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HomeMy WebLinkAboutID# 15-851 AP Construction Agreement Diamond Stadium HVAC Project (CIP Project RDA Z20003)CI-Y or LAKE C9?LS1Ti01ZE DREAM EXrREMEM REPORT TO SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE TO: HONORABLE CHAIRMAN AND MEMBERS OF THE SUCCESSOR AGENCY FROM: GRANT M. YATES, EXECUTIVE DIRECTOR DATE: DECEMBER 8, 2015 SUBJECT: Z20003) Recommendations Award a Public Works' Construction Agreement to AP Construction Group Inc. for the Diamond Stadium HVAC Project (CIP Project RDA Z20003). 2. Approve and authorize the Executive Director to execute the Agreement in the not to exceed amount of $1,239,000.00 with AP Construction Group Inc. in the form attached and in such final form as approved by the Agency Counsel. Background HVAC bid documents were prepared and the project was advertised for bids in accordance with the requirements set forth in the California Public Contract Code. On October 16, 2015, the City, on behalf of the Successor Agency, posted on PlanetBids the notice inviting bids for the Diamond Stadium HVAC Project (CIP Project RDA Z20003). A job -walk at the project site was held at 10:00 A.M. on Friday October 30, 2015. Eleven prime contracts registered in Planetbids and acquired project information specific to the Diamond Stadium HVAC Project scope of work, technical details and design plans. Two bids were received on or before the deadline of Thursday, November 5, 2015, at 2:00 P.M. These bids were publicly opened, examined and declared in the City Cultural Center. Discussion The scope of work includes the complete replacement of the existing HVAC system. The design concept and technical details support a state of the art HVAC system with commercial application fully capable of providing conditioned air handling to all indoor areas. This system will utilize several touch screen systems to control the entire stadium from multiple locations both on sight and off sight. Some of the key elements of the scope of work and new HVAC system are list below: The variable capacity, heat pump heat recovery air conditioning system is a Mitsubishi Electric CITY MULTI VRF (Variable Refrigerant Flow) zoning system. Each indoor and outdoor unit or group of units will be capable of operating in any Diamond Stadium HVAC Project December 8, 2015 Page 2 of 2 mode independently of other units or groups. The system will be capable of changing mode (cooling to heating, heating to cooling) with no interruption to the system operation. To ensure comfort, each unit or group of units shall be independently controlled and capable of changing mode automatically. The control system shall consist of a low voltage communication network of unitary built -in controllers with on -board communications and a web -based operator interface. A web controller with a network interface card will gather data from this system and generate web pages accessible through a conventional web browser on each PC connected to the network. Operators will be able to perform all normal operator functions through the web browser interface. • This system will exceed the current federal efficiency requirements and the ASHRAE 90.1 efficiency requirements for VRF systems. (This system is one of the most energy efficiency systems available for commercial application) Manufacture's 10 year warranty is included and the contractor is Certified Diamond Contractor for installing Mitsubishi brand systems. The following bids were received from qualified contractors on or before the deadline and are listed below in the amount of bid sequence: Contractor Address Amount 15537 Cabrito Rd Van Nuys AP Construction Group Inc. CA 91406 $11239,000.00 38340 Innovation Ct Suite 704, Gardner Company Inc. Murrieta CA 92563 $1,475,000.00 Following the bid opening, Staff reviewed and verified all bids for completeness. AP Construction Group Inc. was determined to be the lowest responsive and responsible bidder. The contractor has a valid license and a review of the contractor's references showed no issues with the quality of their work. Following Successor Agency approval, the anticipated start date will be mid - December, 2015 with a completion date of early -April 2016. Close coordination will be maintained to insure no interruption with stadium facility events particularly during the holiday season. Fiscal Impact Diamond Stadium HVAC Project was included in the Capital Repair Schedule to the Second Amendment (2015) to the Stadium Interim Management Agreement approved by the Oversight Board and the Department of Finance. The Project (CIP Project RDA Z20003) is also included in the Fiscal Year 15/16 — 19/20 Capital Improvement Plan (CIP) budget. The contract amount herein is fully funded with ROPS funding. Prepared by: Jason Simpson, Director of Administrative Services Approved by: Grant Yates, Executive Director Attachment: Attachment A - Agreement for Contractor Services Agreement AGREEMENT FOR PUBLIC WORKS CONSTRUCTION AP CONSTRUCTION GROUP INC. For the DIAMOND STADIUM HVAC PROJECT CIP PROJECT NO. RDA Z20003 This Agreement for Public Works Construction ( "Agreement ") is made and entered into as of December 8, 2015, by and between the Successor Agency for the City of Lake Elsinore, a public entity organized and existing under California Health and Safety Code Section 34173 (the "Successor Agency") and AP Construction Group Inc., a ( "Contractor "). The Successor Agency and Contractor, in consideration of the mutual promises and covenants set forth herein, agree as follows: 1. The Proiect and Proiect Documents. Contractor agrees to construct the following public improvements ( "work ") identified as: DIAMOND STADIUM HVAC PROJECT NO. RDA 220003 The design plans and HVAC specifications for the Project, which are incorporated herein by reference and prepared by the City of Lake Elsinore ( "City') on behalf of the Successor Agency, are identified as: DIAMOND STADIUM HVAC PROJECT CIP PROJECT NO. RDA Z20003 The Project Documents include this Agreement and all of the following: (1) the Notice Inviting Bids, Instructions to Bidders, Bid Documents including Bidder's Proposal as submitted by the Contractor, Contract Documents, General Specifications, Special Provisions, and all attachments and appendices; (2) everything referenced in such documents, such as specifications, details, standard plans or drawings and appendices, including all applicable State and Federal requirements; (3) all required bonds, insurance certificates, permits, notices, and affidavits; and (4) any and all addenda or supplemental agreements clarifying, amending or extending the work contemplated as may be required to insure completion in an acceptable manner. All of the provisions of the above - listed documents are made a part of this Agreement as though fully set forth herein. 2. Compensation. a. For and in consideration of the payments and agreements to be made and performed by Successor Agency, Contractor agrees to construct the Project, including furnishing all materials and performing all work required for the Project, and to fulfill all other obligations as set forth in the Bidder's Proposal, such contract price being One Million, Two Hundred Thirty Nine Thousand Dollars and No Cents ($1,239,000.00). b. Successor Agency hereby promises and agrees to employ, and does hereby employ, Contractor to provide the materials, do the work, and fulfill the obligations according to the terms and conditions herein contained and referred to, for the prices set forth, and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Project Documents. C. Contractor agrees to receive and accept the prices set forth in the Bidder's Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Such compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the Project Documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work. Completion of Work. a. Contractor shall perform all work within Ninety (90) working days from the date of commencement specified in the Notice to Proceed and shall complete all work within Ninety (90) working days, and shall provide, furnish and pay for all the labor, materials, necessary tools, expendable equipment, and all taxes, utility and transportation services required for construction of the Project. b. All work shall be performed and completed in a good workmanlike manner in strict accordance with the drawings, specifications and all provisions of this Agreement as hereinabove defined and in accordance with applicable laws, codes, regulations, ordinances and any other legal requirements governing the Project. C. Contractor shall not be excused with respect to the failure to so comply by any act or omission of the Successor Agency, the City Director of Public Works, the City Engineer, a City inspector, or a representative of any of them, unless such act or omission actually prevents the Contractor from fully complying with the requirements of the Project Documents, and unless the Contractor protests at the time of such alleged prevention that the act or omission is preventing the Contractor from fully complying with the Project Documents. Such protest shall not be effective unless reduced to writing and filed with the Successor Agency within three (3) working days of the date of occurrence of the act or omission preventing the Contractor from fully complying with the Project Documents. d. Successor Agency and Contractor recognize that time is of the essence in the performance of this Agreement and further agree that if the work called for under the Agreement is not completed within the time hereinabove specified, damages will be sustained by the Successor Agency and that, it is and will be impracticable or extremely difficult to ascertain and determine the actual amount of damages the Successor Agency will sustain in the event of, and by reason of, such delay. It is, therefore, agreed that such damages shall be presumed to be in the amount of Five Hundred dollars 500) per calendar day, and that the Contractor will pay to the Successor Agency, or Successor Agency may retain from amounts otherwise payable to Contractor, such amount for each calendar day by which the Contractor fails to complete the work, including corrective items of work, under this Agreement within the time hereinabove specified and as adjusted by any changes to the work. 4. Changes to Work. Successor Agency and Contractor agree that the Successor Agency may make changes to the work, or suspend the work, and no matter how many changes, such changes or suspensions are within the contemplation of the Contractor and Successor Agency and will not be a basis for a compensable delay claim against the Successor Agency nor be the basis for a liquidated damages claims against the Contractor. Any change to the work shall be by way of a written instrument ( "change order ") signed by the Successor Agency and the Contractor, stating their agreement to the following: a. The scope of the change in the work; b. The amount of the adjustment to the contract price; and c. The extent of the adjustment to the Schedule of Performance. The Director of Public Works is authorized to sign any change order provided that sufficient contingency funds are available in the Successor Agency's approved budget for the Project. All change in the work authorized by the change order shall be performed under the applicable conditions of the Project Documents. Successor Agency and Contractor shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 5. Bonds. Contractor shall provide, before commencing work, a Faithful Performance Bond and a Labor and Material Bond, each for one- hundred percent (100 %) of the contract price in the form that complies with the Project Documents and is satisfactory to the Successor Agency Counsel. 6. Non - Assignability. Neither this Agreement nor any rights, title, interest, duties or obligations under this Agreement may be assigned, transferred, conveyed or otherwise disposed of by Contractor without the prior written consent of Successor Agency, 7. Licenses. Contractor represents and warrants to Successor Agency that it holds the contractor's license or licenses set forth in the Project Documents, is registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5 as of March 1, 2015, and holds such other licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Contractor. Contractor represents and warrants to Successor Agency that Contractor shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Contractor to practice its profession. Contractor shall maintain a City of Lake Elsinore business license. 8. Indemnitv. Contractor shall indemnify, defend, and hold harmless the Successor Agency, the City and their officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Contractor or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the sole negligence or willful misconduct of the Successor Agency, the City or their officers, employees, agents, or volunteers and (2) the actions of Contractor or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by Successor Agency of insurance certificates and endorsements required under this Agreement does not relieve Contractor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Contractor acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. Insurance Requirements. a. Insurance. Contractor, at Contractor's own cost and expense, shall procure and maintain, for the duration of the Agreement, unless modified by the City's Risk Manager, the following insurance policies. i. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his /her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the Successor Agency at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against the Successor Agency, City, their officers, agents, employees and volunteers for losses arising from work performed by Contractor for Successor Agency. In the event that Contractor is exempt from Worker's Compensation Insurance and Employer's Liability Insurance for his /her employees in accordance with the laws of the State of California, Contractor shall submit to the Successor Agency a Certificate of Exemption from Workers Compensation Insurance in a form approved by the Successor Agency Counsel. ii. General Liability Coverage. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Required commercial general liability coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ad. 11/88) or Insurance Services Office form number GL 0002 (ad. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. No endorsement may be attached limiting the coverage. iii. Automobile Liability Coverage. Contractor shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non -owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. Automobile liability coverage must be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 ("any auto'). No endorsement may be attached limiting the coverage. iv. Professional Liability Coverage fif applicable]. Contractor shall maintain professional errors and omissions liability insurance appropriate for Contractor's profession for protection against claims alleging negligent acts, errors or omissions which may arise from Contractor's services under this Agreement, whether such services are provided by the Contractor or by its employees, subcontractors, or sub consultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims -made annual aggregate basis, or a combined single limit per occurrence basis. b. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language: I. The Successor Agency, City, their elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured with respect to liability arising out of work performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work or operations. ii. This policy shall be considered primary insurance as respects the Successor Agency, City, their elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the Successor Agency or City, including any self - insured retention the Successor Agency or City may have, shall be considered excess insurance only and shall not contribute with it. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against the Successor Agency, City, their elected or appointed officers, officials, employees or agents. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Successor Agency, City, their elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this Policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the Successor Agency. C. Deductibles and Self- Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Successor Agency. At the Successor Agency's option, Contractor shall demonstrate financial capability for payment of such deductibles or self- insured retentions. d. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to Successor Agency as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the Successor Agency on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the Successor Agency at all times during the term of this Agreement. 10. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to Successor Agency: Successor Agency of the Redevelopment Agency of the City of Lake Elsinore Attn: Executive Director 130 South Main Street Lake Elsinore, CA 92530 With a copy to: Successor Agency of the Redevelopment Agency of the City of Lake Elsinore Attn: Agency Secretary 130 South Main Street Lake Elsinore. CA 92530 If to Contractor: AP Construction Group Inc Attn: Neman Djouzale, President 15537 Cabrito Rd Van Nuys CA 91406 11. Entire Agreement. This Agreement constitutes the complete and exclusive statement of agreement between the Successor Agency and Contractor. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 12. Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and Successor Agency and approved as to form by the Successor Agency Counsel. 13. Assignment and Subcontracting. Contractor shall be fully responsible to Successor Agency for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the Contractor under this Agreement will be permitted only with the express consent of the Successor Agency. Nothing in this Agreement shall create any contractual relationship between Successor Agency and any subcontractor nor shall it create any obligation on the part of the Successor Agency to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 14. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 15. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 17. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 18. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 19. Authority to Enter Agreement and Administration. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. The Executive Director is authorized to enter into an amendment or otherwise take action on behalf of the Successor Agency to make the following modifications to the Agreement: (a) a name change; (b) grant extensions of time; (c) non - monetary changes in the scope of services; and /or (d) suspend or terminate the Agreement. The Director of Public Works shall act as the Project administrator on behalf of the Successor Agency. 20. Prohibited Interests. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Successor Agency shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Successor Agency or City, during the term of his or her service with Successor Agency or City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 21. Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 22. Prevailing Wages. a. Contractor and all subcontractors shall adhere to the general prevailing rate of per diem wages as determined and as published by the State Director of the Department of Industrial Relations pursuant to Labor Code Sections 1770, 1773, and 1773.2. Copies of these rates and the latest revisions thereto are on file in the office of the City Clerk of the City of Lake Elsinore and are available for review upon request. b. Contractor's attention is directed to the provisions of Labor Code Sections 17749 17752 1776, 1777.5 and 1777.6. Contractor shall comply with the provisions of these Sections. The statutory provisions for penalties for failure to comply with the State's wage and the hours laws will be enforced. C. Labor Code Sections 1774 and 1775 require the Contractor and all subcontractors to pay not less than the prevailing wage rates to all workmen employed in the execution of the contract and specify forfeitures and penalties for failure to do so. The minimum wages to be paid are those determined by the State Director of the Department of Industrial Relations. Labor Code Section 1776 requires the Contractor and all subcontractors to keep accurate payroll records, specifies the contents thereof, their inspection and duplication procedures and certain notices required of the Contractor pertaining to their location. The statutory penalties for failure to pay prevailing wages will be enforced. If the Project has been awarded to Contractor on or after April 1, 2015, Contractor and its subcontractors must furnish electronic certified payroll records to the Labor Commissioner. Beginning January 1, 20162 Contractor and its subcontractors must furnish electronic certified payroll records to the Labor Commissioner without regard to when the Project was awarded to Contractor. d. Labor Code Section 1777.5 requires Contractor or subcontractor employing tradesmen in any apprenticeable occupation to apply to the Joint Apprenticeship Committee nearest the site of the public works project, which administers the apprenticeship program in that trade for a certificate of approval. The certificate will also fix the ratio of apprentices to journeymen to be used in the performance of the Agreement. The Contractor is required to make contributions to funds established for the administration of apprenticeship programs if the Contractor employs registered apprentices or journeymen in any apprenticeable trade and if other contractors on the public works site are making such contributions. Information relative to apprenticeship standards, contributions, wage schedules and other requirements may be obtained from the State Director of Industrial Relations or from the Division of Apprenticeship Standards. Labor Code Section 1777.6 provides that it shall be unlawful to refuse to accept otherwise qualified employees as registered apprentices solely on the grounds of race, religious creed, color, national origin, ancestry, sex, or age. e. Eight hours labor constitutes a legal day's work, as set forth in Labor Code Section 1810, 23. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. [Signatures on next page] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. "SUCCESSOR AGENCY" "CONTRACTOR" Successor Agency of the Redevelopment AP Construction Group Inc. Agency of the City of Lake Elsinore, a public entity organized and existing under California Health and Safety Code Section 34173 Grant Yates, Executive Director Neman Djouzale, President: ATTEST: Agency Secretary •••• 1� •;u Successor Agency Counsel SECOND AMENDMENT (2015) TO STADIUM INTERIM MANAGEMENT AGREEMENT THIS SECOND AMENDMENT (2015) TO STADIUM INTERIM MANAGEMENT AGREEMENT (this "Amendment'), dated for identification as of September 23, 2014, is made by and between the SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE ( "Successor Agency "), and the LAKE ELSINORE STORM LP, a California limited partnership ( "Storm "). RECITALS The following recitals are a substantive part of this Amendment: A. The Successor Agency and the Storm entered into that certain Stadium Interim Management Agreement dated January 1, 2013 (the "Interim Agreement') to provide for the performance by the Storm of certain maintenance, upkeep, and operations of the Premises (as defined in the hiterim Agreement). Capitalized terms used herein which are not otherwise defined herein shall have the meaning ascribed to them in the Interim Agreement. B. The Interim Agreement was successfully implemented during calendar year 2013 to provide for efficient and cost effective management, maintenance and operation of the Premises. C. In order to provide for the efficient and cost effective management, maintenance and operation of the Premises for calendar 2014, the Successor Agency and the Storm entered into that certain First Amendment (2014) to Stadium Interim Management Agreement dated September 24, 2013 (the "First Amendment'). D. The obligations set forth in the Interim Agreement and the First Amendment have been included in prior Recognized Obligation Payment Schedules approved by the Successor Agency, the Oversight Board of the Successor Agency ( "Oversight Board ") and the Department of Finance ( "DOF "). E. The First Amendment will expire on December 31, 2014 and the parties desire to enter into this Second Amendment to provide for the efficient and cost effective management, maintenance and operation of the Premises for calendar 2015. F. In accordance with AB 1484, a Recognized Obligation Payment Schedule will be adopted for the period from January 1, 2015 through June 30, 2015 (herein referred to as the "ROPS 14 -15B ") and for all subsequent Recognized Obligation Payment Schedule periods. AB 1484 sets forth the review period and authority of DOF to review and approve Recognized Obligation Payment Schedules. G. On September 23, 2014, the Oversight Board and the Successor Agency will consider approval and adoption of the ROPS 14 -15B which includes the obligations set forth in this Amendment and lists, among other things, as enforceable obligation of the Successor Second Amendment to Stadium hrtetim Management Agt 091814 - 1 - Agency, the following obligations related to the Premises as more fully described and referenced therein: (i) Concession License Agreement, as amended ( "Concession Agreement"); (ii) License Agreement, as amended ( "License Agreement "); (iii) Stadium Field and Maintenance Agreement, as amended ( "Maintenance Agreement "); (iv) Stadium operations and maintenance obligations; and (v) The Stadium Interim Management Agreement. H. Following approval of the ROPS 14 -15B by the Oversight Board and the Successor Agency, the ROPS 14 -15B will be transmitted to the DOF for its review and approval. I. Consistent with the legislative authorization contained in AB1484 allowing successor agencies to enter into enforceable obligations for the purpose of maintaining the assets of the former Redevelopment Agency, the Successor Agency seeks to provide for the continued efficient and cost effective management, maintenance and operation of the Premises for calendar year 2015 and to retain the Storm which possesses the experience and qualifications to carry out such continuing obligations on an interim basis so as to ensure that the "Lake Elsinore Storm," a single "A" baseball team which is a member of the California League of the National Association of Professional Baseball and owned by Storm LP, continue to play its home baseball games at the Stadium. J. In furtherance of the purpose and intentions of the parties as with respect to the Interim Agreement, the parties hereto agree to amend the Interim Agreement as provided herein. AGREEMENT NOW THEREFORE, in consideration of the foregoing Recitals and the terms contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Term of Agreement: Termination. Section 6 of the Interim Agreement, entitled "Term of Agreement; Termination," is hereby deleted in its entirety and replaced with the following: 6. Term of Agreement; Termination 6.1. Term. The term of the Interim Agreement (hereinafter the "Term ") shall commence on the Effective Date and shall, unless earlier terminated in accordance with Sections 6.2, 19, or 20 hereof, automatically terminate on December 31, 2015. 6.2. Rights of Termination Expiration of the Term Second Amendmam to Stadium rntorim Management Agt 091814 -2- Prior to Commencement and (a) January 1, 2015 Termination. Successor Agency may terminate this Interim Agreement prior to the Commencement Date, by giving written notice thereof to the Storm no later than November 30, 2014. (b) June 30, 2015 Termination. Successor Agency may terminate this Interim Agreement effective as of June 30, 2015, by giving written notice thereof to the Storm no later than May 30, 2015. (c) Default. The Successor Agency and Storm shall have the right to terminate this Interim Agreement as a result of an uncured Default hereunder. Any such termination shall be made in accordance with Sections 19 or 20. (d) Party's Property and Offset. Upon termination of this Interim Agreement under this Section 6.2, all materials and equipment purchased by either party hereunder in connection with this Interim Agreement shall remain that party's property. In addition, the Storm shall be entitled to an offset for all of the Storm's services rendered hereunder through the effective date of any such termination. (e) Effect of Termination. Notwithstanding the termination of this Interim Agreement pursuant to this Section 6.2, the provisions of Stadium Operations Contracts shall remain in full force and effect. 2. Compensation. Section 7 of the Interim Agreement, entitled "Compensation," is hereby deleted in its entirety and replaced with the following: 7. Compensation 71. Stadium Operations Contracts Compensation Recap. Pursuant to the Stadium Operations Contracts, the Storm and/or the Successor Agency are entitled to compensation during the Term as follows: (a) 2015 License Fee: Under the License Agreement, the Storm is required to pay to the Successor Agency a License Fee in the amount of $489,494 for 2015. (b) Percentage of Concessions: Under the Concession Agreement, the Storm's affiliate, Golden State, is required to pay Successor Agency a percentage of the GRCS pursuant to Section 6 thereof (the "ORCS Concession Fee. "). (c) Annual Maintenance Fee: Under the Maintenance Agreement, Successor Agency is required to pay Storm an Annual Maintenance Fee of $228,515 for 2015. 7.2. Storm Compensation January 1, 2015 — December 31, 2015. Commencing upon the Commencement Date (January 1, 2015) and continuing through the expiration of the Term (December 31, 2015) and as consideration for the performance of the services set forth herein, the Storm shall be compensated as follows: (a) Assignment of GRCS Concession Fee. Successor Agency hereby assigns Successor Agency's right to payment of the GRCS Concession Fee under Second Amendment to Stadium Interim Management Agt 091914 - 3 - the Concession Agreement to the Storm during the Term, estimated at $34,000 annually; and (b) Waiver of License Fee. Successor Agency hereby waives Successor Agency's right to payment of the License Fee under the License Agreement during the Term as an offset against the payments due by the Successor Agency to the Storm hereunder; and (c) Payment of Maintenance Fee. Successor Agency shall continue to pay the Annual Maintenance Fee as identified in Section 7.1(d) (i.e., $228,515. (d) Payment of Additional Interim Management Fee. Successor Agency shall pay to Storm $391,822, payable in equal monthly installments ("Additional Interim Management Fee "). The Maintenance Fee along with the Additional Interim Management Fee will result total cash payment from the Successor Agency to the Storm of $620,337 as consideration for services provided under the Stadium Operations Contracts and this Interim Agreement, which aggregate amount shall be payable in equal monthly installments of $51,695. The Storm acknowledges and agrees that in no event will the Agency be required to provide the Storm with any other form of payment for performance of the services as provided in this Interim Agreement. The parties acknowledge that the historic operating costs of the Stadium equal or exceed the compensation due to Storm hereunder and that it is in each of the party's best interests to enter into this Agreement for the efficient use and operation of the Stadium. 3. Capital Repairs. Section 8 of the Interim Agreement, entitled "Capital Repairs," is hereby deleted in its entirety and replaced with the following: "8. Capital Repairs. Capital Repairs shall be governed by the applicable provisions of the Stadium Operations Contracts. A Two -Year Capital Repair Schedule with estimated costs budgeted for ROPS 14 -1513, 15 -16A, 15 -16B and 16 -17A is set forth in Exhibit "C" attached hereto and incorporated by reference herein. The Successor Agency's Executive Director or designee ( "Executive Director") will designate certain Capital Projects that shall be subject to the Department of Public Works' direct administration of the bid process and award of contract consistent with the applicable legal requirements. The Storm will undertake and complete such other Capital Repairs as set forth in Exhibit "C" as are mutually agreed. To the extent that The Storm undertakes such other Capital Repairs not undertaken by the Successor Agency, The Storm shall obtain not less than three (3) bids from qualified contractors unless otherwise excused by the Executive Director. Without limiting the Executive Director's discretion, the bidding requirement herein may be excused in situations involving emergencies and sole Smond Amendment m Stadium interim Management Agt 091814 - 4 - source contractors. In addition, The Storm acknowledges the general requirement that certain Capital Repairs are subject to the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ( "Prevailing Wage Laws "), which require the payment of prevailing wage rates with respect to certain capital improvements, repairs and maintenance work paid for in whole or in part out of public funds. Accordingly, The Storm agrees to, in the administrative of the bidding and contractor selection process, inform prospective bidders of the requirement to comply with the Prevailing Wage Laws. The Storm may confer with the Executive Director and seek direction with respect to whether or not a certain Capital Repair is subject to the Prevailing Wage Law. Prior to The Storm awarding a contract for a Capital Repair to a qualified contractor, the Executive Director shall: (i) confirm that The Storm has followed the proper bidding procedures for selection of a contractor; and (ii) approve the selection of the contractor and the form of any agreement between The Storm and the contractor. Upon completion of the Capital Repair (or a component thereof supporting a deposit or in- progress reimbursement), The Storm shall deliver to the Executive Director a written reimbursement request and supporting documentation (such as third party invoices, lien releases and cancelled checks). To the extent that the reimbursement request is for a completed Capital Repair, The Storm shall, if applicable, submit as -built drawings or similar plans and specifications for the items to be reimbursed." 4. Accuracy of Recitals. The Parties acknowledge the accuracy of the foregoing Recitals, which are incorporated herein by this reference. 5. Authority: Priority of Amendment. This Amendment is executed by the Parties' authorized representatives. Except as expressly modified herein, all of the terms of the Interim Agreement shall remain unchanged and in full force and effect, and the Parties shall continue to fulfill their respective obligations under the Interim Agreement as amended by this Amendment. To the extent of any conflict between the terms of the Interim Agreement and the terms of this Amendment, the terms of this Amendment shall control. 8. Cautions. The captions appearing in this Amendment are for convenience only and are not a part of this Amendment and do not in any way limit, amplify, define, construe, or describe the scope or intent of the terns or provisions of this Amendment. 9. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute but one and the same document. 10. Commencement Date. Unless earlier terminated in accordance with Section 6.2(a), the provisions of this Amendment shall commence on January 1, 2015 (the "Commencement Date "). Second Amcndmem to Stadium Interim Management Agt 091814 - 5 - IN WITNESS WHEREOF t}ra parties have executed this Amendment on the respective dates set firth below, i 11 An"i'RM SUCCESSOR AGENCY SECRETARY By Virginia Bloom APPROVED AS TO F012Mr LEMOLD Screaes r.4gency e !` f ° e3y: Hal ara Z' Lcibold Dated: ti6:OlIQ Amradmnrt Io Stndmrcm trncriLU MdMV4omi Apt 11 g i "SUCCESSOR AGENCY" SUCCESSOR AGENCY Oir'B`ITE REX?ir`VE LOPME WC AGENCY OF THE CITY OF LAKIE. ELSINORE lay: Errant es, Eixccutive Dire for "STORM" LAKE, ELSINOM;. STORM LP, a Calitbmia limited partnership By: VyJJ STORM MANAGEMENT, LLC, a Califomia limited liability company Its: General i By: Clary H. Jacabs, anager EXHIBIT "C" CAPITAL REPAIR SCHEDULE See Attached EXHIBIT "C" Page I of 1 LAKE ELSINORE STORM - DIAMOND STADIUM CAPITAL REPAIR SCHEDULE Diamond Club ceiling tiles COST ESTIMATES HOPS 14 -15B ROPS 15.16A ROPS 15.166 BOPS 16.17A CAPITAL REPAIR Diamond Club Carpet $7,700,00 7,700.00 Retrofit HVAC system Quote TED $ - $ 11035,000.00 $ - $ .. Repave service road with 1" asphalt+ Quote TED 57,500.00 ConcourseLEDemergencylighting sealent 33,000,00 Repaving parking lots A & B $345,000.00 - - - 345,000.00 Stadium seating $920,000.00 - 920,000.00 Interor /Exterfordoors $15,000.00 15,000.00 $45,000.00 Walkway lighting $28,500.00 28,500.00 - Fire /Burg /Surveillance equipment $40,000.00 400000.00 - Landscape service road $40,000.00 - 40,000.00 Diamond Club audio /visual equipment Quote TBD 16,000.00 15,000.00 Diamond Club ceiling tiles $24,000.00 24,000.00 Diamond Club Carpet $7,700,00 7,700.00 - Retrofitsprinklersystem Quote TED 2500000.00 - ConcourseLEDemergencylighting $33,000.00 33,000,00 retrofit Grounds Dept Bathroom Quote TED 2000000.00 - New John Deere fahwaymower $45,000.00 45,000.00 - New John Deere three wheeler $159000.00 15,000.00 - -. - Repair /Install Irrigation Grass Hill $5,000.00 5,000.00 - Flooring (front office) $15,000.00 15,000.00 - - Ceiling Tiles (front office) $110000.00 11,000.00 _ Paint (front office) $7,000.00 7,000.00 Front office /concourse /concessions $42,000.00 42,000.00 - Lighting Retrofit _ - Repainting stadium green (remaining $100,000.00 - - 100,000.00 steel and pipes) Home Clubhouse Ceiling Tiles $8,500.00 - 8,500.00 - Brickinterior /exterior treatment $104000.00 - 100000.00 New ticket windows $7,000.00 7,000.00 Diamond Club furniture Quote TED Weight room buildout Quote TED Hood system stand 3 Quote TED - _ - Desert landscaping stadium Quote TED TOTALS $ 794,700.00 $ 1,117,500.00 $ 920,000.00 $ 445 ;000.00