HomeMy WebLinkAbout1999-093
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RESOLUTION NO. 1999-93
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
THE CITY OF SAN BERNARDINO AUTHORIZING
AMENDMENT NO. 1 TO JOINT DEVELOPMENT AGREEMENT
(SAN BERNARDINO MUNICIPAL SPORTS COMPLEX) BY
AND AMONG THE CITY OF SAN BERNARDINO, THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND EMPIRE AlG RECREATION, LLC
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7 WHEREAS, the City of San Bernardino ("City") is a municipal corporation and
8 charter city organized and existing pursuant to the constitution of the State of California; and
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10 WHEREAS, the Agency, the City of San Bernardino, a municipal corporation
11 ("City") and Empire AlG Recreation, LLC, a California limited liability corporation ("Empire")
12 entered into that certain Joint Development Agreement (San Bernardino Municipal Sports Complex)
13 dated August 19, 1996 ("Agreement") providing for the development by Empire of a fifty (50) acre
14 parcel of real property ("Property") near the Highway 30 Highland Avenue Exit, including the
15 construction thereon of improvements ("Improvements") consisting of a public recreational facility
1 6 consisting of sixteen (16) soccer fields with ancillary buildings, parking and related landscaping
17 ("Project"); and
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19 WHEREAS, the Agreement further provides that a real estate commission shall be
20 paid to Empire by City in an amount not to exceed One Hundred Thirty-Five Thousand Dollars
21 ($135,000.00) as follows: (i) $45,000 of the commission shall be paid upon execution of the
22 Agreement, execution of a lease of the Property and Improvements by and between the City and the
23 CYSA-South San Bernardino Soccer Foundation, a nonprofit public benefit corporation
24 ("Foundation"), for the benefit of the California Youth Soccer Association-South ("CYSA-S"),
2 5 enabling CYSA-S to conduct annual recreational and competitive league programs and tournaments
2 6 ("Lease") and execution of a "Certificate of Membership and Good Standing and Guarantee of
27 Continuity of Sanctioning Authority" to allow Empire to prepare the Project for public works
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1999-93
1 bidding; (ii) $45,000 of the commission shall be paid upon City's execution of a certificate of
2 completion with respect to the Improvements ("Certificate of Completion"), the approval of CYSA-S
3 of the construction and installation of the Improvements on the Property, the commencement of the
4 term of the Lease, and upon Empire demonstrating to the reasonable satisfaction of the City that not
5 less than 34,145 hotel room nights were rented within the City during the preceding twelve-month
6 period for CYSA-S related activities, and that at least 12 of the tournaments set forth on Exhibit "B"
7 to the Lease in fact occurred and at least 2,223 of the number of participating teams set forth on said
8 Exhibit "B" to the Lease in fact attended a Soccer Tournament as defined in Section 3.3 of the Lease;
9 and (iii) $45,000 of the commission shall be paid not sooner than one (1) year after the occurrence
10 of item (ii) and thereafter upon Empire's demonstrating to the satisfaction of the City that not less
11 than 40,973 hotel room nights were rented within the City during the preceding twelve-month period
12 for CYSA-S related activities and that at least 15 ofthe tournaments set forth on Exhibit "B" to the
13 Lease in fact occurred and at least 2,668 of the number of participating teams set forth in said Exhibit
14 "B" to the Lease in fact attended a Soccer Tournament as defined in Section 3.3 ofthe Lease; and
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WHEREAS, the City has executed the Certificate of Completion; and
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18 WHEREAS, CYSA-S has approved the construction and installation of the
19 Improvements on the Property, and the Lease term has commenced; and
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2 1 WHEREAS, the requirement that Empire demonstrate that a certain number of hotel
22 room nights have been rented within the City during a given period for CYSA-S related activities
23 is impossible of fulfillment, given the lack of data on which to base the calculation; and
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25 WHEREAS, Empire has demonstrated to the Agency and the City that, during the
26 preceding twelve-month period, at least 12 of the tournaments set forth on Exhibit "B" to the Lease
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1999-93
1 have occurred and at least 2,223 of the number of participating teams set forth on Exhibit "B" to the
2 Lease have attended a Soccer Tournament; and
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4 WHEREAS, the Agency and the City are desirous of amending the Agreement to
5 impose on Empire with respect to the two remaining installments earn-out standards susceptible of
6 demonstration.
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8 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
9 OF SAN BERNARDINO, DO HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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Section 1.
The form of amendment to the Agreement ("Amendment No.1")
12 attached hereto as Exhibit A is hereby approved. The Mayor of the City ("Mayor') is hereby
13 authorized and directed for and in the name of and on behalf of the City to execute and deliver
14 Amendment No.1 in substantially the form attached thereto as Exhibit A and presented to and
15 considered at this meeting, with such changes therein as the Mayor executing the same on behalf of
1 6 the City may approve, in her discretion, as being in the best interest of the City, such approval to be
17 conclusively evidenced by such execution and delivery thereof.
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Section 2.
The Mayor and any and all other officers of the City are hereby
20 authorized and directed, for and in the name of and on behalf of the City, to do any and all things and
21 take any and all actions which they may deem necessary or advisable in order to consummate the
22 transaction contemplated herein.
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Section 3.
All actions heretofore taken by any officer or officers of the City with
25 respect to Amendment No. I and the matters referred to in Section 1 hereof are hereby approved,
2 6 confirmed and ratified.
27 III
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1999-93
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING AMENDMENT NO. I TO JOINT DEVELOPMENT
2 AGREEMENT (SAN BERNARDINO MUNICIPAL SPORTS COMPLEX) BY AND AMONG
THE CITY OF SAN BERNARDINO, THE REDEVELOPMENT AGENCY OF THE CITY OF
3 SAN BERNARDINO AND EMPIRE A/G RECREATION, LLC
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Section 4.
This Resolution shall take effect from and after its passage and
5 adoption.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
7 and Common Council of the City of San Bernardino at a ioint reQulaneeting thereof, held on
8 the 17Way of Mav
9 Council: AYES
ESTRADA x
10 LIEN x
MCGINNIS x
11 SCHNITZ x
DEVLIN y
12 ANDERSON y
MILLER x
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, 1999, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
~~h.~
Cit Clerk .
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The foregoing resolution is hereby approved this><,oh'E!a
,1999.
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AMENDMENT NO. 1 TO JOINT DEVELOPMENT AGREEMENT
(SAN BERNARDINO MUNICIPAL SPORTS COMPLEX) BY
AND AMONG THE CITY OF SAN BERNARDINO, THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND EMPIRE A/G RECREATION, LLC
THIS AMENDMENT NO.1 dated May/~ 1999 ("Amendment") is
entered into by and among the CITY OF SAN BERNARDINO, a municipal
corporation ("City'), the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic ("Agency") and
EMPIRE A/G RECREATION, LLC, a California limited liability
corporation ("Empire") with respect to that certain Joint
Development Agreement (San Bernardino Municipal Sports
Complex) dated August 19, 1996 ("Agreement")by and among the City,
the Agency and Empire.
WHEREAS, the Agreement provides for the development by
Empire of a fifty (50) acre parcel of real property ("Property")
owned by the City and located in the northeast portion of the City
near the Highway 30 Highland Avenue Exit, including the
construction of improvements on the Property ("Improvements")
consisting of a public recreational facility consisting of sixteen
(16) soccer fields with ancillary buildings, parking and related
landscaping ("Project"); and
WHEREAS, the Agreement further provides that a real
estate commission shall be paid to Empire by City in an amount not
to exceed One Hundred Thirty-Five Thousand Dollars ($135,000.00) as
follows: (i) $45,000 of the commission shall be paid upon execution
of the Agreement, execution of a lease of the Property and
Improvements by and between the City and the CYSA-South San
Bernardino Soccer Foundation, a nonprofit public benefit
corporation ("Foundation"), for the benefit of the California Youth
Soccer Association-South ("CYSA-S"), enabling CYSA-S to conduct
annual recreational and competitive league programs and tournaments
("Lease")and execution of a "Certificate of Membership and Good
Standing and Guarantee of Continuity of Sanctioning Authority" to
allow Empire to prepare the Project for public works bidding; (ii)
$45,000 of the commission shall be paid upon City's execution of a
certificate of completion with respect to the Improvements
("Certificate of Completion"), the approval of CYSA-S of the
construction and installation of the Improvements on the Property,
the commencement of the term of the Lease, and upon Empire
demonstrating to the reasonable satisfaction of the City that not
less than 34,145 hotel room nights were rented within the City
1999-93
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during the preceding twelve-month period for CYSA-S related
activities, and that at least 12 of the tournaments set forth on
Exhibit ~B" to the Lease in fact occurred and at least 2,223 of the
number of participating teams set forth on said Exhibit "B" to the
Lease in fact attended a Soccer Tournament as defined in Section
3.3 of the Lease; and (iii) $45,000 of the commission shall be paid
not sooner than one (1) year after the occurrence of item (ii) and
thereafter upon Empire's demonstrating to the satisfaction of the
City that not less than 40,973 hotel room nights were rented within
the City during the preceding twelve-month period for CYSA-S
related activities and that at least 15 of the tournaments set
forth on Exhibit "B" to the Lease in fact occurred and at least
2,668 of the number of participating teams set forth in said
Exhibit ~B" to the Lease in fact attended a Soccer Tournament as
defined in Section 3.3 of the Lease; and
WHEREAS, the City has executed the Certificate of
Completion; and
WHEREAS, CYSA-S has
installation of the Improvements
term has commenced; and
approved the construction and
on the Property, and the Lease
WHEREAS, the requirement that Empire demonstrate that a
certain number of hotel room nights have been rented within the
City during a given period for CYSA-S related activities is
impossible of fulfillment, given the lack of data on which to base
the calculation; and
WHEREAS, Empire has, as of the date of this Amendment,
demonstrated that, during the preceding twelve-month period, at
least 12 of the tournaments set forth on Exhibit ~B" to the Lease
have occurred and at least 2,223 of the number of participating
teams set forth on Exhibit "B" to the Lease have attended a Soccer
Tournament; and
WHEREAS, the parties to the Agreement are desirous of
imposing on Empire with respect to the two remaining installments
of the commission earn-out standards susceptible of demonstration.
NOW, THEREFORE, in consideration of the premises and such
other good and valuable consideration the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
> .
1999-93
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Section 1.
hereby amended in its
Section 3 .A. (iii) of the
entirety to read as follows:
Agreement
is
"(iii) to pay Empire a real estate commission
in an amount not to exceed One Hundred Thirty-
Five Thousand Dollars ($135,000) as follows:
(i) $45,000 of the commission shall be paid
upon execution of this Agreement, the Lease
and the "Certificate of Membership and Good
Standing and Guarantee of Continuity of
Sanctioning Authority" in substantially the
form as attached to the Lease so as to allow
Empire to prepare the Project for public works
bidding; (ii) $45,000 of the commission shall
be paid upon the City's execution of the
Certificate of Completion, CYSA-S's approval
of the construction and installation of the
Improvements on the Property, the commencement
of the term of the Lease, and upon Empire
submitting to the City a marketing plan
reasonably satisfactory to the City for
increasing rental of hotel room nights in the
City for CYSA-S related activities, which
includes securing the cooperation of the
Foundation and CYSA-S in encouraging attendees
at Soccer Tournaments as defined in Section
3.3 of the Lease to rent rooms in the City
(the "Marketing Plan") and that at least 12 of
the tournaments set forth on Exhibit "B" to
the Lease have occurred and at least 2,223 of
the number of participating teams set forth on
said Exhibit "B" to the Lease have in fact
attended a Soccer Tournament as defined in
Section 3.3 of the Lease; and (iii) $45,000 of
the commission shall be paid not sooner than
one (1) year after the occurrence of item (ii)
above and thereafter upon Empire demonstrating
to the reasonable satisfaction of the City
that it has substantially implemented the
Marketing Plan and that at least 15 of the
tournaments set forth on Exhibit "B" to the
Lease have occurred and at least 2,668 of the
number of participating teams set forth on
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said Exhibi t "B" to the Lease have in fact
attended a Soccer Tournament as defined in
Section 3.3 of the Lease."
Section 2.
reaffirmed as originally
All other provisions of the Agreement are
stated.
Section 3. This Amendment shall not be effective for
any purpose or be binding and enforceable upon the City or the
Agency until such time when this Amendment has been approved
pursuant to official action of the City and the Agency in
accordance with duly adopted and approved City and Agency
resolutions authorizing the Mayor and City Clerk of the City, and
the Chairman and Secretary of the Agency to execute this Agreement
on behalf of the City and the Agency, respectively. This Amendment
may be executed in original counterparts, each of which shall be
deemed to be an original for all purposes, and such counterparts
shall constitute one and the same instrument.
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. 1999-93
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment on the year and day first above written.
ATTEST:
~}j. h~
Rac 1 Clark, City Clerk
APPROVED AS TO FORM
AND LEGAL CONTENT:
James F. Penman
C'ty Attorney
By:
?,t-~
,
APPROVED
AND LEG
FORM
T:
~
Timothy . Sabo
Agency Special Counsel
Counsel 0
Recreation,
P:\APPS\WPDATA\SBEO\OOOl\nOC\3483.WPD
REDEVELOPMENT AGENCY OF THE
CITY SBERNARDINO
EMPIRE A/G RECREATION, LLC
By:
By:
~~J~
Secretary
5
Empire Consulting
ATTN: Don Regan
Kensell, O'Neill, Newcomb &
De Dics
462 Stevens Ave., Suite '308
Solano Beach, CA 92507