadium

Case: 24CH2:16-cv-00925-CB

14.

Document #: 2

October 1, 2016 of $

Rent via a

Biloxi Baseball claims, and City denies, that

Biloxi Baseball is entitled to an offset "1"."''''''' the total

15.

Page 5 of 89

Through the date hereof, Biloxi Baseball has paid $146,450

to the City in October 2016.

check

Filed: 12/05/2016

Rent of $300,000 due through

,550.

On information and belief, based on uncertified records provided by Biloxi

Baseball and/or Overtime personnel, at least 23,825 tickets have been sold

Biloxi Baseball

Biloxi Baseball, however, has paid no Additional Rent with respect to those ticket
Overtime,

sponsor of all or certain of those events pursuant to a use agreement with

Biloxi Baseball, has paid only $1,536 to

16.

City with respect to those events.

The City has fully satisfied

obligations on its part to be

performed under the Amended Sublease, or any failure to

nprTnr'nn

was waived. The City

demand on Biloxi Baseball to provide an accounting of (a) all ticket sales,

officer of Biloxi Baseball, (b) its completion
Amendment and (c)
video scoreboards. As of this

made to

by an

the items it agreed to provide

and revenues

from advertising on the

the City has not received a satisfactory or timely

Pursuant to the Video Board Agreement, Overtime guaranteed payment to the

City of at least $50,000 in
assigned its field naming rights under

revenues per year in exchange for which the City

Sublease to Overtime "as long as the compensation

required hereunder is paid to the City." No compensation

thus

been paid to the City

under the Video Board Agreement. On information and belief, Overtime has assigned the

Case: 24CH2:16-cv-00925-CB

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Filed: 12/05/2016

naming rights to Ascendant Spirits, Inc.

The City

agreement assigning the field naming

but no agreement has been

greemem nor has it paid

Video Board

asked Overtime for a copy of its

no money in respect of amounts due under the

Baseball has paid the

18.

Page 6 of 89

utility

pvy,pncpc

associated with the Primary Video

Board.
The City has fully satisfied and

19.

-tlvrrrlp'r1

all of

obligations to be performed

under the Video Board Agreement, or any failure to perform was waived.

a satisfactory or timely response (although Overtime

n,.pcc,'11

a willingness

back to the City prospectively).

field naming

to convey

made

field naming rights but has

demand on Overtime to account for its revenues with respect to

not

City

On June 5, 2015, the City and Biloxi Baseball made a joint application to the

20.

Mississippi Development Authority ("MDA") for the Mississippi Tourism Rebate Program to
costs of

defray

MDA that its

the Stadium. In that application, Biloxi Baseball represented to

in

and relocating its Minor '-''''''''~'''''' Baseball team and

tenant improvements to the Stadium xceeoe:o $20,000,000.

To date, the City'S consultant

who was hired to manage the application has been able to confirm with Biloxi Baseball's
auditor approximately $16,500,000 of investment eligible under

Program.

V. COUNTI-~~~~~~~~~~~~~
21.

The allegations of all preceding paragraphs of this Complaint are readopted and

incorporated herein by reference.

Case: 24CH2:16-cv-00925-CB

22.

Document #: 2

Filed: 12/05/2016

Page 7 of 89

Biloxi Baseball has not certified and accounted for its ticket sales since the

commencement of the Sublease, nor has it accounted for its efforts made to sell
the video scoreboards, its advertising revenues or

on

making of required specified

improvements, thereby preventing the City from determining amounts owed by Biloxi Baseball
under the Amended Sublease.

As a result of Biloxi Baseball's actions and/or inactions, the

and therefore

City has been unable to verify the amounts that it is

remedy of an accounting of ticket
made pursuant to the

Base

Amendment,

owed and any other amounts owed under

equitable

and Additional Rent due, improvements

made to sell advertising, advertising revenues

Amended Sublease.

Biloxi Baseball has not provided information sufficient to support $20,000,000

in eligible investment under the Mississippi Tourism Rebate Program.

As a result of Biloxi

unable to reap the full benefits of the

Baseball's actions and/or inactions, the City

Mississippi Tourism Rebate Program and therefore

equitable remedy of an

accounting of all costs incurred by Biloxi Baseball in acquiring and relocating its Minor
Baseball team and in tenant improvements to the Stadium.
VI.COUNTn-~~~~~~==~~==~

allegations of all preceding paragraphs of this Complaint are readopted and

incorporated herein by reference.
Overtime has not certified and accounted for its ticket sales
commencement of

the

Sublease, nor has it accounted for its revenue received to date pursuant

to its sub-assignment of the field naming rights.

7

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VII. COUNT III

26.

The allegations of all preceding paragraphs of this Complaint are readopted and

incorporated herein by
27.

Defendant Biloxi Baseball

or authority, offset its

through October 1, 2016 under the Amended Sublease by

due and owing to the

Base

unilaterally, without

$153,550.
This Court should issue its declaratory judgment that Defendant Biloxi Baseball
is currently obligated to pay
through October 1, 2016
Biloxi Baseball

shortfall in

Rent owing under the Amended Sublease

the amount of $153,550, net only

prove itself to be

at the

such liquidated

as

this cause, but in any event

set-off is not to exceed $100,000.

VIII. ~~~~~~~
the City demands judgment against Biloxi

WHEREFORE,
Baseball and Overtime as

Judgment ordering Biloxi Baseball to make available and to certify the accuracy
of all information necessary to determine, and to provide an accounting of, all amounts owed
to

City under

Amended Sublease, including without limitation ticket

and Additional Rent due, improvements made pursuant to the

to

, Base Rent

Amendment, efforts made

advertising, advertising revenues owed and any other amounts owed under the Amended

Sublease;

Case: 24CH2:16-cv-00925-CB

30.

Document #: 2

, certified by an officer of such Defendant, of ticket

other information necessary to enable

under the Amended Sublease

of

Page 9 of 89

Injunctive relief against Biloxi Baseball and Overtime ordering each Defendant

to provide timely monthly

31.

Filed: 12/05/2016

and

City to determine amounts due as Additional Rent

forward;

Judgment ordering Biloxi Baseball to make available and to certify

accuracy

information necessary to determine, and to provide an accounting of, all costs incurred

by Biloxi Baseball

acquiring

relocating

Minor League Baseball team and in tenant

improvements to the Stadium.

32.

Judgment ordering Biloxi Baseball to make available and to certify the

dates available

of all information necessary to determine, and to provide an accounting

for home games in 2015 and all costs incurred in the scheduling of home games for 2015,
whether held at MGM Stadium in Biloxi or at another location.
33.

Judgment ordering Overtime to make available and to certify the accuracy of all

information necessary to

l1Pfprl1n,

and to provide an accounting of, all amounts owed to the

City from Overtime under the Amended Sublease, including without limitation ticket sales,
Additional Rent due, improvements made pursuant to the
owed under the Amended Sublease and all revenues

Amendment, any

amounts

by Overtime pursuant to its sub-

assignment of the field naming

34.
obligated to

A declaratory judgment to
to

that Defendant

Baseball is currently

shortfall in Base Rent owing under the Amended ....... 'v.'-',"'''~

through October 1, 2016 in the amount of $

,550, net only

9

such liquidated damages as

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Page 10 of 89

Biloxi Baseball may prove itself to be entitled at the trial of this cause, but in any event such
set-off is not to exceed $100,000.
35.

Such further relief, at law or in equity, as this court deems proper.

The City reserves the right to amend and assert further or additional causes of action
after the completion of the accounting requested and after the completion of further
investigation and discovery herein.
DATED this the

5't-1v

day of December, 2016.

Respectfully submitted,
CITY OF BILOXI, MISSISSIPPI

By:
ise Carter Child & Caraway, P.A.
1105 30th Avenue, Suite 300
Gulfport, Mississippi 39501
TELEPHONE: (228) 867-7141
EMAIL: ejm@wisecarter.com
SPECIAL COUNSEL, CITY OF BILOXI

By:
Currie Johnson & Myers, P.A.
925 Tommy Munro Drive, Suite H
Biloxi, Mississippi 39532
TELEPHONE: (228) 385-1011
EMAIL: pabide@curriejohnson.com
CITY ATTORNEY, CITY OF BILOXI

10

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Page 11 of 89

BILOXI

STADIUM SUBLEASE AND USE AGREEMENT

THIS STADIU~~UBLEA~AND USE AGREEMENT ("Agreement") is made and

entered into as of the KV\day of _
,2014, by and among BILOXI BASEBALL, LLC
("Biloxi Baseball") or its designee and the TY OF BILOXI, MISSISSIPPI (the "City").
WIT N E SSE T H:
WHEREAS, Biloxi Baseball owns and operates a Class AA Southern League
professional baseball franchise which is currently known as the Huntsville Stars(the "Club"); and
WHEREAS, the City has leased the Overall Site from Beau Rivage Resorts, Inc. ("Beau
Rivage" or "Landlord") pursuant that certain Ground Lease Agreement and Sublease Agreement
.
dated fi:~~1l.t1 /II!!:, 2014, (the "Ground Lease/Parking Garage Sublease"); and,
WHEREAS, Biloxi Baseball intends to move the Club to the City, to sublease the
Stadium Site (as hereinafter defined), to exhibit the Club Home Games (as hereinafter defined).
WHEREAS, Biloxi Baseball and the City desire to more fully set forth their full and
complete understanding of the terms and conditions under which the Stadium will be developed,
the Club will occupy and manage the Stadium Site on a year-round basis and, unless otherwise
provided herein, play all Club Home Games therein, subject to Beau Rivage's and the City's use
of the Stadium, and Special Events as set forth herein); and
WHEREAS, the parties hereto desire that this Agreement shall set forth their full and
complete understanding with respect to subject matter herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises and covenants herein contained, and other good and valuable consideration, the receipt,
sufficiency and adequacy of which are expressly acknowledged, Biloxi Baseball and the City,
each intending to be legally bound, do hereby mutually agree as follows:
1. Definitions. As used herein, the following terms shall have the following meanings:
(a)

ADA. "ADA" shall have the meaning set fOith in Section 6(c).

(b)
Additional Rent. The term "Additional Rent" shall mean the per ticket sold
charge with respect to tickets sold by Biloxi Baseball for all Club Home Games and Biloxi
Baseball Events (including tickets sold to suite holders or attributable to suite usage per Section
9(a)(ii) herein as additional rent as set forth in the schedule attached hereto as Exhibit R.
(c)
Agreement. The term "Agreement" shall have the meaning set forth in the
introductory paragraph above.
(d)
Applicable Law. The term "Applicable Law" shall mean all applicable laws,
ordinances, judgments, rules, regulations, requirements, conditions, mandatory guidelines or

- 1

EXHIBIT
1\

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directives of any
government
having
subject matter of this Agreement or the parties hereto.
term "Architect"

over

Page 12 of 89

Stadium

the meaning set forth

or

Section 6(b)

hereof.
(f)

The term

have

mean set forth in

10.

term "Baseball Season" shall mean, as to each calendar

baseball
Term, the regular annual period
play of a full season of
Club at
Stadium from March 15 to
date on which
applicable
season, including any and all
"playoff' games and
(h)
term "Beneficial Occupancy" shall mean
when the Stadium
appurtenant improvements (including, without limitation,
facilities and other
for operation and use
the Stadium)
to MPB such that the Stadium has been given all necessary legal clearances, meets
standards for protection of occupants and
playing baseball, including
not limited
of
and is substantially complete so
by either a
or
Biloxi Baseball may utilize the Stadium for the purposes intended by this
to
operate
business selling, marketing, displaying and conducting Club
(g)
term "Biloxi Baseball" shall have
introductory paragraph of the Agreement above.

in

The term "Biloxi Baseball

and all events
promoted
by Biloxi
Games, including, without limitation, the
which are not
by Third Parties for special events, concerts, festivals and other similar
but excluding
(h)

0)

term "Capital Maintenance and

shall have such meaning as described

(j)
term "Capital Maintenance
Fund" shall mean
restricted City fund as more particularly described in
16 ("Capital
Restricted Maintenance Fund").
(k)
'"''''11''''" above.

The term

the Au,",uaU'F> in the introductory

(1)
The term "City
shall mean
by the City
and other similar activities
Section 5, for
no Additional Rent based upon admission

-2

special

concerts,

to the terms set out in

shall

due from Biloxi

Case: 24CH2:16-cv-00925-CB

(m)

Claims.

Document #: 2

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Page 13 of 89

The term "Claims" shall have the meaning set forth in Section 2 1

(a).
(n)
Club. The term "Club" shall mean a Class "AA" minor league professional
baseball franchise owned and operated by Biloxi Baseball or Biloxi Baseball's successors or
assigns.
(0)
Club Home Game. The term "Club Home Game" shall mean all professional
minor league baseball games played in the Stadium involving the Club or its parent affiliate club
players as a participant, including without limitation all pre-season games, regular season games,
exhibition games, post-season "playoff' games and "all-star" games.
The term "Competitor" shall have the meaning set forth in Section

(p)

Competitor.

(q)

County. Theterm "County" shall mean Harrison County, Mississippi.

5(g).

(r)
Development Site. The term "Development Site" shall mean that portion of the
"Overall Site" on which additional commercial development may be authorized pursuant to the
terms and conditions contained in the Ground Lease/Parking Garage Sublease, as is more
particularly described in Exhibit "D" which is attached hereto and incorporated herein by
reference and is also referred as the "NOlth End Premises".
(s)
introdUl~tory

Effective Date. The term "Effective Date" shall be the date set forth in the
paragraph ofthe Agreement above.

(t)
Emergency. The term "Emergency" shall mean a condition which (1) involves a
danger to public health or safety or (2) is likely to result in immediate, substantial damage to the
Stadium Site.

(u)
Facilities Criteria. The term "Facilities Criteria" shall mean the document agreed
to by the City and Biloxi Baseball attached hereto as Exhibit "F" and each of the items listed
therein.
Ground Lease. The term "Ground Lease" shall have the meaning set forth in the
(v)
introductory paragraph of the Agreement above.
(w)

Initial Term. The term "Initial Term" shall have the meaning set fOlth in Section

3(a).
(x)
Landlord.
successors in interest.

The term "Landlord" shall mean Beau Rivage ResOlts, Inc. or any

(y)
League. The term "League" shall mean the Southern League of the National
Association of Professional Baseball Leagues, Inc. and its successors, and any such other
Double-A or higher professional baseball league affiliated with Major League Baseball that

-3

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Biloxi Baseball in
discretion may affiliate the
Baseball and Major '-'''''''1'>'''''

during

Page 14 of 89

as

as

(z)
Site" shall mean that
tract of land situated
in Biloxi, Mississippi, as more specifically set fcnth in
attached hereto and
incorporated herein by
which Overall Site
been
to the
by
pursuant to
Ground
Sublease, which includes the Stadium Site, the
Parking Garage Site,
Development
and the
which will
over
U.S. Highway 90
the
Site to a site on the
U.s. Highway 90.

(aa)

Sports Management Biloxi,

LLC.
(bb)
The term
mean
structure built on a
which is
in the Ground Lease/Parking Garage
portion of the Overall Site the use
Sublease, as
location more specifically set fOlth in
attached
and
incorporated herein by .. "'-t.o,."" .... ,.."
UU\.Hv,"",""u

(cc)

Parking Garage Site. The term "Parking

Site the use of which is
Ground
more specifically set fOlth
(dd)
have the

as

The term "Prohibited Person" or "Prohibited ..,"'r'''''.. r'~ shall

set forth in Section 46(b )(vii).
The term "Renewal Term" shall have the meaning set fOlth in

(ee)
Section 3(a),
(ff)
set forth in Section 13.

The ter

cAAfrJud~

(gg)
term "Stadium" sha Lmean
physical
of a baseball
located upon
Stadium Site of approximately 6,000 seats
other customer seating in other areas within
Stadium which
consisting of
should include party deck(s),
the berm, pavilion,
and other similar
areas to
extent
to provide
areas
to 6,000
and clubhouses,
administrative and storage areas, interior batting cages and tunnels, bullpen pitching mounds,
board/scoreboard, and including
ancillary
substantially in accordance with the plans
May 24,
13,

Dale Partners which have been approved by

pa1ties to this Agreement,

same currently
or as it may

together with
other appurtenances
improvements, as
be expanded or modified,
time to time
(hh)

shall have the

described in

(ii)

iU,",UH'H5

set forth in

~~=--",,::,,;:;,_.

The term
Parking" shall mean the 150 U'AH"''"'''"'U
for Biloxi Baseball players, administrators and
-4-

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Biloxi Baseball in its

may affiliate
Baseball and Major League Baseball,

Filed: 12/05/2016

Club during

Page 15 of 89

as well as Minor

Sports lVlana~;emlent Biloxi,

LLC.
(bb)
The term'''VO,j-I<,.,,-.
portion of
use of which is aaClressea
Sublease, as its location more specifically set
lnClJrp,orated herehi by lUL''';'''l'''''.

mean
structure built on a
Ground LeaselParking Garage
==:!:-~ attached hereto al1d

The term "Parking Garage

shall mean that portion of
which is addressed in the Ground
..."..',r.YI.lY Garage
as
~~~~ attached hereto and incorporated
by reference.

The term "Prohibited

1:jectlon 46(b)(vii).

mll.!J.llli.C:li!..!~!QnW.

have

set

Term"

term

(ee)
Section 3(a).
Routine Maintenance.
13,

UVV>J.VU

Uai"",,"'"

01'

"Prohibited

'have the

term "Routine Maintenance"

cltil tkncJ:. h

shall
set forth in

have the memling

'

he term "Stadium" ~htlil mean the physical improvements VVJ.J,OL'''.J.Ul',

stadi
to be located
the Stadium 'Site
approximately 6,000 seats
consisting
seating
other customer
in other areas within the
which
should include party deck(s), picnic a1'ea(s), the
pavilion, beer
and other similar
areas to the extent necessary to pl'Ovide
areas for to 6,000
and clubhouses,
admlnistrativ~
areas,
oages
tunnels, bullpen pitching mounds,
pitoher warm-up areas, a video board/scoreboard,
including all ancillary
sidewalks, paving
curbing, substantially
with
May
Schematic Plans of
Partners which
been approved by the pmties to this
together
all
and
01' as it may
from time to
expanded or modified.
(hh)
7(c)

The term "Stadium

as more specifically described

(li)
parking spaces for Biloxi

term "Stadium
players, administrators and

the
shall mean the 150 dedicated
holders to be provided by

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in the North End Premises

to the
to Biloxi Baseball
Beau Rivage in the Parking

the

(jj)
more particularly described in ===--""- CUlOlvU<CU
known as the "Demised Premises".
and which is

Page 16 of 89

parking spaces to

provided

property as
by reference

and incorporated

(lek)
term
or
(including a
sublease
any portion of the Overall Site, or any
license agreement,
or other similar arrangement) made by Biloxi Baseball
or
City
to
any
of
Overall
Site.
(ll)
The term "Suite" shall mean all
or game viewing areas that are
to individuals or
admission tickets.

(mm)

(nll)
S(c).

"Tenn" shall

the

or other "p..,,,rClTP
independently from

3(a).

term

a"ppmpn1'"

shall have the

set forth in

2.
Subject to the terms
conditions
Ground
the City does hereby
to Biloxi Baseball
Biloxi
City the following described real property, lying and
Second Judicial
of
County,
of
"=,~~~J_ attached hereto.)

HU,JoJhJ'"''

3.
otherwise terminated as provided in this Agreement, the initial term ("Term") of
this Agreement shall
for twenty-one (21) years, commencing on the
date
~~'u~,.'c and ending on the
thereof. Biloxi Baseball shall
option, upon the terms and
set
to
Term
Two
year periods (the "Renewal Term"), by notifying the City in writing of
exercise of said option
at least twelve (12) months prior to
expiration date
the
or Renewal Terms. Rent
for the Renewal
period
same as
Term. The term of
Stadium Sublease will run concurrently with the Ground Lease/Parking Garage
4.

Stadium shall
owned
the
Stadium shall be built by
and Stadium
to Biloxi
not
any ownership interest in the Stadium or the
or any
placed by the City.
the
it is
understood that if any improvement to the Stadium is owned by Biloxi Baseball and is capable of

-5

Case: 24CH2:16-cv-00925-CB

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removal at the end of the Term, then

to remove and dispose
such
uv"-'UVI.I" 17 and 18.

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Page 17 of 89

shall retain ownership thereof

as it deems appropriate in

5.

and permit designated Third

to use the Stadium
all
during the Term including, without
play Club Home Games
J.J""v~/U.U Season, to authorize, promote and/or
all revenues derived from
Rivage's right to retain naming
right to Additional Rent as set
rights revenues as set forth in Section 9(b).
Club's 2015

(b)

or otherwise. The terms and

shall be applied to such additional
acknowledge that it is the purpose of this
Stadium be utilized for the
of the year, including those Patts of the year "'''''''''',JJ.
Season or when there is no
Game played, and that the Stadium will ",,,,,,,,,..H.,
revenue for the parties every month
(c)
Third Party Events.
Stadium Site, Biloxi Baseball reserves
available to Third Parties during the
All such events, excluding
substantially the same
include
the Ground
of this Agreement that apply to
Rent provisions, shall
to
Stadium Site hereunder. It is

Biloxi Baseball's exclusive right to

and agrees to make the
including, but not limited to,
conducted pursuant to a
===-"""- ("U se
inclusion by this Stadium
In addition, the terms and
including but not
Third Palty Events or other events occurring
that these Third Patty Events will

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revenue
the parties in every month
and collection of any Additional
"I",,,,,,,u,.~u. authorizing a Third

(Tp""",,,tp

"vvVCUlLH"1".

~~~~~~~~~~~~~~~~~

In accordance with the terms

Ground Lease/Parking
the City and Beau
shall not allow any sub-lessee to enter into subleases, concession
or any other agreement by which a person acquires the right to occupy
("Sublease Tenant") without
consent of Beau Rivage, which consent
not unreasonably withhold so
(i) neither the Sublease Tenant or any

or affiliates is a Competitor; (ii) the

business background

standards; and (iii)

shall meet or exceed generally
information necessary to
check on the Sublease
has determined in
not cause
or its affiliates to be in
similar obligation imposed
u.Ul",a~.v Tenant shall include
below) privilege
is hereby incorporated
1-'\.,",,,",","111

shall enter into

Demised
with a Competitor of
consent which may be withheld in Beau Rivage
Biloxi
nor
other person shall enter
to the Demised Premises or any
nor any other person shall enter

Biloxi Baseball nor any

or otherwise occupy any portion
without Beau Rivage's prior Wl'itten
and absolute discretion. Neither the

contract or grant any rights with

of any portion of the Demised Premises to a Competitor without Beau

prior consent which may be withheld

above. Biloxi

sale and absolute

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agreements
Stadium
premium
single event promotions,
preferred parking, scoreboard advertising, scoreboard
and outfield
sponsorship
Competitors
agreements so long as
opportunities and allow
the use
logos by
to
that are not
agreements are on
reasonable terms as
Competitors.
addition and notwithstanding
foregoing,
Beau
consent, which
consent shall not be unreasonably, withheld, conditioned or delayed, Competitors
be
allowed to
or
events in
provided members
general public are
at a cost consistent with the costs
other events held by
For the
offered
"Competitor" shall mean
individual, corporation,
liability company or other entity which is
directly, indirectly or
the
to engage
may not diminish Additional
Such
are
upon ticket
and ticket usage regardless of whether
ticket
in such an event Biloxi
amenities without a
of tickets so provided as a
the
f'r\lnf'F'l"T"

access to

Access to Overall Site.

Overall Site
purposes

afforded """'''V',l''V'

6. Stadium Development.

"HuH~,~thesame,H111~~''''

performance
this Agreement, and each
or result in a
under this grf:errlen:t, will not conflict
and/or the
is a party.
Stadium
(21) years and any rpnl~UI<> thereof to
City by
Lease/Parking
Sublease.
(b)

Beau

Stadium shall be developed

on the
finance,
contract
the development of the
and Pedestrian Bridge with a budget of funding which
Million
and shall
responsible
all
Stadium,
accordance with both Major
Minor ~~,~"".v
BasebaH stadium construction requirements provided to
architect
City anticipates employing Dale Partners as the
& Sons
City further anticipates employing W. O.
Stadium.
Baseball
it provided
Manager.
and all
regulations
as attached as
of Major and
League
equipping of
proposed AA stadium. Prior to entering
and
the
Stadium,
City shall
copies
existing
and construction
and

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Biloxi Baseball and Beau

will
opportunity for review
comment for a
period not to exceed seven (7) days.
will use its
efforts to accommodate the
budget to
$36
that the changes do not cause
contracts are executed but
the Dale and
V~"M~"" V'"~HE>"-''' to the construction and the City will do
ugl!eSlea changes, so long as the $36 Million Dollar budget is not
are to be constructed as part of the Stadium: party deck(s),
picnic area(s), the
pavilion,
and other
areas to the extent
to
provide seating areas for up to 6,000 customers;
and storage
areas, interior
cages and tunnels, bullpen pitching mounds, pitcher warm-up areas, a
video board/scoreboard, and
sidewalks, paving and curbing.
The berm, picnic area(s), pavilion, party deck(s), beer
and other similar areas, will
by the Architect after consultation with
City and
located in user friendly areas as
Biloxi
with preference
to the
by
$36 Million
provided that Biloxi
preferred location(s) do 110t cause an
project budget limitation. The designated contact
for Biloxi Baseball under
contract is Ken

=...::o====.c:==;:.;:..L." The City

meet or
the
listed in the
rules, regulations and
LJ"-"";;'U'''-' Baseball as
City
Biloxi Baseball.
the design requirements and standards listed in the Facilities Criteria and the
regulations and requirements of Minor
Baseball provided by
Baseball are correct, the
City
to Biloxi
that the
has
to comply with
City
to
with Disabilities Act of 1990, as amended ("ADA") and Applicable Law.
Biloxi
that the design, development and construction of all areas of the Stadium shall
comply with all Applicable
including, without limitation, the ADA. Provided that such
is not
an act or
of
Baseball or
by the
City on design
provided by Biloxi Baseball, Biloxi Baseball shall have no responsibility
or liability in regard to the
sufficiency,
or legality thereof. The City
shall, to
extent
indemnify and hold Biloxi
from and
all of
foregoing. Assuming the representations of City are true and conect,
Baseball
and warrants that it will operate the Stadium in compliance with
ADA and
all Applicable
Biloxi BasebaH shall indemnify and hold the
from and
all
7.

Stadium Financing.

(a)
Except as otherwise set forth
City
responsible for all costs and expenses associated with the financing,
development,
instaHation and construction of
Stadium. The
shall
funds to design,
develop, install
construct
Stadium
an amount and on terms as necessary in
to
obligations under the terms of this
provided that the total
meet all of
including hard and soft
the Stadium shall not exceed the total sum of $36 Million
Dollars.

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(b)
responsible for the cost and
all land, soil
civil
costs, rough grading, excavation
flood control,
hardscaping and landscaping costs, related to
Stadium
shall be included in
the computation of the $36 Million Dollar lW''','l>llHUl
(c)
Unless otherwise provided in the
Construction Documents or in
attached hereto, Biloxi Baseball
responsible
such furniture,
and
it deems necessary
installation at
Stadium
FF&E"). A non-exclusive
of Biloxi Baseball FF&E is listed in ===-....,:...::-:.
Biloxi Baseball shall
and contract with vendors it
appropriate in connection
securing such Stadium FF&E for the Stadium. All such Stadium
shall be owned by Biloxi
Biloxi Baseball shall
responsible
any replacement
All
of Biloxi
Stadium FF&E will
purchased in
discretion
at the cost and
For avoidance
doubt
Baseball and the City acknowledge and agree that
structural components,
components or
or parts of the
shall
not
Stadium
8.

Completion.

City
to use its best
to
the
Beneficial Occupancy on or
April 18,2015. Biloxi Baseball will
at its own expense, an alternative playing site(s), if
1.CU Occupancy.
will
pro-rated
that
Stadium and/or the Site is not
Occupancy based on the Annual
Rent compared to the unavailable number of
in the
5
purposes of
this
the
15 Baseball Season
on AprilS, 2015, and
on
15,
2015.
City will use
best
to assist Biloxi Baseball in locating and securing an
alternative
site should that necessary for the 2015 Baseball Season.
U .....ll....l1....

(b)
The
covenant to have the
Stadium available for Beneficial Occupancy on or
18,2015, is of
importance
to Biloxi Baseball, and that in the event the Stadium is not available for Beneficial Occupancy on
or before
18, 2015, Biloxi
will
the actual amount of which would
impractical or extremely difficult to determine, that
liquidated
amounts set forth
below are reasonable pre-estimates of what Biloxi Baseball's monetary damages would be in
event
Stadium is not available for
Occupancy on or
April 18,201 and it
is
parties intention that
City provide Biloxi Baseball with liquidated
to
compensate
Baseball if
Stadium is not available
Beneficial Occupancy on or
City from breaching this
April 18, 2015, rather than penalties to deter
andlor to punish
City.
in
event the Stadium is not available for Beneficial
Occupancy on or
April 18, 2015, plus additional time for
attributable to
force majeure, as defined herein, then Biloxi Baseball will
the following available remedy:
Baseball may
until the
Stadium is available
Beneficial Occupancy, and the City
to pay to
Biloxi
as liquidated
an amount
$10,000.00 per Club
for each
Home
for which the Stadium is not available for
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Occupancy after April 18, 15, plus additional time for nPr"tfW'"Yl
attributable to force majeure, as defined
The number of games to which
this liquidated
provision shall apply shall
determined according to the
schedule established by Biloxi Baseball 10
course
operations;
during the month of April,
15, the City cannot be held
of the liquidated damages $10,000.00 per Club Home
responsible for
beyond a cap or maximum
seven (7) such Club Home
May 1,2015,
may be applied as stated to eaeh
for which the Stadium is not available
Baseball acknowledges
Biloxi Baseball's sale and exclusive

that the remedies set forth in this Section 8(b) shall be

with
to a breach of Section 8(a)

",U'vu.'",,,

9.

be entitled to all revenue streams, now

year-round operation of the
for any and all events at the
as otherwise provided
foregoing notwithstanding, the following provisions more specifically Q.U~U,",""
streams:
(a)

(i)
Event Tickets. Biloxi Baseball or its assigns, in its
discretion, shall set ticket
and entry
all events at
Stadium and/or the
City Events and
Third Party
season tickets and Suite tickets.
and Third
respectively, shall set their own ticket prices for City
and Third Party Events,
for
the Additional Rent
as otherwise provided
Biloxi Baseball shall
entitled to
all revenue collected by Biloxi Baseball for all tickets
all such events.
Baseball shall
also
entitled to charge admission, participation and related
and charges
connection
with
operation
any other
at
Stadium Site, except
City Events
Third
Except as set forth
Section 10
no ticket
or other
fees are or will
instituted
the City for admissions to baseball-related events at the Stadium
without Biloxi Baseball's prior written consent. The use of
Stadium Site by Third
for Biloxi
Events shall be subject to a
by
between sueh entity and
to
the accounting and collection any Additional
Biloxi Baseball. Biloxi Baseball
Rent on all Third
Events a requirement in
Agreement authorizing a Third Party
Event.
(ii)
Biloxi Baseball may rent or
for a term not to
the
Term of
Agreement, and any
to renew, or extensions
suite
with any extension negotiated between Biloxi Baseball and the City under
Baseball,
its
discretion, shall set prices
the rental or license of all Suites,
including but not
to
all events at
Biloxi
shall
entitled
all revenues from
and retain one hundred percent (100%)
of
shall be paid on
sold to Suite holders. At least
designated for Biloxi Baseball's use and one Suite
Beau
use for
for
with the terms of this
sold shall be paid
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either require all users of suites to purchase tickets

individuals
at games or Biloxi Baseball
or
them to pay Additional
Rent on all available seats
a Suite for each
or Biloxi Baseball Event for which a
has
leased, including any
which has been "camped" to Beau Rivage or to a third
Other
may be
the
on a daily
for which Additional Rent
to the
ticket sold) shall be applicable.
(b)

terms and conditions set

Beau
shall
the
to the
Notwithstanding
foregoing, Biloxi Baseball and the
the right to approve any
Naming
such
approval not to be unreasonably withheld,
or delayed,
Biloxi Baseball shall have
the right to approve or disapprove any name selected
the
such approval not to be
unreasonably withheld, conditioned or delayed. All signage associated with the naming rights
shall
paid for, provided by and maintained by
City or Biloxi Baseball at Beau Rivage's
cost, including
cost of
by such
for such
which
may be provided for in the initial plans and specifications. Subject to the terms and conditions
set forth
City
the
and all revenues
to name the field
Stadium. The City shall
right to
or
Held
rights
to a
party; however, the City shall not
or assign the naming rights to the Held to a
Competitor of
Rivage. A purchase or assignment of
Held naming
not
preclude or limit the
or
of adveliising rights
Baseball in the Stadium to
services or products the same or similar to those offered or
by the
and the naming rights purchaser is not
or limited from
advertising rights or space
Baseball because the
of the
In
or
party to whom
to
the field are sold or assigned
responsible for all
including, but not limited to, all
construction, maintenance and electricity usage associated with said signage.
field naming
rights
be
to a
of
(3)
located within the Stadium, the
locations of which shall be approved by Biloxi Baseball and which do not
with
operation of baseball and which approval shall not be unreasonably delayed, conditioned or
withheld.

(c)
or its designees shall be
and
sell, and
revenues
at
events held in and at the Stadium Site. Such concession items shall include but
not be
limited to, in Biloxi Baseball's sale
all foods,
(alcoholic and non-alcoholic),
yearbooks, hats,
t-shirts, souvenirs, other sports apparel and
merchandise, including but not limited to novelty items
Biloxi Baseball
(and all
related subsidiaries') merchandise, as well as
interactive
games, batting or
pitching cages and other entertainment
retail or food service item, including any eventrelated activities scheduled by
Except
City
Biloxi
rights
shall include, without limitation, the exclusive right to vend concession and novelty
or portable
located at the Stadium provided any p0l1abie
12

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are in
with all Applicable Laws, Biloxi Baseball may assign any or
rights to sell concessions to
as Biloxi Baseball determines its
sole discretion. For City Events, the City reserves at
option
right to designate permitted
concessionaires
right to determine, on a case by case basis,
whether
concessionaire may
to use the Stadium for the requested City Event.
Notwithstanding the foregoing, no concessionaires shall
Competitors of Beau Rivage.

(ii) =-+==::.:;'
menu boards and related

UGU,U,,,,,Ul at
necessary to sell such

own cost all equipment, machinery,

during all events.

'\.,<\.,<,0';"\';"';'

(d) Advertising/Signage.
as otherwise set forth
Biloxi Baseball shall
the
right
shall
bear the cost to erect, install or affix commercial, non-commercial, identifying, and any other
and
both temporary
on or
the
including, without limitation, on the
fences,
interior and exterior walls, marquee or matrix signs, utility poles and Stadium
grounds and
fencing, billboards, pedestrian walkways, entrances, exits, pavilions and other public garnel:ll
for
purpose of
Biloxi Baseball, the Stadium
and promoting third party products and
or associating
areas
Stadium Site with third party products and services, and/or decorating or otherwise enhancing
Stadium
and Biloxi Baseball
also
such
in and on any publications (including programs and scorecards) which may be
Site, all revenues from all sources and all events
from such
as well as all
or
all revenues
scoreboard/video board advertising, but excluding revenues from the placement of the naming
rights purchaser'S name on the field as provided by Section 9(b), shall be retained by Biloxi
Baseball
signage shall
installed and
in
with Applicable
necessary, the City shall, to the extent
law, assist Biloxi Baseball
required under the laws or regulations of any government
obtaining any permits or
authority and
to the scoreboard
center
billboard advertising. All
contracts and
contracts which include a bundled admission ticket
Section 10 of this
All
shall be subject to the Additional Rent
Stadium shall
to Beau Rivage's prior
from
exterior of
which shall not
unreasonably withheld,
or delayed,

(i)
Baseball or
the exclusive right at its own expense to
broadcast, televise, and cablecast, by any
transmission or distribution
Club
Home Games, Biloxi Baseball
and
Party Events which may
scheduled,
of
Agreement and shall retain one
promoted, and
at the
during
thereby. Biloxi
hundred percent (100%) of all revenues which may be
its
to broadcast, televise, cablecast and distribute such events at such times and in
such a manner as it shall consider appropriate. The City agrees not to
its
broadcasters any
related to the rights
that are not
to
other
J.JU,Jvuu.J.

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City or its
shall
the
right at
own expense to broadcast,
and
by any form of transmission or distribution whatsoever, all
Events
which may be scheduled, promoted, and held at the
Site
the Term of this
O"?>PWlpnt and shall
one hundred percent (100%) of
thereby. The City shall
its
to broadcast,
cablecast
events at such times and in such a manner as it shall
appropriate.
and
expenses associated with such rights, if any.

on

Neither Biloxi
Stadium

party shall

"'''1;'''1<.'-'

in or allow any

operations

10.
shall
the City annual base rent
Rent")
during the Term in the amount of
$150,000.00 and 001100
Dollars ($150,000.00) per
due and
on October I of
each
year
. In addition,
shall pay
City a per
ticket sold
to
by
Home Games
Biloxi Baseball
(including tickets sold to suite holders or attributable to suite usage per
Section 9(a)(ii) above, and attributed to or bundled with advertising contracts pursuant to
9(d)) as additional rent (the "Additional Rent") as set forth in the
as
The foregoing notwithstanding,
Baseball may
complimentary
Home Games which are not subject to the Additional Rent provision, provided
said "comped" tickets are either issued to a public service or military organization, or issued as a
part
a promotion to maximize ancillary revenue
at
Additional
does not apply to complimentary tickets provided to coaches, staff, players and medical staff for
professional and
teams. During
Biloxi Baseball shall require any Third Party
"1-''-''"''''''). to pay a
ticket sold
with
to
for
or other events (including tickets sold to
holders) as Additional Rent, as more particularly
set forth in
hereto. The Additional Rent shall be paid to
City by Biloxi Baseball
on a monthly basis thirty (30)
1, 2015.
Additional Rent shall
in arrears beginning
apply to all
tickets (including tickets
to suite holders,
to suite
attributable to "comped" suites) sold by or on behalf of Biloxi Baseball
sold by or on
behalf of any Third Party
holder, but not to any other revenues, such as revenues from the
of Suites.
and/or
Party shall provide a true and correct
of
Baseball's and/or Third Pmiy
sold for
of
the
Additional Rent, certified by an officer of Biloxi Baseball and/or a Third Party Event vendor.
11.
Biloxi Baseball shall
responsible for providing security
control vehicular
traffic
Site. Biloxi Baseball shall, at
Baseball's expense, provide qualified security
crowd control
to protect
public
health, safety and welfare at all Biloxi Baseball Events. Any Third Party shall at its own
expense, provide
security
crowd control
to protect the public health,
safety and welfare at aU Third
at the
security
crowd control
to protect
public health,
Events. As required
Mississippi law,
City shall be
on public streets.
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expense, the Stadiwn

shall
furnished with access to
domestic water, sufficient
capacity to operate and manage the Stadium
(including,
without limitation, capacity
and
for night baseball games), sewage,
irrigation and drainage
with maximum outsource. In
the
Rent and
Additional Rent set
10, and as part of the City program of maintenance of City
City shall be responsible
either
to the facility at no cost to Biloxi
Baseball or the payment
the following utility expenses:
water, sewer, and gas
to the Stadiwn Site. Biloxi Baseball shall be responsible for the payment of electronic
based utilities, including but not limited to,
internet
and cable and
other
etc. and other related expenses

l3.
Unless otherwise
to
Biloxi
shall be responsible for all "Routine Maintenance" of the Stadium, excluding, however, Routine
""'"'H.'U'_'" U,,,,,Vvl<lt"U with
use of the
"Routine Maintenance" shall
be defined as the provision of labor and
which are required to
the
in
good
and repair (normal wear and tear excepted) and which are
a routine, regular and
the use to which it
been put.
predictable nature
the age of the
of Routine
following:
Keep clean at all times all areas
not limited to
press box, Club
Suite areas, concessions areas, and
clubhouses/locker rooms, provided, however, that the City at its expense will provide
on an as u~,~~,.~
maintain all areas
the
fencing,
all
but not
than every two weeks, landscape maintenance outside the Stadium,
parking areas
up and haul away
trash and all other
maintenance and deaning
Stadium fencing.
(a)

(b)
Garbage and trash clean-up and removal at the Stadium to the

each event at
Stadium and garbage removal
Stadium
as

(c)
Mow, fertilize,
surface in the Stadium in

baseball playing

(d)
Game and provide
events as
(e)

batting

baseball equipment, including all hitting screens, tarps,

all other moveable on-field
player equipment.

(f)
Paint, repair and maintain all non-public areas of
Stadium that are under
Biloxi Baseball's exclusive control (including, without limitation, suites, concession areas,
offices and clubhouses), but
excluding any
structure and the roof or
other public areas.
and maintain all equipment related to concessions, retail and
activities at the Stadium.

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Case: 24CH2:16-cv-00925-CB

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control.

(i)

Routine

CD

Maintain,

(k)
Maintain,
Biloxi Baseball.

of the scoreboard/video board.

and replace television monitors, if Hv'_v"''''=
and

all

and

owned and installed by

(I)
inspection and
and field drainage
(if any),
water,
periodic cleaning, lubricating
servicing and replacement of incidental parts.
(m)
light
(excluding Stadium
as they burn out or need replacement.
responsibility of Biloxi Baseball.
1''\1'1''<11",,.,,

(n)

Any other ~U"'''H',''U'''U~''' that is not

tower
of necessary stock shall be the

as Capital

or Repair.

14,
The City shall be responsible for paying for
cost of,
and Repair"
the
in
conjunction with Biloxi Baseball,
an
Capital Maintenance Plan.
\.JUL'I""'1 Maintenance and
shall be defined as provision of all labor and materials which
are required to repair, restore and/or replace, when
all
components or
or
components
are not limited to all foundations, footings, structural members, piers, columns, walls, roofs,
ramps and steps,
components include but are not limited to, video boards/scoreboards,
ventilating, air conditioning, plumbing, electrical,
water
and
lots
and
components and
include, but are not limited
and curb
parking lot and access road lighting installations, (such as
access road
wires and conduits), and light towers.
of
Maintenance
towers, poles,
include, without limitation, the following:
Replace and/or refurbish and/or overhaul of HVAC, plumbing, electrical, water
(a)
and sewerage,
systems (including, without limitation,
pumps and motors, wet and dry
sprinlder distribution
and sprinlder
(b)
Repair and/or replace cracked and/or disintegrated concrete spalling, broken pipes
floor drains, traps and associated piping and/or leaking roofs and/or ceilings and/or sections
of routine
which may
by
thereof,
they
,t;:..'",~==-,,~~,_c=.;,-=, that
no case will Biloxi Baseball be obligated to
which are important to the structural integrity the
(c)
on
reapply all paint,
coatings, sealers
protective
all
of the Stadium not covered under Section 1
including, without limitation,
any other areas to
the public has access, as
as the recoating and
restrooms
repainting of all pOltions of the roof and exposed
structure as needed but no more

- J6

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frequently than every five (5) years,

applied sealants and coatings (waterproof and
otherwise) to all concrete floors, wall panels and other
as
no more frequently
than every five (5) years, reapplication of slip-resistant materials on all walkways and
needed but no more than
(5) years,
and replacement of pre-formed ),a')1\.C;lo)
on all expansion joints located in the concrete floors or in
walls as
but no
every
(5) years.
City shall not be held to the
(5) year obligations if Biloxi
agrees that such
are not
at such
Repair and replace all walls and
netting, including
padding, interior walls, and other exterior and perimeter chain link and other
of
fence or wall used
advertising
fifth year
(e)
Replacement of carpeting, ceramic or vinyl tile after
Stadium and no more than once every five (5) years, and only if necessary.

outfleld wall,
exclusive of
operation of

Replace, if
both
sections seats and seat standards,
cup holders, and integral components tl"l"1'"",t including all replacement parts, unless
they can be
by
(f)

(g)

Repair, restore and/or replace, when

elevators and integral components
and
including, but not limited to parking lots and access road
and curb
parking lot and access road
installations, (such as
lamps
and
field light towers within
Stadium.
(h)

Repair, restore and/or

when
roll-down
those owned and installed by Biloxi Baseball.
(i)
Maintain, if
any
on
Site by supplementing with
but in any event no
than once a year.

Winterize
U)
Stadium lJUIIUIJ"~o)

Stadium

(k)
Capital maintenance and repair
public address
unless
consist

(1)

(m)

if necessary, to

TW",,,',,nT

freezing

pipes

the

the scoreboard/video board, sound system and

to
failures including
strikes, utility
or
panels, disconnects, transformers, circuit boards, main switches and
control hardware.
performance

required

code

or direction
the Stadium every
(5) years to ensure that the
with all Applicable Laws.

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.15.
The City shall timely perform
CapItal
and Repairs in accordance with all applicable safety and construction
standards and regulations and Applicable
and Biloxi
not be responsible
Such work will
performed by the City through contractors and
performing such
it
the objective
the parties that
subcontractors pursuant to State bidding
such work be completed in an economical and efficient manner, consistent with
nature
quality
the Stadium,
with all applicable federal, state and local laws,
ordinances and regulations. Except as otherwise
provided herein, Biloxi Baseball
shall not
in any way for paying for any items involving Capital Maintenance and
Repairs.

16.
(a)
August 1, 2015,
City shall
the
Maintenance Restricted Fund in
municipal budget. The Capital Maintenance Restricted Fund
be initially funded with a contribution of
Thousand and 00/100 Dollars
1, 2015, and a
($25,000.00) from
Baseball which is to be paid on or before
contribution of Twenty-Five Thousand and 0011 00 DoBars ($25,000.00) from the City, and shall
be
with an
contribution of
0011 00 Dollars
($25,000.00) from Biloxi Baseball payable to
and a similar contribution of Twenty-Five
Thousand and 00/100 Dollars ($25,000.00) from the City on the anniversary date of this
crr"p,.,.,Pnt for
Maintenance and Repairs for the
of the term of this
and any renewal(s)
Capital Maintenance Restricted
shall be maintained as a
""'rI,,,.,.,,tp restricted fund by the City in its municipal budget, and the amounts in the Capital
Maintenance Restricted Fund, including all
on
shall
disbursed,
from
to time solely for the purpose of
Capital
the approval of
Maintenance and Repairs at the Stadium and/or the Site during the Term (except as otherwise
available
in
provided
Capital
Repairs shall be funded
are available.
in the Capital
Capital Maintenance Restricted Fund to the extent such
Maintenance Restricted Fund shall be held and managed by the City. Capital Maintenance and
-''-v,........",'"' in excess of any
accumulated in the Capital
Restricted Fund
City.
responsibility of
Biloxi Baseball will
to the City to expend funds
the Capital
during the Term as necessary including, without limitation, after each periodic structural
in
14(n). Upon
supporting
for such
the City may approve the
so
as it
faith that the
City shall provide Biloxi Baseball an
expenditure(s) is a Capital Maintenance and Repair.
accounting of the previous year's Capital Maintenance
and Restricted Fund balance
by
1st of the
year.
(c)

Biloxi Baseball
immediately contact the City in the event of an
and provide the
with all pertinent information
thereto that it may
reasonably request.
Hl'Yopr"pnr'\J

17.
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(a)
the Stadium is available
Occupancy, Biloxi Baseball shall have the right, from
to time, at its own
to make
alterations and improvements to the Stadium, as shall be reasonably necessary or appropriate
(but which
not
Capital Maintenance and
in Biloxi Baseball's judgment,
business, provided that prior to the commencement
any
for Biloxi Baseball's conduct of
alteration of any improvement, Biloxi
shall
the City with written notice
of its plans
in the event such proposed
or
excess of $20,000,
Rivage shall
have the right to approve such
unreasonably withheld or
Unless such
or improvement, such approval not to
improvements are
and not capable
being removed or would damage
remaining structure or, would cause
to or adversely
the functionality of the
Stadium as a AA Minor
Baseball facility, all such alterations
improvements paid
during and after the
by Biloxi Baseball herein shall
property of Biloxi
expiration or termination this Agreement.
(b)
Biloxi Baseball shall provide the
with written notice
any alterations or
to
Stadium
to meet
professional baseball standards of the League, National Association of Professional Baseball
Clubs or other governing body
the
of this Agreement and applicable to Biloxi
at the same professional baseball classification level as
Club, and the City
shall be obligated to make any such alterations and improvements in such time frame as is
<","",.au,," by the applicable League in order to meet such
at the
provided
such League or other required improvements are implemented uniformly across the League and
not implemented solely against the City and provided
requirement does not constitute an
improvement which would
the responsibility Biloxi Baseball
this
(c)
Biloxi Baseball shall not permit or suffer any mechanics' or materialmen's lien to
against the Stadium
Stadium parking by reason of work, labor,
or
performed or furnished to Biloxi Baseball or anyone holding any part of the Stadium
Site and Stadium parking under
Baseball.
any
shall at any
be filed as
Biloxi
may contest
same in
faith, but, notwithstanding such COlue:3t,
Biloxi Baseball shall, within fifteen (15) days
the filing thereof, cause such lien to be
of record by
bond,
of a court competent jurisdiction, or otherwise in a
manner satisfactory to Beau
City, In the event of Biloxi
failure to
by
release of record any such lien within the aforesaid period the City may remove said
appropriate,
paying
full amount
or
bonding or any other manner the City
Biloxi Baseball may
without investigating the validity
and irrespective of the fact
contest the propriety or
amount thereof, and Biloxi Baseball, upon demand, shall pay the City
amount so paid out by
City
with
of said lien,
with
interest thereon and reasonable expenses incurred in connection therewith, including reasonable
which amounts are due and payable in full to
City as Additional Rent on the
next following month, Nothing
shall be construed as
consent on
part
the
or
in the Stadium
Rivage to subject any of its
and Stadium parking to any lien or liability under the lien laws of the State of Mississippi,
Biloxi Baseball's obligation to observe and perform any of the provisions of this
shall
of this
Beau Rivage shall have the right
survive the earlier termination or
any notice of non-responsibility
to post and maintain on the Stadium
V!vU"'-',",

19

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provided for under

Law. Upon completion of Biloxi Baseball's work,
Baseball shall furnish
City and
lien
from all contractors,
and materialmen who provided work, labor, services,
or
to

remove
and which is not owned
broadcasting equipment.

to
property which is not
to the structure
including without limitation all concession equipment

Baseball or its
payor cause to
paid all ad valorem,
and
property taxes
other applicable taxes due on its personal property and due
on its leasehold interest in the
property, and other improvements on
Stadium Site,
created by this
A
may be obtained by Biloxi
from
County Tax Assessor as to an
based on Biloxi Baseball's leasehold
and in the personal property located in
Stadium.
Biloxi Baseball
secure such
and
to operate the Stadium
as is contemplated by this

20.
as may
Agreement.
21.

Throughout the
insurance and
and

Baseball shall provide

set forth on ~~~~

(b)
initial
insurance and
the expiration
first year
continuing on an annual basis, the City shall
disclose to Beau Rivagc the
amounts
which
may change from
to time.
,",VAA""""

Throughout the
Beau Rivage
the policies of insurance and coverages set forth on ~~~::.2..
protect the
from any claim, damage, liability loss, or
(hereinafter,
by,
from,

",,,-,,,,-,,,,,-,v,

- 20

to

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connection with
or its permittee's use
the
Use Facilities or its duties and obligations pursuant to this Agreement.

or the

Page 32 of 89

Rivage

(d)

Prior to
commencement
any
. . .Hi.'"'''' and the Stadium parking, the
shall
all contractors
Demised
to provide and maintain, at no expense to Beau
the policies of insurance and coverages as set forth on
to
the time which
Improvements are under original construction, the
City shall provide and maintain (or cause
architect and
contractor/subcontractors to
provide and maintain) the policies of insurance
shall protect the architect,
contractor (and its subcontractors),
City, Biloxi Baseball and Beau
any ~~'AH'''-'
caused by, resulting
out or in connection with the design and construction of the
nrr'UPYnPl1t" in commercially reasonable and customary amounts (the "Initial Construction

(a)
to the fullest extent
permitted by law, indemnify Beau
and
and
Indemnified Parties")
directors,
and employees (the "Beau
and Biloxi Baseball and
subsidiaries and affiliates, and
and employees,
from and against any and all
incurred
or indirectly,
in whole or
part, out
(i) the death
any
or
lnJury,
or
wnatsoe'\!er vau:."u to any person or to the property of any person which may occur on or
Demised
and Stadium
and which may be
by any
or (ii)
default by the City in the
acts or omissions
the City or
this Agreement to be
observation or performance of any of the terms, covenants or conditions
or
on the
of the
The
total liability to
Biloxi Baseball and their related Indemnified
for any
caused in part by the fault
City shall not exceed the percentage share that the City's fault bears to the total fault of all
entities and individuals adjudicated to be at fault as determined on
of comparative fault
principles.
~~!ill.!~lli.Q~=:!Q!~!.lli,1mL.Sll....Q!!.Slll,U~;:Qfllh Biloxi Base ball shall indemnify
the Beau
the City and its Mayor, Council members,
and
employees, from and against any and all Losses incurred in connection with or arising directly or
indirectly,
whole or part, out
(i) the death of any
or any injury, accident,
or
whatsoever caused to any person or to the propelty of any person which may occur on or
adjacent to the Demised
and Stadium parking and which may be caused by any
acts or omissions of Biloxi Baseball or its Agents, (ii) Biloxi Baseball's negligence, or
(iii) any default by Biloxi
in the
or performance of any of
terms,
covenants or
of the Stadium Sublease to be observed or performed on the
Biloxi Baseball. Biloxi Baseball's total liability pursuant to this section shall not exceed the
share that Biloxi Baseball's fault bears to the total fault
all entities and individuals
adjudicated to be at
as
on the basis of comparative fault principles.

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indemnify the
its subsidiaries
any and

and
omissions

all
fault

Biloxi Baseball agrees to indemnify, hold harmless

(with counsel
to
City) the
the City's
respective directors,
and contractors from
and against any claims, judgments, liens,
expenses, liabilities or losses
arising during or after
Term which are
to any leak, spill, release,
discharge, emission or disposal
which occurs during the
unless
toxic or hazardous substances are present solely as a
of
or inactions of the City, the
affiliates or any of
respective
agents or contractors or unless such toxic or hazardous substances
were
prior to the
of Beneficial Occupancy.

(a)
as otherwise speCI!lcall
violate, or fail to fully perform any
breaching party shall have
right to

herein, when any party hereto shall breach,

term or proVisiOn
contained,
nonavailable at law or in

(b) The
shall contain a
that, in
event of
termination
said Ground Lease/Parking Garage Sublease for any reason other than either: i)
expiration of its original
renewal periods, ii) or the failure of Biloxi Baseball to both own
Club and to conduct
Club Home
Stadium as
herein,
Rivage
permit
Baseball to
to utilize the Stadium
terms of this Stadium Sublease as a Lessee.
all
essence.
Baseball's use
Stadium
this
as Biloxi
is not
covenants that Biloxi Baseball
entitled to the
enjoyment
respect to
the use and occupancy
the Stadium
and the privileges herein granted without interruption
or
by any person claiming by,
or under the City. Specifically, the
shall
of all
defend Biloxi
quiet use and
against
certain rights to use
persons
except to
Stadium Site, or any portion of may be reserved in accordance with this AI2;re'~ln;ent
to the provisions of Section 5(f), there shall be no use
personal property owned or controlled
Baseball without Biloxi Baseball's prior written consent,
consent shall not be
unreasonably withheld.
- 22

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(a)
significant portion of
Stadium is damaged or destroyed
other casualty, the
or Biloxi
shall
the option
terminating the
and shall
the other written notice
such intent within
(90) days
such
destruction.

or

portion
the Stadium is damaged or
(b)
Alternatively, if alJ or any
destroyed by
or other casualty,
City may choose to
and rebuild the
to
immediately before
loss or the condition required
with such
rebuilding to be
as soon as is
glvmg
or other casualty occurs, and in any event not
Baseball Season after such
in Biloxi Baseball's good
hundred fifty (350) days
fire or other casualty occurs.
faith judgment there is substantial
with the operation of
or use of
Stadium requiring Biloxi Baseball to temporarily use other stadium
shall
of all
due hereunder from Biloxi Baseball to the City for the period
between
parties that during the
understood by
Biloxi Baseball
the right to schedule
events at another stadium and Biloxi
obligations pursuant to this
abated during such interruption.
in Biloxi Baseball's good faith judgment, the Stadium is not,
cannot, or will not be
to
condition
or the
rPITIl1'r"'ti by law, whichever is
within
(350) days
the
or
by giving the City thirty
other casualty occurs, Biloxi Baseball may terminate this
(30)
written
the
of the
of the
to

of
of eminent
or by conveyance

in
to
either case, a "Taking"), all or any portion
the ueml:sea

election of the City (or at the election of Biloxi

Premises is taken, this Agreement shall, at

if aU 01' substantially all
the
Premises are
terminated on
(i)
of
to
in
condemning authority, or (ii)
taking
possession of
Demised Premises by
condemning authority (in either case the
of Taking"). Biloxi
and
City
divide
net
on any
the award, including
Taking the
the total award
costs of
attorneys' and appraisers'
any outstanding bonds issued by the City
the
divided based on their
construction of the Stadium, and then any remaining amount shall
interests
the
and the
located
or by any court
determined by
any party who holds a valid lien
however, that
not
and (ii)
City
the Demised Premises for
permitted uses under this
(a)

If the
v""",,...,.... Premises.

has not

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..::.=:=.....:=~--"'-:~=:!.!. In cOlmection with any

subject to this Section 19, the
own claim by
proceedings against the
authority
may "''''''''''''r>'l1t"
which the City was entitled to
additional damages legally due to it (such as the loss of
remove and relocation expenses).

(d)

connection with any Taking subject to this ..,,,-,,,llU'H

own claim by
proceedings against the condemning
authority
additional damages legally due to it (such as the loss of fixtures which Biloxi
Baseball was
to remove
relocation expenses).

19, Biloxi Baseball may prosecute

29.
A memorandum of this Agreement and
Baseball's interest
the Stadium Site shall be recorded in the
estate
Harrison County, Mississippi, by
City.

30.

this Agreement, the City may, subject to

Baseball, name
the name
"Biloxi" All uniforms and
approval of
all uniforms, programs, scorecards, novelty items, adveltising, tickets, and similar
will so
state, provided that the Club
the City may not include
name or trademark of any
Rivage. Biloxi Baseball shall have the
to obtain such copyright,
trademark, and service mark protection
the name so chosen and all derivations thereof for
own account, all
which shall thereupon be
exclusive property of Biloxi Baseball. All costs
and
related to a name
including, but not limited to
by name
can remove "Biloxi"
be borne
Biloxi
however, 110 name
the name.

31.

and all notices required or

to be
be
deemed given when actually received, if delivered personally, or upon receipt, if deposited with
first
prepaid,
or registered mail, return
",o"l1,oC,t"ri and addressed as follows:

(a)

If to Biloxi Baseball: Mr.

Young

18228 U. S.
FL 33549

41 North

Mr. Tim
O.
173
Biloxi, MS 39533-0173

With a

to:

Robert F. Wood, Esq.

Purdie & Metz, PLLC
402
(39157)

P.
(b)

If to the City:

Mayor, City of Biloxi

P,O. Box 429

- 24

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Biloxi MS
With a copy to:

(c)

Ronald G. Peresich,
Page, Matmino, Peresich McDermott,
Vieux Marche' Mall (39530)
P. O. Drawer 289
Biloxi, MS 39533-0289

to Beau Rivage:
Inc., dlbla

Resort and Casino

Beach Boulevard

Biloxi, MS 39530

Attn:

Telephone: (228)

With a copy to:

Attn: In House Counsel

MGM
International
3950
Vegas Blvd., South
Las Vegas, Nevada 89119
Attn: Corporate Legal

32.
(a)
as hereinafter provided,
Baseball may not
conveyor
this Agreement (whether via majority stock sale, sale of all or substantial all assets, merger, by
operation
law or otherwise) without
consent
City, which shall not
withheld or delayed. Notwithstanding
foregoing,
interest in
this Agreement may
assigned, conveyed, or
without the consent of the City only if
(i) the Club andlor Biloxi Baseball is sold or ownership is transferred, and such
conveyance
or
is approved by the
and (ii) a third
that is awarded the
franchise of the Club or of
majority interest therein obligates itself
writing to this
in exactly
same maimer as Biloxi Baseball is obligated by
in
which case such purchaser shall have all
the
and obligations of Biloxi Baseball

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hereunder (including, without limitation,

obligation to maintain a Club at the Stadium for
of
Agreement) and
Baseball
have no further obligations or liability
actions
provided Biloxi Baseball is not
default under any terms of this
at
conveyance or transfer of
this Agreement
(b)
as hereinafter
City may not assign,
or
Agreement (except as collateral security) without the
consent
Biloxi Baseball,
shall not unreasonably withheld or delayed.
(c)
Agreement shall not
under

this

anything to the
set
Section 30, this
assigned, conveyed or transferred to any gaming competitor of Beau

(d)
the Southern League, Minor League Baseball, and Major
Baseball all
approve assignment this Agreement, the
must approve the assignment to another another
u~'u'u .... group, subject to the same terms and conditions of this Agreement.

(a)
As a condition to
of
sublease, Beau Rivage shall receive
information reasonably
to complete a background check on the subtenant or HV''''''''JV
and, based on that
in
reasonable
that such
or
lce.n::;t;e will not cause
or
affiliates to be violation of any
laws or to be
subject to addition scrutiny, restrictions, conditions, reporting or other similar obligation imposed
by the
laws.
(b)
sublease shall provide that
subtenant may not
enter
any sub-sublease without Beau Rivage
receiving all information
necessary to complete a background
on the
or subtenant, and,
has determined in
that
or
will not cause Beau
or its
in violation of any gaming laws to be subject to
additional scrutiny, restrictions, conditions, reporting or
similar obligation imposed by the
gaming
(c)
Each sublease shall contain an agreement
the subtenant to
with all the
terms and conditions
this Agreement (to the extent applicable).
include
language
the same
Beau Rivage
term in such sublease): "Subtenant acknowledges
are businesses that are or may
to and exist because of
If
Subtenant
employees and subcontractors shall obtain
qualification,
or the
which
shall be
or req uired by
of them by Beau
or
regulator authority having
If Subtenant or Subtenant's
jurisdiction over Beau Rivage or Beau
employees, or subcontractors fails to satisfy such
or if Beau Rivage or Beau
Rivage's
is directed to cease business with Subtenant or Subtenant's agents, employees
shall in good
or subcontractors by any such authority, or if

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Rivage's
and absolute judgment, that Subtenant, or any
Subtenant's agent's
engaged in any
subcontractors or
(a) is or
be engaged in, or is about to
activity or activities, or (b) was or is involved in any relationship, either of which could or does
jeopardize
Rivage's business or such licenses or those
a
company,
or
to
or is, denied, curtailed, suspended or revoked,
affiliate, or if any such license is
sublease may
immediately tenninated by
Rivage or Biloxi
without
liability
Beau
or Sub-Landlord to Subtenant
addition, Subtenant hereby
a
applicant or
or a business
acknowledges that it is illegal
organization under the control of a denied license applicant or a revoked
to enter into,
or attempt to enter into a contract, as permitted by Beau Rivage without the prior approval of the
Subtenant hereby
and warrants to Beau
that
organization under
Subtenant is in not a denied license applicant, a revoke licensee or a
or a revoked
and Subtenant hereby
that
the control of a denied
this
is subject to immediate termination by Beau
or Sub-Landlord without
fUlther liability from Beau Rivage or Sub-Landlord to Subtenant if Subtenant should become a
denied
applicant, a
licensee, or a business organization under the control of a
denied llClem;e

34.
(a)
Biloxi Baseball shall not, without the prior written consent of Beau Rivage
and the City, cause or permit, knowingly or unknowingly, any Hazardous Material (as defined
upon, kept, used,
leaked, or
in or about, or
below) to be brought or
treated at the Stadium Site and Stadium parking, except for supplies and cleaning solution in
nominal quantities typically used in the
course of Biloxi
similar businesses or activities expressly permitted to be undeliaken at the
Staditun Site and Stadium parking by the City and Beau Rivage provided that Biloxi LJC>""'V'
storage of such products complies with all Applicable Laws, As
Agreement,

shall mean any

toxic or radioactive
matter

or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule,

"'I'" .Uu.uv.U, code or any other governmental restriction or requirement, and shall include
petroleum products
the terms
Waste" as defined in
the Comprehensive
Compensation and Liability Act as amended
Section 9601 et
and
Resource
Liability Act, as
amended 42 U.S.c. Section 9601 et
("RCRA"). To obtain
and
City'S
consent, Biloxi Baseball shall prepare an "Environmental Audit
Beau
review. Such
Material and a Material
Environmental Audit shall contain: 0) the name(s) of each
Safety Data Sheet ("MSDS") as
by the Occupational
and Health Act; (ii)
volume proposed to
used, stored and/or treated at the Stadium Site and Stadium parking
(monthly); (iii) the purpose of such Hazardous Material; (iv) the proposed on-premises disposal
entity; and (the
of
disposal
(vi) an emergency
preparedness plan in the event of a release. Additionally,
Environmental Audit shall include
and local permits concerning or related to the proposed use,
copies of all required federal,
or treatment of any Hazardous Material at the Stadium Site and Stadium
Biloxi
Baseball
a new Environmental Audit whenever it proposes to use, store, or treat a
new
Material at the Stadium
Stadium parking or when the

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Hazardous Materials to be
or
at the Stadium
and
expands by more
ten percent (l0%) during
thirty (30) period. If Beau
judgment finds the Environmental Audit
then the City and
to Biloxi Baseball, their
written consents. Notwithstanding
the
or
may
consent if (i) Biloxi
to
and/or an other requirements
in full compliance with applicable environmental
or any other
any federal, state, or local law, ordinance, order, rule, regulation,
not
to CERCLA
RCRA)
or impact Biloxi
which in any way
Hazardous Materials. In addition,
treatment or disposal of
warrants to
City and Beau Rivage that (i)
Baseball
compliance with any and all federal, state or local permits in
Biloxi
to any and
applicable
any
reportable of any Hazardous Materials as required
any and all federal, state or local laws,
ordinances, orders,
regulations,
or any other
restrictions;
Biloxi
receipt,
to the
Beau
a
of
Baseball, within five (5) days
order, inspection, repOlt, or other document issued by an governmental authority relevant
to Biloxi Baseball's compliance status with
or health
safety laws;
(Iv)
Biloxi
remove
the Stadium
and Stadium
all
Materials at the termination of this Agreement.
Cityandlor
its obligations under this section,
(b)
the same,
all
reasonably
to
may immediately
any contamination
from
action to clean up or
lWvlUU1l1)<; taking
use, generation, storage, or disposal of Hazardous
the
Beau
indemnify,
hold
agents from
all claims,
liabilities, causes
U'-'I"Ul""H0, damages and
(including reasonable attorneys' fees and cost of clean up
remediation) arising from Biloxi Baseball's failure to comply with the provisions
this section.
indemnity
shall
the earlier
or
of this
Agreement
inure to the benefit
and
their respective successors and permitted assigns.

36.
independent contractors
of the

37.

fully

as
representative or servant

No failure

upon exact

with

be declared invalid or

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39.
shall
construed
enforced in
of Mississippi.
parties hereby
to
jurisdiction
and state courts of the Second Judicial District of
County,
Mississippi for the purposes
all legal proceedings arising out of or relating to this Agreement
and
parties irrevocably
to
extent
by law, any objection which
they may now or hereafter have to
any such proceeding which is brought in such a
court.

40.

No
its obligations hereunder if such performance
war,
hostilities, revolution, civil
epidemic,
wind, flood,
including, but not limited
hurricanes
tropical storms, or because
any
order,
proclamation,
or ordinances of any government or
any subdivision thereof, or
u"'~,au;'''' of acts of
or for any
cause beyond the reasonable control of the
inform
affected. Upon the occurrence a force
party without
and shall provide a written statement to
other party with
to such
event within thiI1y (30) business days from its occurrence. Such
statement shall include a
precise description of
force majeure event and the reasons for the
to
pertonm the obligations
thereby.
the
does not
and/or
not provided the
statement
its obligations during the
provided it shall
liable for the non-performance
the force majeure event and all consequences caused by
resulting therefrom but only to the
extent such
to inform was
to the rights
party. Notwithstanding the
(a) normal
postponement or cancellation
to normal weather
conditions, (b) internal strike motivated by,
way example,
or dissatisfaction
with general working
or any
factor(s) within
reasonable
of the
(i.e., resolvable
management decision) nor (c) the legislative acts
Biloxi shall
constitute aforce majeure event.
simultaneousl y
all of which shall constitute on and
same instrument.

and
or remedies
Agreement without the prior
Rivage.

This Agreement confers

and benefits upon Beau
Beau Rivage
Overtime, has any
may not
or
consent, which may not
unreasonably

or understandings
subject matter

subject matter
parties
whether oral or written,
embodied herein or incorporated herein

by reference.
44.
has

Baseball
and warrants
League, National Association of Professional

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Major League Baseball and in all

This
shall in
rules
of the
National Association of Professional Baseball
Major
Baseball and Biloxi Baseball
that no further approval is necessary from
Minor or Major
or National Association of Professional Baseball
Upon
a palty, Biloxi
shall provide guidance with
to such rules and
regulations and no party shall be deemed in
Agreement based on such rules and
a party was not previously made aware.
45.
To
extent that
consent or cooperation of the
City is called for in any section of this Agreement, the City's action shall be in its capacity as
entity,
i) shall neither
a waiver
any
Sub Lessor and not as a
party's obligation to comply with Applicable Law; Ii) nor shall it be considered a granting of any
considered a
waiver from any such law or
by any party; iii) nor shall it
of the City'S governmental obligation to apply and
all laws and regulations with
regard to any party's action; and, iv) nor shall it
considered a waiver of the City's duty to act
the
of the public in the
of its statutorily
discretionary authority

46.
(a)

the following

The

rp1'1,rpc'pn'r<>tl

(i)
City is a municipal corporation of the
Mississippi duly organized and validly existing under the laws of the State of Mississippi
and has the requisite
and authority to enter
and perform
obligation under
this "lo'.1\.>\,111'1.<1U
(ii)
has
duly
by all
necessary govcrnmental action on the part of the City and
not require notice to or
the consent or approval of any trustee or holder of any indebtedness or any other person,
such as
or on or
the
will
been, duly
given or obtained.

(iii)
upon
will
constitute a legal, valid
binding obligation
it in
accordance with its terms, ='-"== as such enforceability may be limited by bankruptcy,
rights
insolvency or
similar laws
the enforcement if
and by general principles of equity.
(iv)

Neither the execution, delivery or performance

this
by the
nor the consummation by the City
the transactions
contemplated hereby, nor compliance by
City with the provisions
or
will conflict
nor results
or will result in the
of any
of, the
organizational documents of the City, any applicable law binding on the City or any,

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contract, lease or other instrument to which the City is a party or by which it or any of its
property is bound.
(v)
Litigation. There is no action, suit, investigation or proceeding pending
or, to its lmowledge, threatened against the City before any court, arbitrator or
administrative or governmental body and which, if decided adversely to the City'S
interest, would have an adverse effect upon the ability of the City to perform its
obligations under this Agreement.
(b)

Representations and Warranties of Biloxi Baseball.

Biloxi Baseball hereby makes the following representations and warranties:
(i)
Organization. Biloxi Baseball is
organized and validly existing under the laws of
requisite power and authority to enter into and
Agreement and is qualified to perform its duties
business in the State of Mississippi.

a limited liability company duly

the State of Virginia and has the
perform its obligation under this
hereunder and is authorized to do

(ii)
Authorization/Consents. This Agreement has been duly authorized by all
necessary action on the part of Biloxi Baseball and does not require notice to or the
consent or approval of any trustee or holder of any indebtedness or any other person,
except such as have been, or on or before the Effective Date will have been duly given or
obtained.
(iii)
Execution. This Agreement, upon the execution and delivery hereof, will
constitute a legal, valid and binding obligation of Biloxi Baseball, enforceable against it
in accordance with its terms, except as such enforceability may be limited by banlauptcy,
insolvency or other similar laws affecting the enforcement if creditors' rights generally
and by general principles of equity.
(iv)
No Violation. Neither the execution, delivery or performance of this
Agreement by Biloxi Baseball, nor the consummation by Biloxi Baseball of the
transactions contemplated hereby, nor compliance by Biloxi Baseball with the provisions
hereof conflicts or will conflict with, nor results in or will result in the breach of any
provisions of, the operating/organizational documents of Biloxi Baseball, any Applicable
Law binding on Biloxi Baseball or any indenture, mortgage, contract, lease or other
instrument to which Biloxi Baseball is a party or by which it or any of its property is
bound. Biloxi Baseball holds and shall maintain all licenses, permits and other
certifications necessary to perform its duties hereunder.
(v)
Litigation. There is no action, suit, investigation or proceeding pending
or, to its knowledge, threatened against Biloxi Baseball before any court, arbitrator or
administrative or governmental body and which, if decided adversely to Biloxi Baseball's
interest, would have an adverse effect upon the ability of Biloxi Baseball to perform its
obligations under this Agreement.

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(vi)
termination of this Agreement sufficient facilities,
resources to perform its duties hereunder.

aV",a"'-,

Page 43 of 89

shall have maintained until

and other

(vii) Neither
nor any
with
on the OFAC List or
Biloxi Baseball has
a contract is (A)
or (B) is in violation of any legal
otherwise qualifies as a
...,>U',lU15 to anti-money laundering or anti-ten'orism,
those
to
with "Prohibited Persons" or the requirements
the Uniting and
by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act
2001, U.S.
107-56,
the
issued
including
regulations, all as amemlea
"OFAC List" is
Specially Designated Nationals list published by
Control.
Department Office of Foreign
Biloxi
will fully
the City and provide
and all
information
documentation necessary and/or required by the State
Quality,
(Mississippi Department of
necessary to
Department of Transportation, or any other applicable
and represents that
the
and sales tax rebates.
Baseball also
will provide ongoing information and disclosures as
be required by
grant/rebate programs
quarterly or annual
and
"...r",,',',", under this Agree:mell1t

of the

and nationalization laws, including but not

to
Immigration Reform
Control
1986,
Illegal Immigration Reform and
Mississippi Employment Protection Act,
Immigration Responsibility Act of 1996 and
Miss.
Ann.
71-11-1, et seq.

1.)ll'naru're

Pages 10

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IN WITNESS
has been
by duly
officers
of Biloxi Baseball, and the City> each of whom hereby represents and warrants that he has the
full power and authority to execute this Agreement in s1.\ch capacity, all as of the day and year
first above written.
Sworn to and subscribed before me this
/8yh of r.thrva r ,2014.

BILOXI BASEBALL, LLC

ATTEST:

j;)~ Y1J~M~t.)

My Commission Expires: J3J~ 7/It)

" '~~':.
__________~____~:
l;
(NOTARIAL SEAL)
"";',*.':1'/
(407

3ge.o16~

ELSA F. KNOUSe
MY COMMISSION"# EEOT8202
EXPIRES March 27,2015
I'lorl<:iaNolltryServlce.eom

[Sjgnaturu~ Numg~tlw Stadium Le",e and Use Agreement made and entEl~ Into
as of the
IV day of
014]

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IN WITNESS WHEREOF, this Agreement has been executed by duly

Biloxi
the
whom
and warrants that he has the full
orpp'Ylpnf in such capacity, all as of the day
year

subscribed before me this

--L~~_ _ ' 2014

CITY OF BILOXI, MISSISSIPPI

Commission
(NOTARIAL
and Use Agreement made and entered into

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subscribed before me this /1 day BEAU RIV AGE

~~~~_,2014.

[-Ifje

Num1lef 3( of 3 to the Stadium Lease and Use Agreement made

[Signatur,
as
1"tlayof~,2014J

PYUP,.,,'"

into

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Munagement Biloxi, LLC is not u

to
but
the execution hereof to acknowledge and confirm
herein and to acknowle<lge and contII'm terms and conditions and
obligations set forth herein.

ATTEST:

1:Slgnature page NlU11ber 4 of 4 to thl;l ~tadlum Lease an~ l!fi.9 rgrecmcnt made and
as
of
the
day
of 1WJ.J1j-'

11:<

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[EXHIBIT
is The Official Professional Baseball Rules Book, published by the
following
cover page of EXHIBIT
Commissioner of Baseball. The
omitted
" to the Complaint.]

the
are

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Page 49 of 89

THE OFFICIAL

PROFESSIONAL BASEBALL

RULES BOOK

MAJOR LEAGUE BASEBAlC

Office of the Commissioner of Baseball

245 Park Avenue

New York, New York 10167

Copyright 1988,1995,1996,1998,1999,2001,2003,2005,2008,2009,
2010,201 1,2012,2013 The Commissioner of Baseball

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STADIUM SITE DESCRIPTION

DEMISED
A
of land located
City of Biloxi,
County, and described more particularly as follows:

Second Judicial

of Harrison

bounded on the West by

That parcel consisting of approximately 6.382 acres, and
the Interstate 1-110
of way, bounded on the South by
1.587 acre parcel identified
on the
rendering as
"Garage", bounded on the
by the 1.412 acre parcel
identified on the attached rendering as the
, and botmded on the North by the
3
acre parcel identified on the attached rendering as the "Development Parcel".
[It is the
of
that this legal description shall be modified and replaced by the
ground survey of this site when construction plans are finalized].

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ADDITIONAL

EVENTS

$0 - $30
$31 - $45
$46 $75
$76-$100

$1
$2
$3
$4
$5

$101 or more

*AA Baseball

Surcharge not to exc:eeu $500, OOO/Annually

Page 52 of 89

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BILOXI

LJur.LJJ..J

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Page 53 of 89

STADIUM FF&E

MISCELLANEOUS STADIUM FF&E ITEMS ,~ ..~~" BASEBALL RESPONSIBILITY)

Furniture: Including but not limited to
'i< Desks
'" Chairs
'"
coffee, phone,
* Lamps, removable
* Task
removable

" Pictures

* Alt work
* Wall mounted memorabilia

medical etc.

Exterior Furniture/equipment

* Chairs (non-seating bowl)

* Trash Receptacles
>I< Tables (picnic/restaurant)

" Umbrellas

'" Compactors Trash, Cardboard, other

*
units standard, high density, etc.

'" Whirlpools, spas, etc.

* Treatment Tables

,. Medical equipment

'" Gym and weightlifting equipment

mounted or other wise

* Video equipment, cameras, spot

tri-pods etc.
Phone & data systems (relative to Biloxi Baseball operations)
* Washers &

'" Fork Lift

" Lift trucks

* Turf Care, mowers, aerators fertilizers, etc.

'" Walkie Talkie Truck & Support ",,,,t",,n<

'" Automated ticketing ,'v'''''''''''

* Turnstiles or the equivalent, ifutilized

>I<
equipment, gurneys, gas and electric blowers, pressure
'" Work carts,
flatbed type
>I<

Kitchen Concession Equipment

* All kitchen &
Equipment including Stoves,
* Refrigerators portable and hard mounted, walk in coolers

'" Ice machines

and hard mounted

'" POItable & Secure Mounted Kiosk

carts etc

grills, microwave etc.

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SITE DESCRIPTION
of land
in
City of
Mississippi,
A
County, and described more particularly as follows:
parcel being bounded on
North by
Street, bounded on the South by U. S.
bounded on the West by
Interstate 1-110 right
or

[It is the intent

that
legal
ground survey of this

~e(30nla

Judicial District of Harrison

Avenue,
on
by
90 (Beach Boulevard),
way, containing 13.334 acres, more

shall

AUVUU.A"'U

and

by the

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PARKlNG

'J.rH'\JHJ

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Page 55 of 89

DESCRIPTION

A parcel of land located in the City of Biloxi,

County, and described more particularly as follows:

District

Harrison

southwest corner of the

in
to this
of approximately 1
acres, and being bounded on the West by
of way, bounded on the South by U. S. Highway 90 (Beach
identified on the attached
bounded on the
by the 1.412 acre
rendering as
"Plaza", and bounded on the North by
6.382 acre parcel identified on
attached rendering as
That

intent of the parties that this legal description shall be modified and
of this
when construction plans are finalized].
ground

[It is

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r
L

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DEVELOPMENT
"NORTH

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DESCRIPTION

PREMISES" DESCRIPTION

A parcel
land located
the City of Biloxi, Mississippi,
County, and described more particularly as

Judicial

of Harrison

of approximately
acres, and
West by
parcel
the Interstate 1-110 right of way, bounded on the South by the
acre parcel identified
on the
as
"Stadium", bounded on the
by
1 A 12 acre
identified on the attached rendering as
by Caillavet Street, and bounded
on the North by
Avenue.
[It is the intent of the parties that this legal description shall be modified and
of
site when
plans are

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r
I

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LANDLORDIBEAU

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INSURANCE

Commercial
Liability
Insurance

Automobile
Liability
Insurance

Employers'
Liability
Insurance
Umbrella
and/or
Liability
Insurance

1.1.... "''''"

Pollution
'Legal
Insurance
( claims-made
form)

include
liability, liquor liability and
US $1,000,000
legal liability. The policy
limits of at
occurrence and
$2,000,000 per location aggregate for
damage
bodily injury.
US $1,000,000 combined
limit coverage
accident This policy shall
to bodily injury or
include
loss
property
out of
any motor vehicle whether owned, nn,n_nurn

$1,000,000

accident and each

for disease.

US $50,000,000

US $5,000,000 each occurrence / aggregate.

policy shall provide IY"'P"'"YP
for third-party bodily injury,
damage, """,<u,\'.~ costs and
that may
connection with Landlord's
connection with this
U"'J',",U.>,,,,

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Coverage. Without limiting the

below), upon
Ground
to

change
damage or
to any property
subcontractor(s), or anyone employed,
insurance coverage shall
by an
A-: VIII.
Best
rating of at
UU'Jl""""", the City intends to provide the following minimum coverage:

1.
$1,000,000 per occurrence
$2,000,000 Aggregate

2.
5,000,000 for

Stadium

3.
Fences

$50,000

Electronic

$900,000

Lights
Baseball

$500,000

Page 60 of 89

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4.

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Flood - NFIP

$500,000

B.
Additional Insured.
required commercial
liability, automobile liability
and umbrella or excess liability policies
name the Landlord
their
Affiliates
their respective directors,
and employees as additional insureds and
include contractual liability coverage for the
contained in the
The
additional insured status shall apply to the full limits
liability purchased by the
limits
liability are in excess of those
by the
"Affiliates" shall mean
parent, subsidiaries, partnerships, joint ventures and other affiliates. The
apply separately to
insured against whom a claim is made or a suit is
to
limits of the insurer's liability.
policies shall not exclude claims made against
the insured by an additional
C.
Certificates of Insurance. Upon execution
the
and no later than thirty (30)
days prior to the expiration of each insurance policy, the City shall furnish Landlord with
of
required insurance
certificate will include a provision requiring the insurance carrier to provide directly to the
MGM Resol1s International Risk
Department, at 3260 Industrial Rd.,
NV 89109-1132, and to Landlord at
address shown in
notices
if any, thirty (30) days advance written notice
any termination, cancellation, or
other material change to the policies shown on the certificate takes
regardless of whether
of
such action was initiated
City,
or the
For
doubt, a
in the policy
mean a change that would
III
compliance with a material provision
insurance requirements.

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Insurance

and Construction

Initial Construction Insurance Requirements

intends to provide the following coverage during design and construction of the
Improvements, to include coverage for all
structures. This will include, but is not limited
to the
the stadium bowl,
boxes,
score boards,
fixture and
owned by the City.
City and its
limit of coverage and
limits of $25,000,000
with
construction.
the exceptIOn
flood
maximum
work and will not be
construction stage.

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Exmsn "U"
STADIUM USE i}GREEMENT
Tms STADIUM USE AGREEMENT (this "Use Agreement") Is made and entered
'..~-:-:::,..-_by and among
corporation C'____");
_-:::,.---' a Mississippi limited liability
WITNESSETH:

WHEREAS, the --:-_-;-'

fully set forth their full
which the, Stadium will be used by' ____; and
WHEREAS, the parties hereto desire that this Usc Agreement and the Lease shall sel
forth their full and complete understanding with
to
matter herein contained and
supercede the LOI, which shall be of no further
and
NOW, THEREFORE, FOR AND IN CONSIDERATION orlhe premises, the mulual
promises and covenants herein oontllined, and other good and valuable considerntion, the receipt,
suffiolency lIud adequacy of which are expressly acknowledged, the
the City,
,:",:,:_ _ _ Illid
, each Intending to b~ legally bound, do
agree as
CapUllllzed !erms not otherwise defined herein shaH have the
terms in the Lease, unless theaontext Indicates otherwise.
2,
Th,tm, The term afthls Use Agreemenl shall commence as ofilie date hereofaud
sholl terminate upon the earlier 10 occur of! (n) tbe expiration/lennlnalioll oftne Lease or (b) tI1e
termination hereof in accordance with the romls and conditions
below (the "Tern)");
provided, bowever, that any provision capable of surviving
the expiration or
lormlnai!OI1 ofthis Use Agreement
3.

~,

(a)
During the Term, the _----,._ _ horeb)' agree to make Ihe Stadium
andlor the
available to
to conduct 4hc
Events al times not
confliotlng wilh Club Home
subject to thc
written
of the
shall
the right approve, III
absolute
sake of
clarity, Ule
may prohibit
promotiilg,.llolding an event thaI the
and absolute
to be offensive, thllt the --:--:-_ _
to injure its reputation, or
---c--::-' in Us sole Ilnd obsolule
believe will be
wId/or wJlI calIse damage
andlor the She (e,g"
limit, motorcycle
or beavy melal rock COllcerts),

I,

Oames, and
in the evellt of any
adhere 10 the tern,s nnd
_ _ _ _ rlgh!ll!n the previous "~"I.Jl(,e, d,e

Case: 24CH2:16-cv-00925-CB

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have first priority with respect to sehedllling of

at the Stadium.
_ _ _ _ 1lJlO
= __.,....fOf
.of

(d) ~riM~~.

_-:-----' _ _-::-;-_.,.-_,,,,<,,,,,.,0, shall provide quallfioo

security,
heath, safety and welfare at all _ _ _,

_ _ _ _ to protect the public

""UllUJll!.!J"J.j,~t'.!I>~.!Ll..""': ~_",_ _ 's use orlhe Stadium and/or the Site shall
only
the Site, the playing sutfllce and the
media
are!lS anne Stadium and/or the Site (e.g., box office, concession
areas, _ _ _ _ offices, etc.) unless agreed 10 in writing by the
_.

shall have the right to approve all

~~;~eiiOOnts:-ii!llttia;'-;minimum, shall obligate the contracting

party
!l.Y!w..siI!~:l!lJW!!Ql!lWQ,

The
shall have the right to approve any
with the
Bven!ll, which approval rna>' be
_ _ _ _ sol~ and absolure
way of Iilualnltion and not
the display ofsignage of any compel1\or to any of the
tho sponsorship of an _ _ _ _ Event by ony
,

(i)
and retain to itself the privilege of using such
paris of tile
whloh shaH be conoluslve, are necessary or uesirable
for or to the operation all
In the StadlumlSlte including, without limitation, tbe
concessions of checking c\olhirtg ana other personal property, and the salo of
food,
tobacco
and souvenirs, which concessioos are .reserved and relained
the
_ _ _ _ for
of itself or its
licensees or designees. No concessions of
any nature shall be .operated
or near the Stadium/Site without the express
written consent and approval

4,

---;c---

shall retaiu nil revenues from the _ _. _

the concessions

for _ _ __
reveOlles
~.

Subject 10 111e terms and conditions set forth herein, the City
the exclusive
10 utilize !he Parking Arens for
how;wer, that,
accordance with Se(1tion S(c) of the
retain all plIrlcing revenues collected dieref'rom.

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($ ) per
shaH remit such

-:-~---:-_

Event.

to

to

6,

RESERVED

Throughout the Tonn of lIiis Agreement, Inoluding any extensions

provIde and maintain, at its own expense, polioies of insumnoe sel
sllall protect the
the City, and
respectively,
from any claims caused
from,
of or in
's use
of the Stadium or the
without
the Parking
respective
dulies and obiJgallons of
pursuant 10 this Agreement:
0)
Commercial General Liabillty Insurnnce with IIm!ts not less than $1,000,000
each occurrence and in S3 ,000,000 in the
Such il1S01'llllce shal! Include coverage for
contractual liability, produotscompleted
liability, personal and adVertising l'\iury
liability, premises damage legalliabllity, liquol'l!ability (as applicable), pyrotechnics liability, if
applicable, personal and advertising injury, property damage and bodily lnjury liability (including
death),

Workers' Compensation insurnnce with statutory limits as required by the Slate

of Ml!,slssiPI>!, covering all
Such Insurance policy snall also Include
EmpJo)'ers
coverage with limits not
tban $1,000,000 ""cn accident, $1,000,000
disease-each employee and $1,000,000 disease-p"licy limit.
(Hi)
Autom!}blle Liability insuronce covering llahi1tty
out of the use,
operation, andlor mamtenance of any auto (including nOll-owned, leased,
or borrowed) by
::--c----,:--' wljh limits not less than $J ,000,000 combined single Hmit each accident for bodily
property damage.

(1'1')
Umbrella andlor Excess Liability illsurnnce with limits of not less than $10
million for each occurrence and shall apply ill excess of the Commercial General LiabiUty,
Autoll1oblle Liability, &!d Employer's Llabllity policies.
and non-contributory I written by insurance

written notice
is
shall bear nll costs of all
runounl of any Claim nol corrlperlsatt~d
the ._ _,--;--'

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construed as ill any ffilU1ller waiving, restricting, or

the liability of the _ _ _ _ with
respect to obligations imposed under the provisions ofwis AgreeJnerll.

IIgrees to indemnifY, defend

and subsidiaries and each
officers, directors,

.(
(

the City, and

its parent companies, affiliates

their respective
shareholders, agenls l!Ild employees), from and
all actio liS, suits,
pro!cefldirlgs, J~"""W"~' settlements, demands, claims, damages,
losses or
10, lost profits, reasonable attorneys fees,
costs of
counsel and court costs (collectively, "Claims"), whether fIxed
actual or
threatened, knowlI or unknowll, false or fraudulent, caused by,
out of or in
ooll.nectlon wlib (0)
.'s occupancy ood use of the
or
such areas
hereunder, ineludillg bul not lirQiled to tho enlTllnces, lobbies and exjts lliereof, the side,walks,
streets nod appronohes alljoining the Stadlum/Slle, or any other portion ,of the Stadium/Silll in
oollnectlon wilh /he
Events; (b) any personal iqjury, bodily injury, death
suffel'ed !llconncction v.1th the
Bvents (including, but not
to,
or damages suffered by
, perfooning artist!J and guests attending the
,..-_ _--,- Events); (c) Bny defect in or other problem with any food and beverage COllc"s~ion
items, products/merchandise, tents, signs, fences, generators, lighting equipment, temporary
seatlnglbleachers, or other equipment and staging provided by
In connection with
the
Bvents; (d) allY negligent or grossly negligent action, Inaction, omission or
intenlional mlsconduct of
; (e) any fullure to provide adequate security for the
_ _-;--;;- Events, including any actual or alleged failure to wam, guard and protect persons or
property from blltm or d~mage; (f) nay failure to provide adequate first aid and emergency
medica! services for the
Events, Including olaims for bodily injury, deRth or
malpractice related to medical equipment, snpplies, medications, treatments, medical !lJld denial
screenings or other tesling u.lUized ami/or administered by
; (g) ally conduci or
activities of
which violates any applicable intemallona!, country, U.S., Slate or local
law, rule, regulation, or ordinance; andlor (b) any breach, alleged breach or mlsrepresenlatioll of
nny term, covenant, 'condl~on, or warrsnty contail,ed in thls Usc Agreement by
, For
the purposes of the Insurance and indemnification secllons of thls agreement, tbe leon
= ___" shall be defined to expressly inolude
, its employees, directors,
sponsors, exhibitors, agents andlor contractors, including, without limjta~on,
conces;slorl8, medical and security personnel employed
to
work in
cOllnection with the
Events. 'The obligations
to
defend
and hold harmless as oullined in this Section B arc in no wa),
10 the nmount(s) of
insurance required tmder~. AU of this Section 8 shall survive the terminatlon of this
Agreement.

9.
p_'!!1lane to the StadiumiSite. Any damage. to the Stadium andlor Ihe Site or
playing surface occurring during
Events, whetner Dr net soeh
is caused by
-:;-_ _ _ or someone other than the
, shall be Immediately
at the
-:--.,.,......,.,._ by a
oontrnclor to the condition thcSI~dlum I!I1dior the
ns determined in good fHilh by Ihe _ _ _~

fumr=\afions and Wa!Iil!)tles,

and authority to onler into and"-p-er""[o'-rm-'c.'lbis
liability company, duly formed l\lld existing and has the
power Rnd authority to enler
Into and perform Ihls Use Agreement, and hllS obtained
COllsent or
necessary for it
to exccute and dellver this Use Agreemellt; (c) We
delivery
of this
Use Agreement have been duly authorized by aU
action on
pm1; (d) this Use
tl.!(fCC.IDCI"' has been duly executed and delivered on ilS
and is a valid and
enforceable against it in accordance with its leans; and (e) it will condllct
)0.

I\lII

_ _ _ _ EventlJ in accordance with all applicable laws,

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11.
Any and all notices required or pennltted 10 be given hereunder shall be
deemed
actually received, if delivered personally, or
if deposited willi
the U.S.
Service, firs! class postage prepaid, certified or
mail, return receipt
requested and addressed as follows:

Notwithstanding anytlLing hereil1 to tbe

it shall be an Event of
Agreemellt
a
of or default. under trus
Use Agreement; (b) fuils to fulfill or
other terms, obligations, covenants, or
conditions of this u~ Agreement
but not limited to Jf
I1lUs Ii)
with Sladtum Rules and Regulations) .aoosuch fuilure continues
more
len (I Q)
foJiowiJlg notice thereof, or (c) files, or has filed against j~ a
for reorganization, Ihe
appointment of a receiver, or for any olher arrangement under
Ballkruptcy Code or similar
type or proceeding.
commits such an Event of 1gefauh, tbe Parties
that
--;:::::-;:-;-C7 shall not
use the Stadium and/or the Site for any reason until
Event
cured wilhout the
written consent
which may be withheld in
's sole and
:-~--:,.--...,--.
In addition to
-7'---"'" as a party 11=10
a third parly
- - - c - ' absolute approval);
remain lIab,le for all of_

13.
shall abide, and shall cause lis servanls, agents,
employees,
such reasonable mlos and regulatlolls as may
from time to lime be applicable to tbe
or adopted the
for Ibe use,
occupancy aud oporalion of the StadiumlSlte Including, without
contalned III
the Rules Gutde attached hereto.
14.

This
is subject to the Rules Guide Rod
are
hereto and inco!pomted herein by
referonoe.
the
Guide and the S\andard Terms and Conditions sball
collectively be
to hereill as the "Use Agreement." lfan.\' prOVision set forth above In !hIs
Use Agreement conflicts (or is construed 10 conflict) with any provision of the Rules Guide
and/or Standard Tenus an~ Conditions, the provisions herein will control.
tbe Standard

I,

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IN WITNESS WHEREOF, this Use

officers of Ihe
the
represents and
such capacity, all as of the day and year firnt above written.

Filed: 12/05/2016

duly authorized
each
whom
to execute this Use Agreement

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RULES GUJDE

thorefore. done or furnished

Deparlroenf and, unless so
'. expense. All
---a"l"h""all doHv.r !o the
Depatlmenl or allY

5hnll

. ";~ooil.II;I:~\f::;;t-iii~;:r.:~~

In

Upon tho conclusion of .ny __.,,=.

SladlumlSl!e 10 the
same eondhlon of clean'"l"'ln:-:.:-:.s:-"lIl:-:\"Cld-:
im""A~IA'elv
el'ent the Stadium/Site I, not returned in Ihe :lame
Even!, as delermined by Ibe
....-"-,-..
Ibe r.esenablo discretion -, =-:.
Ihe ponetrsllon (1)
the Stadium/Site
For nOll-colI1pll.~cc with
'~.:c,,:::c=="."S liquid. led damage. for any
th. costS of Inbor (including ...,_ _ _ _ ".:.... ~.
be

as a resul! of 'he failure

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I'

Stadium/Sile upon such qumin& or

StndiumlSlte's faeilitres from lis

placing nnd removing

equipment), 11 I.

tbe Sladlum/Sllc

domand all

(e,g.

11.
expressly acknowledges that ,besides the Wle of tha
Swdium/Slle os
Stadium/Site WId various
thereof nud area.
tooreln mayor will
events aud/or parking, una Ibal
Stadiull1JSlte
to h~ opetaled IlS effioiently lIS practlcablo rooy or will be
10 hove avoll.blo the uoo of the
SladlumlSlte, im:luding, without limitation. enl!:nnce~ nnd exits, 10
tlmt the
shan have 'full, cmnplole and absolule
to aslabllsh tho
use IlJld
--~'""''''''''of Il Stadlum/Sile nod to delermine when and
extent 10 which any sharing .Is necessary or
de,irnble, and
agrees to comply \Vial any schedules so .stabllshed llnd 10 cooperate In any
shariDg ammgemenls so determined, ln 110 event .hall
eoter or use any arca excluded from,lhe
SladiumiSitc,

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STANDARD TERMS AND CONDITIONS

1.
This Agreemem sball be construed in accordance with th.
laws of the State
_ _ _ _ .hall comply with the requirements Df ali laws, orde.s Ill1d
regulations of fedeml, stale, county and munlnipal aUlharities lllld wUb
l.wM dlrec!!otl of pubHc
offlCtl1! which .hail Impose nny
10 the SladiumlSile
Of otber use alld
wllh
to
discrimination as 10 mce,
'hall comply
.n
rules,

be responsible for and

to the _ _ _ _ Events,
_ _ _,.- ineludlng. Any
or
_ _ _ _.' s noncompliance
My.of

4,
oflne Lease.

SI~glU!n

Lease. This Agreement is subjectnnd subDrdinate 10 the lenns lllJd coodidon,

lIlul all

proporty or prop.rty of olhers

of
and thsi tbe
loss or damage 10 such
of Iheft or

be at the

('

6,
Foree Maleure. No party Shfill bo considered io breach or default In .lhe
of
Its obligallon. heroundQr Ifsuch pcriornl!l1lCe is prevented or delayed hecOllSO ofwar,
revolution,
civil commotion. epidemic, aecidoot, lobor disputes, fire, wind, flood, or bocause of 'my
order,
proclamation, regulation or ordinallO$ of aoy government or Or any subdivisiolllllcrcof, or huanso ofaciS
of Ood; or for any othor cause beyol1d the reasonable oonlrol of the party affeoted (each an event of "fore<
m~.ure").

R,
The parties hereto shail he deemed and construed as independent
c<lntraotors
lhe agent, employee, representative or servant of the olher.
,.
NnnDl1clo,nre. None of
or (he City shon, withoul Ihe
express prior wri~on consent of the
case
excepl as may he required by
law, disclose or divulge 10 lillY Olher person
or use or mOlliiY for usc, directly 0, Itldlrettly In any
way for any persoD or cnlll)"
of C,C
' auuMenliat Informalton during !he lelID or tbls
aod for a period of
(3) yean; thereafter,
(onns of this Agreement sllall be deomed
Informallon of the ____ and shall not b. dj""u..-scd or disclosed by _ _-:---'
_-".....,-.,- Or rho eily wllb
olherlhan d,.I, rospective altorneys, .gools or """UUrlum!>,
sueh discussions or
shall be ecmdl[jol1O<i
111e
of Ihe person to
lilo term~ are.dlsclosed 10 mainlninllio oonfidentiality
In
Ihe _ _...,.-,;
acknowledge Ihal Ihe terms and .ondillons of Ihls Agreement mny he disclosed
eUy with lenders 10 conneclloll wilh the linallelng aC!lvlties cor)lemplnle<i by the
such
leuders am bolloe to maintain the eonlideulllIl!ly of such !coos.

TI,.

10.

IReserved]

Page 71 of 89

Case: 24CH2:16-cv-00925-CB

11.
withlbe
breach of this Agreement.

Document #: 2

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Page 72 of 89

No failure of allY porty l,olelo to inslstupen exact

conuuMd shail be deemed or construed as n waivor ahoy

12.
Severabllity.
provIsions of Ihis Agreement shall h~ dMiored invalid or
"nenforceable, Ihc r~njnder <>f Ih.
continuo In full force and effect unlelS so construing
Ihe Agreemenl would
lntlQutlabl" relm!t.
[3.
be sill1u1tane()llsl~ executed in several
counterparts,
<:o06111ul0 OlllWd Ihc saine instrument.

14.
This Agreement nnd
Exhibits shull oonstlrote tbe entire
w!lh r.specl 10 the subject mn!!er ber.ln eunmined, There are 00
agreements or
botWOOD Ih. pnrtlO$,
whether onll or written, regarding the subjecl
matte< hereof, which bove 001 bun emoodied herein

END 0)1 STANDARD 'fEllMS AND CONDITIONS

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Page 73 of 89

~'

FIRST AMENDMENT TO STADIUM SUB-LEASB AND USE AGREEMENT

WHEREAS, on Feblllary 11, 2014, the City entered into a Stadiuln SubLease lind UBe
Agreement (the "Stadium Lease") with Biloxi Baseball, LLC, Beau Rivage Resorts, Ine., and
Overtime Sports Management, Bilox~ LLC, regarding the basebal.l stadium being constructed;
and,

VlHBREAS, the Stadium Lease contained provisions wherein Biloxi BasebaU, LLe, was
obligated to provide certain improvements to the facility 2nd the City was to receive certain
income; and,

WHEREAS, in order to expedite the process ofpreparing the sladium for openlng during
the coming Baseball Season the parties have determined to modify the terms of the Stadium
Leaso to increase the amount ofitnprovements which wlll be provided by Biloxi Baseball, ILC,
and to modify the timing of the ticket revenue component of the rent structorej and,
WHEREAS, pursuant to Seotion 42 of the Stadium Lease, any amendment to the Stadium
Lease requires the prior written consent of Beau Rivage;

NOW, THEREFORE, FOR AND IN CONSIDERATION OF the mutual covenants and

promises contained herein. the City of Biloxi, Miss.lssippi (the "City"), Biloxi Baseba.ll, ILC,
("Team'~ and Overtime Sports Management, Biloxi, LLC ("Overtime"), agree (with Beau
Rivage Resorts, Inc., hereby expressing its consent) to the following amendments to the Stadium
Lease:
1. TEAM or OVBRTlMB will provide, at their own expense, upgrades and additions of
at least $925,000 to complete the following components: a) AN system of approximately
$325,OOOj b) additional entl'ance upgrade 0$100,000; c) suite completion upgrades 0[$75,000;
d) signage upgrade of $1 00.000: e) company switch upgrade of $50,000; and f) video upgrade of
$275,000. Any variances to complete these upgrades are the sale responsibility and cost of the
TEAM and OVERTIME.
2. Exhibit R to the Stadium Lease shalt be modified a8 indicated on the document
attached hereto as "Exhibit R", which shall contain the following ohanges:

I). 1n years 2015 and 2016, the surcharge for AA Baseball shall be $0 per ticket
for the first 2~ 1,250 tickets sold in each senSOD, and $2 per tioket sold for the remainder
of each sea80n;
b). In years 2017 until the finnl two baseball seasons of the first telm, the
suroharge for AA Baseball shall be $2 per tioket;
c). In the final two baseball seaSOllB of the first teon, the surcharge for AA
Baseball shall be $3 pel' ticket for the first 231,250 tiokets sold in each soason, and $2 per
ticket for the l'fUlJainder of each season per tioket;

3. The Team and Overtime will "substantially complete" obligations 1(a) and 1(d) under

EXHIBIT
1/

'1

of.,

I'

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Page 74 of 89

paragraph 1 above by June 1, 2015, to

stadium
if
met then the City shall owe no further liquidated
under the Stadium
from June 1,
2015.
Team and
will have
substantial completion of items 1(b), 1(c),
I (e) and l(t)
1
by July 1,2015, and if that schedule is not met
City shall owe no additional liquidated damages under the Stadium
from July 1,2015 (if
such damages are still payable
not been previously terminated). For purposes of
term "substantially
shall mean complete to the
point that
incomplete status is not the canse of, or a substantial
a
a temporary certificate occupancy or
the stadium to be used for

4. All
terms and conditions
in the Stadium
with the terms of this amendment shall remain in full force and effect.

do not conflict

5. Beau Rivage Resorts,

executes this
for the sole purpose of
its written consent to this modification the Stadium Lease as
by Paragraph 42 of the
Stadium Lease.
Executed all

the _ _ _ _ day

March,

5.

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Page 75 of 89

EXHIBIT "R"

ADDITIONAL RENT SCHEDULE

Ticket Price

Surcbarge*

AA BASEBALL - 2015
Baseball Season and 2016
Baseball Season

TBD

$0 for first 231,250 tickets sold; then $2

per ticket*

AA BASEBALL - 2017
Baseball Season until last two
Baseball Seasons of initial term

TBD

$2 per ticket*

AA BASEBALL - Last two

Baseball Seasons of initial term

TBD

$3 per ticket for first 231,250 tickets sold;

then $2 per ticket*

OTHER BASEBALL EVENTS

TBD

$1 pcr ticket

FESTIVALS

TBD

$ J per ticket

CONCERTS AND OTHER

EVENTS

$0 - $30
$31 - $45
$46 - $75
$76 - $100
$101 or more

$2
$3

$4
$5
$5

*AA Baseball Ticket Surcharge not to exceed $500,000 Annually

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Page 76 of 89

SECOND AMENDMENT TO STADIUM SUB-LEASE AND USE AGREEMENT

WHEREAS, on February 11,2014, the City of Biloxi, Mississippi ("City") entered into a
Stadium Sub-Lease and Use Agreement (the "Stadium Lease") with Biloxi Baseball, LLC ("Biloxi
Baseball"), Beau Rivage Resorts, Inc., and Overtime Sports Management, Biloxi, LLC ("Overtime"),
regarding the baseball stadium being constructed; and
WHEREAS, in March of2015 those same parties executed a First Amendment to the StadiLUl1
Lease; and

WHEREAS, in order to facilitate the opening the Baseball Stadium c.ontemplated by the Stadium
Lease, the City and Biloxi Baseball, LLC, are now amending certain additional telIDS ofthat agreement;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF the City entering into an
.amendment to the General Works contract with W. G. Yates & Sons Construction, Inc., increasing the
Contract Sum to be paid by the City by $200,000.00, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, including the mutual covenants and promiges
contained herein,' Biloxi Baseball, LLC, and tl}e City of Biloxi, Mississippi, hereby amend their
February 11,2014 Stadium Sublease and Use Agreement as follows:
-SECTION ONn. Section 8(b) is hereby amended to read as follows:
/

(b) Biloxi Baseball Remedies. The City acknowledges that its covenant to have the Stadium
available for Beneficial Occupancy on or before April 18, .2015, is of great importance to Bilox.i
Baseball, and that in the event the Stadium is not available for Beneficial Occupancy 011 01" before April
1&,2015, Biloxi Baseball will suffer damages, the actual aruOl.lnt of which would be impractical or
extremely difficult to determine, that the liquidated damages amounts set forth below are reasonable pre
'estimates of what Biloxi Baseball's monetary damages would be in the event the Stadium is not
available for Beneficial Occupancy on or before Apri118, 2015, and it is the parties intention that the
City provide Biloxi Baseball with liquidated damages to compensate Biloxi Baseball jf the Stadium is
not available for Beneficial Occupancy on or before April 18, 2015, rather than penalties to deterthe
City from breachh'1g this Agreement and/or to punish the City. Therefore, in the event the Stadium is
not available for Beneficial Occupancy on or before April 18,'2015, plus additional time for
performance attributable to force majeure, as defined herein, tbe11 Biloxi Baseball YI~ll have the
following available remedy:
Biloxi Baseball may suspend their performance of the Agreement until the Stadium is available
for Beneficial Occupancy, and the City agrees to pay to Biloxi Baseball as liquidated damages an
amount of $10,000.00 per Club Home Game for each Club Home Game for which the Stadium is
not available for Beneficial Occupancy after April 18, 2015, plus additional time for
performance attributable to force majeure, as defined herein. The number of games to which this
liquidated damages provision shall apply shall be determined according to the game schedule
established by Biloxi Baseball in the ordinary course of operations; however, the City shall not
be held responsible for payme11t of the liquidated damages of $10,000.00 per Clnb Home Game
beyond a cap or maximum often (10) such Club Home Games--ill other words, the liquidated
damages shall not ,exceed $100,000.00. Furthermore, if Biloxi Baseball andlor Overtime fail to
carry out their respective obligations to obtain a Temporary Certificate of Occupancy and to
,obtain all approvals or waivers they may need from Ma' or Lea ue Baseball, Minor League
Second Amendment to Stadium Sublease, v5 Page 1 of 4

EXHIBIT
II

3/1

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Page 77 of 89

If approvals aren't provided by MlB, MilS, The Southern league due to GENERAL CONTRACTOR fault or
error and not Biloxi Shuckers or Overtime Sports, then this paragraph wlll become void.
.u<l;~vuaH. and
Southern League of Mmor
play the
Shuckel's
6,
5 at
obHgated to pay any liquidated damages.

to

the

H
I

Ivfinor ~_~,,., .._

the

set
respect to a breach of Section

SECTION TWO. The

SECTION FOUR.

j.Jvv..... v.J

as

31 (b)

to

Mayor Andrew

With a copy to:

Gerald

GiUch

429

Biloxi, MS

39533~0429

this Alllenumem

'WITH AN

EXECUTED BY

OF BILOXI,

Second Amendment to Stadium Sublease, v5

2 of 4

June 2, 2015.

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Page 78 of 89

CONSENTING SIGNATORlES

INC.

Second Amendment to Stadium Sublease, v5

SPORTS MANAGEMENT,

3 of 4

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Page 79 of 89

Mayor
letter confrrros that the following
League
at MGM
been
of Biloxi jJQ.'''"'''LJo.a,

the team na.<; UIOC'UIC"J. necessary to begin Minor

by the
to

VV.,'liJ"""'"

Playing

>I<

*
*

\..JiI.UJL1UU.I>"'i>

and Umpires room, including

weight rooms
field screens, batters eye, pitching warm area,

'"
'"

been turned over to

*
>;<

*
*

foul

*
*

behind first

u;...".,tu!".,

field and

side of stadium

ofJune 2015.

By:

MlB & MilB has Its own contractor to approve the baseball related items on this list. Although baseball
improvement will

at MGM
those items that the basebalf contractor deems stili
may
need to be completed by YATES CONSTRUCTION.

Second Amendment to Sttldium Sublease, v5

4 of 4

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Page 80 of 89

DEFIN1TIVE PURCHASE AND ADVERTISEMENT REVENUE

AGREEMENT FOR MOM PARK VIDEO BOARDS/SCOREBOARDS

AND CERTAIN OTHER REVENUE PRODUCING SIGNAGE

THIS AGREEMENT is made, executed and entered into effective as of the jt.J.-day
of
,2015, by and between the City of Biloxi, Mississippi, (hereinafter
"City" , a Mississippi municipal corporation; Biloxi Baseball LLC (hereinafter "Biloxi
Baseball), a Mississippi limited liability company; and Overtime Sports Management Biloxi,
LLC (hereinafter "Overtime"), a Mississippi limited liability company.
RECITALS
WHEREAS, the City, Biloxi Baseball and Overtime, desire to purchase, own, and
operate two (2) video boards/scoreboards for use at MGM Park in Biloxi, MS (hereinafter
"MOM Park");
WHEREAS, the City, Biloxi Baseball, and Overtime further desire to divide and
distribute the revenues generated from the secondary video boards/scoreboards used at MGM
Park as specified herein.
NOW, THEREFORE, for and in consideration of the mutual benefits and obligations
contained herein and for other good and valuable considerations, the receipt and sufficiency of
all of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE ONE

DEFINITIONS

1.1

As used herein, the following terms shall have the following meanings:
a) Primary Video Board/Scoreboard. The term "Primary Video Board/Scoreboard"
shall mean a video board/scoreboard measuring 32 feet by 46 feet inside MOM
Park.
b) Secondary Video Board/Scoreboard. The term "Secondary Video
Board/Scoreboard" shall mean a video board/scoreboard measuring 14 feet by 48
feet inside MOM Park.
c) MiLB. The term "MiLB" shall mean Minor League Baseball.

(d) Baseball Season. The term "Baseball Season" shall mean, as to each MiLB
Season, starting on or around April 1 and ending on or around September 15 of that year
as played by the Biloxi Shuckers Club at MGM Park from opening day, on which the

Club's first game is played, until the Club's last game is played during the exhibition
games, post-season "playoff' games and "all-star" games, or September 15, whichever
shall later occur.
EXHIBIT
1

"Lf

11

Case: 24CH2:16-cv-00925-CB

2.1

Description

Document #: 2

Property.

propelty

Filed: 12/05/2016

is the

Page 81 of 89

matter

greement IS as
a) A
Video Board/Scoreboard (32
x 46 feet).
b) A Secondary Video Board/Scoreboard (14
x 48 feet).
c)
to operate the
and
V ideo
including, but not limited to,
d)

materials necessary
structure for the
and u",,,vU.U<Ll
Labor and materials necessary to
Primary and Secondary
to the control room, including, but not limited to,
fiber optic wiring, and
llV,",,,,,.tU,,,,.

f)
Boards/Scoreboards.

3.1
MGM

Investment by the

The City

provide funding

following

use

a)

and
necessary
the installation
foundation
Board/Scoreboard.
structure ofthe Primary
b) Labor and materials necessary
the installation of the foundation and
structure the Secondary Video Board/Scoreboard, except as amended
First Amendment
Stadium
and
entered
and
the
April 2, 2015.
c)
and
to power
Primary
Secondary Video
Boards/Scoreboards to the control room, including, but not limited to, power
supplies, conduit,
wire housing and fiber to the
Board.

Installation.

shall
costs associated
and structure of both
Board/Scoreboards, except as amended by
First Amendment to Stadium
on or about April 2,
and
Agreement entered
and nprUIP',>n the
3.2

Iouna~:moin

Design. Coordination of the U""'L~U of the foundation and structure

Board/Scoreboard
by
2

the Primary

Case: 24CH2:16-cv-00925-CB

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Page 82 of 89

FOUR
INVESTMENT

LJ"".w.LJ.ru..JJ..J

4.1

Investment by Biloxi Baseball. Biloxi Baseball shall be responsible

with the following
use in MGM Park:
a)
Video Board/Scoreboard
b) Any and all computer(s) and hardware necessclrI
Primary Video Board/Scoreboard.
c) Any and all
to operate

all costs

feet).

Video

d) Pulling fiber from control room to Secondary Video

Board/Scoreboard.

5.1

by Overtime.

lup,t"t.,...,p

shall provide the following for use

MGM

Park:
The Secondary Video Board/Scoreboard (14
b) The design
foundation and structure

x48

Secondary Video

c) Any and all computer(s) and hardware necessary to operate the Secondary
Video Board/Scoreboard.
d) Any and all software
to operate Secondary Video
Board/Scoreboard.

SIX
ADVERTISING REVENUE FROM PRlMARY
6.1

BOARD

Allocation of Revenue from

Video Board.
and all
from the Primary Video Board/Scoreboard during MiLB games shall be
retained by Biloxi BasebalL
'''-Hi'PrT1

ADVERTISING

ARTICLE
FROM SECONDARY

7.1

BOARD

Advertising Revenue.
Baseball shall use
efforts to sell up to
cost twelve thousand
three
at an
hundred dollars ($12,500.00) per Baseball Season
a total estimated advertising revenue
thousand
five hundred dollars ($187,500.00) per
stream of one
games only.
Baseball
shall be sold
3

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Page 83 of 89

Placement of Advertisements.
""1"",,1",,, advertising spots shall
Park MiLB Season home
Secondary Video Board/Scoreboard ...............

Allocation of Revenue to City.

and one-half percent (53.5%)
revenue generated from
Video Board/Scoreboard for ...........,'"'v"u
2034 shall be allocated to,
._..,. U.J.'''' by the City. Overtime shall
revenue
total a minimum of $50,000.00
year.
the initial season only
revenue shall be pro-rated
of games actually played in MGM
initial Baseball Season.
Limitation of
all advertising revenue
City shall not
one
additional revenue

hllr.rlr~'rI

Video Board Allocated to City per

iSe(;ondaly Video
"thn'1<""... rl dollars ($100,000.00)
and retained by,

Allocation of Revenue
Video Board to Biloxi Baseball.
revenue generation from the :)e(~on.aaJ:Y
and one-half percent (46.5%) of the
Board/Scoreboard for Baseball u,",,,,,,v,.,,
5 - 2034 shall be allocated to,
Baseball. Following the 2034
~eason in MGM Park, Biloxi ua""U<lH
~e(;on.QaJ:Y Video Board/Scoreboard.
revenue generated from

7.6

Field Name Sponsorship

Secondary Video
compensating the City
to Overtime for
City does hereby
Yrnr,<op<o of this
U"""l}(Ul Season
revenue provided
in
of games actually played

8.1

Advertising and Sponsorships Sold. Subject to the provisions of

above, Overtime shall
all
and sponsorships sold
events within MGM Park.

MAINTENANCE

ARTICLE NINE
OF VIDEO BOARDS

Case: 24CH2:16-cv-00925-CB

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Page 84 of 89

9.1
Maintenance and Repair of Primary Video Board/Scoreboard. Biloxi
Baseball, shall be responsible for all maintenance and repairs on the Primary Video
Board/Scoreboard.
9.2
Maintenance and Repair of Secondary Video Board/Scoreboard. Biloxi
Baseball, Overtime, and the City shall equally divide any and all maintenance and repairs on the
Secondary Video Board/Scoreboard.
ARTICLE TEN

MISCELLANEOUS

10.1 Assignment. The parties shall not assign any portion of this Agreement without
the prior written consent of the other parties, which consent shall not be unreasonably withheld.
10.2 Binding Effect. This Agreement may shall be binding upon and insure to the
benefit of all parties hereto and their respective heirs, successors, and assigns.
10.3 Modification. Tbis Agreement may be modified only by a writing signed and
authorized by all parties.
10.4 Headings. Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
10.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Mississippi. The parties hereby submit to the
Jurisdiction of the federal and state courts of the Second Judicial District of Harrison County,
Mississippi for the purposes of all legal proceedings arising of or relating to this Agreement and
the parities irrevocably waive, to the fullest extent permitted by law any objection which they
may now hereafter have to the venue of such proceeding which is brought in such a court.
10.6 LegalConstruction. In case anyone or more of the provisions contained in this
Agreement are held to be invalid, illegal, or unenforceable in any respect, the invalidity,
illegality, or unenforceability shall not affect any other provision and this Agreement shall be
construed as if the invalid, illegal, or unenforceable provision had never been contained in it.
10.7 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original nut all of which together shall constitute one and the
same instrument.
10.8

Time of Essence. Time is of the essence of this Agreement. .

10.9 Entire Agreement. This Agreement supersedes all prior agreements and
constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof.

Case: 24CH2:16-cv-00925-CB

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Page 85 of 89

Majeure. No party shall be considered

obligations heretmder such perfonnance is

fHY'vu . u"" accident,

10.10

nrp\JPn

'-''''''',CH'',,''' off any

regulation or
of any government or any subdivision
oec;am;e of God; or for any other cause beyond the reasonable control of
party
Upon
the occurrence aforce majeure event,
affected party shall infonn the
party without
delay,
shall provide a
statement to the other party
respect to
event within
thirty (30) business days from
occurrence. Such written statement shall
a precise
description the force majeure event
the reasons for
delay or
inability to perfonn
obligations
affected
does not
other party
does
not provide
written statement described above,
as the
are provided it
shall
liable for the nonperfonnance of obligations during
continuance the force
consequences caused
and
therefrom but only to the extent
majeure event and
failure to infonn was prejudicial to the
of the other party. Notwithstanding the
foregoing,
(a) normal
postponement or cancellation due to nonnal;
conditions, (b) internal
motivated by way of example,
or dissatisfaction
with
or
factor(s) within
control
(i.e., resolvable by management decision) nor (c) the "vi'S""U'"""
constitute aforce majeure event.

10.11 Notices.
given
the US, Posta
requested

and all
r",rp"..t

""A"lU'A.'

If to: Biloxi Baseball:

hereunder shall
if dej:;>oslted

Mr.

YOtmg
18228 US. Highway 41 North
Lutz, FL

173
Ifto

City:

With a copy to:

Ronald
Esq.
Page, Mannino,
& McDennott,
Vieux Marche' Mall (39530)
Drawer 289
MS

(b) to

Quentin Whitwell
1400
6

Road

Case: 24CH2:16-cv-00925-CB

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Page 86 of 89

Suite 100
Jackson, MS 39211
agree that to the extent this Agreement ~LV'~ULV
party with respect to each other contained
control
4, the terms of this Agreement
agree that nothing contained
'I"."""VA", or duties with regard to Beau
or the Ground Lease dated February 11,

page left blank intentionally!!

Case: 24CH2:16-cv-00925-CB

Document #: 2

WHERE
Baseball, LLC, the
hereby represents
in such capacity,

Sworn

Filed: 12/05/2016

Page 87 of 89

has been
duly authorized
Biloxi, and Overtime
Management Biloxi,
warrants that he has
full power and authority to
written above.
.
as of the day and year

before me this

5.

BILOXI

ArrEST

Notary Public

My Commission

Case: 24CH2:16-cv-00925-CB

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Page 88 of 89

WHERE OF, tills Agreement

executed
the
of Biloxi, and Overtime
warrants that
has the
1'",,-,,.,,,11h, all as
year

and subscribed before me tills

2015.

CITY OF BILOXI,

BY:~~~Il~~/,----(VIJ\~O~

Case: 24CH2:16-cv-00925-CB

Document #: 2

Filed: 12/05/2016

Page 89 of 89

IN WITNESS
OF, this
duly
Biloxi Baseball, LLC, the City of Biloxi, and Overtime
Management Biloxi,
and warrants that he has the full power and authority to
each of whom hereby
execute this
In
as of
day
year
written

~r--"---""=-- 2015.

and subscribed before me this

OVERTIME SPORTS MANAGEMENT BILOXI,

Its:

My Commission

10

_O_w
_ _~_______