HomeMy WebLinkAboutStadium Interim Management Agreement 4th Amendment (Jan. 2017 - Jun. 2018) FOURTH AMENDMENT 2017-201$
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STADIUM INTERIM MANAGEMENT AGREEMENT
THIS FOURTH AMENDMENT (2017-2018) TO STADIUM INTERIM
MANAGEMENT AGREEMENT (the "Fourth Amendment"), dated for identification as of
September 27, 2016, 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 continued 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 continued 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. In order to provide for continued efficient and cost effective management,
maintenance and operation of the Premises for calendar year 2016, the Successor Agency and the
Storm entered into that certain Third Amendment (2016) to Stadium Interim Management
Agreement dated September 22, 2016 (the "Third Amendment").
F. The obligations set forth in the Interim Agreement, First Amendment, Second
Amendment and Third Amendment have been included in prior Recognized Obligation Payment
Schedules (ROPS) approved by the Successor Agency, the Oversight Board of the Successor
Agency("Oversight Board") and the Department of Finance("DOF").
G. The Third Amendment will expire on December 31, 2016 and the parties desire to
enter into this Fourth Amendment to provide for continued efficient and cost effective
Fourth Amendment to Stadium Interim Management Agt 092716 - 1 -
management, maintenance and operation of the Premises for calendar year 2017 and the first six
(6)months of 2018, which period corresponds to the ROPS cycle.
H. Capital repairs of approximately$3,268,180 for the 2017/2018 term of this Fourth
Amendment reflect that the Stadium is twenty three (23) years old and in need of significant
capital repairs, including, without limitation, capital repairs necessary to comply with ADA and
energy and water efficiency requirements, roof repair/replacement, plumbing and drain repair
and equipment replacement. It is anticipated that approximately $1,661,500 in capital repairs
will be completed prior to the 2017 baseball season and that remaining $1,606,680 will be
completed after the conclusion of the 2017 baseball season.
I. In accordance with Health and Safety Code ("HSC") Section 34177.7(o)(1)(E), an
Amended Recognized Obligation Payment Schedule will be adopted for the period from January
1, 2017 through June 30, 2017 (herein referred to as the "ROPS 16-17B"). Annual ROPS for the
twelve months ended each June 30 will be adopted 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.
J. On September 29, 2016, the Oversight Board and the Successor Agency will
consider approval and adoption of the Amended ROPS 16-17B, 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.
K. Following approval of the Amended ROPS 16-17B by the Oversight Board and
the Successor Agency, the Amended ROPS 16-17B will be transmitted to the DOF for its review
and approval.
L. 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 (a) provide for the
continued efficient and cost effective management, maintenance and operation of the Premises
for the period commencing on January 1, 2017 through June 30, 2018, and (b) retain the Storm,
which possesses the experience and qualifications to carry out such continuing obligations on an
interim basis. Engagement of the Storm is necessary to ensure that the "Lake Elsinore Storm," a
single "A" baseball team, and a member of the California League of the National Association of
Professional Baseball, owned by Storm LP, continues to play its home baseball games at the
Stadium.
Fourth Amendment to Stadium Interim Management Agt 092716 - 2 -
M. In furtherance of the purpose and intentions of the parties 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 A reement• 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 June 30, 2018.
6.2. Rights of Termination Prior to Commencement and
Expiration of the Term
(a) January 1, 2018 Termination. Successor Agency may
terminate this Agreement effective as of January 1, 2018, by giving written notice thereof
to the Storm no later than November 30, 2017.
(b) June 30, 2018 Termination. Successor Agency may
terminate this Agreement effective as of June 30, 2018, by giving written notice thereof
to the Storm no later than May 30, 2018.
(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 payment 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. Stadium Use. Section 4.3 of the Interim Agreement, entitled "Stadium Use," is
hereby deleted in its entirety and replaced with the following:
Fourth Amendment to Stadium hite6m Management Agt 092716 - 3 -
4.3. Stadium Use.
(a) Storm Games. During the Term, the Storm shall play its
home baseball games at the Stadium, including pre-season, regular season and play-off
games as scheduled by the League and shall have the right to use the Stadium for baseball
practices and workouts. Upon receipt from the League, but in no event later than the 15`h
of November of each year during the Term, the Storm will provide the Executive
Director of the Successor Agency with the written, proposed schedule for all professional
baseball games involving the Storm for the coming baseball season including all pre-
season games, a reasonable number of dates to be held for playoff games, as required by
the League, and practices and workouts (collectively, the "Storm Games").
(b) Other Storm Events. In addition to the use of the Stadium
for the Storm Games, the Storm shall have the right to use the Stadium for non-baseball
related exhibitions, ceremonies or events (the "Other Storm Events") on dates which the
Stadium is not otherwise in use for Storm Games or other reserved uses, at its sole cost
and expense, without any additional license fee or charge incurred, except for Storm's
obligation with respect to maintenance as provided herein and subject to the conditions
set forth below.
i. Special Event Permit. The Storm shall obtain a
Special Event Permit for all Other Storm Events from the City of Lake Elsinore in
accordance with Chapter 5.108 of the Lake Elsinore Municipal Code, as now exists or as
may hereafter be amended, including submittal of an application not less than sixty (60)
days prior to the event and compliance with applicable conditions of approval.
Concurrent with the submittal of the special event application package to the City, the
Storm shall notify the Executive Director of the Agency in writing of the proposed date
and title of the Other Storm Event.
ii. Governmental Regulations/Permits. The Storm
shall comply with all applicable local, state, and federal laws, ordinances, rules,
regulations and requirements (including without limitation land use and zoning,
environmental, labor and prevailing wage, occupational Health & Safety, building and
fire codes) in connection with the promotion and operation of Other Storm Events and
shall apply for, secure, maintain and comply with all required licenses and/or permits.
The Storm shall use commercially reasonable efforts to cause any users of the Stadium to
report and pay sales taxes as generated within the City in accordance with all applicable
laws.
iii. Quality Standards. The Storm shall conduct Other
Storm Events in accordance with the highest standards for cleanliness and quality and
shall comply with all applicable terms and conditions of this Agreement and the Stadium
Operations Contracts.
Fourth Amendment to Stadium viteiini Management Agt 092716 - 4 -
(c) City/Agency Use. The Successor Agency, for itself and on
behalf of the City of Lake Elsinore, reserves the right to use the Stadium, including
without limitation, the Agency Suite, the Diamond Club and conference room for
meetings, conferences and other events provided the Successor Agency notifies the Storm
in advance. Notwithstanding the foregoing, the Storm shall have the right to use the
Stadium on the days set forth in the schedule for the Storm Games and for Other Storm
Events approved in accordance with the provisions of Section 4.3 (b) and the Successor
Agency will not schedule any other events at the Stadium on the day of a Storm Game or
other Storm Event if such event would interfere with the Storm's use of the Stadium.
(d) Agency Suite. For all Storm Games and Other Storm
Events, free of any charge to Successor Agency, the Storm shall (i) secure and deliver to
the Successor Agency tickets and parking passes for use of the Agency Suite, or (ii)
provide reasonable alternative methods of access to the Agency Suite and Agency
Parking. In the event the Successor Agency elects not to use the Agency Suite for any
Other Storm Event, the Storm, including its representatives and invitees, may use the
Agency Suite. The Storm shall indemnify and hold the Successor Agency and the City
harmless from any loss, cost or expense or damage to Successor Agency property
associated or in connection with use of the Agency Suite by third parties.
3. 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) 2017/2018 License Fee: Under the License Agreement,
the Storm is required to pay to the Successor Agency a License Fee in the amount of
$509,729 for calendar year 2017, and $261,237 for the period January 1, 2018 through
June 30, 2018.
(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 "GRCS Concession Fee.").
(c) Annual Maintenance Fee: Under the Maintenance
Agreement, Successor Agency is required to pay Storm an Annual Maintenance Fee of
$237,963 for calendar year 2017, and $121,956 for the period January 1, 2018 through
June 30, 2018.
7.2. Storm Compensation January 1, 2017 — June 30, 2018.
Commencing upon the Commencement Date (January 1, 2017), and continuing through
the expiration of the Term (June 30, 2018), as consideration for the performance of the
services set forth herein, the Storm shall be compensated as follows:
Fourth Amendment to Stadium Interim Management Agt 092716 - 5 -
(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(c) (i.e.,
$237,963 for calendar year 2017, and $121,956 for the period January 1, 2018 through
June 30, 2018).
(d) Payment of Additional Interim Management Fee.
Successor Agency shall pay to Storm an "Additional Interim Management Fee" in the
amount of$456,729 for calendar year 2017, and $243,074 for the six months ended June
30, 2018, which shall be payable in equal monthly installments.
The Maintenance Fee along with the Additional Interim Management Fee
will result total cash payment from the Successor Agency to the Storm of $694,692 for
calendar year 2017 and $356,030 for the period January 1, 2018 through June 30, 2018 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 $57,891 for calendar year 2017 and $59,338 for the period January 1,
2018 through June 30, 2018. The Storm acknowledges and agrees that in no event will
the Successor 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.
4. 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 Capital Repair Schedule with
estimated costs budgeted for the Term 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.
Fouith Amendment to Stadium Interim Management Agt 092716 - 6 -
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, 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 parry 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.
5. Accuracy of Recitals. The Parties acknowledge the accuracy of the foregoing
Recitals, which are incorporated herein by this reference.
6. 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.
7. Carations. 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.
Fouith Amendment to stadium hitedm Management Agt 092716 - 7 -
8. 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.
9. Commencement Date. The provisions of this Amendment shall commence on
January 1, 2017 (the"Commencement Date").
Fourth Amendment to Stadium Interim Management Agt 092716 - 8 -
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
f / CITY OF LAKE ELSINORE
Dated: l2/, 1I6 By:
Grant es. Executive Director
ATTEST:
SUCCESSOR AGENCY CRETARY
Susan M. Domen, MMC
APPROVED AS TO FORM:
LEIBOLD McCLENDO & MANN, P.C.
Success Agency Cou ei
By:
arbara 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. Jacojo<Manager
Fourth Amendment to stadium hiterim Management Agt 092716 - 9 -
EXHIBIT "C"
CAPITAL REPAIR SCHEDULE
See Attached
EXHIBIT "C"
DIAMOND STADIUM CAPITAL REPAIR SCHEDULE
ROPS REQUESTED
(1/1/2017 to
REF# PERIOD 6/30/2018)
CAPITAL REPAIR
1 1/2017 to 6/2018 3rd Base Concession-Replace Grease Trap 42,000
2 1/2017 to 6/2018 Administrative Offices-Capital Repairs 53,400
3 1/2017 to 6/2018 Concessions-Replace Lighting with Energy Efficient LED 7,500
4 1/2017 to 6/2018 Concourse Bathrooms-ADA&Capital Repairs 251,180
5 1/2017 to 6/2018 Diamond Club-Repair Leak in Fountain 4,800
6 1/2017 to 6/2018 Dugout-Repair Concrete 25,000
7 1/2017 to 6/2018 Field-Repair Plumbing&Drains 42,300
8 1/2017 to 6/2018 Underground Plumber/In Ceiling Piping 150,000
9 1/2017 to 6/2018 Home Clubhouse-Capital Repairs 60,000
10 1/2017 to 6/2018 Kids Area-Repair Turf 47,960
11 1/2017 to 6/2018 Operations Office-Capital Repair 28,900
12 1/2017 to 6/2018 Outside Landscaping-Drip Line Irrigation 175,500
13 1/2017 to 6/2018 Outside Landscaping-Drought Tolerant Plants 175,000
14 1/2017 to 6/2018 Parking Lot A-Replace Lighting with Energy Efficient and 5,650
Brighter LED Lighting
15 1/2017 to 6/2018 Parking Lot B-Replace Lighting with Energy Efficient and 11,900
Brighter LED Lighting
16 1/2017 to 6/2018 Press Box-Replace Counters and Cabinets 295,000
17 1/2017 to 6/2018 Press Box-Replace Lighting with Energy Efficient LED 4,980
18 1/2017 to 6/2018 Roll Off-Repair Roof 78,950
19 1/2017 to 6/2018 Stadium Railings-Replace Rusted Stadium Railing in Seating 200,000
Bowl
20 1/2017 to 6/2018 Suite Level Add Additional Railing for Safety Reasons 150,000
21 1/2017 to 6/2018 Suite Level-Replace Counters,Cabinets and Sinks 28,400
22 1/2017 to 6/2018 Suite Level-Replace Lighting with Energy Efficient LED 8,300
23 1/2017 to 6/2018 Terrace-Repair Concrete Steps 35,000
24 1/2017 to 6/2018 Umpire Room-Capital Repairs 22,800
25 1/2017 to 6/2018 Visiting Clubhouse-Capital Repairs 55,000
26 1/2017 to 6/2018 Playing Surface-Re Sod 210,000
27 1/2017 to 6/2018 Stadium Roof Repair/Replacement 500,000
28 1/2017 to 6/2018 Seating Bowl Concrete 250,000
28 1 2017 to 6/2018 Underground pipe repair-Parking Lots A and B 138,000
Equipment Re Iacernent:
30 1/2017 to 6/2018 Parking Lot A-Replace Trash Cans 3,800
31 1/2017 to 6/2018 Parking Lot B-Replace Trash Cans 3,800
32 1/2017 to 6/2018 Picnic Tables 21,560
33 1/2017 to 6/2018 Security System-Replace 48,900
34 1/2017 to 6/2018 Security-Stadium Key 26,500
35 1/2017 to 6/2018 Replace Backlit Exit Signs through the stadium(OHSA) 18,500
36 1/2017 to 6/2018 Equipment-Field-Replace with Emission Compliant Blowers 15,000
(AQMD,OHSA)
37 1/2017 to 6/2018 Equipment-Field Sprayer-Replace Current 18,000
38 1/2017 to 6/2018 Equipment-Verti cutter replacement 110900
39 1/2017 to 6/2018 Equipment-Field Tractor 34,500
40 1/2017 to 6/2018 Equipment-Field-Jacobs Greens King 8,200
Totals $ :3,268,:180.00