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EXHIBIT D
NON -RELOCATION AGREEMENT
D-1
Club 6/10/17
NON -RELOCATION AGREEMENT
This Non- elocation Agreement (Agreement) is entered into this 1j01
e day of .)u.nG
2017, by v ' St�r+�#�� (Club) and the City of Fresno, a municipal corporation (City)
and shall remain in'eiect until December 31, 2036, (Term) to coincide with expiration of
the Amended and Restated Stadium Sublease Agreement dated January 1, 2010, as
amended (Sublease). All capitalized terms not defined herein shall have the meaning
set forth in the Sublease.
1. During the Term, Club shall cause all home games of its AAA professional
baseball team (Team) to be played at the City -owned stadium located at 1800 Tulare
St, Fresno, CA (Stadium), except as follows (Permitted Exceptions): (a) loss of
Facilities under Article VII of the Sublease; (b) written consent of the City; (c) Force
Majeure Event; (d) material breach of the Sublease by the City which remains uncured
after thirty (30) days written notice; or (e) requirements, decisions or actions by Pacific
Coast League, Minor League Baseball, or Major League Baseball (the "Baseball
Authorities"), provided Club has maintained its membership in the PCL in good
standing, made all reasonable good faith efforts to comply with this Agreement, caused
its home games to be played only at the Stadium, and not voted in favor of or volunteer
the Team for contraction. The foregoing restrictive covenant is absolute, unconditional
and irrevocable.
2. Club shall not apply for or seek approval from the Baseball Authorities for the
relocation of the Team, or engage in negotiations or enter into any agreements with any
third parties regarding the relocation of the Team earlier than January 1, 2032, but may
do so only during the final five years of the Sublease term with any such relocation to
take effect after expiration of the Sublease term. The Permitted Exceptions shall be
applicable to this Section 2.
3. The occurrence of the following during the Term shall be deemed an Event of
Default: (a) Club materially breaches this Agreement or (b) Club materially breaches
this Agreement and Club admits in writing its inability to pay debts generally as they
become due, makes an assignment for the benefit of creditors, applies for or consents
to the appointment of a receiver, trustee or liquidator of Club or substantially all of
Club's assets, files a voluntary petition in bankruptcy or a petition or an answer seeking
reorganization under any bankruptcy or insolvency law.
4. The parties acknowledge and agree the City has and will incur significant
obligations to make the Stadium available for home games and there exists no
adequate remedy at law to enforce this Agreement against Club, and equitable relief by
way of a decree of specific performance or an injunction (such as a prohibitory
injunction barring the Team from relocating or playing its home games at any location
other than the Stadium in violation of this Agreement or a mandatory injunction requiring
the Team to play its home games at the Stadium in accordance with this Agreement) is
the only appropriate remedy for the enforcement of this Agreement, notwithstanding the
provisions for liquidated damages set forth below. The rights of the City to equitable
relief (including specific performance and injunctive relief) as a result of an Event of
Default shall not constitute a claim pursuant to Section 101(5) of the United States
Bankruptcy Code and shall not be subject to discharge or restraint of any nature in any
Club 6/10/17
bankruptcy, reorganization or insolvency proceeding involving Club. The parties agree
this Agreement is a stand-alone agreement and is not an "executory contract" as
contemplated by Section 365 of the United States Bankruptcy Code.
5. Upon an Event of Default for which the City is denied the equitable relief set forth
in Section 4, the payment of liquidated damages therefore by Club is the next most
appropriate remedy. Therefore, if Club has committed an Event of Default and the
equitable relief described in Section 4 will not be granted, or is otherwise unavailable, to
the City, the parties agree actual compensatory damages to the City would be difficult to
determine, and the parties therefore agree Club shall pay liquidated damages to the
City in the amount set forth on Schedule 1, with one-half of the amount due within 90
days after an Event of Default, and the remaining balance due within 180 days after the
Event of Default; provided, however, that: (1) Club is entitled to a refund of that portion of
liquidated damages in the amount of any revenues received by City generated by the
Stadium or related parking LESS any unreimbursed expenses incurred by the City
which are directly related to such revenues, up to the amount of the City's debt service
for the 2001 B and 2017A Bonds for the applicable year during the Term in the amount
set forth in Schedule 1 (as subject to audit by the Club), such payments to be made by
the City to the Club on or before April 30th each year for the prior calendar year; and (ii)
upon payment of liquidated damages, City waives any right to collect, seek or claim any
additional damages under the Sublease or otherwise, including, without limitation, lost
or prospective profits, or for any other special, Indirect, incidental, consequential,
exemplary or punitive damages.
CITY OF I" kin
a mur rl
By: -
Its:
Dated
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:
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beputy
Dated:
LAF:ns 175301 ns/laf]
CLUB
allBy: - - --- -
Its: �+
Dated. I 24�
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:
Laurie A}vedis' n-Favini, As ' nt
Dated,
Club 6/10/17
Schedule 1
Li_guidated Damages
and Annual Debt Service
Date of Event of Default
Liquidated Damages
Annual Debt
Service
01.01.17— 12.31.17
$44,481,383
820,232.83
01.01.18 - 12.31.18
$41,412,738
3,101,145.75
01.01.19 - 12.31.19
$38,344,093
3,150,931.75
01,01.20 - 12.31.20
$35,275,448
3,144,252.75
01.01.21 - 12.31.21
$32,206,803
3,142,012.25
01.01.22 - 12.31.22
$29,138,158
3,138, 738.75
01.01.23 - 12.31.23
$26,069,513
3,129,307.25
01.01.24 - 12,31.24
$23,000,868
3,122,843.75
01.01,25 - 12.31.25
$19,932,223
3,118,666.00
01.01.26 - 12.31.26
$16,863,578
3,116,665.00
01.01.27 - 12.31.27
$13,794,933
3,106,489.25
01.01.28 - 12,31.28
$10,726,288
3,107,537.25
01.01.29 - 12.31.29
$7,667,643
3,099,207.50
01.01.30 - 12.31.30
$4,588,998
3,091,097.75
01,01.31 - 12.31.31
$1,520,353
3,092,255.00
4