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HomeMy WebLinkAboutLake Elsinore Storm Stadium Interim Management Agreement 03rd Amendment (2016) 9-22-2015 THIRD AMENDMENT(2016) TO STADIUM INTERIM MANAGEMENT AGREEMENT THIS THIRD AMENDMENT (2016) TO STADIUM INTERIM MANAGEMENT AGREEMENT (the "Third Amendment"), dated for identification as of September 22, 2015, 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 Interim 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 year 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. In order to provide for the efficient and cost effective management, maintenance and operation of the Premises for calendar year 2015, the Successor Agency and the Storm entered into that certain Second Amendment(2015)to Stadium Interim Management Agreement dated September 23, 2014 (the"Second Amendment'). E. The obligations set forth in the Interim Agreement, First Amendment, and Second 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'). F. The Second Amendment will expire on December 31, 2015 and the parties desire to enter into this Third Amendment to provide for the efficient and cost effective management, maintenance and operation of the Premises for calendar year 2016. G. Capital repairs for 2016 of approximately $3,286,912, as included in this Third Amendment, reflect that the Stadium is twenty two (22) years old and in need of significant capital repairs, including, without limitation, replacement of Stadium seating, improvements to comply with revisions to the Americans with Disabilities Act, retrofitting of plumbing, Third Amendment to Stadium Interim Management Agt Final - 1 containment of run-off to comply with the National Pollutant Discharge System imposed by the Environmental Protection Agency, improvements to and replacement of the heating, ventilation and air condition (HVAC) system, repaving of the parking lots and replacement of old equipment. H. In accordance with AB 1484, a Recognized Obligation Payment Schedule will be adopted for the period from January 1, 2016 through June 30, 2016 (herein referred to as the "RODS 15-16B") 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. I. On September 22, 2015, the Oversight Board and the Successor Agency will consider approval and adoption of the ROPS 15-16B which includes the obligations set forth in this Amendment and lists, among other things, as enforceable obligations of the Successor 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. J. Following approval of the ROPS 15-16B by the Oversight Board and the Successor Agency, the ROPE 15-16B will be transmitted to the DOF for its review and approval. K. Consistent with the legislative authorization contained in AB 1484 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 2016 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. L. 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: Third Amendment to Stadium Interim Management Agt Final -2- 1. Term ofAgreement; 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, 2016. 6.2. Rights of Termination Prior to Commencement and Expiration of the Term (a) January 1, 2016 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, 2015. (b) June 30, 2016 Termination. Successor Agency may terminate this Interim Agreement effective as of June 30, 2016, by giving written notice thereof to the Storm no later than May 30, 2016. (e) 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 7.1. 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) 2016 License Fee: Under the License Agreement, the Storm is required to pay to the Successor Agency a License Fee in the amount of $497,297 for 2016_ Third Amendment to Stadium Interim Management Agt Final - 3 .. (b) Percentage of Concessions: Under the Concession Agreement, the Storm's affiliate, Golden State, is required to pay Successor Agency a percentage of GRCS pursuant to Section 6 thereof(the "GRCS Concession Fee."). (c) Annual Maintenance Fee: Under the Maintenance Agreement, Successor Agency is required to pay Storm an Annual Maintenance Fee of $232,l 59 for 2016. 7.2. Storm Compensation January 1, 2016 — December 31, 2016. Commencing upon the Commencement Date (January 1, 2016) and continuing through the expiration of 'term (December 31, 2016) 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 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., $232,l 59). (d) Payment of Additional Interim Management Fee. Successor Agency shall pay to Storm $445,589, 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$667,752 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$56,646. 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 parry'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- s. Capital Repairs. Capital Repairs shall be governed by the applicable provisions of the Stadium Operations Contracts. A Capital Repair Schedule with estimated costs budgeted for ROPE 15-16B and 16-17A is set forth in Exhibit"C" attached hereto and incorporated by reference herein. Third Amendment to Stadisjm Interim Manale mint Agt Final - 4 - 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 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, ct 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. 11ird Amendment to Stadium Interim Management Agt Final - 5 5. Authority; Priority of Amendment. 1 his 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. Captions. 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 terms 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, 2016 (the "Commencement Date"). Third Amendment to Stadium Interim Management Agt Final -6- IN WITNESS WHEREOF,the parties have executed this Amendment on the respective dates set forth below. "SUCCESSOR AGENCY" SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE EL INORE Dated: a�a?/l4 By: _ Grant Y Executive Director ATTEST: SUCCESSOR AGENCY ACTING SECRETARY By: / City Clerk APPROVED AS TO FORM: LEIBOLD eCLEN N& MANN,P.C. Suclardbara gency el By: Leibold "STORM" LAKE ELSINORE STORM LP, a California limited partnership By: GJJ STORM MANAGEMENT, LLC, a California limited liability company Its: General Partner Dated: By: Gary E. Jacobs, Manager Third Amendment to Stadium interim Management Agt Final - 7 - IN WITNESS WHEREOF,the parties have executed this Amendment on the respective dates set forth below. "SUCCESSOR AGENCY" SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE Dated By: ATTEST: Grant Yates, Executive Director SUCCESSOR AGENCY ACTING SECRETARY By: Diana Gir6n APPROVED AS TO FORM: LEIBOLD McCLENDON& MANN,P.C. Successor Agency Counsel By: Barbara Leibold "STORM" LAKE ELSINORE STORM LP, a California limited partnership By: GJJ STORM MANAGEMENT, LLC,a California limited liability company Its: General Partner Dated: r By: �• Gary E.Jacob anager Aird AmaWment to Stadium Interim Maraoun=Agt Final -7- EXHIBIT "C„ CAPITAL REPAIR SCHEDULE See Attached EXHIBIT"C" LAKE ELSINORE STORM-DIAMOND STADIUM CAP)TAL REPAIR SCHEDULE THIRD AMENDMENT TO THE INTERIM MANAGEMENT AGREEMENT ROPS 1 S-16B ROPS 16-17A CAPITAL REPAIR Retrofit I1VAC system S 103,234.86 Repaving parf ing lots A&B 345,000.00 Stadium seating 350,000.00 875,000A0 Repainting stadium green(remaining steel and pipes) - 100,000.00 Diamond Club furniture 29,500.00 Desert.fandscaping stadium 40,000.00 Sewet-Lift Station 350,000.00 - Concessions/PlumbingRetro fit 230,S00.00 275,000.00 Diamond Club Lights 22,000.00 Home/Visitor Locker Room Carpet 30,000.00 Diamond Club ReNrbishment 14,000.00 Electrical Upgrade-Fun Zone 24,000.00 Replace Wall Padding 55,000.00 Stadium backstop netting 45,000,00 Souvenir I:ighting&Ceiling Tiles 20,000.00 Flooring&Painting(Visitors side/Home Side/Press Box) 64,000.00 Press Box renovation 28,500.00 Todets,Trash Cans,Tables 59,600.00 First Aid Room Upgrade 17,500.00 Media Room Upgrade 12,000.00 Bathrooms(Epo).y-OPS/Family) 21,000.00 Refurbish Counttng Room 16,000.00 Diamond Club Wood&Cabinet-Refinish 14,000.00 - Security Room Carpet/Wood Replacement Outfield 4,667.00 Fencer 15,000.00 Equipment Replacement: Forklift 30,000.00 John Deere Pro Gator maintenatrce 27,500.00 Jahn Deere Aerator 19,000.00 Polaris Ranger 15,000.00 Cleaning Cart 15,000.00 Honda Plat Compactor 3,010.00 Honda FC600 Walk Behind Tiller 2,150.00 Two Generators 2,100.00 Fairtender Conditioners Shaft Blades 4,050.14 Gear-Drive 7,800-00 $ 1,580,912.00 1,706,000.00 EXHIBIT"C"