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HomeMy WebLinkAboutGround lease/sub lease April 12, 2010 To: Zoning andtree files 1030 Old Crystal Bay Road North(Orono Baseball Association Fields) From: Evelyn Turner All the fields are built on land the City leases from the school district and subleases to the Orono Baseball Association. The west fields were constructed in 1994 after the City Attorney determined the land was a park(since the lease was for more than 10 years) so the fields were a permitted use. The east field was approved in 2001 and constructed in 2003. It was granted a CUP as part of the school as the City was not involved in leasing the land. HOWEVER in 2003 the lease and sublease was revised so the City leased the land for the east field as well as the west fields and in turn sublet it to the OBA. The lease was extended to 2024. This means that the entire complex is considered to be a park and is a permitted use. The lease lists a number of improvements that are specifically allowed and includes other appurtenances necessary to operate similar organized your baseball fields in the suburban TC area. The City is not required to approve improvements, only the school district, but building permits are required. While the initial lease refers to "little league baseball"the first addendum to the lease changes this to "organized youth baseball". ,. • 4/22/94 GROUND LEASE THIS AGREEMENT OF LEASE, made effective as of the 15th day of April, 1994, by and between Independent School District No. 278, a Minnesota independent school district and political subdivision under the laws of Minnesota ( "Lessor") and City of Orono, a Minnesota municipal corporation ( "Tenant") . WITNESSETH: Lessor, for and in consideration of the rent, covenants and agreements hereinafter set forth to be paid, kept and performed by Tenant, hereby demises and leases unto Tenant and Tenant hereby does hire and rent from Lessor, the premises hereinafter described, for the period, at the rental and upon the terms and conditions hereinafter set forth. IT IS AGREED: 1. THE LEASED PREMISES. Lessor leases to Tenant and Tenant rents of and from Lessor that certain parcel of land located in the City of Orono in Hennepin County, Minnesota, and cross-hatched on Exhibit A attached hereto and made a part hereof, together with all necessary easements and rights of access necessary to permit ingress or egress from a public right- of-way (all of the foregoing collectively referred to as the "Premises" or "Leased Premises") , subject to the terms and conditions of this Lease. 2 . TERM: TERMINATION RIGHT. 2 . 1 The term of this Lease shall be for a period of nineteen (19) years and eleven (11) months, commencing on April 15, 1994, and terminating on March 15, 2014. 2 .2 Notwithstanding any provision to the contrary herein, Tenant shall have no right to occupy, enter onto or occupy the Leased Premises, and Lessor or Tenant may terminate this Lease effective on the 10th day after providing written notice of termination to Tenant or Lessor, if on or prior to April 15, 1994, Tenant shall not have provided to Lessor evidence considered to be reasonable by Lessor to establish that Tenant or the Orono Baseball/Softball Association Association, a Minnesota non-profit corporation ( "Facility Lease Tenant") has sufficient available and separate funds for timely completion of the Facility. 3 . FACILITY CONSTRUCTED. Subject to Landlord' s prior written approval of plans, specifications and drawings ( "Approved Plans") , Tenant shall cause at its expense (or at the expense of the Orono Baseball Association) the construction on the Leased Premises of little league baseball fields, which may include playing fields, dugouts, fencing, landscaping and other appurtenances necessary to operate similar little league baseball fields in the suburban Twin Cities area in material compliance with the Approved Plans (as the facilities may exist from time to time, the "Facility") . Tenant represents that it shall obtain all building permits or other approvals, consents or permits necessary to construct and operate the Facility, and that the Facility and the use thereof shall comply with all building and zoning codes, and federal, state and local laws. Tenant has kept and shall keep the Leased Premises free and clear of all mechanic's liens. Tenant shall not commence any construction nor permit any act to give rise to potential claims of mechanics liens or the like unless and until (a) the financing requirement in Section 2 .2 has been fulfilled, (b) Landlord has agreed in writing upon the Approved Plans, and (c) Tenant has obtained all building permits and other approvals, consents and permits necessary to construct and operate the Facility in compliance with all building and zoning codes, and any other applicable federal, state or local law. If the conditions outlined in this Section 3 shall not have been completely fulfilled in Lessor' s reasonable opinion on or prior to June 1, 1994, then Lessor or Tenant shall have the right to terminate this Lease effective upon the 10th day after providing written notice of termination to Tenant or Lessor, provided that nothing herein shall release or diminish Tenant' s obligation to keep the Leased Premises and Facility free and clear of all mechanic' s liens, encumbrances and the like, which obligation of Tenant shall survive termination or expiration of this Lease. Tenant shall commence construction of the Facility within 30 business days after all of the terms and conditions of this Section 3 have been fulfilled and approved by Lessor, and Tenant shall complete the Facility in a first-class good and workmanlike manner, free and clear of all mechanics and other liens and encumbrances, on or prior to August 31, 1994. 4. RENT. As and for payment of all rental due during the term hereof, Tenant will pay One and no/100ths Dollars ($1.00) . 5 . ACCEPTANCE OF LEASED PREMISES. Except for the covenant of quiet enjoyment set forth in Article 24 of this Lease, Tenant accepts the Leased Premises "AS-IS" , and agrees that neither Lessor nor any party for whom Lessor may be responsible has made, is making and shall be deemed not to have made any warranty or representation, express or implied, with respect to any aspect of the Leased Premises, or anything thereon or thereunder, legal, physical or otherwise, including without limitation, any access, soil conditions, zoning, sewer, water, electricity, gas, telephone or the like. Tenant has had opportunity to inspect the Leased Premises and evaluate Tenant' s planned use of the Leased Premises, and accepts all risks relating thereto. 6 . USE OF PREMISES. Tenant is hereby permitted to use and occupy the Leased Premises and the Facility thereon solely for the construction, maintenance and operation of little league baseball fields, and for no other purpose. Tenant shall not . -2- install, use, generate, store or dispose of in or about the Premises or the Facility any hazardous substance, toxic chemical, pollutant or other material now or hereafter regulated by the Comprehensive Environmental Response, Compensation and Liability Act of 1985 or any other law or regulation, including without limitation, any material containing asbestos or PCB (collectively "Hazardous Materials") without Lessor' s written approval of each Hazardous Material . Tenant shall indemnify, defend and hold Lessor harmless from and against any claim, damage or expense arising out of Tenant's installation, use, generation, storage, release or disposal of any Hazardous Materials, regardless of whether Lessor has approved the activity. 7. ALLOCATION OF EXPENSES AND LIABILITIES. This Ground Lease allocates to the Tenant the obligation to pay certain expenses, take certain actions and provide certain indemnities and assurances (collectively "Tenant Obligations") . It is acknowledged that the Tenant may enter into a facility sublease of the Leased Premises (the "Facility Lease") whereby the Facility Lease Tenant will sublease the entire Leased Premises and operate the same as a little league baseball facility, with a concession stand, subject to the terms and conditions of this Lease. Tenant may, but shall not be obligated to, allocate certain Tenant Obligations to the Facility Lease Tenant, but neither such allocation nor the consent to lease to Facility Lease Tenant shall release or diminish Tenant's obligation under this Lease. Tenant shall cause the Facility Lease Tenant to comply with all terms and conditions of this Lease, including without limitation, naming Lessor as an additional insured and as loss payee with respect to the insurance to be carried in compliance with the requirements in Article 13 . The consent provided hereunder shall not release either Tenant or Facility Lease Tenant from the restriction against other or further transfers, assignments, subleases or the like without Lessor's additional prior written approval, which approval shall be at Lessor' s sole discretion. Prior to permitting Facility Lease Tenant onto the Premises or Facility, Tenant shall obtain and deliver to Lessor a written assumption by Facility Lease Tenant, of all obligations of Tenant' s obligations hereunder. Tenant's obligations hereunder shall not be released or diminished by reason of such assumption. Facility Lease Tenant' s entry onto the Leased Premises shall be deemed to be an automatic agreement on its part to perform and observe all of the Tenant' s obligations under this Lease. 8 . REAL ESTATE TAXES AND ASSESSMENTS. Lessor and Tenant acknowledge that the real estate taxes on the Leased Premises are currently exempt from taxation. In the event the Leased Premises and/or Facility shall become taxable in the future, real estate taxes and any installments of special assessments attributed to the Leased Premises and/or Facility shall be paid by Tenant. 9 . LICENSE FEES . Tenant shall pay, as they become due and payable and before they become delinquent, all fees, charges and expenses required for licenses or permits, if any, required for -3- Tenant' s use of the Leased Premises and/or Facility, as set forth in paragraph 6 during the term of this Lease or any extension thereof. 10 . UTILITIES. Tenant shall be responsible for obtaining and shall pay, as they become due and payable and before they become delinquent, all charges for electricity, heat, air conditioning, water, gas, fuel, telephone, sewer usage or rental, garbage disposal, refuse removal, telephone and any other utility service furnished to the Leased Premises and/or Facility during the term of this Lease. 11. REPAIRS AND MAINTENANCE. During the term of this Lease, and any renewals or extensions hereof, Tenant, at Tenant' s cost and expense, shall keep and maintain in good order, condition and repair the Leased Premises and the Facility, in as good as a condition as similar recreational facilities are kept. 12 . LESSOR'S RIGHT TO INSPECT AND REPAIR. Lessor, or its agents, shall have the right to inspect any part of the Leased Premises and/or Facility at any reasonable time. 13 . TENANT'S INSURANCE. Tenant shall obtain and keep in force, at Tenant' s expense, or shall cause the Facility Lease Tenant to obtain and keep in force, at the Facility Lease Tenant' s expense, for the term of this Lease and any extension or renewal• thereof, the following insurance: A. A standard "All Risk" property insurance policy. Said policy shall cover all buildings, fixtures and all other installations and improvements on or about the Leased Premises and/or the Facility, on the basis of one hundred percent (100%) of replacement cost not to exceed full insurable value. Said policy shall name Lessor and all mortgagees of record (the names of which are to be supplied by Lessor) as loss payees. B. Comprehensive general liability insurance, with minimum limits of liability in respect of bodily injury and property damage of at least Six Hundred Thousand and No/100 Dollars ($600, 000 .00) for each occurrence on a combined single limit basis, naming Lessor as an additional insured. C. Builders Risk, completed value basis, including the value of all furniture fixtures and equipment, and Workers' Compensation in statutory limits, during all periods of construction. D. Each of said policies required pursuant to the provisions of this paragraph shall be issued by an insurance company legally authorized to do business in the State of Minnesota; shall be in form satisfactory to Lessor; and shall provide for at least ten (10) days notice to Lessor before cancellation, termination, non-renewal or change 'of -4- such insurance. Certificates of such policies, and any renewals thereof, shall be delivered to Lessor. 14. WAIVER OF SUBROGATION. Notwithstanding any provision to the contrary hereunder or the tortious, wrongful or other act or omission of the other party, Lessor waives its right of subrogation for damage to any buildings, contents therein, and Tenant waives its right of subrogation and releases Lessor and any party for whom Lessor may be responsible from damage to property in the Leased Premises, the Facility or anything now or hereafter thereon or therein. Lessor and Tenant agree to notify their respective insurance companies, in writing, of the provisions of this paragraph, but the failure by either party to do so shall not negate the effectiveness of the releases set forth herein. 15 . DAMAGE BY FIRE OR OTHER CASUALTY. In the event of any damage or destruction to the Leased Premises, Facility or any part thereof, this Lease shall continue in full force and effect, and Tenant shall promptly, to the extent of available insurance proceeds, make and perform all construction and repairs to restore, repair or rebuild the Leased Premises and Facility to the condition it was in prior to said damage or destruction, limited by the extent of insurance proceeds, in a good and workmanlike manner, free of liens and other encumbrances. Tenant shall commence the work of restoration, repair and rebuilding as soon as reasonably possible after the occurrence of any damage or destruction to the Leased Premises, Facility or any part thereof and shall thereafter prosecute such work diligently to completion. If such work shall not be commenced within 60 days after the occurrence of such fire or other casualty, or if Tenant thereafter fails diligently to complete the same, or if Tenant shall fail to complete the same in the manner required hereunder within 180 days after the occurrence of such fire or other casualty, then Lessor shall have the right to terminate this Lease effective upon written notice to Tenant. 16 . ALTERATIONS AND IMPROVEMENTS. Tenant shall not make or permit to be made any repairs, alterations and/or improvements in and to the Leased Premises or Facilities without the prior written approval of Lessor, which approval shall not be unreasonably withheld if Tenant fulfills all requirements of Lessor to Lessor' s reasonable satisfaction. 17. LIENS. WAIVER & INDEMNITIES. 17.1 Tenant shall not permit mortgages to be filed against the Leased Premises or Facility. Tenant shall pay timely for labor and material furnished by Tenant in connection with work of any character performed or claimed to have been performed on the Leased Premises or Facility. Tenant shall not permit any mechanics' or similar liens to remain upon the Leased Premises or Facility, however, either party may contest the validity of such lien or claims. Upon a final determination of the validity of any such lien or claim, the defending party shall immediately pay -5- any judgment or decree rendered against Tenant, including, but not limited to, all proper costs and charges, and shall cause such lien to be released of record without costs to the other party. 17.2 Notwithstanding anything apparently to the contrary in this Lease, Lessor (its board members, administrators, teachers, agents, representatives and any other party for whom Lessor may be responsible) shall not be liable to Tenant, and Tenant hereby releases such parties from all damage, compensation or claims from any cause other than the grossly negligent act of Lessor arising from: loss or damage to personal property or trade fixtures in the Leased Premises or Facilities, including without limitation, baseball equipment, personal and other property; lost business or other consequential damage arising out of interruption in the use of the Premises or Facilities, and any criminal act by any person other than Lessor. 17.3 Tenant agrees to indemnify, defend and hold Lessor (its board members, administrators, teachers, agents, representatives and any other party for whom Lessor may be responsible) harmless from and against any claim, loss or expense arising out of injury, death or property loss or damage occurring in the Premises or Facilities, except only to the extent caused by the grossly negligent act of Lessor. 17.4 The provisions of this Section 17 shall survive termination or expiration of the Lease. 18 . TITLE TO IMPROVEMENTS. All improvements constructed on the Leased Premises by Lessor or Tenant as permitted by this Lease shall be owned by Tenant until expiration of the term or sooner termination of this Lease. The parties covenant for themselves and all persons claiming under them that the improvements are real property. All improvements on the Leased Premises at the expiration of the Lease or sooner termination of the Lease shall, without compensation to Tenant then become Lessor's property, provided that Lessor shall have the right to require Tenant to demolish and remove the Facilities at Tenant' s expense, in accordance with all applicable laws, codes and the like. Tenant shall repair, regrade, and fill any holes, damage or the like resulting from such removal or demolition. 19 . TENANT'S EQUIPMENT AND PERSONAL PROPERTY. Tenant at its cost and expense, may provide certain moveable fixtures and/or equipment necessary for Tenant's use and occupancy of the Leased Premises as a little league baseball facility. Such movable fixtures and/or equipment, and replacements thereof or additions thereto, and other movable personal property put in at the expense of Tenant, shall be and remain the property of Tenant, and shall be removed by Tenant at termination of this Lease. Tenant shall repair, regrade and fill any damage, holes or the like resulting from such removal. • -6- 20 . EMINENT DOMAIN. A. Definitions. The following definitions apply in construing provisions of this Lease relating to a taking of or damage to all or any part of the premises or improvements or any interest in them by eminent domain or inverse condemnation: 1. Taking means the taking or damaging, including severance damage, by eminent domain or by inverse condemnation or for any public or quasi-public use under any statute. The transfer of title may be either a transfer resulting from the recording of a final order in condemnation or a voluntary transfer or conveyance to the condemning agency or entity under threat of condemnation, in avoidance of an exercise of eminent domain, or while condemnation proceedings are pending. The taking shall be considered to take place as of the later of (i) the date actual physical possession is taken by the condemnor or (in) the date on which the right to compensation and damages accrues under the law applicable to the premises and the improvements on the premises. 2 . Total taking means the taking of the fee title to all the premises and the improvements on the premises, which shall be considered to include any off-site improvements effected by Tenant to serve the premises or the improvements on the premises. 3 . Substantial taking means the taking of so much of the premises or improvements or both that the use of the Leased Premises by Tenant would be substantially prevented or impaired notwithstanding a reasonable amount of reconstruction. 4. Partial taking means any taking of the fee title that is not either a total or a substantial taking. B. Total Taking. 1. On a total taking, Tenant's interest in the Leasehold shall continue until the date Tenant is deprived of possession ( "Possession Date") . 2 . If the taking is substantial under the definition appearing above, either Lessor or Tenant may, by written notice to the other party given within thirty (30) days after either party has been deprived of possession, elect to treat the taking as a total taking. If neither Lessor nor Tenant so notifies the other party, the taking shall be deemed a partial taking. -7- 3 . Subject to the rights of any mortgagee on a total taking or substantial taking, all sums, including damages and interest, awarded for the fee or the leasehold or both shall be distributed and disbursed to Lessor, except that Tenant may make a separate claim for the cost of Tenant's Facility and relocation expenses. C. Partial Taking. 1. On a partial taking, this Lease shall remain in full force and effect, covering the remaining property. 2 . In the event of a partial taking, Tenant shall promptly and diligently restore the Facility to its condition immediately prior to such taking within 180 days thereafter. 3 . Subject to the rights of any mortgagee on a partial taking, all sums, including damages and interest, awarded for the fee title or the leasehold or both, shall be distributed and disbursed to Lessor, except that Tenant may make a separate claim for the cost of Tenant' s Facility. 21. ASSIGNMENT AND SUBLETTING. Tenant will not assign, transfer, mortgage or encumber thil Lease or sublet or rent or permit occupancy or use of the Premises or Facility, or any part thereof by any third party; nor shall any assignment or transfer of this Lease, the Facility or the Premises be effectuated by operation of law or otherwise, (any of the foregoing being hereinafter referred to as an "Assignment") without in each such case obtaining the prior written consent of Landlord, which consent shall be subject to Landlord' s sole discretion. The consent by Landlord to any Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) shall not be construed as a waiver or release of Tenant from the terms of any covenant or obligation under this Lease, nor shall the collection or acceptance of rent from any transferee under an Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) constitute an acceptance of the Assignment or a waiver or release of Tenant or any transferee of any covenant or obligation contained in this Lease, nor shall any Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) be construed to relieve Tenant from the requirement of obtaining the consent in writing of Landlord to any further Assignment. 22 . REMEDIES OF LESSOR. 22 .1 Any one of the following events shall be an event of default ("Event of Default") : -8- A. Tenant shall have failed to pay any installment of rent or any other charge provided herein, or any portion thereof when the same shall be due and payable, and the same shall remain unpaid for a period of ten (10) days after written notice from Lessor; or B. Tenant shall have failed to comply with any other provisions of this Lease and shall not cure such failure within thirty (30) days after Lessor, by written notice, has informed Tenant of such noncompliance (in the case of a default other than payment, which cannot, with due diligence, be cured within a period of thirty (30) days, Tenant shall have such additional time to cure same as may reasonably be necessary, provided, Tenant proceeds promptly and with due diligence to cure such default after receipt of said notice, but in no event shall cure not be fully achieved within 90 days after Lessor' s initial notice to Tenant) ; or • C. Tenant shall do or permit to be done anything which creates a lien or encumbrance upon the Leased Premises or Facilities and the same is not removed within sixty (60) days; provided, however, this subparagraph shall be subject to the provisions of paragraph 17. 22 .2 If an Event of Default shall have occurred and be continuing, Lessor may at its sole option by written notice to Tenant terminate this Lease. Neither the passage of time after the occurrence of the Event of Default nor exercise by Lessor of any other remedy with regard to such Event of Default shall limit Lessor's rights under this Section. 22 .3 If an Event of Default shall have occurred and be continuing, whether or not Lessor elects to terminate this Lease, Lessor may enter upon and repossess the Premises and Facility (said repossession being hereinafter referred to as "Repossession") by force, summary proceedings, ejectment or otherwise, and may remove Tenant and all other persons and property therefrom. 22 .4 No termination of this Lease pursuant to Section 22 .2 and no Repossession of the Premises or Facility pursuant to Section 22 .3 or otherwise shall relieve Tenant of its liabilities and obligations under this Lease, all of which shall survive any such termination or Repossession. In the event of any such termination or Repossession, whether or not the Premises or Facility shall have been relet, Tenant shall pay to Lessor the base rent and other sums and charges to be paid by Tenant up to the time of such termination or Repossession, and thereafter Tenant, until the end of what would have been the Term in the absence of such termination or Repossession, shall pay to Lessor, as and for liquidated and agreed current damages for Tenant's default, the equivalent of the amount of the base rent and such other sums and charges which would be payable under this Lease by Tenant if this Lease were still in effect. -9- • 22 .5 In addition to all other remedies of Lessor, Lessor shall be entitled to reimbursement upon demand of all reasonable attorneys fees incurred by Lessor in connection with any Event of Default. 22 .6 Lessor shall in no event be considered to be in default of Lessor' s obligations hereunder until the expiration of a reasonable time after notice of default from Tenant. In the event of default by Lessor of its obligations under this Lease, Tenant shall be entitled to reimbursement of all reasonable attorneys' fees incurred by Tenant in connection with such default. 22 .7 If Tenant commits an Event of Default (or if any default exists and Lessor has good cause for action prior to expiration of Tenant' s grace period) , the Lessor may, but shall not be required to, make such payment or do such act, or correct any damage caused by such prohibited act and to enter the Premises as appropriate in connection therewith, and the amount of the expense thereof, if made or done so by Lessor, with interest thereon at eight percent (8%) per annum from the date paid by Lessor, shall be paid by Tenant to Lessor and shall constitute additional rent hereunder due and payable with the next monthly installment of rent; but the making of such payment or the doing of such act by Lessor shall not operate to cure such default or estop Lessor from the pursuit of any remedy of which Lessor would otherwise be entitled. 22 . 8 Upon the expiration of this Lease or the earlier termination of Tenant' s right to possession, Tenant shall immediately vacate the Premises and Facilities, remove all of its property therefrom, remove any Hazardous Materials installed, used, generated, stored or disposed of by Tenant, and leave the Premises and Facilities in the condition required by this Lease. Any property not removed shall be deemed abandoned, and Tenant shall be liable for all costs of removal. Should the Tenant continue to occupy the Premises and Facilities, or any part thereof, after the expiration or termination of the Term, whether with or without the consent of the Lessor, such tenancy shall be from month to month. If Tenant' s holdover is without the consent of Lessor, neither this Section nor the acceptance of any rent hereunder shall prevent Lessor from exercising any remedy to regain immediate possession of the Premises and Facilities. 23 . RESERVATION OF RIGHTS. Lessor and its agents shall have the right, during the last six (6) months of the term of this Lease or any extension thereof, to place and maintain on the Leased Premises or Facility reasonable signs advertising the availability of the Leased Premises or Facility to prospective tenants . 24 . QUIET ENJOYMENT AND SUBORDINATION. 24.1 Lessor warrants that it has unencumbered fee title to the Leased Premises. Lessor further warrants that it has the -10- right to lease the Leased Premises and that so long as Tenant shall perform each and every term, condition and covenant to be performed and observed by Tenant hereunder, Tenant shall have peaceful and quiet use and possession of the Leased Premises, without hindrance on the part of Lessor, and Lessor shall defend Tenant in such peaceful and quiet use and possession under Lessor. 24 .2 This Lease is subject and subordinate to the lien or priority of any mortgage, bond or other financing or development instrument or agreement (collectively for purposes of this Section, "mortgage") which may now or hereafter encumber the Premises or any development of the lands adjacent to or located within the proximity of the Premises by Lessor. In confirmation of such subordination, Tenant shall, at Lessor's request from time to time, promptly execute any certificate or other document requested by the holder of the mortgage. Tenant agrees that in the event that any proceedings are brought for the foreclosure of any mortgage, Tenant shall immediately and automatically attorn to the purchaser at such foreclosure sale, as the Lessor under this Lease, and Tenant waives the provision of any statute or rule of law, now or hereafter in effect, which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease or the obligations of Tenant hereunder in the event that any such foreclosure proceeding is prosecuted or completed. Neither the holder of the mortgage (whether it acquires title by foreclosure or by deed in lieu thereof) nor any purchaser at foreclosure sale shall be liable for any act or omission of Lessor, subject to any offsets or defenses which Tenant might have against Lessor or bound by any prepayment by Tenant of more than one month' s installment of base rent and additional rent or by any modification of this Lease made subsequent to the granting of the mortgage. Notwithstanding anything to the contrary in this Section, so long as Tenant is not in default under this Lease, this Lease shall remain in full force and effect and the holder of the mortgage and any purchaser at foreclosure sale thereof shall not disturb Tenant' s possession hereunder. 25 . RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be deemed or construed by the parties hereto or by a third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between Lessor and Tenant, it being expressly understood and agreed that neither the method of computation of rent nor any other provisions contained in this Lease nor any act or acts of the parties hereto shall be deemed to create any relationship between Lessor and Tenant other than the relationship of Lessor and Tenant. 26 . SHORT FORM LEASE. Tenant shall not record this Lease or a short-form lease without the written consent of Lessor, which consent shall not be unreasonably withheld or delayed. Any fees required to be paid in order to record such short-form lease -11- shall be paid by the party desiring to record such short-form lease. 27. NOTICES : PAYMENTS. Each provision of this Lease or of any applicable governmental laws, ordinances, regulations and other requirements with reference to the sending, mailing or delivery of any notice or the making of any payment by Tenant to Lessor shall be deemed to be complied with when and if the following steps are taken: A. Any payments required to be made by Tenant to Lessor hereunder shall be payable to Lessor at the address hereinbelow set forth, or at such other address as Lessor may specify from time to time by written notice delivered in accordance herewith. B. All payments, if any, required to be made by Lessor to Tenant hereunder shall be payable to Tenant at the address hereinbelow set forth, or at such other address as Tenant may specify from time to time by written notice delivered in accordance herewith. C. Any notice or document required or permitted to be given or delivered hereunder shall be in writing, and shall be deemed to be given or delivered when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the respective parties hereto at the respective addresses hereinbelow set forth, or at such other addresses as they have theretofore specified by written notice in accordance herewith: 1. If to Lessor: Independent School District No. 278 Administrative Offices 685 Old Crystal Bay Road North Long Lake, MN 55356 Attention: Superintendent 2 . If to Tenant: City of Orono P.O. Box 66 Crystal Bay, MN 55323 and shall be deemed to be received, whether actually received or not, two (2) days after deposit as aforesaid in the United States mail. 28 . INVALIDITY. If any part of this Lease or any part of any provision hereof shall be adjudicated to be void or invalid, then the remaining provisions hereof not specifically so adjudicated to be invalid shall be executed without reference to the part or portion so adjudicated, insofar as such remaining provisions are capable of execution. 29 . GOVERNING LAW. This Lease shall be subject to and governed by the laws of the State of Minnesota, and all questions concerning the meaning and intention of the terms of this Lease -12- and concerning the validity hereof and questions relating to performance hereunder shall be adjudged and resolved in accordance with the laws of that state, notwithstanding the fact that one or more of the parties now is or may hereafter become a resident of a different state. 30 . HEADINGS. The headings of the paragraphs and subparagraphs of this Lease are for convenience of reference only and do not form a part hereof and shall not be interpreted or construed to modify, limit or amplify such paragraphs and subparagraphs. 31. PARTIES IN INTEREST. This Lease shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of Lessor; and shall inure to the benefit of, and be binding upon the successors and assigns of Tenant. 32 . COOPERATION IN DEVELOPMENT BY LESSOR; RELOCATION. Tenant acknowledges that Lessor may, at its election and without obligation, develop the properties adjacent or located within the proximity of the Premises. Tenant shall use its best efforts to cooperate reasonably with Lessor in connection with any such development from time to time during the term of this Lease. Tenant, however, shall not be obligated to incur any actual out- of-pocket costs, but shall not be entitled to any reimbursement for staff or other employees of Tenant. Lessor shall also have the right to relocate the Premises and Facility to land adjacent to or located within the vicinity of the Premises, provided that Lessor shall provide no less than 120 days prior written notice to Tenant and such relocation shall not be at the expense of Tenant. In the event of such relocation, Lessor shall also reconstruct the Facilities on the relocated Premises, at Lessor' s expense. 33 . NO SIGNS . Tenant shall not place or permit to be placed any sign on the Premises or Facility without first obtaining Lessor' s prior written approval, which shall be at Lessor' s sole discretion. 34 . EARLY TERMINATION. Provided that Lessor is not in default and there is no event which with the passage of time may constitute a default by Tenant under this Lease, Tenant shall have the right to terminate this Lease by providing to Lessor thirty (30) days of prior written notice of termination in the event that the Facility Lease is terminated. Notwithstanding such termination, Tenant shall not be released from any liability or obligation of Tenant under this Lease. • -13- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement of Lease effective as of the date and year first above written. LESSOR: INDEPENDENT SCHOOL DISTRICT NO. 278 By Its And By Its TENANT: CITY OF ORONO By / Its lgr And By i A z Its i Os-- MRR09733.WP5 • -14- • . is 7; 2,10 It_Z 67 .1 7 O, 6,\-\, _ N6 5 e37 •0 i 6 acr[f - , — — 603.82 — . - - AC%4 83 \'�\ ` `�.. ---- \, ti 1.30:39 1 1 '\ \ . % '•,':1\- \ 1 �'.\ 1.. \ . .�\ ` \,,` ' I - .`�. `'. •`� ' , o. . . `\. \ '1 YE- -- t • ,��`,� 'RO'P.o7E0 /ARCEL •.,-.. , I �„�N ` `\'E ED` BY O/r'ONo. Bill SEB ' h \ ao S \ St I th ` et ` • . A ^ j:" • It \ 1 2> i t^ hgat. i w li • 1 • ,�• . •O II ° I .• .�1 I,N8fa37:4/ V3 it :IIt4z4 ••• e A p .1 • 1 TZ. Nt. II I I c I II 1O —'1r I vx.1 N I dfi/:!y Eartfre, re I I I II ` II 11 — — i_ 1 — — — —d*C0c O0— — — — — — — _1!...,-_4_ - - - - `Lo.57 - - - - - -'^,..! I' A,090.77 Id, /180.$7 purcor A Legal Description of Proposed Leased Parcel • •Tha:t part of .Lot 1 , Block 1 , :ORONO SCHOOL EXPANSION , which lies northerly of the following described-' line ... Beginning at the- intersection' bf 'the west ' line of: 'sa i--d Lot 1 with the north line of -the_ south, 4'30 feet -of . sa id ' Lot 1 ; thence an -am assumed bearing 'o.f South 89 degrees 39 minutes- East- :a OiTg said : north= 'line 'o.f-'-tIle ' so'uth -•-4.30 feet a distance of 274 feet ; thence North 41 degrees East a distance of 152 feet ; thence South 32 degrees East to the north line of the south 253 feet of said Lot 1 ; thence South 89 degrees 39 minutes East along said north line of the south 253 feet to the east • line of said Lot 1 , and said line there ending ; ALSO , that part of the West 140 feet of Lot 2 , said Block 1 , which lies north of the south 253 feet of said Lot 2 . ADDENDUM TO GROUND LEASE AND SUBLEASE THIS ADDENDUM TO GROUND LEASE AND SUBLEASE is made effective as of , 1994, by and among the Independent School District #278 ("District"), and City of Orono ("City"), and Orono Baseball Association, ("OBA"). District and city are parties to that certain Ground Lease (the Ground Sub eaGround Lease") e( the "Ground of April 15, 1994, and City and OBA are parties to that certain Sublease") dated as of April 15, 1994 (all capitalized terms utilized herein shall have the meanings ascribed to them in the Ground Lease, unless otherwise defined herein). The parties desire to amend the Ground Lease and the Ground Sublease in order to provide for certain site work to be conducted bythe OBA in connection with the extension of the driveway shown on "OBA Approved Plans (the Driveway") to the land adjoining the Leased Premises owned by the District (such extension of the OBA Driveway being referred to herein as the "Driveway Extension") and to provide for the maintenance of the Driveway extension. 1. OBA shall be responsible for site work required to enable the construction of a driveway along the north edge of the northerly most ball field at proper grade and with proper slopes. The site work shall include the construction of a retaining wall of approximately 100 feet in length, grading required for the construction of the retaining wall, and the installation of a culvert to handle the stormwater drainage that would have been carried by a ditch on the south side of the driveway but which was eliminated due to the need for a retaining wall. The site work shall be subject to customary City approvals of plans and specifications. District shall be responsible for the construction of the actual Driveway Extension. The Driveway Extension shall extend from the northern end of the parking lot shown on the Approved Plans and shall travel around the north edge of the northern most ball field, between said field and County Road 6. OBA and District acknowledge that City is not responsible for any costs associated with the Site Work or the construction of the Driveway Disa t rvewaylhave ext extension, tnhe right of ingress and egress and from the OBA driveway, retaining wall, and drainage culvert. 2. The Site Work shall be conducted at such time as OBA in its discretion commences such construction or at such earlier date as District notified OBA in writing prior to January 1 of any year that the Driveway Extension required, n which case BA the date l cause the construction of the site work to be c p prior to June 30, of the year following notice is received. 3. OBA shall maintain the OBA driveway at all times, except that the District shall be responsible for snow plowing to enable use of the driveway after the regular baseball season and for any additional maintenance required by reason of the District's use of the OBA driveway, if any. After initial construction of the Site Work and the Driveway Extension, District shall at all times provide maintenance e. 4. The Site Work and the Driveway Extension shall be permanent and need not be removed at the expiration of the Lease Term. • 5. City retains the right to cancel the Sublease in the event OBA fails to comply with anyprovision contained herein. If the OBA fails to comply with any provision contained herein, the School District may request the Sublease be cancelled, and the City upon such request shall cancel the Sublease. Upon written notice of the noncompliance, the OBA shall have 30 days within which to comply. 6. OBA shall indemnify and hold the City harmless from and against any and all liability that may arise as a result of the Site Work. The District shall indemnify and hold the City harmless from and against any and all liability that may arise as a result of the construction or use of the driveway extension. 7. The phrase "little league" is hereby deleted wherever it occurs in the Ground Lease or the Ground Sublease, and the phrase "organized youth" is inserted instead. Except as otherwise herein expressly provided, all terms and conditions of the Ground Lease and Sublease shall remain in full force and effect. This addendum shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, subject to limitations against assignment and sublease set forth in the Ground Lease and Sublease. IN WITNESS WHEREOF, the parties have made and executed this Addendum to Ground Lease and Sublease effective as of the date first above written. INDEPENDENT SCHOOL DISTRICT #278 By I a �- CITY OF ORONO B , o(/ '42,—,Q Its ORONO BAS : : A v CIATION I By Iil 't Li, Its •_ti .ram .- • / 03 0 a(d Cysi t ,e01 Rd Ak-p/Pli 4/24/03 SECOND ADDENDUM TO GROUND LEASE AND SUBLEASE THIS S OND AD] ENDUM TO GROUND LEASE AND SUBLEASE is made effective as of ut U LJ , 2003, by and among the Independent School District#278 (` istrict"), and City of Orono (City"), and Orono Baseball Association, ("OBA"). District and City are parties to that certain Ground Lease (the "Ground Lease") dated as of April 15, 1994. City and OBA are parties to that certain Ground Sublease (the "Ground Sublease") dated as of April 15, 1994. District, City and OBA are parties to an Addendum to Ground Lease and Sublease effective as of April 15, 1994 (the "First Addendum"). All capitalized terms utilized herein shall have the meanings ascribed to them in the Ground Lease, unless otherwise specified herein. The parties desire to amend the Ground Lease and the Ground Sublease in order to provide for expansion of the Leased Premises to the east and for construction and operation of new facilities by the OBA in connection with the expansion (the "Expansion Project"). 1. The parties hereto agree that the Ground Lease and the Sublease shall be amended to include the area subject to the Expansion Project which area shall be referred to as the Expanded Lease Parcel. The legal description for the Expanded Lease Parcel is attached hereto as Exhibit A. 2. OBA shall be responsible for all site work("Site Work") required to enable the construction of the Expansion Project. A preliminary site plan of the Expansion Project is attached hereto as Exhibit B. 3. The Site Work shall be governed by Section 3 of the Ground Lease which is restated in its entirety for purposes of the Expansion Project as set forth below: "3. Facility Constructed. Subject to District's prior written approval of plans, specifications and drawings ("Approved Plans"), OBA shall cause at its expense the construction on the real estate described on Exhibit A to the Second Addendum to Ground Lease and Sublease (referred to herein as the "Expanded Lease Parcel") of organized youth baseball fields, which may include playing fields, dugouts, storage facilities, fencing, landscaping and other appurtenances necessary to operate similar organized youth baseball fields in the suburban Twin Cities area in material compliance with the Approved Plans (as the facilities may exist from time to time, the "New Facilities"). OBA represents that it shall obtain all building permits or other • . • approvals, consents or permits necessary to construct and operate the New Facilities, and that the New Facilities and the use thereof shall comply with all building and zoning codes, and federal, state and local laws. OBA has kept and shall keep the Expanded Lease Parcel free and clear of all mechanic's liens. OBA shall not commence any construction nor permit any act to give rise to potential claims of mechanic's liens or the like unless and until (a) OBA shall have furnished to District evidence considered to be reasonable by District to establish that OBA has sufficient available and separate funds for timely completion of the Expansion Project, (b) District has agreed in writing upon the Approved Plans, and(c) OBA has obtained all building permits and other approvals, consents and permits necessary to construct and operate the Expansion Project in compliance with all building and zoning codes, and any other applicable federal, state or local law. If the conditions outlined in this Section 3 shall not have been completely fulfilled in District's reasonable opinion on or prior to May 1, 2004, then District or OBA shall have the right to terminate this lease as it relates solely to the Expanded Lease Parcel effective upon the 10th day after providing written notice of termination to OBA or District provided that nothing herein shall release or diminish OBA's obligation to keep the Expanded Lease Parcel free and clear of all mechanic's liens, encumbrances and the like, which obligation of OBA shall survive termination or expiration of this Lease. OBA shall commence construction of the New Facilities within 30 business days after all of the terms and conditions of this Section 3 have been fulfilled and approved by District, and OBA shall complete the New Facilities in a first-class good and workmanlike manner, free and clear of all mechanics and other liens and encumbrances, on or prior to October 1, 2004." 4. OBA accepts the Expanded Lease Parcel in an"AS IS" condition in accordance with the provisions of Article 5 of the Ground Lease. 5. The Site Work shall be permanent and need not be removed at the expiration of the Lease Term. 6. In consideration of the work to be performed by OBA on the Expansion Project, if the New Facilities are completed in a timely manner as set forth in paragraph 3 above, the Term of the Ground Lease and the Ground Sublease will be extended until March 15, 2024; provided, however, that at any time after March 15, 2013 the District may, at its sole option, upon twelve months prior written notice terminate the Ground Lease with respect to either or both of the Leased Premises subject to the Ground Lease and the Expanded Lease Parcel if the District plans to use such property for District purposes.. 7. OBA shall indemnify and hold the City and District harmless from and against any and all liability that may arise as a result of the Site Work. -2- 8. The District, as declarant, as a part of the Expansion Project will enter into a Declaration for the benefit of the Minnehaha Creek Watershed District. OBA agrees to abide by the terms of, perform the duties undertaken by and indemnify, defend and hold harmless District from all of District's undertakings and agreements in such Declaration. Except as otherwise herein expressly provided, all terms and conditions of the Ground Lease, Sublease and First Addendum shall remain in full force and effect. This addendum shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, subject to limitations against assignment and sublease set forth in the Ground Lease and Sublease. IN WITNESS WHEREOF, the parties have made and executed this Second Addendum to Ground Lease and Sublease effective as of the date first above written. INDEPENDENT SCHOOL DISTRICT#278 By Its CITY OF ORONO By Its /1/l G,y 0 ORONO BASEBALL ASSOCIATION By Its /+^esr ,et�ct—" M 1:978901.02 -3- , .JAN-22-1997 13: 15 ORONO ISD U278 w 1 4a �� F'.L11.'[h5 To From 9 tornpany compony Location Location r)(41:11.[merge Fax!) 7t31ephona tt .. Fax# Telephone Comments Dildo! DisposRion: De:Ray ❑Return Call tar pickup .,... ,. GROUND SUBLEASE THIS GROUND SUBLEASE made as of this 15th day of April, 1994 by and between the City of Orono, a Minnesota municipal corporation ("Sublessor") and Orono Baseball/Softball Association, a Minnesota nonprofit corporation ("Subtenant"). WITNESSETH: WHEREAS, Sublessor is the Tenant under that certain Ground Lease dated as of April , 1994 between Independent School restrict No. 278, a Minnesota independent school district and political subdivision under the laws of Minnesota ("Lessor") as Lessor and Sublessor, a copy of which is attached hereto as Exhibit "A" (the "Ground Lease"); and WHEREAS, pursuant to the Ground Lease Lessor has leased to Sublessor that certain real property located in the City of Orono, Hennepin County, Minnesota as described in the Ground Lease (the "Leased Premises"); and WHEREAS, Sublessor desires to sublet to Subtenant, and Subtenant desires to accept from Sublessor the Leased Premises in accordance with the provisions thereof. NOW, THEREFORE, in consideration of the premises the parties hereto agree as follows: i. Sublease of Leased Premises. Sublessor hereby leases to Subtenant and Subtenant hereby accepts from Sublessor the Leased Premises in accordance with the provisions hereof. 2. Lease Term. The term of this Lease shall commence on the date hereof and, unless earlier terminated as provided herein, shall terminate on March 15, 2014. 3. Rent3L1. In consideration of the Leased Premises, Subtenant shall pay to Sublessor the rent set forth in Section 4 of the Ground Lease. 4. Obligations d Rights Ung Ground Lem This Sublease is subject to the provisions of the Ground Lease which, except to the extent modified by this Sublease, are hereby incorporated herein to the effect that Sublessor hereunder shall have all rights and remedies of the Lessor under the Ground Lease. and Subtenant hereunder shall have all rights, remedies and obligations of the Tenant under the Ground Lease, provided, however, that the obligations of Sublessor hereunder shall be subject to the performance of the obligations of Lessor under the Sublease. Subtenant hereunder hereby assumes all obligations of the Tenant under the Ground Lease and agrees to indemnify and hold Sublessor hereunder and the Lessor under the Ground Lease harmless from and against any loss or liability that may arise as a result of any failure by Subtenant to perform such obligations. Subtenant agrees that the provisions for the benefit of the Lessor under the Ground Lease shall also apply in this Ground Sublease for the benefit of the Lessor of the Ground Lease. This Ground Sublease if 44422038!43 422194 .J141-22-1997 1 17 oFONO ISD 142 612 449 ='99 P.02: t05 not sooner terminated, shall terminate with the expiration or earlier termination of the Ground Lease for any reason. 5. Covenants of Subtenant. In addition to its obligation to comply with the requirements of the Ground Lease, Subtenant specifically covenants and agrees as follows: (a) No artificial lighting shall be installed or operated at the Leased Premises except a security light on the concession stand; (b) No loud speakers shall be used at the Leased Premises; (c). No advertising shall be displayed at the Leased Premises; (d) The schedule of the Subtenant's use of the ballfields operated at the Leased Premises shall be posted at such ball fields; and (e) The use of the ballfield at Bederwood Park by the Subtenant shall be limited to two (2) nights per week. 6. Notices. Any notice or document required or permitted to be given or delivered hereunder shall be in writing and shall be deemed to be given or delivered when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested. addressed to the respective parties hereto at their respective addresses herein below set forth, or such other addresses as they may have heretofore specified by written notice in accordance herewith: If to Sublessor: City of Orono P.O. Box 66 Crystal Bay, Minnesota 55323 If to Subtenant: Orono Baseball/Softball Association P.O. Box 503 Long Lake, Minnesota 55356 7. Default; Remedies. In addition to the Events of Default set forth in the Ground Lease, which provisions are incorporated herein, it shall constitute an Event of Default hereunder if Subtenant shall fail to (i) operate the Leased Premises and conduct the little league baseball program in accordance with the standards of comparable little league baseball facilities and programs in the Minneapolis/St. Paul Metropolitan Area, as determined by Sublessor, (ii) maintain the Leased Premises in a safe, clean and attractive condition, (iii) cease to exist or become inactive, or (iv) comply with the provisions of Section 5 above, and, in any such case, shall not cure such failure within the time period allowed under Section 22.B. of the Ground Lease. Upon any such Event of Default, Sublessor shall have the remedies set forth in Section 22 of the Ground Lease. 8. Insurance. It is expressly agreed that Subtenant shall be responsible for obtaining the insurance required under Section 13 of the Ground Lease, provided that both 444/22038143 5119/94 -2- •TAN-22-1997 13: 17 °RON° ISD 14278 612 _+ 8799 Sublessor and Lessor shall be named as additional insureds under Section 13.B., and provided further that both Sublessor and Lessor receive the notice required under Section 13.D. 9. AdQwle Sem Sublessor and Subtenant hereby agree to the terms set forth in the Consent to the Ground Sublease attached hereto. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date and year first above written. SUBLESSOR: CITY OF ORONO B L / G = Y Its _ ^� And By4s4 Its (l /<>✓/ i SUBTENANT: ORONO BASEB . L/SO ; LL ASSOCIATION of, B _ . Y CO Its ,[ r. /RIM 444,22038143 422194 -3- ,JAN-22-1'997 17:17 1 ORONO I RD 1:12 1312 44'9 3799 F..n4: 05 CONSENT TO GROUND SUBLEASE The undersigned executes this Consent solely for the purpose providing the written consent required under Article 21 of the Ground Lease. All rights. terms and conditions of the Ground Lease, including without limitation, Article 21, remain unchanged, are hereby affirmed, and shall be prior and paramount to this Ground Sublease. INDEPENDENT SCHOOL DISTRICT NO. 278 By Its And By A rte,SA /`iA. mak_ Its iniffik 4 . ; t" • 444/22038143 4!22194 -4- ,JAN-22-1997 17: 17 1 ORON I I sr: 147-7R 612 449 8]:99 P.n5; ni; ADDENDUM TO GROUND LEASE AND SUBLEASE THIS ADDENDUM TO GROUND LEASE AND SUBLEASE is made effective as of _ , 1994, by and among the Independent School District #278 ("District"), and City of Orono ("City"), and Orono Baseball Association, ("OBA"). District and city are parties to that certain Ground Lease (the "Ground Lease") dated as of April 15, 1994, and City and OBA are parties to that certain Ground Sublease (the "Ground Sublease") dated as of April 15, 1994 (all capitalized terms utilized herein shall have the meanings ascribed to them in the Ground Lease, unless otherwise defined herein). The parties desire to amend the Ground Lease and the Ground Sublease in order to provide for certain site work to be conducted by the OBA in connection with the extension of the driveway shown on the Approved Plans (the "OBA Driveway") to the land adjoining the Leased Premises owned by the District (such extension of the OBA Driveway being referred to herein as the "Driveway Extension") and to provide for the maintenance of the Driveway extension. 1. OBA shall be responsible for site work required to enable the construction of a driveway along the north edge of the northerly most ball field at proper grade and with proper slopes. The site work shall include the construction of a retaining wall of approximately 100 feet in length, grading required for the construction of the retaining wall, and the installation of a culvert to handle the stormwater drainage that would have been carried by a ditch on the south side of the driveway but which was eliminated due to the need for a retaining wall. The site work shall be subject to customary City approvals of plans and specifications. District shall he responsible for the construction of the actual Driveway Extension. The Driveway Extension shall extend from the northern end of the parking lot shown on the Approved Plans and shall travel around the north edge of the northern most ball field, between said field and County Road 6. OBA and District acknowledge that City is not responsible for any costs associated with the Site Work or the construction of the Driveway Extension. The District shall have the nonexclusive right of ingress and egress to and from the OBA driveway, driveway extension, retaining wall, and drainage culvert. ? The Site Work shall be conducted at such time as OBA in its discretion commences such construction or at such earlier date as District notified OBA in writing prior to January 1 of any year that the Driveway Extension is required, in which case OBA shall cause the construction of the site work to be completed prior to June 30, of the year following the date notice is received. 3. OBA shall maintain the OBA driveway at all times, except that the District shall be responsible for snow plowing to enable use of the driveway after the regular baseball season and for any additional maintenance required by reason of the District's use of the OBA driveway, if any. After initial construction of the Site Work and the Driveway Extension, District shall at all times provide maintenance therefore. 4. The Site Work and the Driveway Extension shall be permanent and need not be removed at the expiration of the Lease Term. ,JAN- 19'+i 17:11_ ORONO I I 'I I I I I'..L. #7)7;= _I 612 419 89'+ F'.�_�R,:/01; 5_ City retains the right to cancel the Sublease in the event OBA fails to comply with any provision contained herein. If the OBA fails to comply with any provision contained herein, the School District may request the Sublease be cancelled, and the City upon such request shall cancel the Sublease. Upon written notice of the noncompliance, the OBA shall have 30 days within which to comply. 6. OBA shall indemnify and hold the City harmless from and against any and all liability that may arise as a result of the Site Work. The District shall indemnify and hold the City harmless from and against any and all liability that may arise as a result of the construction or use of the driveway extension. 7. The phrase "little league" is hereby deleted wherever it occurs in the Ground Lease or the Ground Sublease, and the phrase "organized youth" is inserted instead. Except as otherwise herein expressly provided, all terms and conditions of the Ground Lease and Sublease shall remain in full force and effect. This addendum shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, subject to limitations against assignment and sublease set forth in the Ground Lease and Sublease. IN WITNESS WHEREOF, the parties have made and executed this Addendum to Ground Lease and Sublease effective as of the date first above written. INDEPENDENT SCHOOL DISTRICT #278 By AQ6pQ� CITY OF ORONO By � . . � `.Jr Its ORONO BASEB CI •N By_ C244Its TOTHL Jfihd- -1' ' 1' 19 OROt10 ISD #:DTP ,1= 44' 8:99 F'.m.:'1 7 GROUND LEASE THIS AGREEMENT OF LEASE, made effective as of the 15th day of April, 1994 , by and between Independent School District No. 278 , a Minnesota independent school district and political subdivision under the laws of Minnesota ( "Lessor" ) and City of Orono, a Minnesota municipal corporation ( "Tenant" ) . WITNESSETH: Lessor, for and in consideration of the rent, covenants and t and performed agreements hereinafter set forth to be paid, kept by Tenant , hereby demises and leases unto Tenant and Tenant hereby does hire and rent from Lessor, the premises hereinafter described, for the period, at the rental and upon the terms and conditions hereinafter set forth- IT Is AGREED: 1 . THE LEASED PREMISES . Lessor leases to Tenant and Tenant rents of and from Lessor that certain parcel of land located in the City of Orono in Hennepin County, Minnesota, and cross-hatched on Exhibit A attached hereto and made a part hereof, together with all necessary easements and rights of access necessary to permit ingress or egress from a public right- of-way (all of the foregoing collectively referred to as the "Premises" or "Leased Premises" ) , subject to the terms and conditions of this Lease. 2 . TE • TERMINAT`ION RI HT. 2 . 1 The term of this Lease shall be for a period of nineteen (19 ) years and eleven (11) months, commencing on April 15 , 1994, and terminating on March 15 , 2014 . 2 .2 Notwithstanding any provision to the contrary herein, Tenant shall have no right to occupy, enter onto or occupy the Leased Premises, and Lessor or Tenant may terminate this Lease effective on the 10th day after providing written notice of termination to Tenant or Lessor, if on or prior to April 15 , 1994, Tenant shall not have provided to Lessor evidence considered to be reasonable by Lessor to establish that Tenant or the Orono Baseball/Softball Association Association, a Minnesota non-profit corporation ( "Facility Lease Tenant") has sufficient available and separate funds for timely completion of the Facility. 3 . FACILITY CONSTRUCTED. Subject to Landlord' s prior written approval of plans, specifications and drawings ( "Approved Plans") , Tenant shall cause at its expense (or at the expense of the Orono Baseball Association) the construction on the Leased THh•-22-19'+ OPD HO I=,I1 #?TR 61 449 8=99+9 F'. =r='1 Premises of little league baseball fieeds, which d a othinclude playing fields, dugouts, fencing, landscaping r appurtenances necessary to operate similar little league baseball fields in the suburban Twin Cities area in material compliance with the Approved Plans (as the facilities may exist from time to time, the "Facility") . Tenant represents that it shall obtain all building permits or other approvals, consents or permits necessary to construct and operate the Facility, and that the Facility and the use eostateshall andcomply lacalwith laws�11Tenanalhasal�ept zoning codes, and federal and shall keep the Leased Premises free and clear of all mechanic' s liens . Tenant shall not commence any construction nor permit any act to give rise to potential claims of mechanics liens or the like unless and until (a) the financing requirement in Section 2 .2 has been fulfilled, (b) Landlord has agreed in writing upon the Approved Plans, and (c) Tenant has obtained all building permits and other approvals, consents and permits necessary to construct and operate the Facility in compliance with all building and zoning codes, and any other app federal, stat or local law. If the conditions outlined in this Section 3 shall not have been completely f�lfilledend inLLe$sor' s reasonable opinion on or prior to June 1, or Tenant shall have the right to terminate this Lease effective upon the 10th day fteproviding thatwnoth�ngn nhere�noshallmrelease to Tenant or Lessor, provided or diminish Tenant' s ob o d emises d lfallmechanic' s liens,e enceru�rancesnand Facility free and clear the like, which obligation of Tenant shall survive termination or expiration of this Lease. Tenant shall commence construction of the Facility within 30 business days after all of the terms and conditions of this Section 3 have been fulfilled and approved by Lessor, and Tenant shall complete the Facility in a first-class good and workmanlike manner, free and clear of all mechanics and other liens and encumbrances, on or prior to August 31, 1994 . 4 . RENT. As and for payment of all rental due during the term hereof , Tenant will pay One and no/i0oths Dollars ($1 . Q0) 5 . ACCEPT CE OF LEASED PRE ISE . Except for the covenant of quiet enjoyment set forth in Article 24 of this Lease, Tenant accepts the Leased Premises "AS-IS" , and agrees that neither Lessor nor any party for whom Lessor may be responsible has made, is making and shall be deemed not to have made any warranty or representation, express or implied, with respect to any aspect of the Leased Premises, or anything thereon or thereunder, physical or otherwise, including without limitation, any access , soil conditions, zoning, sewer, water, electricity, gas, telephone or the like. Tenant has had opportunity to inspect the Leased Premises and evaluate Tenant' s planned use of the Leased Premises, and accepts all risks relating thereto. 6 . USE 0? P1.EMISEQ,. Tenant is hereby permitted to use and occupy the Leased Premises and the Facility thereon solely for operation of the construction,fields, and�fornnocothee r purpose. Tenant shall leaguele shallnot baseball -2 - JAN-22-1997 17:0 OPoh o I El.' 14778 612 449 _^S9 P.o=17:'17 install, use, generate, store or dispose of in or about the Premises or the Facility any hazardous substance, toxic chemical , pollutant or other material now or hereafter regulated by the Comprehensive Environmental Response, Compensation and Liability Act of 1985 or any other law or regulation, including without limitation, any material containing asbestos or PCB (collectively "Hazardous Materials " ) without Lessor' s written approval of each Hazardous Material . Tenant shall indemnify, defend and hold Lessor harmless from and against any claim, damage or expense arising out of Tenant' s installation, use, generation, storage, release or disposal of any Hazardous Materials, regardless of whether Lessor has approved the activity. 7 . ALLOCATION OF EXPENSES AND LIABILITIES . This Ground Lease allocates to the Tenant the obligation to pay certain expenses, take certain actions and provide certain indemnities and assurances (collectively "Tenant Obligations" ) . It is acknowledged that the Tenant may enter into a facility sublease of the Leased Premises (the "Facility Lease" ) whereby the Facility Lease Tenant will sublease the entire Leased Premises and operate the same as a little league baseball facility, with a concession stand, subject to the terms and conditions of this Lease. Tenant may, but shall not be obligated to, allocate certain Tenant Obligations to the Facility Lease Tenant, but neither such allocation nor the consent to lease to Facility Lease Tenant shall release or diminish Tenant' s obligation under this Lease. Tenant shall cause the Facility Lease Tenant to comply with all terms and conditions of this Lease, including without limitation, naming Lessor as an additional insured and as loss payee with respect to the insurance to be carried in compliance with the requirements in Article 13 . The consent provided hereunder shall not release either Tenant or Facility Lease Tenant from the restriction against other or further transfers, assignments, subleases or the like without Lessor' s additional prior written approval, which approval shall be at Lessor' s sole discretion. Prior to permitting Facility Lease Tenant onto the Premises or Facility, Tenant shall obtain and deliver to Lessor a written assumption by Facility Lease Tenant, of all obligations of Tenant' s obligations hereunder. Tenant' s obligations hereunder shall not be released or diminished by reason of such assumption. Facility Lease Tenant' s entry onto the Leased Premises shall be deemed to be an automatic agreement on its part to perform and observe all of the Tenant' s obligations under this Lease . 8 . REAL ESTATE TAXES AND ASSESSMENTS. Lessor and Tenant acknowledge that the real estate taxes on the Leased Premises are currently exempt from taxation. In the event the Leased Premises and/or Facility shall become taxable in the future, real estate taxes and any installments of special assessments attributed to the Leased Premises and/or Facility shall be paid by Tenant . 9 . LICENSE FEES . Tenant shall pay, as they become due and payable and before they become delinquent, all fees, charges and expenses required for licenses or permits, if any, required for -3- RiN— i9E? 1^:20 ORDIO ISt; 14.272 E12 449 _^EE P.c14;17 Tenant' s use of the Leased Premises and/or Facility, as set forth in paragraph 6 during the term of this Lease or any extension thereof . 10 . UTILITIES . Tenant shall be responsible for obtaining and shall pay, as they become due and payable and before they become delinquent, all charges for electricity, heat, air conditioning, water, gas, fuel, telephone, sewer usage or rental , garbage disposal, refuse removal, telephone and any other utility service furnished to the Leased Premises and/or Facility during the term of this Lease . 11 . REPAIRS AND MAINTENANCE . During the term of this Lease, and any renewals or extensions hereof, Tenant, at Tenant ' s cost and expense, shall keep and maintain in good order, condition and repair the Leased Premises and the Facility, in as good as a condition as similar recreational facilities are kept. 12 . LESSOR' S RIGHT TO INSPECT AND REPAIR. Lessor, or its agents, shall have the right to inspect any part of the Leased Premises and/or Facility at any reasonable time. 13 . TENANT'S INSURANCE. Tenant shall obtain and keep in force, at Tenant' s expense, or shall cause the Facility Lease Tenant to obtain and keep in force, at the Facility Lease Tenant' s expense, for the term of this Lease and any extension or renewal thereof, the following insurance: A. A standard "All Risk" property insurance policy. Said policy shall cover all buildings , fixtures and all other installations and improvements on or about the Leased Premises and/or the Facility, on the basis of one hundred percent (100%) of replacement cost not to exceed full insurable value . Said policy shall name Lessor and all mortgagees of record (the names of which are to be supplied by Lessor) as loss payees . B. Comprehensive general liability insurance, with minimum limits of liability in respect of bodily injury and property damage of at least Six Hundred Thousand and No/100 Dollars ($600, 000 . 00) for each occurrence on a combined single limit basis, naming Lessor as an additional insured. C. Builders Risk, completed value basis, including the value of all furniture fixtures and equipment, and Workers' Compensation in statutory limits , during all periods of construction. D. Each of said policies required pursuant to the provisions of this paragraph shall be issued by an insurance company legally authorized to do business in the State of Minnesota; shall be in form satisfactory to Lessor; and shall provide for at least ten (10) days notice to Lessor before cancellation, termination, non-renewal or change of -4- Ji iN- -i nti7 1 _'AOROHO I st:' #77R 612 44'+ _ �� such renewalsuthereof,ce. Cshallibetes of such delivered too Lessor. and any renewals 14 . WAIVER 4F S_ _ GATN.T Notwithstanding any provision wrongful or other act to the contrary hereunder or the tortious, wron 9 or omission of the other party, Lessor waives its right of subrogation for damage to any buildings, contents therein, and Tenant waives its right of subrogation and releases Lessor and any party for whom Lessor may be responsible from damage to property in the Leased Premises, the Facility or anything now or hereafter thereon or therein. Lessor and Tenant agree to notify their respective insurance companies, in writing, of the 000sshaonotthis negateparagraph, effectivenessiofrtheyreleaseseither psety to ds do so shall forth herein. 15 . DAMAGE BY FIRE OR OTHER AS ALTY. In the event of any damage or destruction to the Leased Premises, Facility or any part thereof, this Lease shall continue in full force and effect, and Tenant shall promptly, to the extent of available insurance proceeds, make and perform all construction and repairs to restore, repair or rebuild the Leased Premises and Facility to the condition it was in prior to said damage or destruction, limited by the extent of insurance proceeds , in a good and workmanlike manner, free of liens and other encumbrances. Tenant shall commence the work of restoration, repair and rebuilding as soon as reasonably possible after the occurrence of any damage or destruction to the Leased Premises, Facility or any part thereof and shall thereafter prosecute such work diligently to completion. If such work shall not be commenced within 60 days after the occurrence of such fire or other casualty, or if Tenant thereafter fails diligently to complete the same, or if Tenant shall fail to complete the same in the manner required hereunder within 180 days after the occurrence of such fire or other casualty, then Lessor shall have the right to terminate this Lease effective upon written notice to Tenant . 16 . ALTERATIONS AND IMPROVEMENT . Tenant shall not make or permit to be made any repairs , alterations and/or improvements in and to the Leased Premises or Facilities without the prior written approval of Lessor, which approval shall not be unreasonably withheld if Tenant fulfills all requirements of Lessorr -to Lectsor' s reasonable satisfaction. 17__ LIENS , WAIVER & INDEMNITIES. 17-,-1 Tenant shall not permit mortgages to be filed against the Leased Premises or Facility. Tenant shall pay timely for labor and material furnished by Tenant in connection with work of any character performed or claimed to have been performed on the Leased Premises or Facility. — Tenant --hall not permit any mechanics' or similar liens to remain upon the Leased Premises or Facility, however, either party may contest the validity of such lien or claims . Upon a final determination of the validity of any such lien or claim, the defending party shall immediately pay -5- JAN-22-1997 17: 7'1 OPOHO I'=;Li ?^,;_; _ E12 44'+ - 9' F'.q=tr: 17 any judgment or decree rendered against Tenant, including, but not limited to, all proper coats and charges, and shall cause such lien to be released of record without costs to the other party. 17 .2 Notwithstanding anything apparently to the contrary in this Lease, Lessor (its board members, administrators, teachers, agents, representatives and any other party for whom Lessor may be responsible) shall not be liable to Tenant, and Tenant hereby releases such parties from all damage, compensation or claims from any cause other than the grossly negligent act of Lessor arising from: loss or damage to personal property or trade fixtures in the Leased Premises or Facilities, including without limitation, baseball equipment, personal and other property; lost business or other consequential damage arising out of interruption in the use of the Premises or Facilities , and any criminal act by any person other than Lessor. 17 .3 Tenant agrees to indemnify, defend and hold Lessor (its board members , administrators, teachers, agents, representatives and any other party for whom Lessor may be responsible) harmless from and against any claim, loss or expense arising out of injury, death or property loss or damage occurring in the Premises or Facilities, except only to the extent caused by the grossly negligent act of Lessor. 17 .4 The provisions of this Section 17 shall survive termination or expiration of the Lease_ 18 . TITLE TO IMPROLEMENTS . All improvements constructed on the Leased Premises by Lessor or Tenant as permitted by this Lease shall be owned by Tenant until expiration of the teLm or sooner termination of this Lease . The parties covenant for themselves and all persons claiming under them that the improvements are real property. A11 improvements on the Leased Premises at the expiration of the Lease or sooner termination of the Lease shall, without compensation to Tenant then become Lessor' s property, provided that Lessor shall have the right to require Tenant to demolish and remove the Facilities at Tenant' s expense, in accordance with all applicable laws , codes and the like. Tenant shall repair, regrade, and fill any holes, damage or the like resulting from such removal or demolition. 19 . TENANT ' S EOUPMENT AND PERSONAL PROPERTY. Tenant at its cost and expense, may provide certain moveable fixtures and/or equipment necessary for Tenant' s use and occupancy of the Leased Premises as a little league baseball facility. Such movable fixtures and/or equipment, and replacements thereof or additions thereto, and other movable personal property put in at the expense of Tenant, shall be and remain the property of Tenant, and shall be removed by Tenant at termination of this Lease. Tenant shall repair, regrade and fill any damage, holes or the like resulting from such removal . -6- JHhd-22-1' ' 7 1 21 opia-lo IS 14-1.272, 61=' 449 =?' �9 F' =i^. 17 20. EMINENT DOMAIN. A. finzs . The followingdefinitions construing provisions of this Laserelating applyain or damage to all or any part of thepremises to a taking of or any interest in them byr iorn improvements condemnation: eminent domain or inverse 1. Taking means the taking severance damage, by eminendomaor in or including condemnation or for any public or by inverse under any statute. The transfer of quasi-public be use a transfer resulting from the recording of ayfiinal1ther order in condemnation or a voluntary conveyance to the condemning agencyor entity under threat of condemnation, in avoidance of an exercise of eminent domain, or while condemnation pending. The taking shall be consideredotoettakes are as of the later of (i) the date actual physical place pon whch ossessione ate iserigkhntcompensation the condemnor or ion and damages haccrues under the law applicable to the premises and the improvements on the premises . 2 . Total takinmeans the taking of the fee title to all the premises- cr'and the on the which shall be considered)to Includes any off premises, improvements effected by Tenant to serve the site or the improvements on the premises . premises 3 . Substantial ki,n the premises or improvementtssorhe bothkinthatof theousecof of the Leased Premises by Tenant would be prevented or impaired notwithstanding asubreas©nablelY amount of reconstruction, 4 . Partial takirzg means any taking of the fee title that is not either a tota substantial taking. P- Total _Taking. z - On a total taking, Tenant's Leasehold shall continueuntilthendate STenianthis deprived of possession ( , possession Date") . 2. If the takin appearin g is substantial under the definition written nvtbceetoetheother er spartyor r Tenant may, by within (30) days after either party has beenedeprived thirtyn Possession, elect to treat the takin as taking- If neither Lessor nor Tenant so notifies the other party, the taking shall be deemed a partial taking. -7- T1241-22-1997 1': ? oPa ISE1 4278 ,] 449 =='+' F. =r_,: 1^. 3 . Subject to the rights of any mortgagee on a total taking or substantial taking, all sums , including damages and interest, awarded for the fee or the leasehold or both shall be distributed and disbursed to Lessor, except that Tenant may make a separate claim for the cost of Tenant' s Facility and relocation expenses . C_ Partial Takin . 1 . On a partial taking, this Lease shall remain in full force and effect, covering the remaining property. 2 . In the event of a partial taking, Tenant shall promptly and diligently restore the Facility to its condition immediately prior to such taking within 180 days thereafter. 3 . Subject to the rights of any mortgagee on a partial taking, all sums, including damages and interest, awarded for the fee title or the leasehold or both, shall be distributed and disbursed to Lessor, except that Tenant may make a separate claim for the cost of Tenant ' s Facility. 21 . ASST NMENT AND SUBLETTING. Tenant will not assign, transfer, mortgage or encumber this Lease or sublet or rent or permit occupancy or use of the Premises or Facility, or any part thereof by any third party; nor shall any assignment or transfer of this Lease, the Facility or the Premises be effectuated by operation of law or otherwise, (any of the foregoing being hereinafter referred to as an "Assignment} ) without in each such case obtaining the prior written consent of Landlord, which consent shall be subject to Landlord's sole discretion. The consent by Landlord to any Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) shall not be construed as a waiver or release of Tenant from the terms of any covenant or obligation under this Lease, nor shall the collection or acceptance of rent from any transferee under an Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) constitute an acceptance of the Assignment or a waiver or release of Tenant or any transferee of any covenant or obligation contained in this Lease, nor shall any Assignment (including without limitation, the consent to the lease of the Facility to the Facility Lease Tenant) be construed to relieve Tenant from the requirement of obtaining the consent in writing of Landlord to any further Assignment . 22 . REMEDIES OF LESSOR. 22 . 1 Any one of the following events shall be an event of default ( "Event of Default" ) : - 8- J fl -22-199? 1 OPD10 ISD 14278 612 449 _399 P.1=9:'17 A. Tenant shall have failed to pay any installment of rent or any other charge provided herein, or any portion thereof when the same shall be due and payable, and the same shall remain unpaid for a period of ten (10) days after written notice from Lessor; or B. Tenant shall have failed to comply with any other provisions of this Lease and shall not cure such failure within thirty (30) days after Lessor, by written notice, has informed Tenant of such noncompliance (in the case of a default other than payment, which cannot, with due diligence, be cured within a period of thirty (30) days, Tenant shall have such additional time to cure same as may reasonably be necessary, provided, Tenant proceeds promptly and with due diligence to cure such default after receipt of said notice, but in no event shall cure not be fully achieved within 90 days after Lessor' s initial notice to Tenant) ; or C. Tenant shall do or permit to be done anything which creates a lien or encumbrance upon the Leased Premises or Facilities and the same is not removed within sixty (60) days; provided, however, this subparagraph shall be subject to the provisions of paragraph 17 . 22 .2 If an Event of Default shall have occurred and be continuing, Lessor may at its sole option by written notice to Tenant terminate this Lease. Neither the passage of time after the occurrence of the Event of Default nor exercise by Lessor of any other remedy with regard to such Event of Default shall limit Lessor' s rights under this Section_ 22 . 3 If an Event of Default shall have occurred and be continuing, whether or not Lessor elects to terminate this Lease, Lessor may enter upon and repossess the Premises and Facility (said repossession being hereinafter referred to as "Repossession" ) by force, summary proceedings, ejectment or otherwise, and may remove Tenant and all other persons and property therefrom. 22 .4 No termination of this Lease pursuant to Section 22 .2 and no Repossession of the Premises or Facility pursuant to Section 22 . 3 or otherwise shall relieve Tenant of its liabilities and obligations under this Lease, all of which shall survive any such termination or Repossession. In the event of any such te.uiination or Repossession, whether or not the Premises or Facility shall have been relet, Tenant shall pay to Lessor the base rent and other sums and charges to be paid by Tenant up to the time of such termination or Repossession, and thereafter Tenant, until the end of what would have been the Term in the absence of such termination or Repossession, shall pay to Lessor, as and for liquidated and agreed current damages for Tenant' s default, the equivalent of the amount of the base rent and such other sums and charges which would be payable under this Lease by Tenant if this Lease were still in effect. -9- JHh1 -1'S' r 17:217. OFID10 IED #2 612 449 299 P. 1 22 . 5 In addition to all other remedies of Lessor, Lessor shall be entitled to reimbursement upon demand of all reasonable attorneys fees incurred by Lessor in connection with any Event of Default . 22 . 6 Lessor shall in no event be considered to be in default of Lessor' s obligations hereunder until the expiration of a reasonable time after notice of default from Tenant . In the event of default by Lessor of its obligations under this Lease, Tenant shall be entitled to reimbursement of all reasonable attorneys' fees incurred by Tenant in connection with such default. 22 . 7 If Tenant commits an Event of Default (or if any default exists and Lessor has good cause for action prior to expiration of Tenant' s grace period) , the Lessor may, but shall not be required to, make such payment or do such act, or correct any damage caused by such prohibited act and to enter the Premises as appropriate in connection therewith, and the amount of the expense thereof , if made or done so by Lessor, with interest thereon at eight percent (8%) per annum from the date paid by Lessor, shall be paid by Tenant to Lessor and shall constitute additional rent hereunder due and payable with the next monthly installment of rent; but the making of such payment or the doing of such act by Lessor shall not operate to cure such default or to estop Lessor from the pursuit of any remedy of which Lessor would otherwise be entitled. 22 . 8 Upon the expiration of this Lease or the earlier termination of Tenant' s right to possession, Tenant shall immediately vacate the Premises and Facilities, remove all of its property therefrom, remove any Hazardous Materials installed, used, generated, stored or disposed of by Tenant, and leave the Premises and Facilities in the condition required by this Lease. Any property not removed shall be deemed abandoned, and Tenant shall be liable for all costs of removal . Should the Tenant continue to occupy the Premises and Facilities, or any part thereof, after the expiration or termination of the Term, whether with or without the consent of the Lessor, such tenancy shall be from month to month. If Tenant' s holdover is without the consent of Lessor, neither this Section nor the acceptance of any rent hereunder shall prevent Lessor from exercising any remedy to regain immediate possession of the Premises and Facilities . 23 . RESERVATION OF RIGHTq. Lessor and its agents shall have the right , during the last six (6) months of the term of this Lease or any extension thereof, to place and maintain on the Leased Premises or Facility reasonable signs advertising the availability of the Leased Premises or Facility to prospective tenants . 24 . QUIET ENJOYMENT AND SUBORDINATION. 24 . 1 Lessor warrants that it has unencumbered fee title to the Leased Premises . Lessor further warrants that it has the -10- J -22-i ? iL:27 L LItI I ISE! 42 612 + _1�� F. il i, right to lease the Leased Premises and that so long as Tenant shall perform each and every term, condition and covenant to be performed and observed by Tenant hereunder, Tenant shall have peaceful and quiet use and possession of the Leased Premises, without hindrance on the part of Lessor, and Lessor shall defend Tenant in such peaceful and quiet use and possession under Lessor. 24 . 2 This Lease is subject and subordinate to the lien or priority of any mortgage, bond or other financing or development instrument or agreement (collectively for purposes of this Section, "mortgage") which may now or hereafter encumber the Premises or any development of the lands adjacent to or located within the proximity of the Premises by Lessor. In confirmation of such subordination, Tenant shall, at Lessor' s request from time to time, promptly execute any certificate or other document requested by the holder of the mortgage. Tenant agrees that in the event that any proceedings are brought for the foreclosure of any mortgage, Tenant shall immediately and automatically attorn to the purchaser at such, foreclosure sale, as the Lessor under this Lease, and Tenant waives the provision of any statute or rule of law, now or hereafter in effect, which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease or the obligations of Tenant hereunder in the event that any such foreclosure proceeding is prosecuted or completed. Neither the holder of the mortgage (whether it acquires title by foreclosure or by deed in lieu thereof) nor any purchaser at foreclosure sale shall be liable for any act or omission of Lessor, subject to any offsets or defenses which Tenant might have against Lessor or bound by any prepayment by Tenant of more than one month' s installment of base rent and additional rent or by any modification of this Lease made subsequent to the granting of the mortgage. Notwithstanding anything to the contrary in this Section, so long as Tenant is not in default under this Lease, this Lease shall remain in full force and effect and the holder of the mortgage and any purchaser at foreclosure sale thereof shall not disturb Tenant' s possession hereunder. 25 . RELATIQNSHIP OF THE PARTIES. Nothing contained in this Lease shall be deemed or construed by the parties hereto or by a third party to create the relationship of principal and agent or of partnership or of joint venture or of any association whatsoever between Lessor and Tenant, it being expressly understood and agreed that neither the method of computation of rent nor any other provisions contained in this Lease nor any act or acts of the parties hereto shall be deemed to create any relationship between Lessor and Tenant other than the relationship of Lessor and Tenant. 26. ggoRT EDRM LASE. Tenant shall not record this Lease or a short-form lease without the written consent of Lessor, which consent shall not be unreasonably withheld or delayed. Any fees required to be paid in order to record such short-form lease -11- JAN- 1997 1 °Fan I=T:' #278r.1? 449 8=99 P. 1'=':'1 shall be paid by the party desiring to record such short-form lease. 27 . NOTICES ; PAYMENTS. Each provision of this Lease or of any applicable governmental laws, ordinances, regulations and other requirements with reference to the sending, mailing or delivery of any notice or the making of any payment by Tenant to Lessor shall be deemed to be complied with when and if the following steps are taken: A. Any payments required to be made by Tenant to Lessor hereunder shall be payable to Lessor at the address hereinbelow set forth, or at such other address as Lessor may specify from time to time by written notice delivered in accordance herewith. B. All payments, if any, required to be made by Lessor to Tenant hereunder shall be payable to Tenant at the address hereinbelow set forth, or at such other address as Tenant may specify from time to time by written notice delivered in accordance herewith. C. Any notice or document required or permitted to be given or delivered hereunder shall be in writing, and shall be deemed to be given or delivered when deposited in the United States mail , postage prepaid, certified or registered mail, return receipt requested, addressed to the respective parties hereto at the respective addresses hereinbelow set forth, or at such other addresses as they have theretofore specified by written notice in accordance herewith: 1. If to Lessor: Independent School District No. 278 Administrative Offices 685 Old Crystal Bay Road North Long Lake, MN 55356 Attention; Superintendent 2 . If to Tenant: City of Orono P.O. Box 66 Crystal Bay, MN 55323 and shall be deemed to be received, whether actually received or not, two (2) days after deposit as aforesaid in the United States mail . 28 . INVALIDITY. If any part of this Lease or any part of any provision hereof shall be adjudicated to be void or invalid, then the remaining provisions hereof not specifically so adjudicated to be invalid shall be executed without reference to the part or portion so adjudicated, insofar as such remaining provisions are capable of execution. 29 . GQVERNING LAW. This Lease shall be subject to and governed by the laws of the State of Minnesota, and all questions concerning the meaning and intention of the terms of this Lease -12 - .1 1- 1997 17:27 ORON0 I st.' #27 s 612 449 899 F. 1= 17 and concerning the validity hereof and questions relating to performance hereunder shall be adjudged and resolved in accordance with the laws of that state, notwithstanding the fact that one or more of the parties now is or may hereafter become a resident of a different state . 30 . HEADINGS . The headings of the paragraphs and subparagraphs of this Lease are for convenience of reference only and do not form a part hereof and shall not be interpreted or construed to modify, limit or amplify such paragraphs and subparagraphs . 31 . EARTIES IN INTEREST. This Lease shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of Lessor; and shall inure to the benefit of, and be binding upon the successors and assigns of Tenant . 32 . COOPERATION IN DEVELOPMENT BY LESSOR; RELOCATION. Tenant acknowledges that Lessor may, at its election and without obligation, develop the properties adjacent or located within the proximity of the Premises . Tenant shall use its best efforts to cooperate reasonably with Lessor in connection with any such development from time to time during the term of this Lease. Tenant , however, shall not be obligated to incur any actual out- of-pocket costs, but shall not be entitled to any reimbursement for staff or other employees of Tenant . Lessor shall also have the right to relocate the Premises and Facility to land adjacent to or located within the vicinity of the Premises, provided that Lessor shall provide no less than 120 days prior written notice to Tenant and such relocation shall not be at the expense of Tenant. In the event of such relocation, Lessor shall also reconstruct the Facilities on the relocated Premises, at Lessor' s expense. 33 . NO SIGNS. Tenant shall not place or permit to be placed any sign on the Premises or Facility without first obtaining Lessor' s prior written approval, which shall be at Lessor' s sole discretion. 34 . EARLY TERMINATION. Provided that Lessor is not in default and there is no event which with the passage of time may constitute a default by Tenant under this Lease, Tenant shall have the right to terminate this Lease by providing to Lessor thirty (30) days of prior written notice of termination in the event that the Facility Lease is terminated. Notwithstanding such termination, Tenant shall not be released from any liability or obligation of Tenant under this Lease. -13- TAH-22-1997 1::24 ORONO IST: #278 61? 44' _ 99 F. 14:'1 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement of Lease effective as of the date and year first above written. LESSOR: INDEPENDENT SCHOOL DISTRICT NO. 278 By Its And By . eCIA4:1;44410-t TENANT: CITY OF ORONO By f .4 1 Its WAr7.77 And By �!' - Its j ' , MRR09733 "WP5 -14- JAN-22-1'397 11-3:24 ORO NO ISI: #2718 612 449 :99 P. 15 17 • La��f! GDuvTY _ - . _ 1 F iz• ‘0,7..17Z Nsf°3'7'4:3'8••• , �,. : I ` R I , I > I -1`` ..\\ t I I `_ 1 1 �' \ >?hopo.rr'P ,. fARCCZ. �.7 • \I I -; _ M I r` ci `:` •\\.;›` e-170' �Y D/ZON.0 ' .8.-q1 Ft71-GL\ h ' '^ 724-,..(c. oa ,, I `, al ).- • /, { I I : I II I ` J ¢ °. r, ° ,, t I II , o II - io .., • .» lPrai„q,E I I I /11i%"fy Ea*tcar,rr� G It a I l �° 11 1' 1 1\-- - - F I - - - -��o�'p- ._ _. .... - - -� --7F�_- - - - 6�P.ST _ _ _ _ _ _ F d!/TL O T X99.97 w /280.S7 - • _ _.•�� �. A Legal Description of Proposed Leased Parcel That part of Lot 1 , Block 1 , ORONO SCHOOL EXPANSION , which lies northerly of the following descr.ib,ed' .line :. Beginning at the . intersection Of the west line of-said Lot 1 with the north line of the south,. 430 feet of said - Lot 1 ; thence . on 'an assumed bearing of South 89 degrees 39 minutes East- ..a-7oh'g said ' north—line of the ' so'uth • 4.30 feet a distance of 274 feet ; thence North 41 degrees East a distance of 152 feet ; thence South 32 degrees East to the north line of the south 253 feet of said Lot 1 ; thence South 89 degrees 39 minutes East along said north line of the south 253 feet to the east line of said Lot 1 , and said line there ending ; ALSO , that part of the West 140 feet of Lot 2 , said Block 1 , which lies north of the south 253 feet of said Lot 2 . IA[1- -1' ' 1': 4 oporii i ISt:' E,12 449 3:99 P. '11 ,:'1 • ADDENDUM TO GROUND LEASE AND SUBLEASE THIS ADDENDUM TO GROUND LEASE AND SUBLEASE is made effective as of _ 1994, by and among the Independent School District #278 ("District"), and City of Orono ("City"), and Orono Baseball Association, ("OBA"). District and city are parties to that certain Ground Lease (the "Ground Lease") dated as of April 15, 1994, and City and OBA are parties to that certain Ground ed Sheublease shall "Groundhav(the SSublease") dated as of April 15, 1994 (all capitalized terms he meanings ascribed to them in the Ground Lease, unless otherwise defined herein). The parties desire to amend the Ground Lease and the Ground Sublease in order of the drivewayidefor certain shown on site work to be conducted by the OBA in connection with theextensionthe Leased Premises owned by the Approved Plans (the "OBA Driveway") to the land adjoining the District (such extension of the OBA Driveway being referred to herein as the "Driveway Extension") and to provide for the maintenance of the Driveway extension. 1. OBA shall be responsible for site work required to enable the construction of a driveway along the north edge of the northerly most ball field at proper grade and with proper slopes. The site work shall include the construction �fof e retaining wall,retaining and the inof stallation approximately °n�a feet in length, grading required for the construct a culvert to handle the stormwater drainage that would have been carried by a ditch on the south side of the driveway but which was eliminated due to the need for a retaining wall. The site work shall be subject to customary City approvals of plans and specifications. District shall be responsible for the construction of the actual Driveway Extension. The Driveway Extension shall extend from the northern end of the parking lot shown on the Approved Plans and shall travel around the north edge of the northern most ball field, ian:able or any costsen said l assn fated withand County tad he 6. OBA, and District acknowledge that City is notp Site Work or the construction of the Driveway The is arivewayl ict shall ext n.5ion have the nonexclusive right of ingress and egress and from the OBA driveway, retaining wall, and drainage culvert. The Site Work shall be conducted at such time as OBA in its disTTe tion commences such construction or at such earlier date as District notified OBA in writing prior to January 1 of any year that the Driveway Extension is required, in which case OBA shall cause the construction of the site work to be completed prior to June 30, of the year following the date notice is received. 3. OBA shall maintain the OBA driveway at all times, except that the District shall be responsible for snow plowing to enableruse oth Ieasonway after the of the District's regular usebaseball o the OBA and for any additional maintenance q by driveway, if any• After initial construction of the Site Work and the Driveway Extension, District shall at all times provide maintenance therefore. 4. The Site Work and the Driveway Extension shall be permanent and need not be removed at the expiration of the Lease Term. .J H-22-1997 1 : ORONO ISD #278r,1 449 G=99 P. 17- 17. 5. City retains the right to cancel the Sublease in the event OBA fails to comply with any provision contained herein. If the OBA fails to comply with any provision contained herein, the School District may request the Sublease be cancelled, and the City upon such request shall cancel the Sublease. Upon written notice of the noncompliance, the OBA shall have 30 days within which to comply. 6. OBA shall indemnify and hold the City harmless from and against any and all liability that nay arise as a result of the Site Work. The District shall indemnify and hold the City harmless from and against any and all liability that may arise as a result of the construction or use of the driveway extension. 7. The phrase "little league" is hereby deleted wherever it occurs in the Ground Lease or the Ground Sublease, and the phrase "organized youth" is inserted instead. Except as otherwise herein expressly provided, all terms and conditions of the Ground Lease and Sublease shall remain in full force and effect. This addendum shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, subject to limitations against assignment and sublease set forth in the Ground Lease and Sublease. IN WITNESS WHEREOF, the parties have made and executed this Addendum to Ground Lease and Sublease effective as of the date first above written. INDEPENDENT SCHOOL DISTRICT #278 BY A_, . A. .r e is r, ,._;� ' • CITY OF ORONO By Its yI J ORONO BASE;ALL o OCIATION B TOTAL P. 17