HomeMy WebLinkAbout2015-229 1
RESOLUTION NO. 2015-229
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
3 BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE OF THE SAN
4 BERNARDINO SOCCER COMPLEX TO SAN BERNARDINO SOCCER, LLC AND
APPROPRIATING $143,141 FROM THE SOCCER FIELD FUND
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7
SECTION 1. That the City Manager is hereby authorized to execute on behalf of the
8
9 City of San Bernardino a lease with San Bernardino Soccer, LLC for the San Bernardino Soccer
lo Complex attached hereto as Exhibit"A" and incorporated herein as though set forth at length.
11 SECTION 2. That the Finance Department is authorized and directed to amend the FY
12
2015-16 Budget to include an appropriation in the amount of $143,141 from the Soccer Field
13
14 Fund for this project.
15 SECTION 3. This policy shall take effect immediately upon adoption of this Resolution.
16 ///
17 ///
18 ///
19 ///
20
21
22 ///
23 ///
24
25
26
27
28
1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF A LEASE OF THE SAN
2 BERNARDINO SOCCER COMPLEX TO SAN BERNARDINO SOCCER, LLC AND
3 APPROPRIATING $143,141 FROM THE SOCCER FIELD FUND
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the
7 19th day of October, 2015, by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9
MARQUEZ x-
10
11 BARRIOS X
12 VALDIVIA X
13 SHORETT X
14
NICKEL x-
15
16 JOHNSON X
17 MULVIHILL X
19 Georga ann Hanna, CMC, City Clerk
2o The foregoing Resolution is hereby approved this S day of October, 15.
21
22 R. Carey Da/=dino ayor
23 City of San
Approved as to form:
24 Gary D. Saenz, City Attorney
25
By: c�
26
27
28
2
2015-229
LEASE AGREEMENT
CITY OF SAN BERNARDINO and SAN BERNARDINO SOCCER, LLC
CITY: CITY OF SAN BERNARDINO
300 North"D" Street
San Bernardino, CA 92418
LESSEE: San Bernardino Soccer, LLC (an entity to be formed)
280 S. E Street
San Bernardino, CA 92401
ADDRESS: San Bernardino Soccer Complex
2500 Pacific Street
Highland, CA 92346
TERM OF LEASE: Ten(10) Years with Options
COMMENCEMENT: October 1, 2015
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 1 of 23
2015-229
1. PARTIES.
This Lease AGREEMENT (the "AGREEMENT") is entered into thisl9thday of October ,
2015, BY AND BETWEEN
the City of San Bernardino, a Charter City organized under the laws of the State of
California, with an address of 300 N. "D" Street, San Bernardino, California (the
"CITY");
AND,
San Bernardino Soccer, LLC ( "LESSEE") (individually CITY or LESSEE may be
referred to as a "PARTY" and collectively CITY and LESSEE may be referred to as the
"PARTIES")
WHO AGREE AS FOLLOWS:
2. PREMISES LEASED.
CITY leases to LESSEE and LESSEE leases from CITY the San Bernardino Soccer Complex, a
47 acre soccer facility, including real property, and other improvements, with parking, located at
2500 Pacific Street, Highland, California 92346 ("PREMISES").
3. TERM.
The AGREEMENT's initial term ("INITIAL TERM") shall commence on October 1, 2015
("COMMENCEMENT DATE") and end on September 30, 2025 ("ENDING DATE").
4. OPERATION OF PREMISES
4.1 DEFINITIONS.
4.1.1 CAPITAL IMPROVEMENTS — The term "CAPITAL
IMPROVEMENTS" means newly constructed infrastructure, replacement,
or renovations of an existing improvement. A "Capital Improvement"
shall not include any expenditure for regular, ordinary, or routine
maintenance or repair work or replacements and shall specifically exclude
the following: individual or small-scale replacement of irrigation sprinkler
heads or minor extension of an existing irrigation system; minor electrical
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 2 of 23
2015-229
repairs; minor landscaping work not associated with a major
improvement; and other routine maintenance and repairs.
4.1.2 GROSS REVENUES — The term "GROSS REVENUES" means all
revenues from any business operations on the PREMISES generated by
LESSEE or its vendors, concessionaires, contractors, subcontractors,
agents, licensees, assignees, or sub-lessees that a Member of LESSEE (as
such term is defined in California Corporations Code Section 17701.02)
has an ownership interest in, including Diamond Concession, Inc., directly
or cash or charge or non-cash (in-kind) amounts received, including all
admission fees charged for entry to the PREMISES, parking fees for
parking at the PREMISES, and all league or tournament entry fees for use
of the PREMISES, during each calendar year less any state, local, or
federal sales tax. The value of any non-cash consideration received by
LESSEE shall be determined by LESSEE's reasonable discretion. Each
charge or sale or installment or credit or non-cash (in-kind) amount is to
be treated as a sale for the month when LESSEE actually receives the
payment. The term "GROSS REVENUES" shall include all GROSS
REVENUES, fees, charges, non-cash, and other income generated by the
by the sale of advertising or promotional activities at the PREMISES
(collectively "Advertising Revenues"). The term "Advertising Revenues"
shall include net cash revenue received by LESSEE from website, wall,
scoreboard, and turf advertising. The term "Advertising Revenues" shall
not include the value of non-cash items received by LESSEE that are
valued at less than $1,000, or team sponsorships, including without
limitation, free samples, prizes, giveaways,team sponsorships on uniforms
or t-shirts or any other items with an advertiser's name or logo on it. The
term "GROSS REVENUES" shall exclude credits and refunds for
returned or exchanged merchandise, services performed unsatisfactorily,
credits and amounts to settle claims for loss or damage to merchandise, or
any sales, use, value added, excise or gross revenue tax imposed by any
federal, state, or local governmental authority directly on sales and
collected from customers. To the extent LESSEE subcontracts with any
vendor, concessionaire or other third party to provide goods or services at
the PREMISES, GROSS REVENUES shall only include the amounts
actually collected from such vendor, concessionaire or third party by
LESSEE.
4.2 CAPITAL IMPROVEMENT PROGRAM.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 3 of 23
2015-229
LESSEE shall develop, implement and perform a comprehensive capital improvement
program ("Cl PROGRAM") for the PREMISES. The CI PROGRAM is subject to the
review and reasonable approval of CITY. As described in detail below, this program shall
contain a Cl PROGRAM reserve fund, a Cl PROGRAM work plan, and an accounting of
work completed under the Cl PROGRAM. At a minimum, the CI PROGRAM will
include the following:
4.2.1 CI PROGRAM Reserve Fund. On December 31, 2015 and every three (3)
months thereafter for the TERM of this AGREEMENT, the LESSEE shall
deposit 5% of the GROSS REVENUES for the preceding three (3) months
into an interest bearing bank account designated "Cl PROGRAM Reserve
Fund" (the "FUND"). LESSEE shall maintain adequate records for the
FUND, the adequacy of which shall be determined in the sole discretion of
the CITY. The FUND, maintained by LESSEE, is solely for LESSEE's
completion of CAPITAL IMPROVEMENTS to the PREMISES during
the TERM of the AGREEMENT. Upon the expiration or earlier
termination of this AGREEMENT any unspent balance in the FUND shall
be transferred to CITY.
4.2.1.1 On June 30, 2016 and each year thereafter during the TERM of
this AGREEMENT, LESSEE shall provide to CITY an annual
statement of GROSS REVENUES and of the FUND prepared by
an independent certified public accountant. LESSEE shall maintain
true, complete, and accurate books and records in respect to
GROSS REVENUES and the FUND and, upon not less than ten
(10) business days' prior written notice, LESSEE shall allow CITY
or its representative reasonable access to LESSEE'S books and
records for inspection and reproduction at reasonable business
hours, at CITY'S sole cost and expense. At any reasonable time
within three (3) years after receipt of LESSEE'S annual statements
for GROSS REVENUES and the FUND, CITY may, at CITY'S
sole expense, cause an audit to be made of LESSEE'S books and
records for the period covered by such statement.
4.2.2 Annual Capital Improvement Plan. Not later than October 31, 2015 and
every year thereafter, LESSEE shall provide to City Manager of CITY for
approval a multi-year capital improvement plan (the "Cl PLAN") detailing
the time, manner and estimated cost for all maintenance projects that will
be commenced or completed within the 12-month period beginning on the
immediately following January 1st and including a budget for major items
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 4 of 23
2015-229
to be completed in future years. Within thirty (30) days following receipt,
CITY shall either approve or disapprove of the Cl PLAN, and if CITY
disapproves, the CITY and LESSEE shall in good faith negotiate and
resolve any deficiencies any required changes to correct such deficiencies
identified by CITY.
4.2.2.1 Initial Capital Improvement Contributions. In addition to the
above, it is anticipated that significant CAPITAL IMPROVEMENTS will
be proposed in the initial CI PLAN ("INITIAL CI PLAN"). The INITIAL
Cl PLAN should include a proposed contribution from the CITY's Soccer
Complex Fund, or other CITY sources, not to exceed four hundred
thousand dollars ($400,000) ("INITIAL CITY CONTRIBUTION"), and a
proposed contribution from the LESSEE that approximately doubles the
proposed CITY contribution, not to exceed eight hundred thousand dollars
($800,000) ("INITIAL LESSEE CONTRIBUTION"). Notwithstanding
the foregoing, LESSEE shall not be required to make any matching
contribution (double or otherwise) for any portion of the INITIAL CITY
CONTRIBUTION that is used toward the payment of wages in excess of
market rate, as reasonably determined by LESSEE, and the INITIAL
LESSEE CONTRIBUTION will be reduced accordingly. The INITIAL Cl
PLAN should anticipate complete expenditure of the INITIAL CITY
CONTRIBUTION and INITIAL LESSEE CONTRIBUTION by June 30,
2018. Any expenditure proposed to be funded by the INITIAL CITY
CONTRIBUTION must comply with all federal, state, and local
ordinances, regulations, and laws concerning the expenditure of public
funds, including but not limited to those sections of the San Bernardino
Municipal Code related to purchasing goods and services, and those
sections of the Labor Code related to prevailing wage. LESSEE will be
reimbursed by CITY for all expenditures funded by INITIAL CITY
CONTRIBUTION in conformity with the INITIAL Cl PLAN upon
presentation of an invoice within forty-five (45) days. Failure by LESSEE
to fully expend the INITIAL LESSEE CONTRIBUTION by June 30,
2018 shall constitute default under this AGREEMENT, unless the
expenditure was delayed by events beyond LESSEE's reasonable control.
4.2.3 PREMISES Condition Report. Not later than June 30, 2018 and every
five (5) years thereafter, CITY shall cause to be prepared a comprehensive
report on the condition of the PREMISES ("REPORT"), conducted and
prepared by an independent and reputable third party consultant mutually
approved by the CITY and LESSEE. LESSEE shall pay up to FIVE
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 5 of 23
2015-229
THOUSAND DOLLARS ($5,000) towards the cost of the REPORT
required to be prepared hereunder from the FUND with the CITY paying
the balance of the cost. The REPORT, among other things, shall assess the
quality of the capital improvements and maintenance of the PREMISES
performed by LESSEE, shall identify any items of deferred maintenance
and repairs, necessary capital improvements, and other deficiencies, and
shall provide LESSEE with detailed recommendations to correct the
identified deficiencies, to the reasonable satisfaction of CITY, within two
(2) years of the receipt of the REPORT.
4.2.3.1 INITIAL PREMISES Condition Report. Not later than six (6)
months after the Effective Date of this LEASE, LESSEE shall deliver to
CITY a REPORT, in conformity with the requirements above, that details
the initial condition of the PREMISES.
4.3 OPERATIONS
4.3.1 Maintenance and Operations. LESSEE shall maintain and operate the
PREMISES to ensure public safety and enjoyment.
4.3.2 Quality of Service and Merchandise. LESSEE represents and warrants to
CITY that LESSEE has the necessary experience and qualifications to
operate the PREMISES. CITY reserves the right to notify LESSEE in
writing of any deficiencies in the way services are offered to the general
public and the appearance and condition of the PREMISES. Upon receipt
of the notice, LESSEE agrees to cooperate with CITY to discuss
remediation of any services found to be objectionable or inadequate to
CITY.
4.3.3 Rates and Prices. The prices, fees and other costs LESSEE charges for
services and merchandise shall be reasonable and comparable to rates
charged for similar goods and services in the community. Upon request
from the CITY, LESSEE shall provide to CITY the current list of prices,
fees, and other costs charged by LESSEE. LESSEE shall include the list of
current prices, fees and other costs charged by LESSEE with its annual Cl
PLAN for review.
4.3.4 Continuous Operation. LESSEE agrees to continuously market and
operate the PREMISES during the TERM of this LEASE, and hold it open
to the public for the purposes at the times and for the purposes set forth in
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 6 of 23
2015-229
Section 9 below. If required as part of the Cl PLAN, the CITY may
authorize LESSEE to temporarily close the PREMISES.
4.3.5 Public Safety. LESSEE shall maintain and operate the PREMISES to
afford the highest practical degree of health, safety, and security for the
public.
4.3.6 Alcohol Sales. Nothing in this LEASE is intended to prohibit the sale of
alcoholic beverages at the PREMISES subject to LESSEE's compliance
with all applicable regulations and licensing requirements of the California
Department of Alcohol Beverage Control and any other governmental
agency, including CITY, having jurisdiction over such sale.
4.3.7 Former CITY Personnel. To the extent practical, LESSEE shall offer
employment to former CITY employees that worked at the PREMISES.
4.3.8 Sign Approval. LESSEE shall secure CITY approval and shall fulfill
CITY sign standards for any permanent signs to be placed on the
PREMISES or anywhere else that refers to the PREMISES. As used
herein, "permanent signs" shall include any sign attached to a building
structure, or the ground in a manner that precludes ready removal or
movement of the sign.
4.3.9 Credit in Promotional Materials and Signs. LESSEE shall include the
following in all promotional materials about LESSEE's relationship to the
PREMISES, "'San Bernardino Soccer Complex' is operated in
cooperation with the City of San Bernardino."
4.3.10 Naming Rights. The current name of the PREMISES is the "San
Bernardino Soccer Complex." LESSEE shall, in all promotional
advertising, signage, or other marketing materials, refer to the PREMISES
as the "San Bernardino Soccer Complex" unless the name is changed by
the Mayor and Common Council of the CITY. If the name of the
PREMISES is changed by the CITY, the CITY agrees to reimburse
LESSEE for the costs LESSEE incurs as a result of the name change,
including but not limited to costs to replace marketing materials and
change signage, unless the name change is part of a LESSEE naming
rights transaction.
5. OPTION TO EXTEND TERM.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 7 of 23
2015-229
CITY gives to LESSEE the option to extend the term of the LEASE on the same provisions and
conditions, except for the percentage of GROSS REVENUE deposited into the FUND, for three
(3) five-year periods ("EXTENDED TERMS") following expiration of the INITIAL TERM, by
LESSEE giving notice of its intention to exercise the option to CITY prior to the expiration of
the preceding term or during any holding over pursuant to SECTION 7, HOLDING OVER. The
percentage of GROSS REVENUE deposited into the FUND for each extended term shall be
adjusted by good faith negotiations of the PARTIES to account for anticipated capital
improvement needs of the PREMISES, but shall not exceed eight percent (8%) of GROSS
REVENUE for the first extended term, nine and a half percent (9.5%) of GROSS REVENUE for
the second extended term, and eleven percent (11%) of GROSS REVENUE for the third
extended term.
6. RETURN OF PREMISES.
The LESSEE agrees that it will, upon termination of this AGREEMENT, return the PREMISES
in as good condition and repair as the PREMISES now are or shall hereafter be put; reasonable
wear and tear excepted.
7. HOLDING OVER.
In the event the LESSEE shall hold over and continue to occupy the PREMISES with the
consent of the CITY, whose consent shall only be given in writing and in the sole discretion of
CITY, the tenancy shall be deemed to be a tenancy from month-to-month upon the same terms
and conditions, including the percentage of GROSS REVENUE to be deposited into the FUND,
as existed and prevailed at the time of the expiration of the term of this AGREEMENT.
8. TAXES.
CITY shall pay all real property taxes, and general and special assessments levied and assessed
against the PREMISES.
9. USE.
9.1 LESSEE shall have the exclusive right to use the PREMISES to provide and
operate, on a non-discriminatory basis soccer and related facilities including but
not limited to the provision of sports fields for soccer, or other open field team
sports, together with facilities necessary or desirable to provide such supportive
services of such sports uses on the PREMISES such as food and beverage
(including alcoholic beverages) concession facilities, restrooms, parking facilities,
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 8 of 23
2015-229
and any other use proposed by LESSEE upon the prior written consent of the
CITY, which may be given in CITY's sole discretion. In the event that, through
no fault of the LESSEE, it becomes impossible or impractical to use the
PREMISES for the operation of the Soccer Complex, CITY and LESSEE shall
negotiate in good faith for another lawful use of the PREMISES. Primary purpose
of the PREMISES will be the operation as a Soccer Complex for soccer or other
open field sports uses, not to be less than ninety percent (90%) of the PREMISES
rental schedule. All other uses, not to exceed ten percent (10%) of the rental
schedule, will follow local, state, and federal law. All uses will not compromise
the integrity of the facility, its structures, or the playing surface of the fields.
9.2 LESSEE shall cut no timber, conduct no mining operations, remove no sand,
gravel, or similar substances from the ground, commit no waste of any kind, nor
in any manner substantially change the contour or condition of the PREMISES,
except as may be authorized under this AGREEMENT. LESSEE shall not
discharge nor allow or suffer the discharge of any substances which will
contaminate streams or other bodies of water or otherwise become a public
nuisance. LESSEE shall comply with such laws, regulations, ordinances,
conditions, or instructions in effect or prescribed by the federal, state, or local
government relating to the discharge of substances into streams or other bodies of
water.
10. HEALTH, SAFETY, AND FIRE CODE REQUIREMENTS.
LESSEE shall, at its sole expense, ensure that the PREMISES meets the applicable requirements
of all Health, Safety, Fire and Building Codes, statutes, regulations and ordinances for public and
governmental buildings including any requirements for a notice of completion, certificate of
occupancy, California Title 24 requirements, and the applicable requirements of the Americans
with Disabilities Act ("ADA") and related state laws.
11. SIGNS.
LESSEE will display the PREMISES only such sign or signs as are not prohibited by law.
12. MAINTENANCE.
12.1 LESSEE shall, at its sole expense, perform such inspections, maintenance and
repairs are necessary to ensure that all portions of the PREMISES, including but
not limited to the following, are at all times in good repair and safe condition:
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 9 of 23
2015-229
12.1.1 The structural parts of the buildings and other improvements that are a part
of the PREMISES, which structural parts include the foundations, bearing
and exterior walls (including glass and doors), subflooring, and roof; and,
12.1.2 The electrical, plumbing, and sewage systems, except for those portions of
the systems owned or controlled by CITY lying outside the PREMISES;
and,
12.1.3 Window frames, gutters, and downspouts on the building and other
improvements that are a part of the PREMISES; and,
12.1.4 Heating, ventilation and air conditioning (HVAC) systems servicing the
PREMISES including changing heating and air-conditioning filters every
four(4) months; and,
12.1.5 The grounds, including all parking areas and outside lighting, grass, field
surfaces, turf, trees, shrubbery and other flora; and,
12.1.6 LESSEE shall, at its sole expense, provide janitorial services, keep the
interior of the PREMISES in a clean and orderly condition, reasonable
wear and tear excluded, and undertake minor maintenance of the interior
PREMISES such as unstoppage of toilets and changing of light bulbs and
serving of the fire extinguisher or any other fire suppression equipment
attached to the facility.
12.2 LESSEE shall at regular intervals, but no less than monthly, conduct an inspection
of the PREMISES to determine if any maintenance or repair is necessary.
LESSEE shall communicate the necessity for maintenance or repair to the CITY
in writing in conformity with Section 24 on Notice.
12.3 In the event that the FUND has an insufficient balance to cover the costs of
repairs, replacement, or maintenance of the following items, then the CITY, at its
sole expense, shall cause the following items to be repaired, replaced, or
maintained: building foundations, building structures, roofing, parking lot
reconstruction (excluding resurfacing or striping), existing field lighting structures
(excluding light bulbs), electrical, plumbing (foundation and below), rod iron
fencing (excluding painting), and sewage systems.
13. ALTERATIONS.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 10 of 23
2015-229
Upon thirty (30) days' notice to the CITY and with the CITY's consent, LESSEE may add or
modify existing building structures on the PREMISES, at LESSE'S sole expense. Any and all
permit acquisition and installation of utility lines are the sole responsibility of the LESSEE.
14. FIXTURES.
LESSEE shall have the right during the term(s) of this AGREEMENT to install shelving and
fixtures, and make interior, non-structural improvements or alterations on the PREMISES. Such
shelving, fixtures, improvements, and alterations shall remain property of the LESSEE and may
be removed by the LESSEE during the term(s) of this AGREEMENT or within a reasonable
time thereafter, provided that the LESSEE restores the PREMISES to the condition as it existed
at the commencement of this AGREEMENT, reasonable wear and tear excluded, or the LESSEE
may elect, with CITY's written consent to be given at CITY's sole discretion, to surrender all or
any part of such shelving, fixture, improvements and alterations, to the CITY, in which case
LESSEE shall have no duty to restore the PREMISES.
15. UTILITIES.
LESSEE shall furnish to the PREMISES and at its sole expense pay all service charges and
related taxes for electric, gas, water, sewer, trash, fire alarm service, security, telephone, cable,
internet services and all other utilities. LESSEE may use the existing water well owned by the
CITY for irrigation and other on-site use of the PREMISES, but LESSEE shall be solely
responsible for any fines, fees, charges, or other costs associated with its operation of the water
well, and LESSEE shall be solely responsible for ensuring compliance with any federal, state, or
local laws or regulations regarding its operation of the water well.
16. HOLD HARMLESS.
LESSEE agrees to and shall indemnify and hold the CITY, its elected officials, employees,
agents, or representatives, free and harmless from all claims, actions, damages and liabilities of
any kind and nature arising from bodily injury, including death, or property damage, based or
asserted upon any actual or alleged act or omission of LESSEE, its employees, agents, or
subcontractors, arising, relating to, or in any way connected with the performance under this
AGREEMENT, unless the bodily injury or property damage was actually caused by the sole
negligence or willful misconduct of the CITY, its elected officials, employees, agents or
representatives. As part of the foregoing indemnity, LESSEE agrees to protect and defend at its
own expense, including attorney's fees, the CITY, its elected officials, employees, agents or
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 11 of 23
2015-229
representatives from any and all legal actions based upon such actual or alleged acts or
omissions. LESSEE hereby waives any and all rights to any types of express or implied
indemnity against the CITY, its elected officials, employees, agents or representatives, with
respect to third party claims against the LESSEE relating to or in any way connected with the
accomplishment of the work or performance of services by LESSEE under this AGREEMENT.
17. INSURANCE.
17.1 CITY is a self-insured public entity for the purposes of professional liability,
general liability, and workers' compensation.
17.2 LESSEE shall obtain and maintain during the life of this AGREEMENT all of the
following insurance coverage:
17.2.1 Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, personal injury with a policy limit of not less than
Two Million Dollars ($2,000,000.00), combined singles limits, per
occurrence and aggregate.
17.2.2 Automobile liability for owned vehicles, hired, and non-owned vehicles,
with a policy limit of not less than One Million Dollars ($1,000,000.00),
combined single limits,per occurrence and aggregate.
17.2.3 Worker's compensation insurance as required by the State of California.
17.3 The comprehensive general liability insurance policy shall contain or be endorsed
to contain the following provisions:
17.3.1 Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds
with respect to this subject project and contract with City."
17.3.2 Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to
City."
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER,LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 12 of 23
2015-229
1
17.3.3 Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance
provided by this policy."
17.4 LESSEE shall provide to CITY certificates of insurance showing the insurance
coverages and required endorsements described above, in a form and content
approved by CITY, prior to performing any services under this AGREEMENT.
17.5 Nothing in this Section shall be construed as limiting in any way, the
indemnification provision contained within this AGREEMENT, or the extent to
which LESSEE may be held responsible for payments of damages to persons or
property.
18. DESTRUCTION OF PREMISES.
18.1 During the term(s) of this AGREEMENT, if any casualty, other than resulting
from LESSEE's use of the PREMISES, renders a portion of the PREMISES
unusable for the purpose intended, then LESSEE shall, with the use of the FUND
in conformity with Section 4, restore the PREMISES and repair any damages
caused by such casualty as soon as reasonable possible and this AGREEMENT
shall continue in full force and effect. If LESSEE does not commence the
restoration of the PREMISES in a substantial and meaningful way within thirty
(30) days following the LESSEE's receipt of written notice of the casualty, or
should LESSEE fail to diligently pursue completion of the restoration of the
PREMISES, or if the FUND and insurance proceeds are insufficient to restore the
PREMISES and LESSEE refused to make up the difference in restoration costs,
CITY may, at its option, terminate this AGREEMENT immediately upon written
notice to the LESSEE. If CITY elects to terminate this AGREEMENT pursuant to
this section, LESSEE shall be discharged from all future obligations under this
AGREEMENT.
18.2 In the event there is a destruction of a portion of the PREMISES as set out in
Subsection 18.1 above, there shall be an abatement or reduction of the percentage
of GROSS REVENUES deposited in the FUND between the date of the
destruction and the date of completion of the restoration or the date of the
termination of the AGREEMENT, whichever comes first. The abatement or
reduction in the percentage of GROSS REVENUES deposited in the FUND shall
be in proportion to the degree to which LESSEE's use of the PREMISES is
impaired.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 13 of 23
2015-229
18.3 In the event the LESSEE is required to restore PREMISES as provided in
Subsection 18.1 above, LESSEE shall also be required to restore any structure or
exterior improvements or alterations made to the PREMISES by LESSEE
pursuant to Section 13, Alterations above but not any shelving, fixtures, or
interior nonstructural improvements or alterations made by LESSEE pursuant to
Section 14, Fixtures above.
18.4 If any casualty resulting from LESSEE's use of the PREMISES renders the
PREMISES unusable for the purposes intended, or for any other purpose, then
LESSEE shall, at LESSEE's sole expense, restore the PREMISES and repair any
damages caused by such casualty as soon as reasonably possible and this
AGREEMENT shall continue in full force and effect.
18.5 It is the purpose and intent of Subsections 18.1 through 18.4, inclusive, to
determine what PARTY shall bear the initial responsibility for restoration of the
PREMISES in the event of any such destruction and not to determine the PARTY
ultimately responsible for the costs of such restoration.
19. CITY'S DEFAULT.
Except where another time limit is specifically provided, CITY shall be in default of this
AGREEMENT if CITY fails or refuses to perform any material provisions of this
AGREEMENT and such failure or refusal to perform is not cured within thirty (30) days
following CITY's receipt of written notice of default from LESSEE. If the default cannot be
reasonably cured within thirty (30) days, CITY shall not be in default of this AGREEMENT if
CITY commences to cure the default within the thirty (30) day period and diligently and in good
faith continues to cure the default.
20. LESSEE'S REMEDIES ON CITY'S DEFAULT.
LESSEE, at any time after CITY is in default, can terminate this AGREEMENT immediately
upon written notice to CITY or can cure the default. If LESSEE at any time, by reason of CITY's
default, pays any sum or does any act that requires the payment of any sum, the sum paid by
LESSEE shall have the right to withhold from future deposits into the FUND the sum LESSEE
has paid until LESSEE is reimbursed in full for the sum. The remedies set forth in this section
are in addition to and do not in any manner limit other remedies set forth in particular sections of
this AGREEMENT or by law.
21. LESSEE'S DEFAULT.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER,LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 14 of 23
2015-229
t r °
The occurrence of any one or more of the following events shall constitute a default and breach
of this AGREEMENT by LESSEE:
21.1 The vacating for more than thirty (30) consecutive days or abandonment of the
PREMISES by LESSEE.
21.2 The failure of LESSEE to perform any material provisions of this AGREEMENT
to be performed by LESSEE, including deposit of GROSS REVENUE into the
FUND or failure to expend INITIAL LESSEE CONTRIBUTIONS by June 30,
2018, upon written notice by CITY to LESSEE.
21.3 It is not the purpose of this section to extend the notice requirements of the
unlawful detainer statutes in California.
22. CITY'S REMEDIES ON LESSEE'S DEFAULT.
It is not the purpose of this section to extend the notice requirements of the unlawful detainer
statutes in California. The remedies contained herein are in addition to, and not in lieu of, any
other remedies available to CITY under relevant state law.
22.1 In the event of any default by LESSEE, which is not cured by LESSEE, CITY
may, at its election, terminate this AGREEMENT by giving LESSEE thirty (30)
days' notice of termination.
22.2 On termination of this AGREEMENT for default pursuant to this section, CITY
shall have the right to recover from LESSEE all amounts for any and all damages,
which may be the direct or indirect result of such default, including, but not
limited to:
22.2.1 The worth, at the time of the award, of the unpaid percentage of GROSS
REVENUE to be deposited into the FUND that has been earned at the
time of the termination of the AGREEMENT; and,
22.2.2 The worth, at the time of the award, of the amount by which the unpaid
percentage of GROSS REVENUE to be deposited into the FUND that
would have been earned after the date of termination of this
AGREEMENT until the end of the TERM; and,
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 15 of 23
2015-229
t �
22.2.3 Any other amount necessary to compensate the CITY for all detriment
proximately caused by LESSEE's default which CITY proves could not
have been reasonably avoided.
22.2.4 "The worth, at the time of the award," as used in this section, is to be
computed by allowing interest at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award, plus one percent (1%) not
to exceed ten percent (10%).
23. CITY'S ACCESS TO PREMISES.
CITY and its authorized representatives shall have the right to enter the PREMISES at all
reasonable times upon at least three days' advance notice to LESSEE for any of the following
conditions:
23.1 To determine whether the PREMISES are in good condition; and,
23.2 To do any necessary maintenance and to make any restoration to the PREMISES
that CITY has the right or obligation to perform; and,
23.3 To serve, post, or keep posted any notices required by law; and,
23.4 To show the PREMISES to prospective brokers, agents, buyers, tenants, lenders
or persons interested in an exchange during the last three (3) months of the final
option term or the last three (3) months of such earlier term if LESSEE notified
CITY that it does not intend to exercise any further options to extend the term;
and,
23.5 For any other lawful purpose.
CITY shall conduct its activities on the PREMISES as allowed in this section in a manner that
will reduce possible inconvenience, annoyance, or disturbance to LESSEE.
24. NOTICES.
Any notices, documents, correspondence, or other communication concerning this
AGREEMENT or the services provided hereunder may be provided by personal delivery or U.S.
Mail. If personally delivered the notice shall be deemed delivered at the time of the personal
delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after
deposit in the U.S. Mail as reflected by the official U.S. postmark.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 16 of 23
2015-229
TO THE CITY: TO THE LESSEE:
City of San Bernardino San Bernardino Soccer, LLC
ATTN: City Manager ATTN: Daniel Gamba
300 N. "D" Street, 6`h Floor 280 S. E Street
San Bernardino, CA 92418 San Bernardino, CA 92401
Either PARTY may change the address for delivery of notices by sending notice of the change to
the other PARTY in conformity with this Section.
25. ASSIGNMENT.
LESSEE shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or
any part of the LESSEE's interest in this AGREEMENT without CITY's prior written consent to
be given in CITY's sole discretion. Any attempted assignment, transfer, subletting or
encumbrance shall be void and shall constitute a breach of this AGREEMENT and cause for the
termination of this AGREEMENT. Regardless of CITY's consent, no subletting or assignment
shall release LESSEE of LESSEE's obligation to perform all other obligations to be performed
by LESSEE hereunder for the term of this AGREEMENT.
26. ENTIRE AGREEMENT.
This AGREEMENT constitutes the entire agreement and the understanding between the
PARTIES, and supersedes any prior agreements and understandings relating to the subject matter
of this AGREEMENT.
27. REMEDIES; WAIVER.
All remedies available to either PARTY for one or more breaches by the other PARTY are and
shall be deemed cumulative and may be exercised separately or concurrently without waiver of
any other remedies. The delay or failure of either PARTY to require performance or compliance
of the other of any of its obligations under this AGREEMENT shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this AGREEMENT shall be effective unless made in writing and signed by a duly authorized
representative of the PARTY against whom it is sought. The waiver of any right or remedy with
respect to any occurrence or event shall not be deemed a waiver of such right or remedy with
respect to any future occurrences or events and shall not be deemed a continuing waiver.
28. AMENDMENT.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER,LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 17 of 23
2015-229
No amendment to this AGREEMENT will be effective unless it is in writing and signed by both
PARTIES.
29. SUCCESSORS AND ASSIGNS.
This AGREEMENT shall be binding on and inure to the benefit of the PARTIES to this
AGREEMENT and their respective heirs, representatives, successors, and assigns.
30. SEVERABILITY.
If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be
invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
other circumstance, and the remaining provisions of this AGREEMENT shall remain in full
force and effect.
31. TIME OF ESSENCE.
Time is of the essence of each provision of this AGREEMENT which specifies a time within
which performance is to occur. In the absence of any specific time for performance, performance
may be made within a reasonable time.
32. QUIET ENJOYMENT.
Subject to the provisions of this AGREEMENT and conditioned upon performance of all the
provisions to be performed by LESSEE hereunder, CITY shall secure to LESSEE during the
AGREEMENT term the quiet and peaceful possession of the PREMISES and all rights and
privileges appertaining thereto.
33. PROVISIONS ARE COVENANTS AND CONDITIONS.
All provisions, whether covenants or conditions, on the part of either PARTY shall be deemed
both covenants and conditions.
34. CONSENT.
Whenever consent or approval of either PARTY is required that PARTY shall not unreasonably
withhold, condition, or delay such consent or approval, unless the provision providing for such
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 18 of 23
2015-229
consent or approval specifically provides such consent or approval may be given in the
PARTY's discretion.
35. EXHIBITS.
All exhibits referred to are attached to this AGREEMENT and incorporated by reference.
36. LAW.
This AGREEMENT shall be governed and construed under the laws of the State of California
without giving effect to that body of laws pertaining to conflict of laws.
37. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
AGREEMENT shall be tried and litigated either in the Superior Court of the State of California
for the County of San Bernardino or the United States District Court for the Central District of
California, Riverside Division. The aforementioned choice of venue is intended by the parties to
be mandatory and not permissive in nature.
38. ATTORNEY'S FEES AND COSTS.
In the event that litigation is brought by any PARTY in connection with this AGREEMENT, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its
rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions
hereof. The costs, salary and expenses of the City Attorney and members of his/her office in
enforcing this AGREEMENT on behalf of the CITY shall be considered as "attorneys' fees" for
the purposes of this section.
41. RIGHT TO TERMINATE.
41.1 The INITIAL TERM of this AGREEMENT may be terminated by LESSEE on
June 30, 2020 by written notice made in conformity with Section 24 no later than
March 31, 2020 if GROSS REVENUE for the period of January 1, 2019 through
December 31, 2019 does not equal or exceed ONE MILLION TWO HUNDRED
FIFTY THOUSAND DOLLARS ($1,250,000).
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 19 of 23
2015-229
41.2 The INITIAL TERM of this AGREEMENT may be terminated by CITY on June
30, 2020 by written notice made in conformity with Section 24 no later than
March 31, 2020 if LESSEE fails to hold during the period of January 1, 2019
through December 31, 2019 at least twenty five (25) soccer competition events at
the PREMISES that occur on a Saturday or Sunday or both and for which a
majority of the available fields are utilized.
42. HEADINGS.
The subject headings of the sections of this AGREEMENT are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provisions.
43. SURVIVAL.
The obligations of the PARTIES that, by their nature, continue beyond the term of the
AGREEMENT, will survive the termination of the AGREEMENT.
44. ESTOPPEL CERTIFICATE.
Each PARTY within thirty (30) days after notice from the other PARTY shall execute and
deliver to the other PARTY, in recordable form, a certificate stating that this AGREEMENT is
unmodified and in full force and effect, or in full force and effect as modified, and stating the
modifications. The certificate also shall state that there are no uncured defaults or specifying in
reasonable detail the nature of any uncured default claimed. Failure to deliver this certificate
within thirty (30) days shall be conclusive upon the PARTY requesting the certificate any
successor to the PARTY requesting the certificate, that this AGREEMENT is in full force and
effect and has not been modified except as may be represented by the PARTY requesting the
certificate, and that there are no uncured defaults on the part of the PARTY requesting the
certificate.
45. PUBLIC RECORDS DISCLOSURE.
All information received by CITY concerning this AGREEMENT, including the AGREEMENT
itself, may be treated as public information subject to disclosure under the provisions of the
California Public Records Act, Government Code Section 6250 et seq. (the "Public Records
Act"). The PARTIES understand that although all materials received in connection with this
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 20 of 23
2015-229
AGREEMENT are intended for the exclusive use of the PARTIES, they are potentially subject
to disclosure under the provisions of the Public Records Act.
46. CONDITION OF PREMISES.
The CITY shall take reasonable efforts to deliver the PREMISES to LESSEE clean and free of
debris on the COMMENCEMENT DATE but makes no warranty as to the condition of the
PREMISES on COMMENCEMENT DATE or the PREMISES' suitability for a particular use.
Notwithstanding the foregoing, CITY represents and warrants that it is not aware of any of the
following: (i) the existence of any hazardous or toxic substances on, under or about the
PREMISES, (ii) that the PREMISES is not in violation of any law, regulation or ordinance, or
(iii) any pending or threatened litigation related to the PREMISES. Except as specifically
provided for in this AGREEMENT, LESSEE agrees that it has not relied upon any
representation by CITY as to the condition of the PREMISES or the PREMISES' suitability for a
particular use when determining whether to enter into this AGREEMENT.
47. CONDEMNATION.
If any legally, constituted authority condemns the PREMISES or such part thereof which shall
make the PREMISES unsuitable for leasing, this AGREEMENT shall cease when the public
authority takes possession. Such termination shall be without prejudice to the rights of either
PARTY to recover compensation from the condemning authority for any loss or damage caused
by the condemnation including money spent on capital improvements to the PREMISES. Neither
PARTY shall have any rights in or to any award made to the other by the condemning authority.
48. MATERIAL REPRESENTATION.
If during the course of the administration of this AGREEMENT, a PARTY determines that the
other PARTY has made a material misstatement or misrepresentation or that materially
inaccurate information has been provided to the PARTY, this AGREEMENT may be
immediately terminated. If this AGREEMENT is terminated according to this section, the
terminating PARTY is entitled to pursue any available legal remedies.
49. INTERPRETATIONS.
The PARTIES have participated jointly in the negotiation and drafting of this AGREEMENT. In
the event an ambiguity or question of intent or interpretation arises with respect to this
AGREEMENT, this AGREEMENT shall be construed as if drafted jointly by the PARTIES and
in accordance with its fair meaning. There shall be no presumption or burden of proof favoring
or disfavoring any Party by virtue of authorship of any of the provisions of this AGREEMENT.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 21 of 23
2015-229
50. COUNTERPARTS.
This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same agreement. In the
event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf'
format data file, such signature shall create a valid and binding obligation of the PARTY
executing (or on whose behalf such signature is execute) with the same force and effect as if
such facsimile or".pdf' signature page were an original thereof.
51. CORPORATE AUTHORITY.
Each person executing this AGREEMENT on behalf of the PARTIES hereto warrant that they
are duly authorized to execute this AGREEMENT on behalf of said PARTIES and that by doing
so, the PARTIES hereto are formally bound to the provisions of this AGREEMENT.
52. ORDER OF PRECEDENCE.
In the event of any inconsistency or conflict in this AGREEMENT and any of the attached
Exhibits or Attachments, the terms set forth in this AGREEMENT shall prevail.
53. FORCE MAJEURE.
A PARTY shall not be liable for any failure or delay in the performance of this AGREEMENT
for the period that such failure or delay is due to causes beyond its reasonable control, including
but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or
any other force majeure event.
54. COMPLIANCE WITH LAW.
LESSEE agrees to abide by all federal, state, and local laws, ordinances and regulations.
55. NON-DISCRIMINATION.
In the performance of this AGREEMENT, use of the PREMISES, and in the hiring and
recruitment of employees, LESSEE shall not engage in, nor permit its officers, employees or
agents to engage in, discrimination in employment of persons because of their race, religion,
color, national origin, ancestry, age, mental or physical disability, medical condition, marital
status, sexual gender or sexual orientation, or any other status protected by law.
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 22 of 23
2015-229
56. REGULATORY AUTHORITY.
LESSEE acknowledges and agrees that CITY, acting not as landlord but in its governmental
regulatory capacity, has certain governmental regulatory authority over the PREMISES and
nothing in this AGREEMENT binds the CITY to exercise its discretionary governmental
authority in any particular manner. LESSEE, in the use and operation of the PREMISES, shall at
all times comply with all applicable laws in the performance of this AGREEMENT and agrees
that"all applicable laws" as used herein includes any legal requirement imposed by CITY acting
not as landlord but in its capacity as a governmental regulatory body. LESSEE agrees that all
costs in complying with applicable laws are the sole responsibility of LESSEE.
LEASE AGREEMENT
CITY OF SAN BERNARDINO and SAN BERNARDINO SOCCER, LLC.
CITY OF SAN BERNARDINO: LESSEE:
Allen Park�, City Manager
Its:
DATE: DATE:
APPROVED AS TO FORM:
GARY D. SAENZ, City Attorney
By:
LEASE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND SAN BERNARDINO
SOCCER, LLC FOR SAN BERNARDINO SOCCER COMPLEX
Page 23 of 23